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PATENTS-LICENSE-RECEIVER-PRACTICE-COMITY OF COURTS.-(1) A license to construct and use a patented invention is personal to the licensee, and thereceiver of a firm to which such a liceuse has been granted will not succeed to the firm's right. Oliver v. Rumford Cheese Works, 109 U. S. 75. (2) Where a demaud against a receiver does not involve the adminis. tration of the trust committed to him, but arises from his having taken unlawful possession of property not included in the trust, a suit will lie against him personally as for a trespass, even though he took possession of such property under an order of court. Hartell v. Tilghman, 99 U. S. 547; Barton v. Barbour, 104 id. 126. (3) In such cases, where the receiver has acted under an order of a State court in taking possession of the property, an application should be made to such court to correct its order before resorting to an action of trespass on the case in a Federal court. (4) If that course is not followed the Federal court will suspend proceedings before it until the application to the State court is made, in order to avoid a conflict of jurisdiction. Cir. Ct., E. D. Mo., Oct., 1884. Curran v. Craig. Opinion by Treat, J.

MARINE INSURANCE-PAYMENT OF PREMIUMS-DELIVERY OF POLICY CONTAINING RECEIPT-RATIFICATION OF AGENT'S ACTS-LEX LOCI-GENERAL LIEN-UNPAID PREMIUMS.—(1) The delivery of the policy of insurance to the assured, containing a receipt for the premium, estops the company, for the reason that the receipt is conclusive evidence of payment, to the extent at least that such payment is necessary to give validity to the contract. The company will not be permitted to say that no contract was made. 3 Kent Com. 260; Provident Ins. Co. v. Fennell, 49 Ill. 180; Basch v. Humboldt Ins. Co., 35 N. J. L. 429. (2) When the unauthorized act of an agent is ratified by the principal, the ratification relates back to the time of the inception of the transaction, and the act is treated throughout as if it were originally authorized. Story Ag., § 244. See also Soames v. Spencer, 1 Dowl. & R. 32 (16 F. C. L. 14); Moss v. Rossie Lead M. Co., 5 Hill, 137; Lawrence v. Taylor, id. 107; Hankins v. Baker, 46 N. Y. 670. The subject of the insurance was a Canadian vessel. The note, payable at a Canadian bank, ofing a receipt for the premium note, was delivered in was dated and signed in Canada. The policy, contain

