were the only parties who were engaged at the specified localities in the manufactures referred to in the contract at the time it was made. It is not improbable that every cotton oil mill in the State was represented in this combination, or was intended to be brought into it eventually, but as this is not alleged in the petition we cannot presume it. We must admit some limit even to judicial knowledge. But to render the contract void it is not necessary that it should create a pure monopoly. It would seem that the agreement may be illegal if the natural or necessary consequences of its operation are to prevent competition and create fictitious prices independent of the law of demand and supply, and to such an extent as to injuriously affect the interest of the public or the interests of any particular class of citizens who may be especially interested, either as producers or consumers, in the articles or staples which are the subject of the restriction imposed by the contract. Likewise the agreement may be in some instances void because of unreasonable restrictions imposed upon even one of the parties to it. According to the authorities the extent of the restraint, though sometimes difficult to measure, determines the character of the agreement, whether legal or not. Pike v. Thomas, 7 Am. Dec. 741, and note. The authorities are too numerous to even cite all of them. From the multitude we shall make a few selections later on, and now we proceed with the examination of the contract. It will be seen that the Howard Company was given almost an unrestricted field to obtain the raw material for its mills, and the exclusive right to control, free from the competition of the owners of the "four mills (who had no doubt up to that time been its rivals), not only the sales and ruling prices of the products of its own mills (which are not disturbed in this respect), but also the entire yield of the mills of the other parties to the contract. It was thus enabled, by the confederation of all of the parties, to dictate at will the prices at which the public must buy (if at all) the oils or other products of any of the mills. If both of the parties had entered a market open to both under the contract, in order to purchase the raw materials, they could not have competed, for no competition was contemplated, and all freedom of action in this particular was forestalled by arbitrary regulations of the prices to be paid, which must be observed. In the markets assigned to each they are confronted by the same barrier, and the party cannot buy at all if the market price at that point happens to be greater than the contract price; or if the price prevailing there should even be below the contract price, still the party could not avail himself of this advantage without first obtaining, if he could, the consent of the other parties. In other words, neither the parties nor the producers of the raw material are to have the benefit of but one price, which has been definitely fixed in advance. These things, as it seems to us, are well calculated to affect the interests of the public detrimentally, and would doubtless have been deemed by the parties as injurious to their own interest had they been contemplating a lawful enterprise. These restrictions however were instituted in this instance, not for the purpose of legitimate profits, nor to afford only a fair protection to all of the parties, but as a suitable means for preventing all competition. If not then it would have clearly been to the advantage of the Howard Oil Company, in view of its obligations to the "four mills," that the raw materials should be bought by all of the parties to the contract at the lowest prices. This company had bound itself to pay or bear the cost of the seed, as well as the expenses of " working" the same by the "four mills," etc. We recur now to the law of the case. We can scarcely conceive how mere territorial limits can be the controlling test in all instances of the legality of the restraints imposed upon the ordinary course of trade. This criterion may do very well when applied to the occupation or profession of one man, or even a few individuals, for neither their labor, industry, business nor services may be so necessary to the public as not to be dispensed with without inconvenience or injury. It appears to us however that the case is very different in regard to trade or commerce in those articles of prime necessity, or even of very frequent use among a large number of people in any given locality. Does any one doubt that a combination of a number of most extensive dealers in flour, meal or oil, etc., in one great city to sell those commodities at only one price, or not at all, within the limits of that city, would affect the interests of the public, and perhaps also some of the individual dealers, much more extensively and disastrously than a similar agreement extended to a much greater area of country, but in which only a very few people reside or require such articles? It would seem that the injurious effects upon the public interests would be in proportion to the number of people affected by the restrictions, though we are not unaware that this position has not been deemed tenable by some of the authorities in cases where the right to exercise a trade or profession within a particular district or locality has been restricted by contract. Mallan v. May, 11 Mees. & W. 653. But see Duffy v. Shockey, 11 Ind. 70; 1 Smith