the risk of accidentally deviating from the road, and liable to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. Hardcastle v. South Yorkshire R. Co., 4 Hurl. & Nor. 67; Hounsell v. Smyth, 7 C. B. (N. S.) 731; Dinks v. South Yorkshire R. Co., 3 B. & S. 244.

It has also been generally adopted in this country. Norwich v. Breed, 30 Conn. 535; Beck v. Carter, 68 N. Y. 283; 23 Am. Rep. 175: Harmar v. Stanley, 66 Penn. St. 464; B. & O. R. R. Co. v. Boteler, 38 Md. 568; Stratton v. Staples, 50 Me. 94; Young v. Harvey, 16 Ind. 314; Cogswell v. Inhabitants of Lexington, 4 Cush. 307; although Howland v. Vincent, 10 Metc. 31, is an exception.

The enforcement of this rule in regard to excavations made by proprietors of lots adjacent to streets and public grounds in cities and towns, in the prosecution of building enterprises, and in the construction of permanent areas for cellar ways, is universally recognized as an obvious and salutary exercise of the common police powers of municipal government; and the omission to provide barriers and signals, prescribed by ordinance in such cases for the safety of individuals in the use of thoroughfares, is a failure of duty, charged with all the consequences of negligence, including that of liability for personal injuries, of which it is the responsible cause. The true test is, as said by Hoar, J., in Alger v. City of Lowell, 5 Allen, 402, not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient."

As the ground of liability in these cases is that of a public nuisance, causing special injury, the rule of course does not apply where the structure complained of on the defendant's property, and the mode of its use are authorized by law; and consequently what has been said is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative authority implied in the ordinance, the breach of which is imputed to the defendant as negligence toward the plaintiff, and as serving to interpret the meaning and application of its provisions.

The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the railroad company, to which no one else is privy, and under which no third person can derive immediately any private right, prescribing conditions of the grant, to be enforced only by the city itself. Although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execution of it, it is also primarily a municipal regulation, and as such, being duly authorized by the legislative power of the State, has the force of law within the limits of the city. Mason v. Shawneetown, 77 Ill. 533.

Neither can the ordinance be limited by construction to the mere purpose of preventing animals from straying upon or obstructing the tracks; because in addition to that, it expressly declares that the walls, fences or other works required shall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and property in course of transportation, and already in care of the railroad company as common carrier, for the duty to carry and deliver them safely was already and otherwise pro

vided for by law; nor can it be supposed from the nature of the case that the stipulation was intended as security for any corporate interest of the city. The proviso in the 6th section that the company shall construct such suitable gates at crossings as thereafter might be required by the common council to afford safe access to the lake, clearly designates the inhabitants of the city as at least within the scope of this foresight and care, the safety of whose persons and property was in contemplation.

The prevention of animals from straying upon the tracks and the security of persons and property from danger are two distinct objects, for both which the requirement is made of suitable walls, fences or other protections; and the ordinance in these two particulars is to be referred to distinct legislative grants of power to the municipal body. The general act to provide for the incorporation of cities and villages, which constitutes the charter of the city of Chicago, confers upon its city council power: "Twenty-sixth. To require railroad companies to fence their respective railroads, or any portion of the same, and to construct cattle-guards, crossings of streets and puplic roads, and keep the same in repair within the limits of the corporation. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all damages the owner of any cattle or horses or domestic animal may sustain by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the general laws of this State relative to the fencing of railroads." Cothran's Rev. St. Ill., 1884, 227. By the general law of the State, requiring railroads to be fenced except within the limits of municipal corporations, the company omitting performance of the duty is liable to the owner for all damages to animals, irrespective of the question of negligence. Cothran's Rev. St. Ill., 1884, 1151.

Whether this provision is limited to the protection of animals, and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized thereby might be considered as evidence of negligence in case of injury to person or property, in any other case, it is not necessary for us now to decide; for in the same section of the statute there is this additional power conferred upon the city council:

"Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads," etc.

The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirements as in its discretion it may prescribe,and as are within the just limits of police regulation, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads. And as we have shown by reference to analogous cases, the erection of a barrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake Park is shown to be, in the present case, is a reasonable provision clearly within the limits of such authority. To leave the space between the park and the breakwater, traversed by the numerous tracks of the railroad company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women and children frequenting the park to push across the tracks at all times to the breakwater for recreation and amusement, at the risk of being run down by constantly-passing trains. A fence upon the line between them might have served at least as notice and signal of danger, if not as an obstacle and prevention. For young children, for whose health and recreation

the park is presumably in part intended, and as irresponsible in many cases as the dumb cattle, for whom a fence is admitted to be some protection, such an impediment to straying might prove of value and importance. The object to be attained-the security of the persons of the people of the city-was, we think, clearly within the design of the statute and the ordinance; and the means required by the latter to be adopted by the railroad company was appropriate and legitimate. Mayor, etc., of New York v. Williams, 15 N. Y. 502.

