the franchise and property beyond that time only by violation of its agreement, and can not build up rights upon its own wrong. If a bill had been brought, after the refusal in 1860, to compel the appointment of arbitrators, a court of equity must have enforced the law. The ordinary rule that the courts will not enforce an agreement to arbitrate, does not apply to the present case, where the law itself makes the remedy. If the contract of 1846 was void as the gas company contend, it does not follow, therefore, that the city could not maintain this action.

2. By the terms of the contract of 1846, it was provided that the city relinquished the right to purchase the gas-works in January, 1860; provided that, if the city should refuse to purchase in 1865, it should have the privilege of purchasing in 1870, and every five years thereafter. The contract refers to the charter, is unintelligible without it, and is a graft upon it. If the contract of 1846 is void, the relinquishment of the right to purchase in 1860 amounts to nothing. If it is valid, the right to relinquish implies the power to provide other times of choice. But the power to extend the privilege does not imply the power to relinquish it. The conditions on which the power to relinquish in 1860 were to be exercised did not exist in 1846; and the city of 1846 could not know what might be the wants of the city of 1860 Time may be made, but ordinarily is not, of the essence of a contract. The general intention, as gathered from the instrument, must determine this in each case. In the case at bar, it seems not to have been the legislative intent that time should be so essential that no later period for choice could be fixed by agreement of the parties. But, if time was of the essence of this contract, it was waived by the acts of the parties. The postponement was in favor of the gas company. In 1860, the company insisted upon the delay afforded by the contract of 1846; and in 1870, when the city again desired to purchase, the gas company claimed that the contract of 1846, which gave that right, was void. It does not lie in the mouth of the gas company to say that the words of the act of incorporation are mandatory as to time. The stockholders, who now say the contract of 1846 was made without their consent, enjoyed the franchise for an additional ten years-to 1870-under it.

Any argument founded on the necessity of adhering to the times named in the act must be based upon the duty of the gas company to obey the command of the legislature. If the city is deprived of its choice, the essential purpose of the legislature, in regard to the privilege by the city, is defeated. The city was justified in believing that, after getting the benefit of the contract of 1846, the gas company would allow to the city the privilege of purchasing in 1870, which that contract gives. On these grounds the gas company can not attack the contract of 1846.

But it is also estopped to do so by its acts, since, by inducing the city to rely upon the contract of 1846, it prevented the city from obtaining a decree on the basis of the proceedings of 1859-60, which they otherwise might have had. The company can not, in a court of equity, put its present conduct, on which it now seeks to make out its defense, on a foundation inconsistent with that on which it has enjoyed its property since 1860. The city, believing that the gas company was adhering to the contract of 1846, could not, without bad faith, sue before 1870. The gas company, in December, 1869, refused to appoint arbitrators or to sell. This suit was brought in May, 1870. In the eye of equity, the purchase was then made, the price fixed, the purchase-money held by the city as trustee for the gas company, and the legal title to the gas works held by the company, as trustee for the city.

3. The tripartite agreement of 1873, between the St. Louis Gas company, the Laclede Gas Company and the city, is in contrast with the contract of 1846. The

.

one carries out, the other violates the legislative will. The franchises of the gas company did not belong to the gas company to sell, when the contract of 1873 was created. These franchises were the property of the state and passed to the city, as the property of the state, before 1873. The gas-works, also, in equity, already belonged to the city when the contract of 1873 was executed. The city could not part with them under guise of dismissing a suit. The gas company, in making the contract of 1873, knew that it was dealing with one that had strictly limited power, and it took the risk of the question of authority being raised. The tripartite agreement recognizes and cancels the contract of 1846. According to the theory of the gas company, the city could not purchase in 1859-60, because the contract of 1846 forbade; in 1870 it could not purchase, because the contract of 1846 extending the time was void. So that, according to the gas company, the city never had two opportunities of choice separated by an interval of five years. If, then, the city had no two such opportunities, the tripartite agreement canceling the contract of 1846, and preventing a choice under it, destroyed a privilege which was an essential part of the legislative scheme.