Lead. Cas. 183; Angier v. Webber, 92 Am. Dec. 751. We think that territory cannot be the sole contest, though in the present instance the contract embraces such extensive territory and such a number of localities as to bring it even within that rule. In determining the reasonableness of the restraint, the effect upon the interest of the public is a better test. In the case of Morris Run Coal Co. 7. Barclay Coal Co., 68 Penn. St. 185, the Supreme Court of Pennsylvania quote with approval the following language of Tindal, C. J., in Horner v. Graves, 7 Bing. 743: "We do not see how a better test can be applied to the question whether reasonable or not than by considering whether the restraint is such only as to afford a fair protection as to the interest of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatsoever restraint is larger than the necessary protection of the party can be of no benefit to either. It can only be oppressive, and if oppressive it is in the eyes of the law unreasonable. What is injurious to the public interest is void on the ground of public policy." The court also recognizes the doctrine that the public interest is superior to private interest," and that even as to "contracts for the limited restraint of trade the courts start with the presumption that they are illegal unless shown to have been upon adequate consideration, and upon circumstances both reasonable and useful." The court furthermore said that, "testing the present contracts by these principles, the restrictions laid upon the production and price of coal cannot be sanctioned as reasonable, in view of their intimate relation to the public interests. The field of operation is too wide, and the influence too general. The effect produced on the public interests leads to the consideration of another feature of great weight in determining the illegality of the contract, to-wit, the combination resorted to by the five companies. Singly each might have suspended deliveries and sales of coal to suit its own interests, and might have raised the price, even though that might have been detrimental to the public interest. There is certain freedom which must be allowed to every one in the management of his own affairs. When competition is left free individual error or folly will generally find a connection in the conduct of others." We approve of these observations, but do not sanction a combination of individuals to stifle compe treats those combinations as unlawful, whether they should now be held punishable as crimes or not. * * * There may be difficulties in determining conduct as in violation of public policy where it has not before been covered by statutes as precedents. But in the case before us the conduct of the parties comes within the undisputed censure of the law of the land, and we cannot sustain the transaction without doing so on the ground that such dealings are so manifestly sanctioned by usage and public approval that it would be absurd to suppose that the Legislature, if attention were called to them, would not legalize them. We do not think public opinion has become so thoroughly demoralized, and until the law is changed we shall decline enforcing such contracts. If parties see fit to invest money in such ventures, they must get it back by other than legal measures." The attention of our own Legislature seems to have been "called" to the sub tition. The court then proceeds in the next place to discuss at length the extent and scope of the combination, and denounce it as a conspiracy intended to control the coal markets of the country by stifling competition, and therefore void. "Whatsoever a man may lawfully forbear. that he may oblige himself against, except where a third person is wronged, or the public is prejudiced by it." Metcalf Cont. 232. This language was adopted by the Supreme Court of Ohio in Crawford v. Wick, 18 Ohio St. 203, which involved the construction of a contract in restraint of trade. We refer to this decision as bearing upon those provisions in the contract in hand which prohibit the parties from purchasing cotton seed in the specified localities, etc. In the case of Arnot v. Coal Co., 68 N. Y. 566, the court uses the following language: "If an absolute purchase had been made by the defendant of the Butler Coal Company of any specified quantity of coal, or even of all the coal which the Butler Company could|ject, but instead of "legalizing" such combinations produce, that contract would have been legal, notwithstanding that the object of the purchasers was to secure a monopoly and that the vendor knew it. He had a right to dispose of his goods, and under certain limitations a vendor may recover for their price, notwithstanding that he knows that the vendee intends an improper use of them, so long as he does nothing to aid in such improper use, or in the illegal plan of the purchaser. But (and this is a very important distinction) if the vendor does any thing beyond the sale to aid the illegal scheme of the vendee, he renders himself particeps criminis and cannot recover for the price, etc. Elsewhere in the opinion it is said that "every producer or vendor of coal or other commodity has the right to use all legitimate efforts to obtain the best price for the articles in which he deals. But when he endeavors to artificially enhance prices by suppressing or keeping out of the market the products of others, and to accomplish that purpose by means of contracts binding