relate to the breaches of contract, and that is the Pullman Palace Car Co. v. Barker, 4 Col. 344. This case is, we think, unsustained by authority, and is in direct conflict with the decisions of this court in the cases of Stewart v. Ripon, and Oliver v. Town of Le Valley, supra. This decision is, it seems to me, supported by the principles of neither law nor humanity. It in effect says, that if an individual unlawfully compels a sick and enfeebled person to expose himself to the cold and storm to escape worse consequences from his wrongful act, he cannot recover damages from the wrong-doer because it was his sick and enfeebled condition which rendered his exposure injurious. Certainly such a doctrine does not commend itself to those kinder feelings which are common to humanity, and I know of no other case which sustains its conclusions."

For another cancer case see Jewell v. Railway, 55 N. H. 84.-ED.

NEW YORK COURT OF APPEALS ABSTRACT.

TAXATION-CORPORATION DEDUCTION-" ASSESSED VALUE."-(1) Writ of certiorari directed to defendants for the purpose of reviewing their action in assessing the capital stock of the relator for the years 1882. The relator claims that the amount of the capital stock to be subjected to taxation should be the residue after deducting from the par amount, $600,000, the sum of $405,000 expended in real estate, which would leave only $195,000 assessable as personal estate. The defendants however claimed that as the stock was at least fifty per cent above par, and that as the whole value thereof, estimated according to its selling price, was $900,000, and it not appearing that the real estate purchased was of any greater value than the amount paid for it, it was proper to deduct such amount from the actual value of the capital stock estimated according to its selling price. Held, that under the provisions of the act of 1857, ch. 456, in relation to the taxation of corporations liable to taxation, for the purpose of taxing the capital stock of a corporation, it is to be "assessed at its actual value," from which is to be deducted the assessed value of the real estate," and such other items as are specified in the act. (2) The provisions of the statutes regulating the details of assessments of the property of corporations (1 Rev. Stat. 415, § 6, as amended by act of 1853, ch. 564) are to be deemed amended so far as is necessary to make them conform to and give effect to the act of 1857. A construction of a statute which leads to an absurd consequence must always be avoided, as an absurd purpose is not to be attributed to the law makers. Com. v. Kimball, 24 Pick. 370. It will not always be easy to determine the assessed value of the real estate to be deducted from the actual value of the capital stockThere can be no difficulty when the real estate is situ. ated in the same ward or town where the capital stock is assessable, or even when it is situated in the same city or county. In most cases it will thus be situated, but if it is not, and is yet within the State, it will not be impracticable to ascertain its assessed value from assessment rolls always accessible. But if the real estate should be in another State or country, or if for any other reason its assessed value cannot be obtained, then as the best and nearest substitute for it the price paid as the presumed value in the absence of proof or of any other standard, may be taken as the assessable value. We have not overlooked the fact that some of these views are in conflict with those expressed by Mason, J., in the case of People v. Board of Assessors, 39 N. Y. 81. All that was there said was not necessary to the decision of that case, and we think the construction we have given to the statutes is more likely

to give just results and to effectuate the intention of the law makers. People v. Com'rs of Taxes. Opinion by Earl, J.

[Decided April 15, 1884.]

