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ties might settle and discharge the cause of action without a careful examination of the amendment, before judgment without consulting the attorneys, decided that'under section 66 the attorney must provided there was no bad faith or collusion for still give the opposite party notice of his lien in the purpose of depriving the attorney of his costs. order to protect his claim. On the other hand, For the attorney, as such, had no lien upon the the City Court of Brooklyn, in Custer v. Greenpoint cause of action; there being nothing, until judg- Ferry Co.

, 5 Civ. Pro. 146, decided that notice ment was obtained, to which his lien on a portion was not necessary. And all the other courts of the of the recovery could attach. Benedict v. Harlou, 5 State before which the question has come the How. Pr. 347; Brown v. Comstock, 10 Barb. 67; City Court of New York in Kehoe v. Miller, supra; Shank v, Shoemaker, 18 N. Y. 489; McDowell v. Sec- the Court of Common Pleas in Tullis v. Bushnell, ond Ave. R. Co., 4 Bosw. 670.

supra (reversing the Special Term decisions on this Under section 66, as it stood before the amend-point); the Superior Court of New York in Albert ment of 1879, the courts would set aside a settle- | Palmer Co. v. Van Orden, supra; the General Term ment if collusive, or made in bad faith between of the Supreme Court, Fourth Department, in plaintiff and defendant before judgment, when Dimick v. Cooley, supra — had decided the same such settlement had for its purpose to deprive the way as the City Court of Brooklyn. But in none attorney of his compensation. Rasquin v. Knicker- of these cases did the question come up so squarely bocker Stage Co., supra ; Carpenter v. Sixth Ave. R. as in Custer v. Greenpoint Ferry Co., 5 Civ. Pro. Co., supra; Coughlin v. N.Y.& H. R. R.Co., 71 N.Y. 146. The City Court of Brooklyn, following its 443; Walsh v. Flatbush, etc., R. Co., 11 Hun, 190; previous decision in Lewis v. Day, supra, held that Zogbaum v. Parker, 66 Barb. 341. But the burden notice of an attorney's lien for his compensation, of proving collusion or bad faith was on the at- under section 66 of the Code of Civil Procedure, torney, and it was often difficult and sometimes since the amendment of 1879, need not be given to impossible to obtain the proof.

protect him against a settlement between the parThe inadequacy of the protection afforded by the ties; that the defendant who chooses to settle with courts in the exercise of their sound discretion, the plaintiff without notifying the attorney does so particularly in cases of personal torts (which are at his own risk, the statute having already given not assignable, and so the doctrine of equitable as- the party sufficient notice to put him on his guard. signment could not be applied), was so great that By permission this case was carried to the highthe Legislature in 1879, to remedy the evil, and to est court. It was submitted in February last, and the protect attorneys in their just rights, amended sec- Court of Appeals has affirmed the decision of the tion 66, so as to put attorneys' liens upon an en- court below. tirely new basis. Section 66 now reads as follows: Judicial construction and sanction is thus given "The compensation of an attorney or counsellor by the court of last resort to a rule of law which for his services is governed by agreement, express changes radically the position of attorney and clior implied, which is not restrained by law. From ent as to agreed compensation. It prevents for the the commencement of an action or the service of an an- future unfair settlements between the pa ies; gives swer containing a couuterclaim, the attorney who ap- a protection to attorneys which was beyond the pears for a party has a lien upon his client's cause of power of the courts until the Legislature came to action or counterclaim, which attaches to a verdict, their assistance. Before the enactment of section report, decision, or judgment in his client's favor, 66, as it now stands, the lien of an attorney was and the proceeds thereof in whosoever hands they given effect by the aid of equity, with the doctrine may come, and cannot be affected by any settlement of notice in full force. Now the attorney has a between the parties before or after judgment."

lien given him by a public statute, and the law in
Since that amendment took effect (July 10, 1879) all cases gives the notice. The lien attaches to the
this protection is perfect and complete. The attor- cause of action, whatever it may be, as well as to
ney no longer depends upon his rights as equitable the judgment. Its amount is whatever is agreed
assignee of the judgment. He now has a perfect upon as compensation between the attorney and his
and complete lien given him by statute, to the ex- client.
tent of the amount agreed upon. Lewis v. Day, 10