them to withhold their supply, such arrangements are even more pernicious than combinations not to sell under an agreed price. Combinations of that character have been held to be against public policy and illegal. If they should be sustained the prices of articles of pure necessity, such as coal, flour or other indispensable commodities, might be artificially raised to a ruinous extent, far exceeding any naturally resulting from the proportion between supply and demand. We have already shown that the agreement under consideration does not evidence simply a contract made in good faith for the sale by the owners of the "four mills" to the Howard Oil Company of the products of their mills. In the case of Bagging Co. v. Kock, 14 La. Ann. 168, it was held that an agreement between eight commercial firms in the city of New Orleans, whereby they bound themselves for the period of three months not to sell India bagging, except with the consent of a majority of them, was void. The decision seems to have been based, from the authorities cited, upon the principle of both the civil and common law. The court said: "The agreement between the parties was palpably and unequivocally a combination in restraint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be enforced in a court of justice." Nowhere perhaps is the duty of the courts in regard to contracts of the character we are considering, as well as the present state of the common law (in the absence of statute) even under " the modern doctrine," better defined than in the opinion of the Supreme Court of Michigan in Raymond v. Leavitt, 9 N. W. Rep. 525 (cited by Whart. Cont., p. 612), from which we cull the following: "We do not feel called upon to regard so much of the common law to be obsolete as or conspiracies in restraint of trade, the Legislature has denounced them as felonies, thus manifesting the public sentiment in this State. This was done however subsequently to the execution of this contract in hand. Space forbids us to make any more extracts from the opinions to be found in the adjudicated laws. We are of the opinion that the contract under consideration, and which was entered into by independent dealers and manufacturers in the same line of business, as already stated, imposed or attempted to impose unreasonable and too extensive restrictions upon trade and the freedom of the parties thereto, and was consequently contrary to public policy and void. We think that its manifest purpose and natural tendency were to prevent competition in too many localities, and to reduce the price of the raw materials upon the one hand as they might choose, and upon the other to enhance that of manufactured products by artificial means, to the disadvantage and detriment of the pub lic. 1 Whart. Cont., § 442, and notes; Callahan v. Donnolly, 45 Cal. 152; Salt Co. v. Guthrie, 35 Ohio St. 666; Sampson v. Shaw, 101 Mass. 145; Wright v. Ryder, 36 Cal. 342, 361; Hooker v. Vandewater, 47 Am. Dec. 258; Cruft v. McConoughy, 79 Ill. 346; Leonard v. Poole, 114 N. Y. 371 (based on statute). See also, for a collation of the authorities, note to Angier v. Webber, 92 Am. Dec. 751. Our present statuto against trusts and combinations of every character in restraint of trade, etc., was not in force when the contract now be fore us was executed, and is not therefore applicable to the question. Acts 1889, p. 141. We think that the judgment should be affirmed. PER CURIAM. Affirmed as per opinion of Commis sion of Appeals. NEW YORK COURT OF APPEALS AB- BRIDGES-DEFECTS-EVIDENCE.-(1) Defendant village constructed foot-bridges on either side of a highway bridge, so as to substantially form a part of the highway bridge. There were no barriers or lines of demarkation other than a drop of the thickness of a plank to the lower level of the foot-bridges, thus giving a general appearance of safety of the whole bridge for general use. In fact the foot-bridges were not strong enough to support heavy loads which might under these circumstances be reasonably expected to be placed upon them. Held, that it is a question for the jury whether such construction was likely to deceive any person ignorant of the fact, so as to cause him to believe the whole bridge to be safe. (2) Where plaintiff did not know that one part of a bridge was a footbridge only, and the other part a road-bridge, nor that one part was stronger than another, and had seen others drive upon the foot-bridge part, although he knew that the foot-bridge part was usually crossed by pedestrians, and was built for the purpose of furnishing them a place to cross, it is a question for the jury whether, if without absolute necessity, he drove upon the foot-bridge, and in consequence suffered injury by its falling, he was thereby guilty of contributory negligence. April 12, 1892. Fisher v. Village of Cambridge. Opinion by Peckham, J. 14 N. Y. Supp. 943, mem., reversed. CORPORATION-STOCK-UNAUTHORIZED TRANSFERLIABILITIES OF TRANSFEREE.