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be lawful for the Manchester Improvement Commissioners to cause such sewers as they should think it necessary to be made, and when made to be repaired and cleansed. In 1843 the powers of the commissioners were transferred to the corporation, and the property of the commission was vested in the corporation, and it was provided that the powers of the commissioners should be exercised by the town council. In 1851 it was enacted that it should be lawful for the council from time to time to cause as many sewers and drains as they might think necessary to be constructed, and also cause any sewers within the borough to be repaired, eularged or cleansed as often as they thought it necessary. The drain which burst was constructed by the commissioners forty years before the accident, and I understand the findings of the jury to amount to this, that if the sewer had been originally properly constructed it would have required no repair, and would not have burst, and that if the corporation, the sewer being what it was, had taken reasonable means to inform themselves of its condition and had executed proper repairs, it would not have burst. Upon this state of facts it was contended for the plaintiff that though the corporation were not within the rule stated in Fletcher v. Rylands, L. R., 3 H. L. 330, according to which a person is bound to protect others against a danger which he has caused for his own purposes upon his own land, they were nevertheless under a legal duty of a narrower kind, viz., a duty to take reasonable means to inform themselves of the state of the sewer, and to use the powers conferred upon them by statute for the purpose of preventing injuries which a defective condition of the sewer might cause. It was contended that the omission to do this constituted negligence, for the effects of which they were answerable in damages. On the other hand it was argued for the defendants that the corporation were under no legal duty to inform themselves as to the state of the sewer, but that their duty was only to execute repairs upon having notice that such repairs were required. A great number of cases were cited in the course of the argument before me; but it appears to me that the principles on which this case ought to be decided are established by the comparatively small number of decisions to which I am about to refer. It was decided in the case of Parnaby v. Lancaster Canal Company, 11 Ad. & El. 223, and see especially pp. 242, 243, that when a company constituted under a private act of Parliament constructed a canal for their profit and opened it to the public on the payment of tolls, the common law imposed upon the proprietors a duty to take reasonable care, as long as they kept the canal open for the public use of all who might choose to navigate it, that they might navigate it without danger to their lives and property. The decision of the Court of Queen's Bench suggests (see p. 230), though it does not exactly state, that if the company has statutory powers for the purposes referred to, it is their duty to use them. The cases of Mersey Docks Trustees v. Gibbs and Mersey Docks Trustees v. Penhallow, L. R., 1 H. L. 93, carry the doctrine somewhat further. The opinion of the judges delivered in the House of Lords in that case by Lord Blackburn examines all the decisions at length, and one of the results arrived at in the House of Lords (which adopted to the full the opinion delivered by Lord Blackburn) was that the fact that the trustees in whom the docks were vested did not collect tolls for their own profit, but merely as trustees for the benefit of the public, made no difference in respect of their liability. Lord Blackburn states in one part of the opinion referred to (at p. 110), that the proper rule and construction of such statutes (namely statutes constituting bodies of trustees, etc., for public purposes) is that in the absence of something to show a contrary intention, the Legislature intends that the body, the creature of the statute, shall have the same duties and