ATTACHMENT-TITLE OF SHERIFF UNDER-TRANSFER BEFORE LEVY.- - Plaintiff, as assignee of a bond and mortgage given to secure a note, brought suit to foreclose. The answer of two defendants, makers of the mortgage, set up as a defense that the mortgage and note had been attached by the sheriff, and were in his possession. It appeared that after the levy under the attachment the mortgage was assigned to plaintiff. Held, that the sheriff acquired no title to the property assigned. Under the earlier provisions of the Code a levy upon property capable of manual delivery, executed by taking it into the actual possession of the officer, invested him with the right in defense of his levy to assail as fraudulent and void against creditors a previous assignment or transfer which threatened by its priority the security of the lien obtained. Rinchey v. Stryker, 28 N. Y. 45. But this court also held as to the levy permitted to be made upon choses in action that the attachment reached and became a lien upon only such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law, and as a consequence, where before levy of the attachment he had parted with the legal title even with intent to defraud his creditors, there remained in him for their benefit only an equity which the attachment could not reach, and so the sheriff could not assail the transfer as fraudulent. The doctrine of Thurber v. Blanck, 50 N. Y. 80, went to that extent, and has since been approved. Castle v. Lewis, 78 N. Y. 137; Wait on Fraud. Convey., § 86. These authorities establish that the sheriff in the case before us could not avoid as fraudulent the transfer or the note and its collateral made prior to his asserted levy unless their doctrine is made inapplicable by the change in the provision of the Code, section 649. This provision changed merely the mode of making the levy, but in no respect altered the inherent character of the property sought to be attached. The note is not turned into a chattel by the new provision. It remains a chose in action, and when the legal title is in the attachment debtor the debt may be seized by taking the note or bond which is its evidence, but when the legal title has been transferred to a third party, and is not in the debtor to be attached, the possession of the note by the officers under his warrant accomplishes nothing. On the assumption therefore that no levy was made until after the transfer of the note the attachment gave the officers no right to assail or control it. The levy did not relate back to the time of making the demand, which was before the assignment was made. Until the officer has obtained the actual custody he has no levy, and can make none. In Bills v. Nat. Park Bank, 89 N. Y. 351, the effect of sections 648 and 649 of the Code were not considered. Anthony v. Wood. Opinion by Finch, J. (29 Hun, 239, reversed.) [Decided June 3, 1884.]

NEGLIGENCE-BURDEN OF PROOF-POSTAL CLERKRIDING ON PASS.-Plaintiff's husband, who was a postal clerk in the employ of the government, which had a contract with defendant for the carriage of its mails, and the person having them in charge, obtained a pass, by the terms of which defendant was not to be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, and this pass was in his possession at the time of his death, which occurred in consequence of the negligent derailing of the train on which he was riding. Held, that plaintiff was entitled to recover.

We think the court committed no error in refusing to charge that "the burden of proof is on the plaintiff to establish the negligence of the defendant." While it is is true as a general proposition that the burden of showing negligence on the part of the defendant occasioning an injury, rests in the first instance upon the plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault. Caldwell v. N. J. Steamboat Co., 47 N. Y. 291; Edgerton v. N. Y. & Har. R. Co., 39 id. 227; Curtis v. R. & S. R. Co., 18 id. 534. The court charged that the defendant was bound to show and give some explanation of the cause of the accident. This portion of the charge must be understood in reference to the facts of this case and as applied to such facts. In this view it was not'erroneous." See also the J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121; Mullen v. St. John, 57 id. 572; 15 Am. Rep. 530; Ginna v. Second Ave. R. Co., 67 N. Y. 597. (2) The defendant owed the same degree of care to the clerks and mail agents riding in the postal car, in charge of the mails, as they did to passengers riding upon the train. That question was decided in the case of Nolton v. Western Ry. Co., 15 N. Y. 444, and Blair v. Erie Ry. Co., 66 id. 313; 23 Am. Rep. 55, and we see no reason for questioning the correctness of the disposition then made of the question. The opinion in the case of the Pennsylvania R. Co. v. Price, 96 Penn. St. 256, not only does not conflict with the doctrine of these cases, but cites with approval the Nolton case. (3) The pass was a mere voucher issued for the convenience of the agent and the information of the employees of the defendant, and did not in any seuse constitute a contract between the defendant and the person using it, and the agent's acceptance thereof under the circumstances of this case did not indicate an intention to assent to the provisions therein contained, and even if it might be so construed that the want of a consideration for such an agreement rendered it nudum pactum. A promise by one party to do that which he is already under a legal obligation to perform, has frequently been held to be insufficient as a consideration to support a contract. Vanderbilt v. Schreyer, 91 N. Y. 392. Seybolt v. N. Y., etc., R. Co. Opinion by Ruger, C. J. [Decided April 15, 1884.]

