but with the exception of the lawyers who make a specialty of bankruptcy practice, the majority of the bar favored the repeal.

The JOURNAL went so far as to lay the uncertain state of trade at the door of the bankruptcy courts, and made claim that solvent business houses, temporarily embarrassed, are destroyed by operation of this law, reference to which has been made, and that it made men careless in the contraction of debts, by making escape from them easy, and adds, "when an obligation can be discharged only by payment, most men are cautious about entering into it."

The JOURNAL represented the general feeling of lawyers at the time, who, disgusted at the faults and imperfections of the law, and the abuses existing under it, found it difficult to perceive its good points or to believe that its repeal would subject them to still greater evils. Such was, however, the case.

When the tide of bankruptcy matter, which had overflowed business and profession for some time previous and subsequent to the going into effect of the repeal, had ebbed, and people had an opportunity to observe and think, it was found that the position of trade in its relation to the law was worse than before; assignments were more bare of assets than were bankruptcies. In no two States are the insolvency laws the same, and the maze of conflicting decisions and incompatible provisions makes the endeavors of the most learned and experienced unavailing. The increasing. intimacy of all trade relations between different States, which enterprise and the distance-conquering inventions of our age are promoting, makes it desirable to the mercantile classes to know their exact relation to each other; a thing impossible under the present laws. This fact of the diversity of laws increases vastly and entangles the complex character of commercial relations. It may be said that if the bankruptcy system was more expensive it was more expeditious, and if it encouraged some species of fraud it put a stop to preferential assignments. Its abuses ruined some sound establishments, but its six months clause prevented fraud that can now be perpetrated with impunity. The public have become restless under the present laws, and preferences do not suit those who do not find themselves preferred, and many are now of the opinion that the late bankruptcy law, instead of being repealed, should have been amended. The tendency of the American law is to favor the debtor.

In a land where individual exertion is the basis of so many fortunes, it seems contrary to the spirit of an enlightened charity to fetter a man by means of legal confiscation, or to break his spirit by the enervating idleness of a prison.

Perhaps we have gone too far, and the provisions which exist in Germany and France, discriminating against those whose books are incorrectly kept, and others similar, might well be enforced here. Three bills have recently been presented to Congress to establish a uniform system of bankruptcy law. One drawn by Judge Lowell, of Massachusetts, and another by Mr. Blumenstiel, of this city

The probability is that a combination embracing the best features of these bills, which in the judgment of the judiciary committee and their advisers will tend to aid the debtor, while it protects the creditors, and to lower the expenses while increasing the effective workings of the legal machinery of bankruptcy law, will, within a year or two, be passed.

The English have just arrived at the point of dissatisfaction which we reached in 1878. The English law is complicated by the existence of a distinction between petty debtors and others, between whom a wide distinction is drawn on the matter of imprisonment and of their standing before the courts.

To the complaint of traders that the present law does not protect them from fraudulent debtors, we

may answer that no law could be passed-which would prevent fraudulent debtors from imposing on honest men, unless we should concoct a law that like the Roman law, gave the debtor's body to the creditors for å proportionate distribution among them. But the question upon which there is the most debate is the expediency of relieving small debtors from imprisonment. Mr. Stonor, one of the English county court judges, has gone so far as to maintain that to free the petty debtor from the possibility of imprisonment would be to strip him of all credit, maintaining that without that provision no one would trust him and that in time of adversity, which credit would enable him to struggle through, his only refuge would be the work-house. It may also be urged that if all fear of imprisonment were taken away, fraudulent debtors would run riot with those who gave them credit. At the same time the present law tempts tradesmen not only to give but to urge credit, because they think they have an all-sufficient remedy in case of non-payment. Their confidence betrays the poor into extravagance and allures the weak or the unscrupulous. The evils of the present law fall more heavily on the honest than on fraudulent debtor, as the latter knows how to escape legal penalties, or if imprisoned, does not mind an incarceration which enables him to indulge his love of idleness. The best law that could be passed would seem that which would tend to prevent an imprudent class from contracting debts at all. Free credit is apt to put a poor man on the wrong side of that scale of happiness and misery that Mr. Micawber tells of, while cash payments leave a balance of income in his favor. It may be hard in England to do away with this last vestige of the right of imprisonment, but the time has come for the clearing out of a great many old cobwebs from the English law, and a man who represents progress is master of the house. Therefore when, as is anticipated, the attorney-general introduces into Parliament a bankruptcy law, it may be expected that there will be many changes, though it is to be hoped that it will be more in the nature of an amendment than of an entirely new bill. The English laws, unlike ours, favor the creditor. The pro rata system prevails in England, while preferences are permitted and largely taken advantage of here.

