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with what he drank afterward was sufficient to seri- foot-paths and walks over the park in various direc ously impair a man's health, was inadmissible, as tions, but those paths were not a part of the system being immaterial and irrelevant. The court said: of highways. They were not laid out as public “ The offer did not propose to show that he there- ways, and the town is not liable under the statutes after became so intemperate as to either seriously or respecting highways or town ways for any defect or permanently impair his health. It was to show by want of repair which may exist in them. experts that the amount he had drunk before and Worcester, 102 Mass. 489; S. C., 3 Am. Rep. 485; the amount he had drunk afterward was sufficient Gould v. Boston, 120 Mass. 300. Nor can the town to seriously impair a man's health. The capacity of be held liable upon the ground that it negligently persons to drink liquor is so unequal, and the effect suffered a dangerous place to exist in the park, and is so different on different individuals, it by no failed to give proper notice to persons using the means follows that a quantity sufficient to affect park by its invitation or license. It holds the park, some other man's health had the same effect on the not for its own profit and emolument, but for the health of Rohkopp. The question in issue was, did direct and immediate use of the public. If it can his intemperance so affect him? The court opened be said that there is any duty in the town to conthe door wide and permitted the plaintiff in error struct paths over it or to keep such paths in repair, to give all the evidence offered of Rohkopp's in- it is a corporate duty imposed upon it as the repretemperate habits and the effect on him. That he sentative and agent of the public and for the public was habitually intemperate was not denied or con- benefit. For a breach of such a duty, a private actroverted. It was clearly proved. The contention tion cannot be maintained against a town or city, was whether its effect was such as to bring him unless such action is given by statute. Ilill v. Boswithin the clause of the policy which would pre-ton, 122 Mass. 344; 8. C., 23 Am. Rep. 332, and vent à recovery. a
Possessing a constitution and cases cited.” The defendant had judgment. health which habitual intemperance for so many years had been unable to seriously injure, showed a capacity to withstand its action, that justly con
The other case, Larrabee v. Peabody, was an action fined the evidence to the effect the liquor had on
to recover for personal injuries sustained by falling him, and not what effect it might have on some
into a trench near a public building. The building other person.” Sharswood, C. J., and Gordon and
in question, which was erected and owned by the Trunkey, JJ., dissented. This condition was dis
defendant town, was used for a town house and tinguishable from the usual conditions that the bab-school-house, and it also contained an audience hall,
which had been used for various kinds of public its of the insured are sober and temperate, in which case it is sufficient to show the contrary, and it is meetings and entertainments, the occupants paying no answer that the intemperance was harmless ;
a small sum for the use of it. On the evening of Southcombe v. Merriam, 1 Car. & Marsh. 286; and July 10, 1877, an entertainment was given by a temthat the policy shall be void if the insured die from
perance society in the hall, which the plaintiff atthe use of intoxicating liquors.