A corporation can not bind itself not to exercise a part of the franchises committed to it by the state for public purposes. A contract ultra vires can not be the foundation of an action, or of a defense. The courts will not assist either party in obtaining a collateral benefit arising out of a contract ultra vires of a corporation, and against the policy of the law. In a public trust, the selection implies personal confidence, and the St. Louis Gas-light Company could not sell to the Laclede Gas-light Company the exclusive right of selling gas north of Washington avenue, because that were a surrender of a part of its franchises. The grantee of a franchise granted for public purposes can not surrender a part of them to others without the consent of the state; and the pretense that such a surrender is the giving up of a monopoly is no excuse. Many of the advantages to the city by the contract of 1873 seem to be rather nominal than real; but this is immaterial. The fact that the city, as stockholder of the St. Louis Gas Company, received a proportion of the purchasemoney paid by the Laclede under the tripartite agreement, is also immaterial. The St. Louis Gas Company had notice at the time that the city officers had no power to make the agreement of 1873. The contract carries evidence that both the gas companies, at the time, took the risk of want of power in the contracting parties as part of their bargain; and the two companies intended to procure legislative sanction for the contract if they could, and to insist that it was not needed, if they could not. And the suit of the city against the gas company, pending at the time of the agreement, was never dismissed, because it was understood that it was not to be abandoned until the tripartite contract was sanctioned by the legislature.

The city was entitled to a decree. The cause was properly dismissed as to the Laclede Company, and the St. Louis Company was properly charged with profits from January, 1870. The franchise under which the profits accrued was resumed by its owner, the state, on the 1st of January, 1870, and was the property of the city from that time, during the pleasure of the state. The gas company, with full knowledge of its legal obligations, chose to proceed with the management of this lucrative business, and to continue, after suit was brought, and after it holds the profits as a trustee for the real owner. There is no inconsistency in charging the St. Louis Gas Company with the proceeds of the sale to the Laclede. This is not an affirmance of that sale. The mere change of form in the property is unessential. Equity considers the fund representing the portion of the property sold as still

a part of the unsold property, and, like it, charged with the trust.

Judgment affirmed. Opinion by HAYDEN, J. BAKEWELL, J., concurs. LEWIS, P. J., of counsel below, did not sit.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

WHEN GOVERNMENT BOUND BY FRAUDULENT ACTS OF ITS AGENTS.-When the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property can not be held by the United States against the claim of the wronged or injured party. A firm had borrowed money, belonging to the government, from the cashier of its sub-treasury. In order to enable the cashier to cover up his violation of duty, and in pursuance of an agreement, one of the firm procured a bank officer to purchase gold eertificates, which were to be deposited in the subtreasury, to remain until the subsequent day. The bank officer did so, and a receipt for the certificates was given by the cashier to C, who indorsed it to the bank officer. The receipt entitled its owner to receive gold certificates for those deposited, or their equivalent, on demand. The bank officer had no knowledge of the plan of the firm and the cashier, and the transaction he entered into was a usual one. Held, that the government obtained no title to the certificates, but was liable to return their value to the bank.United States v. State Nat. Bk. of Boston. Appeal from the Court of Claims. Opinion by Mr. Justice SWAYNE. Judgment affirmed. Reported in full, 17 Alb. L. J. 186.