POWER OF LEGISLATURE.-(1) The perpetual exemp-
tion of the capital stock of a railroad corporation from
taxation by the provisions of its charter covers the in-
dividual interest therein of the stockholders; and a
subsequent law imposing a tax on the shares owned by
them impairs the obligation of the contract between
them and the State, and is unconstitutional and void.
Union Bank v. State, 9 Yerg. 490; Railroad Co. v.
Gaines, 97 U. S. 67. In Farrington v. Tennessee, 95
U. S. 679, the bank charter provided that the bank
"shall pay to the State an annual tax of one-half of
one per cent. on each share of the capital stock sub-
scribed, which shall be in lieu of all other taxes." It
was held that the words "in lieu of all other taxes,"
as thus used, meant in lieu of all other taxes that
might be imposed on that subject of taxation, viz., the
shares of the capital stock; and that accordingly it ex-
cluded a tax on those shares assessed upon them
against the individual shareholder as his property.
Mr. Justice Swayne, delivering the opinion of the
court, said: "There is no question before us as to the
tax imposed on the shares by the charter, but the
State has by her revenue laws imposed another and an
additional tax on these same shares. This is one of
those other taxes' which it had stipulated to forego.
The identity of the thing doubly taxed is not affected
by the fact that in one case the tax is to be paid vica-
riously by the bank, and in the other by the owner of
the share himself. The thing thus taxed is still the
same, and the second tax is expressly forbidden by
the contract of the parties. After the most careful
consideration we can come to no other conclusion.
Such, we think, must have been the understanding and
intent of the parties when the charter was granted
and the bank organized. Any other view would ig-
nore the covenant that the tax specified should be in
'lieu of all other taxes;' it would blot those terms
from the context, and construe it as if they were not
a part of it." (2) The Legislature of a State may dis-
tinguish between the interests of a corporate body in
its capital or capital stock and that of the individual
shareholder as separate subjects of taxation; so that
one may be taxed and the other exempt, or both gov-
erned by the same rule of taxation or exemption, at
its discretion. Cir. Ct., M. D. Tenn., 1884. State
Tennessee v. Whitworth. Opinion by Matthews, J.
BANKRUPTCY-PARTNERSHIP CREDITORS-PARTNER
ASSUMING FIRM DEBTS.—(1) The rule that the joint es-
tate must be applied to pay the joint debts and the
separate estate to pay the separate debts is only appli-
cable where the joint estate as well as the separate es-
tate is before the court for distribution.
Lewis, 13 N. B. R. 33. And where there is no joint es-
tate the firm creditors, under such a state of facts as
exist here, have a right to share in the separate estate.
Blum. Bankr. 268; In re Pease, 13 N. B. R. 168. There
is no joint estate here; for by agreement the assets of
the firm of Lloyd, Hamilton & Co. still remaining in
specie, are the separate estate of Wm. M. Lloyd, the
same as if they had always been his individual prop-
erty. Colly. Partu., § 894 (5th Am. ed.); Bullitt v. M.
E. Church, 26 Peun. St. 108; Howe v. Lawrence, 9
Cush. 553. And it is quite immaterial that the assign-
ees have kept a separate account of these assets. (2)
Where one of the partners takes the firm assets and
agrees to pay the joint debts, he becomes individually
liable; and the partnership creditors may, at their op-
tion, prove against his estate in bankruptcy, and share
pari passu with the separate creditors. Blum. Bankr.
563; In re Downing, 3 N. B. R. 181, 183; In re Long, 9
id. 227; In re Rice, id. 373; In re Collier, 12 id. 266.
Dist. Ct., W. D. Penn., Sept. 1884. Matter of Lloyd.
Opinion by Acheson, J.

U. S. v.

Canada. The ratification, if ratification were needed, related back to what took place in Cauada. It must be held therefore that the contract was made in Canada, and as a necessary result, that the case must be determined by Canadian law. Heebner v. Eagle Ins. Co., 10 Gray, 131, 143; Male v. Roberts, 3 Esp. 163; Thwing v. Great West. Ins. Co., 111 Mass. 93; Wood Fire Ins., § 93. (3) The law of New York' creating a lieu in favor of underwriters for unpaid premiums of insurance has no relation to insurance on a foreign vessel, the contract for which is made in a foreign country. Moores v. Lunt, 4 T. & C. 154; affirmed, 60 N. Y. 649; Brookmau v. Hamill, 43 id. 554. Having no privilege in Canada, there can be none anywhere. I am aware however that there is not entire unanimity among the authorities upon the last question considered, namely, whether the law of the contract or the law of the forum should be controlling. See The Maggie Hammond, 9 Wall. 435, 451, 452; Scudder v. Union Nat. Bank, 91 U. S. 406, 412, 413; Harrison v. Sterry, 5 Cranch, 289; The Union, 1 Lush. 137; Ogden v. Saunders, 12 Wheat. 213, 361. (4) No general lieu is created by the maritime law in favor of the insurer for unpaid premiums. The affirmative of this proposition is held by the following authorities, where the lieu is relegated to the lowest class of maritime privileges. The Dolphin, 1 Flippin, 580; affirmed in a qualified way, id. 592; The Illinois, decided on the authority of

The Dolphin, 2 id. 383; The Guiding Star, 9 Fed. Rep 521; affirmed, 18 id. 263. In this case the lien was sustained because given by a State statute upon vessels navigating the waters of the State or bordering thereon. The following cases decide against the lien: The Jenny B. Gilkey, 19 Fed. Rep. 127; The John T. Moore, 3 Woods, C. C. 61; The Robert L. Laue, 1 Low. 388, where the question is referred to, but not decided. See also the note to The Dolphin, in which the reporter has collected numerous authorities bearing upon the subject. The argument against the liens seems to me to have the most weight. That the contract of insurance upon a ship is in its nature maritime is no longer an open question. Insurance Co. v. Dunham, 11 Wall. 1. It is however a contract for the personal indemuity of the insured. The credit is given to him, not to the ship. The principle upon which the law recognizes a lien for necessaries is that the ship may thus be enabled to engage in the competitions of commerce. Security is given the material-man, it is true, but the chief benefit is to the ship. It enables her to sail. A contract of insurance in no way aids the ship. She sails no better and no faster because of the insurance. It puts no steam in her boilers and no wind in her sails. Dist. Ct., N. D. N. Y., 1884. Matter of Insurance Cos. Opinion by Coxe, J.

