ground of paramount necessity. The law does not contemplate such an exigency, and therefore does not provide for it. If it did it would no longer be the undefined law of necessity. Nelson, J., in People v. Corporation of Albany, 11 Wend. 540.

Nuisances may be abated by an individual; but they must in fact exist. The determination of the individual that a nuisance exists does not make it so; and if he destroys property on the ground it is a nuisance he is responsible, unless it is established that the property destroyed constituted a nuisance. This precise power, and no more, is conferred by the statute on cities and towns. In Wood Nuis., § 740, it is said: "If the authorities of a city abate a nuisance under authority of an ordinance of the city, they are subject to the same perils and liabilities as an individual, if the thing in fact is not a nuisance." See also Clark v. Mayor, 13 Barb. 32; Welch v. Stowell, 2 Doug. (Mich.) 332; Underwood v. Green, 42 N. Y. 140; Yates v. Milwaukee, 10 Wall. 497; Haskell v. New Bedford, 108 Mass. 208; Wreford v. People, 14 Mich. 41; Everett v. Council Bluffs, 46 Iowa, 66; City of Salem v. Eastern R. Co., 98 Mass. 431. The last case was an action brought to recover the expense of removing an alleged nuisance caused by the defendant, who had no opportunity to be heard as to the question whether a nuisance in fact existed; and it was held that the defendant was not concluded by the findings and adjudications of the corporate authorities, but it could contest all the facts upon which its liability depended. Cities and towns may undoubtedly define, and by ordinance declare, what shall constitute a nuisance, and their legislative discretion in this respect cannot be controlled. If a nuisance is created or erected after the passage of the ordinance, and it is then provided that it may be abated, we are not prepared to say this may not be done, or the person erecting the nuisance punished as prescribed in the ordinance. Ordinarily, before property is destroyed on the ground that it is a nuisance, the owner should have the opportunity to be heard in some manner in accordance with the usual forms prescribed by law; and this is true where the property has been summarily destroyed, and he seeks to recover damages sustained by its destruction.

2. Counsel for the defendants insist that the only remedy the plaintiff had was to test the validity of the action of the town council by certiorari, and cites State v. Roney, 37 Iowa, 30; Iske v. City of Newton, 54 id. 586; 7 N. W. Rep. 13; Stubenranch v. Neyensch, 54 Iowa, 567; 7 N. W. Rep. 1. These cases are clearly distinguishable. It may be conceded that the plaintiff could have thus proceeded, but he was not bound to do so, and after the destruction of his property such a proceeding would have been useless. It may be the plaintiff had two remedies-one by certiorari, and the other the one adopted in this case. Both these remedies are legal, and not equitable, and he could adopt either.

3. Counsel further claim that the members of the council are not individually liable, because what they did was done in a judicial capacity; that is, that the determination of the question as to the existence of the nuisance was of a judicial character. In support of this proposition Walker v. Hallock, 32 Ind. 239; Baker v. State, 27 id. 485; Harvey v. Dewoody, 18 Ark. 252; Nolan v. Mayor, 4 Yerg. 163, are cited.

The first two cases grew out of the same facts. The nuisance complained of was the erection or continuance of a market-house, and it was sought to make the members of the city council individually responsible therefor. This is a very different question from the one before us. In the Arkansas case it was determined that a nuisance in fact existed, and therefore responsibility for its abatement did not attach. The case last cited has no application whatever to the case at bar. The plaintiff was not damaged by the passage of the

resolution, and he does not claim that he was. His claim is that his property has been unlawfully destroyed. If it was not in fact a nuisance, then no ground for its destruction existed, and the plaintiff has been unlawfully deprived of his property. It would be strange indeed if he cannot, under such circumstances, recover a just and adequate compensation. Rounds v. Mansfield, 38 Me. 586; Green v. Underwood, before cited. We are not called on to determine from whom he may recover, nor must we be understood as intimating whether the house was or was not a nuisance. This was a question for the jury under proper instructions by the court. We think the court erred in instructing the jury as above stated, and also erred in refusing to instruct in substance as asked in some of the instructions presented by counsel of plaintiff. Reversed.

A. H. Briggs, for defendant.

Before LOWELL and NELSON, JJ.