LIFE INSURANCE-CONDITIONS IN POLICY-REPRESENTATIONS MADE BY AGENT BEFORE POLICY ISSUED -ESTOPPEL.-1. By an express condition of a policy the liability of the company was released upon the failure of the insured to pay the premium when it matured. Held, that the plaintiff could not overcome this condition, by showing that the agent, who induced him to apply for the policy, represented to him, in answer to a suggestion that he might not be informed when to pay the premiums, that the company would notify him in season to pay them, and that he need not give himself any uneasiness on that subject; that no such notification was given him before the maturity of the second premium, and for that reason he did not pay it at the time required. 2. All previous verbal arrangements were merged in the written agreement. The understanding of the parties as to the amount of the insurance, the conditions upon which it should be payable, and the premium to be paid was there expressed for the very purpose of avoiding any controversy or question respecting them. The entire engagement of the parties, with all the conditions upon which its fulfillment could be claimed, must be conclusively presumed to be there stated. If by inadvertence or mistake, provisions other than those intended were inserted, or stipulated provisions were omitted, the parties could have had recourse for a correction of the agreement to a court of equity, which is competent to give all needful relief in such cases. But until thus corrected the policy must be taken as expressing the final understanding of the insured, and of the insurance company. The previous representation of the agent could in no respect operate as an estoppel against the company. Apart from the circumstances that the policy subsequently issued alone expressed its contract, an estoppel from the representations of a party can seldom arise, except where the representation relates to a matter of fact; to a present or past state of things. If the

representation relates to some thing to be afterwards brought into existence, it will amount only to a declaration of intention or of opinion, liable to modification or abandonment upon a change of circumstances, of which neither party can have any certain knowledge. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act. An estoppel can not arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. White v. Ashton, 51 N. Y. 280; Bigelow on Estoppel, 437-441; White v. Walker, 31 Ill. 437; Faxton v. Faxton, 28 Mich. 159. Union Mut. Life Ins. Co. v. Mowry. In error to the Circuit Court of the United States for the District of Rhode Island. Opinion by Mr. Justice FIELD. Judgment reversed.

APPEALS AND APPELLATE PROCEEDURE.-The appellate court will not review the action of the trial court in refusing to sustain a motion to set aside a judgment by default, when filed out of time; and, where the bill of exceptions states the grounds on which the judge refused to entertain the motion, and these grounds, as stated, are clearly insufficient and erroneous, this is a matter which the appellate court will not consider. It looks only at the action, not at the motives of the trial court. Affirmed. Opinion by BAKEWELL. J.-Eyermann v. Tamm.

CRIMINAL EVIDENCE-CONSTRUCTION OF STATUTE PERMITTING DEFENDANT TO TESTIFY IN HIS OWN BEHALF.-Under the act of April 18, 1877 (Acts p. 356), rendering the defendant in a criminal case competent to testify, the defendant, if he offers himself as a witness, is liable to cross-examination only in matters as to which he testifies. No fact affecting his credibility as a witness (except the fact that he is the defendant on trial) which does not grow out of the examination in chief, can be shown on cross-examination. It is not competent to attack the character of the defendant when a witness under this act by asking him questions merely to discredit him as to collateral matters upon which he has not touched in his testimony in chief. The ancient exemption of a defendant in a criminal case from impeachment of his general character, is not to be overthrown by judicial interpretation of a doubtful statute. Reversed and remanded. Opinion by BAKEWELL, J.-State v. Rugan. Per LEWIS, P. J.— Where a witness is cross-examined as to matters about which he has not testified in chief, he is made, in a certain sense, a witness for the party thus crossexamining him, and there is no conflict between this doctrine and the rule in Missouri which admits in general a cross-examination upon the whole case. As the statute of 1877 provides that the defendant shall not be required to testify, except as a witness in his own behalf, the legislative intent would be violated by cross-examination of the person on trial upon matters about which he has not testified in chief. Per HAYDEN, J.-The case should be reversed, because the course pursued towards the defendant, when on the stand, was improper on any interpretation of the law; but the construction placed upon the law by the majority of the court is not assented to. When a defendant in a criminal case volunteers as a witness, he is subject to the ordinary rules applicable to all witnesses

in this State. The legislature has used no apt words to modify the general rule, and the courts can not wrest the words of the statute from their plain meaning to get rid of the supposed bad policy of the act. When the legislature declares that the accused shall not be incompetent to testify, it puts him in the general category of witnesses. The subsequent words of the act have not the qualifying sense attributed to them by the majority of the court; nor did the legislature intend in its second breath to destroy what it had created by its first. 2. Unless the witness can be examined as to matters about which he has not testified in chief, there is no proper cross-examination. When the prisoner avails himself of the statute he puts his general character in issue, and makes it a proper subject of evidence.

