was unable to show that his intestate observed that care which was required of persons crossing a railroad track, and the court, having under consideration the distinction which the law makes between those who are sui juris and non sui juris, held that the plaintiff should have been nonsuited.

The fact that the boy Tucker was twelve years old, intelligent, accustomed to attend school, and assist the family by his labor, and lived near the railroad, seems to bring this case within the rule of the Reynolds case; indeed, we see no opportunity to distinguish them.

Aside from evidence of the boy's age, no fact was adduced tending to show that he was not as well qualified to understand and appreciate the danger which overtook him as an adult. And the question is therefore fairly presented, whether a jury can be permitted to find from such fact, standing alone, that he was non sui juris.

In Nagle v. Allegheny Valley R. R. Co., 88 Pa. St. 35, 32 Am. Rep. 413, the court, in considering the age at which an infant should be presumed to be sui juris, say: “The law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin. For some purposes, majority is the rule. It is not so here. It would be irrational to hold that a man was responsible for his negligence at twentyone years of age, and not responsible a day or a week prior thereto. At what age, then, must an infant's responsibility for negligence be presumed to commence? This question cannot be answered by referring it to a jury. That would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or prejudices of the jury in each particular case. One jury would fix the period of responsibility at fourteen, another at twenty or twenty-one. This is not a question of fact for the jury; it is a question of law for the court. Nor is its solution difficult. The rights, duties, and responsibilities of infants are clearly defined by the text-writers as well as by numerous decisions. We have seen that the law presumes that at fourteen years of age an infant has sufficient discretion and understanding to select a guardian and contract a marriage; is capable of harboring malice, and of taking human life under circumstances that constitute the offense of murder. It therefore requires no strain to hold that at fourteen an infant is presumed to have sufficient capacity and understanding to be sensible of danger, and to have the power to avoid it. And this presumption

ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age."

The Penal Code provides that when an infant is charged with crime, upon the prosecution rests the burden of showing that the defendant has sufficient intelligence and maturity of judgment to render him capable of harboring a criminal intent, until the age of twelve years, at which time the presumption of incapacity ceases. Now, while this statute does not undertake to prescribe, and does not necessarily affect, the rule to be applied in civil actions, it suggests, as asserted in the Nagle case, an age to which the courts can with safety limit the presumption of incapacity on the part of an infant to appreciate the perils incident to crossing railroad tracks. This presumption may, in a proper case, be so far overborne by evidence as to present a question for the jury, and then the age of the injured party may doubtless be considered by the jury in connection with the facts indicating a lack of comprehension of a dangerous situation. But in the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger, and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris.

The views expressed lead to the conclusion that the judgment should be reversed.

RAILWAY TRACKS, DUTY REQUIRED OF PERSONS APPROACHING. -The railway track itself is a warning of danger to one approaching it, and it is his duty to stop, look, and listen for approaching trains before he attempts to go upon the track: Ellis v. Lake Shore etc. R. R. Co., 138 Pa. St. 506, post, p. 914, and note.

NEGLIGENCE-INFANTS. As to the age at which an infant may be regarded as capable of such powers of discretion as to charge him with negli. gence, see extended note to Westbrook v. Mobile etc. R. R. Co., 14 Am. St. Rep. 590-596,

SIMMONS v. EVERSON.

[124 NEW YORK, 319.]

PARTIES MAINTAINING NUISANCE JOINTLY AND SEVERALLY LIABLE FOR DAMAGES RESULTING THEREFROM WHEN. Persons who by their sev eral acts or omissions maintain a public or common nuisance are jointly and severally liable for such damages as are the direct, immediate, and probable consequence of it. Where, therefore, three several owners of adjoining lots on a city street permit a brick wall extending along the fronts of their several lots to remain in a leaning, unsafe, and dangerous condition, after the buildings of which they were a part had been burned down, and such wall falls upon and kills a person who was lawfully standing on the sidewalk adjacent thereto, all of said owners are jointly and severally liable, although no part of the wall of one of them touched him.

cuse.

ACTION to recover damages for the death of plaintiff's intestate, alleged to have been caused by the defendants' negligence. The trial court found that the appellants owned in severalty three adjoining lots on a street in the city of SyraA continuous brick wall formed the front of the three buildings on these lots. These buildings were destroyed by fire, which left standing only the front wall and parts of the partition walls. Shortly after the fire, this front wall began to lean toward the street, and began to incline more and more, until November 17, 1887, when it gave way and fell. Material from the part of it which stood on the lots of appellants Everson and Pierce fell upon and killed the plaintiff's intestate, who was lawfully on the sidewalk near the boundary between their properties. No part of the wall of appellant Lynch fell on decedent. It was found that each of the defendants was careless and negligent in not removing or supporting the walls on his own lot, and that the several neglects of the defendants united and directly caused the walls to fall. It was also found that these walls were so unsafe that they were a public nuisance, and that the decedent did not negligently contribute to the accident.

M. M. Waters, for appellant Everson.

Smith, Kellogg, and Wells, for appellant Pierce.

Hiscock, Doheny, and Hiscock, for appellant Lynch.

William Nottingham, for the respondents.