Weekly Dig. 49; More v. Bowen, 9 Rep. 588; Mc
Cabe v. Fogg, supra ; Albert Palmer Co. v. Van Or-
den, 64 How. Pr. 79; Tullis v. Bushnell, 65 id. 465;

Kehoe v. Miller, 10 Abb. N. C. 393; Murray v. Jil
my 23 Hun, 386 ; Lansing v. Ensign, 62 How. Pr

. The bishop of Cahors, in Southern France, was a 363; Matter of Bailey, 66 id. 64; Dimick v. Cooley, day, a temporal count, having amongst his vassals the 3 Civ. Pro. 141.

neighboring baron of Cessac. On the day of the inThe wording of the section is so clear, and its stallation of each bishop, the baron for the time beterms are so specific, that it does not seem to need ing had to perform a part of conspicuous humilation. judicial construction. But the General Term of It was his duty, and the tenure upon which he held

his fief, to meet his episcopal master without the city the First Department in Jenkins v. Adams, 22 Hun, walls, and bareheaded, barefooted, and minus his man. 600, from facts peculiar to that case, evidently tle to lead the bishop's mule to the cathedral. The

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APPEAL from Pottawattamie District Court.

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day's proceedings closed with a banquet at the palace the rails, they spread, and a part of the train was thrown where the baron waited at table, receiving as his due from the track, and K., to protect himself and the propthe buffet or sideboard used at the feast, and the erty under his charge, reversed the lever to stop the train mule.

and in so doing broke his arm. K. sued the company for Mgr. de Popian however, who became bishop of Ca- damages, and the court directed a verdict for defendant. hors iu 1604, not content with the accustomed humil- Held, that it could not be said as matter of law that the iation, increased the indignity and compelled his re- negligence of the railroad company was not the proxiluctant vassal to lay aside his sword and girdle. He mate cause of the injury, and that the case should have also—and this was “real mean on his part-added been submitted to the jury. injury to insult, and instead of the silver-gilt buffet usually decorating the episcopal feasts, and which was a substantial balm to the wounded feelings of his lordly vassal, tried to palm off on him a second-hand

The plaintiff is a locomotive engineer, and was in the affair, picked up perhaps in some pawn-shop. This employ of the defendant, and the petition states that prored the proverbial “last straw.” De Cessac straight- while the plaintiff, as such engineer, was in charge of way brought suit, and on May 10th in the same year

a locomotive drawing a train of cars over defendant's got a judgment from the court of first instance sitting road, the “locomotive and train were thrown from the at Toulouse by which the bishop was condemned to track," and the plaintiff's right arm broken; that the deliver to him a buffet of the accustomed magnificence “accident was caused by the negligence and faulty or in default to pay its value. This was subsequently

construction of the track; * * * that the ties were fixed by experts at the sum of 3123 livres. For some

rotten, and insufficient to hold the sleepers and rails, reason not appearing in the records, the bishop backed

or weight of a passing train;" and that the accident down and accepted the judgment. Doubtless when

was not caused by the negligence of the plaintiff. The singing the Magnificat in after days, the “deposuit material allegations of the petition were denied. Trial potentes et exaltavit humiles," had a somewhat personal by jury, and judgment for the defendant. The plaintsound in his lordship's ears.

iff appeals. His successor however, Pierre de Habert, instituted

Sapp, Lyman & Pusey, for appellant. in 1627, was in no mind to be amerced in 3,000 livres for the sake of an empty ceremony. He therefore

Wright & Baldwin and Joy, Wright & Hudson, for dispensed with any formal entry into his see, and not appellee. having called upon De Cessac for any homage thought

SEEVERS, J. 1. The material question presented in himself safe. But the baron was just as practical a

this record is whether the negligence of the defendant mau as the bishop, and being poor, was quite willing to put his pride in his pocket for a day, for the sake of plaintiff. The evidence tended to show that the rails

was the proximate cause of the injury received by the a handsome addition to his revenues. He sued the

spread, and a portion of the train left the track. The bishop, offering his homage and demanding his recom

locomotive remained at least partly on the track. The pense, and again was victorious, recovering a judg. train consisted of the engine and several freight cars. ment for the value of the buffet ascertained as above,

When the plaintiff found the train was about to run subject to the liability to perform his homage when

off, or that a portion of it was off the track, he caught called upon.

