sons are unlikely to prove capable of forming a correct judgment upon it without such assistance." We do not question the correctness or modify the force of the decision in Sowers v. Dukes, 8 Minn. 23, in which case it did not appear that the witness had any sources or means of knowledge beyond those presumably possessed by the jury. Moreover, the subject of the inquiry in that case was one more within the common Enowledge of men than is that now under consideration. Whether the peculiar qualification of the witness was sufficiently shown as a foundation for receiving his testimony was largely in the discretion of the trial court. Howard v. City of Providence, 6 R. I. 514. No objection appears to have been based upon this ground. The defendant presented several propositions to the court, with the request that the same be given to the jury as the instructions of the court, among which was the following:

"Fourth. If you find that the fact of the fire remaining in the slough as testified, for two nights and one day, and then starting again, could have been foreseen by a man exercising ordinary prudence, under the circumstances, then the defendant is liable; but if it could not have been foreseen by ordinary carefulness, then he is not liable. The defendant is only responsible for the natural and proximate, and not for the remote consequences flowing from his acts. If a subsequent and distinct cause, intervening after that for which the defendant is responsible, has caused the act, has been productive of the injury, and if that was the immediate cause of the injury, and but for that no injury would have occurred, the defendant is not responsible."

To the refusal of the court to give this charge to the jury the defendant excepted. The court was right. Assuming, as we may, that the latter half of the request correctly states the rule of law in such cases, yet the first part of the charge proposed involves the error of leaving out of consideration the setting the fire, as a ground of liability, which might properly be found by the jury to have been an act of negligence, and the proximate cause of the injury. It makes the defendant's liability to depend only upon the determination "as to whether a prudent man could have foreseen that event which might have been regarded by the jury as a mere incident attending the fire; that is, lingering and smouldering in the slough, and its subsequent bursting out afresh. If under the circumstances, the setting of the fire was negligence, which directly produced the injury, the defendant might be held liable, although the staying of the fire in the slough, and its revival, might not have been anticipated by a prudent man. "A man who negligently sets fire on his own land, and keeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his land to the property of another, whether through the air or along the ground, and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated." Higgins v. Dewey, 107 Mass. 497.

The defendant, in the request above given, and in the claim that the verdict is not justified by the evidence, rests upon the ground, as a legal proposition, that if the fire did linger, latent, in the slough from the night of the third to the morning of the fifth of the month, unknown to the defendant, and then burned afresh, he not having reason to anticipate that it would so smoulder in the slough and then revive, the injury following was so remote as not to be the subject of a recovery in this action. We cannot assent to this as a legal proposition. It is unnecessory to consider whether, as a mixed question of law and fact, it might not have been properly so considered by the jury, under instructions from the court, accepting as premises of fact whatever is not put in question by the evidence

in the case. It is to be observed that the original act of the defendant, claimed to have been the wrongful cause of the injury, was continuously in operation from the time of setting the fire until the injury occurred, two days afterward. No other independent responsible agency intervened, nor indeed any other change in natural conditions than an ordinary change in the wind from south or south-east to south-west, with perhaps some increase in its force. Under these circumstances it cannot be said, as a conclusion of law, that the injury was too remote. Atchison T. & S. F. R. Co. v. Stanford, 12 Kans. 354; Higgins v, Dewey, supra; Fent v. Toledo, Peoria & Warsaw Ry. Co., 59 Ill. 349; Kellogg v. Mil. & St. Paul R. Co. (U. S. C. C., per Miller, J.) Cent. L. J., June, 1874, p. 278; Girggs v. Fleckenstein, 14 Minn. 81; 2 Greenl. Ev. 268c.; 1 Bouv. Law Dict. title, "Causa proxima," etc., and cases cited.

Nor can we assume that the defendant was not negligent in leaving the fire before it was actually extinguished, and such may have been the conclusion of the jury. The defendant's testimony shows that when he left the place of the fire at night, "once in a while a spark could be seen, but no more fire."