LOWELL, J. In this case the defendant was enjoined from infringing a patent, pendente lite, because, though the court had serious doubts of its validity, the defendant had himself sold the patent to the plaintiffs for a considerable sum of money, and it was thought no more than justice that he should refrain from violating his own implied warranty until the final hearing. Afterward proceedings for contempt for a violation of the injunction were prosecuted by the plaintiffs, and after evidence taken and a hearing, the defendant was ordered to pay the fees of the master by a certain day, the costs of the proceedings, and certain profits assessed by the master, by certain other days, and in default of payment to be committed. These last two sums, when paid in, were to be paid out to the plaintiffs. The defendant failed to make the last two payments, and was committed to prison. After he had been in confinement for about two weeks the District judge, with my approval, though I was unable to sit in the case, permitted the defendant to go before the master and prove, if he could, in proceedings like those under the poor-debtor law of Massachusetts, that he had no property which he could apply to the payment of his debts. The plaintiffs were duly notified of the hearing before the master and did not attend, and the master admitted the defendant to take the poor-debtor's oath; and thereupon the court discharged him upon his own recognizance.

The plaintiffs now move that the defendant may be recommitted under the original order. They argue that every order since made in the cause is ultra vires and void, because the first order was a final decree in a criminal case, and could not be varied after the term; and because the defendant could only be discharged from arrest by the pardou of the president.

*19 Fed. Rep. 810.

It would be a sufficient answer to this argument, that if the order was a criminal one, having the consequences contended for, the fine should have been made payable to the United States, and the plaintiffs would have no concern with it; but we will explain why all the orders are, in our opinion, proper. The original order was an interlocutory civil order, for the benefit of the plaintiffs; and the commitment was for failure to pay the money, not for the original contempt. While therefore the imprisonment may not have been strictly and technically within our poor-debtor law (Rev. Stat., § 991), which however we think it was, yet it should, at all events, be governed by similar rules. It was made in this way, because the master found that the contempt was not willful, and I thought that no punishment was necessary. The process of contempt bas two distinct functions, one, criminal, to punish disobedience, the other, civil and remedial, to enforce a decree of the court and indemnify private persons. In patent causes it has been usual to combine the two, and to order punishment if it is thought proper; or indemnity to the plaintiff, if that is all that justice requires; or both. Re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 id. 45; Schillinger v. Gunther, 14 id. 152; Phillips v. Detroit, 3 Ban. & A. 150; Dunks v. Gray, 3 Fed. Rep. 862; Searles v. Worden, 13 id. 716; Matthews v. Spangenberg, 15 id. 813.

We are aware that it was at one time the opinion of Judge Blatchford that a sum of money ordered to be paid to a plaintiff, in a cause of this kind, was a criminal fine, which could only be remitted by a pardon; but we are of opinion that such a fine for the benefit of a private person cannot be remitted by the president, and is a debt of a civil nature; and that Judge Blatchford has so treated it in the latest case which has come before him. His first opinion is stated in Mullee's case, 7 Blatchf. 23, and Fischer v. Hayes, 6 Fed. Rep. 63; but when the latter case came before the Supreme Court, they expressed a significant doubt whether the order to pay money for the use of the plaintiff was not an interlocutory decree in a civil cause (Hayes v. Fischer, 102 U. S. 121), and when the case came back, Judge Blatchford admitted the defendant to bail (Fischer v. Hayes, 7 Fed. Rep. 96), which he could not have done if the judgment were criminal in its nature. The doubt of the Supreme Court might well have been even more strongly expressed. An order upon a defaulting trustee, assignee in bankruptcy, or other person subject to account, to pay money into court, is civil, and may be waived by the party adversely interested, and is a debt to which a bankrupt law, discharging the debt, and an insolvent law, discharging the person, are applicable. See Baker's case, 2 Strange, 1152; Ex parte Parker, 3 Ves. 554, and the decisions hereinafter cited.

In McWilliams' case, 1 Schoales & L. 169, a defendant in contempt for not paying a legacy into the court of chancery in obedience to its order was attached while attending the commissioner to be examined as a bankrupt. His arrest was lawful, if the contempt was a criminal offense. That very learned chancery lawyer, Lord Redesdale, said that it was merely a mode of enforcing a debt; that if it were not so he had no right to make the original order; that the substance and not the form of the proceeding must govern, and its substance was not criminal. The petitioner was discharged. The same point was decided iu the same way in Ex parte Jeyes, 3 Dea. & Ch. 764; and Ex parte | Bury, 3 Mont. D. & D. 309.

