privileges received from the government, the better to secure the purposes to which the property is dedicated or devoted, affected with a public use. been differences of opinion among the judges of this There have court in some cases as to the circumstances or conditions under which some kinds of property or business may be properly held to be thus affected, as in Munn v. Illinois, 94 U. S. 113, 126, 139, 146; but none as to the doctrine that when such use exists, the business becomes subject to legislative control in all respects necessary to protect the public against danger, injustice and oppression. In almost every case which has been before this court, where the power of the State to regulate the rates of charges of railroad companies for the transportation of persons and freight within its jurisdiction has been under consideration, the question discussed has not been the original power of the State over the subject, but whether that power had not been by stipulations of the charter or other legislation, amounting to a contract, surrendered to the company or been in some manner qualified. It is only upon the latter point that there have been differences of opinion. The question then arises whether there is in the twelfth section of the charter of the plaintiff in error a contract that it may make any charges within the limits there designated. The first clause would seem to have been framed upon the theory which obtained very generally at the date of the charter, that a railroad was subject, like an ordinary wagon road, to the use of all persons who were able to place the necessary conveyances upon it. It was then generally supposed that while the company constructing the road was the owner of the road-bed, any one could run cars upon it upon payment of the necessary tolls, and following the regulations prescribed for the trains; and some charters granted at that period conmanagement of tained schedules of charges for such use. But this notice has long since been abandoned as impracticable. Railroad Co. v. United States, 93 U. S. 442, 446-449. ered as a condition to the enjoyment of the exclusive right designated, then the section only provides that so long as the maximum of rates specified is not exceeded, the company or its lessee shall have the exclu sive right to carry passengers and merchandise over its roads. It contains no stipulation, nor is any im plied, as to any future action of the Legislature. If the exclusive right remain undisturbed there can be no just ground of complaint that other limitations than those expressed are placed upon the charges author ized. It would require much clearer language than this to justify us in holding, that notwithstanding any altered conditions of the country in the future, the might for all time charge rates for transportation of Legislature had in 1833 contracted that the company persons and property over its line up to the limits there designated. It is conceded that a railroad corporation is a private corporation, though its uses are public, and that a contract embodied in terms in its provisions, or necessarily implied by them, is within pairing the obligation of contracts. If the charter in the constitutional clause prohibiting legislation imthis way provides that the charges which the company may make for its services in the transportation of persons and property shall be subject only to its own control up to the limit designated, exemption from legislative interference within that limit will be maintained. But to effect this result the exemption must appear by such clear and unmistakable language that it cannot be reasonably construed consistently with the reservation of the power by the State. There is no such language in the present case. Oct. 29, 1888. Georgia Railroad & Banking Co. v. Smith. Opinion by Field, J. FRAUDULENT CONVEYANCES-INSURANCE POLICIES -RIGHTS OF CREDITORS-RECOVERY OF PREMIUMS.Insurance upon the life of a husband, taken out by the wife, or by the husband for the benefit of his wife and payable to the wife or children free from the claims children in a State whose statutes make the proceeds of the husband's creditors, cannot be recovered by such creditors, though the husband was insolvent when the policies were issued, and the premiums were paid out of his money, nor can the premiums be recovered in the absence of fraud on the part of the wife, and the provision is not excessive. Hume hav ing been insolvent at the time the insurance was ef fected, and having paid the premiums himself, it is argued that these policies were within the provisions of 13 Elizabeth, chapter 5, and inure to the benefit of his creditors as equivalent to transfers of property with intent to hinder, delay and defraud. The object of the statute of Elizabeth was to prevent debtors from dealing with their property in any way to the prejudice of their creditors; but dealing with that which creditors, irrespective of such dealing, could not have touched, is within neither the letter nor the spirit of the statute. In the view of the law, credit is extended in reliance upon the evidence of the ability of the debtor to pay, and in confidence that his possessions will not be diminished by the prejudice of those who trust him. This reliance is disappointed, and this confidence abused, if he divests himself of credit. his property by giving it away after he has obtained And where a person has taken out policies of insurance upon his life for the benefit of his estate, it has been frequently