NEW JERSEY SUPREME COURT ABSTRACT.*

CONVERSION-DEMAND AND REFUSAL TO DELIVER.

Where goods have been deposited with a person for any purpose, and any other person than the depositor demands them of the bailee, the latter is not liable to an action of trover until he refuses to deliver after a reasouable time taken and opportunity given to ascertain the true ownership of the property. Lee v. Bays, 18 C. B. 607; Carroll v. Mix, 51 Barb. 212; Alexauder v. Southey, 5 B. & Ald.247; Isaac v.Clark, 2 Bulst. 314. In this case the refusal to deliver the goods to the real owner was not grounded upon an expressed doubt as to the wife's interest in them, but was accompanied by an unqualified denial of her title, and an assertion that they belonged to her husband. This refusal was a conversion. Hinckley v. Baxter, 13 Allen, 139; Thompson v. Rose, 16 Conn. 71; 2 Greenl. Ev., § 644. Wykoff v. Stevenson. Opinion by Reed, J.

OFFICER-USURPER OF PUBLIC OFFICE-NO ACTION FOR SALARY.-An unauthorized person gaining possession of a public office by force or fraud has no right of action against the public for the prescribed fees or salary for services rendered during such usurpation. The reasons which protect one who has performed the services belonging to a public office, under an appointment apparently regular and legal, in ignorance of and without the means of ascertaining defects in the title, and where his refusal to serve would leave a vacancy in office, whether such reason be weak or strong, have no application to a case like this. In such a case we cannot doubt that in some form the officer de jure would be entitled in law to demand and have compensation for the injury done him by such an intruder. If payment be made to the officer de facto the public will be protected from further claim, as the disbursing officer is not bound to know the title by which an actual incumbent holds, and the rival claims to the fund must be litigated between the individual claimants; but upon suit brought by the incumbent against the public for pay, his title will be inquired into. Dolan v. Mayor, etc., of New York, 68 N. Y. 274. And he must establish his right to be paid as between the plaintiff and the public represented by the defendant. Stuhr v. Curran, 15 Vr. 181, distinguished. Compensation *To appear in 46 N. J. L. Reports.

attached to the office is not promised to him by expression or legal implication, and the services are voluntarily rendered. Dill. Muu. Corp., §§ 168, 169, and cases cited; Hoboken v. Gear, 3 Dutch. 265; Smith v. Mayor, 37 N. Y. 518. Meehan v. Freeholders of Hudson. Opinion by Knapp, J.

CONSTITUTIONAL LAW-REGULATION OF COMMERCE— LICENSE FEES.-The provisions of the act for the better enforcement in Maurice river cove and Delaware bay of the act entitled "An act for the preservation of clams and oysters," is not repugnant to section 8, article 1, of the Constitution of the United States, as an attempt to regulate commerce between the States. The imposition of a license feel upou all boats engaged in planting or taking oysters in the said place, is not obnoxious to the requirement in the State Constitution that property shall be assessed under general laws and by uniform rules according to its true value. The Constitutions of other States contain provisions analogous to the requirement contained in ours, aud wherever the courts have been called upon to construe them in regard to their application to assessments upon occupations in the form of license fees, they have been held inapplicable to the latter class of imposts. The almost, if not quite, unbroken course of decision has been in this direction, that these impositions are not taxes within the purview of the constitutional requirements. People v. Thurber, 13 Ill. 554; Cole v. Hall, 103 id. 30; Chilvers v. People, 11 Mich. 43: Youngblood v. Sexton, 32 id. 406; State v. Henry, 26 Ark. 523; Bohler v. Schneider, 49 Ga. 195; People v. McCreery, 34 Cal. 432; Cooley Tax., §§ 401, 402, 427. Johnson v. Loper. Opinion by Reed, J.