NEGOTIABLE INSTRUMENT-CONSIDERATION -EVIDENCE-PERFORMANCE IN FUTURE-MEASURE OF RECOVERY. (1) A statement in a promissory note that it was given for money loaned is not conclusive; it is open to either party to show the actual consideration. 1 Pars. N. & B. 194; Abbott v. Hendricks, 1 M. & G. 791; Wheeler v. Billings, 38 N. Y. 263; Arnot v. Erie Ry. Co., 67 id. 321. (2) A promissory note, given in consideration of future services to be rendered by the payee, upon the rendition of the services in reliance thereon becomes valid and binding, although there was no agreement at the time of the giving of the note upon the part of the payee to render the services, and although the amount of the note be much greater that the value of the services. In Cottage Street Church v. Kendall, 121 Mass. 529, Gray, C. J., said: "Where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing upon the faith of the promise, the promise, which was before a mere revocable offer, thereby becomes a complete contract upon a consideration moving from the promisee to the promisor." In White v. Baxter, 71 N. Y. 254, it was held that where one, acting on the faith of a promise, performs the condition upon which the promise was made, the

promise attaches to the consideration so performed. and renders the promisor liable. Rapallo, J., again writing the opinion of the court, said: "After the promisor has had the benefit of the consideration for which he bargained, it is no defense to say that the promisee was not bound by the contract to do the act. In Marie v. Garrison, 83 N. Y. 26, Andrews, J., commenting on the same rule said: "When a defendant has actually received the consideration of an agreement by a voluntary performance of an act by the other party, upon his proposition or suggestion, such performance constitutes a consideration which will uphold the defendaut's promise," and that it was not essential to the existence of a consideration for the defendant's agreement that mutuality of obligation should have existed between the parties when this agreement was made. See also Train v. Gold, 5 Pick. 380; Willetts v. Sun Mut. Life Ins. Co., 45 N. Y. 45; Sands v. Crooke, 46 id. 564; Barnes v. Perrine, 9 Barb. 202; L'Amoreux v. Gould, 7 N. Y. 349. (3) Plaintiff was entitled to recov er the full amount of the note, although that was much greater than the real value of the services; and for such a rule the cases of Worth v. Case, 42 N. Y. 369, and Earl v. Peck, 64 id. 596, are ample authority. Miller v. McKenzie. Opinion by Earl, J. [Decided April 22, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

PUBLIC LAND-RIGHT OF PRE-EMPTION-LEGAL REPRESENTATIVES.-The legal representative of one who had settled on land in anticipation of the time when it would be opened for pre-emption, and lived and died on it, may upon pre-emption becoming possible, have the title to such land made complete in him, and his rights cannot be affected by a stranger who meantime occupies the land for the purpose of defeating him. Quinn v. Chapman. Opinion by Miller, J. [Decided April 21, 1884.]

JURISDICTION-QUESTION NOT PRESENTED TO STATE COURT.-This was a suit brought by the Santa Cruz Railroad Company to require the board of commissioners of the county of Santa Cruz to deliver certain bonds, claimed to be due from the county under a contract with the railroad company. The defenses were, 1, that the contract was unilateral, and therefore not binding on the county; 2, that the board of supervisors exceeded its authority in making the contract; and 3, that a repealing statute, passed after the contract was entered into, took away the power of the board to make any further deliveries of bonds. No objection whatever was made to the validity of the statute under which the board assumed to act in making the contract. The whole defense rested on the construction and effect to be given to certain statutes, which no one denied the constitutional power of the Legislature to enact. The ground of Federal jurisdiction, relied on in the brief of counsel for the county is, "that by the issuance of the bonds demanded in this proceeding, the State would deprive the tax-payers of the county of Santa Cruz of property without due process of law, contrary to the right, privilege, or immunity secured by the first section of the Fourteenth amendment of the Constitution of the United States." That was not the question presented to or decided by the State court. In that court the inquiry was, whether the proceedings of the board to charge the county were according to law; not whether the law, under which the proceedings were had, was constitutional and binding on the tax-payers. The State court decided that the proceedings were in accordance with the requirements of the law, and thus created an obli

gation, on the part of the county, to deliver the bonds, which was not discharged by the repealing statute relied on. This decision involved no question of Federal law, and is not reviewable here. Board of Supervisors of Santa Cruz v. Santa Cruz Railroad Co. Opinion by Waite, C. J.