3.

RULES OF TRIAL COURT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-EVIDENCE.-1. The rules of the St. Louis circuit court, although adopted by general term, have no other or greater force than any other rules of court, and are subject to the ordinary discretionary action of the judge at special term; and the appellate court will not review the discretion of the trial judge in permitting a bill of exceptions, filed within the time prescribed by law, to be filed and signed beyond the time limited by the rules of court. 2. The fact that the jury, in a suit for damages, arrived at the measure of damages by dividing by twelve the sum total of the several amounts jotted down by each juror, is no ground for a new trial where the amount thus ascertained was then considered and freely assented to by each juror. 3. The testimony of the jurors themselves, is not to be admitted to impeach their verdict. 4. What is, or is not, ordinary prudence as to the position to be assumed by a passenger on a street car sitting at an open window, can not be determined by any arbitrary rule. It is not to be held negligence per se to expose the elbow to some extent from the window of such a car drawn by horse-power on a track laid through the streets of a city. 5. The negligence of the plaintiff is unimportant if it is the remote condition of the accident sued for; the liability rests with the one who is the efficient cause of the accident. 6. In a suit for damages against a street railroad company, alleged to have been caused by the negligence of the agents and servants of defendants, it is error to admit evidence, and give an instruction, as to the general condition of the track and the construction of the cars. If the accident is claimed to have occurred through the bad condition of the track, or the improper width of the cars, the pleadings should have been more specific. 7. Had the pleadings been amended in this respect, evidence of the condition of the track at another place and another time from the place and time of the accident would still be incompetent. 8. An instruction which tells the jury that if the elbow of plaintiff was outside the window of the car and the conductor did not warn him of his danger, and his arm was injured in consequence of the cars running too close together, they will find for plaintiff, is erroneous, because it takes from the jury the question as to whether the too close approach of the cars running on the parallel tracks was accident or negligence; and because there was no evidence that the conductor saw the position of plaintiff; and the conductor is not bound to watch that passengers keep their elbows inside the windows. 9. Where the thing that causes the accident is under the management of the carrier, and the accident such as would not happen in the ordinary course, the accident, if unexplained, is reasonable evidence of negligence; but, where, from the character of the accident, it would not have happened without undue exposure on the part of the passenger, the accident itself does not raise the presump

tion of negligence. 10. Where the character of a witness is indirectly attacked in cross-examination and by evidence of contradictory statements made by him, the party calling the witness may give evidence of his general good character. Reversed and remanded. Opinion by BAKEWELL, J.-Miller v. St. Louis R. R. Co.

ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

66

January Term, 1878.

HON. ALBERT H. HORTON, Chief Justice.
D. M. VALENTINE, Associate Justices.
66 D. J. BREWER,

USURIOUS INTEREST-INJUNCTION.-Where a person borrowing money agrees to pay usurious interest, and thereafter he pays the principal of the loan with legal interest, and does and pays all that either law or equity would require that he should do or pay: Held, that equity will interfere, upon a proper application, to prevent the collection of the usurious interest. Affirmed. Opinion by VALENTINE, J. All the justices concurring.-Waite v. Ballou.

CONTRACT-TORT.-1. A person whose crops have been damaged by the cattle or stock of another, can not, in the absence of proof of the latter's participation in the trespass, or that he received some benefit therefrom, or of a promise to pay for the same, recover the price and value of the crops damaged, in an action of contract. In such a case the cause of action is one arising from tort, and not from contract. Reversed. Opinion by HORTON, C. J. All the justices concurring. -Teghtmeyer v. Mongold.

BOUNTIES FOR HEDGES-REPEAL. 1. Section 2 of the art to encourage the growing of hedges, etc., approved February 20, 1867, (laws of 1867, page 99, Gen. Stat., 495) was a statute providing merely for giving bounties for the encouragement of the growing and building of certain fences therein named, and no person could have such a vested right in such statute as to prevent its repeal. A person might have a vested right in a bounty already earned or accrued under such statute, but he could not have a vested right in anything further. 2. Said section 2 was amended by an act approved March 2, 1871, and taking effect March 23, 1871. The amendment was made by re-enacting the whole section and incorporating the amendment therein. This new and amended section took the place of the original section, and the original section was, by virtue of section 16, article 2, of the constitution, repealed. Opinion by VALENTINE, J. Reversed. All the Justices concurring.-Commrs. of Jefferson Co. v. Hudson.