that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same thing. Two cases, which complete and supplement each other, seem to me to show distinctly that these duties, in the case of such a body as the corporation of Manchester, include the use of every power conferred upon them by law for the purpose of protecting all persons affected by their operations from being injured by them. These cases are Cracknell v. Corporation of Thetford, L. R., 4 C. P. 629, decided in 1869, and Gedais v. Proprietors of Bunn Reservoir, L. R., 3 App. Cas. 430, decided in 1878. In the first of these cases the corporation of Thetford erected certain staunches in the river Brandon which caused an accumulation of silt and the growth of river weeds, whereby the plaintiff's land was flooded. It was held that the defendants were not liable because they were justified in erecting the staunches, although their erection caused silt to accumulate, because they had no power, and were therefore under no duty, to cut the weeds. In Geddis v. Bann Reservoir, the proprietors were held to be liable because the plaintiff's land had been overflowed and damaged by a flood caused by the omission of the proprietors to dredge the silt out of a water-course which it was held they had a statutory duty to keep in proper order. Lord Blackburn in this case said (at p. 455): "No action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one; but an action does lie for doing that which the Legislature has authorized if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented, it is, within this rule, 'negligence' not to make such reasonable exercise of their powers." These two cases show, as it seems to me, precisely what is the position of such a body as the corporation of Manchester. It is under a legal duty to exercise whatever legal powers it possesses for the purpose of protecting persons from damage by the works which it is under a statutory duty to perform. But their duty does not stop here. It has also been decided by two cases, which again complement each other that it is their duty to use all reasonable means to inform themselves of the existence of an occasion for the use of those powers. These cases are the Mersey Docks cases, already referred to for another purpose, and the case of Hammond v. Vestry of St. Pancras, L. R., 9 C. P. 316. In the Mersey Docks cases, Lord Cranworth, then Lord Chancellor, said (at p. 122): "In the other case (the case of Penhallow) it must be taken as an established fact that the appellants had by their servants the means of knowing the dangerous state of the dock, but were negligently ignorant of it. It is plain, that if the appellants are liable in the former case, they must be liable also in the latter. If the knowledge of the existence of the mud bank made them responsible for the consequences of not causing it to be removed, they must be equally responsible if it was only through their culpable negligence that its condition was not known to them." The case of Hammond v. Vestry of St. Pancras was almost identical with the present case. A sewer, the existence of which was in fact unknown to the vestry, though it might have been ascertained by reasonable care and inquiry, became obstructed and caused damage. The jury

found that the obstruction was not known to the vestry, and that it could not have been known to them by reasonable care, and it was held that under these circumstances they were not liable. Upon these authorities I hold, first, that the corporation of Manchester were under a legal duty to use such powers as the statute gave them to keep the sewer in proper order, and from time to time to inform themselves as to its condition; and secondly, that 14 and 15 Vict., chap.

94

cxix, § 36 (private act), and 11 Geo. IV, chap. xlvii, § 58
(private act), gave them power to cause the sewer to be
cleansed and repaired, and that the common law su-
perinduced upon that power a duty to use it, and to use
all reasonable means to inform themselves whether
Thirdly, that the find-
there was occasion to do so.,
ings of the jury show that the corporation omitted to
perform this duty, and so were negligent. Accordingly
I give judgment for the plaintiff for the amount of
damages agreed on between the parties, with costs.
Judgment for plaintiff.

UNITED STATES SUPREME COURT AB-
STRACT.

-SPECIAL STAT

CONSTITUTIONAL LAW VALIDITY UTES AUTHORIZING MUNICIPAL BONDS. —(1) The Constitution of Tennessee of 1834 provides (article 1, section 8) that "no freeman shall be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, or property, except by the judgment of his peers, or the law of the land;" and (article 11, section 7) that "the Legislature shall have no power to suspend any general law for the benefit of any particular individual; nor to pass any law for the benefit of individuals, inconsistent with the general law of the land; nor to pass any law granting to any individual or individuals rights, privileges, or immunities, other than such as may be, by the same law, extended to any member of the community who may be able to bring himself within the provisions of such law. Provided, always, the Legislature shall have power to grant such charters of incorporation as may be deemed expedient for the public good." In 1867 there was in force in Tennessee a general statute, under the provisions of which counties, incorporated cities, and towns, could subscribe stock in railroads, upon certain terms and conditions, one of which was the previous approval of the legal voters of such county, city, or town, at an election called and held for the ascertainment of their will. In that year a special act was passed by the Legislature of that State, which was amended in 1869, for the benefit of the Mississippi Railroad Company. These acts authorized the county courts of counties on the line of that company's road (among which was the county of Tipton) to subscribe to its capital stock, without requiring a submission of the question of subscription to a popular vote-the majority of the justices in commission being present, and a majority of those present concurring. In an action upon bonds issued by said county, in pursuance of the acts referred to, it was contended that such acts were in violation of section 7, article 11 of the State Constitution, in that they authorized a limited number of counties to subscribe to the capital stock of a particular railroad corporation, and also because they dispensed with the previous sanction of a popular vote, as required by the general statute regulating railroad subscriptions by counties, incorporated cities, and towns; and further, that being partial and special laws, inconsistent with the general law upon the subject of municipal subscriptions, they did not constitute the law of the land,' within the meaning of section 8, article 1 of that Constitution. The argument was that the power reserved to the Legislature in the proviso of section 7 of article 11, "to grant such charters of incorporation as may be deemed expedient for the public good," is limited in its exercise by the prohibitions contained in the body of the same section; and that a charter conferring upon a particular railroad company, or upon particular municipal corporations, special privileges and immunities, not given by the general law, was inconsistent with those prohibitions, and was not a "law of the land" of article 1. Held, within the meaning of section

