fence or barrier was necessary to prevent their going upon it, but where there was no such fence or barrier, and were killed by the defendants' engine.

The defendants place their defense on the ground that the were not bound to fence against cattle unlawfully on the high way, or unlawfully in the door-yard from which the plaintiff's cattle went upon their railroad; that the law on which the plaintiff relies imposes on them only the common-law duty of the owners of adjoining lands, namely, to fence against cattle rightfully on such lands. The plaintiff denies that the common law is to be applied to this case, it being superseded by the state law in question, the purpose of which law is to protect all cattle, whether trespassers or not, and whether they belong to the owner of the adjoining land or to others. This case is to be decided by that law, of which we have no further judicial knowledge than is given by the terms in which the bill of exceptions states it.

Several of the state courts have decided that statutes requir ing railroad corporations to make fences on the sides of their roads impose on them only the common-law duty, and subject them only to the common-law liability, of adjoining land-owner, according to the position taken in this case by the defendants. A contrary decision was made by the New York court of appeals in Corwin v. New York etc. R. R. Co., 13 N. Y. 42, which sustains the position taken by the plaintiff. So where an act of parliament required a railway company to keep gates across its road, and keep them constantly closed, and horses strayed from their owner's field into the highway, and thence went upon the railway through an open gate which the company was required to keep shut, and were killed by a railway train, it was decided that the company was liable in damages to the owner. Patteson, J., said: "The act directs that the gates shall be kept constantly closed, and I think that imposes an obligation to keep them closed as against everything, whether straying or passing; but at all events the horses were on the road lawfully as against the company." See Fawcett v. York etc. R'y Co., 16 Ad. & El., N. S., 618. And in an earlier case, which was an action against a railway company for killing the plaintiff's sheep by driving an engine over them, Baron Parke said: "If the cattle had escaped through defect of fences which the company should have kept up, the cattle were not wrong-doers, though they had no right to be there; and their damage is a consequent damage from the wrong of the defendants in letting their fences be in

AM. DEG VOL LXXI-47

complete or out of repair, and may be recovered in an action on the case:" Sharrod v. London etc. R'y Co., 4 Exch. 587.

In view of the recent origin of railroads, and of the dangers that attend their operations by means of steam, which was never used on highways as a motive power, we cannot think that the law, by which these defendants were bound to make all needful fences and cattle guards by the sides of their road, was intended to hold them only to the common-law duty and liability of the owners of adjoining lands under the old order of things; but we are of opinion that it was intended to be applied to "the new circumstances and condition of things arising out of the general introduction and use of railroads in the country:" Cor win v. New York etc. R. R. Co., 13 N. Y. 47. That it was designed for the safety of the public, and for the protection of all domestic animals, whether rightfully or wrongfully out of their owner's inclosure. We therefore adopt and apply to this case the doctrine of the cases above cited, and not of those on which the defendants rely. See a collection of the decisions on this subject in Redfield on Railways, c. 20, and Pierce on Railroads, c. 15.

What negligence of the plaintiff would have prevented his recovery of damages is not now a question. The jury have found that no negligence of his caused or contributed to cause his injury, but that it was caused solely by the neglect of the defendants to fence their road, and judgment is to be entered on their verdict.

Since ordering judgment, we have had the satisfaction of finding that a like determination had previously been made by the court of errors of the state of Conneticut: Isbell v. New York etc. R. R. Co., 27 Conn. 393.

Exceptions overruled.

LIABILITY OF RAILROAD COMPANY FOR KILLING CATTLE ON ITS TRACK, and duty as to fencing so as to avoid injury to such cattle: See Vicksburg and Jackson R. R. v. Patton, 66 Am. Dec. 552, and case in note 574; Gorman v. Pacific R. R. Co., 72 Am. Dec. 220, and note. The principal case is cited to the point mentioned in the opinion, that if the negligence of the owner of cattle contributed to the injury by a railroad company he could not recover: Rogers v. Newburyport R. R. Co., 1 Allen, 18; Eames v. Boston and Worcester R. R. Co., 14 Id. 154; Eames v. Salem and Lowell R. R. Co., 98 Mass. 564; Tennes v. Northwestern Mut. L. Ins. Co., 27 Minn. 271.

BRUCE v. BONNEY.

[12 GRAY, 107.]

DISCHARGE OF MORTGAGE ENTERED BY MISTAKE IN MARGIN OF RECORD OF MORTGAGE in the registry of deeds does not prove an actual payment of the mortgage debt, nor cancel nor discharge the mortgage, but is inoperative and void, and may be set aside in equity.

BILL in equity to restrain the defendant from setting up a certain discharge of mortgage which plaintiff proved by parol evidence was by mistake and accident entered in the record of the mortgage in the registry of deeds.

S. H. Phillips, for the plaintiff.

J. H. Robinson, for the defendant.

The court decreed that the words of discharge of the mortgage were written upon the margin of the record-book in the registry of deeds by accident and mistake, and did not prove an actual payment of the mortgage debt, or cancel or discharge the mortgage, but were inoperative and void, and left it in the same force and effect as before; and that the defendant and all persons claiming by, through, or under her should be prohibited and enjoined from setting up, using, or relying upon said words of discharge, either as proof of payment of the debt, or a dis charge of the mortgage; with liberty to either party to apply to the court hereafter.