The remark of the lord chancellor in Mc Williams' case, that he had no right to make an order of this sort for the benefit of a private person, excepting as a civil remedy, is highly pertinent to this case.

Where a person had been committed to prison for nine months for contempt in not paying money into a

County Court, sitting in bankruptcy, James, L. J., said: "The order, on the face of it, is wrong, for it is an absolute order of commitment for contempt of court for non-payment of money. This is a penal sentence. The court of chancery never made an order in this form." And again: "The order of commitment was such as had never been made in the court of chancery, and was justly characterized by the chief judge as novel and surprising." Ex parte Hooson, L. R., 8 Ch. 231. This distinction is preserved in our Revised Statutes. The courts have power to punish for contempt (§ 725), but all forms and modes of proceeding which are usual in equity may be followed in cases in equity. Section 913.

By virtue of section 725 the District Court may pun ish contempts. Like power is given the District judge when sitting in chambers in bankruptcy, by section 4973; and the cognate but distinct power of enforcing his decrees" by process of contempt, and other 'remedial' process," is recognized by section 4975. See In re Chiles, 22 Wall. 157.

Some of the older cases hold that in contempt in civil cases at common law, the proceedings, after the order of attachment, should be on the crown side of the court; that is in the name of the sovereign. The King v. Sheriff of Middlesex, 3 T. R. 133; Same v. Same, 7 id. 439; Folger v. Hoogland, 5 Johus. 235. This is still the better practice, or at least a good practice, if punishment is asked for. Cartwright's case, 114 Mass. 230; Durant v. Suprs., 1 Woolw. 377; United States ex rel. v. A., T. & S. F. R. Co.,16 Fed. Rep. 853. If this was ever the rule of chancery, it has long since ceased to be so, when the sole purpose of the attachment is to enforce a decree or order, such for instance, as to sign an answer, to make a conveyance, to pay money, etc. All such orders may be waived or condoned by the private person interested in them, and are civil and remedial. Ex parte Hooson, supra; Ex parte Eicke, 1 Glyn. & J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Green, 1 De Gex & J. 410; Buffum's case, 13 N. H. 14; People v. Craft, 7 Paige, 325; Jackson v. Billings, 1 Caines, 252; Anon., 2 P. Wms. 481; Const v. Ebers, 1 Mad. 530; Smith v. Blofield, 2 Ves. & B. 100; Brown v. Andrews, 1 Barb. 227; Ex parte Muirhead, 2 Ch. Div. 22; Lees v. Newton, L. R., 1 C. P. 658; Re Rawlins, 12 Law T. (N. S.) 57.

In patent cases it has been usual to embrace in one proceeding the public and the private remedy-to punish the defendant if found worthy of punishment, and at the same time, or as an alternative, to assess damages and costs for the benefit of the plaintiff, as is seen by the cases cited in the beginning of this opinion. A course analogous to this has been said, obiter, to be proper, by Miller, J., in Re Chiles, 22 Wall. 157, 168. "The exercise of this power has a twofold aspect, namely, first, the proper punishment of the guilty party for his disrespect of the court and its order; and the second, to compel his performance of some act or duty required of him by the court which he refuses to perform," citing Stimpson v. Putnam, 41 Vt. 238, where a defendant was, at the same time, fined $50 for the benefit of the State, and $1,170 and interest and costs for that of the party injured by breach of an injunction. The chancellor in that case said: "This proceeding for contempt is instituted not only to punish the guilty party, but also, and perhaps chiefly, to cause restitution to the party injured." Such we repeat, has been the practice in patent causes. It is used in other cases, as in the familiar one of a witness neglecting to answer a summons. who may be fined for his disobedience, and also be required to testify.

If the proceedings should be criminal in form it would make no difference. A criminal sentence, for the benefit of a private person, is to be treated as civil

to all intents and purposes. It is beyond the king's pardon, and within the equitable jurisdiction of the court at all times. 4 Bl. Com. 285. At this place the author, speaking of disobedience to any rule or order of court, of the sort we are considering, says:

"Indeed the attachment for most part of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of an individual for a private injury, are not released or affected by the general act of pardon."