that if when the acts in question were passed, the
Legislature was without power, under the Constitu-
tion, as interpreted by the highest court of Tennessee,
to enact a special law authorizing a designated number
of counties, without a previous vote of the people, to
make subscriptions of stock to a particular railroad
running through such counties, our duty is to accept
that construction of the fundamental law of the State.
But if there was no such cotemporaneous or fixed con-
struction, this court, as was the court of original juris-
diction, is under a duty, imposed by the Constitution
of the United States, from the performance of which
it is not at liberty to shrink, to determine for itself
what were the legal rights of parties at the time the
bonds in suit were issued. Held, further, that looking
as well at the language of the Constitution as at the
course of decision in the Supreme Court of Tennessee
up to the time the acts of 1867 and 1869 were passed,
and giving full effect to its latest utterance, and re-
membering also that the power given to a municipal
corporation to subscribe to the stock of a railroad
company may be also a right and privilege of that com-
pany (94 U. S. 682; 99 id. 504; 101 id. 91), the conclu-
sion is that those acts were not repugnant to the Con-
stitution of the State, by reason of the authority they
confer on a limited number of counties to make, and
on a particular railroad corporation to receive, a sub-
scription of stock, nor because they dispensed with
the previous assent of the people of such counties ex-
pressed at a popular election. The court referred to
the following cases: Budd v. State, 3 Humph. 483; Van-
zant v. Waddell, 2 Yerg. 200; Bank v. Cooper, id. 599;
Tate v. Bell, 4 id. 202; Officer v. Young, 5 id. 320;
Fisher v. Dabb, 6 id. 119; Jones v. Perry, 10 id. 71, 78;
Marr v. Enloe, 1 id. 452; Shephard v. Johnson, 2 Humph.
Sneed, 115, 118; Nichol
296; Hazen v. Union Bank,

v. Mayor, etc., 9 Humph. 266; City of Memphis v. Water
Co., 5 Heisk. 530; Railway Co. v. City, 4 Cold. 414; L.
& N. R. R. Co. v. County Court, 1 Sneed, 638; McCal-
lie v. Mayor, 3 Head, 317. Judgment of U. S. Circ. Ct.,
W. D. Tennessee, affirmed. Tipton County v. Rogers'
Locomotive & Machine Works. Opinion by Harlan, J.
[Decided Feb. 28, 1881.]

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CONSTITUTIONAL LAW-QUESTION OF LAW IS FACT -STATUTORY CONSTRUCTION JOURNALS OF LEGISBE REFERRED TO TO SHOW LAW CONLATURE MAY STITUTIONAL-CHANGE IN TITLE OF BILL DURING PASSAGE-MUNICIPAL BONDS-COUPONS-INTEREST. (1) The question whether an alleged statute really a law or not is a judicial one, ond is to be settled and determined by the court and judges, and is not a question of fact to be determined by a jury." Town of South Ottawa v. Perkins, 94 U. S. 260; Gardner v. The Collector, 6 Wall. 599. (2) It is settled by decisions of the Supreme Court of Illinois that the journals of the legislature may be resorted to for the purpose of overthrowing the prima facie evidence of the constitutional enactment of a law furnished by the signatures of the presiding officers of the two houses. See Town of South Ottawa v. Perkins, 94 U. S. supra, where the Illinois decisions on this subject are collected. According to the journals of the Illinois legislature the Senate received a message that "House bill No. 231, entitled an act to amend an act entitled an act to incorporate the Grand Trunk Railway " was passed by the House. The same bill, designated as House bill 231, was passed by the Senate, except that 'Illinois was inserted before "Grand" in the title, and the bill was signed in that form by the presiding officers of both houses, and approved and signed by the governor. Held, that an objection that the same bill was not passed by both houses, and that the act In Larrison v. was therefore invalid was not tenable. Peoria, Atlanta & Decatur R. Co., 77 Ill. 11, it appeared that by some clerical error the bill was intro