Our laws differ, and in States whose boundaries, commercially considered, are blotted out, while the English law holds good from Carlisle to Lands End, and should include Ireland and Scotland. The law which would meet with the most general approval would resemble the late bankruptcy law in its pro rata distribution of assets, and which like it should be general in its jurisdiction. Its working should be like those of the English law, easy and inexpensive, while unlike that system it should be lenient to the debtor and should permit no imprisonment except for fraud. It should protect the creditor without oppressing the debtor, and the court should have such equity powers as to enable it to scrutinize closely every effort on the part of dishonest men to prostitute the law to their own advantage. And it is to be hoped that after two hundred and fifty years of experimenting, a law may at length be passed whose provisions may endure long enough for thorough adjudication, and when adjudicated may remain perpetual.

EDWARD R. JOHNES.

RIGHT OF INDIVIDUALS TO INSPECT AND COPY PUBLIC RECORDS.

MICHIGAN SUPREME COURT, JUNE 9, 1880.

WEBBER ET AL. V. TOWNLEY.

Relators desired to make a complete abstract of the conveyances recorded in a Michigan county registry office for the purpose of private emolument in carrying on an

"abstract business," but the register of deeds for the county refused to permit them to inspect and copy the books in the office for that purpose. Held, that neither under the common law nor the statute of Michigan were relators entitled to access to the public records for the purpose named, and they were not entitled to mandamus to that end against the register. Under the common law the right to an inspection and copy or abstract of a public record is not given indiscriminately to each and all who may from curiosity or otherwise desire the same, but is limitted to those who have some interest therein

PETITION for a mandamus to the register of deeds

of Jackson county to compel him to allow relators to inspect and copy the records in his possession. The facts appear in the opinion.

Beakes & Cutchen, for relators.

T. A. Wilson and Eugene Pringle, for respondent. MARSTON, C. J. The relators show by their petition that in November, 1879, they entered into copartnership for the purpose of making and owning a complete abstract of the title to all the lands in Jackson county, and for the purpose of carrying on the abstract business in Jackson, in said county; that they had called upon the respondent, who was and is register of deeds in said county, and stated to him fully and fairly the purpose of petitioners, and asked permission to put a table in one of the rooms in the office of said register, which was granted.

That petitioners thereupon contracted for certain blank books and incurred considerable expense, and commenced copying from the public records into such books, and continued to do so until about January 15, 1880, and that this was done without the slightest interference with or hindrance to the business of the office of said register; that at the date last mentioned the respondent informed a clerk then in the employ of зaid relators at such work that respondent would not allow him to work any more, because it would be unfair to the owner of another set of abstract books in which respondent was interested, and that since then relators have been unable to further prosecute their said work.

The relators further set forth that in doing such work they have not used pen or ink, or permitted their clerks to, using pencils only, and are willing to comply with all reasonable rules and regulations which the register may prescribe. They further allege that the public records of said office embrace 100 books of records of deeds, and about sixty of records of mortgages, to be abstracted; that the making of a proper abstract will be a work of great labor, and if done by one person, without assistance, would require several years for completion. They allege an intention to make a complete abstract, which would be of great benefit to the public and themselves. The relators ask for a peremptory writ of mandamus to compel the register to permit them and their clerks to inspect and copy, or abstract, the public records, files and papers in the office of the register, subject to reasonable rules and regulations as to time, facilities, etc.

An answer was put in by the respondent, to which a number of exceptions have been taken by relators' counsel, but which we shall not consider, preferring to dispose of the application upon its merits, and without any reference to side issues, assuming for this purpose that sufficient facilities could be afforded relators in the register's office to make an abstract, even although, as stated in the answer, it would require two persons five years to make such an abstract. The relators place their right to the relief asked upon two grounds: First, that the right to inspect public records and make transcripts therefrom is given them by the common law; second, under act No. 54 of the Session Laws of 1875, p. 51.

We are of the opinion that under the common law

relators have not the right claimed. The right to an inspection and copy or abstract of a public record is not given indiscriminately to each and all who may, from curiosity or otherwise, desire the same, but is limited to those who have some interest therein. What this interest must be we are not called upon in the present case to determine. The question has usually arisen where the right claimed was to inspect or obtain a copy of some particular document, or those relating to a given transaction or title. We have not been referred to any authority which recognizes the right of a person, under the common law, to a copy or abstract of the entire records of a public office in which he had no special interest, the object in view being simply private gain from the possession and use thereof.