Where a defendant had been convicted of an offense against the laws prohibiting lotteries, and had been sentenced to a term of imprisonment, which had expired, and to pay costs for the use of the prosecutor, and had not paid them, he was discharged from custody under the lord's act, which was an early insolvent law, like our poor-debtor laws, so far as the discharge of the person is concerned. Rex v. Stokes, Cowp. 136.

Aston, J., after saying that an attachment is an execution for a civil debt, and that the public offense had been purged by the imprisonment, added: "This stage of the cause therefore is merely of a civil nature, and a matter solely between party and party, unconnected with the offense itself;" that it comes within the insolvent debtor's act: "If not, the consequence must be imprisonment for life; for a general pardon would not extend to him; " that is, would not release him from costs due a private person, or from imprisonment on account of them, "as was agreed in Rex v. Stokes, 23 Geo. II." So where a penalty was inflicted by a criminal proceeding, but for the benefit of a private person, and an attachment was issued for want of a sufficient distress, Buller, J., said that the proceeding was like a civil action, and that Ex parte Whitchurch, 1 Atk. 54, where attachment for not performing an award was held to be criminal, was no longer law. It was held therefore that the defendant could not be attached on Sunday. The King v. Myers, 1 T. R. 265. We do not mean to be understood that the 'court has a general discretion to annul orders passed for the benefit of a party to the suit; but that where inability is shown to comply with the order, as for instance, insanity, if the decree requires an act to be done, or poverty, if the decree is for the payment of money, it is according to the course of the court, and of all courts, to discharge the imprisonment, of which the end is proved to be unattainable. See besides the cases already cited, Wall v. Court of Wardens, 1 Bay, 434; Re Sweatman, 1 Cow. 144; Kane v. Haywood, 66 N. C. 1; Galland v. Galland, 44 Cal. 478; Pinckard v. Pinckard, 23 Ga. 286.

Where an attorney of any court fails to pay over money to his client, the court may, after due proceedings, commit him for a contempt. This was formerly considered to be criminal, and is fully explained in 2 Hawk. P. C. 218 et seq. But it has long since been settled that it is of a civil character. Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 id. 652. The lord chief justice in the latter case said that it had "always been held that attachments for nonpayment of money were in the nature of civil pro

cess.

In Reg. v. Thornton, 4 Exch. 820, and The Queen v. Hills, 2 El. & Bl. 175, costs in a criminal case were in question, and the defendant was discharged-in one, because the prosecutor had proved for the amount in bankruptcy, and thus waived the attachment, and in

the other because the defendant had been discharged as an insolvent. In the former of these cases, it was said by Pashley, arguendo, that the courts had exercised the power to discharge a defendant in such a case, on account of poverty, as early as 29 Edw. I.

It was admitted, in argument, in the case before us, that the court would not have been justified in imposing a pecuniary fine upon the defendant if he had proved his poverty before the order was made, but that afterward it was too late. We are of opinion that no such distinction can be maintained, but that the defendant should be released from imprisonment in such a case, though his evidence is produced while the order is in process of enforcement against him. Petition denied.

UNITED STATES SUPREME COURT ABSTRACT.

MUNICIPAL CORPORATION--BONDS-POWER TO ISSUE UNDER CODE OF TENNESSEE-BONA FIDE HOLDER.— Mere political bodies, constituted as counties, are for the purpose of local police and administration, and having the power of levying taxes to defray all public charges created, whether they are or are not formally invested with corporate capacity, have no power or authority to make and utter commercial paper of any kind, unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot be fairly exercised without it. Our views on this subject were distinctly expressed in the case of Police Jury v. Britton, 15 Wall. 566, where, speaking of the power of local political bodies to issue commercial paper, we said: "It seems to us to be a power quite distinct from that of incurring indebtedness for improvements actually authorized and undertaken, the justness and validity of which may always be inquired into. It is a power which ought not to be implied from the mere authority to make such improvements. It is one thing for county or parish trustees to have the power to incur obligations for work actually done in behalf of the county or parish, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeachable paper obligations which may be multiplied to an indefinite extent. If it be once conceded that the trustees or other local representatives of townships, counties and parishes have the implied power to issue coupon bonds, payable at a future day, which may be valid and binding obligations in the hands of innocent purchasers, there will be no end to the frauds that will be perpetrated. We do not mean to be understood that it requires in all cases express authority for such bodies to issue negotiable paper. The power has frequently been implied from other express powers granted. Thus it has been held that the power to borrow money implies the power to issue the ordinary securities for its repayment, whether in the form of notes or bonds payable in the future." Pp. 571, 572. In Mayor v. Ray, 19 Wall. 468, the following remarks were made, which were quoted with approval in the subsequent case of Wall v. County of Monroe, 103 U. S. 78: "Vouchers for money due, certificates of indebtedness for services rendered, or for property furnished for the use of the city, orders or drafts drawn by one city officer upon auother, or any other device of the kind, used for liquidating the amounts legitimately due to public creditors, are of course necessary instruments for carrying on the machinery of munici pal administration, and for anticipating the collection of taxes. But to invest such documents with the character and incidents of commercial paper, so as to render them in the hands of bona fide holders absolute obligations to pay, however irregular or fraudulently is