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duced into the Senate as "Senate bill No. 453, for an act to incorporate the Peoria, Atlanta & Danville Railroad Company," thus changing the name of Decatur, in the title, to Danville: but as the bill preserved its identity by holding its number, “453," the Supreme Court of Illinois decided that the act was constitutionally passed. It said: "And the question is, was the bill for the act read three times in the Senate before its passage by that body? If the entries on the journal refer to the same bill, then the requirements of the organic law are satisfied. The question is one of identity. Do these entries show there was one or two bills acted upon by the Senate? The number is the same throughout. About that there is not the pretense of the slightest doubt, and it is manifest that to have more than one bill pending at the same time, with the same number, would lead to confusion; it would defeat the very object of numbering bills, which is to preserve their identity and prevent confusion." There is no rule of parliamentary law, and there is no provision of the Constitution of Illinois, which requires a bill to preserve the same title through all its stages in both houses. Binz v. Weber, 81 Ill. 290; Plumer v. The People, 74 id. 362. (3) In an action upon unpaid interest coupons of bonds issued by a town in and of a railroad company, which were in the form of a draft, and made payable to bearer, the defendant objected to the admission of the coupons in evidence, because (1) they were not presented to the proper officers or demand of payment made thereon and notice given to the drawers before suit; (2) because they were detached from and not annexed to any bond, and the absence of the bond was not accounted for, and the same were not negotiable paper sufficient to base an action upon, and (3) because said coupons never were indorsed and are not negotiable by delivery. Held, that none of these grounds of objection were tenable. The form of the coupons does not change their nature. They are evidences of the sums due for interest on the bonds. The fact that they are made payable at a particular place does not make a presentation for payment at that place necessary before a suit can be maintained on them. Wallace v. McConnell, 13 Pet. 148; Irvine v. Withers, 1 Stew. 234; Montgomery v. Elliott, 6 Ala. 701. The second and third grounds of objection are answered by the decision of this court in Clark v. Iowa City, 20 Wall. 583, where it is said: "Coupons for installments of interest when severed from bonds are negotiable and pass by delivery. They then cease to be incidents and become in fact independent claims and they do not lose their validity if for any cause the bonds are cancelled or paid before maturity, nor their negotiable character, nor their ability to support separate actions." See, also, Aurora City v. West, 7 Wall. 82; Thompson v. Lee County, 3 id. 327. (4) Where the question whether the conditions precedent to the issue of municipal bonds had been complied with was a question which was in effect left by the law to the "corporate authorities" who issued the bonds, to decide. A bona fide holder is not bound to look beyond the legislative act and the recitals in the bonds. Town of Coloma v. Evans, 92 U.S. 484; Marcy v. Township of Oswego, id. 639. (5) The interest coupons on such bonds, in case of default, bear interest from the day they are payable. Town of Geneva v. Woodruff, 92 U. S. 502.

Judgment of U. S. Circ. Ct., N. D. Illinois, affirmed. Town of Walnut v. Wade. Opinion by Woods, J.

[Decided April 18, 1881.]

MARITIME LAW-COLLISION-SHIP DRAWN BY TUG ONE VESSEL-WHEN BOTH LIABLE FOR NEGLIGENCE.

A ship and a tug towing it are in law one vessel, and that a vessel under steam, and it is their duty to keep out of the way of a sailing vessel. And where both the tug and the ship were under the general orders of the pilot of the ship, and were approaching a sailing

vessel, which was seen both on the ship and on the tug, and the tug neglected to take the proper course to avoid a collision, and the pilot on the ship gave no direction to take such course, held, that both the ship and the tug were liable for the collision. Both vessels were responsible for the navigation. The ship, because her pilot was in general charge, and the tug, because of the duty which rested on her to act upon her own responsibility in the situation in which she was placed. The tug was in fault because she did not on her own motion change her course so as to keep both herself and the ship out of the way; and the ship, because her pilot, who was in charge both of ship and tug, neglected to give the necessary directions to the tug, when he saw or ought to have seen that no precautions were taken by the tug to avoid the approaching danger. Decree of U. S. Circ. Ct., S. D. New York, affirmed. Ship Covilita v. Perry. Opinion by Waite, C. J. [Decided May 2, 1881.] PRACTICE-STIPULATION WAIVER OF JURY-REVIEW OF JUDGMENT ON AGREED FACTS-CONSTRUCTION OF BOND ON APPEAL DAMAGES.