DISCHARGE OF MORTGAGE, CANCELLATION OF, FOR MISTAKE OR ACCIDENT IN ENTRY: See Childs v. Stoddard, 130 Mass. 112; Smith v. Hitchcock, Id. 573; Wilcox v. Foster, 132 Id. 323, all citing the principal case.

CHAPMAN v. COLE.

[12 GRAY, 141.]

GOLD COIN ISSUED BY PRIVATE INDIVIDUALS IS NOT MONEY, and the same rules of law must be applied thereto which apply to other chattels. ACTION OF TORT FOR CONVERSION OF GOLD COIN ISSUED BY PRIVATE IN. DIVIDUAL, of the value of ten dollars, and current in some parts of the country, and passed away by mistake for a half-dollar, and then by the receiver to a third person for the same amount, is maintainable against the last person after demand made and tender of a half-dollar.

TORT for conversion of gold coin. gold piece of "Moffat's issue" of United States issue, and was passed

The coin was a ten-dollar California coins, and not by mistake for a half-dol

lar to one Furbush, and by him under a similar mistake to defendant, who knew of its value. Demand and tender of a half-dollar was made, but the defendant refused to deliver the coin, though admitting its possession. The remaining facts appear in the opinion.

O. P. Lord, for the plaintiffs.

T. Wright, for the defendant.

By Court, METCALF, J. The property in the gold piece never passed from the plaintiffs to Furbush; the possession thereof having passed from them to him by mistake. The plaintiffs intended to pay him fifty cents in money, and he intended to receive from them that sum in money; and both parties supposed that what they intended to do had been done. By a mistake of both parties, a chattel worth ten dollars, but supposed to be half a dollar in money, was delivered by the plaintiffs and received by Furbush as half a dollar, in payment of that sum. There was a mistake as to the identity of the subject of the agreement, and in such case there is no assent of the parties, and no binding transaction.

As Furbush acquired no property in the gold piece, he could convey none to the defendant. The plaintiffs may therefore well maintain an action in this form against the defendant. The defendant, by receiving the plaintiff's gold piece of Furbush, and claiming it as his own, was guilty of a conversion of it, and the present action might have been maintained without

previous demand on him for it: Stanley v. Gaylord, 1 Cush. 536 [48 Am. Dec. 643.] And if this were not so, yet as a demand was made on him for it, and he refused to deliver it when it was in his power forthwith to do so, there is sufficient evidence of conversion, in the absence of any fact tending to rebut or control that evidence.

If the gold piece had been an eagle of American money, passed by mistake for a half-dollar piece to Furbush, and by him to the defendant, we do not suppose that this action could have been maintained. The plaintiff's remedy would have been against Furbush, in an action of contract for nine dollars and fifty cents, money had and received: See Bretton v. Barnet, Owen, 86. "It would be mischievous," says Chief Justice Parker, "to require of persons who receive money in the way of business, or in payment of debts, to look into the authority of him from whom they received it:" Mason v. Waite, 17 Mass. 563. Even when money is stolen, and is passed by the thief, it

becomes the property of him to whom it is passed for a valuable consideration, and without knowledge that it was stolen: Miller v. Race, 1 Burr. 452. It is otherwise when stolen chattels are sold to an honest buyer. He acquires no title to them, and is liable to the owner in an action of tort: Dame v. Baldwin, 8 Mass. 518; 2 Bla. Com. 449. As this gold piece was not money, the rules of law which apply to other chattels must be applied to it.

Judgment for the plaintiffs.

TORTIOUS CONVERSION OF PROPERTY, WHAT CONSTITUTES, and action when maintainable for: See Ames v. Palmer, 66 Am. Dec. 271, and cases in note 274; and see Heckle v. Lurvey, 101 Mass. 345; Hills v. Snell, 104 Mass. 178; Bearce v. Bowker, 115 Id. 132, where the principal case is cited to this point.

COMMONWEALTH v. MEAD.

[12 GRAY, 167.]

ON TRIAL FOR MANSLAUGHTER, EVIDENCE IS NOT ADMISSIBLE, under plea of killing in self-defense, that deceased was a man of great muscular strength, and practiced in seizing persons by the throat in a peculiar way, which would at once render them helpless, and shortly take away life.

WITNESS MAY BE IMPEACHED ON TRIAL OF INDICTMENT by proof that he testified differently before the grand jury, and the testimony of grand jurors is admissible therefor.

INDICTMENT for manslaughter. The defendant admitted the killing, but set up the plea of self-defense. Defendant offered to prove on the trial that the deceased was a man of great muscular strength, a "garroter," and accustomed and practiced in seizing persons by the throat in a peculiar way, so as to render them helpless, and shortly take away life. The remaining facts appear in the opinion.

R. Choate and H. F. Durant, for the defendant.

G. W. Cooley, for the commonwealth.

By Court, BIGELOW, J. 1. Evidence tending to prove the great muscular vigor and strength of the deceased was clearly incompetent. It did not show provocation, or that the homicidal act was committed in self-defense, or was otherwise excusable or justifiable. The issue was not as to the degree of strength and violence which the deceased was capable of exerting, but how severe and aggravated was the assault which he actually