52 N. H. 361, 13 Am. Rep. 49, holding carrier of chattels is not bound to insure them against their own fault or fault of their owner. Distinguished in Mainwaring v. Bark Delap, 1 Fed. 878, and Goodlander Co. v. Oil Co., 63 Fed. 404, 24 U. S. App. 7, 27 L. R. A. 586, where it appeared article which caused injury had long been used in commerce, and carrier should have known of its properties; Estill v. Railroad Co., 41 Fed. 858, where question presented was as to liability of carrier for injury to package taken in ignorance of its contents; Farmers, etc., Co. v. Railroad Co., 73 Fed. 1005, 1006, where it appeared defendant was negligent in receiving article which caused injury.

Carriers. Proof of injury to a passenger usually establishes a prima facie case of negligence, p. 537.

Cited and applied in Ryan v. Gilmer, 2 Mont. 523, 25 Am. Rep. 748, 749, where party was injured by being thrown from a sleigh; arguendo, in Kennon v. Gilmer, 5 Mont. 272, 5 Pac. 855. See note, 6 Am. St. Rep. 794.

Torts. No one is responsible for injuries resulting from unavoidable accident whilst engaged in a lawful business, p. 537.

Cited and applied in Hunter v. Railroad Co., 85 Fed. 386, 54 U. 8. App. 667, where injury to plaintiff was caused by accident to fellow employee, and without other negligence; Bennett v. Ford, 47 Ind. 271, and Brown v. Collins, 53 N. H. 451, 16 Am. Rep. 384, both holding owner of runaway horses not liable for injuries caused by them; Baltimore, etc., Ry. Co. v. Savington, 71 Md. 599, 18 Atl. 971, where party was injured by stumbling and falling on track just as train passed; Lewis v. Railroad Co., 54 Mich. 66, 52 Am. Rep. 799, 19 N. W. 749, and Steffen v. Railroad Co., 46 Wis. 263, 50 N. W. 348, reaffirm rule; Riley v. New York, etc., R. R., Md., 44 Atl. 996, railroad not liable, because horse took fright at escaping steam from locomotive. See notes, 29 Am. Dec. 150, and 50 Am. Rep. 558.

Negligence.- Party charging negligence as ground of action must prove it, and show that defendant, by act or omission, has violated some duty incumbent upon him, which has caused injury complained of, p. 537.

Cited and relied on in Wabash, etc., Ry. Co. v. Locke, 112 Ind. 412, 2 Am. St. Rep. 199, 14 N. E. 395, where injury appeared to have been caused by accident; Foss v. Baker, 62 N. H. 250, and Cosulich v. Oil Co., 122 N. Y. 128, 19 Am. St. Rep. 480, 25 N. E. 261, both holding, as general rule, there is no presumption of negligence from fact accident happened; Young v. Bransford, 12 Lea, 238, and Railway Co. v. Stewart, 13 Lea, 436, both holding, to sustain action, plaintiff must show want of ordinary care, skill and diligence on part of defendant; Steffen v. Railroad Co., 46 Wis. 262, 50 N. W.

348, reaffirms rule; Riley v. New York, etc., R. R., Md., 44 Atl. 996, railroad not liable because horse frightened by escaping steam; Atkinson v. Goodrich Co., 69 Wis. 15, 31 N. W. 169, holding mere making out of prima facie case by plaintiff, does not cast on defendant burden of showing affirmatively that there was in fact no negligence on his part. See monographic note, 6 Am. St. Rep. 792.

Negligence.

Measure of care against accident which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would observe if his own interests were to be affected and whole risk were his own, p. 538.

Cited and applied in Crandall v. Goodrich Co., 11 Biss. 520, 16 Fed. 79, holding, when injury is result of two concurring causes, party responsible for one is not released from liability because other party is equally culpable; Northwest., etc., Co. v. Insurance Co., 41 Fed. 799, where action of master in changing course of vessel, which resulted in stranding her, was held not to be negligent; The Olympia, 61 Fed. 128, 22 U. S. App. 69, in holding steamer not responsible for injury caused by breaking of her tiller rope; Smith v. Whittier, 95 Cal. 291, 30 Pac. 531, and Central, etc., Ry. Co. v. Ryles, 84 Ga. 430, 11 S. E. 499, both holding negligence is relative to circumstances; Paris Light Co. v. McHam, 2 Tex. App. Civ. 570, where damages were claimed for injuries sustained through falling into street excavation; Berns v. Gaston Coal Co., 27 W. Va. 294, 55 Am. Rep. 306, applying rule in determining amount of care master must exercise to relieve him from responsibility for injury to servant. Cited, arguendo, in Foxworthy v. Hastings, 23 Neb. 777, 37 N. W. 659, for definition of negligence.

15 Wall. 539-547, 21 L. 228, DEITSCH v. WIGGINS.

Appeal and error.- Errors not assigned in manner required by twenty-first rule of Supreme Court, in assignment of errors, will be treated as not made at all, p. 546.