tended; and no charge was made to the society for the use of the hall on this occasion or during that
A trench had been dug in front of the Two recent Massachusetts cases are noteworthy building for the laying of a water pipe to connect on the subject of the liability of towns for injuries the aqueduct in the street with the pipes in the caused by defects in public places. In Clark v. building. There was no barrier placed to guard the Waltham, 3 Mass. L. Rep., July 10, 1880, it appeared trench. The plaintiff, in passing out of the buildthat as the plaintiff was passing along one of the ing, stepped backwards and fell into the trench, refoot-paths or concrete walks of a public park, after ceiving the injuries complained of. The place dark, and just before leaving the same and entering where she stepped into the trench was from two to upon one of the public streets, and being barefoot four feet from the outer direct line of travel from at the time, he stepped upon the rough iron stub of the street to the steps, and there was a grass plot a post, which lacerated his foot and caused the in- covering that portion of the yard. The court said: juries complained of; that this iron stub was the (Morton, J.) “It is not claimed that the town is remnant of an iron post or rod fastened into a stone liable as for a defect in a highway. The trench was sleeper, which originally, with other posts, pro- not in the highway, nor in dangerous proximity to tected an opening in a continuous fence around the it. But the plaintiff claims that the trench was in park from all but foot passengers, and was at the dangerous proximity to the way or path leading to entrance of the park, and slightly outside the limits the town house, and that the town is liable to the of the street; that this post had been broken off a same extent as a private owner who invites persons long time before the accident; that this park was to enter his hall would be. If we assume, in favor conveyed to the town upon the condition that it of the plaintiff, that upon the evidence, a private should “forever after be kept open as and for a owner would be liable to her for her injury, yet we common for the use of said inhabitants of the town are of opinion that the town is not liable. The only of Waltham.” The court said: “By accepting the ground upon which it is claimed that a city or town deed of conveyance, the town agreed to the condi- is liable for defects in, or negligence in the repair or tion contained therein, and therefore holds the management of, buildings owned by it, is that, at park for the use of the public. It had constructed the time the liability attaches, it is using the buildings for emolument or profit as a private owner sell the goods, and account for the proceeds less the might. Oliver v. Worcester, 102 Mass. 489; 8. C., freight. The defendant sold the goods and con3 Am. Rep. 485; Hill v. Boston, 122 Mass. 344; S. verted the proceeds. Held, not larceny, but false C., 23 Am. Rep. 332. In the present case this ele- pretenses. ment of liability is wanting. The town received no Luddington v. Bell, p. 138. — A creditor of a discompensation or profit from the use of the hall on solved partnership accepted the note of one of the this occasion. The case therefore is not within the partners for a portion of his demand, in discharge reason of the rule relied upon, which creates a lia- of the maker from liability for the partnership debt; bility of the town. The fact that the town had held, an effectual release. before this occasionally let the town house for pub- Kilmer v. Smith, p. 226. — Defendant A. conlic meetings and entertainments is immaterial. Such tracted to convey to defendant B. certain premises occasional lettings would not create a permanent subject to certain mortgages. B. assigned the conand continuing liability. The liability, if any, at- tract to plaintiff. Without the consent or knowltaches because the town deals with and uses the edge of B. or the plaintiff, A. inserted in the deed public building for the purposes of profit, as a pri- a clause binding plaintiff to assume the payment of vate enterprise, and it continues only so long as it the mortgages. The plaintiff, supposing the deed thus uses it.” These decisions are in harmony with conformed to the agreement, accepted it and put it the current of authority which denies the common- on record. Held, that plaintiff could maintain an law liability of a municipal corporation for such ac- action to reform the deed by striking out that cidents in cases falling short of nuisance. The Hill clause. case was that of a child injured by an unsafe stair- Hay v. Star Fire Insurance Co., p. 235. — In an way in a public school-house.
action to reform a policy of insurance, after loss, held, (1) an agreement to renew a policy of insurance
is presumed to imply that no change is to be made SEVENTY-SEVENTH NEW YORK REPORTS. in its terms. (2) Such action is not "for the re
covery of any claim by virtue of this policy," within THIS volume includes decisions from May to Sep- the meaning of a provision that “no action for the
as of general interest :
be sustainable" unless commenced within twelve Chipman v. Palmer, p. 51. — In an action of nui- months after the loss. (3) The limitation comsance against several acting independently in pol- mences when the amount of the loss is due and payluting a stream by the discharge of sewerage from able, and not when the loss occurred. the premises of each, each is liable only to the ex- First National Bank of Meadville v. Fourth Natent of the separate injury committed by him. tional Bank of the City of New York, p. 320. On
Dunham v. Bower, p. 76. — An action by the owner the 22d of March, 1866, the National Bank of Crawof goods against a carrier for damages for failure ford county, Pennsylvania, made and delivered to to transport such goods, is barred by a previous plaintiff a sight draft upon Culver, Penn & Co., of judgment in favor of the carrier against the owner New York city. The plaintiff indorsed it and sent for the freight of such goods.