held, that as against creditors, bis assignment, when insolvent, of such policies to or for the benefit of wife and children, or either, constitutes a fraudulent transfer of assets within the statute; and this, even though the debtor may have had no deliberate intention of depriving his creditors of a fund to which they were entitled, because his act has in point of fact withdrawn such a fund from them, and dealt with it by way of bounty. Freeman v. Pope, The section grants to the company the exclusive right of transportation of persons and merchandise over its road, a right which in another part of the act is limited to thirty-six years, and then expires unless renewed by the Legislature upon such terms as may be prescribed by law and accepted by the company. This period has long since expired, and we are not informed that any renewal of the privilege has been made. The difficulty attending the construction of the clause following this one arises from the doubt attached to the meaning of the word "provided." The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from provisions of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. legislative proceedings, on the consideration of bills, It is common practice in for parties desirous of securing amendments to them to precede their proposed amendments with the term "provided," so as to declare that notwithstanding existing provisions, the one thus expressed is to prevail; thus having no greater signification than would be attached to the conjunction "but" or same place, and simply serving to separate or distinand" in the guish the different paragraphs or sentences. illustrations are given by counsel of the use of the Several term in this sense, showing in such cases where an amendment has been made, though the provision following often has no relation to what precedes it. It does not matter in the present case whether the term be construed as imposing a condition on the preceding exclusive grant to the company of the privilege of transporting passengers and merchandise over its own roads, or to be considered merely as a conjunction to an independent paragraph, declaring a limitation upon the charges which the company may make. If consid 46 ment of the it cannot be doubted that in the instance of contracts of insurance with a wife or children, or both, upon their insurable interest in the life of the husband or father, the latter, while they are living, can exercise no power of disposition over the same without their consent, nor has he any interest therein of which he can avail himself, nor upon his death have his personal representatives or his creditors any interest in the proceeds of such contracts, which belong to the beneficiaries, to whom they are payable. It is indeed the general rule that a policy, and the money to become due under it, belong the moment it is issued to the person or persons named in it as as the beneficiary or beneficiaries; and that there is no power in the person procuring the insurance, by any act of his, by deed or by will, to transfer to any other person the interest of the person named. Bliss Ins. (2d ed.) 517; Glanz v. Gloeckler, 10 Bradw. 486, per McAllister, J.; id., 104 Ill. 573; Wilburn v. Wilburn, 83 Ind. 55; Ricker v. Insurance Co., 27 Minn. 193; Insurance Co. v. Brant, 47 Mo. 419; Gould v. Emerson, 99 Mass. 154; Insurance Co. v. Weitz, id. 157. The obvious distinction between the transfer of a policy taken out by a person upon his insurable interest in his own life, and payable to himself or his legal representatives, and the obtaining of a policy by a person upon the insurable interest of his wife and children, and payable to them, has been repeatedly recognized by the courts. Thus in Elliott's Appeal, 50 Penn. St. 75, where the policies were issued in the name of the husband, and payable to himself or his personal representatives, and while he was insolvent were by him transferred to trustees for his wife's benefit, the Supreme Court of Pennsylvania, while holding such transfers void as against creditors, say: "We are to be understood in thus deciding this case that we do not mean to extend it to policies effected without fraud, directly and on their face for the benefit of the wife, and payable to her; such policies are not fraudulent as to creditors, and are not touched by this decision." In the use of the words "without fraud," the court evidenly means actual fraud participated in by all parties, and not fraud inferred from the mere fact of insolvency; and at all events, in McCutcheon's Appeal, 99 Penn St. 137, the court say, referring to Elliott's Appeal: "The policies in that case were effected in the name of the husband, and by him transferred to a trustee for his wife at a time when he was totally insolvent. They were held to be valuable choses in action, the property of the assured, liable to the payment of his debts, and hence their voluntary assignment operated in fraud of creditors, and was void as against them under the statute of 13 Elizabeth. Here however the policy was effected in the name of the wife, and in point of fact was given under an agreement for the surrender of a previous policy for the same amount, also issued in the wife's name. The question of good faith or fraud only arises in the latter case —that is, when the title of the beneficiary arises by assignment. When it exists by force of an original issue in the name or for the benefit of the beneficiary the title is good notwithstanding the claims of creditors. * * * There