In Case v. Hobart, 25 Wis. 654, the court considered that there was no evidence of negligence on the part of the defendant, and that he "had every reason to suppose that it (the fire) was entirely extinguished," and sustained a nonsuit in an action for a burning of property seventeen days afterward. The defendant also requested this charge to be made to the jury: "Fifth. I further charge you that if Biebl exercised proper care in putting out the fire on the evening it had been started, and after exercising such care he believed it safe, then he is not liable." The case states that the court gave this instruction with this qualification: "I say if he put the fire out, he is not liable; but if he was negligent in the first instance in the setting and care of the fire, no amount of care or diligence afterward exercised will exonerate him from liability."

The defendant excepted to the qualification and to the instruction so qualified. The charge requested was erroneous for the reasons before given with reference to another part of the case; it ignores a negligent setting of the fire as a possible proximate cause of the injury; and although the defendant may have been chargeable with such negligence, it makes his subsequent efforts to avert injury, and his own belief of his success at the time a defense, as a matter of law, to an action for the first negligence. The charge given, with the qualification, can ouly mean this: If the defendant exercised proper care in extinguishing the fire on the evening of the day it had been started, and did actually extinguish it, he is not liable; but if he was negligent in the first instance, in the setting and care of the fire, no amount of care or diligence afterward exercised will exonerate him from liability. We think the instruction, as it must have been understood by the jury, was right. Taking the whole charge together (only a portion of which is here given), it cannot be interpreted as indicating to the jury that defendant was chargeable except for such injuries as resulted proximately as a consequence of his negligence.

The court further gave the jury this instruction, to which defendant excepted: "In this case, if you find that the fire set by the defendant burned the plaintiff's hay and rake, there is but one question for you, gentlemen, to determine, and that is, was he negligent in setting and watching the fire? If he was, you will find for the plaintiff; if he was not, you will return a verdict of no cause of action. The question of inevitable accident can hardly enter into your consideration in determining this case." The objection to this part of the charge which defendant makes in this court, is that the jury were confined to one question, viz.: as to

whether or not the defendant was negligent in the first instance; and that they were instructed to ignore the consideration of the extraordinary circumstances of the fire remaining in the ground and afterward reviving and doing this damage. We understand defend ant's point to be this: that the jury were instructed, in substance, that if the defendant negligently set and watched the fire, the fact that it lingered so long in the slough and then revived, doing the injury complained of, was not to be regarded as an "inevitable accident," discharging defendant from liability on account of his previous negligence; and this is perhaps the most obvious meaning to be placed upon the somewhat obscure language of the charge.

Upon the facts presented in this case we do not deem such instruction erroneous, for reasons already adverted to, viz.: That that "circumstance was not a cause of the injury, independent of defendant's prior negligence, if indeed it can be said to have been a cause at all, or more than a mere incident attending the progress of the destructive agency which defendant had set in operation. The case illustrates, under different circumstances, the same legal principle as that involved in Griggs v. Fleckenstein, 14 Minn. 81, where defendant's team, by reason of his negligence, ran away in the street of a town. The populace attempting by shouts and gestures to stop the team, it collided with the team of another person, which, in turn running away, struck plaintiff's horse, doing damage, for which defendant was held liable.

There is nothing in the charge to lead the jury to suppose they were not to consider, as bearing upon the question whether defendant was negligent in respect to the control of the fire, the fact that he did so far subdue it that it became almost or quite latent. The claim of defendant, that upon the evidence presented in the case the plaintiff cannot, as a matter of law, recover, cannot be sustained.

The order refusing a new trial is affirmed.

UNITED STATES CIRCUIT COURT ABSTRACT.*

EVIDENCE -IN ACTION ON RECOGNIZANCE - RECORDS OF COURT CONCLUSIVE.— -The proceedings with reference to a recognizance and its forfeiture are proceedings of the court, and constitute part of the records of the court; and the record thereof imports such absolute verity that no one against whom it is producible can contradict it. Accordingly in a scire facias, upon a recognizance, testimony to contradict facts stated in the record of the forfeiture of the recognizance, held incompetent. The King v. Carlile, 2 B. & Ad. 362; Duchess of Kingston's case, 11 Hary St. W. 243; S. C., 1 Sm. Lead. Cas.; 1 Coke Inst. 260; Stark. Ev. 317; Calvin v. State, 12 Ohio St. 60. U. S. Circ. Ct., S. D. Ohio, June 6, 1881. United States v. Ambrose. Opinion by Matthews, Circ. Justice.