The object sought by the relators may be considered of such modern origin as not to have been contemplated or covered by the common-law authorities relating to the inspection of public records, and the reason upon which those authorities rest would exclude relators from the right claimed. What is the right which relators seek, and the result thereof? But first let us see what it is not. It is not for a public purpose. They do not seek these abstracts for purposes of publication for the use, benefit, or information of the public, even if such an unlimited publication could be justified. Relators do not ask for an inspection of a record and abstract thereof relating to lands in which they claim to have any title or interest, or concerning which they desire information in contemplation of acquiring some right or interest, either by purchase or otherwise. It is not the agents or attorneys of parties seeking information because interested or likely to become so.

On the contrary, the right is based upon neither a present nor prospective interest in the lands, either personally or as a representative of others who have, but is for the future private gain and emolument of relators in furnishing information therefrom to third parties for a compensation then to be paid. It is a request for the law to grant them the right to inspect the record of the title to every person's land in the county, and obtain copies or abstracts thereof, to enable them hereafter, for a fee or reward, to furnish copies to such as may desire the same, whether interested or not, and irrespective of the object or motive such persons may have in view in seeking such information. In other words, relators ask the right of copying or abstracting the entire records of the county for private and speculative purposes, they having no other interest whatever therein.

Conceding to them this right under such circumstances, the same must be accorded to all others asking it. Every resident of Jackson county may of right claim a similar privilege. Indeed, the right for such purpose, if it exists at all, cannot be restricted by the residence of the party, so that the result may be more applicants than the register's office could afford room to. Further than this, to make such abstracts, being open to all, and being a matter of right, must be granted in such a manner, and such reasonable facilities must be afforded, that the right claimed and exercised will not be barren but profitable.

If none but the applicants are permitted to work, the time consumed in making the abstract will, in many counties, be so long that the full fruits thereof cannot be reaped during the life-time of the parties. An opportunity, therefore, should be afforded to all to have the work done within a reasonable time. If, therefore, each applicant, with a corps of assistants and clerks, makes demand upon the register for facilities to prepare abstracts, may not that officer find his position a somewhat embarrassing one, and his office uncomfortably crowded, to his inconvenience and that of the public?

prices all persons having accounts open with the defaulter shall close their transactions by buying of or selling to him such stocks, shares, or other securities as he may have contracted to take or deliver, the differences arising from the defaulter's transactions being paid to or claimed from the official assignee. In the event of a dispute as to the prices named, they shall be fixed by two members of the committee.

Rule 171 provides that the balances in the hands of the official assignee belonging to defaulter's estates shall be paid over once a month to the stock exchange benevolent fund.

The trustee in the liquidation claimed the 3,9571. as part of the assets distributable among Plumbly's creditors.

The registrar being of opinion that the case was within Tomkins v. Saffery, 37 L. T. Rep. (N. S.) 758; L. Rep., 3 App. Cas. 213, held that the trustee was entitled to the money.

The official assignee appealed.

Herschell, Q. C., and Romer, for the appellant. There is nothing illegal in the arrangement made by the stock exchange rules. By it, on a member's default, certain moneys which do not belong to the defaulter are paid by persons who had contracts with him in relation to those contracts, to the official assignee for the purpose of being paid over to other persons who also had contracts with the defaulter. By the arrangement made by the rules, margins on both sides are made to exist and are set off against each other. Suppose a number of persons, A, B, C, D, etc., have constant dealings together, and on the terms that on default, say by B in his coutract with A, A shall have the security of B's contracts with the others. There would be nothing illegal in that. The arrangement under the stock exchange rules only affects the members of the stock exchange. A principal can come forward and adopt a contract according to the price on settling day. The trustee stands in Plumbly's shoes, and Plumbly's right to receive moneys due to him on his contracts would only arise on the 27th June, so that the trustee has no right on the 25th. They cited Rogers v. Kelly, 2 Camp. 123; Smith v. Union Bank of London, 33 L. T. Rep. (N. S.) 557; 1 Q. B. Div. 31.