is no anomaly in this, nor any conflict with the letter or spirit of the statute of Elizabeth, because in such cases the policy would be at no time the property of the assured, and hence no question of fraud in its transfer could arise as to his creditors. It is only in the case of the assignment of a policy that once belonged to the assured that the question of fraud can arise under this act." And see Bank v. Insurance Co., 24 Fed. Rep. 770; Pence v. Makepeace, 65 Ind. 347; Succession of Hearing, 26 La. Ann. 326; Stigler's Ex'r v. Stigler, 77 Va. 169; Thompson v. Cundiff, 11 Bush, 567. Conceding in the case in hand that Hume paid the premiums out of his own money, L. R., 9 Eq. 206; L. R., 5 Ch. 538. The rule stands upon precisely the same ground as any other disposition of his property by the debtor. The defect of the disposition is that it removes the property of the debtor out of the reach of his creditors. Cornish v. Clark, L. R., 14 Eq. 189. But the rule applies only to that which the debtor could have made available for payment of his debts. For instance, the exercise of a general power of appointment might be fraudulent and void under the statute, but not the exercise of a limited or exclusive power, because in the latter case the debtor never had any interest in the property himself which could have been available to a creditor, or by which he could have obtained credit. May Fraud. Conv. 33. It is true that creditors can obtain relief in respect to a fraudulent conveyance where the grantor cannot, but that relief only restores the subjection of the debtor's property to the payment of his indebtedness as it existed prior to the conveyance. A person has an insurable interest in his own life for the benefit of his estate. The contract affords no compensation to him, but to his representatives. So the creditor has an insurable interest in the debtor's life, and can protect himself accordingly if he so chooses. Marine and fire insurance is considered as strictly an indemnity; but while this is not so as to life insurance, which is simply a contract, so far as the company is concerned, to pay a certain sum of money upon the occurrence of an event which is sure at some time to happen, in consideration of the payment of the premiums as stipulated, nevertheless the contract is also a contract of indemnity. If the creditor insures the life of his debtor, he is thereby indemnified against the loss of his debt by the death of the debtor before payment, yet if the creditor keeps up the premiums, and his debt is paid before the debtor's death, he may still recover upon the contract, which was valid when made, and which the insurance company is bound to pay according to its terms; but if the debtor obtains the insurance on the insurable interest of the creditor, and pays the premiums himself, and the debt is extinguished before the insurance falls in, then the proceeds would go to the estate of the debtor. Knox v. Turner, L. R., 9 Eq. 155. The wife and children have an insurable interest in the life of the husband and father, and if insurance thereon be taken out by him, and he pays the premiums and survives them, it might be reasonably claimed, in the absence of a statutory provision to the contrary, that the policy would inure to his estate. In Insurance Co. v. Palmer, 42 Conn, 60, the wife insured the life of the husband, the amount insured to be payable to her if she survived him; if not, to her children. The wife and one son died prior to the husband, the son leaving a son surviving. The court held, that under the provisions of the statute of that State, the policy being made payable to the wife and children, the children immediately took such a vested interest in the policy that the grandson was entitled to his father's share, the wife having died before the husband; but that in absence of the statute, "it would have been a fund in the hands of his representatives for the benefit of the creditors, provided the premiums had been paid by him." So in the case of Anderson's Estate, 85 Penn. St. 202, A. insured his life in favor of his wife, who died intestate in his life-time, leaving an only child. A. died intestate and insolvent, the child surviving, and the court held that the proceeds of the policy belonged to the wife's estate, and under the intestate laws was to be distributed share and share alike between her child and her husband's estate, notwithstanding under a prior statute life insurance taken out for the wife vested in her free from the claims of the husband's creditors. But if the wife had survived she would have taken the entire proceeds. We think * * * when insolvent, yet as Mrs. Hume and the children survived him, and the contracts covered their insurable interest, it is difficult to see upon what ground the creditors, or the administrators as representing them, can take away from these dependent ones that which was expressly secured to them in the event of the death of their natural supporter. The interest insured was neither the debtor's nor the creditors'. The contracts were not payable to the debtor or his representatives or his creditors. No fraud on the part of the wife or the children, or the insurance company is pretended. In no sense was there any gift or transfer of the debtor's property, unless the amounts paid as premiums are to be held to constitute such gift or transfer. But even though Hume paid this money out of his own funds when insolvent, and if such payment were within the statute of Elizabeth, this