Cited and rule approved in Van Gunden v. Virginia Coal & Iron Co., 52 Fed. 841, 8 U. S. App. 229, but assignment of error considered where rule had not been in existence sufficiently long to be brought to attention of counsel; Southwestern Virginia Imp. Co. v. Frari, 58 Fed. 172, 8 U. S. App. 444, refusing to question judgment where assignment of error was not properly made; Lloyd v. Chapman, 93 Fed. 601, to the same effect.

Attachment.-In suit of trespass de bonis asportatis against sheriff and plaintiff in attachment suit, plea in justification need not allege that such plaintiff was creditor of defendant, nor that attachment was otherwise regular, p. 546.

Cited in McCraw v. Welch, 2 Colo. 288, 291, arguendo.

Denied in Wyatt v. Freeman, 4 Colo. 17, holding sheriff must show that judgment upon which execution issued remains unsatisfied.

Trial. Evidence which, in connection with other proof, tends to show fraudulent sale, should be received, though not itself proving facts constituting complete defense, p. 547.

Trover and conversion.- Where issue in action of trespass de bonis asportatis involved ownership of property, evidence tending to show fraudulent sale should not be rejected, p. 546.

Cited in Stewart v. Brown, 48 Mich. 386, 12 N. W. 501, holding judge may admit evidence as to property conveyed by lost bill of sale.

Pleading. If special plea, averring attachment, is bad, it should be met by demurrer, p. 547.

15 Wall. 547-549, 21 L. 231, HANNEWINKLE v. GEORGETOWN. Injunction to restrain collection of tax on sole ground of illegality, is not maintainable in absence of allegations bringing case under some recognized head of equity jurisdiction, such as mul tiplicity of suits, fraud, cloud on title, etc., p. 548.

Cited and principle applied in State Railroad Tax Cases, 92 U. S. 613, 614, 23 L. 673, 674, holding injunctions improperly granted where no special ground for equitable relief shown; Milwaukee ▼. Koeffler, 116 U. S. 224, 29 L. 614, 6 S. Ct. 374, reviewing cases, denying jurisdiction to enjoin collection of personal tax levied against non-resident; Pittsburgh, etc., Ry. v. Board of Pub. Works, 172 U. S. 37, 39, 19 S. Ct. 92, 93, reviewing cases, and Woodman ▼. Latimer, 2 Fed. 842, where mere illegality of tax relied on for equitable relief; Tilton v. Oregon, etc., Road Co., 3 Sawy. 25, F. C. 14,055, Taylor v. Louisville, etc., R. R., 88 Fed. 357, 60 U. S. App. 183, Catron v. Board of Commissioners, 5 N. Mex. 234, 21 Pac. 68, and Farrington v. Investment Co., 1 N. Dak. 118, 45 N. W. 196, where other allegations than that of illegality required to maintain injunction suit; Second, etc., Bank v. Caldwell, 13 Fed. 433, and Linehan, etc., Transfer Co. v. Pendergrass, 70 Fed. 2, 36 U. S. App. 48, denying injunctions; Schulenberg-Boeckeler Lumber Co. v. Hayward, 20 Fed. 425, Pacific Exp. Co. v. Seibert, 44 Fed. 313, and Preston v. Finley, 72 Fed. 854, dismissing bills to enjoin collection of taxes alleged to be illegal; Powder, etc., Cattle Co. v. Commissioners, 45 Fed. 330, holding plaintiff properly paid, and sued at law for amount of illegal taxes; Youngblood v. Sexton, 32 Mich. 409, 20 Am. Rep. 655, collecting cases, Laird v. Pine County, 72 Minn. 414, 75 N. W. 724, and Wells, Fargo & Co. v. Dayton, 11 Nev. 168, reviewing cases, Williams v. County Court, 26 W. Va. 493, 498, 53 Am. Rep. 95, collecting cases, denying equity jurisdiction

to enjoin collection of illegal tax. Cited in Butler v. Ellerbe, 44 S. C. 259, 22 S. E. 428, denying injunction to restrain illegal application of public funds; Pollock v. Farmers, etc., Trust Co., 157 U. S. 611, 39 L. 830, 15 S. Ct. 701, dissenting opinion, majority sustaining jurisdiction to restrain voluntary payment of illegal tax by corporation; Baltimore, etc., R. R. v. Allen, 17 Fed. 178, 185, dissenting opinion, majority enjoining tax sale. See note, collecting authorities, in 69 Am. Dec. 199; also valuable notes in 23 Am. Rep. 623, and 53 Am. Rep. 111, 112.

Distinguished as to facts in Union Pac. Ry. v. Cheyenne, 113 U. S. 526, 28 L. 1102, 5 S. Ct. 605, holding case fairly within equity jurisdiction; Northern, etc., R. R. v. Carland, 5 Mont. 190, 3 Pac. 157, reviewing cases, where special grounds for jurisdiction alleged. Distinguished in Bank of Kentucky v. Stone, 88 Fed. 390, collecting cases, holding injunction lies where no adequate legal remedy exists, except upon payment under duress; Carlton v. Newman, 77 Me. 410, 1 Atl. 195, where injunction prevented a multiplicity of suits.