PATENT IN ACTION FOR INFRINGEMENT LICENSEE NOT ESTOPPED TO DENY VALIDITY OF -- DEFENSE.In a suit in equity for an account of profits and damages, and for an injunction for infringement of a patent, a licensee is not estopped from denying the validity of the patent. In equity a defendant has the right to set up as many defenses as he may have, providing they are not inconsistent. Sharp v. Carlisle, 5 Dana, 488; Wood v. Wood, 2 Paige, 108; Hopper v. Hopper, 11 id. 46; Daniell's Ch. Pr. 727. In such suit the respondent may answer that he was acting under a license, and unless the recitals or covenants of the instrument forbid, he may also deny the validity of the

*Appearing in 7 Federal Reporter.

patent; such defenses are not inconsistent. See Curtis on Pat., § 215. Bump on Patent Law, 140, appears to hold a different doctrine. See, also, Bardsall v. Peuga, 5 Blatchf. 251; Magic Rifle Co. v. Elm City, 13 id. 151; Lawes v. Purser, 38 Eng. L. & E. 48; Crossby v. Dixon, 10 H. of L. Cas. 293; Eureka Co. v. Bailey Co., 11 Wall. 488; Rubber Co v. Goodyear, 9 Wall. 788; Brooks v. Staley, 3 McLean, 523. U. S. Circ. Ct., S. D. Ohio, May 26, 1881. National Manufacturing Co. v. Meyers. Opinion by Swing, J.; Matthews, J., U. S. Sup. Ct., concurred.

POWER OF ATTORNEY GIVEN AS SECURITY NOT REVOCABLE. A power of attorney, given to secure the performance of an agreement, cannot be revoked by the donor without a satisfaction of the contract. In this case, in the prosecution of a suit the plaintiff's attorneys acquired a lien upon a claim, under an agreement with their client, and caused him to secure the same by the execution of a power of attorney, delegating the control of the litigation to his son. Held, that such power could not be revoked, and new attorneys employed by the donor, until he had satisfied his part of the agreement. Bromley v. Holland, 7 Ves. Jr. 3; Walsh v. Whitcomb, 2 Esp. 568; Gerrish v. Sweetser, 4 Pick. 374; Halloran v. Whitcomb, 43 Vt. 306. U. S. Circ. Ct., Vermont, June 1, 1881. Stewart v. Hilton. Opinion by Wheeler, D. J.

PRACTICE-EQUITABLE ACTION-DISCOVERY-WHEN

OFFICER OF CORPORATION CANNOT BE MADE PARTY

TO COMPEL DISCOVERY. An officer of a corporation cannot be made a party defendant to a cross-bill, for the purpose of discovery, where he did not derive the desired information in his official capacity. In such case the discovery cannot be had, although the officer derived his information from a participation in the creation of the corporation. It is proper for a defendant in a bill in equity, who files a cross-bill, to make defendants of parties not parties to the original bill, where they are necessary to complete relief. Brandon Manuf. Co. v. Prime, 14 Blatchf. 371. And the practice is established of joining, for purposes of discovery, an officer of a defendant corporation, where plaintiff is entitled to discovery in a suit against a corporation. The reason of the rule, as stated by Lord Chancellor Talbot in the leading case of Wyck v. Meal, 3 P.Wms. 310, which seems to have finally established the practice, is that as "the plaintiff ought to have discovery," and as" the defendants can answer no otherwise than under their common seal, and though they answer never so falsely, still there is no remedy against them for perjury;" therefore, "it has been a usual thing to make the secretary, book-keeper, or any other officers of a company defendants." Later cases have added but little either to the extent of the rule or the exposition of the reason upon which it is based. It is conceded to be an exception to the general rule that a mere witness cannot be joined for purposes of discovery. And the rule has been extended to members of a corporation who are not officers. Fenton v. Hughes, 7 Ves. 289; Moodalay v. Morton, 1 Bro. Ch. 469; Dummer v. Chippenham, 14 Ves. 245; Many v. Beekman Iron Co., 9 Paige, 188; United States v. Wagner, L. R., 2 Ch. App. 582; Glasscott v. Mining Co., 11 Sim. 305. No case has gone so far as to join an officer of a corporation for the purpose of a discovery of matters which were not within his knowledge as such officer, or learned by him while in the service, or as a member of the corporation. U. S. Circ. Ct., S. D. New York, February 10, 1881. McComb v. Chicago, St. Louis and New Orleans Railway Co. Opinion by Choate, D. J.