[Decided April 14, 1884.]

INSURANCE-LIFE-CONSTRUCTION OF CONDITIONS—

STIPULATION-PRACTICE

GENERAL EXCEPTION TO

CHARGE. (1) The principle laid down in National Bank v. Insurance Co., 95 U. S. 678, reaffirmed that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself. See also Grace v. American Ins. Co., 109 U. S. 282. These rules of interpretation, equally applicable in cases of life insurance, forbid the conclusion that the answers to the questions in the application constituted warranties, to be literally and exactly fulfilled, as distinguished from representations which must be substantially performed in all matters material to the risk, that is, in matters which are of the essence of the contract. (2) An applicant for life insurance was required to state, categorically, whether he had ever been afflicted with certain specified diseases. He answered that he had not. Upon an examination of the several clauses of the application, in connection with the policy, it was held to be reasonably clear that the company required, as a condition precedent to a valid contract, nothing more than that the insured would observe good faith toward it, and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation, or concealment of facts with which the company ought to be made acquainted. (3) In the absence of explicit stipulations requiring such an interpretation, it should not be inferred that the insured took a life policy with the understanding that it should be void, if at any time in the past, he was, whether conscious of the fact or not, afflicted with the diseases, or any one of them, specified in the questions propounded by the company. Such a construction of the contract should be avoided, unless clearly demanded by the established rules governing the interpretation of written instruments. (4) Going to the jury upon one of several defenses does not preclude the defendant, at a subsequent trial, from insisting upon other defenses, involving the merits, which have not been withdrawn of record or abandoned in pursuance of an agreement with the opposite side. (5) A judgment will not be reversed upon a general exception to the refusal of the court to grant a series of instructions, presented as one request, because there happens to be in the series some which ought to have been given. Indianapolis, etc., R. Co. v. Horst, 93 U. S. 295; Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler. 2 id. 338; Johnson v. Jones, 1 Black. 209; Beaver v. Taylor, 93 U. S. 46; Beckwith v. Bean, 98 id. 284. Moulor v. Life Ins. Co. Opinion by Harlan, J. [Decided April 14, 1884.]

TRUST-BURDEN OF PROOF-PROCEEDS OF SALE" -REMOVAL AND APPOINTMENT OF NEW TRUSTEE.-A

party having made a declaration of trust, the burden of proof is on him thereafter to show that there had been no consideration for it, or that it was void for other causes. By the terms of a written instrument, upon the sale of certain property, a portion of the proceeds of such sale were to inure to the beneficiary. In such a case, whether the payment was made in cash or shares of stock was immaterial. The trustee, having parted with the property, was bound to account to the beneficiary for the proceeds. Where there is a failure of suitable trustees to perform a trust, either from accident, or from the refusal of the old trustees to act, or from their original or supervenient incapacity to act, or from any other cause, courts of equity will appoint new trustees. Ellison v. Ellison, 6 Ves. 663; Lake v. De Lambert, 4 id. 592; Hibbard v. Lamb, Amb. 309; 2 Madd. Pr. Ch. 133; Com. Dig." Chancery," 4 W. 7. No trustee can be more unsuitable than one who not only refuses to act, but denies the trust. Irvine v. Dunham. Opinion by Woods, J. [Decided April 14, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

REMOVAL OF CAUSE--JURISDICTION OF CIRCUIT--SEPARATE CONTROVERSY.-One of several attaching creditors joined the others as defendants in a suit to set aside certain judgments obtained against the debtor by confession. Held, that they were necessary parties to the controversy between the plaintiff and his debtor; and that as they were citizens of the same State with the debtor the cause could not be removed to the United States court. Cir. Ct., N. D. Ill. November, 1883. Pollok v. Loucheim. Opinion by Drummond, J.