Taxation. Remedy for collection of illegal tax is at law by certiorari or action of trespass, p. 548.

Quieting title. Where proceedings for collection of illegal tax are void upon their face, there exists no cloud upon the title which justifies interference of equity, p. 548.

Cited to converse proposition in Ogden City v. Armstrong, 168 U. S. 239, 42 L. 452, 18 S. Ct. 104, sustaining equity jurisdiction where illegality not apparent on face of record; Huntington v. Central, etc., R. R., 2 Sawy. 514, F. C. 6,911, Brown v. French, 80 Fed. 169, Brooks v. Howland, 58 N. H. 100, and Northern, etc., R. R. v. Barnes, 2 N. Dak. 324, 51 N. W. 387, enjoining collection of illegal taxes under laws making tax sales cloud on title; Verdin v. St. Louis, 131 Mo. 114, 33 8. W. 501, dissenting opinion, majority sustaining equity jurisdiction.

Distinguished in Lyon v. Alley, 130 U. S. 186, 32 L. 903, 9 S. Ct. 484, where property purchased bona fide, before sale, without notice of illegal tax.

Miscellaneous.- Cited in Bauman v. Ross, 167 U. S. 568, 42 L 281, 17 S. Ct. 974, ex exemplo.

15 Wall. 549-552, 21 L. 232, RIGGIN v. MAGWIRE.

Bankruptcy.- While uncertainty continued, which could not be removed by calculation, whether contract would ever give rise to actual liability, such contract was not provable under bankrupt act of 1841, pp. 551, 552.

Cited and principle applied in In re Lachemeyer, 14 Fed. Cas. 914, holding claim for alimony not a provable debt; Fernald v.

Johnson, 71 Me. 440, holding contract by partner to assume firm's debts, not provable against his estate in insolvency; Deane v. Caldwell, 127 Mass. 244, holding rent payable in future, not provable against deceased lessee's insolvent estate; Wilder v. Peabody, 37 Minn. 249, 33 N. W. 852, holding rent accruing after lessee's assignment for creditors' benefit, not provable as debt against estate; Paddleford v. State, 57 Miss. 121, holding surety on bond not discharged by bankruptcy from liability subsequently accruing thereon; Manion v. Campbell, 10 Mo. App. 94, holding judgment subsequently satisfied by surety on appeal bond, not provable against appellant in bankruptcy, pending appeal.

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Distinguished in Ex parte Pollard, 2 Low. 415, F. C. 11,252, permitting proof of damages for breach of contract of employment by employee of bankrupt corporation; In re American, etc., Ins. Co., 1 Fed. Cas. 716, permitting proof of insurance policy as a contingent liability," under act of 1867; Fleitas v. Meraux, 47 La. Ann. 237, 16 So. 850, where debt fixed when discharge granted; Heywood v. Shreve, 44 N. J. L. 101, 102, holding payments of annuity, to become due after bankruptcy, capable of present valuation and proof; Fisher v. Tifft, 12 R. I. 58, holding partner's contract to assume firm's debts, provable against him in bankruptcy, as to judgment recovered prior thereto.

Bankruptcy. Recovery by grantee from grantor, of value of unrelinquished dower paid to former owner's widow, was not barred by grantor's discharge in bankruptcy prior to former owner's death, pp. 551, 552.

Cited and principle applied in In re Lachemeyer, 14 Fed. Cas. 914, holding claim for alimony not barred by bankruptcy; Sayre v. Glenn, 87 Ala. 633, 6 So. 46, and Glenn v. Howard, 65 Md. 61, 8 Atl. 900, reviewing cases, both holding liability of stockholder to respond to calls, not barred by discharge in bankruptcy; Paddleford v. State, 57 Miss. 121, holding surety on bond not discharged by bankruptcy from liability accruing thereon; Manion v. Campbell, 10 Mo. App. 94, holding appellant's bankruptcy, pending appeal, no bar to surety's claim for amount of judgment satisfied by him.

Distinguished in Wolf v. Stix, 99 U. 8. 8, 25 L. 313, holding discharge in bankruptcy barred liability on replevin bond, given in suit to set aside fraudulent sale; Irons v. Manufacturers, etc., Bank, 17 Fed. 314, holding liability of stockholder of national bank, in liquidation, barred by bankruptcy pending suit; Carey v. Mayer, 79 Fed. 929, 51 U. S. App. 190, holding stockholder's liability to respond to calls, barred by discharge in bankruptcy, after corporation's insolvency; Heywood v. Shreve, 44 N. J. L. 101, 102, holding bankrupt's liability under prior judgment on annuity bond, discharged by discharge in bankruptcy.