sented by the defendants in substance and effect as follows:

(1) That the court instruct the jury that upon the whole evidence they must find their verdict for the defendants.

(2) That if the injury to the plaintiff was caused solely by the negligence or misconduct of the employees of the contractor in doing the work, then the defendants are not liable.

Both of those requests were refused, and the rulings of the court in that behalf, together with the refusal of the court at the close of the plaintiff's case to direct a verdict for the defendants, present the principal questions in the case for the decision of the court. Other prayers for instruction, involving the same principles, were also presented by the defendants, which were also refused, and the rulings are embraced in the exceptions.

in diameter and was elevated 6 or 7 feet | above the surface of the ground, and at the time of the accident to the plaintiff it stood near the intersection of Eighth street with the street in which the plaintiff was passing; that the plaintiff, with one other person, was riding in a carriage drawn by one horse, and having turned from Ninth street into the street where the accident occurred, the plaintiff, with the other person in the carriage, was driving along down the narrow passageway, on the east side of the street, when the persons in charge of the engine suddenly, and without giving any notice or 572*] warning of their *intention, set the engine and drill in operation, causing a loud noise which frightened the plaintiff's horse and caused him to shy and turn upon the sidewalk, overturning the carriage and injuring the plaintiff. Due care, it is alleged, was used by the plaintiff, as when he left the intersecting street Cities and towns are usually required by statand passed into the street where the accident ute to keep their streets and highways safe and occurred the engine and drill were not in opera- convenient for travelers, and if they neglect so tion; nor was there any barricade or signal of to do, in a case where that duty is imposed by any kind to indicate that there was any danger law, and suffer the same to get out of repair or that any special precaution was necessary and defective, and any person as a traveler reexcept what was suggested by the embank-ceives injury through such defect either to his ment and the narrowness of the street; and the evidence also tended to prove that neither the engine nor the drill was seen by the plaintiff or by the person in the carriage with him until the horse of the plaintiff was within ten feet of the place where the engine and drill were situated, and that it was at that moment that they were put in operation by those in charge of the work, and that one of the workmen ran into the street and threw up his arms as if to stop the horse, which had the effect to make him still more unmanageable.

Having introduced evidence tending to prove the foregoing facts, the plaintiff rested, and the defendants moved the court to direct the jury to return a verdict in their favor upon the ground that the negligence proved, if any, as the cause of the injury to the plaintiff was the negligence of the contractor in charge of the work, or his servants or employees, and not of the defendants, or their servants or employees; which motion the court then and there denied, and remarked that the action is brought upon the principle, which is well settled in the Federal courts, that where a person or corporation is engaged in a work in the ordinary doing of which a nuisance necessarily occurs, the party is liable for any injury that may result to third parties from carelessness or negligence, even though the work may be done by a contractor, and it makes no difference even if the party, in a case like the present, might sustain an action against the municipal corporation, as it is his right to seek his remedy against the party who 573*] created the nuisance or his *immediate employees, to which ruling and decision the defendants then and there excepted.

person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want of repair in the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair, and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public and, consequently, if one person *might [*574 sue for his proportion of the damages for the nonperformance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation; and for that reason it was held at common law, that no action founded merely on the neglect to repair would lie. Weightman v. Washington, 1 Black, 52, 17 L. ed. 58.

Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Henly v. Lyme, 5 Bing. 91; Lyme Regis v. Henly, 3 B. & Ad. 77; S. C. 2 Cl. & F. 331. Since the decision in the case last reTestimony was then introduced by the de- ferred to, many decisions to the same effect fendants tending to show that the injury men- have been made by the state courts in this countioned in the declaration was not caused by any try approving that rule and applying it in all neglect or misconduct of the persons in charge similar controversies. Hutson V. N. Y. 5 of the work, but wholly by the reckless and Sandf. 304; Erie v. Schwingle, 22 Pa. 384; negligent driving of the plaintiff, and the per- | Storrs v. Utica, 17 N. Y. 104; Conrad v. Ithaca, son with him in the carriage. 16 N. Y. 159; Browning v. Springfield, 17 Ill. Prayers for instruction to the jury were pre-145; Lloyd v. N. Y. 5 N. Y. 369.

Grant all that and still the defendants deny that the rule established by those authorities furnishes any support to the rulings of the circuit court, as they, the defendants, were mere contractors to make the excavations and lay the pipes, and they insist that the persons responsible to the plaintiff, if any, are the persons whom they employed to do the work and who were in charge of it at the time the plaintiff was injured, and they deny that they in any view of the case can be held answerable for the neglect 575] and carelessness of those who had contracted with them to make the excavations and lay the pipes, and who had charge of the engine and steam-drill, the operation of which frightened the horse of the plaintiff.

may occur by reason of neglect of their employees in the premises. Tested by these considerations it is quite clear that the case must be viewed just as it would be if the work had been done by the defendants, and not by the subcontractors, or as if the work had in all respects been done under the directions of the defendants as the immediate contractors with the municipal corporation.