BILL OF REVIEW. A bill of review can only be brought for error in law appearing in the body of the

decree or record, without further examination of matters of fact, or some new matter of fact discovered, which was not known, and could not possibly have been used, at the time of the decree. Whiting v. Bank of United States, 13 Pet. 6; Kennedy v. Georgia State Bank, 8 How. 586; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99. See, also, Dexter v. Arnold, 5 Mason, 315; Thomas v. Harvie, 10 Wheat. 146; Woods v. Mann, 2 Sumn. 316; Hollingsworth v. McDonald, 2 Harr. & J. 230; Jenkins v. Eldridge, 3 Story, 299; Massie v. Graham, 3 McLean, 41; Hughes v. Jones, 2 Md. Ch. 289; Lansing v. Albany Ins. Co., Hopkins, 102; Barker v. Barker, 2 Woods, 241; Burts v. Heard, 11 Heisk. 472; Cole v. Miller, 32 Miss. 89; Daniel's Ch. Pl., § 1578; Livingstone v. Noe, 1 Lea, 55. U. S. Circ. Ct., E. D. Missouri, April, 1881. Irwin v. Meyrose. Opinion by Treat, D. J.

RECEIVER CERTIFICATE OF, USUALLY NOT NEGO

-

EQUITIES. Receiver's certificates are not ordinarily negotiable. Where a receiver of a railroad company, acting under a special order of the court, issued a certificate payable to a party named therein, with interest out of the earnings of a division of the railroad, and placed it in the hands of the payee for negotiation and sale, and the same subsequently came into the hands of the petitioner, who purchased it of a third party for forty per cent of its par value, and with notice of the order under which it was issued, held, that he took it subject to all equities between the receiver and the payee, and that as it appeared that the latter had never accounted to the receiver for the certificate or its proceeds, the petitioner was not entitled to payment. The negotiation and sale of certificates is a trust personal to the receiver; he cannot delegate it to another and relieve himself from responsibility. The mere fact that it is made payable to the order of the payee is immaterial, unless the paper is negotiable in its nature. Railroad Co. v. Howard, 7 Wall. 415; Newbold v. P. & S. R. Co., 5 Bradw. 367, 375. It is said by the court in Baird v. Underwood, 74 Ill. 176: "It enters into the definition of a promissory note that the money must be payable at all events, not depending upon any contingency either in regard to the event or the fund out of which payment is to be made, or to the parties by or to whom payment is to be made." See, also, Dawkes v. Lorane, 3 Wil. 267. These characteristics were conspicuously absent in the certificate in question It lacked the most essential elements of commercial paper, and it is believed the courts of this country have, without exception, held certificates of this nature to be non-negotiable. Stanton v. A. & C. R. Co., 2 Woods, 506; Turner v. P. & S. R. Co., 95 Ill. 134; Bank of Montreal v. C. & C. R. Co., 48 Iowa, 518. See, also, Story on Agency, § 14; Commercial Bank v. Norton, 1 Hill, 505. U. S. Circ. Ct., E. D. Michigan, June 6, 1881. Union Trust Co. of New York v. Chicago & Lake Huron Railroad Co. Opinion by Brown, D. J.

CONFLICT OF LAW- PENDENCY OF SUIT FOR SAME CAUSE OF ACTION IN FEDERAL AND STATE COURTS. The pendency of a suit in equity in a State court cannot be pleaded in abatement or bar of a like suit involving the same subject-matter between the same parties in a Federal court. See White v. Whitman, 1Curt. 494; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; Wadleigh v. Veazie, 3 Sumn. 165; Lyman v. Brown, 2 Curt. 559; Loring v. Marsh, 2 Cliff. 322; Stanton v. Embrey, 93 U. S. 554; Gordon v. Gilfoil, 99 id. 178; Insurance Co. v. Brunes' Assignee, 96 id. 593; Foster v. Vassall, 3 Atk. 587; Lord Dillon v. Alvares, 4 Ves. 357; Hatch v. Spofford, 22 Conn. 485; Brooks v. Mills Co., 4 Dill. 524. U. S. Circ. Ct., Rhode Island, April 27, 1881. Latham v. Chaffee. Opinion by Colt, D. J.