-(1) Defendant, a stock broker in New York, agreed to carry stock of a Virginia company on a margin for one F. A certain per cent of its face value had been assessed and paid up, the stockholder being liable for the balance on call and demand from the company. It was purchased in Bal. timore through a broker in that city, at the suggestion of F., who was understood to be the real owner thereof, and the certificates sent to defendant, as F.'s agent, for security. The order given was to buy the stock for the account of defendant, and send the certificates and bill to him. The Baltimore broker, instead of forwarding the certificates assigned in blank, with power of attorney to transfer, as is the custom in such cases, had new certificates made out to defendaut, and without any authority, and by mistake, had the stock transferred to him on the books of the company. In no other instance was stock, purchased for a customer, transferred to defendant. On receipt of the certificates, defendant paid therefor, but repudiated the transfer to himself, and immediately assigned the certificates in blank, with power of attorney to transfer, and returned them to the Baltimore broker, with instructions to sell and have the stock transferred from defendant's name on the company's books. The broker sold the stock, but before a transfer was entered the company failed. No one furnished credit to the company on account of defendant's purchase of stock, or was in any way affected thereby. Held, in a suit by the trustee of the company and its creditors for the unpaid balance on the stock, that defendant, having disaffirmed the act of the broker, was not liable. (2) Chapter 57, section 27, of the Code of Virginia provides that where stock is assigned by the owner thereof, and the assignee's name does not appear on the books of the company, the title to the stock is vested in the assignee "so far as may be necessary to effect the purpose of the sale, pledge or other disposition," which provision is limited by section 25, that "a person in whose name shares of stock stand on the books of the company shall be deemed the owner thereof, as regards the company." Held, that defendant was not liable under these statutes, their plain meaning being that a corporation which has acknowledged ownership of stock cannot dispute it, not that the transfer shall be conclusive against the alleged stockholder. April 12, 1892. Glenn v. Garth. Opinion by Finch, J. 15 N. Y. Supp. 202, affirmed. MASTER AND SERVANT-INJURY TO RAILROAD FIREMAN-NEGLIGENCE.-Where a person, who is employed as fireman on an engine, is missed from his post, and upon search being made, his dead body is found between the rails at a place where the train had become uncoupled a short time before, but nothing is known as to how the accident occurred, or whether the lurching of the engine consequent upon the uncoupling of the cars contributed thereto, evidence that the uncoupling was due to a defect in one of the cars is not enough to go to the jury to establish the company's negligence. March 25, 1892. Borden v. Delaware, L. & W. R. Co. Opiniou by Gray, J. 17 N. Y. Supp. 596, mem., affirmed. RAILROADS -INJURY TO PASSENGER - DEFECTIVE BRAKE-NEGLIGENCE OF DRIVER.—(1) In an action by a passenger against a street railway company for injuries caused by a collision, resulting from the fracture of the brake-chain, and the consequent inability of the driver to stop the car on a grade, if there is no evidence that the driver was wanting in care or skill, it is error to submit the question to the jury. (2) Where the runaway car made great noise, the failure of the driver to shout to the employees on the car ahead to start the car will not be negligence, in the absence of evidence that shouting would have prevented the accident. (3) The driver's failure to drag the car from the rails by the horses will not be negligence in the absence of evidence that such action would have prevented the accident. (4) Where the inspector testified that on the morning of the accident he looked the chain over, and tested its strength by winding it up several times, but did not examine each link, and a chain manufacturer of large experience testified that a flaw could not exist at the center of the iron without being visible at the surface, the sufficiency of the inspection was aquestion for the jury. April 26, 1892. Wynn v. Central Park, N. & E. R. R. Co. Opinion by Peckham, J. 14 N. Y. Supp. 172, reversed. REFERENCE-FINDINGS-NOTING DECISION IN MARGIN OF STATEMENT. EVIDENCE-WITNESS-CONTRADICTORY STATEMENTS.-(1) A finding of fact by a referee on conflicting evidence will be treated as conclusive in the Court of Appeals. (2) The report of a referee will not be set aside because the referee did not 'note on the margin of the statement the manner in which" he disposed of each proposition of fact or law submitted to him, as required by section 1023 of the Code of Civil Procedure, where the propositions either were covered by his findings and stated in his report or were immaterial. (3) Section 1023 of the Code of Civil Procedure provides that "at or before the time the report is rendered the referee must note on the margin of the statement the manner in which each proposition was disposed of," and section 993 provides that a refusal to make any finding on a question of fact reasonably submitted is a ruling on a question of law. Held, that the omission of a referee to note his decision on the margin of his statement opposite each proposition is not "a refusal to make any finding whatever," within the meaning of section 993, and is not reviewable on appeal. (4) Evidence as to the condition of machinery in a mill at a particular date is competent to show what its condition was at a date shortly before. (5) In an action by a lessor for damages for breach of a covenant in the lease of a silk mill, to keep the machinery in good repair, the lessor cannot introduce declarations of the lessee's