IOWA SUPREME COURT ABSTRACT.

MASTER AND SERVANT-RISKS OF EMPLOYMENTdaugers from snow-banks are inseparable from the PERSONAL INJURY-MEASURE OF DAMAGES.—(1) The operation of railroads when snow prevails and is removed from the track, and employees when they enter railroad company is not chargeable with negligence in the service assume the risk of such dangers, and the

leaving the accumulations of snow which it removes from its tracks in proximity thereto, even though some danger to its employees engaged in the operation of its trains is created thereby. Dowell v. Burlington, C. R. & N. R. Co., 17 N. W. Rep. 901, followed. (2) In an action by the administrator of a fireman against a railroad company for damages for negligently causing intestate's death, in estimating the damages sustained it is proper to consider his calling at the time of his death, his ability, the amount of his earnings, and like circumstances, and the estimate should be made with reference to such facts as actually existed, and such as it is reasonably certain would have occurred in the future but for his death; but it is error to allow evidence that when firemen had sufficient experience, and had acquired the requisite skill, they were sometimes employed as engineers, and paid an increased compensation for their services. Brown, Adm'x, etc., v. Chicago, R. I. & P. R. Co. Opinion by Reed, J.

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when he forecloses the mortgage he is entitled to have the amount so paid included in the judgment against the mortgagor; but if he take judgment for the amount of the original debt only, the lien of the mortgage is exhausted, and a purchaser at the foreclosure sale takes a clear and absolute title to the premises. (2) That such purchaser knew when he purchased the premises that the mortgagee claimed a lieu thereon for the amount of the taxes separate from the lien of the mortgage will not change the effect of the sale. Dickinson v. White. Opinion by Reed, J. [Decided Oct. 24, 1884.]

MORTGAGE-CONVEYANCE SUBJECT TO-DIVISION OF TRACT.-T. sold a portion of a tract of real estate to L., subject to a mortgage, and the rest of the tract to S., who sold to B. The mortgage was foreclosed, and B. insisted that L. was bound to pay one-half of the mortgage debt. Held, that the assumption of a portion of the indebtedness by L. inured to the benefit of B. to the extent only of the amount L. had agreed to pay, and that B. could not recover more than the agreed Bum. Edwards v. Thostenson. Opinion by Seevers, J.

[Decided Oct. 24, 1884.]

MARRIAGE-DIVORCE-ADULTEROUS MARRIAGE OF PLAINTIFF.-The rule that it is not competent for one of the parties to a marriage to come into court aud complain of the other's violation of matrimonial duties, if herself likewise guilty, does not apply to one who contracts a second marriage under the belief that her husband is dead. The rule in England, and in at least several of the States in this country, is that when a party knowingly commits adultery such act may be pleaded in bar of an action for a divorce. Clapp v. Clapp, 97 Mass. 531. The rule may be thus briefly stated: "It is incompetent for one of the parties to a marriage to come into court and complain of the other's violation of matrimonial duties, if himself likewise guilty." 2 Bish. Mar. & Div., § 76. It is uncertain when the marriage of the plaintiff and John W. Smith took place; but from the meager evidence on that subject before us we reach the conclusion that it must have taken place from ten to fifteen years after the plaintiff last heard from the defendant. She might have concluded he was dead. There is no evidence tending to show that she supposed he was living. There is no evidence tending to show she was guilty of any criminal intent, and we conclude such a marriage does not bar her right to a divorce. Knowingly she did not commit adultery. She cannot be regarded as a guilty party in this action. Smith v. Smith. Opinion by Seever, J.

[Decided Oct. 24, 1884.]