would not give the creditors any interest in the proceeds of the policies, which belonged to the beneficiaries for the reasons already stated. Were the creditors then entitled to recover the premiums? These premiums were paid by Hume to the insurance companies, and to recover from them would require proof that the latter participated in the alleged fraudulent intent, which is not claimed. Cases might be imagined of the payment of large premiums, out of all reasonable proportion to the known or reputed financial condition of the person paying, and under circumstances of grave suspicion, which might justify the inference of fraud on creditors in the withdrawal of such an amount from the debtor's resources; but no element of that sort exists here. The premiums form no part of the proceeds of the policies, and cannot be deducted therefrom on that ground. Mrs. Hume is not shown to have known of or suspected her husband's insolvency, and if the payments were made at her instance, or with her knowledge and assent, or if without her knowledge, she afterward ratified the act, and claimed the benefit, as she might rightfully do (Thompson v. Insurance Co., 46 N. Y. 675), and as she does (and the same remarks apply to the children), then has she thereby received money which ex æquo et bono she ought to return to her husband's creditors; and can the decree against her be sustained on that ground? If in some cases payments of premiums might be treated as gifts inhibited by the statute of Elizabeth, necessary expenses. Emerson v. Bemis, 69 Ill. 541. This argument in the interest of creditors concedes from suffering and want. It seems to us that the same that the debtor may rightfully preserve his family public policy which justifies this, and recognizes the support of wife and children as a positive obligation in them from destitution after the debtor's death, by law as well as morals, should be extended to protect permitting him, not to accumulate a fund as a perma nent provision, but to devote a moderate portion of already, or which could thereby be lawfully obtained, his earnings to keep on foot a security for support at least to the extent of requiring that under such circumstances the fraudulent intent of both parties to the transaction should be made out. And inasmuch as there is no evidence from which such intent on the inferred, in our judgment none of these premiums can part of Mrs. Hume or the insurance companies could be be recovered. Nov. 12, 1888. Central Nat. Bank v. Hume. Opinion by Fuller, C. J. ABSTRACTS OF VARIOUS RECENT CROPS-LIFE-TENANT-The right of a lessee of a lifetenant to gather, after the death of the life-tenant, crops sown before his death, is not affected by the fact that the lessee knew the life-tenant would die before the crop matured, or that the crop was not sown in an husbandman-like manner. We are referred to no case in which the exception claimed by the defendants has been made to this rule during the centuries of its existence. To hold that this right may be defeated after the tenant's death, by evidence of his condition of health, or by his declarations or those of his lessee imputing a belief, however well founded, or knowledge, if such knowledge be possible, that his life would not continue until harvest time, would in many cases subvert an important object of the rule-the encouragement of husbandry-and open a fruitful source of unseemly litigation. A tenant in failing health, especi ally if he had expressed a belief that his end was near, would naturally hesitate to put in crops which might be successfully claimed by his successor in title, or in respect to which his estate might become involved in can they be so treated here? In all purely voluntary litigation. The question asked by the defendants of a conveyances it is the fraudulent intent of the donor which vitiates. If actually insolvent, he is held to knowledge of his condition; and if the necessary consequence of his act is to hinder, delay or defraud his creditors, within the statute, the presumption of the fraudulent intent is irrebuttable and conclusive, and inquiry into his motives is inadmissible. But the circumstances of each particular case should be considered, as in Partridge v. Gopp, 1 Eden, 163; Amb. 596, where the lord keeper, while holding that the debts must be paid before gifts are made, and debtors must be just before they are generous, admitted that "the fraudulent intent might be collected from the magni witness as to the customary mode of sowing rye and preparing the ground for it, was properly excluded. We have shown that the plaintiff had a right to 80W the rye for his own use, and it was a matter of no cousequence to the remainderman how he did it. Nor did his right to the crop depend upon his cultivating the land according to the rules of good husbandry. If it was done in an unhusband-like manner, and in such a way that the crop would be an inconsiderable one, it would be wholly his own loss. The fact of his hurried and imperfect mode of sowing the land may have been tude and value of the gift." Where fraud is to be sowing rye, or only pretending to do so. But it was of pertinence to the question whether he was in realty puted, or the imputation of fraud repelled, by an ex amination into the circumstances under which a gift is made to those toward whom the donor is under natural obligation, the test is said, in Kipp v. Hanna, 2 Bland, 33, to be the pecuniary ability of the donor at the time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their