foreman to a third party as to the condition of the machinery. (6) Samples of silk made are inadmissible to show that the machinery was in good order at the commencement of the term. (7) Evidence offered to show that the lessee employed incompetent workmen, as a basis for an inference that they necessarily damaged the machinery, was properly excluded. (8) A witness cannot be impeached on proof of declarations made out of court, before or after the trial, contradictory of bis testimony, until the witness himself has been examined in regard to the declarations. (9) Motions to set aside the report of a referee on the ground that his mind was impaired, and to set aside an order allowing additional costs because the case was difficult, are addressed to the discretion of the court, and a decision of the General Term affirming the report and order is not reviewable in the Court of Appeals. April 12, 1892. McCulloch v. Dobson. Opinion by O'Brien, J. 15 N. Y. Supp. 602, affirmed. ABSTRACTS OF VARIOUS RECENT DECISIONS. LIBEL-PREMATURE PROTEST OF NOTE.-The holder of a note protested it before maturity, and mailed a formal notice thereof to the maker and indorser. On maturity the maker paid the note and protest fees without objection, and subsequently sued the holder for extortion for collecting the protest fees, and for damages for injury to his reputation and credit as a business man, and exemplary damages. There was no allegation of special damages. Held, the action being in the nature of an action for libel, that the language of a notice of protest is not actionable per se and plaintiff cannot recover. The language contained in the writing or official extension of the act of protesting the note which is set out in the petition and made the basis of the suit does not impute, directly or indirectly, insolvency or dishonesty to the plaintiff, or a want of ability or disposition to pay any past debt. It is this writing that the plaintiff alleges the defendant made, uttered and published concerning himself, and which caused damage to his credit. The writing does not by any means, necessarily or naturally, have that effect, so that the law would presume damages from its publication. The legal effect and the purpose of the protest, as well as the formal notarial attestation thereof, are simply to fix the liability of the drawer or indorser on the bill or note to which he is a party, and to prevent a loss to the owner by reason of the non-acceptance or non-payment, as the case may be, by the maker or drawer. The notary is called upon to witness and attest the essential facts which establish the liability, viz., due presentment and the refusal of payment, etc. 1 Danl. Neg. Inst., § 929. We very much doubt that the writing in question is actionable at all. All of its statements are true, and it does not appear to be defamatory. A copy of the note is annexed to and made a part of it, as set forth in the petition. There is no innuendo, if admissible here, that the intent and purport was to charge the defendant with refusing to pay a just debt which had then matured. This conclusion would not naturally be drawn by any one who might read the instrument in connection with the note, and it certainly contains no words to that effect. The reader, presumed to know the law, would see that the protest had been made before the note was due, and hence that the plaintiff had a most excellent reason for not paying it at that time. Let us illustrate. Suppose the defendants bad published in a newspaper the statement that the plaintiff had, after demand duly made upon him, refused to pay, on the first day of June, a note upon which he was duly bound, but which by its terms did not become due or payable until 20th day of July. That would not be libellous, although the defendants may have been actuated by malice. "Acts which neither the moral code nor the law of the land requires it cannot be libellous to charge him with not performing." Cooley Torts, 207; Odger Sland. & L. 308. The damages are not the natural or legal con. sequences of the language. But we will concede that the ordinary effect or import of such language, in connection with the fact of protest, would be to impute to the plaintiff a failure and refusal to pay his note of hand after it had fully matured. This is certainly as far as the concession can be extended, for the language used by the defendants, and by which alone they must be judged, does not affirm the justness or validity of the obligation. The accusation must also be confined to a single note, because they have not said that he refused to meet any other obligation, or was in the habit of refusing to pay his notes. Under such cir cumstances we think that it is obvious that the writing is not actionable per se. The refusal to pay this par ticular note may have been justified by sufficient rea 8018. It may have been an illegal or unjust allegation or may have already been paid by the plaintiff, hence was allowed to go to protest without any fault upon the part of the plaintiff. We mean by this that the act imputed to the plaintiff was susceptible of the above explanations, and therefore neither the acts nor the language of the defendants necessarily, or in their ordinary tendency or meaning, charged the plaintiff with insolvency, loss of credit or with dishonest conduct in business. In such case the law does not presume an injury to the plaintiff, and allow the recovery of gen eral