MASTER AND SERVANT-LIABILITY FOR TORT OF SERVANT-SCOPE OF EMPLOYMENT-EVIDENCE-DECLARATION OF AGENT-RES GESTA-PROOF OF AUTHOR

ITY. (1) Where an employee of a railroad company has authority to remove persons from traius who have no right to be thereon, the company is liable for any willful wrong he may do in removing a trespasser, and it is immaterial what motive he had or with what malice the act was done. It is claimed by counsel for appellant that if the petition and plaintiff's testimony be true, the assault was felonious, and was an act wholly without the scope of the brakeman's authority. Α large number of cases are cited upon the question as to the liability of a master for the wanton, willful, and intentional wrong of his servant. Among the authorities which hold that the master is not liable in such cases are De Camp v. Mississippi & M. R. Co., 12 Iowa, 384; Cooke v. Illinois Cent. Railroad Co., 30 id. 202; Cleveland v. Newsom, 45 Mich. 62; S. C., 7 N. W.

Rep. 222; Fraser v. Freeman, 43 N. Y. 566; Howe v. Newmarch, 12 Allen, 49. In the case of McKinley v. Chicago & N. W. R. Co., 44 Iowa, 314; De Camp's case aud Cook's case, above cited, were distinguished upon the ground that in the latter the injury was done to a passenger, while in the former it was done to livestock, respecting which the duty of the railroad company was entirely different. It is said however in that case, that if we were left to determine the question upon principle whether an employer should be held liable for the willful or criminal acts of the employee, done in the course of his employment, we should have very little or no hesitation in affirming such liability, and this because the employer has placed the employee in a position to do wrong; and it being done in the course of his employment, the intent with which it was done should not affect the liability of the employer, whether the intent be good or ill. So long as he acts within the scope of his employment the employer should be bound. (2) The declarations of a brakeman in putting a trespasser off of a train that he had authority to put him off are admissible as part of the res gestæ in an action against the railroad company for damages caused by the forcible ejection. In 1 Greenlf. Ev., § 113, it is said: "Whenever what he did is admissible in evidence, then it is competent to prove what he said about the act while he was doing it." It was competent for the purpose of showing that the brakeman intended to put the plaintiff off the car. It was not competent for the purpose of showing the authority of the brakeman to eject the plaintiff. But the record does not show that this specific objection was made to the testimony. (3) Testimony of a witness, who before and after the ejection from the train complained of, had been for fourteen years a foreman, brakeman, engineer, or conductor of the railroad company, that brakeman were subject to the orders of conductors, and had orders to eject trespassers from trains, and testimony of witnesses that they had seen brakemen eject trespassers, is competent evidence of the authority of a brakeman to eject a trespasser. Marior v. Chicago, etc., Railroad Co. Opinion by Rothrock, C. J.

[Decided Oct. 22, 1884.]

NEGLIGENCE-EMPLOYEE OF RAILROAD-QUESTION FOR JURY.-An employee of a railroad who, after signaling the train to stop, goes on to the track to make a coupling without looking or listening to see that the train actually stopped, is not necessarily guilty of negligence, and whether he is or not should be left to the jury. The only case in which this precise question has been determined, which has come under our knowledge, is Beems v. C., R. I. & P. R. Co., 58 Iowa, 150. In that case the decedent was attempting to uncouple certain cars while the train was in motion, and he gave a signal to check the speed of the train, and without waiting to see whether it was obeyed or not, stepped between the cars and was injured. It was held that he was not "necessarily guilty of contributory negligence." We are unable to distinguish that case from this, and to a considerable extent, at least, the same may be said in relation to Berry v. Central R. Co., 40 Iowa, 564, where a car repairer went under a car on a side track for the purpose of repairing the same, with the knowledge of an employee in charge of the track and movements of trains at that place, and it was held that he had a "right to suppose that no cars would be switched upon the track without notice to him, or at least that. the switching would be doue in a reasonably careful manner.' The only material difference between this case and Steel v. Cent. R. Co., 43 Iowa, 109, is that the plaintiff in that case saw that the signal to check the train was being obeyed at the time he attempted to pick up the pin, which lay ou the