It is said however that it does not follow that whenever a statutory duty is created, any person, who can show that he has sustain injuries from the non-performance of that duty,can maintain an action for damages against the person on whom the duty is imposed; and we are referred to the case of Atkinson v. New Castle Water Works Co., L. R., 2 Excheq. Div. 441; 21 Eng. R. 541, as authority for that proposition, qualifying as it does the broad doctrine stated by Lord Campbell in Couch v. Steel, 3 E. & B. 402. But accepting the more limited doctrine admitted in the language of Lord Cairns in the case cited, that whether such an action can be maintained must depend on the "purview of the Legislature in the particular statute, and the language which they have there employed," we think the right to sue under the circumstances of the present case clearly within its limits. In the analogous case of fences required by the statute as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons, by reason of the same default the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation and to an action for its recovery. "The nature of the duty," said Cooley, J., in Taylor v. L. S. & M. S. Ry. Co., 45 Mich. 74; 40 Am. Rep. 457, "and the benefits to be accomplished through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit. See also Railroad Co. v. Terhune, 50 Ill. 151; Schmidt v. Milwaukee & St. P. Ry. Co., 23 Wis. 186; Siemers v. Eisen, 54 Cal. 418; Galena & Chicago Union R. Co. v. Loomis, 13 Ill. 548; O. & M. R. Co. v. McClelland, 25 id. 140; St. L. V. & T. H. R. Co. v. Dunn, 78 id. 197; Massoth v. Railroad, 64 N. Y. 521; B. & O. R. v. State, 29 Md. 252; Pollock v. Eastern R., 124 Mass. 158; Cooley on Torts, 657.

It is said however that in the present case the failure or omission to construct a fence or wall cannot be alleged as negligence against the company, because as the structure was to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common council might direct, no duty could arise until after the council had directed the character of the work to be constructed, of which no proof was offered. But the obligation of the company was not conditioned on any previous directions to be given by the city council. It was absolute to build a suitable wall, fence or other sufficient work as would prevent animals from straying upon the tracks and secure persons and property from danger. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if .necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if were satisfied with the work as executed by

the railroad company. Tallman v. Syracuse, Binghamton & N. Y. R. Co., 4 Keyes, 128; Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; 7 Am. Rep. 469.

It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non, a cause which, if it had not existed, the injury had not taken place, an occasional cause; and that is a question of fact unless the causal connection is evidently not proximate. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469. The rule laid down by Willes, J., in Daniel v. Metropolitan Ry. Co., L. R. 3, C. P. 216, 222, and approved by the Exchequer Chamber, L. R., 3 C. P. 591, and by the House of Lords, L. R., 5 H. L. 45, was this: "It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to;" and in the case of Williams v. Great Western Ry. Co., L. R., 2 Exch. 157, where the rule was applied to a similar case to the present, it was said (p. 162): "There are many supposable circumstances under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about, and he had met with a stile, he would probably have been turned back; and one at least of the objects for which a gate or stile is required is to warn people of what is before them and to make them pause before reaching a dangerous place like a railroad."

The evidence of the circumstances showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Co. v. Stout, 17 Wall.657, and Randall v. B. & O. R. Co., 109 U.S. 478; should have been submitted to the jury; and for the error of the Circuit Court in directing a verdict for the defendant, the judgment is reversed and a new trial awarded.

NEW YORK COURT OF APPEALS ABSTRACT.