sued, is an abuse of their true character and purpose." And again: "Every holder of a city order or certificate knows, that to be valid and genuine at all, it must have been issued as a voucher for city indebtedness. It could not be lawfully issued for any other purpose. He must take it therefore subject to the risk that it has been lawfully and properly issued. His claim to be a bona fide holder will always be subject to this qualification. The face of the paper itself is notice to him that its validity depends upon the irregularity of its issue. The officers of the city have no authority to issue it for any illegal or improper purpose, and their acts cannot create an estoppel against the city itself, its tax payers or people. Persons receiving it from them know whether it is issued, and whether they receive it for a proper purpose and a proper consideration. Of course they are affected by the absence of these essential ingredients; and all subsequent holders take cum onere, and are affected by the same defect." The counsel for the defendant in error relies strongly on the cases of Lynde v. County of Winnebago, 16 Wall. 6, decided by this court, and State ex rel. Ross v. Anderson County, 8 Baxter, 249, decided by the Supreme Court of Tennessee, as well as upon various decisions of other State courts, particularly Williamsport v. Commonwealth, 84 Penn. St. 487; Mills v. Gleason, 11 Wis. 470; Bank of Chillicothe v. Chillicothe, 7 Ohio, pt. 2, p. 31. Conceding that views different from those which we have expressed are entertained by some of the State courts, and that they may be controlling in the States where they are thus entertained, we are more especially concerned to know what is held to be the law in Tennessee, as well as what may have been held in the decisions of this court in former cases.

In the case in 8 Baxter, supra, the Supreme Court of Tennessee, it is true, expressed an opinion that authority to issue the bonds was implied from the power given to subscribe for stock, without the aid of the act of 1854, stating, as a general rule, “that a county, like another corporation, having right to create a debt, has also the incidental right to issue the commercial evidence of it, in such forms as may be satisfactory to the parties." But the statement of this genera! proposition may be regarded as only a dictum in the case, since the judgment was fully supported by the express provisions of the act of 1852, ch. 191, if not by the power given to subscribe for stock in a railroad corporation. We are not referred to any other decision of the Supreme Court of Tennessee which comes any nearer to a determination of the question. It is undoubtedly a question of local policy with each State what shall be the extent and character of the powers which its various political and municipal organizations shall possess; and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States, for it is a question that relates to the internal constitution of the body politic of the State. But as all, or nearly all, the States of the Union are subdivided into political districts similar to those of the country from which our laws and institutions are in great part derived, having the same general purposes and powers of local government and administration, we feel authorized,in

the absence of local State statutes or decisions to the contrary, to interpret their general powers in accordauce with the analogy furnished by the common prototypes, varied and modified of course by the changed conditions and circumstances which arise from our peculiar form of government, our social state and physical surroundings. In the case of Wells 7. Supervisors, 102 U. S. 631, we held that the power to issue county bonds did not arise from a power to subscribe for stock in a railroad company, where authority was at the same time given to assess and collect a tax for the payment of the capital stock, and no other authority to

raise the requisite funds was given. Under the Code of Tennessee contracts may of course be made for the erection and repair of public buildings, and the power to issue vouchers for payment is necessarily implied: but no power is given to issue bonds or other commercial paper having the privileges and exemptions accorded to that class of commercial securities. No such power is expressly given, and in our judgment no such power is necessarily implied. Claiborne County v. Brooks. Opinion by Bradley, J.

[Decided April 21, 1884.]