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track, and it was said in that case that he was warranted in believing his signal would be obeyed. The fact that the plaintiff went on the track before the train stopped should not aloue prevent his recovery, unless he was negligent in so doing. To have so waited would have caused delay, and we apprehend railway companies expect their employees to avoid all delays possible. The necessities of the business, and due regard to the safety of traius, their own and lives of others, require prompt action on the part of employees in charge of trains. While this is true, recklessness cannot be tolerated. It is not believed that any general rule can be laid down. Therefore it is and must, ordinarily, be a question for the jury whether an employee of a railway company, whose duty it is to couple and uncouple cars attached or to be attached to a train, is or is not negligent when he goes on the track in front of a moving train in the performance of such duty. The plaintiff was rightfully on the track, and it cannot be said that he was guilty of negligence if he had taken the ordinary and usual precautions for his own protection before he placed himself in that position. In relation to Pennsylvania Co. v. Hankey, 93 Ill. 580, we only deem it necessary to say that the question in that case was whether the appellee, in the exercise of proper care, should have made an attempt to make a coupling when the train was moving, he knowing it was dangerous to do so because of the condition of the track along which he was required to walk while attempting to make the coupling. Counsel insist that the rule which requires travellers who are about to cross a railroad track to ordinarily look and listen for an approaching train should be applied to employees who are required to go on the track in the performance of their duties. But we think such rule should not be strictly applied to an employee who is engaged in making up trains, which must, in a great measure, require his undivided attention. The traveller looks, listens, and crosses the track, and his duty is ended. This is not so with an employee engaged in making up trains, for it is undoubtedly true that frequently several cars are to be uncoupled and others coupled to the train. Considerable time is therefore required. If an employee so engaged is absolutely required to look and listen for approaching trains, or unexpected movements of the train in in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such an employee to look and listen for the movements of trains before he steps or walks on the track must be left to the jury to determine, and therefore it cannot be said that the plaintiff, as a matter of law, was guilty of negligence. Ominger v. N. Y. C. & H. R. R. Co., 4 Hun, 159; Snow v. Housatonic R. Co., 8 Allen, 441; Indianapolis, B. & W. R. Co. v. Carr, 35 Ind. 510; Crowley v. Burlington, C. R. & N. R. Co., 20 N. W. Rep. 467. Rule 59 of the company is in these words: "In all cases of doubt take the safe side and run no risk." The plaintiff had kuowledge of this rule, and it is insisted that he disregarded it, and therefore he is not entitled to recover. The rule implies that an employee must exercise judgment and discretion in determining whether danger existed if he did a thing in a certain way or at a certain time. In this respect it is different from other rules to which our attention has been called by counsel. In I. C. R. Co. v. Houck, 72 Ill. 285, the rule was that ouly 110 pounds of steam should be carried. In Shanny v. Audroscoggin Mills, 66 Me. 420, the rule required that the machinery should be stopped at a certain hour for the purpose of being cleaned. In Wolsey v. Railroad Co., 33 Ohio St. 227, coupling by hand was strictly prohibited, and the employee was required to use a short stick. Under these rules no discretion was left to the employee. He failed to obey them,

either through recklessness or for his own couvenience. As they were adopted for his benefit, or should be regarded as just and proper, we can well see an employee should not recover damages for an injury received solely because he disregarded such precautions. The rule in O'Neill v. K. & D. M. R. Co., 45 Iowa, 546, and all other cases cited by counsel, were of a like character. It is difficult to say, when judgment and discretion is devolved upon an employee by a rule of the company, that he cannot recover damages for an injury received, because as claimed, he failed to properly exercise the discretion with which he was invested. It seems to us this is necessarily a question for the jury. Besides this the plaintiff gave a signal which should have caused the train to stop. Had this been done the plaintiff could have stepped on the track as he did with perfect safety. Bucklew v. Central lowa R. Co. Opinion by Seevers, J.