(1) A stipulation in writing signed by the attorneys of the respective parties, submitting the cause to the court for trial on the agreed facts, is of itself a sufficient waiver of a jury to meet the requirements of United States Revised Statutes, section 649, that a stipulation in writing waiving a jury must be filed with the clerk, etc. (2) It was always held, even before the act of 1865, reproduced in sections 649 and 700, United States Revised Statutes, that a judgment on agreed facts spread at large on the record could be reviewed in this court on a writ of error. U. S. v. Eliason, 16 Pet. 301; Stimpson v. B. & S. R. R. Co., 10 How. 346; Graham v. Bayne, 18 id. 62; Suydam v. Williamson, 20 id. 434; Campbell v. Boyrean, 21 id. 227; Burr v. Des Moines Co., 1 Wall. 102. Such a statement was considered to be equivalent to a special verdict and to present questions of law alone for the consideration of the court. It is manifest that the act of 1865 was not intended to interfere with this practice. The evident object of that legislation was to give special findings the same effect for the purposes of a writ of error as a special verdict or an agreed case. (3) Section 1000, United States Revised Statutes, provides that when an appeal "is a supersedeas and stays execution," the security must be that the appellant "shall prosecute his appeal to effect, and if he fails to make his plea good, shall answer all damages and costs." In regulating the practice under this statute, this court, by its rule 29, provides that in suits on mortgages, indemnity is only required in an amount sufficient to secure the sum recovered, for the use and detention of the property, and the costs of the suit, and just damages for delay,' and costs and interest on the appeal." Held, that the damages to be answered for are clearly only such as are incident to the plea that fails, that is to say, the appeal that is taken. Accordingly, when an appeal was taken by a county from a decree which subjected its bonds to the payment of the debt of a railroad company, the damages which the county and its sureties bound themselves to answer must have been such only as followed from the delay in the sale of the property. That does not necessarily imply, an obligation to pay the balance which remains of the mortgage debt after the entire proceeds of the lands have been applied to its satisfastion. In Jerome v. McCarter, 21 Wall. 32, it was held that the rule did not require security for the payment of all the accumulation of interest on the mortgage debt pending the appeal, but only indemnity against loss by reason of such accumulation, the amount of which would depend in each case on its own facts. Judgment of U. S. Circ. Ct., S. D. Illinois, reversed. Supervisors of Wayne County v. Kennicott. Opinion by Waite, C. J. [Decided April 4, 1881.]

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NORTH CAROLINA SUPREME COURT AB

STRACT.*

JANUARY TERM, 1881.

CONSTITUTIONAL LAW IMPAIRING CONTRACT DOWER RIGHT NOT AFFECTED BY REPEAL OF STAT

UTE. - Where a marriage took place in 1866 (prior to the act of 1866-'67, restoring to married women their common right of dower), and the husband acquired land in November, 1867, subsequently to the date of said act (and prior to the act of 1869), and conveyed the same by deed to which the wife was not a party, held, that notwithstanding the deed, the wife of the grantor is entitled to such dower in the land as was secured to married women by the act of 1867, the right to the same having vested by the operation of that act, and not affected by the subsequent repealing act of 1869. The rule that laws existing at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms, is equally applicable to the acquisition of real property whether it comes by descent or purchase. Sutton v. Askew, 66 N. C. 172; Felton v. Elliott, id. 195; Hughes v. Merritt, 67 id. 386; Williams v. Monroe, id. 161; Bruce v. Strickland, 81 id. 267; Sedg. Stat., 177; Cooley on Const. Lim. 443; Van Huffman v. Quincy, 4 Wall. 552. O'Kelly v. Williams. Opinion by Ashe, J.

DEED PREMISES.