Where the obstruction or defect caused or

created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect Concede that proposition and it would follow from the acts which the contractor agreed and which occasioned the injury results directly that the rulings in question are incorrect; but the evidence exhibited in the record shows that the contractor and authorizes him to do those was authorized to do, the person who employs the defendants agreed with the municipal authorities to protect all persons against damages acts is equally liable to the injured party. Robby reason of the excavations made by them bins v. Chicago, 4 Wall. 679, 18 L. ed. 432. Expreparatory to laying the pipes, and to keep the actly the same view was advanced by this court work properly guarded by day and night, and when that case was brought here by the first to be responsible for all damages which "may writ of error, in which the court said that if occur by reason of neglect of their employees in the nuisance necessarily occurs in the ordinary the premises," and that the streets should not mode of doing the work the occupant or owner be unnecessarily obstructed or encumbered in is liable, but if it is from the negligence of the doing the work. Such an agreement would not contractor or his servants, then he should alone acquit the municipality of an obligation, other- be responsible. Chicago v. Robbins, 2 Black, wise attaching, to keep the streets safe and con- 428, 17 L. ed. 304 Common justice requires venient for travelers, but it may well be held the enforcement of that rule, as if the contractthat a party injured through a defect or want or does the thing which he is employed to do, of repair in such a street, occasioned by the the employer is as responsible for the thing as neglect or carelessness of such a contractor in if he had done it himself, but if the act which is doing the work, or of those for whose acts he the subject of complaint is purely collateral to is responsible, may, at his election, sue the con- the matter contracted to be done, and [*577 tractor for redress or pursue his remedy against arises indirectly in the course of the performthe municipality, as it is clear that the contract-ance of the work, the employer is not liable, beor, in case of a recovery against the latter, cause he never authorized the work to be done. would be answerable to the municipality as Hole v. R. Co. 6 Hurl. & Nor. 497. It would stipulated in this agreement. Improvements of be monstrous, said Lord Campbell, if a party the kind, such as making excavations and lay-causing another to do a thing were exempted ing pipes for gas or for sewers, are made by from liability for the act merely because there municipal corporations, under circumstances where the corporation is immediately responsible for the defect or want of repair in the street, without any other party being answerable over to them for any damages they may have to pay to a traveler who may be injured through such a defect or want of repair, as, where they appoint their own superintendent and the work is done by their order and direc-lus, 5 Ell. & Bl. 124; Lowell v. R. Co. 23 Pick. tions. Other cases arise where improvements are constructed by contractors, in which the municipality is not responsible at all, as, where the improvement is of such a character that a prudent man would not find it necessary to encumber or obstruct the street in any respect or 576**] for any purpose, as, in that case it would be clear that the defect or want of repair which occasioned the injury was solely the result of neglect and carelessness on the part of the contractor, and not of any culpable fault of the officers of the municipality. Contractors with such a corporation for such a purpose may or may not be responsible to a third party, in a case like the present, according to the circumstances, but it is not necessary to enter much into the discussion of that topic in this case, as the evidence shows that the defen lants agreed to become responsible for all damages which

was a contract between him and the person immediately causing the act to be done, which may be accepted as correct if applied in a case where the work contracted to be done will necessarily, in its progress, render the street unsafe and inconvenient for public travel. Ellis v. Gas Cons. Co. 2 Ell. & Bl. 770; Newton v. El

31. More than one party may be liable in such a case. Nor can one who employs another to make such an excavation relieve himself from liability for such damages as those involved in the case before the court by any stipulation with his employee, as both the person who procured the nuisance to be made and the immediate author of it are liable. Storrs v. Utica, 17 N. Y. 108; Creed v. Hartmann, 29 N. Y. 591; 8 Bosw. 123; Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, 18 N. Y. 84; Shearm. & Redf. Neg. 423; Mayor v. Furze, 3 Hill, 616; Milford v. Holbrook, 9 Allen, 21.

Apply these rules to the case before the court, and it is clear that they are sufficient to dispose of all the exceptions and to show that there is no error in the record. Judgment affirmed.

ABRAHAM NALBRUN et al., Plffs. in Err., | prove, to show their good faith, would be the payment of the price of the goods.

the court could have properly told the jury to find as they did for the plaintiff. Bevans v. U. 8. 13 Wall. 56, 20 L. ed. 531. Indeed, the verdict was so obviously right, that the court would not set aside the judgment when the record shows that no other result could be obtained on a new trial.