then prospects of payment; and in considering the sufficiency of the debtor's property for the payment of debts, the probable, immediate, unavoidable and reasonable demands for the support of the family of the donor should be taken into the account and deducted, having in mind also the nature of his business and his acting in the belief that the tenant for life would die not offered for this purpose, but to show that he was in a few days. But as we have already shown, this be lief was of no importance. His right did not depend upon the condition of the tenant for life. And he would have no interest in putting any labor on the land as a matter of mere pretence, as he would only lose his labor by so doing. Conn. Sup. Ct. Err., Jan. 13, 1888. Bradley v. Bailey. Opinion by Beardsley, J. CRIMINAL LAW-FORMER JEOPARDY-DISCHARGE OF JURY AT END OF TERM.-The discharge of a jury in a capital case on the last day of the term, after they have for five days failed to agree upon a verdict, is not because of an absolute necessity, in the absence of any reason why the term could not be continued, and if made against the objection of the defendant, is a bar to another trial for the same offense. Jeopardy is the peril in which a defendant is put when he is regularly charged with crime before a tribunal properly organized and competent to try him. He must, under such circumstances, submit the sufficiency of his defense to the decision of a jury of his peers. He is in their hands, exposed to the danger of conviction, with all its consequences; or, in the language of the bill of rights, he is "in jeopardy." From this jeopardy he is to be relieved, if relieved at all, by the verdict of the jury. Unless some overriding necessity arises after the jeopardy begins, the trial must proceed until it ends in a conviction or an acquittal. In a capital case therefore the court has no power to discharge a jury without the consent of the defeudant, unless an absolute necessity requires it. Com. v. Cook, 6 Serg. & R. 577. The mere inability of the jury to agree within a few hours or days is not such a necessity (Com. v. Clue, 3 Rawle, 498); nor is the fact that the regular term is approaching an end, for the courts have power to continue the term until the case can be properly ended. The serious illness or insanity of the defendaut, and the illness, insanity or death of the judge or a juror engaged in the trial, have been held to create a necessity for the withdrawal of a juror and postponement of the trial; and it is not difficult to imagine other cases in which a similar holding should be made. In this case however we take notice of the fact that Lackawanna County constitutes a judicial district, with a president and an additional law judge. The adjudication does not suggest any reason why the term could not have been extended, and we assume that there was none. There was therefore no case of necessity presented by the facts stated in the adjudication, nor did the learned judge undertake to put a finding of such necessity upon the record. The adjudication only asserts that "the court is satisfied that it is useless to detain the jury longer," and then directs their discharge. This order was a mistake. It was made in disregard of the protest of the defendants. They were in jeopardy when the order was made, and its effect was to end the trial and the jeopardy without a verdict, and without their consent. When they were again called upon to answer and subject themselves to the jeopardy of a trial, they had a right under the Constitution to say: "We have been once put in jeopardy for this crime, and we cannot be compelled to undergo the same peril a second time for the same offense." This was the effect of their special plea, and it was unanswerable. Peiffer v. Com., 15 Penn. St. 468; McFadden v. Com., 23 id. 12; Alexander v. Com. 105 id. 1; Hilands v. Com., 111 id. 1. There may be room to doubt the wisdom of the constitutional provision in its present form, but there is no room for discussion as to its effect. The justice of sustaining a plea of former acquittal or conviction is unquestioned and unquestionable; but a plea of "once in jeopardy" stands on narrower, more technical and less substantial ground. It alleges only that there might have been a conviction or an acquittal if the judge trying the cause had not made a mistake in law which prevented a verdict. It is of no consequence how many mistakes he makes if the trial results in a conviction. The mistakes can be corrected on a writ of error, and the defendant tried over again. But if the mistake results in closing the trial without a verdict, this is remediless. The court that made it cannot correct it. The proper court of review cannot correct it. The consequence is that a defendant charged with taking the life of his fellow-man goes out of the court and out of the reach of justice because of a mistake in law, made after an honest and painstaking effort to be right. Such was the case of Hilands v. Com. Such is this case. But the constitutional pro. vision is plain, and its enforcement by the courts has been uniform. Penn. Sup. Ct., Oct. 1, 1888. Commonwealth v. Fitzpatrick. Opinion by Williams, J. HOMICIDE - MANSLAUGHTER - EVIDENCE.Evidence that defendant and his wife had both been drinking; that he allowed the wife to lie on the ice all night, poorly clad, near the house; that he had an employee, who lived with him, brought her to the house the next day, when she died, no effort having been