MASTER AND SERVANT-KILLING BRAKEMAN-UNSAFE APPLIANCES PROXIMATE CAUSE-SUBMISSION TO JURY.-Action to recover damages for the death of plaintiff's intestate, a brakeman employed by the defendant, who, seeing the imminence of a collision between the freight train on which he was employed and one approaching it from the rear, went out of the front door of the caboose attached to the end of his train and attempted to escape, but was caught between the caboose and the next car and received fatal injuries. It is claimed that the result was due to the fact that the "buffer" on the caboose was so much lower than that of the preceding car that the caboose was driven under the bumper block of the car ahead, and thus the theory of the action was that the cars and appliances furnished the deceased by the defendant were unsafe and unsuitable, and that this act constituted negligence that would authorize recovery. Held, that it was the duty of the defendant to provide a car properly fitted, not only with running apparatus-as wheels, stopping apparatus, as a brake-but with buffers of some kind, to protect the car and its servants, necessarily or lawfully thereon, from the effect of a collision. Ordinary and usual care in the equipment and running of a road requires this last appliance or some equivalent contrivance as much as it does either of the others. There was in effect no buffer nor

any thing to take its place on the car upon which the intestate was employed. Upon the evidence it may be said that its absence was the proximate cause of injury; it was literally the causa causans. The death of the decedent was therefore caused by the omission of the defendant to place buffers where they belonged. For any useful or usual purpose the ones in question might as well have been placed on the top or at the sides of the car as where they were. If we assume with the defendant that the persons in charge of the second train were negligent, or wrong-doers, still the primary or essential cause of the injury was the negligence of the defendant itself, and it is not competent for it to say that it is absolved from the consequences of its wrongful act by what those persons did. It is enough however if its fault or omission merely contributed to produce the injury complained of, or if it failed to exercise the care of an ordinarily prudent person in supplying cars reasonably safe for the purpose for which they were required. In any aspect of the case there was evidence upon these questions which should have been submitted to the jury. Canfield v. B. & O. R. Co., 93 N. Y. 532; 45 Am. Rep. 268; Dana v. N. Y. C. R. Co., 92 N. Y. 639; Sheehan v. Same, 91 id. 332; Darkin v. Shoup, 88 id. 225; Booth v. B. & A. R. Co., 73 id. 38; 29 Am. Rep. 97; Plank v. N. Y. C. & H. R. Co., 60 N. Y. 607; Flike v. B. &. A. R. Co., 53 id. 550; 13 Am. Rep. 545. Ellis v. New York, Lake Erie, etc. Opinion by Danforth, J. [Decided April 15, 1884.]

WILL-UNDUE INFLUENCE-QUESTION OF FACT-NOT REVIEWABLE HERE.-The deceased was seventy-two years of age at the time of his death, and had been a man of great bodily vigor and sound mind. Two days before its execution he had been attacked with inflammation of the bowels, and expressed his belief that it was his last call."' He lived five days after the will was executed. The chief grounds urged against the probate of the will was the relation existing between the deceased and John Foley, who for a long time had been his legal counsellor and adviser, and who was made a donee of nearly half of the estate, which amounted to nearly $70,000 or $80,000. Foley did not draw the will, but gave instructions to the person who did draw it. It does not appear what these instructions were. The deceased left him surviving a widow, married some two years before his death, to whom he left a legacy of $8,000, and brothers and sisters, and children of deceased brothers and sisters, to some of whom he left small legacies, and to others none at all. Foley was not present when the will was executed, and so far as appears he did not see the instrument before his death, and never conversed with the deceased ou the subject, and that it does not appear that the deceased was in any respect under his influence. Held, that the facts might lead to contradictory inferences and point to hostile conclusions. them the surrogate decides in favor of the will. The General Term, which might have sent the case to a jury if doubtful about it, has affirmed the decision. The question is wholly one of fact, beyond our reach. Matter of Ross, 87 N. Y. 514; Marx v. McGlynn, 88 id. 357. Matter of Darrow's Will. Opinion by Finch, J. [Decided April 15, 1884.]

Upon

TEAM-RUNNING OVER

NEGLIGENCE-DRIVING OF CHILD-QUESTION FOR JURY.-Whoever drives horses along the streets of a city is bound to anticipate that travellers on foot may be at the crossing, and must take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees and does not so far as in his power avoid them. The evidence is sufficient to show that if the driver had looked he would have seen the child in season to avoid him. His own testimony is that he nei

ther saw the child nor heard the call of the by-standers, nor knew of the accident until he was stopped by the officer. His conduct was sufficient to justify the conclusion of the jury that he failed in both particulars, because he was unobservant, and the learned trial judge committed no error in charging them, to say whether, under all the circumstances surrounding the transaction, he was negligent in not discovering the child in time to prevent the injury. Barker v. Savage, 45 N. Y. 194. Murphy v. Orr. Opinion by Danforth, J.

[Decided April 29, 1884.]