it by mail to defendant, its corresponding bank in Ring v. City of Cohoes, p. 83. - The plaintiff was that city, for collection and credit. Defendant redriving a blind horse and a wagon on one of defend- ceived it on the morning of March 26, presented it ant's streets; the horse becoming frightened, ran on the same day, received the drawee's check upon away, and was turned by a heap of ashes, negli- the Third National Bank of New York, and deliv. gently suffered in the street, into the gutter, where ered up the draft. The check was not presented the wagon struck against the nozzle of a city hy- for payment until the next day, and that through drant projecting four inches over the gutter, and the clearing house. The drawees failed on the latwas overturned, and the plaintiff was injured. ter day, and the bank refused to pay the check. Held, (1) that the running away of the horse would The defendant on the same day returned it and renot prevent a recovery; (2) that in the absence of ceived back the draft, formally demanded payment evidence that the hydrant was improperly placed, of the draft, protested it for non-payment, and the negligence could not be presumed from its position next day mailed notice thereof to plaintiff and the and construction; (3) that in the absence of a find-drawer. The drawee's account was largely overing that the accident was caused by the heap of drawn on the 26th, but the bank had been in the ashes no recovery could be based on the negligence habit of allowing such overdrafts for a month, the in suffering it to accumulate in the street.
drawees making their account good on the next Matter of Dodge and Stevenson Manufacturing Co., day, and the bank paid all their checks drawn that p. 101. — A judge is not disqualified from sitting in day, and some drawn later than the one in question, a cause to which a corporation is a party, by his and continued to do so down to the failure on the kinship to a stockholder of the corporation.
next day. In an action of damages for negligence Zink v. People, p. 114. — Defendant, by false rep- against defendant, a recovery was allowed for the resentations and with a design to cheat the com- amount of the draft with interest. Held, (1) that plainant out of goods, induced him to ship goods defendant was uegligent and liable for the conseto him, with the indicia of ownership, on the agree- quent damages; (2) that the facts did not justify ment that the defendant was to advance the freight, the finding that the draft would not have been paid
if duly presented; (3) but that the measure of dam- Prentice v. Knickerbocker Life Insurance Co., p. ages was the actual loss, and evidence was admissi- 483.- A policy of life insurance, assigned to plaintble to reduce it to a nominal sum.
iff, provided that the defendant should be notified Comer v. Cunningham, p. 391. — Williams bought forth with of the death of the insured, and that the of plaintiffs, at Savannah, Georgia, 118 bales of cot- owner should, as soon as possible thereafter, deliver ton, giving therefor his checks on Bryan & Hunter, to the defendant a particular account of the cause, of the same place, having previously put the latter time, place, and circumstances, and that unless such in funds by his draft on defendants to their order, proofs were presented within twelve months from and otherwise. Plaintiff delivered sixty bales to the time the death occurred the policy should be Williams, and it was shipped by Williams to defend forfeited. After the assignment the plaintiff paid ants, at New York, the bill of lading being in his the premiums by his checks. About July 1, 1872, name and having attached thereto the draft indorsed the plaintiff, being about to go to Europe, paid in by B. & H. Defendants paid the draft on presenta- advance the premium due August 10. It was then tion, the amount being more than the price of the agreed between him and the general agent that if sixty bales, and the transaction being according to the insured should die before the premium became their custom with Williams, and received the cot- due, the company's agents would know of it before ton without knowledge of any claim on it. One of the plaintiff could, and that the premium should be the checks on B. & H., being post-dated, was dis- returned, and that “there was no trouble at all in honored, and plaintiffs brought replevin for forty- regard to that whole thing." The plaintiff returned five bales, part of the sixty, relying on a statute of in October, 1872. The insured died July 27, 1873, Georgia which provides that "cotton, rice, and but his death was not known to either party until other products sold by planters and commission July, 1875. The plaintiff paid the premiums for merchants on cash sale shall not be considered as 1873 and 1874, having received notice from the comthe property of the buyer, or the ownership given pany of the time when they were to fall due, and up until the same shall be fully paid for, although receiving renewal receipts. In June or July, 1875, it may have been delivered into the possession of plaintiff learned of the death, notified the company, the buyer." Held, that the action could not be received blanks for proofs of death, and delivered maintained; that assuming that the statute was part the proofs to them July 9. The proof stated the of the contract, it simply made the delivery condi- death in July, 1873. The company retained the tional, affected nothing but the delivery, and could proofs until October next without objection, and not affect the rights of a bona fide purchaser in this then took the ground that the policy was forfeited State; and the sale being absolute and uncondi- | by the omission to serve the proofs within twelve tional, title passed to defendants.