PROBATE COURT SALES-NOTICE-JURISDICTIONAL MATTERS.-1. Proceedings for the sale by an administrator of the real estate of the decedent are not proceedings in rem, but are, so far as the heirs are concerned, adversary, and notice to them is jurisdictional. 2. A general finding or recital in a judgment or order of a court of record of due service of process or notice is limited by and restricted to the process or notice, if any there be, actually found in the record, and the validity of the judgment or order will depend on the sufficiency of such process or notice and the service thereof. 3. Where the statute provides that notice shall be given in such form and manner as the court shall prescribe, no mere constructive notice will be sufficient unless made in the form and manner by the court prescribed. 4. Where notice can only be given in a form and manner to be prescribed by the court, and where the record contains an order prescribing such form and manner but the notice itself is

The ordinary rule is that the cross-examination of a witness is limited to matters upon which he has been examined in chief; and this rule obtains whether the witness is present and examined at the trial, or his testimony is taken by deposition. Hence, where to impeach one of plaintiff's witnesses, a deposition is offered in which the deponent testified to different statements made by such witness outside the court, and upon the objection of plaintiff the testimony in chief in said deposition as to such statements was excluded for lack of sufficient identification in time and place: Held, that it was error over such objection to permit the cross-examination of the deponent as to said statements to be read to the jury. 2. The court instructed the jury that to justify a verdict in favor of the plaintiff, the preponderance of testimony in his favor must be such "as clearly outweighs the evidence on the other side." Held, that such instruction was misleading, and in a doubtful case in which the verdict was returned for defendant, was error sufficient to call for a reversal. Reversed. Opinion by BREWER, J. All the justices concurring.-Callison v. Smith.

INVESTMENTS

LIFE INSURANCE COMPANIES DEFENSE OF ULTRA VIRES. - 1. Under chapter 93, act of 1871, relating to the insurance department, a life insurance company, organized under the laws of Kansas, may purchase or invest its funds in notes secured by mortgages on unincumbered real estate, worth fifty per cent, more than the sum so loaned thereon; and may take a real estate mortgage concurrently with the loan, in order to secure it. 2. Where a life insurance company, organized under the laws of Missouri, brought its action to foreclose a real estate mortgage executed in this state by C, and made one W the holder of a subsequent mortgage, a defendant, and in its petition set forth a copy of the mortgage and the usual allegations in petitions of this character, and, also, stated that it was an incorporated life insurance company, duly incorporated under the laws of Missouri; that it was duly authorized to transact business in the state of Kansas, and to loan money on real estate; that it had fully complied with the laws of the state of Kansas relating to foreign insurance companies, and was duly authorized to transact business in the county where the mortgaged premises were situated, and as to the defendant W, further stated that said defendant had or claimed to have some interest in the mortgaged premises which was subject and inferior to the lien of the plaintiff, and default was made by C and W filed an answer, unverified, setting up a subsequent mortgage, and alleging that, prior to the execution of the mortgage sued on, C was not indebted to the plaintiff, that the mortgage was not given to secure any pre-existing debt, that the plaintiff had no legal capacity to loan money and take mortgaged security therefor in this state. Held, that the answer was no defense to the cause of action of the plaintiff. 3. In this case, if the defendant W wished to raise by his answer the question that the loaning of the money by the plaintiff to C on real estate security in this state was ultra vires and forbidden, he should have pleaded its charter, or the laws of the state where it was organized, or both such charter and laws, and on the trial produced the same in evidence. Reversed. Opinion by HORTON, C. J. Valentine, J., concurring. Brewer, J., not sitting.-The Life Association of America v. Cook.