NEGLIGENCE-INJURY TO CONVICT-STATE NOT LIABLE-RESPONDEAT SUPERIOR.-The claimant Lewis, an inmate of the Elmira Reformatory, and while engaged in carrying molten iron in a ladle discovered a crack in the shank which connected the bowl with the handle. He called the overseer's attention to the defect, but no attention was paid to his complaint, and when next used by him the bowl separated from the shank, and the melted iron coming in contact with iron on the floor exploded with such effect as to cause him serious injury. After his discharge he presented a claim to the board of audit, and his claim was transferred to the board of claims (Laws of 1883, ch. 205, § 12), and there dismissed, on the ground that the facts were not sufficient to constitute a cause of action against the State. On appeal to the court, held, that upon no principle of law, nor of any adjudged case can the doctrine of respondeat superior be made applicable to the State, except when it has through its Legislature voluntarily assumed it. The contrary is well settled upon grounds of public policy, and the doctrine is so uniformly asserted by writers of approved authority and the courts, that fresh discussion would be superfluous. Story on Agency, § 329, 7th ed. The claimant was not a voluntary servant for hire and reward, nor was the State his master in any ordinary sense. The decision of the board of claims is affirmed. Lewis v. State. Opinion by Danforth, J. [Decided May 6, 1883.]

UNITED STATES SUPREME COURT ABSTRACT.

DAMAGES-BREACH OF CONTRACT-FRAUD AND DECEIT-EXCEPTION TO CHARGE.-A manufacturer having contracted to limit his sales within a certain number of tous in order to maintain the high price of steel is not responsible for a reduction in the market price occasioned by causes other than his selling more than what he had agreed to sell. Where a person is induced by false representations to buy an article, at an agreed price, to be delivered on his future order, he can recover as damages for the deceit the diminution caused thereby in the market price at the time of delivery. Where a charge embraces several distinct propositions a general exception is of no effect if any one of them is correct. Lincoln v. Claflin, 7 Wall. 132, 139. Cooper v Schlesinger. Opinion by Blatchford, J. [Decided March 31, 1884.]

LIMITATIONS-UNDISCLOSED PRINCIPAL-TRUST.-If a cause of action against an agent whose principal is undisclosed is barred by the statute of limitations, and the principal be afterward discovered, an action cannot be maintained against him. Certain shares of stock were placed in the hands of a debtor as a fund for the payment of his debt, but it was shown that the intention was that they were merely intended as indemnity to him. Held, that no trust was created in favor of the creditor. Ware v. Galveston City Co. Opinion by Matthews, J. [Decided March 31, 1884.]

MISTAKE 44 ASSUMPTION CLAUSE INSERTED GRANTEE RELEASED BY GRANTOR-BONA FIDE PURCHASER OF MORTGAGE NOTES TAKES SUBJECT TO EQUITIES.-Where in a recorded deed of land subject to a mortgage, an agreement of the grantee to assume aud pay it is inserted by mistake of the scrivener and against the intention of the parties, and on the discovery of the mistake the grantor releases the grantee from all liability under the agreement, a court of equity will not enforce the agreement at the suit of one who, in ignorance of the agreement, and before the execution of the release, purchases the notes secured by the mortgage, although the grantee, after the deed of conveyance to him, paid interest accruing on the notes. The appellee, by her purchase of the notes secured by the second mortgage, doubtless acquired all the rights of the mortgagee. New Orleans Canal Co. v. Montgomery, 95 U. S. 16; Swift v. Smith, 102 id. 442. But having purchased in ignorance of the supposed agreement of Drury in the deed of conveyance from Daggett to him, and having done nothing upon the faith of that agreement, she has no greater right by estoppel against Drury than the mortgagee had. The mortgagee had no part in obtaining, and paid no consideration for that agreement, and upon the most favorable construction had no greater right under it than Daggett, with whom it purported to have been made. On the facts of this case, Daggett, in a court of equity at least, never had any right to enforce that agreement against Drury. The payment of interest on the mortgage notes would naturally be made by Drury to prevent a foreclosure of the mortgage on his land, and cannot be held to be an affirmance of an agreement of which he had no actual knowledge. The clause containing the agreement being conclusively proved to have been inserted in the deed by mistake of the scrivener, without the knowledge and against the intention of the parties, a court of equity, upon a bill filed by Drury for the purpose, would have decreed a reformation of the deed by striking out that clause. Elliott v. Sackett, 108 U. S. 133. The release executed by Daggett to Drury has the same effect, and no more. Drury v. Hayden. Opinion by Gray, J. [Decided April 7, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