JOINT STOCK COMPANY-FRAUD IN ORGANIZATIONRIGHTS OF PURCHASERS.-Where the organizers of a joint stock company put in as a part of the capital stock certain patent rights, and by fraudulent puffing induced others to purchase the stock at fictitious rates, held, that whether the purchasers could set aside the sales or not they were not entitled to gain control of the company and pursue their remedy against the fraudulent directors in the corporate name. Cir. Ct., Dist. Mass. February, 1884. Flagler Engraving Machine Co. v. Flagler. Opinion by Lowell, J.

RECEIVER-NEGLIGENCE OF EMPLOYEES-NOT LIABLE.-A receiver is not personally liable for the torts of his employees; it is only when he commits the wrong himself that he is personally liable. Were he so liable few men would take the responsibility of such a trust; it is only when he himself commits the wrong that he is held personally liable. The proceeding against him as receiver for the wrongs of his employees is in the nature of a proceeding in rem, and renders the property in his hands as such liable for compensation for such injuries. Meara's Adm'r v. Holbrook, 20 Ohio St. 137; Klem v. Jewett, 11 C. E. Green, 474; Jordan v. Wells, 3 Woods, 527; Kennedy v. Indianapolis & C. R. Co., 11 Cent. Law J. 89. The railroad company is not liable for the injuries complained of in the bill for the reason that they were committed while it was out of possession of the property and had no control over it. This conclusion is sustained by principle and authority. Ohio, etc., R. C., v. Davis, 23 Ind. 560; Bell v. Indianapolis, etc., R. Co., 53 id. 57; Metz v. Buffalo, etc., R. Co., 58 N. Y. 61; Rogers v. Mobile & O. R. Co., 17 Cent. L. J. 290; Meara's Adm'r v. Holbrook, supra. Cir. Ct., S. D. Miss. 1884. Davis v.

Duncan. Opinion by Hill, J.

collides with a vessel properly anchored the presumption of fault is upon the former. The burden of proof in such cases is upon the vessel under way to show by a clear preponderance of proof that the collision occurred without fault on her part or through some fault of the other vessel. The Batavier, 2 Wm. Rob. 407; The John Adams, 1 Cliff. 404, 413; The City of New York, 8 Blatchf. 194. There being no positive rule nor settled usage for a vessel at anchor to ring a bell in thick snow, held, such a vessel is not in fault for not ringing a bell during a thick squall of snow of a few minutes' duration only. See The Bay State, 1 Abb. Adm. 235, 241, note. Where the ferryboat R., running from Hunter's Point to Seventh street, New York, her usual course being near where the bark S. was anchored off Nineteenth street, was overtaken after leaving Huuter's Point by a sudden squall of thick snow, and on passing Twenty-third street was embarrassed by one of the ferry-boats of the Twenty-third street line crossing her bows, compelling her to stop and back, and while so doing, and being headed well toward the New York shore, she drifted down with a strong tide and ran afoul of the S. at anchor, the position of the latter being previously well known to the R., held, that the ferryboat was in fault for not keeping further away from the known station of the S.; held also that under the circumstances it was not probable that the ringing of a bell would have been of any service to the R. in avoiding the collision, and that the R. accordingly was alone answerable. McCready v. Goldsmith, 18 How. 89, 92. Dist. Ct., S. D. N. Y. January, 1884. Rockaway. Opinion by Brown, J.