FOLLETT, C. J. It is urged, in behalf of the defendants, that at most this is but a case of several independent acts of negligence committed by each, the joint effect of which caused

the accident, and for which they are not jointly liable within the rule laid down in Chipman v. Palmer, 77 N. Y. 51; 33 Am. Rep. 566.

The case at bar does not belong to the class of actions arising out of acts or omissions which are simply negligent; and while the defendants did not intend by their several acts to commit the injury, their conduct created a public nuisance which is an indictable misdemeanor under the statutes of this state: Pen. Code, secs. 385, 387; Vincett v. Cook, 4 Hun, 318; and at common law: Regina v. Watts, 1 Salk. 357; 2 Ld. Raym. 856; 1 Russell on Crimes, 5th ed., 423; 2 Wharton's Crim. Law, sec. 1410; Bigelow on Torts, 237; Pollock on Torts, 2d ed., 345; Stephen's Digest of Criminal Law, art. 176; Indian P. C., sec. 268.

Persons who by their several acts or omissions maintain public or common nuisance are jointly and severally liable for such damages as are the direct, immediate, and probable consequence of it: Irvine v. Wood, 51 N. Y. 224, 230; 10 Am. Rep. 603; Slater v. Mersereau, 64 N. Y. 138; Timlin v. Standard Oil Co., 54 Hun, 44; Klauder v. McGrath, 35 Pa. St. 128; 78 Am. Dec. 329; 1 Shearman and Redfield on Negligence, 4th ed., sec. 122; Pollock on Torts, 2d ed., 356.

The fall of these four-story brick walls into the street was the direct and immediate consequences of the several acts of the defendants in suffering the portions standing on their own lots to remain unsupported after they had visibly begun to incline towards the street, and it was as obvious before as it was after the accident that if any part of the front wall fell, a large part of it must, and that it would go into the street. The judgment should be affirmed, with costs.

NUISANCES-LIABILITY OF PERSONS MAINTAINING A NUISANCE. — The liability of several persons for creating or continuing a nuisance is both sev eral and joint, and the plaintiff may, at his pleasure, sue one or all of the wrong-doers: Note to Creed v. Hartman, 86 Am. Dec. 347, 348. But com. pare Blaisdell v. Stephens, 14 Nev. 17; 33 Am. Rep. 523, and note; Chipman v. Palmer, 77 N. Y. 51; 33 Am. Rep. 566.

MANDEVILLE V. AVERY.

[124 NEW YORK, 376.J

CHATTEL MORTGAGE WITHOUT IMMEDIATE DELIVERY OR CHANGE OF PosSESSION VOID AS AGAINST CREDITORS WHEN.—A chattel mortgage which is not accompanied by an immediate delivery or followed by an actual or continued change of possession of the chattels mortgaged, and which is executed upon an agreement that the mortgagor may remain in possession of the property covered by the mortgage, and sell the same at retail, and use the avails in substantially the same manner as before the execution of the mortgage, is void as against the creditors of the mortgagor. And the term “creditors" includes all persons who were such while the chattels remained in the possession of the mortgagor under that agreement, and their rights are not affected by the fact that they did not obtain judgment or a specific lien until after delivery of the property to the mortgagee. RIGHT OF CREDITOR TO ATTACK CHATTEL MORTGAGE AS FRAUDULENT NOT WAIVED WHEN.-An assent by a creditor to an arrangement between a mortgagor and mortgagee which will preclude him from asserting his rights as a creditor against the property mortgaged must be such as to create against him an equitable estoppel, or it must exist in agreement supported by a valid consideration. An alleged assent made upon condition that the mortgagor should return to the creditor a portion of the goods purchased of him, the purchase price for which constituted the indebtedness, and would make payments to him, neither of which conditions were complied with, is without consideration, and therefore not binding.

CREDITOR NOT DEPRIVED OF RIGHT TO ATTACK CHATTEL MORTGAGE BY AGREEMENT MADE BY HIS AGENT WHEN. — A creditor cannot be de prived of his legal right to attack a chattel mortgage as fraudulent, by an agreement made by his agent waiving such right, without evidence that he knew of the defect in the mortgage, and had authorized his agent to make an agreement in reference thereto, or had acquiesced in such an agreement when made.

RECEIVER APPOINTED IN SUPPLEMENTARY PROCEEDINGS, POWERS AND RIGHTS OF. A receiver appointed in supplementary proceedings under the code is vested with the legal title to all the personal property of the judgment debtor, and has the right to prosecute all actions to set aside all transfers of property made by the debtor to defraud his creditors. For the purpose of maintaining such actions he represent the creditors, and possesses the same rights as the creditor under whose judgment he was appointed would himself have had. MORTGAGEE CANNOT RETAIN PROPERTY OR ITS PROCEEDS OBTAINED UNDER FRAUDULENT MORTGAGE. Although a mortgagee may have an honest clain, he cannot, as against a pursuing creditor, retain property obtained by him under his mortgage if it be fraudulent; and if he takes and sells the property by virtue of his mortgage before any lien thereon is acquired by a creditor, the latter may compel him to refund the proceeds; for the mortgage being void, all proceedings under it are also void. The right of the creditor cannot be defeated by a fraudulent mortgagee by merely selling the mortgaged property.