months of the death. The policy was payable in National Trust Co. v. Gleason, p. 400. — In an ac- three months after proof of death. The company tion against several, including a married woman, for retained the premiums paid after the death, and money had and received by one by means of a never offered to return them until after the action. forgery to which all were parties, it is necessary to Held, that the forfeiture was waived. a recovery against all, to show that all were inter- Steinbach v. Relief Fire Insurance Co., p. 498. — ested in the money received; mere complicity in the The defendant, a New York corporation, insured forgery will not charge any in such an action; and the plaintiff at Baltimore, Maryland, against fire, on the married woman could not be rendered liable “his stock of fancy goods, toys, and other articles without showing a contract by her in her separate in his line of business, contained in his store occubusiness, or for the benefit of her separate estate, pied by him as a general jobber and importer." for which she had charged her separate estate. The The policy contained a condition against storing or conviction of one of felony in another State does keeping hazardous, extra hazardous, or specially not disqualify him as a witness in this.
hazardous articles in the second class of hazards anHennequin v. Clews, p. 427. — A discharge in nexed to the policy, and that during the time of bankruptcy bars an action for the conversion of se- such storing or keeping the policy should be of no curities pledged to the defendant as collateral to a effect. “Fire-crackers in packages
were classed loan, the cause of action not being a debt created as hazardous No. 2 in the second class, and fireby fraud, nor while acting in a fiduciary capacity, works were classed as specially hazardous. There within the meaning of the bankrupt act.
was a written permission “to keep fire-crackers on Butler v. Butler, p. 472. -- Plaintiff agreed to sale,” but no express permission to keep fireworks. furnish and erect on defendant's premises a gas The plaintiff kept fireworks and a fire originated generator "all ready to make gas,” the defendant from them. The plaintiff sued to recover for the agreeing to pay freight, furnish tank and house, loss in a Baltimore court, the cause was removed to and pay $1,500 for the machine, “$500 when the the United States court, and on the trial the court works are on the ground," and the balance in two held that the policy prohibited keeping fireworks, subsequent specified installments, The plaintiff and rejected proof to show that they constituted an shipped the materials, which the defendant received article in the line of business of a “German jobber and paid the freight on, but the defendant refused and importer,” and gave judgment for defendant. to permit him to erect the machine. Held, that the This was affirmed by the United States Supreme contract was entire and indivisible, and an action Court. Before that action the plaintiff had sued for the contract price was not maintainable. the Lafayette Fire Insurance Company in the New
York Supreme Court on a similar policy on the same attendance and necessary to enable him to prescribe, stock and had recovered, and on appeal the evidence a physician, who had ceased to attend a certain parejected in the United States court was held com- tient, but continued to know and see him, may tespetent, and the appellate court refused to be bound | tify as to his state of health when he ceased to atby the rule laid down in the United States Supreme tend him, and afterward, and whether, in his opinCourt. Plaintiff then brought this action to reform ion, excluding knowledge and information obtained the policy by inserting permission to keep fireworks, while treating him, and judging from his appearon the ground that it was omitted by mistake, and ance, he was and continued in good health. But to recover on the policy so reformed. Held, that see, contra, Grattan v. Metropolitan Life Ins. Co., 21 the judgment of the United States Supreme Court Alb. L. J. 288. is a bar to this action.