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1881.

BILL OF LADING OWNER OF GOODS. As between the owner and shipper of the goods and the common carrier, the bill of lading fixes and determines the duty of the latter as to the person to whom it is (at the time) the pleasure of the former that the goods shall be delivered; but there is nothing final or irrevocable in its nature. The owner of the goods may change his purpose, at any rate, before the delivery of the goods themselves, or of the bill of lading to the party named in it, and may order the delivery to be to some other person. In this case W. & W., bankers at Irving, Kansas, were the bona fide holders of the two drafts drawn against three shipments of grain shipped to one H., at Atchison, Kansas, by the Central Branch Union Pacific railroad, with the bills of lading assigned, to secure the payment of the drafts. Held, that they had a lien upon the grain in the hands of the consignee, and can recover from him the proceeds of the grain to the extent of such drafts, even though the consignor be indebted to the consignee on general account. Cases cited: Bank of Rochester v. Jones, 4 N. Y. 497; Conard v. Atlantic Ins. Co., 1 Pet. 444; Mitchell v. Ede, 11 Ad. & E. 888; Lee v. Bowen, 5 Biss. 154; Savings Bank v. A. T. & S. F. R. Co., 20 Kans. 519; Emery's Sons v. Bank, 25 Ohio St. 360; Benj. on Sales, § 381. Halsey v. Warden. Opinion by Horton, C. J.

-CONTRACT IN, REVOCABLE BY

---

--

MALICIOUS PROSECUTION ADVICE OF COUNSEL, WHEN NOT DEFENSE. In an action to recover for a malicious prosecution and false imprisonment, the defense was that the defendant acted upon the advice of counsel. It did not appear from the whole testimony that defendant had stated all the facts to his counsel. Held, that a verdict for plaintiff would not be set aside as against the evidence. It was said in Dolbe v. Norton, 22 Kans. 105, that "where a person acting in good faith, and under the advice of counsel learned in the law, mistakenly institutes a prosecution against another person who is not liable, and the prosecution fails, the prosecutor does not thereby render himself liable to an action for malicious prosecution, or to any other action." Underlying this rule is the further principle that such advice, to relieve liability, must have been given upon a full and fair statement of the case. Where the prosecutor does not state the whole facts of his case to his counsel he is not acting in good faith, and the advice is no protection to him. Clark v. Baldwin. Opinion by Horton, C. J.

MORTGAGE

VALID

BY EQUITABLE OWNER OF LAND NOTICE. When a party having a bond for a deed of real estate, or a land contract for the conveyance from the legal owner upon the payment of certain installments, is in possession of the land, and has paid interest on the purchase-money, he is the equitable owner thereof, and has such an interest therein that he can use it to secure a loan, and for that purpose may incumber such interest by an ordinary real estate mortgage. E. held such a land contract, and executed a mortgage on the land to secure certain sums of money, then sold the land to one L., and assigned in writing to him the contract with the legal owner. Out of the money paid by L. to E. the purchase-money was paid, and L., as assignee of E.'s contract, obtained a deed of conveyance from the legal owner. The mortgage executed by E. was duly filed for record prior to the sale to L. Held, that the mortgage was a valid incumbrance upon the land, and L. purchased the same subject to the mortgage lien. See Jones v. Lapham, 15 Kaus. 540. Laughlin v. Braley. Opinion by Horton, C. J.

To appear in 25 Kansas Reports.