WRIT OF ERROR-LIES ONLY FROM FINAL JUDGMENT -PRESUMPTION--REHEARING--PRACTICE.--In Brockett v. Brockett, 2 How. 238, it was decided that a petition for rehearing, presented in due season and entertained by the court, prevented the original judgment from taking effect as a final judgment, for the purposes of an appeal or writ of error, until the petition was disposed of. The record in this case does not show in express terms when the motion for a rehearing was made, but it was entertained by the court and decided on its merits. The presumption is therefore, in the absence of any thing to the contrary, that it was filed in time to give the court control of the judgment which had been entered, and jurisdiction to enforce any order that might be made. This presumption has not been overcome. The writ of error as issued is on its face for the review of the final judgment, not of the order refusing a rehearing. The judgment is sufficiently described for the purposes of identification. We are of opinion therefore that the judgment as entered is properly before us for consideration. It was expressly ruled in Brockett v. Brockett, which has been followed in many cases since, that if a petition for rehearing is presented in season and entertained by the court, the time limited for an appeal or writ of error does not begin to run until the petition is disposed of. Slaughter-House Cases, 10 Wall. 289; Memphis v. Brown, 94 U. S. 717. The motion for rehearing in this case was not decided until December 21, and the writ of error was sued out and served within sixty days thereafter. This was in time to secure the supersedeas. The motion to vacate is therefore overruled. Texas Pac. R. Co. v. Murphy. Opinion by Waite, C. J. [Decided April 21, 1884.]

MARYLAND COURT OF APPEALS ABSTRACT.*

NEGLIGENCE CONTRIBUTORY INTOXICATION PROXIMATE CAUSE-CONCURRENT-NO RECOVERY.-In an action against a railroad company for its alleged negligence, whereby the plaintiff was injured, he must show the injury he received was occasioned exclusively by the negligence of the defendant. If therefore it be found that the plaintiff has himself been guilty of any negligence or want of ordinary care that has directly contributed to cause the accident, he can have no cause of action against the defendant for the injury received, though the latter may likewise have been guilty of negligence. And this whether the plaintiff was sober or drunk at the time the accident occurred. A.though the plaintiff may have been guilty of negligence, and such negligence may, in fact, have remotely contributed to the production of the accident, yet if the defendant could, in the result, by the exercise of reasonable care and diligence, in view of the circumstances of the case, have avoided the accident, the plaintiff's negligence, being the more remote cause, will not excuse the defendant. If the plaintiff, who was injured by the alleged negligence of the railroad company, was in fact drunk, and failed to *To appear in 61 Maryland Reports,

observe the reasonable precautions to avoid danger to himself while in the act of crossing the defendant's road tracks, or while upon the tracks of the road, though improperly there, and under circumstances to constitute negligence on his part, yet if the defendant's servants in charge of the train, after discovering the perilous situation of the plaintiff, could by the exercise of reasonable care and diligence have avoided the accident, they were bound to do so. If they possessed knowledge of the plaintiff's situation, and failed to make proper and reasonable exertions whereby he could have been saved, the defendant would be liable, though it was by reason of the negligence or drunken condition of the plaintiff that he was found in the situation of danger. In such case their failure to use due care and exertion would constitute negligence, which would form the direct and proximate cause of the injury. If on the other hand, the plaintiff was on the crossing, or at any other place on the road tracks of the defendant, in such condition as not to be able to take care of himself, or paid no heed to the warnings of the approach of the train; or if from negligence, or reckless indifference to the perils of his situation, he failed to observe the precautions necessary to his safety, and his situation was not known to those in charge of the train, and while observing a careful lookout, was not discovered by them in time, by the use of reasonable care and diligence, to save bim from injury, then his own want of care and reckless negligence in putting himself in such place of danger would deprive him of all ground of action against the defendant. And this would be the case though there may have been negligence on the part of the defendant in detaching the engine from the cars and allowing the latter to run down the switch by their own momentum, or by the force of the 'grade. In such case, the negligence would be mutual or concurrent, and that of the plaintiff so directly contributing to the production of the accident as to preclude the right of recovery. Kean v. Baltimore & O. R. Co. Opinion by Alvey, C. J.