the lever, and in reversing it his arm was broken. His The Bishop now appealed, not only from the present object in reversing the lever was to check as soon as judgment but also from the previous decision of 1604,

possible the speed of the train. At the conclusion of and a great wrangle of lawyers arose. It would be

the plaintiff's evidence the defendant filed a motion wearisome to go through all the arguments as reported

which is in these words: “Now comes the defendant in the Arrets de Toulouse, but we cannot avoid notic- and moves this court to instruct the jury to return a ing not only the skill and ingenuity displayed on both

verdict for the defendant, and for grounds of said mosides, but the wealth of classical learning by which so

tion states (1) that the undisputed testimony discloses dry a subject was adorned and illuminated. Virgil,

that the injury for which the plaintiff seeks to recover Pliny, Seneca, Plutarch, Juvenal, are only some of the in this case was received by plaintiff while reversing authorities quoted. The origin of the custom of un

his engine, and that the risk of accident in the operacovering the head in token of reverence is, as the

tion of the engine is one incident to the employment, French say, “ approfondi," and we are shown that the

for which plaintiff has no right of action; (2) that “cap of liberty” derives its significance from this plaintiff has not shown that the defective ties and very custom. The incident of the couspirators who

track occasioned the injury complained of, but that after the death of Caesar ran into the forum with

the same occurred and was sustained while reversing caps on their pikes is appositely cited in this connec

the engine.” The motion was sustained and the jury tion. A great deal of curious information about hom- instructed accordingly. age, and inany interesting historical points can also be

It will be observed the petition states that the accifound scattered through the yellow pages of the old

dent which caused the injury was caused by the locobook, but we must pass these over and content our

motive and train being thrown from the track, and selves with recording the final result, which was in

counsel for tbe appellee insist that the evidence shows favor of the baron, the principle of the decision being that the engine did not leave the track, and that it that the duties of baron and vassal were reciprocally

affirmatively appears the injury was the result of the binding, and the lord could no more dispense with

act of the plaintiff in reversing the lever, and therefore homage and its incidental recompense, than the vassal

there is a material variance between the allegations of could refuse service.

A. B. M.

the petition and the proof. For this reason it is in-
sisted the court rightly directed the jury to find for the

defendant. It must be presumed that the court gave

the direction asked on the grounds stated in the moSUPREME COURT OF IOWA, OCT. 24, 1884. tion. It does not appear therefrom that the defend

ant claimed in the District Court there was a variance, KNAPP V. Sioux CITY & P. R. Co.*

and that for this reason the jury should be directed to K., a locomotive engineer, was running & train on defendant's road, when by reason of the defective condition of) for the first time in this

court. Had the

motion been

find for the defendant. Such question cannot be raised *S. C., 21 N. W. Rep. 198.

based on such ground the right to ameud would have

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existed. It would be manifestly unjust to deprive plaintiff's employment; yet if the negligence of the dethe plaintiff of such right. This however would be the feudant required such aot to be done at that particueffect if we should affirm the judgment of the District lar time, and the plaintiff was not guilty of negligence, Court.

