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specific than this indictment was held sufficient in State v. Lashus, 79 Me. 504, 11 Atl. Rep. 180. Exceptions overruled.

PETERS, C. J., and WALTON, DANFORTH, LIBBEY, and EMERY, JJ., concurred.

MATHEWS v. RIGGS.1

(Supreme Judicial Court of Maine. January 28, 1888.)

1. INSOLVENCY-SETTLEMENT OF UNMATURED CLAIM-FRADULENT PREFErence. If a creditor has reasonable cause to believe that his debtor is insolvent, and' within four months of the commencement of insolvency proceedings receives property in settlement of an unmatured claim, it will be deemed a fraudulent preference under the insolvent law.

2. SAME-Knowledge of AGENT.

An agent's knowledge of the debtor's financial condition is in law the knowledge of his principal.

On report from supreme judicial court, Waldo county.

Action on the case by the assignee of an insolvent debtor to recover the value of property alleged to have been delivered to the creditor in fraud of the insolvent law.

Thompson & Dunton, for plaintiff.

Wm. H. Fogler, for defendant.

HASKELL, J. Case by the assignee of an insolvent debtor to recover from the defendant the value of 80 shares in a corporation received by him from the insolvent debtor within four months of insolvency proceedings as a fraudulent preference under the insolvent law. No questions are raised as to the form or the sufficiency of the declaration, but the cause is submitted upon the merits. On March 6, 1886, prior to insolvency proceedings begun May 27, 1886, the debtor being hopelessly insolvent, and not able to meet her maturing demands in the ordinary course of business, (Clay v. Towle, 78 Me. 86, 2 Atl. Rep. 852,) assigned to the defendant 80 shares of Coliseum stock of the par value of $25 each, and of the actual value of 50 or 60 cents on the dollar, amounting to some $1,000 or $1,200, in exchange for her son's notes amount-ing to $1,928, and not due for a year to come, upon which she was an indorser. This transaction was not in the usual and ordinary course of business, and was therefore prima facie fraudulent, (Rev. St. c. 70, § 52,) and must be so considered unless the contrary appears. Scammon v. Cole, 3 N. B. R. 393; affirmed in 3 Cliff. 472. On the same day the debtor conveyed other parcels of her property in a manner indicating no desire to distribute the same equally among all her creditors, and there can be no doubt but that she intended a preference to the defendant. Merrill v. McLaughlin, 75 Me. 64. The defendant denies that he knew of the debtor's insolvent condition; but the transaction was of such character as to at least give him reasonable cause to believe her insolvent, and that is all that the statute requires.. Merrill v. McLaughlin, supra. He admits that he applied to the insolvent's son to negotiate the transaction for him. He says: "Mr. Morrison acted for me at my request. He was acting for me in negotiating for the exchange of the notes for the stock." Mr. Morrison testifies: "I knew my mother's financial condition in the winter and spring of 1886." The defendant sought the exchange of his notes for stock in value scarcely exceeding one-half the faceof the notes, when the notes had only run half their time, and would not fall due for a year to come. He employed an agent to accomplish the exchange who knew of the debtor's insolvency, and no doubt conferred with his principal about the advisability of the exchange. Moreover, the knowledge of the debtor's financial condition by Morrison, the defendant's agent, is just as effectual to

Reported by Leslie C. Cornish, Esq., of the Augusta bar.

charge the defendant with such knowledge as though he actually possessed it. In re Meyer, 2 N. B. R. 422; Vogle v. Lathrop, 4 N. B. R. 439; North v. House, 6 N. B. R. 365; Markson v. Hobson, 2 Dill. 327; Mayer v. Hermann, 10 Blatchf. 256. "The general rule that a principal is bound by the knowledge of his agent is based on the principle of law that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of negotiation, and the presumption that he will perform that duty." The Distilled Spirits, 11 Wall. 367. "The general doctrine that the knowledge of an agent is the knowledge of the principal cannot be doubted." Hoover v. Wise, 91 U. S. 310; Bank v. Davis, 2 Hill, 451; Ingalls v. Morgan, 10 N. Y. 178; Bank v. New York, 4 Paige, 127. The court is constrained to hold that the defendant had reasonable cause to believe that his debtor was insolvent, and that he received the property sued for in fraud of the insolvent law. Defendant defaulted for $1,000, and interest from March 6, 1886.

PETERS, C. J., and WALTON, DANFORTH, LIBBEY, and EMERY, JJ., concurred.