damages, as when the words are actionable in themselves, for the plaintiff's credit or reputation as a tradesman may or may not have suffered any injury, according to the circumstances, by the publication of such alleged defamatory matter as would not neces sarily or ordinarily injure, or tend to injure, him in these particulars. If it did so injure him in this instance, then the fact should have been alleged showing the special injury. We are clear therefore in the conviction that the writing declared on as a libel is not actionable per se, and consequently that the allegations of the petition do not show any rights to recover damages for its publication. Zier v. Hofflin, 33 Minn. 66; Pratt v. Press Co., 30 id. 41; Newbold v. Bradstreet, 57 Md. 38; Cooley Torts, 203–205. Tex. Sup. Ct., Feb. 16, 1892. Hirshfield v. Ft. Worth Nat. Bank. Opinion by Marr, J. MUNICIPAL LIONS.-A city ordinance declaring it a misdemeanor punishable by fine to keep stallions, etc., within the city limits for service, is invalid, such keeping not being a nuisance per se. The main object and purpose of this appeal is to determine the validity and legality of the ordinance above set out, plaintiff contending that it is illegal and void because in restraint of trade, and attempts to prohibit the carrying on of a legitimate business in said corporate limits, which business is not per se a nuisance. The authority in behalf of the city to pass such an ordinance is predicated upon articles 403 and 408 of the Revised Statutes. Article 403 provides that the city council shall have authority to abate all nuisances which may injure or affect the public health or comfort in any manner they may deem expedient, and article 408 confers upon them the power to abate and remove nuisances, and to punish the authors thereof by penalties, fines and imprisonment, and to define and declare what shall be nuisances, and authorize and direct similar abatement thereof. By article 383 the city council is also authorized to license, tax and regulate trades, professions, occupations and callings, the taxing of which is not prohibited by the Constitu tion and laws of the State. The question is, do these statutory provisions empower the corporation to pass the ordinance in question? It is contended by appellant that the ordinance does not attempt to declare the keeping of a stallion to be a nuisance, nor attempt to define it as a nuisance, but simply prohibits the keeping thereof for breeding purposes. We do not deem it necessary to rest the decision of the question upon such hypercritical distinctions. We will treat the ordinance, on the other hand, as tautamount to an effort upon the part of the corporation to abate the keeping of a stallion within the corporate limits as a nuisance. It is a well-established rule that municipal corporations can exercise no powers except those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of the corporate powers, the performance of their corporate duties, and the accomplishment of the purpose of their association. They can exercise no power which the charter does not grant in express words, or which is not necessarily or fairly implied in or essential to the powers expressly granted, or which CORPORATIONS- ORDINANCES-STAL are an essential to the declared objects and purposes of the corporation. Ex parte Garza, 28 Tex. App. 381, citing 1 Dill. Mun. Corp., § 89; Cooley Const. Lim. 234, 235; Wood Nuis. (2d ed.), § 742; Miller v. Burch, 32 Tex. 208. The keeping of a stallion for breeding purposes is not only not in contravention of the laws and purposes of this State, but is a right which every citizen of the State possesses under our laws, and while such occupation is not licensed or taxed, yet the right is so far regarded as a valuable one, that by express provision of our statute, a lien is given to the owner or keeper of a stallion, jack or bull, on the progeny thereof, to secure the payment of the service of such animal. Gen. Law, 21st Leg., p. 115. The keeping of a stallion in a town or elsewhere, is not per se a nuisance. In Pye v. Peterson, 45 Tex. 312, our Supreme Court held that authority to abate uuisances does not include the power to declare that to be a nuisance which in its nature, situation or use is not such. This doctrine is fully sustained by numerous authorities cited in support of the same doctrine in 15 American and English Encyclopædia of Law, 178-180. Mr. Dillon says: "No ordinance can legally be made which contravenes a common right, unless the power to do so be plainly conferred by legislative grant, and, in cases relating to such right, authority to regulate, conferred upon towns of limited power, has been held not necessary to include the power to prohibit." 