[Decided Oct. 23, 1884.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

NEGLIGENCE-APPROACHES TO PREMISES LICENSEE. The jury were warranted in finding that the defendant was seised of the premises and in possession and control of that part of them where the accident happened. It appeared from the defendant's own testimony that he was actually the landlord and had collected the the rents since 1877. Dainty v. Brocklehurst, 3 Exch. 207. He spoke of having got possession, that is, as we understand it, of the whole premises; and there was evidence that he assumed to have control over the well into which the plaintiff's intestate fell. There was also evidence that the sub-lessees of the premises had surrendered to the defendant's lessee before the latter surrendered to the defendant. Amory v. Kannoffsky, 117 Mass, 351, and cases cited. If there was any technical defect in the surrender of the sub-lessees, the mere fact that there was a formal and unasserted right outstanding would not prevent the defendant's being chargeable to the same extent as if there had been no flaw in his right of possession. We assume that the defendant let the tenement, from which the plaintiff's intestate was coming at the time of the accident, when the premises were in their present condition, and therefore stands in the same position toward the public as if he himself had put the premises in that condition before the lease. The plaintiff's intestate went to the tenement referred to to stop a disturbance of the peace which was taking place there, as he had a right to. Gen. Stats., ch. 23, § 1; Pub. Stats., ch. 34, § 1. He seems also to have been invited by the occupant, whose son was making the trouble. He arrested the sou, but as the arrest does not appear to have affected his course in leaving the place, his right to recover would not be affected if the arrest was unlawful. He came on the premises lawfully, and could lawfully leave them. Under the instructions of the court, the jury must have found that the intestate was using the passageway by the defendant's invitation. That is to say, that the intestate had a right to understand from the appearance of the premises that the intended mode of approach to the tenement in question was over the open space where the well was; and the evidence warranted the finding to that extent. If the appearance of the premises is such as to point out a certain open space as the mode of approach, while it may not be the defendant's duty to take care of the whole open space as an approach, his duty to keep safe the approach offered, whatever it is, is as great as if it were a wrought avenue. And

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although the jury should regard less than the whole
space as the approach proper, yet they would be at
liberty to find, from the absence of any marks defining
and separating the approach proper from the rest of
the space, that an exceptional danger outside the for-
mer and in the latter made the approach unreason1-
ably dangerous. See Barnes v. Chicopee, ante; White
v. France, 2 C. P. D. 308; 21 Eng. Rep. 305. To put it
in another way, the jury had a right to find that the
plaintiff was properly where he was. Gilbert v. Nagle,
118 Mass. 278. The defendant argues that the plaintiff
was not using due care, because coming to an obstacle
fifteen inches high in the dark, and stepping upon it,he
then stepped forward and fell into the well. The jury,
who regarded the well as making the passage danger-
ous, may have considered that the plaintiff had a right
to assume that no such danger would be allowed to
beset the way. We cannot say, as matter of law, that
they were wrong. Severy v. Nickerson, 120 Mass. 306;
Fox v. Sackett, 10 Allen, 535; Lawless v. Connecticut
River Railroad, 136 Mass. 1. Leavoyd v. Godfrey.
Opinion by Holmes, J. [See 19 Alb. L. J. 267.—Er.]
[Decided Jan., 1885.]

TRUST AND TRUSTEE-FUNDS MAY BE FOLLOWEDMISAPPROPRIATION.-Those who receive trust property from a trustee in breach of his trust become themselves trustees thereof, if they have notice of the trust. So when a trust fund is employed to purchase, in whole or in part, a particular piece of property, so long as the trust fund can be identified it may be followed into the hands of any one purchasing with notice, as he has made himself an accomplice in the original wrongful act. The property which has been substituted for the fund is itself impressed with the trust originally imposed upon the fund. But it is necessary that such property should be pointed out and identifiled. When the property of au unfaithful trustee is augmented by the incorporation into his own property of trust funds, and with his property thus augmented he makes purchases or conveyances, those dealing with him, even if they know him to be an unfaithful trustee, cannot be held to he trustees of property which cannot be connected with the trust fund. If one knows that a purchase is made from him with the specific funds of an estate wrongly misappropriated, he may be compelled to repay that which he thus received. Trull v. Trull, 13 Allen, 407. But if he receives it, not as a distinct fund, and with no knowledge that would identify it as forming a part of the trust fund, his general knowledge that the party paying wrongfully used trust funds would not render him thus responsible as trustee. Howard v. Fay. Opinion by Devens, J.

[Decided Dec., 1884.]