DURESS-WHO CAN AVOID CONTRACT FOR.-A contract made under duress is not, strictly speaking, void, but only voidable, because it may be ratified and affirmed by the person upon whom the duress was practiced. The right to avoid a contract for duress is a personal privilege, and can be taken advantage of by none but the party himself. A ratification of such a contract may be inferred from lapse of time. Opinion by PERKINS, J.-Shee v. McQuilkın.

FRAUDULENT CHATTEL MORTGAGES. - Where a mortgage was given on a stock of goods, stipulating that the mortgagor should retain possession of the stock, "with the privilege of using the same": Held, the language used necessarily implied that the mortgagor should have the privilege of selling or disposing of the mortgaged stock, and, the mortgage not containing any stipulation that the mortgagor would apply the proceeds of the sales of the mortgaged stock to the payment of the mortgage debt, or the debt of any other creditor, such mortgage was void on its face as against the other creditors of the mortgagor. Herman on Chat. Mort. 238; 16 Ohio 547; 7 Ohio St. 218; 22 Wall. 513. Opinion by Howк, J.-Mobley et al. v. Letts.

JUDGMENT FOR COSTS-PAYMENT TO CLERK.-1. The costs which a party recovers from his adversary are those which he incurs during the progress of a cause, and which he is supposed to pay as they accrue, and upon final judgment against his adversary he recovers them back. Practically, costs are seldom paid as they are made; but the party making them is liable to the person to whom they are due, who may cause them to be collected by fee bill. A judgment in favor of a party for costs is therefore as much his own property and under his own control as a judgment for debt sued for. 2. The clerk of a court is not the agent of a party owning a judgment rendered in that court to receive the money due on the judgment; is not authorized to do so unless empowered by statute, and payment to him will not discharge the judgment. Opinion by WORDEN, J.-Hays et al. v. Boyer.

PROMISSORY NOTE - PRINCPAL AND AGENT. — When a promissory note was given in payment for a sewing machine, and the note contained the following provision: "No credits allowed on this note unless indorsed on the note at the time the payment is made," and the maker of the note paid a part of it at the time to the agent of the principal, and afterwards paid the residue to the agent, taking his receipt in full for the note. Held, that by accepting the note with the credit upon it, the principal adopted the act of the agent, and the payment to him of the balance due on the note, without any notice that his agency had been terminated, was a good payment, although the agent at the time had not the note in his possession. If the stipulation in the note that no credit should be allowed unless indorsed on it, had any validity at all, (which is doubtful), it could not prevent the payment of the note in any ordinary business way, which would be good against the creditor. Opinion by BIDDLE, C. J.-Howe Machine Co. v. Simler.

LEX LOCI CONTRACTUS - EVIDENCE LAW AND FACT.-1. In an action of tort for the illegal attachment and sale of plaintiff's property, it appeared that the contract under which the plaintiff claimed to be the owner of the property described in his declaration, was executed, delivered, and recorded in Vermont; that the property was in that state at the time and afterward, and that it was there attached by the defendant. Held, that the rights of the parties are to be settled by the law of Vermont. 2. The books of reports of cases adjudged in the courts of another state of the United States are competent evidence of the law of that State. Gen. Sts. c. 131 § 64; Pen. & Ken. R. R. v. Bartlett, 12 Gray 244; Cragin v. Lambkin, 9 Allen 595. 3. When the law of another state is in dispute, it is to be determined as a question of fact by the court or jury trying the cause. Hazleton v. Valentine, 113 Mass. 472. 4. If the evidence has been conflicting, the finding of the court or jury is conclusive and can not be revised in this court, although the evidence has been reported. Sheffield v. Otis, 107 Mass. 282; Nichols v. Bucknam, 117 Mass. 488. Opinion by ENDICOTT, J.-Ames v. McCamber.