HABENDUM, OFFICE OF AND EFFECT ON -The habendum in a deed shall never introduce one who is a stranger to the premises to take as grantee, but he may take by way of remainder; therefore, a deed which in the premises gives a life estate to the mother grantee alone, and in the habendum to her and her children, operates to convey an estate for life to the mother, and an estate for life in joint-tenancy in remainder to her children. The premises of a deed are used to set forth the names of the parties, any recitals of deeds, etc., that may be deemed necessary to explain the reasons upon which the conveyance is founded and the consideration upon which it is made; and it is the office of the habendum to determine the estate or interest which is granted, though this may be performed by the premises, in which case the habendum may explain, enlarge or qualify the premises, but not be totally contrary or repugnant. 2 Blackst. Com. 298. A deed may be good without any habendum, but where it is used it may materially qualify the statement of the premises. See, also, 2 Roll. Abr. 68; Hob. 313. Blair v. Osborne. Opinion by Ashe, J.

SPECIFIC INVOLUNTARY INABILITY IN VENDOR TO GIVE TITLE SUFFICIENT DEFENSE. In an action to enforce the specific performance of a contract to convey land, the inability of the vendor to convey the title for want of it in himself after reasonable efforts to obtain it, is a good defense. Fry Spec. Perf., §§ 658, 665; Pom. Cont., §§ 203, 295. And the doctrine is carried so far as to apply to the case in which the vendor, after his contract, has sold and conveyed the land to a bona fide purchaser for value and without notice of the prior equity. Denton v. Stewart, 1 Cox, 258. And also when the concurrence of others is necessary to perfect the title. In Green v. Smith, 1 Atk. 572, the court ruled that this relief will never be given, when the act is impossible to be done, and will leave a party to his remedy at law. And in Columbine v. Chichester, 22 Eng. Chan. Cases, 27, the court refused to make a decree for specific performance because of the absence of an averment in the bill of the defendant's ability to make title, while it was inferable from the statements of the plaintiff that he could not. The general principle is that the performance of a contract will not be * To appear in 13 North Carolina Reports.

decreed, when the decree, by reason of the defendant's incapacity to perform, would be a "vain thing." In Love v. Camp, 6 Ired. Eq. 209, it is decided that a vendor undertaking to sell land which he does not own to a purchaser, who is ignorant of his want of title, will be compelled to make efforts to procure the title and will not be excused merely upon the ground that he does not possess it. The same judge, delivering the opinion of the court in Taylor v. Kelly, 3 Jones Eq. 240, declared and enforced the plaintiff's right to secure the amount for which the defendant subsequently sold the land to a bona fide purchaser, though the land itself could not be pursued and reclaimed, and the same equity is reasserted in Sugg v. Stowe, 5 Jones Eq. 126. A less vigorous and more reasonable statement of the doctrine is made by Reade, J., in Love v. Cobb, 63 N. C. 321, in assigning reasons why the application could not be sustained for a judgment against the vendor. Swepson v. Johnston. Opinion by Smith, C. J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

EVIDENCE-ON SECOND TRIAL-WITNESS TESTIFYING TO TESTIMONY OF DECEASED WITNESS.-When a witness is called upon a second trial to prove what a deceased witness said upon the first trial, the rule in Pennsylvania is that where the witness on the stand cannot recollect the very words of deceased witness, he may state in his own language the facts as detailed by that witness, as they were impressed on his mind at the time, and this applies as well to the cross-examination as to the examination in chief. All that is required is that the recollection of the witness be reasonably clear as to the facts testified to, and how, if at all, such testimony was affected by the cross-examination. It is true the contrary is held by English authorities, and these authorities have been followed by Chief Justice Shaw in Warren v. Nichols, 6 Metc. 261. But on the other hand Greenleaf favors the more liberal rule as adopted in Pennsylvania. See Cornell v. Green, 10 S. & R. 11; Wolf v. Wyeth, 11 id. 156. Helper v. Mount Carmel Savings Bank. Opinion by Gordon, J. [Decided May 6, 1881.]