made to get medical aid, is sufficient to sustain a verdict of guilty of manslaughter. The last objection made by the counsel for the prisoner is that the evidence does not sustain the verdict. Without entering into a review of it, it is sufficient to say that we think it abundantly sustains it. The prisoner allowed his wife to lie out on the ice, poorly clad, and within easycalling distance of the house, all night, and perish with the cold. He had a hired man living with him, who was willing to help him, and they could have brought her to the house, notwithstanding the snow was from two to three feet deep. The best evidence of this is that they did do it the next morning, when it was too late. She languished speechless until the next day, and died. No effort was made to get her medical aid. It is true, the deceased had been drinking, and that this was probably the reason she was not able to reach the house herself; but the proof shows that they had gone together to Phllipsburg that day, a distance of seven miles, on foot, and that they both drank together, and the prisoner was himself more or less intoxicated when he left her on the ice to spend the night, while he remained in the house near by. His drunkenness does not excuse him from the discharge of his duty to his wife as busband; nor does her drunkenness excuse him from the discharge of his duty, especially when he drinks with her, and by example and precept contributes to her degradation. Mont. Sup. Ct., July, 1888. Territory v. Manton. Opinion by McConnell, C. J. STEP-FATHER AND STEP INSURANCE -INTEREST · SON.-A step-son, who is neither a creditor of his stepfather, nor responsible for his support, nor in any way dependent on him, has no insurable interest in the step-father's life. No case has been brought to our notice which carries the rule to that extent. It is a rule founded in public policy, and is of general application, that the contract of life insurance must be based upon an interest in the subject insured. In the absence of an insurable interest, the policy, having nothing upon which to operate, must be regarded as a mere wager upon human life. In all cases, as we said in Carson's Appeal, 113 Peun. St. 445, there must be a reasonable ground, fouuded in the relations of the parties, either pecuniary or of blood affinity, to expect some benefit or advantage from the continuance of the life of the insured; otherwise the contract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such policies, having a tendency to create a desire for the event, are, independently of any statute on the subject, condemned as being against public policy. The foundation of the doctrine is that no one shall have a benefit of any kind in a life policy who is not presumed to be interested in the preservation of the life insured. Gilbert v. Moose, 104 Penn. St. 78. It is the absence of this insurable interest which gives to the policy the character of a wager contract. There can arise in such case no question of motive or good faith. Downey v. Hoffer, 16 Wkly. Notes Cas. 184. The rule, applicable alike to life and fire insurance, rests in public policy, for the protection of human life and property. Stoner v. Line, 16 Wkly. Notes Cas. 187; Association v. Norris, 8 Atl. Rep. 638. The motive and in tentions of Michael McDonald may have been good, but the fact remains that he had no interest in the life of Roger McDevitt; and having no such interest, as we said in Seigrist v. Schmoltz, 113 Peun. St. 326, the sooner that life was extinguished the better it was, in a pecuniary point of view, for the beneficiary. Whether the policy was taken out for the purpose of a wager or speculation-that is to say, whether or not this was the motive or intention of the beneficiary named in it-under the circumstances of this case was not a question for the jury. In the absence of any insurable interest whatever, the law will presume this to be so. Penn. Sup. Ct., Oct. 1, 1888. United Brethren Mut. Aid Soc. v. McDonald. Opinion by Clark, J. FENCES MUNICIPAL CORPORATIONS-CONTROL OF STREETSOBSTRUCTIONS SUMMARY REMOVAL. - A fence which encroaches on a street, but has been maintained on the same line for seventeen years, and does not "incommode the public use of the street as a highway for teams and foot passengers," and was not placed there intentionally, willfully or maliciously, cannot be summarily removed under a city charter authorizing the common council to abate nuisances, and prevent the obstruction of streets, nor under section 1326 of the Revised Statutes of Wisconsin, imposing a penalty for the obstruction of a highway, and requiring the overseer to cause the immediate removal of the obstruction. It may have been an encroachment upon this street, and probably was; but the charter of the city does not authorize the summary removal of a fence that is a mere encroachment. The special verdict is sufficient to take this case out of the provisions of the charter, and the only remaining question is, was the summary removal of the fence justified by the General Statutes? The verdict shows that this was a very old fence, and the evidence was that trees and shrubbery had been planted along the side of it. It was evidently built within the street before the street was opened or needed for public use, and by an innocent mistake of the true lines. The encroachment as such was not placed there intentionally, willfully or maliciously, and was probably not placed there at all by the plaintiff when it was first built. When there is no provision of the charter authorizing such summary removal, in a proper case such removal may be justified under the general statutes which have force in cities as well as in towns. State v. Leaver, 62 Wis. 387. The only statute authorizing summary removal of an obstruction or encroachment in highways is section 1326 of the Revised Statutes; and that has been held to apply only to cases where the obstruction or encroachment was so placed intentionally, willfully or maliciously. State v. Leaver, Goodrich, 37 Wis. 84; State v. Preston, 34 id. 675, and supra; Hubbell v. Childs v. Nelson, 69 id. 125. Wis. Sup. Ct., Oct. 9, 1888. Pauer v. Albrecht. Opinion by Orton, J. NEGLIGENCE-REMOTE AND PROXIMATE CAUSE-INJURIES RESULTING FROM PHYSICAL CONDITION.