DEBT. When a debtor has been discharged by a composition, under the Federal Bankrupt Law, and makes a new promise to a creditor to pay the remainder of the debt due that creditor, giving his note for the amount, the original debt is a sufficient consideration for that. promise and the note is enforceable against the debtor. The entire composition proceeding is regulated by law, is under the control of the court, and has no validity unless confirmed by the court. The law declares its effect when so confirmed. It is a part of bankruptcy proceedings; is one of the modes provided in such proceedings for distributing the assets of the bankrupt, and working his discharge. It has, indeed, one element of assent by the creditor, as he has a right to vote to accept or reject the debtor's offer of composition; but he cannot act for himself alone, and accept or reject the offer, so far as his debt is concerned and as his separate interests may require, independent of the other creditors. The offer is not made to him alone. The power to accept or reject is not left to each creditor as to his one demand. It is lodged by the law in the body of creditors, the requisite number of whom voting to accept or reject, all the others are bound. The composition thus effected differs wholly in nature and effect from a voluntary composition deed which binds only those who execute it, and for the reason that a release or discharge of the debt by such a composition is not the voluntary act of the creditor, but takes effect by act or operation of law. A surety for the debt is not thereby discharged. Ex parte Jacobs, L. R., 10 Ch. App. 211; McGrath v. Gray, L. R., 9 C. P. 216; Ellis v. Wilmot, L. R., 10 Ex. 10; Simpson v. Henning, L. R., 10 Q. B. 406; Guild v. Butler, 122 Mass. 498. See, alse, In re Merriam's Estate, 44 Conn. 587. Higgins v. Dale. Opinion by Gilfillan, C. J.

WHEN

MASTER AND SERVANT NEGLIGENCE SERVANT TAKES RISKS OF EMPLOYMENT. - An employer has no right to subject a servant to an unnecessary peril without his consent; but it is well settled in the courts of this country and England that if a servant chooses to enter into an employment involving dangers of personal injury which the master might have avoided, he takes upon himself the risk of all the hazards incident to the employment, the existence and nature of which were known to him when he entered the service, and which he had no reason to expect would be obviated or removed. If a servant accepts service with a knowledge of the position of structures from which he has occasion to be apprehensive of injury, he cannot require the master to make changes so as to obviate the danger, or hold him liable for damages in case of injury. Fleming v. St. P. & D. R. Co., 6 N. W. Rep. 448; Gibson v. Erie R. Co., 63 N. Y. 449; Dillon v. U. P. R. Co., 3 Dill. 320; Owen v. N. Y., etc., R. Co., 1 Lans. 108; Hayden v. Southville Manuf. Co., 29 Conn. 548; Illinois Cent. R. Co. v. Welch, 52 Ill. 183; Devitt v. Pacific R. Co., 50 Mo. 302; Baylor v. Delaware, etc., R. Co., 40 N. J. L. 23; Holmes v. Clarke, 7 Hurls. & N. 937; Woodley v. Metropolitan Dist. R. Co., 2 Ex. Div. 384. Accordingly, where an employee of a railroad company was fatally injured by a dangerous awning which he was familiar with and had cautioned other employees to be on their guard against it, held, that no recovery could be had against the company for such injury. Clark v. St. Paul & Sioux City Railway Co. Opinion by Clark, J.

NEGLIGENCE- DEFECTIVE RAILWAY CROSSING ON HIGHWAY-HIGHWAY NOT LEGAL ONE-TRAVELLING ON UNSAFE HIGHWAY NOT NEGLIGENCE PER SE. - In an action against a railroad company for injury to