The

то

SHIP AND SHIPPING -MASTER'S AUTHORITY SELL-NOTICE TO OWNER.-The master has no authority to sell damaged cargo in a foreign port without notice to the owner or shipper when there is abundant time and means for communication with him, whether the object be to obtain money for the repair of the ship, or merely the sale of damaged or perishable goods. Acatos v. Burns, 7 Exch. Div. 282; The Australasian, etc., v. Morse, L. R., 4 P. C. 222; Cammell v. Sewell, 3 Hurl. & N. 634; The Gratitudine, 3 C. Rob. 240; The Hamburg, 2 Marit. Law Cas. 1; Atlantic Mut. Ins. Co. v. Huth, 16 Ch. Div. 474. These cases all rest upon one common principle, that the master, by virtue of his general authority, does not have any right to sell or hypothecate either the ship or the cargo; that his authority in these respects rests upon necessity solely and upon the particular emergencies of the occasion; and that this authority is therefore limited by the nature and extent of the necessity. If the owner is at hand, and can be easily communicated with, the master must advise the owner of the facts, and take his directions; and where such directions may be obtained there is neither necessity nor authority nor justification for the master to assume to sell or to hypothecate without notice. These principles I understand to be substantially adopted by the Supreme Court in the case of The Julia Blake, 107 U. S. 418; 2 Sup. Ct. Rep. 191, affirming the judgment of the District and Circuit Courts of this district; 16 Blatchf. 472. See also The Amelie, 6 Wall. 18, 27; The C. M. Titus, 7 Fed. Rep. 826, 831; Butler v. Murray, 30 N. Y. 88, 99; The Joshua Barker, Abb. Adm. 215; Pope v. Nickerson, 3 Story, 465; Myers v. Baymore, 10 Penn. St. 114; Hall v. Franklin, etc., Ins. Co., 9 Pick. 466; Pike v. Balch, 38 Me. 302. Dist. Ct., S. D. N. Y. February, 1884. Astsrup v. Lewy. Opinion by Brown1,

J.

JUDGMENT -OF ANOTHER STATE-OBTAINED BY FRAUD-RELIEF FROM WHEN SUED ON.- In an action of debt in one State upon a judgment obtained in another, a plea that the judgment was obtained by fraud is no defense. To avail himself of such a de

fense the judgment debtor must invoke the aid of the court upon its equity side. It was claimed in Mills v. Duryee, 7 Cranch, 481, that such judgments should be treated as foreign judgments, and that nil debet was a good plea in a suit upon such a judgment. But the court denied the validity of the plea, alleging that it rendered the above clause of the Constitution unimportant and illusory; that the record of the judgment duly authenticated was conclusive upon the parties, and that nul tiel record was the only proper plea. The counsel for the defendant in his brief justified his plea by the authority of the case of Bank of Australasia v. Nias, 16 Q. B. 717, where it was held that a plea that the judgment on which the suit was brought was ob tained by fraud would be good; but he did not advert to the reason why it was good. The reason is disclosed by Lord Chancellor Selborne in Ochsenbein v. Papalier, L. R., 8 Ch. App. Cas. 695, which was an application for an injunction to stay a suit at law upon judgment to which the defendant had put in the plea of fraud. He refused to interfere upon the ground that the court at law had jurisdiction, the Parliament having passed statutes permitting such equitable defenses to be pleaded in suits at law. The obvious inference from the opinion is that in the absence of such legislation the plea would not be allowed. If the defendant wishes to impeach the judgment for fraud or covin in obtaining it, he must invoke the aid of the court upon the equity side, whose peculiar province it is to grant relief in cases of this sort. See Glover v. Hedges, Saxt. 119; Power's Ex'rs v. Butler's Adm'r, 3 Green, Ch. 465; Moore v. Gamble, 1 Stockt. 246; TomJanukins v. Tomkins, 3 id. 512. Cir. Ct., D. N. J. ary 20, 1884. Allison v. Chapman. Opinion by Nixon, J.

ESTOPPEL.