but on the contrary acted prudently, with due regard 2. The plaintiff was injured while he was reversing for his own safety and the safety of others, then the the lever. There is no evidence tending to show that defendant is liable, because the negligence of the dethis was rendered more difficult because the train, or a fendant is the proximate cause of the injury. portion of it, was off the track. If the lever had not We are unable to distinguish this from the Sqrib been reversed, it cannot be said the plaintiff would case, which was decided years ago, and has been frehave been in any respect injured. It must however be quently referred to. In that case a squib was thrown assumed that when a train leaves the track, the lives from place to place, until finally a person was injured of the employees are eudangered. The lever is moved by it. The first person who so threw the squib was forward, as we understand, for the purpose of starting held liable for the injury. Scott v. Shepherd, 2 W. Bl. the train or increasing its speed, and is reversed when 892. Each person subsequent to the first threw the it is desired to stop the train as speedily as possible. squib to protect himself and his property from injury. This forward and backward movement of the lever, So here the plaintiff reversed the lever to protect himno doubt, frequently occurs in a day's run. The use self and the property under his charge from consetherefore of the lever must be regarded as one of the quences which would probably follow the negligent incidents and hazards of the plaintiff's employment, act of the defendaut. See also Palmer v. Andover. 2 and for an accident happening by such use, by which Cush. 600; Allen v. Hancock, 16 Vt. 230; Woodward v. the engineer is injured, it will be conceded the defend- Aborn, 35 Me. 271. It may possibly be true, as sugant cannot ordinarily be held liable. The immediate gested by counsel for the defendant, that if the plaintcause of the injury received by the plaintiff was the iff had been injured as he was while reversing the reversal of the lever. The lever was reversed because lever for the purpose of stopping the train to prevent the train left the track, and this was caused by the it from running over cattle on the track, the despreading of the rails caused by the defective con- fendant would not be liable, although the cattle got dition of the track. There was therefore a combina- on the track because it was not fenced. It is sometion of immediate causes remotely preceded by others. times exceedingly difficult to determine to which class No erent can occur, it is believed, which is entirely a case belongs. But there is, and must of necessity independent. The links in the chain of causation be, a dividing line. It may apparently, in some cases, are endless." The law has adopted a practical rule have the appearance of being arbitrary. This cannot that the proximate cause of an injury only can be re. be avoided. But we think the failure to fence would cognized. When it is ascertained, further inquiry is be more remote from the immediate cause of the acclosed. The real difficulty lies in the application of cident than in the case at bar. Besides this to reverse the rule. An emivent judge has said : “The general the lever for such a cause might well be regarded as rule of law, we understand, is that where two or more one of the ordinary hazards. causes concur to produce an effect, and it cannot be

determined which contributed most largely, or
whether without the concurrence of both it would not NEGOTIABLE INSTRUMENT-BANKER'S DRAFT
have happened at all, and a particular party is respon-

sible only for the consequences of one of these causes,
a recovery cannot be bad because it cannot be judici-
ally determined that the damage would have been

done without such concurrence, so that it cannot be
attributed to that cause for which he is answerable."

Shaw, C. J., in Marble v. City of Worcester, 4 Gray, 395. A banker's draft, drawn and payable within this country, is
The same rule has been more briefly stated by Beck, not in legal effect a check, and where before presentation
J., in Dubuque Wood & Coal Ass'n v. City and County to the bank on which it is drawn, that has funds to meet
of Dubuque, 30 Iowa, 176. Conceding this to be a cor- its payment, the drawer fails and payment is refused on
rect statement of the law, we have to inquire whether that account by the [drawee, and the funds paid over to
the District Court correctly applied it to the facts of the receiver of the drawer, the payee is not entitled to
this case, and we feel constrained to say that in our payment in full out of such funds, but must share with
opinion it did not.

the other creditors.
Ordinarily trains remain on the track. If they do PPEAL from Ingham.
not, it must ordinarily be assumed it was caused by
the negligence of some one, unless the accident appears
to have been inevitable. In this case it must be as-

Olds & Robson, for petitioner
sumed that the negligence of the defendant caused the C'has. F. Hammond and Cahill, Ostrander & Baird,
train to leave the track. The plaintiff was called on for appellant.
in a sudden emergency to act. It cannot be expected

COOLEY, C. J. The facts in this case are the followthat he would remain passive. He was justified in 80

ing: On May 15, 1883, Eugene Angell was doing busiacting as to best protect himself and preserve the prop

ness as a private banker iu Lansing, Michigan. His erty under his charge. If he had sprung from the en

New York correspondent was the Chase National gine to the ground and been injured, he undoubtedly

Bank. On the day named, Grammel, the petitioner in could have recovered, provided he acted prudently in 60 doing. Buel v. N. Y. C. R. Co., 31 N. Y. 314; Coul

this case, purchased of Angell two small drafts on the

Chase National Bank, amounting together to $174.50, ter v. American Exp. Co., 5 Lans. 67. Instead of do

and paid for them. ing this he concluded to reverse the lever.

They were ordinary bankers' Now

drafts, payable at sight. Angell at this time was inwhether this was the proper thing to do, and whether the plaintiff was negligent in so doing, it was for the

solvent, though it was not publicly known, and two

days thereafter he made a general assignment of his jury to say. Conceding the plaintiff was not negligent,

property for the benefit of all his creditors. Arthur N. and that the injury was not received because of inevi.

Hart was named assignee. Two days subsequent to table accident, then it must follow the negligence of the defendent caused the injury. True it is that re

the assignment the drafts of petitioner were presented versing the lever is one of ordinary hazards of the

* S. C., 21 N.W. Rep. 418.