EJECTMENT-RECOVER ON OWN TITLE-POWER OF ATTORNEY-GENERAL POWER FOR PARTICULAR PURPOSE - ESTOPPEL- · AFTER-ACQUIRED TITLE — - JOINT TENANTS-PARTITION-COVENANTS IN DEED.- - (1) In an action of ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's title. Gardiner v. Tisdale, 2 Wis. 152. (2) The power of attorney herein to "accept service or convey land, or do any other thing necessary for procuring partition of the same," does not authorize the conveying of the land for any other purpose. The rule is universal "that when there is a power of attorney to do a particular act followed by general words, these general words are not to be extended beyond what is necessary for doing that particular act for which the power of attorney is given." This is the language of Lord Campbell in Perry v. Holl, 2 De Gex, F. & J. 48. To the same effect are Esdaile v. La Nauze, 1 Younge & C. 394; Attwood v. Munnings, Barn. & C. 278; and many other cases which might be cited. In this last case it was held by the King's Bench "that the general words in the power of attorney were not to be construed at large, but as giving general powers for the carrying into effect the special purposes for which they were given." These cases are in harmony with the decisions of this court. Chilton v. Willford, 2 Wis. 1; Dodge v. Hopkins, 14 id. 630;

Gee v. Bolton, 17 id. 604. Thus construed, it is apparent that the power given by the instrument was fully exercised and exhausted by the mutual conveyance made in 1866 for the express purpose of such partition. The partition of the lands having thus been made by virtue of the power of attorney, and that being the sole purpose and object of the power, it is evident that any subsequent attempt by the attorney to convey the land for his own private benefit would be wholly unauthorized and necessarily treated as a nullity in ejectment. Campbell v. Campbell, 57 Wis. 288; 15 N. W. Rep. 138; Meade v. Brothers, 28 Wis. 689. (3) A party who conveys land by a deed containing warranties of title, and to defend the same from the lawful claims of all persons, is estopped from setting up against his grantee, or those claiming under him, any after-acquired title to the same land. Such title inures eo instanti by way of estoppel to the use and benefit of the grantee. Rogers v. Cross, 3 Pin. 36; Wiesner v. Zann, 39 Wis. 188; House v. McCormick, 57 N. Y. 310. (4) In case of voluntary partition between joint tenants or tenants in common by mutual conveyances, their right to recompense in case of loss depends solely upon the covenants contained in the deed, and not upon any implied warranty. Weiser V. Weiser, 5 Watts, 279. Rountree v. Davidson. Opinion by Cassoday, J.

[Decided Feb. 19, 1884.1

SCHOOL-CONTRACT-BOARD TO MAKE-NOT INDIVIDUAL MEMBER.-Where wood is bought under cou tract for use of the district, the basis of an order for payment is the ascertainment of the fulfillment of the contract by the district board. The county treasurer, as one of the board, has the legal right to know if the contract has been complied with before paying for the same. The law requires the action of all members if present, and all must be notified to be present. Church of New London v. Vandusen, 37 Wis. 54. Every thing that was done by the clerk or director in acceptance of the wood, if any thing was done to that effect, was by their individual and separate action. The order was drawn and signed by the clerk, and then carried to the director, who was elsewhere, to be countersigned by him. The defendant was never consulted on the subject or notified of any action by the board or any of its members in reference to the matter. He had a legal right to be consulted about the acceptance of the wood, for he was as much responsible in relation to it as the other two members of the board. He knew that the order had been issued unlawfully, and he had a right to refuse to honor it Doyle v. Gill. Opinion by Orton, J. (20 Eng. Rep. 522.ED.)

[Decided Feb. 19, 1884.]

LIFE TENANT-WHEN NOT WASTE TO CUT TIMBER.— This action was brought to restrain defendant, widow, from committing waste by cutting and selling timber from the homestead occupied by her as, and to recover damages for what she had already cut. The lands in question were not disposed of by the testator's will. In some of the States the widow is not dowable of land in a wild state, unconnected with any cultivated farm or occupied lands. Connor v. Shepherd, 15 Mass. 164; White v. Cutler, 17 Pick. 248; Clark v. Holden, 7 Gray, 8; Johnson v. Perley, 2 N. H. 56; Chase v. Hagelton, 7 id. 171; Dickinson v. Jones, 36 Ga. 97. In our State the widow of every deceased person is entitled to a dower, or use for her natural life, of one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof, etc. Section 2159, Rev. Stat. As the deceased left a widow and issue, his homestead descended to his widow during her widowhood, and upon her marriage or death,