The volume contains the proceedings of the court People ex rel. Kelly v. Common Council of Brooklyn, upon the death of Chief Judge Church.
The charter of the city of Brooklyn prohibits every alderman from holding “any other
DRINKS, DRINKERS AND DRINKING. public office," and provides that by election to and acceptance of “such public office,” “his office as THE such alderman shall immediately become vacant, more. Drinking is the order of the day. Our and a special election shall be held to fill the va- bodies require to be constantly moistened internally, cancy. An alderman was elected representative to
else with the thermometer among the viueties, quickly
would the human form divine become little heaps of Congress, and accepted the office. Held, that his
dust and ashes. If we cannot drink just now let us office as alderman immediately became vacant; no
think about it. Longfellow says, “He who drinks judicial proceeding was necessary to determine bis
beer, thinks beer; and he who drinks wine, thinks title; and it was the duty of the defendant to order wine." Let us for a few minutes fondly imagine the a special election to fill the vacancy.
converse of this to be true, and while we think of beer, McDonald v. Mallory, p. 546. — Under a statute of cider, wino and ale, let us drink in fancy. New York, giving a right of action for wrongfully suggested by Lindley Murray's definition of a noun,
In dealing with this subject let us take the division or negligently causing the death of any person, an aud speak of “person, place and thing." action may be maintained for negligently causing Then, firstly, as to the " person.” A "common the death of a citizen of New York on the high drunkard” is not a regular tippler, but one who is freseas, on a vessel hailing from and registered in a
quently drunk. Proof that one was drunk six times
on six different days in three months, when there was New York port, and employed by the owners at the
no evidence of his state on the other days, does not time in their own business.
entitle him to the presumption that he was sober on Dickinson v. Edwards, p. 573. Where a resident the other days. Com. v. McNamee, 112 Mass. 255. of this State makes a note here, dated, payable, and The rule of law is that things are presumed to continue intended to be discounted here, and specifying no
An “habitual drunkard” is one who has the habit rate of interest, and the note is first negotiated in
of indulging in intoxicating drink so firmly fixed that another State, at a rate of interest lawful there but
he becomes drunk whenever the temptation is preunlawful here, it is invalid for usury.
sented by his being near where liquor is sold. MagaThe following are of important local application: hay v. Muguhay, 35 Mich. 210. Underwood v. Sutcliffe, p. 58. — A receiver in sup
The phrase "addicted to the excessive use of intoxi
cating liquors ” means not tbe occasional excessive plementary proceedings cannot maintain an action
use, but the habitual excessive use. Moury v. Home to have the judgment under which he was appointed
Ins. Co., 1 Big. Life and Acc. Ius. Co. Cas. 698. declared a lien upon lands conveyed by the judg- A court being called upon to define in an insurance ment debtor in fraud of his creditors.
case, what was meant by saying that "a man had alBrown v. Clark, p. 369. — The statutory revoca
ways been sober and temperate,” very wisely contion of an unmarried woman's will by her subse
cluded that such a thing could not be said of one who
although usually sober and temperate in his habits yet quent marriage is not abrogated by the married occasionally indulges in drunken debauches which women's enabling acts.
sometimes end in delirium tremens. Mutual Benefit First National Bank v. Tamajo, p. 476. — An oral | Life Ins. Co. v. Hotterhoff, 2 Cin. Sup. Ct. agreement between parties to an action on trial be- To say that a man is “intemperate" does not neces
sarily imply that he is in the habit of getting drunk. fore a referee, entered by the stenographer in his
Mullinex v. People, 76 Ill. 211. We fancy, however, the minutes, but not signed, and fixing no rate of com
courts would not hold the converse of this. pensation, but leaving it to the referee to fix the
A “saloon-keeper" is ono who retails segars, liquors, rate, is not an agreement in writing within section et hoc genus omne. Cahill v. Campbell, 105 Mass. 60. 313 of the old Code of Procedure.