SHIP AND SHIPPING-LIEN - WAIVER — (1) A barge has presumptively a lien for her freight upon the goods laden on board, which is not waived by any provisions of the contract of hire not absolutely incompatible with the enforcement of the lien at the time of delivery. The Bird of Paradise, 5 Wall, 545, 562, 563; Bulkley v. Naumkeag, etc., Co., 24 How. 386, 393; The Yankee Blade, 19 id. 82; 1 Pars. Shipp. & Adm. 174, and notes; The Hermitage, 4 Blatchf. 474; The Eddy, 5 Wall. 441, 494. See also Ruggles v. Buckner, 1 Paine, 363; Raymond v. Tyson, 17 How. 53, 61. (2) A contract to take on board wire cable in New York to be laid in the Erie canal, freight, the hire of the barge at a per diem rate, to be paid as soon as the cable is laid, is not incompatible with such a lien, and with proceedings to enforce it at once in default of payment as agreed. (3) Where wire cable was laden on board a barge by the manufacturer, pursuant to an agreement between the shipper and the owner of the barge, of which the manufacturer was chargeable with knowledge, held, that the barge had a lien upon the cable for her freight pursuant to the contract, and that such lien was not affected by the private arrangement between the manufacturer and shipper, not known to the libellant, that the cable should be paid for on delivery, nor by the fact that the manufacturers, upon completing the lading of the cable,kept the shore end fast upon their premises so as not to permit the departure of the barge with the cable aboard. Held, also that the cable, as between the manufacturers and the libellant, must be regarded as laden on account of the libellant's contract, and as the goods of the shipper, and that the manufacturers were estopped from denying this as respects the libellant, al. though as between the manufacturers and the shipper the title may not have passed. Faith v. East Ind. Co., 4 Barn. & Ald. 630. The same principle of estoppel as regards the lien of material-men upon vessels on their equipment, without regard to the actual title, has

been applied in the case of The May Queen, 1 Spr. 588; The St. Jago de Cuba, 9 Wheat. 409, 418; and The Sarah Starr, 1 Spr. 453. (4) As the barge under contract with the shipper would, as against him, be entitled to a lien on the goods during the time the vessel was detained by reason of his not fulfilling his contract with the libellant, held, that the lien existed to the same extent as against the manufacturers, who, for their own benefit, had held the vessel fast by the shore end of the cable until they removed the cable under the stipulation given in this suit. The Hermitage, 4 Blatchf. 474; The Hyperion's Cargo, 2 Low. 93; Sprague v. West, Abb. Adm. 548. Dist. Ct., S. D. N. Y. January, 1884. Blowers v. One Wire Rope Cable. Opinion by Brown, J.

NEGLIGENCE

-PASSENGER ON FERRY- CONTRIBUTORY NEGLIGENCE.-Where in a libel for damages for the killing of a husband and father the ferry steamer inflicting the injury was in fault, but the deceased had violated rules of the managers, forbidding passengers to step over guard-chains and passing off to the wharf before the boat was drawn up and made fast at the landing, in doing which deceased received fatal injuries, but in doing so only did what men and boys habitually and constantly did on the ferry, without restraint or remonstrance from the management, held, that this was not such contributory negligence on the part of deceased as to exonerate the claimants from responsibility in damages, the managers of the ferry having, by neglecting to enforce their rules, held out to passengers that there was no practical danger in violating them, and thereby put the deceased off his guard as to the danger attending the practice, which was habitually permitted. The case turns upon the question: "Was any thing presented to arrest his attention and to warn him of the fate which overtook him?" because it is a principle of the law of contributory negligence that a carrier is not necessarily excused because the injured person knew that some danger existed through the carrier's neglect, and voluntarily incurred the danger. Clayards v. Dethick, 12 Q. B. 439. Where, for instance, a traveller crossed a bridge which he knew to be somewhat unsafe, but which its managers had not closed, nor warned the people not to pass, and the traveller's horse fell through and was killed, it was held that he was not in fault, and damages were recovered. Humphreys v. Armstrong Co., 56 Penn. St. 204. So it was held that the plaintiff might recover where a passenger train was moving very slowly by, but did not stop at a depot where it should have stopped, and a passenger was injured by leaping off, notwithstanding the usual warning that passengers must not get off the train while in motion, the slow gait of the train seeming to invite the passenger to get off. Filer v. N. Y. Cent. R. Co., 49 N. Y. 47. These cases sufficiently illustrate the principle of the law of contributory negligence, that though the passenger must do what a prudent person should do to avoid accident in any particular circumstance in which he may stand, yet if he has reason to infer from the conduct and policy of the carrier that no practical danger would attend an act, though there might be some risk, and if he is thereby thrown off his guard respecting it, the carrier is liable. Dist. Ct., E. D. Va. February 24, 1884. Manhassett. Opinion by Hughes, J. [See 29