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to the Chase National Bank for payment, and payment refused upon the ground that the assiguee had notified the bank to pay no drafts. The bank had moneys belonging to Angell, at the date of the drafts, more than sufficient for their payment, and continued to have until the time of presentation. Hart, the assignee, failed to give bond as such, and under the statute the respondent, Carmer, was appointed receiver, to execute the trust in his stead. The Chase National Bank then paid over to the receiver the balance which was due to Angell when he assigned. On this state of facts the petitioner claimed to be entitled to payment of his drafts in full from the amount paid over to the receiver by the Chase National Bank, and he petitioned the Circuit Court for an order directing such payment to be made. The receiver contested his right, insisting that he must receive proportionate payment with other creditors; but the Circuit Court made the order prayed for. The receiver appeals.

It is contended on the part of petitioner that a banker's sight-draft is in legal effect a check, and that if there are in the hands of the drawee funds for its payment the payee is absolutely entitled to payment from such funds, and cannot be deprived of this right by any action of the drawer, or of the assiguee or receiver of the drawer who would stand in his shoes. It is further contended that the holder of the draft may bring suit against the drawee for the amount if the latter refuses to make payment, and that in effect he has a lien upon the fund, and may follow it into the receiver's hands if it is paid over to him. And several cases are cited in support of these positions. The doctrine that a banker's draft, drawn and payable within the country, is in legal effect a check, is held by a divided court in Roberts v.Corbin, 26 Iowa, 315, in which case it was also held that the holder of a bank check drawn against funds sufficient for its payment may maintain suit for the amount against the bank if payment is refused.

The case of Munn v. Burch, 25 Ill. 35, is relied upon as authority. An examination of the facts in that case will show very clearly that the question supposed to have been decided by it did not arise at all, for the check which was in question had actually been received by the bank on which it was drawn, and actually charged up to him ou his pass-book. The court went beyond the case, and expressed an unnecessary opinion, which in Chicago, etc., Co. v. Stanford, 28 Ill. 168, and Union Bank v. Oceuna Bank, 80 id. 212, has been followed as authorities. See also Fogarties v. State Bank, 12 Rich. 518; Lester v. Given, 8 Bush, 357. But the great weight of judicial authority is unquestionably to the contrary of this.

In Bank of Republic v. Millard, 10 Wall. 152, 156, Davis, J., speaking for the court, says. “It is no longer an open question in this court since the decision in the cases of the Marine Bank v. Fulton Bank, 2 Wall. 252, and of Thompson v. Riggs, 5 id. 663, that the relation of banker and customer in their pecuniary dealings is that of debtor aud creditor.” He adds that on principle there can be no foundation for an action on the part of the holder of a check against the bank, unless there is privity of contract between him and the bank. “How can there be such a privity when the bank owes no duty and is under no obligation to the holder? The holder takes a check on the credit of the drawer in the belief that he has funds to meet it; but in no seuse can the bank be said to be connected with the transaction." See also First Nat. Bank v. Whitman, 94 U. S. 343. Many cases might be cited to the same effect if it were needful, but we think the case of Perley v. County of Muskegon, 32 Mich. 132, recognizes the same principle.

This case however is not the case of a check, but of bills of exchange. The bills were drawn by banker

upon banker, it is true, and against deposits made to meet them; and it might be difficult to say why any distinction should be taken between checks and such drafts as to the rules which should govern the rights of the parties. We have no occasion in this case to cousider whether a distinction exists, because we think it clear that if it could be held, as some courts do hold, that the payee of a check drawn against actual deposits may sue the banker who refuses to pay it, it would beimpossible to so hold in the case of a draft without disre. garding long-settled rules. The cases of Williams v. Everett, 14 East, 582, 597; Yates v. Bell, 3 Barn. & Ald. 643; Hopkinson v. Forster, L. R., 19 Eq.74; and Citizens' Bank v. First Nat. Bank, L. R., 6 H. L. 352; S.C., 7 Moak, 56, are sufficient to show that the law in England is that the drawee of a bill of exchange is liable on it only after he has become acceptor. The same rule is recognized in Mandeville, v. Welch, 5 Wheat. 277, 283, and Bank of Republic v. Millard, already cited.