STATE v. CONWELL.1

(Supreme Judicial Court of Maine. January 27, 1888.) INTOXICATING LIQUORS-INDICTMENT-PRIOR CONVICTION.

A prior conviction is not well laid at a term of court ending before a certificate of decision was received from the law court in the cause.

Indictment for

On demurrer from superior court, Cumberland county. sale of intoxicating liquors. The opinion states the issue. Geo. M. Seiders, Co. Atty., for the State. Dennis A. Meaher, for respondent.

HASKELL, J. The May term of the superior court adjourned sine die June 1, 1885. The former conviction is laid at that term, "to-wit, on the tenth day of August, A. D. 1885," when a certificate of decision was received by the clerk from the law court. The May term had ended before the cause had been decided in the law court. The defendant's recognizance taken when his cause was marked "law" required his attendance "from term to term until and including the term of said court next after the certificate of decision shall be received" from the law court. Rev. St. c. 134, § 26. Until that term his attendance was not required, and no judgment could be rendered against him. Judgment for the state, but not for prior conviction.

PETERS, C. J., and WALTON, Virgin, LibbEY, and FOSTER, JJ., concurred.

JACKSON v. CASTLE.1

(Supreme Judicial Court of Maine. January 28, 1888.)

NEGLIGENCE-SLIDING IN Public Street-DECLARATION.

Sliding in a public street is not necessarily unlawful or a public nuisance, and a declaration containing no other averment of negligence cannot be sustained.

On report from supreme judicial court, Waldo county.

Action on the case to recover damages for injury to property sustained by reason of defendant's unlawful acts. The declaration is as follows: "In a plea of the case for that the plaintiff, to-wit, on the 15th day of December, A. D. 1884, at said Belfast, while in the exercise of his vocation, was then and there lawfully in and upon a certain public way in said city called Mil

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

v.13A.no.1-4

ler street,' with his two horses and sled, and that the said defendant and others, to the number of seven or more, were then and there sliding and coasting, with two or more sleds connected together, upon and down the sidewalk on said street, contrary to law, and then and there, within the limits of said street, made a loud noise by outcries and hallooing, contrary to law, and that, by reason of said sliding and loud noise, the horses of him, the said plaintiff, became frightened, and ran furiously down said street, and struck against a tree with such force that his sled and harnesses were broken, and one of said horses so much injured as to render him worthless, and that it was necessary to kill him, to the damage of said plaintiff, as he saith, the sum of three hundred dollars."

Joseph Williamson, for plaintiff. Wm. H. Fogler, for defendant.

HASKELL, J. Does the plaintiff's declaration set out a cause of action? It charges in substance that the plaintiff, being lawfully in a public street with his two-horse team, suffered special damage in the loss of a horse by reason of both horses taking fright at the defendant's sliding in the same street with others engaged in boisterous outcries incident to their sport. Sliding in a street, accompanied with boisterous conduct, is not necessarily unlawful. Nor is it necessarily a public nuisance. The averment that defendant's acts were "contrary to law," does not help the plaintiff's case. It is merely a conclusion that he draws from the facts stated. If the facts do not warrant it, the court cannot adopt it. Sliding in a street, accompanied with boisterous conduct, calculated to frighten horses lawfully traveling therein, may be a public nuisance; but there is no such averment in the declaration. Sliding may be prohibited in streets by a city ordinance, and a violation of the same would be evidence tending to show negligence. If the plaintiff would recover, he must show negligence or unlawful conduct to be the proximate cause of his injury. Plaintiff nonsuit.

PETERS, C. J., and WALTON, DANFORH, LIBBEY, and EMERY, JJ., concurred.

CHAPPELL v. BRADSHAW.

(Court of Appeals of Maryland. March 14, 1888.)

COLLISION-CONTRIBUTORY Negligence-OMISSION TO HAVE ANCHOR WATCH.

An oyster schooner having anchored over night in a cove, out of the track of navigation, and near a wharf where lay a scow laden with nitric acid, the master put up proper lights, but placed no anchor watch on deck, though he himself went up and down, looking around." During the night the scow took fire, and, being cut loose, drifted against and damaged the schooner. An anchor watch, had there been one, could have done nothing except to hoist the jib. This might have caused the schooner to swing free from the scow, or it might possibly have only increased the danger. Held that, in a common-law action for damages against the owner of the scow, the question whether the omission to have an anchor watch constituted contributory negligence was properly left to the jury, it not being, under the circumstances, a question of law.