F. O. Crump (with him Benjamin, Q. C.), for the respondent.

JAMES, L. J. We do not desire to hear you further, Mr. Herschell, nor is it necessary to the determination of the question that we should go into the case and say to what extent these contracts affect other contracts. I cannot conceive that the contracts of the outside world can be affected by what has been done in this case under the rules of the stock exchange. If they had any rights they still have them in their entirety, whatever they may be. I think in this case, beyond all question, that the money which was claimed by the official assignee of the stock exchange was not money which he was liable to pay to the trustee in bankruptcy. He claimed it hostilely to the trustee in bankruptcy; and how can the trustee in bankruptcy receive it from him as money paid to his use? In my idea the case is exactly this: Band C each say to A, "You owe me that 100l.;" A pays it to one of the two; the other has no right to sue the one who receives it. The official assignee claims in his own right the difference, that is, the claim of the first man, and of course the payment which was made would not discharge the debtor if the debtor had paid it to the wrong man; he would be still liable to pay it to the other. Whatever the liabilities and the rights may be of the outside world, they still remain. Either the rules of the stock exchange are binding on them, or they are not. they are binding, they are binding in their entirety. If they are not binding, or are in any way in violation

If

of the law of bankruptcy, what we call in fraud of the law of bankruptcy, they are utterly void and of no effect against the outside world. Any person of the outside world, e. g., the trustee in bankruptcy, retains all his rights against any debtor to the bankrupt, although he be a member of the stock exchange, just in the same way as he would if those rules for payment to the stock exchange assignee had never been passed. It appears to me, as Mr. Herschell has said, that his contention is not a technical one, but involves the whole of the merits of the case.

BAGGALLAY, L. J. I am of the same opinion. The distinction to be drawn between this case and that of Tomkins v. Saffery is a very marked one. In the latter Mr. Cook became a defaulter, and the official assignee of the stock exchange being informed that he had no creditors except stock exchange creditors, pressed him to make over all his property for the benefit of his only creditors, and among other things he (Cooke) drew a check for 5,000l. against his account at the Bank of England. It turned out that he had other creditors, and it was held that the interposition of the official assignee of the stock exchange could not justify the separation from his general assets of the 5,000l. Here there is no division of Plumbly's money. The official assignee holds no private assets of Plumbly, and the fund which he has collected is a fund collected by virtue of certain rules of the stock exchange, certain sums ascertained in a particular way being raised from particular members of the stock exchange, and applied in a particular manner. In the view which I take of the case, these funds can in no respect be regarded as funds belonging to Plumbly. If, then, they are voluntary contributions of the members of the stock exchange to be applied in satisfaction of the stock exchange creditors, or if they are to be regarded as moneys handed over by persons who had become surety to meet the claims of the stock exchange, I am unable to understand how in either view of the case they can be claimed by the trustee. It certainly did at one time occur to me that some injustice might be done to the general creditors of Plumbly by the official assignee taking these sums. But the true view of the case appears to me to be this: As far as regards any losing contracts entered into by Plumbly, the trustee in bankruptcy or in liquidation is relieved from them, and if on the other hand it is said that there may be some winning contracts, the answer, as far as regards them, is, that it would be impossible to realize on them, because, when the time arrived for the completion of the contract, Plumbly could not and would not have been ready and willing to perform them. In making these observations I do not mean to imply that in such cases the contracts, whether losing or winning, are absolutely void, but in regard to the case now under consideration, I am satisfied that no injury could be done to the outside creditors by the course pursued.

COTTON, L. J. All that we have to consider is, whether the trustee in bankruptcy can obtain from the official assignee of the stock exchange, as he is called, the fund in question, and it seems to me that question is shortly disposed of in this way: The fund is an artificial one, which has never belonged to the bankrupt, but has been created by the rules of the stock exchange for a particular purpose, and which only has existence for the purpose of being dealt with in a particular way. What is to be done with any surplus after all these purposes have been discharged is another question, but the trustee in bankruptcy wants to take from the official assignee of the stock exchange a fund created for a particular purpose without applying it to that particular purpose. In my opinion that he

is not entitled to do.

JAMES, L. J. The appeal will be allowed, and the

Railroad companies are not insurers of the safety of their passengers further than could be required of the exercise of such high degree of foresight as to possible dangers, and such high degree of prudence in guarding against them as would be used by very cautious and prudent competent persons under similar circumstances.

An unprecedentedly heavy rain, not general, fell in a locality upon a railroad which was built in the best manner with sound iron and ties, and was only three years old, causing the road-bed to be so impaired as to occasion the upsetting of a train in which plaintiff was a passenger, injuring him. At the place of the accident a train had passed over about two hours previous to its occurrence, leaving the track safe, as far as could be seen. An inspection had been made between that time and the time of the accident and the road found in good condition, and it was still so to all appearance when the injured train ran on to it. This train was then running at a reduced rate of speed and was in good condition and properly manned. Held, that the railroad company was not liable to plaintiff for his injury.