Babbitt, the assignee in bankruptcy of Marks Mendelson, brought an action of trover to recover the value of a stock of merchandise sold by the bankrupt to one Summerfield, and by the latter to the defendants, who are the plaintiffs in error, on the ground that the several transfers were frauds on the bankrupt law under the 35th section thereof.

of December, 1868. Indeed, the stock of goodat Kingsville was all the property worth naming that he had, and the proceeds of this stock unfortunately did not reach his creditors, as, according to his own statement, he lost the money received from Summerfield.

That Mendelson intended to defraud his creditors, in the course which he pursued, is too plain for controversy, but the inquiry is; has he succeeded in diverting his property from the payment of his debts to the injury of his creditors?

The 35th section of the bankrupt law condemns fraudulent sales equally with fraudulent preferences, and declares that if such sales are not made in the usual and ordinary course of the business of the debtor, that fact shall be prima facie evidence of fraud. The usual and ordinary course of Mendelson's business was to sell at retail a miscellaneous stock of goods, common to country stores, in a small town in the interior of the state of Missouri. It was to conduct a business of this character that the goods were sold to him, and, as long as he pursued the course of a retailer, his creditors could not reach the property disposed of by him, even if his purpose at the time were to defraud them.

prima facie evidence of fraud, and throws the burden of proof on the purchaser to sustain the validity of his purchase. Scammon v. Cole, 5 Bank. Reg. 257; Graham v. Stark, 3 Bank. Reg. 95; Kingsbury v. Hale, 3 Bank. Reg. 84; Driggs v. Moore, 3 Bank. Reg. 149; Tuttle v. Truax, 1 Bank. Reg. 169.

The record discloses the following state of facts, about which there is no dispute: in November, 1868, Mendelson, doing business in Kingsville, Missouri, as a retail country merchant, wrote to Summerfield, who was his brother-in-law, living in St. Louis, to come and buy him out. Summerfield at once went to Kingsville and took in currency money enough for the purpose. On his arrival there, Mendelson told him he was desirous of selling his stock, because he could not succeed in the business in which he was engaged, and wished to deal in furniture and hardware. An account of stock But it is wholly a different thing when he was taken, and Summerfield paid Mendelson for sells his entire stock to one or more persons. it, after deducting twenty-five per cent of the This is an unusual occurrence, out of the ordicost price. Soon after this purchase, Summer-nary mode of transacting such a business, is field, leaving Mendelson in possession of the store, went to Chillicothe, Missouri, and told the defendants of his purchase of the stock of goods at twenty-five per cent below cost, because the owner wanted to go into the furniture business; and that, as he only desired to make five per cent, he would resell to them at twenty per cent below cost. They agreed to take the Summerfield seeks to overthrow the legal pregoods at his offer, as they needed some of the sumption that Mendelson intended to commit a articles to replenish their stock, if they came up fraud on his creditors, by showing that he paid to the account that was given of them. Accord- full value for the goods in ignorance of the coningly, Ritter, one of the defendants, went back dition of Mendelson's affairs. But the law will to Kingsville with Summerfield, and lodged at not let him escape in this way. The question Mendelson's house. The next morning they raised by the *statute is not his actual [*582 commenced examining goods at the store, and belief, but what he had reasonable cause to befound some of them in bad condition, of which lieve. In purchasing in the way and under the Ritter complained. After measuring several circumstances he did, the law told him that a pieces, to see if the stock conformed with the fraud of some kind was intended on the part of inventory, Summerfield excused himself from the seller, and he was put on inquiry to ascerfurther service, on the ground that he had to re- tain the true condition of Mendelson's business. turn to St. Louis, as he had just learned of the This he did not do, nor did he make any attempt sickness of his wife, and told Ritter to take the in that direction. Indeed, he contented himself goods home with him, and if the inventory was with limiting his inquiries to the object Mendefective, he would make it right. Ritter delson had in selling out, and to his future purthought if they would work hard they could poses. Something more was required than this soon get through; but finally yielded to Sum-information to repel the presumption of fraud merfield's persuasions and with the assistance which the law raised in the mere fact of a reof Mendelson, boxed the goods up and shipped tail merchant selling out his entire stock of them to Chillicothe. Ritter paid the full inven- goods. If this sort of information could sustory price at the agreed rate, and both parties | tain the sale, the provision of the bankrupt law left that night for their respective homes. There we are considering would be no protection to are many facts and circumstances connected with these transactions provocative of inquiry, but as they are represented differently in the sworn testimony of the different witnesses, they are omitted. All the witnesses agree in the case The presumption of fraud arising from the as stated, and there is no necessity, for the unusual nature of the sale in this case can only purposes of this suit, of going beyond it. Men- be overcome by proof on the part of the buyer delson was insolvent at the time of the sale in that he took the proper steps to find out the pequestion, and was, on the petition of his cred-cuniary condition of the seller. Ail reasonable itors, adjudicated a bankrupt on the 24th day means, pursued in good faith, must be used for

creditors, for anyone in Mendelson's situation, and with the purpose he had in view, would be likely to give the party with whom he was dealing a plausible reason for his conduct.

sented by the defendants in substance and ef-
fect as follows:
(1) That the court instruct the jury that up-
on the whole evidence they must find their ver-

(2) That if the injury to the plaintiff was caused solely by the negligence or misconduct of the employees of the contractor in doing the work, then the defendants are not liable.