DOMICIL-EVASION OF TAXES-INTENTION-OFFER OF COMPROMISE- - EVIDENCE.-1. It is well settled that a man may change his habitancy or domicil from one town to another, merely because he wishes to diminish the amount of his taxes. The St. 1864, c. 172, does not prohibit such change of residence; it is the escaping taxation that is punished. Lyman v. Fisk, 17 Pick. 231. 2. Upon the question of bona fides in the change of residence, the judge ruled that if the plaintiff did not leave H. in good faith, with a view of acquiring a domicil elsewhere, then his domicil would remain in that place; and the jury were instructed that the fact that he was not taxed in U., in which place he claimed to have acquired a domicil, and all his acts to prevent a disclosure or discovery of his residence there by the assessors of that town might be taken into consideration by them, as bearing on the good faith of plaintiff in removing from H. to that place: Held, that the ruling and instruction were sufficiently favorable to the plaintiff. 3. An offer of compromise, made to settle a pending controversy for the sake of peace, is not an admission of any collateral or independent fact. Gerrish v. French, 4 Pick. 374. 4. The rule which, under our practice, admits office copies of deeds to be put in evidence, does not apply to deeds which are presumed to be in the possession or control of the other party. Com. v. Emery, 2 Gray 80; Samuels v. Borrowscale, 104 Mass. 209. Opinion by COLT, J.-Draper v. Inhabs. of Hatfield.

NEGLIGENCE-DECLARATION-CUMULATIVE REMEDY.-1. A declaration alleged in substance that in October, 1874, the defendant corporation was managing a railroad which crossed a certain highway at a grade, and had been accustomed and was bound to keep a flagman at the crossing to warn travelers on the highway of the approach of trains; that the plaintiff was driving on the highway, and, because there was no flagman at the crossing, had no reason to suppose a train was coming, and therefore drove near to the crossing, with due care; that the defendant's train

crossed the highway with great speed and noise, and frightened the horses; that he jumped to hold them, but they ran over him and drew his wagon over him, and injured him, and that the defendant negligently omitted to give the signals of warning required by law, and did not use due care in running its train. The defendant demurred. Held, that the declaration was sufficient. It alleges, and the demurrer admits, that the accident resulted from the fright of the horses, caused by the negligence of defendants in not giving This is due warning of the approach of a train. enough, though it is not alleged, and is not the fact, that any collision occurred between the train and the plaintiff, his wagon, or horses, Norton v. East. R. R., 113 Mass. 366; Prescott v. same, 113 Mass. 370. 2. When a new right is created by a statute which provides a method by which the right may be enforced, the method thus provided is the only one which can be pursued; but when a statute merely gives a new remedy for enforcing a common law right, such new remedy is cumulative, unless by special enactment, or by implication, the common law remedy is excluded. Coffin v. Field, 7 Cush. 358; Brown v. Castles, 11 Cush. 346. Opinion by SOULE, J.-Pollock v. Eastern R. R. Co.

PLEA IN ABATEMENT-RULING-EVIDENCE.-1. An action was entered at the June term of the Superior Court, and in vacation thereafter separate answers to the merits were filed by the defendants, to each of which was added an allegation that one V was a partner in the company, of which the defendants were sued as members, and should have been joined. The plaintiff filed a replication containing a general denial of the allegations in the answers, with a special denial that V was a partner, and joining issue with the defendants on that fact. After the case was opened to the jury, but before any evidence was offered, the plaintiff's claimed that they were entitled to go to the jury on the issue as to V's being a partner, and that, if the issue was found against the defendants, judgment thereon should be final. The defendants thereupon waived that part of their answers. The judge declined to rule in the plaintiff's favor, and directed the trial to proceed. Held, that the question of V being a partner was a matter in abatement, and that, as an answer in abatement, it was not filed in season, and was improperly joined with an answer to the merits. Held, further, that the ruling of the judge, in substance, amounted to giving defendants leave either to amend their answers, by striking out the clause in question, or to answer over, under Gen. Sts. c. 129, § 40, and was not open to exception. 2. To charge the defendants as members of a company, the character of the company, the mode of its formation, the nature of its business and the manner in which it was conducted must be taken into consideration, as giving significance to the acts and declarations of the parties. Opinion by COLT, J.-Machinists' National Bank v. Dean.