A

CTION for injury to plaintiff received from an accident to one of defendant's trains upon which plaintiff was a passenger. Sufficient facts appear in the opinion. From a judgment for plaintiff defendant appealed.

BONNER, J. The first and second errors assigned in this case bring into review so much of the general charge of the court, as, in effect, instructed the jury that the liability of the defendant company depended upon "the manner and speed of running the train, considering the condition of the track and the state of the weather, if that in any way superinduced the accident."

The ground of complaint against the company as alleged in the petition was, that "the gross negligence, carelessness and mismanagement of its agents and employees, and the unsafe and dangerous condition of its road, caused the car in which plaintiff was riding to be thrown from the track and upset; whereupon and by reason of said gross negligence, carelessness and mismanagement of defendant by its agents and employees, as aforesaid, and the unsafe and dangerous condition of its road, and the throwing off the car in which plaintiff was riding from the track and upsetting the same, plaintiff received great personal injury," etc.

There was no special demurrer to the petition that it did not allege the particular acts of gross negligence, carelessness and mismanagement upon the part of the agents and employees of the company; and under the pleadings, had the evidence warranted the charge as given, the subject-matter of it was proper for the consideration of the jury.

The testimony showed that about three or four hours before the accident happened an unprecedentedly heavy fall of rain occurred in that immediate locality, but that it had not been sufficient upon the line of the road, even on that part of it, to stop or impede the regular running of the trains, and it does not show that the agents and employees in charge of this particular train, either from information or their own per

sonal observation, had notice of the character of the rainfall in that locality or the damage to the road-bed, but on the contrary, it appears that to all external appearance the road-bed and track were sound and in good order; that the train at the time was running at but little over half speed, not by reason of any apprehended danger, but to prevent passing a place at which it was intended to take on wood.

The charge was calculated to mislead the jury by making the liability of the defendant turn upon the dangerous condition of the track and the state of the weather, without submitting, in this connection, the question of the knowledge of this condition on the part of those in charge of the train. The testimony having shown that the road-bed and track were in good condition until affected by this sudden heavy rainfall, the knowledge of this changed condition by those in charge of the train was a material ingredient in the alleged negligence, and as such should have been submitted to the jury. Withers v. North Kent R. Co., 27 L. J. Exch. 417.

The third and fourth errors assigned involve the question of the liability of a railroad company for the safe carriage of its passengers.

A carrier of passengers upon an ordinary road is not responsible for its condition, as it is not under his control and supervision.

A different rule, however, prevails as regards a railroad corporation, which, under extraordinary grants of franchise, builds, controls, and generally has the exclusive use of its road-bed and track.

A passenger on a railroad train, by reason of the risk naturally incident to this mode of travel, has the right to demand of the company for his safe passage, that high degree of care and skill which very cautious persons generally, in their line of business, are accustomed to use, under similar circumstances, to prevent danger. This care and skill pertains to the original construction, by competent engineers and workmen, of the road-bed, track, engines, cars, and other appliances necessary to carry on properly the business of its road, and to operate its trains; the frequent and careful examination of the same, to see that they have been thus constructed and have been kept in safe condition and repair to prevent accidents, so far as human skill and foresight could have reasonably anticipated and avoided; and also to the employment of a sufficient number of good, steady and competent agents and employees to so conduct and control the train as to insure its careful and skillful management.

If the company is negligent in any of these particulars, and this negligence is the legal cause of injury to the passenger, it is liable in damages. Shearm. & Redf. on Neg., §§ 266, 269, 444; Angel on Carriers, §§ 538, 540.

Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such high degree of foresight as to possible dangers, and such high degree of prudence in guarding against them which would be used by very cautious and prudent competent persons under similar circumstances. Angell on Carriers, §§ 568, 570; Cooley on Torts, 642; Galena & Chicago R.R. Co. v. Fay, 16 Ill. 558; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 411; McPadden v. N. Y. C. R. R. Co., 44 id. 478.

This is not understood to require of the company every possible precaution which ingenuity might suggest or the skill of science might afford, by which accidents might be avoided; but means that it should adopt such precautions of known value which have been practically tested, and should employ such necessary skilled labor, service and experience, as is reasonably within its power to have secured.

The test of liability is, not whether the company used such particular precautions as evidently, after the accident happened, might have averted it, had the