Iu England, one who on Sunday walked to a spa two Matter of Garvey, p. 523. — A sidewalk is within
and a half miles away from his home for the purpose
of drinking the mineral water for the benefit of his the purview of a statute providing that when a
health, and then took some ale at an hotel (to keep the street has once been paved and the expense assessed
water down, we suppose), was held by the Court of to the adjoining owners, it shall not be thereafter Common Pleas to be a “traveller.” Pepler v. Richpaved at their expense, unless a majority of such ardson, L. R., 4 C. P. 168. owners petition for it.
England is a small country; one cannot travel far in Edington v. Ætna Life Ins. Co., p. 564. — Under
any direction there without getting his feet damp,
like Kanute and his friends. We presume this is why a statute prohibiting a physician from disclosing any what would here be called “taking a stroll” is there information acquired in the course of professional' dignified by the name of “travelling."
in statu quo.
In considering the question of selling liquor to a In Massachusetts a jury was held warranted in find"minor," the court held that the fact that a youth ing “ale” to be intoxicating, merely on the testimony wore a beard and said that he was 21 was no proof that of a witness who saw and smelled, but did not taste he was an adult. Gelty v.State, 41 Ind. 162.
it. Haines v. Hanrahan, 105 Mass. 480. Perhaps these The Bench doubtless believed that although every twelve men, good and true, had bad a view themAmerican boy may become President, still every one selves. is not a George Washington; but that, as Mark Twain In Maine one may be indicted and convicted for says, “Some Americans will lie." As to beards, na- selling for tippling purposes “cider and wine," alture occasionally “bursts out with a chin-tuft” before though made from fruit grown in the State, if the jury ber turn, or where she should not.
find that they are intoxicating. State v. Page, 66 Me. Now as to “ place." Judges do not exactly know- 418. at least when on the Bench-what a" saloon" is. They How much and how long would it take the jury to say that it does not necessarily import a place to sell find this out? Would they be allowed to take speciliquors; that it may mean a place for the sale of general mens with them into their withdrawing-room, as they refreshments, Kelson v. Mayor of Ann Arbor, 26 Mich. do documents, to examine? Or would the judge look 325; or that it may mean a room for the reception of upon cider and native wine as Mr. Justice Creswell company, or for an exhibition of works of art, etc. State did upon water? A counsel once objected to a jury v. Mansker, 36 Tex. 364. This latter idea shows how having water while considering their verdict. “Why high-toned Texan judges are, and that they have not, Mr. —, why not?” queried the judge, "water travelled in foreign parts. Neither an inclosed park of is neither ‘meat' nor 'fire,' and no sane man can say four acres in extent, nor an uninclosed and uncovered it is 'drink;' let the jury have as much as they platform, erected for the votaries of the Terpsichorean want." * art and where lager beer is sold, can rightly be con- The “Sabbath night" includes as well the time besidered a “saloon,” or a “house,” or “building," tween midnight on Saturday and daylight on Sunday, within the meaning of the Connecticut statute forbid- as the time between dark on Sunday and midnight. ding Sunday selling of intoxicating liquors, etc. State Kroer v. People, 78 I11. 294. v. Barr, 39 Conn. 41.