-The duty of care and of abstaining from the unlawful injury of another applies to the sick, the weak, the infirm, as fully as to the strong and healthy; and when the duty is violated the measure of damages is the injury done, even though such injury might not have resulted but for the peculiar physical condition of the person injured, or may have been aggravated thereby. The plaintiff sues in behalf of his minor child, Marie Lapleine, to recover damages for injuries inflicted upon her through the fault of the defendant company. He alleges that in April, 1885, Marie, with other children, was at play in the rear part of her father's yard on the inside of a plank fence separating said yard from the railroad track of said defendant, when a train of cars belonging to the latter and loaded with split lumber passed along said track, and the stakes confining said lumber becoming loose or disarranged, the lumber broke away from its fastening, and tumbled off the car, part of it being precipitated over the fence, and falling into plaintiff's yard, striking the child Marie, and inflicting on her the injuries complained of. As to the nature and extent of the injury, it is shown, without any semblance of contradiction, that up to the moment of this accident, Marie, then eight years old, had been a bright, intelligent, active and thoroughly healthy child. From that moment she became and has remained a constant invalid, seriously affected in ject to headache, to attacks of nausea and vomiting, mind and body, her nervous system shattered, subto frequent and sudden fainting and falling fits, emaciated, indisposed to physical or mental exertion, drag. ging her limbs in walking, and otherwise afflicted. At the time of this trial about two years had elapsed since the accident, and though slightly improved, the child continues to a great extent affected as above indicated. The medical testimony indicates that it is doubtful when, or whether she will ever entirely reCover. If the foregoing injury and suffering has been occasioned by the accident as the legal proximate cause, it would be difficult to say that the verdict of the jury for $7,500 was excessive. But defendant maintains that the physical injuries directly inflicted upon the child were slight and unimportant, and utterly inadequate in themselves to produce the disas trous results which have been manifested; that these results have been occasioned by the peculiar constitu tion of the child, who inherited from its mother a hysterical tendency or diathesis, the development of which has intervened as the operative and efficient cause of her affliction and sufferings; and that the accident is not therefore the true causa causans-the proximate and efficient cause-casting responsibility on defendant. We are by no means satisfied that the external manifestations indicate conclusively the extent and nature of the injury received, or that the shock and derangement of the nervous center and spinal cord may not have been sufficient to produce like results in an ordinarily constituted child. It is however proved that the mother of the child is subable; and that the symptoms of the child's affiction ject to hysteria; that hysteria is in many cases herit are in many respects of a hysterical character. But it is very certain that the child had never exhibited the slightest symptoms of hysteria or other constitutional disease prior to this accident. The medical testimony does not establish that hysteria is necessarily or universally inherited; and it does not appear that but for this accident Marie might have passed her entire life without the slightest development of hysteria. Admitting therefore that the child had a latent hys terical diathesis, in order to escape liability it would devolve ou defendant to show that such diathesis, was by itself a sufficient independent cause which would have operated in producing or aggravating the damage independently of the accident. In this defendant has entirely failed. If the hysterical diathesis concurred with the accident in producing the damage, in determining which of the two is the proximate cause, we must inquire which was the cause that set the other cause in motion. In the language of the Supreme Court of the United States: "The proximate cause is the efficient cause; the one that necessarily sets the other causes in motion." Insurance Co. v. Boon, 95 U. S. 117. We are cited to a Colorado case, which holds that where the physical condition of the person injured is at the time of the injury such that the injuries caused by the negligence are thereby aggra vated, the railway is not liable for that aggravation. Car Co. v. Barker, 4 Colo. 344. We think however the doctrine is not sound, and is not in accord with the |