CONSTRUCTION

towns were first added to the list of preferred credi-·
tors, the reason was expressed to be "so that county,
city, or town taxes shall be entitled to the same prior-
ity or preference as State taxes are now entitled to in
cases of insolvent debtors;" and that although these
words are omitted in the Public Statutes, we may
properly recur to them for the purpose of construing
the statute as it now stands. The provisions of the
Public Statutes were certainly intended as a re-enact-
ment, without change in the law as it previously ex-
isted. Drew v. Streeter, 137 Mass. It was the inten-
tion of the commissioners, as stated by them, to ex-
press in the text of the revision the existing laws ac-
cording to their understanding of them in such a man-
ner that no existing rights should be changed. When
there is substantial doubt as to the meaning of the
language used in the Public Statutes, the statutes, as
they previously existed, afford therefore a most valu-
able guide in their construction. But when language
is clear, we cannot look to the earlier statutes to see if
an error has been made by the Legislature in its un-
derstanding of them, as there is no room for the office
of construction. Lewis v. United States, 92 U. S. 621.
Even if the meaning it has affixed to the earlier stat-
utes is different from that we should attribute to
them, that which it has adopted, if clearly expressed
by the Public Statutes, is controlling. If the language
of the statute, as it now exists, were susceptible of
two constructions, an argument drawn from the stat-
ute as it was formerly expressed (should we adopt the
meaning given to it by the plaintiff) would be conclu-
sive. United States v. Bowen, 100 U. S. 508. But it is
impossible for us to say that the explicit language used
in the revision was not so used for the very purpose of
removing any doubt which might have been caused by
the expression in the statute of 1862 relied on by the
plaintiff. Bent v. Hubbardston. Opinion by Dev-
ens, J.
[Decided Dec., 1884.]

CEMETERIES-EASEMENT OR FEE - ALTERATION BY CITY-RIGHTS OF OWNER.-It has been said that rights of burial in public burial grounds are peculiar and are very dissimilar to rights in pews; that they are so far public that private interests in them are subject to the control of the public authorities having charge of police regulations. Sohier v. Trinity Church, 109 Mass.

1, 21. See Pub. Stats., ch. 82, § 15. It has been held, in the case of a sale by plan, that the fee of the ways remained in the owner of the cemetery who retained general charge of the grounds. Seymour v. Page, 33 Conn. 61. Finally, apart from any peculiar principles applicable to cemeteries, it is to be borne in mind as a general proposition that a reference to a plan does not necessarily add to or enlarge the easements conveyed by the deed. Williams v. Boston Water Power Co., 134 Mass. 406, 416. Taking all these considerations into account, we should hesitate to decide that the plaintiff could have any standing in equity to complain of alterations made in good faith for the general improvement of the cemetery, and not impairing the value of his lot, or his means of access to it. If he has any such right, it is inter apices juris, and when the master finds that the pecuniary loss to him is nothing, and that the injury or damage, if any, is " wholly one of sentiment and temper of so slight a character as to be counted among the trifles which the law does not regard," and when it further appears that the plaintiff has lain by and taken no other action than to protest, while "the city has expended in the work in question a large sum of money manifestly to the general im

INSOLVENCY — PREFERRED DEBTS OF STATUTE.-It is provided by the Pub. Stats., ch. 157, § 104, that in the order for a dividend on an insolvent estate, "the following claims shall be entitled to priority, and to be paid in full in their order: First, all debts due to the United States and all debts due to and taxes assessed by this State, or any county, city or town therein.' We concur in the plaintiff's view that the taxes collected by the insolvent as town collector ceased to be taxes eo nomine, and constituted a debt due by him to the town. The words "debts due " and "taxes assessed" being connected conjunctively in the statute, it would not seem possible to construe it in any other way than as providing that they are alike preferred debts. They cannot be limi-provement and benefit of the cemetery, and the cost of ted to debts due for taxes assessed from those to whom they are assessed. The plaintiff urges that when by the Stat. of 1862, ch. 183, § 11, counties, cities, and

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removing or opening the wall and terrace across the avenue would largely exceed the amount or value of the plaintiff's individual interest in the premises,"

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