the safety of his effects, the acts on his part alleged to be negligent seem to have been brought about by the wrongful conduct of the company itself. His destination was Jacksonville, and before he retired for the night he was assured by the conductor that if the car in which a berth was assigned to him did not go through to Jacksonville, he would be put into another car; and finally, the plaintiff was positively assured that the car in which he had retired would certainly go through to his destination. It turned out that this was not true; and the circumstances under which the plaintiff was rushed out of that car and into another at an intermediate station, show clearly that he was not allowed a reasonable opportunity to properly look after and take care of his effects; and in the hurry and excitement occasioned by his hasty transfer from one car to another, there was much to excuse him for failing to observe that degree of care which, under ordinary circumstances, he would rightly be expected to exercise. At any rate, the jury should be allowed to determine whether or not, under all the circumstances, the defendant is estopped from claiming immunity because of the plaintiff's failure to exercise that care which would, beyond all question, have insured the safety of his property. 3. It very frequently happens that a passenger in a sleeping-car, upon leaving the same, casually leaves in the car some article of personal property. When this occurs, the article so left does not become the property of the company; but on the contrary, it is under a duty of exercising at least some care in looking out for and taking care of any article thus left, and if possible, of restoring it to the owner when ascertained. We do not think the rule of extraordinary diligence applies in such a case, but certainly it is not requiring too much of the company to hold it bound to be at least ordinarily careful in discovering, taking care of and restoring property thus left in a car. It is unquestionably true that when such property is found by a servant of the company, he is bound to take care of it; for this is nothing more than common honesty requires, a failure to observe which should not excuse the company. A less stringent rule is applicable when it does not appear that the property in question is actually found by a servant of the company, but is left or dropped in such place, or under such circumstances, as would enable the servants of the company, by the exercise of ordinary care, to discover it. In the latter case, the duty would still be upon the company of showing that it did in fact exercise that degree of care in the premises. Upon a full review of the entire case, we think it one which should have been submitted to a jury, and that the court erred in granting a nonsuit. Judgment reversed. INDEX. ABATEMENT. See Actions. ACCOUNT. Limitation of action on. Partial payment, not make case of mu- ACCOUNT AND SETTLEMENT. Revocation of agreement for one of opposite parties to act as agent ACCOUNT STATED. Collateral bailed to secure loan, loan repaid, collateral lost, and ACTIONS. Abated, pending suit for penalty, by repeal of statute. 803. Promissory note not indorsed or assigned; suit properly in name 69. Recovery on cause not alleged, not allowed, though supported by Renewal not avoid bar; libel suit in U. S. court dismissed, and be- Stockholders' personal liability for debts of corporation; suit how ADMINISTRATORS AND EXECUTORS. Assets of deceased employee's estate, insurance money on risk of Wages or other sums due employee may be reached by ad- Corporation creditor, president of, with no individual claim, can- Judgment against, for creditor, conclusive on legatees and other De bonis testatoris, by default, was conclusive admission of as- ▼95-52 ADMINISTRATORS AND EXECUTORS-continued. Order of sale limits administrator's power. 543. Party, when administrator of deceased grantee was not necessary 44. See p. 707. Sale, caveat emptor applied to; yet bidder misled by administrator's Ratification estopped heir, though executor's sale unauthor- To legatees to pay their interest in estate, when good, though Selection of administrator. President of creditor corporation, not Guardian of minor entitled to estate, has right of selection. Title remained in executor under this will, until his conveyance to ADMISSIONS. See Evidence; Title. AGENCY. See Partnership; Principal and Agent. AMBIGUITIES. See Contracts; Deeds; Evidence. AMENDMENT. Agreement express not alleged, but might be implied, curable by. 675. Attorney's fees prayed for by, no new cause. 1. Bill of exceptions; act 1893 (p. 52) too imperfect and incomplete Deed procured by fraud; petition to set aside, amendable by set- Judgment for defendants for cost, not enlarged by, so as to decree Justice's court; appearing and marking name on docket, is general ANIMALS. Bite of horse, when owner not liable for. 108. APPEAL. 215. Dismissal by justice, as by nonsuit; appeal lies from, to jury. 504. Waiver of defect in levy, by appearance and plea to merits. 757. ARBITRATION AND AWARD. Binding though not recorded, as to easement, after many years. 753. Evidence before arbitrators, not necessary on trial of issue of par- Improper conduct of arbitrator shown, not incumbent on party Partisanship of arbitrator shown, award set aside. 418. ARGUMENT. See Criminal Law; Practice in Superior Court. ATTACHMENT. Defense on merits, made by moving for nonsuit. 450. Dismissed, plaintiff could proceed for general judgment, where de- General judgment, though plea recite appearance for limited pur- Justice's court, returnable to, if amount sued for be $100 or less, Levy void; waiver by appeal and plea to merits. 757. ATTORNEYS AT LAW. Firm not bound by contract made by one partner to collect chose Supreme Court, attorney must be admitted and licensed in, for his ATTORNEY'S FEES. See Promissory Notes. Amendment praying for, no new cause. 1. Junior mortgagee's fund not chargeable with, in favor of senior Jurisdiction of justice's court, where fees not sued for, leaving |