1 Dill. Mun. Corp. (3d ed.), § 325; Ex parte Garza, 28 Tex. App. 381. Mr. Wood, in his work on Nuisances, remarks: "It would indeed be a dangerous power to repose in municipal corporations to permit them to declare, by ordinance or otherwise, any thing a nuisance which the caprices of those having control of its government might see fit to outlaw, without being responsible for the consequences; and even if such power is expressly given by the Legislature, it is totally inoperative and void, unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it. The fact that the particular use of property is declared a nuisance by an ordinance of the city does not make that use of the property a nuisance, unless it is in fact so, and comes within the common-law or statutory idea of a nuisance." Wood Nuis. (2d ed.), p. 823, § 744. "A nuisance, to be a public nuisance, must be in a public place, or where the public frequently congregate, or where members of the public are likely to come within the range of its influence; for if the act or use of property be in a remote and unfrequented locality, it will not, unless malum in se, be a public nuisance. But the mere fact that the act or the use of property is unpleasant to the public, or renders property in the vicinity less valuable, will not alone be a sufficient invasion of a public right to constitute it a public nuisance. Provided the act or use of property be not in itself illegal, the law will not, for slight cause, interfere with the business or actions of any man. To constitute a public nuisance there must be a substantial injury to the public at large." 16 Am. & Eng. Enc. Law, 227-229. It is also a general rule, which needs no citation of authorities, that ordinances which needlessly restrain trade, or operate oppressively upon individuals, will not be sustained unless they are such as are calculated to preserve the public health. It is shown by the evidence in the case that the keeping and breeding of this stallion was done in a manner that prevented it from being seen or heard by the people in the town, in a large, close, brick livery stable, one hundred and fifty yards from the nearest dwelling, and where people passing and repassing upon the street could not see into said stable, or know what was going on when said horse was being bred to mares. We do not wish to be understood, or mean to say that the corporate authorities of the city of Ennis would not have been fully authorized to have passed an ordinance prohibiting the breeding of the stallion to mares within the limits of the town, within public view of the inhabitants of said town, who were wont to pass and repass, and accustomed to pass and repass, through said street where such thing was carried on. Crane v. State, 3 Ind. 193. Such an act would be a nuisance per se, and one which the corporation would have the right both to punish and abate. Ct. App. Tex., Nov. 28, 1891. Ex parte Robinson. Opinion by White, P. J. NEGLIGENCE -IMPUTED.- -The negligence of the driver of a vehicle cannot be imputed to a person who accepts his invitation to ride therein, in the absence of evidence that the invitation was accepted with knowledge that the driver was incompetent and unreliable. The general rule, as settled by this court, is that wheu an injury is occasioned by concurrent negligence of two persons the fault of one is no excuse for the other, but both are liable to the party injured. Turnpike Road Co. v. Stewart, 2 Metc. 119; Railroad Co. v. Case, 9 Bush, 728. In both those cases the plaintiff was a passenger in a public conveyance. But the conditions upon which contributory negligence of one of such persons can be imputed to the plaintiff, in an action against the others, as held in the latter case, are that he must have then been the agent or servant, or subject to the government or control, of the plaintiff. It does not therefore seem to make any difference in such case whether the party injured was at the time a passenger in a public conveyance, paying his fare, or riding in a private vehicle, free of charge, at invitation of the owner and driver, but the true test is whether his relation to the person whose negligence is sought to be imputed to him was such as would have rendered him liable in case another than himself had been injured by such concurrent negligence, for to defeat an action of a party injured by showing contributory negligence of another, or to render him liable for that other person's negligence, not being himself in fault, either the maxim qui facit per alium facit per se must apply; that is, the relation of master and servant or principal and agent must exist, or else that they were engaged in a joint enterprise, whereby mutual respon❘sibility for each other's acts existed, which was clearly not the case. Robinson v. Railroad Co., 66 N. Y. 11, was the case, like this in every respect, of a female who, while riding in a buggy at invitation of a young man, the owner and driver, was injured by collision with a railroad train, and in discussing the same question we are now considering Church, C. J., said: "I am unable to find any legal principle upon which to impute to the plaintiff the negligence of the driver. *** The acceptance of an invitation to ride creates no more respousibility for the acts of the driver than the riding in a stage coach, or even a train of cars, providing there was no negligence on account of the character or condition of the driver, or of the safety of the vehicle or otherwise. It is no excuse for the negligence of the defendant that another person's negligence contributed to the injury, for whose acts the plaintiff was not responsible." Masterson v. Railroad Co., 84 N. Y. 247, was the case of a person being invited to ride in a private vehicle by the owner and driver, and losing his life while the vehicle was crossing the defendant's road, where it was left in a dangerous condition. And in Railroad Co. v. Eadie, 43 Ohio St. 91, the plaintiff, a minor under sixteen years of age, yet fully able to take reasonable care of her safety, was injured by collision between a wagon in which she was riding with her father, owner and driver, and the defendant's car. |