In Gibson v. Cooke, 20 Pick. 15, it appeared that a party had drawn a bill which was dishonored for want of funds. Afterward the drawer remitted funds expressly to meet that and another small bill which had previously been drawn. The drawee paid the small bill, but refused to pay the other. It was held that the payee could not maintain an action against the drawee for the amount, there being no privity of contract between them. If any case could be conceived whose facts would support such an action, this must be such a case, før here the funds were remitted for the express purpose of paying the bill sued upon. To the same effect are Bullard v, Randall, 1 Gray, 605; Hopkins v. Beebe, 26 Penn. St. 85; Jermyn v. Moffitt, 75 id. 399; Gibson v. Finley, 4 Md. Ch. 76; Poydras v. Delamare, 13 La. 98; Hurris v. Clark, 3 N. Y. -18; Cowperthwaite v. Sheffield, id. 243; Winter v. Drury, 5 id. 5:25; Noe v. Christie, 51 id. 273; Duncan v. Berlin, 60 id. 151 ; Tyler v. Gould, 48 id. 682; Risley v. Phænix Bank, 83 id. 318; Bank of Commerce v. Russell, 2 Dill. 215; Bank of Commerce v. Bogy, 44 Mo. 13; Weinstock v. Bellwood, 12 Bush, 139; Caldwell v. Merchants' Bank, U. C., 26 C. P. 294.

The reason for these decisions is found in the fundamental rules governing this class of paper. The drawer by drawing and delivering the paper to the payee, agrees that if duly presented it shall be accepted and paid by the drawee, and that in default thereof he will, if duly notified of the dishonor, pay it himself. The drawee enters into no contract relations with the payee in respect to it until it is presented to him, nor then unless he does so by acceptance. If he accepts he undertakes to pay according to the terms of the bill or of the acceptance; but up to the time of that act the payee looks exclusively to the drawer for his protection. If the drawee refuses to accept when he has funds for the purpose, he becomes liable to the drawer for the wrong done to his credit. Marzetti v. Williams, 1 Barn. & Adol. 415; Rollin v. Steward, 11 C. B. 595. But the payee can maintain no such action, for the plain reason that until acceptance the drawee owes to the payee no legal duty whatever. An action at law must be grounded on some failure in the performance of legal duty.

It is said a draft should be considered an assigu. ment of so much money in the payee's hands. If this were so then drafts would operate as assiguments in the order in which they were given, and should be paid in that order. But to so hold would be to introduce a new and vicious rule into the law of commercial paper. The well-understood rule-and we may add the convenient rule-now is that the drawee, when a draft is presented, should pay it if he has funds, and is not concerned with the question whether drafts of prior issue do not remain unpaid. But if a

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draft operates as an assignment, then either he would person injured or killed did not by his own want of
pay at his peril, or the payee receiving payment would ordinary care contribute to produce the accident.
be liable over to the holder of a prior unpaid draft for Gleason v. Bremen, 50 Me. 222; State v. Grand Trunk
money received to his use. This rule would greatly Ry., 58 id. 176.
and injuriously affect the value of this class of paper In the case first cited it was held that the law is clear
for commercial purposes. Something has been said in and unquestioned that the plaintiff must satisfy the
the case about this being an equitable proceeding, as if jury, as an affirmative fact to be established by him,
that should make a difference in the rules that should as a necessary part of his case, that at the time of the
be applied to it. But in no proper sense is this an accident he was in the exercise of due care. And in
equitable proceeding at all. The receiver is appointed the second case cited it was held, after a full and careful
by an order made on the chancery side of the court, examination of the question, that in the trial of in-
but this merely puts him in the place of the assignee dictments against railroads to recover the forfeiture
who failed to give bond, and in order that creditors created by our statute for pegligently causing the
may enforce through him their legal rights. When death of a person, “the same rules of evidence and
Angell failed, this petitiover had certain legal rights the same principles of law should be applied, as in
in respect to this paper, and these rights qualified the like cases wheu redress is sought hy a civil action for
rights of all other creditors. The failure of Angell, damages."
and the appointment of this assignee could not in- We must therefore regard it as settled law in this
crease this petitioner's rights at the expense of other State, that in this class of cases, whether in form civil
creditors. It leaves them as they were, to be enforced or criminal, the burden of proof is upon the party
by such remedies as shall be appropriate. The statute prosecuting to show due care on the part of the per-
which prescribes this particular remedy has no pur- son injured or killed, at the time of the accident; or
pose to modify rights in any manner. But if this were in other words, that his want of due care did not con-
strictly an equitable proceeding, it would make no dif- tribute to produce the injury complained of.
ference. Courts of equity have no different rules in In this case there is not only a total want of such
respect to the rights and obligations of parties to ne- evidence, but the proof, as far as it goes, tends
gotiable paper to those which are recognized in courts strongly to establish the contrary. No one witnessed
of law, but they recognize and enforce the same rules, the accident except the engineer and fireman on the
and there would be gross injustice in their doing other- train. The engineer's account of the transaction is,
wise. Some of the cases above cited in support of these that as he approached the crossing,and when the engine
views were cases in equity.