Both of those requests were refused, and the rulings of the court in that behalf, together with the refusal of the court at the close of the plaintiff's case to direct a verdict for the defendants, present the principal questions in the case for the decision of the court. Other prayers for instruction, involving the same principles, were also presented by the defendants, which were also refused, and the rulings are embraced in the exceptions.

in diameter and was elevated 6 or 7 feet | above the surface of the ground, and at the time of the accident to the plaintiff it stood near the intersection of Eighth street with the street in which the plaintiff was passing; that the plain-dict for the defendants. tiff, with one other person, was riding in a carriage drawn by one horse, and having turned from Ninth street into the street where the accident occurred, the plaintiff, with the other person in the carriage, was driving along down the narrow passageway, on the east side of the street, when the persons in charge of the engine suddenly, and without giving any notice or 572*] warning of their intention, set the engine and drill in operation, causing a loud noise which frightened the plaintiff's horse and caused him to shy and turn upon the sidewalk, overturning the carriage and injuring the plaintiff. Due care, it is alleged, was used by the plaintiff, as when he left the intersecting street Cities and towns are usually required by statand passed into the street where the accident | ute to keep their streets and highways safe and occurred the engine and drill were not in opera- convenient for travelers, and if they neglect so tion; nor was there any barricade or signal of to do, in a case where that duty is imposed by any kind to indicate that there was any danger law, and suffer the same to get out of repair or that any special precaution was necessary and defective, and any person as a traveler reexcept what was suggested by the embank-ceives injury through such defect either to his ment and the narrowness of the street; and the person or property, the delinquent corporation evidence also tended to prove that neither the is responsible in damages to the injured party. engine nor the drill was seen by the plaintiff or Such a party, however, cannot maintain an acby the person in the carriage with him until the tion against the corporation grounded solely on horse of the plaintiff was within ten feet of the the defect and want of repair in the highway, but place where the engine and drill were situated, he must also allege and prove that the corporaand that it was at that moment that they were tion had notice of the defect or want of repair, put in operation by those in charge of the and that he was injured, either in person or work, and that one of the workmen ran into property, in consequence of the unsafe and inthe street and threw up his arms as if to stop convenient state of the highway, as the duty to the horse, which had the effect to make him repair in such cases is a duty owed to the public still more unmanageable. and, consequently, if one person *might [*574 sue for his proportion of the damages for the nonperformance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation; and for that reason it was held at common law, that no action founded merely on the neglect to repair would lie. Weightman v. Washington, 1 Black, 52, 17 L. ed. 58.

Having introduced evidence tending to prove the foregoing facts, the plaintiff rested, and the defendants moved the court to direct the jury to return a verdict in their favor upon the ground that the negligence proved, if any, as the cause of the injury to the plaintiff was the negligence of the contractor in charge of the work, or his servants or employees, and not of the defendants, or their servants or employees; which motion the court then and there denied, and remarked that the action is brought upon the principle, which is well settled in the Federal courts, that where a person or corporation is engaged in a work in the ordinary doing of which a nuisance necessarily occurs, the party is liable for any injury that may result to third parties from carelessness or negligence, even though the work may be done by a contractor, and it makes no difference even if the party, in a case like the present, might sustain an action against the municipal corporation, as it is his right to seek his remedy against the party who 573*] created the nuisance or his *immediate employees, to which ruling and decision the defendants then and there excepted.

Testimony was then introduced by the defendants tending to show that the injury mentioned in the declaration was not caused by any neglect or misconduct of the persons in charge of the work, but wholly by the reckless and negligent driving of the plaintiff, and the person with him in the carriage.

Prayers for instruction to the jury were pre

Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Henly v. Lyme, 5 Bing. 91; Lyme Regis v. Henly, 3 B. & Ad. 77; S. C. 2 Cl. & F.

331. Since the decision in the case last referred to, many decisions to the same effect have been made by the state courts in this country approving that rule and applying it in all similar controversies. Hutson v. N. Y. 5 Sandf. 304; Erie v. Schwingle, 22 Pa. 384; Storrs v. Utica, 17 N. Y. 104; Conrad v. Ithaca, 16 N. Y. 159; Browning v. Springfield, 17 Ill. 145; Lloyd v. N. Y. 5 N. Y. 369.