NEGLIGENCE-BURDEN OF PROOF WHAT IS NOT NEGLIGENCE — DUTY OF TRAVELLERS IN STREETS. —

Defendants' servant was driving an ice wagon alongside a street passenger car going in the same direction. The car stopped and plaintiff's intestate stepped off the front platform of the car in front of the wagon, with his back toward it. Several persons who saw the danger to intestate, including the driver of the wagon, shouted to him, but he paid no heed, but stepped backward toward the wagon, was struck by it, thrown down, and run over by it, and so injured that he died. The driver did all that he could to check the speed of his horses and prevent the accident. Held, that there was no evidence of negligence on the part of the driver, and that in an action for such death defendant was entitled to have a verdict directed in his favor. Philadelphia & Reading R. Co. v. Yerger, 23 P. F. Smith, 121; Goshorn v. Smith, 27 Pittsb. L. J. 152. The burden of proving negligence is on the plaintiff. McCully v. Clark, 4 Wright, 399; Railway Co. v. Hummell, 8 id. 375. This is not a case of a passenger killed or injured by a common carrier. Both parties to the accident were in the lawful use of a public street in the city. Each owed substantially the same duty to the other. That duty was to use the street with reasonable and ordinary care. Each was justified in assuming that the other would so use it. What is negligence and what is ordinary care must generally be submitted to the jury. This is so, if there be any dispute as to the acts claimed to establish the alleged negligence; but negligence is not to be found without

evidence. It is not to be presumed from the mere fact of the occurrence of an accident causing injury or death. Gramlich v. Worst, 5 Norris, 74. Negligence is a question for the jury, if there be reasonable doubt as to the facts tending to prove it, or as to the just inferences to be drawn therefrom. McKee v. Bidwell, 24 P. F. S. 218. The province of the jury is to find facts. If the facts be admitted or ascertained, it is the duty of the court to declare the law thereon. Catawissa Railroad Co. v. Armstrong, 2 P. F. S. 282; Baker v. Fehr. Opinion by Mercer, J.

[Decided March 25, 1881.]

PATENT CONSTRUCTION OF AGREEMENT TO PAY ROYALTY. - P. and H., who owned a patent for a process to be used in the manufacture of axes, assigned their interest therein to a firm of which H. was a member, in consideration of which the firm agreed to pay P. as royalty one cent for every ax and hatchet manufactured by them by the process. There were several parts of the process. There was no warranty as to the validity or utility of the patent, nor is it pretended there was any fraud in the transaction. The patent had been but recently obtained and had not then been fully tested. Held, that the firm was liable to P. for royalty upon every ax in the manufacture of which any part of the process was used, even though most parts were unused, having been found to be valueless. Lawes v. Parser et al., 6 El. & Bl. 930; Hall V. Condor et al., 89 E. C. L. Rep. 20; Birdsall v. Perys, 5 Blatch. 255; Kinsman v. Parkhurst, 18 How. 289; Vaughan v. Porter, 16 Vt. 270, and Bellas v. Hays, 5 S. & R. 427. Palmer's Appeal. Opinion by Sterrett, J. [Decided Nov. 26, 1880.]

FINANCIAL LAW.

count with the knowledge of both parties. The bank failed before the check fell due, and it was held that this was a payment of the check. In First National Bank of Jersey City v. Leach, 52 N. Y. 352, it was held that the certifying of a check by a bank in which the drawer had funds to meet it, where the bank within an hour or two failed, operated as a payment of the check between the parties. New York Common Pleas, General Term, April 4, 1881. Briggs v. Central National Bank. Opinion by Daly, C. J.

RECENT ENGLISH DECISIONS.

CONVERSION-SALE BY AUCTIONEER. — The plaintiffs were the holders of a bill of sale, including, among other things, certain horses and harness, which S., the grantor of the bill of sale, without the plaintiff's knowledge, took to the defendant's repository, in the city of London, and entered them for sale by auction. Before the horses and harness were put up for auction, S. sold them privately in the defendant's yard. The purchase-money was paid to defendant, who deducted commission, and paid the balance to S. Horses were sold under the same conditions in defendant's yard, whether sold privately or by auction. Held (in an action by the plaintiffs) that the defendant was guilty of conversion. Cochran v. Rymill, 40 L. T. Rep. (N. S.) 744. Q. B. Div., March 26, 1881. National Mercantile Bank v. Rymill. Opinion by Lopes, J. 44 L. T. Rep. (N. S.) 306.