plaintiff's horse from a defective highway crossing, which occurred while plaintiff's son was driving on the highway over such crossing, held, (1) That it was no error to permit plaintiff to show that after the accident defendant repaired the crossing by replacing a missing plank. See Westchester Railroad Co. v. McElwee, 67 Penn. St. 311; O'Teasy v. Mankato, 21 Minn. 65; Phelps v. Mankato, 23 Vt. 276. (2) Held, also, that defendant could not set up that the highway where the accident occurred was not a legal highway. By assuming to maintain a crossing at that point defendant was bound to exercise precisely the same precautions to keep it in repair as if it was in fact a legal highway. Webb v. Portland & Kennebec R. Co., 57 Me. 117. (3) It was claimed that plaintiff's son had knowledge of the defect in the crossing before he attempted to drive over it, and was therefore negligent in doing so. Held, that the fact that a person attempts to travel on a highway after he has notice that it is unsafe or out of repair is not necessarily negligence. Whether it is so depends upon circumstances (Johnson v. Belden, 2 Lans, 433), and is a question for the jury. Clayords v. Dithrick, 12 Q. B. 439; Humphreys v. Armstrong Co., 56 Penn. St. 204. Previous knowledge of the unsafe condition of this crossing was a circumstance to go to the jury on the question of contributory negligence; but it should be submitted to them together with all the other facts of the case for them to determine whether, with such knowledge, plaintiff's servant exercised ordinary care in attempting to drive over this defective crossing, and whether in proceeding he used ordinary care to avoid injury. If the risk was such that men of ordinary prudence, having knowledge of the defect, would not under the circumstances have attempted to pass over it an their own risk, then plaintiff's servant had no right to attempt to pass it at the risk of the defendant. But if such persons would have believed it reasonably safe to attempt the passage in the manner adopted by plaintiff's servant in this case, plaintiff could recover, notwithstanding such previous knowledge of the condition of the crossing. Thomas v. Western Un. Tel. Co., 100 Mass. 156; Mahoney v. Met. R. Co., 104 id. 73; Lyman v. Amherst, 107 id. 339; Sher. & Redf. on Neg., § 414. Kelly v. Southern Minnesota Railway Co. Opinion by Mitchell, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-TAX ON INCOME OF CORPORATION BY STATE VALID.- The State of Pennsylvania imposes upon corporations incorporated or doing business in the State an annual tax of three per cent of its net earnings or income during the year. Held, that such tax is not invalid under the Federal Constitution and laws as to income derived from United States securities. There is an obvious difference between a direct tax on the property of a corporation and a franchise tax, measured by its earnings, which, proximately at least, represent either the value of the franchise granted, or the extent of its exercise. The distinction has been repeatedly recognized by both Federal and State courts. In Society for Savings v. Coite, 6 Wall. 594, corporations of the class to which the plaintiff in error in that case belonged, were required to pay annually a sum equal to three-fourths of one per cent on the total amount of the deposits; and it was held that this was a valid franchise tax and not a tax on property, and that the society had no right to claim exemption therefrom to the extent of its deposits invested in non-taxable securities of the United States. Under a similar law in Massachusetts it was held that a savings institution, having a portion of its deposits invested in Federal securities, was liable to a tax on account of such deposits as fully as on account

of other deposits, notwithstanding the securities were declared by the act of Congress, under which they were issued, to be exempt from taxation under State authority. Provident Institution v. Massachusetts, 6 Wall. 611. A distinction somewhat similar in principle is made in the cases of State Freight Tax and State Tax on Railway Gross Receipts, 15 Wall. 232 and 284, in the latter of which it is held that a statute imposing a tax on the gross receipts of railway companies is not repugnant to the Constitution of the United States, though the receipts are made up in part of the freights received from inter-state transportation of merchandise. Philadelphia Contributionship for Insurance v. Commonwealth of Pennsylvania. Opinion by Sterrett, J. (Decided June 13, 1881.)

NEGLIGENCE IF NO EVIDENCE OF, CASE MUST BE TAKEN FROM JURY — MASTER AND SERVANT. — In an action for death by negligence it is not error for a judge to refuse to instruct the jury, if there is sufficient evidence of the negligence of the defendant to submit to the jury. On the other hand, it is equally clear that if there is no evidence, or at most a scintilla, it is the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous; it is sufficient to refer to a few of the later ones. Howard Express Co. v. Wile, 14 P. F. S. 201; Hoag v. Railroad Co., 4 Norris, 293; Penn. Railroad Co. v. Fries, 6 id. 234; and Mansfield Coal and Coke Co. v. M'Enery, 8 Week. Not. 81. In this case an employee of defendant was killed while coupling cars. Held, that an imperfection in an engine or car which he was coupling, or roughness in the railroad bed at that place, it not being shown that either contributed to the accident, was not evidence of negligence for the jury. Philadelphia & Reading Railroad Co. v. Schertle. Opinion by Paxson, J. (Decided May 2, 1881.)