In England “habitual drunkenness" is not cruelty We opine that the Texan court would have held in the eye of the law (N. B.- 'Tis strange that jusboth this park and platform a “saloon,” as there would tice should be blind and law a Polyphemus), so to encertainly be "room for the reception of company,” title a wife to divorce. L. R., 1 P. & M. 46. and if the dancing was good and the dresses of any As to the mode of selling, Richards, C. J., thought Worth these would be an exhibition of works of art. that selling a “bottle of brandy" for $1.25 was selling
A “cellar" may be referred to as “the above-men- by retail (Reg. v. Durham, 35 U. C. R. 508); and in tioned house." Com. v. Intoxicating Liquors, 105 Mass. another case Haggerty, C. J., said that he would as181. In England it was held that a covenant not to sume that a sale of a “bottle of gin” at sixty cents use a house as a “beer house" was not broken by the was a sale by retail. Reg. v. Strachan, 20 C. P. 184. sale under a license of beer by retail to be consumed While in Illinois the court held that proof that intoxioff the premises. L. & N. W. Railway v. Garnett, L. cating liquors were retailed “by the drink warranted R., 9 Ex. 26. One Schofield had a license to sell beer a finding that the sale was in “no larger quantity than “not to be drunk on the premises," the bartender a quart” (as restricted in the Ill. Rev. Stat., 1845). handed a mug of beer through an open window in Lappington v. Carter, 67 Ill. 482. See, also, United States Schofield's house to a thirsty soul, who paid for it and V. Jackson, 1 Hugh, 531. The judges of this court immediately drank it standing on the Queen's high- clearly never heard of the Duke of Tenterbelly. way, but as close as possible to the window; the Court Bishop Hall tells us that this famous nobleman, when of Queen's Bench considered that this was not a case returning thanks for his election, took up his large of selling beer “to be consumed on the premises." goblet of twelve quarts, exclaiming should he be false Deal v. Schofield, L. R., 3 Q. B. 8.
to their laws, “Let never this goodly formed goblet of As to the “thing" itself. The phrase "spirituous wine go jovially through me," and then, says the hisliquors" does not include ' fermented liquors." Statetorian, “he set it to his mouth, stole it off every drop, V. Adams, 51 N. H. 568.*
save a little remainder, which he was by custom to set Cider is not a "vinous liquor." Feldman v, Mor- upon his thumb's nail and lick it off as he did.” rison, 1 Ill. App. 469. This seems reasonable enough Now that we have finished we fear that the foregoing in view of the decision that “vinous liquors" mean will not prove as satisfying as the descriptions of Hawliquors made from the juice of the grape. Adler v. thorne's old Inspector, and that not only is the reader State, 55 Ala. 16.
and the writer, but also the thing written is “dry." A“dram" in common parlance, in Texas, means
R. V. ROGERS, JR. somethiug that has alcohol in it- something that can intoxicate; at least so say the judges. Lucy v. State,
ACTION BY INHABITANT OF CITY AGAINST 32 Tex. 227.
CONTRACTOR WITH CITY FOR Some years ago in Indiana they were very virtuous, and the court decided that the mere opinion of a wit
BREACH OF CONTRACT. ness that common “brewer's beer" was intoxicating was not sufficient to prove that it was so, unless the
IOWA SUPREME COURT, JUNE 15, 1880. testimony of the witness was founded on a personal kuowledge of its effects, or of its ingredients or mode DAVIS v. CLINTON WATER-WORKS COMPANY. of manufacture; and tbe court could not take judicial notice that it was intoxicating. Glaso v. State, 43 Ind.
A water-works company made a contract with a city to
furnish water to be used in such city for the extinguish483.
ment of Ares, etc. Held, that an inhabitant of the city But alas for the good old days and the childlike in- had no right of action against the water-works comnocency of judges and jurymen! Now both courts pany for loss from a failure by it to fulfill the contract, and juries in that State will take notice of the fact that whereby his property was destroyed by fire. 'whisky is an intoxicating drink without any proof. Eagen v. State, 53 Iud. 162.
by fire. Sufficient facts appear in the opinion. * But ale and strong beer are "strong and spirituous liqnors. Nevin v. Ladue, 3 Den. 437, one of tho most enter- * The oath of the officer in charge of the jury, down this taining cases in the books.-(ED. Alb. L. J.
way, says "water excepted.”—[ED. Alb. L. J.