was not over fifteen feet from it, the horse came right The order of the Circuit Court is erroneous, and up into the head-light, and the pilot of the engine took should be set aside.

right under the sleigh, and threw the deceased right Campbell and Champlin, JJ., concurred.

up on to the head-board; then he stopped the train as [See Dickinson v. Coates, 79 Mo. 251; S. C., 49 Am. soon as he could, and went forward and found the Rep. 228.]

man dead upon the front of the engine. The fireman says he saw nothing till they went on to the crossing;

that he then got a glimpse of a horse and saw a man NEGLIGENCE- CROSSING RAILROAD TRACK

come up on to the pilot. These are the only accounts CONTRIBUTORY NEGLIGENCE.

wo get of the transaction. How it happened that

the deceased drove on to this crossing directly in MAINE SUPREME JUDICIAL COURT.

front of an approaching train is left to conjecture


It is claimed that no bell was rung or whistle One in the full possession of his faculties, who undertakes to sounded; and that in consequence of this failure the

cross a railroad track at the very moment a train of cars deceased was not apprised of the approach of the train. is passing, or when a train is so near that he is not oniy The evidence seems to us to preponderate most overliable to be, but is in fact, struck by it, is prima facie whelmingly in favor of the fact that the bell was rung guilty of negligence; and in the absence of a satis'actory and the whistle sounded. But suppose they were not, excuse, his negligence must be regarded as established. still it seems to us impossible to believe that the do

ceased undertook to cross the track in ignorance of the dictment against the Maine Central Railroad Com

approach of the train. He was a man of mature years, pany for negligently causing the death of Adoniram

and in the full possession of his faculties. His sight Judson Pickard at a railroad crossing in Carmel, on

and hearing were good. He lived in the immediate the 26th day of December, 1882, prosecuted for the

neighborhood of this crossing, and must have been benefit of his widow and children. The opinion states

acquainted with the time and speed of the trains. The the material facts.

evening was still, and the ground frozen, and the

rumbling of the train could be heard at a great disJ. Hutchings and F. H. Appleton, for State,

tance. The head-light was on, and the cars all lighted, Wilson & Woodward, for defendant.

and the deceased's view of an approaching train for a

considerable portion of the way as he drove from his WALTON, J. This is an indictment against the Maine

house to the crossing unobstructed. If under these Central Railroad Company for uegligently causing the

circumstances the deceased undertook to cross the death of a person. It appears that on December 26,

track in iguorance of the approach of the train, the 1882, at about half past six o'clock in the eveniug, Dr.

inference is irresistible that he did not exercise that dePickard of Carmel, in an attempt to cross the railroad

gree of vigilance which the law requires. He could with a horse and sleigh, was struck by a passing train

not have used his eyes nor his ears as the law required and instantly killed. A trial has been had and a ver

him to use them. The fact must not be overlooked dict of guilty returned against the railroad. The ques

that the train was very near, as otherwise he would tion is whether the evidence justified this verdict. We

not have been struck by it. One in the full possession

of bis faculties, who undertakes to cross a railroad It is settled law in this State, that in prosecutions of this kind, whether in form civil or criminal, the bur

track at the very moment a train of cars is passing,

or when a train is so near that he is not only liable to den is upon the party prosecuting to show that the

be, but is in fact, struck by it, is prima facie guilty of *8. C., 76 Me. 357.

negligence; and in the absence of a satisfactory ex

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ON exceptions and motion to set aside the verdict. In

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think it did not.

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