WILL-CONSTRUCTION-VESTING OF AN ESTATEVESTED REMAINDER.-In the absence of plain expressions, or an intent plainly inferable from the terms of the will, the earliest time for the vesting of property will be adopted where there is more than one period mentioned in the will. A testator by his will gave his farm in A. A. county to his wife and brother in trust for his wife, A. E. C., to use and enjoy said farm and premises,and receive the income therefrom "until such time as they shall have an offer of one hundred thousand dollars, and shall invest fifty thousand dollars of the proceeds of such sale in good and safe securities under the direction of the court,and pay the interest received from the said fifty thousand dollars so invested unto my wife, A. E. C., during her natural life, and at her death said fifty thousand dollars, or the securities in which the same may be invested, shall go to and become the property and estate of such person or persons as would, by the now existing laws of the State of Maryland, be entitled to take an estate in fee simple in lands by descent from me, and the heirs, executors and administrators of such person or persons, per stirpes, and not per capita." Held, that the remainder in said fifty thousand dollars vested in the persons who were the heirs of the testator at the time of his death. Estates will be held to be vested whenever it can be fairly done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must be so plainly inferable from the terms used as to leave no room for construction. Taylor v. Mosher, 29 Md. 443, adopted in Fairfax v. Brown, 60 Md. 50. Crisp v. Crisp. Opinion by Stone, J.

INSURANCE LAW.

LIFE POLICY-BENEFIT-TO WHOM PAID.-Where a life insurance policy provided that the benefit shall, at the death of the insured, be paid to his wife and children," held, that such benefit should be paid to his wife and children equally, and not one-half to his wife and the other half to his children; and further held, that each child should receive his share of the benefit, although one of such children may have never lived with his father as a part of his father's family, and may have also received a portion of his father's estate prior to his father's death. Hamilton v Pitcher, 53 Mo.334, 336. Sup. Ct., Kans. July, 1883. Felix v. Ancient Order Workmen. Opinion by Valentine, J. (31 Kans. 81.)

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FIRE- OTHER INSURANCE"-CANCELLATION-NOTICE-REPAYMENT-RIGHTS OF MORTGAGEE. (1) A provision in a policy of insurance, "that in case there be any insurance in any other office extending to the property hereby insured, then this company, in case of a loss, will only be liable to pay its ratable proportion of the damage," has relation to the existence in fact of other insurance at the time of the loss, and does not bind the assured to keep up another policy which was on the property. He may consent to or submit to a cancellation of the latter before the loss has occurred without affecting his rights under the former. Hand v. Williamsburgh Ins. Co., 57 N. Y. 41, 47. (2) To effect the cancellation of a policy under a condition that "the insurance may be terminated at the option of the company on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy," there must be proof that the conditions on which the right to terminate the insurance depended were complied with before the loss occurred. (3) A notice dated February 3, 1874, stating that the company, desiring to cancel the policy, will allow the assured until the 4th of February, 1874, to replace the same in some other company, but on and after said date will consider said policy as cancelled and of no further force and effect, is sufficient in form. But proof that the notice was prepared on the day it bears date for immediate service; that it was found among the papers of the assured after his death-the fire. which happened February 12, 1874, having occurred in his life-time--is not sufficient proof of service. (4) A policy of insurance issued to the owner of the premises, in which is written "Loss, if any, payable to F. L. and A. L., mortgagees," is a contract by the insurer with the mortgagees to pay them the insurance money according to the terms of the policy. State Ins. Co. v. Maackens, 9 Vroom, 564. It is also a contract for the full term for which the policy is issued, and the insurer, under such a stipulation as is in question, cannot terminate the contract of insurance by withdrawing it before the expiration of the term specified in the contract, without notice to the mortgagees. (5) Repayment, or a tender of the ratable proportion of the premium, is also a prerequisite to the termination of the policy. Notice without repayment, or an actual tender of payment, is no compliance with the condition unless there be a waiver of repayment. Van Valkenburgh v. Lenox, 51 N. Y. 465; Hathorn v. German Ins. Co., 55 Barb. 28; Peoria Ins. Co. v. Botto, 47 Ill. 516; Wood on Ins., § 106. (6) Repayment or a tender to the assured is compliance with the condition; but a credit by the company of a ratable proportion of the premium on a debt due to it from the assured, not assented to by him, is not sufficient. In Bergson v. Builders' Ins. Co., 38 Cal. 541, the policy had been issued on a credit of part of the premium, and when the notice of cancellation was given the payment that had been made by the assured on account of the premium was not sufficient to cover pro rata the time that had