Alb. L. J. 216.]

a route is usually within the discretion of the master of the tug; and if he has exercised reasonable judgment and skill in his selection he will not be held in fault, though the court may be of opinion that the disaster which followed would not have occurred if he had taken another route. He can only be chargeable with negligence when he takes a course which good seamanship would deem unauthorized and reckless. "The owner of a vessel does not engage for the infallibility of the master, nor that he shall do in an emergency precisely what, after the event, others may think would have been the best." The Hornet (Lawrence v. Minturn) 17 How. 100; The Star of Hope, 9 Wall. 230; The W. E. Gladwish, 17 Blatchf. 77, 82, 83; The Mohawk, 7 Ben. 139; The Clematis, 1 Brown Adm. 499. (2) A like rule obtains with reference to the conduct of the master in refusing to cross the lake or turn back to the port of departure in face of a storm. (3) The intoxication of a master upon duty ought not to be inferred from slight circumstances equally consistent with a different theory, or from the equivocal testimony of one or two dissatisfied seamen, when flatly contradicted by the remainder of the crew. (4) The abandonment and ultimate loss of a tow of barges to save the tug from destruction, and the subsequent arrival of the tug in a port of safety, does not vest in the owners of the barges a claim against the tug for contribution in general average. Says Judge Dillon, in his work upon Municipal Corp., vol. 2, § 756: "The rights of private property, sacred as the law regards them, are yet subordinate to the higher demands of the public welfare. Salus populi suprema est lex. Upon this principle, in cases of imminent and urgent public necessity, any individual or municipal officer may raze or demolish houses and other combustible structures in a city or compact town, to prevent the spreading of a destructive conflagration. This he may do independently of statute, and without responsibility to the owner for the damages he thereby sustains." It was said, so long ago as the reign of Edward IV, that "by common law every man may come upon my land for the defense of the realm.' In the Saltpetre case, 12 Coke, 13, it is said that "for the Commonwealth a man shall suffer damage; as for saving of a city or town, a house shall be plucked down if the next be on fire; and the suburbs of a city in time of war, for the common safety, shall be plucked down, and a thing for the Commonwealth every man may do without being liable to an action." In Mouse's case, id. 63, certain passengers upon a ferryboat from Gravesend to London cast overboard a hogshead of wine and other ponderous things to save the boat from being swamped in a violent tempest. It was held that as this was a case of necessity for the saving of the lives of the passengers, the defendant, being a passenger, was justified in casting the hogshead of the plaintiff out of the barge. See also Governor, etc., v. Meredith, 4 T. R. 794; Respublica v. Sparhawk, 1 Dall. 357; Taylor v. Plymouth, 8 Metc. 462, Mayor, etc., v. Lord, 17 Wend. 285; S. C., 18 id. 126. A like principle was applied in the Roman law, wherein it is said, that if by the force of the winds, a ship is driven against the cables of an another, and the sailors cut these cables, no action will lie, if the ship cannot be extricated in any other way. Dist Ct., E. D. Mich., July 9, 1883. The James P. Donaldson. Opinion by Brown, J.

PATENT-PREVIOUS DESCRIPTION.-An inventor is not barred from obtaining a patent because his invention has been described, though not claimed, in a prior patent to the same inventor. Battin v. Taggert, 17 How. 74; Graham v. McCormick, 11 Fed. Rep. 859. Cir. Ct., D. Vermont, Jan. 28, 1884. Vermont Farm Machine Co. v. Marble. Opinion by Wheeler, J.