SPECIFC PERFORMANCE VENDOR WHOSE TITLE IS UNMARKETABLE CANNOT COMPEL-GROUND RENT ON

LANDS INCUMBERED WITH TAXES. — In an action for specific performance it appeared that the defendant purchased of the plaintiffs, at public auction, a groundrent of $100 per year for the price or sum of $1,600. The defendant's conveyancer procured searches against the premises out of which the rent issued, and found the same incumbered by municipal claims and taxes to the extent of $1,684,79, and for this reason refused to take title to the ground-rent. The rent itself was not incumbered. The assessed value of the premises was $3,300. Held, that specific performance would not be decreed. A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee when he is able to show any circumstances which would make it unconscionable to do so. We need not review the decisions upon this subject. It is sufficient to refer to Colwell v. Hamilton, 10 Watts, 413; Bumberger v. Clippinger, 5 W. & S. 311; Dalzell v. Crawford, 1 Piers. Eq. Cas. 37; Nicol v. Carr, 11 Casey, 381; Speakmau v. Forepaugh, 8 Wright, 363; Swain v. Fidelity Ins. Co., 4 P. F. S. 455; Doebler's Appeal, 14 id. 9; Swayne v. Lyon, 17 id. 436. A ground-rent is an estate carved out of the land. The owner of the one has an estate in the rent; the other an estate in the land. Both are real estate, and subject alike to be incumbered by mortgage and judgment. While we have these two separate estates, they are at the same time inseparably connected. The rent issues out of the land, and the owner of the latter holds his estate súbject to the rent. It needs but this brief statement of the nature of a ground-rent to show that the title thereto is indissolubly connected with the title of the land itself. To make the title to such land marketable, the title to the land out of which it is reserved must be marketable,

otherwise we would have a rent reserved out of nothing. These liens for taxes affect the title to the land, and whatever impairs the title to the land necessarily impairs the title to a rent issuing out of the land. If the title to the land fails, the title to the rent falls with it. Mitchell v. Steinmetz. Opinion by Paxon, J. (Decided March 21, 1881.)

VERMONT SUPREME COURT ABSTRACT.*

ADMINISTRATOR CREDIT OF ESTATE. An administrator has no legal power or right to borrow money, and pledge the property of the estate in payment. In Luscomb v. Ballard, 5 Gray, 405, the court say: "The law is, that by a promise, the consideration of which arises after the death of the intestate, the estate cannot be charged, but that the administrator is personally liable in his contract. And whether the amount is to be repaid, from the estate, is a question for the court of probate in the settlement of his account." See, also, Sumner v. Williams, 8 Mass. 162; Taylor v. Mygatt, 26 Conn. 184. Merchants' National Bank of St. Johnsbury v. Weeks. Opinion by Redfield, J.

CANNOT BORROW MONEY ON

NEGLIGENCE -IN KEEPING UNSAFE HIGHWAYBURDEN OF PROOF.—(1) In an action against a town for injury caused to a traveller by a defect in the highway, held, that the insufficiency of the highway must be the sole operative cause of the injury. If it is the joint product of the plaintiff's lack of prudence, and the town's negligence, there can be no recovery. The burden of proof is upon the plaintiff to show that he contributed nothing toward producing the accident; that the highway was insufficient; and that his conduct was prudent. (2) In such an action it appeared that a plaintiff, who was a married woman, was, as a result of the injury, prematurely delivered of twin living children. Held, that any physical or mental suffering attending the miscarriage was a proper subject of compensation. But the rule goes no further. Any injured "feelings" following the miscarriage, not part of the pain naturally attending it, are too remote to be considered an element of damage. Town of Danville. Opinion by Ross, J.

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Bovee v.

WILL- -POWER TO TWO EXECUTORS TO SELL REAL ESTATE CANNOT BE EXECUTED BY ONE. A will contained the following: "I give and bequeath to my wife * * * all my personal property, and also all my real property, the use of it during her natural life; provided, nevertheless, if the personal property and the use of the real, be not sufficient for her and the support of my mother during their natural lives, in such case I order my executors to sell so much of the land as may be necessary for their support while in this life, and after both are deceased, what may be left of my real property I give and bequeath to the American Foreign Missionary Society;" and the wife and testator's brother were appointed executors. After the decease of her co-executor the executrix deeded the real estate to the orator; the consideration of which deed was, mainly, past and future support. Held, that the deed so executed by one of two executors was void; and that such a power, when so given to two or more, does not survive, and cannot be executed by the survivor, in his own behalf or interest. In Stevens v. Winship, 1 Pick. 318, the testator devised a messuage to his wife for life, and the reversion to his brothers and sisters, and gave his wife full power, "in case she shall stand in need, to sell all his estate real and persoual for her comfortable support; and appointed her executrix. It was held that she took a life estate, with power to sell depending upon a contingency; and those claiming under a sale by her must show that the *To appear in 53 Verinont Reports.