CONFLICT OF LAW BY WHAT LAW LEGITIMACY OF CHILD BORN ABROAD ESTABLISHED. On the death of an intestate domiciled in England, a daughter of the intestate's deceased brother, born in Holland before her parents' marriage, but legitimated there by the subsequent marriage of her parents, claimed to be entitled to a share of the intestate's personalty, as one of the intestate's next of kin. Held, by James and Cotton, L. JJ. (Lush, L. J., dissentiente), reversing the decision of Jessel, M. R. (43 L. T. Rep. N. S. 14; 14 Ch. Div. 619), that such legitimated child was entitled as

one of the intestate's next of kin. Authorities referred to: Doe v. Vardill, 7 C. L. & F. 895; 2 Rolle's Abr. 586; Re Wilson's Trusts, 13 L. T. Rep. (N. S.) 576; Shaw v. Gould, 18 id. 833; 2 Black. Com. 494; 1 Wms. Exrs. 4; Fenton v. Livingstone, 33 L. T. R. 335; Re Wright's Trusts, 27 id. 216; Hensloe's case, 9 Coke, 39 b.; Blackborough v. Davis, 1 P. Wms. 49; Dalrymple v. Dalrymple, 2 Hagg. Con. 58; Sheddin v. Patrick, 1 Macq. Sc. App. 535; Strathmore Peerage Case, 7 Cl.& F. 842; Story on Confl. L. (3d ed.)9; Skattowe v. Young, 24 L. T. Rep. (N. S.) 221; Re Don's Estate, 4 Drew. 194; Thompson v. Advocate-General, 12 Cl. & F. 1; Wallace v. Attorney-General, 13 L. T. Rep. (N. S.) 480; Arnold v. Arnold, 2 My. & C. 256; Udny v. Udny, L. R., 1 Sc. App. 442; Boyes v. Bedale, 10 L. T. Rep. (N. S.) 131. Ct. of Appeal, April 13, 1881. Re Goodman's Trusts. Opinions by James, Cotton and Lush, L. JJ. 44 L. T. Rep. (N. S.) 527.

PAYMENT OF CHECK-WHEN CREDIT BY CORRESPONDING BANK IS TO COLLECTING BANK. - Plaintiffs deposited a check drawn by H. on the Newark Bank in the defendant bank. For many years the Newark Bank had been defendant's correspondent, mutual accounts were kept and a settlement made every Tuesday, the credits in each bank in favor of the other being treated as cash by such other. The defendant transmitted the check to the Newark Bank, which gave defendant credit for the same, and charged it to the account of H. The account of H. at the Newark Bank was at the time overdrawn, but that was a common occurrence; the account had been always made good and was so on this occasion. Before the day for settlement between the two banks came, the Newark Bank failed. Held, that defendant bank was liable to plaintiffs for the amount of the check. The charging of the check by the Newark Bank to the drawer's account, and crediting the amount of it in the collection account kept with the defendant, was a payment of the check by the bank to the defendant as effectually as if the bank had paid it in money over its counter. In Byles v. Ellis, 4 Bing. 112, the defendant had been directed by his creditor to pay a certain sum in a bank where they both kept accounts. The defendant accordingly directed the bank to transfer that amount from his account to the credit of the plaintiff's account, which was done, and the bank failed before the plaint-in iff knew of the transfer. The court held that this was a payment of the amount to the plaintiff; that although no money was transferred in specie, it was an acknowledgment by the bank that they had received that amount for the plaintiff; that the plaintiff might then have drawn for it, and the bank could not have refused to pay his draft. This was a case of money paid into a bank. Bolton v. Richard, 6 T. R. 139, was a case of money to be drawn from one. A. held B.'s check on a bank where each had an account. On presenting the check, the amount of it was transferred from B.'s ac

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INSURANCE -MARINE POLICY ALABAMA AWARD -INSURANCE COMPANY NOT ENTITLED TO RECOVER

FROM INSURED SHARING IN. - Plaintiffs, underwriters England, underwrote a valued policy, including war risks, on cargo belonging to defendants, shipped on board a United States vessel. The real value of the cargo was more than the amount named in the policy. The cargo was destroyed by the Confederate cruiser Alabama, and plaintiffs paid the amount named in the policy to defendants as for an actual total loss. In pursuance of the Geneva award, made under the treaty of Washington, the British government paid a sum of money to the United States government in respect of losses caused by the Alabama. An act of Congress was passed establishing a court for the distri

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