Appeal from circuit court, Howard county.

Thomas W. Hall, for appellant. B. H. Haman and W. A. Hammond, for appellee.

MCSHERRY, J. The appellee, being the owner and the master of an oyster schooner, sailed from Baltimore early in December, 1885, and in consequence of rough and heavy weather, anchored in a cove off Hawkin's Point in the Patapsco river about 150 or 200 yards from a wharf owned by the appellant. This wharf was used by the appellant in connection with his fertilizer factory, situated near by. The cove was frequently used by vessels like that of the appellee for shelter in stormy weather; but at the time the appellee entered it, on

the occasion in question, there was but one other vessel there, though later the same evening and night some twenty others arrived and anchored. Shortly before the appellee anchored, on the same afternoon, a scow belonging to the appellant, and containing nitric acid in carboys, intended for use by the appellant at his factory, was towed up to the wharf already mentioned, and was there made fast by ropes to another scow, which was attached in the usual manner to the wharf. When the appellee anchored, he put up his proper lights, one of which was at the mast-head; but he placed no "anchor watch" on deck, having sent his crew below, though he himself went "up and down, looking around." About 10 o'clock of the same night the scow containing the nitric acid took fire, from some unexplained cause, and the watchman at the wharf, and in the appellant's employment, caused the burning scow to be cut loose, whereupon it drifted towards and came in contact with the appellee's vessel, and, becoming entangled in the bow-sprit and fore-rigging of the latter, set it on fire, and thereby occasioned it damage and injury. Upon the trial of the action brought by the appellee against the appellant to recover for the damage thus sustained, one exception was taken, which presents for review by this court the rulings of the court below in granting the first instruction of the appellee, and in rejecting the second prayer of the appellant.

The instruction granted at the instance of the appellee is undoubtedly free from objection, and has been repeatedly sanctioned and approved by this court in cases involving negligence as the cause of action. It submitted to the jury to find whether the injury to the schooner was occasioned by the negligence of the appellant's agents, and, in the event of such being found to be the case, authorized a recovery, unless the jury further should find that the "plaintiff or his agents directly contributed to the happening of the accident by their own negligence." Thus the alleged negligence of the appellant, and the alleged contributing negligence of the appellee, were both fully and fairly put in this instruction to the jury for their finding. The legal propositions of the instruction, and the form in which they are presented in it, are sustained by numerous cases in this court and elsewhere. This instruction, and the first instruction granted at the instance of the appellant, submitted the law of the case to the jury as favorably to the appellant as he could have asked for; unless it be true that the question of contributing negligence was one of law, to be determined by the court, as insisted in the appellant's second prayer, and not one of fact, to be found by the jury, under the particular circumstances of this case. This rejected prayer of the appellant asked the court to instruct the jury, as matter of law, that "it was an ordinary and proper precaution for the plaintiff to have had a watch on deck of his vessel, and his failure to have such a watch was negligence on his part," etc. It was argued before us, with great zeal and marked ability, that this prayer ought to have been granted. There was evidence before the jury to the effect that, if there had been a watch on deck, the danger could have been seen, and that by hoisting a jib the schooner would have swung or swayed around the length of her cable, and that thus the collision with the burning scow might have been avoided. But it was also in evidence that the direction which the schooner would have taken in this swaying or swinging around was entirely conjectural, and that thus it was possible that she might have been placed by this very means in an even more perilous position than she was. We are not prepared to give our assent to the theory of this prayer, and to announce, as a conclusion of law, that the absence of an anchor watch was, under the circumstances of this case, an act of negligence on the part of the appellant, contributing directly to the injury complained of, and of course, therefore, barring the right of the plaintiff to recover therefor. Negligence is relative or comparative. An act, or an omission to do some act, may be either indifferent or negligent, as surrounding and coincident circumstances give to it the one or the other character. Different surroundings and circumstances present different degrees of peril. The degree

of peril determines the measure of precaution requisite to prevent injury. Hence, from the very nature of the case, there cannot be, as there is not, any uniform and unvarying standard, applicable alike to all cases, by which an act, or a failure to do some act, can be distinctly defined as being contributing negligence. In many instances negligence or contributing negligence is purely a question of fact for the finding of the jury; in others, some pronounced, indisputable act or omission, so marked and unequivocal as to leave no room for any other characterization, will warrant a court in ruling that it is, in law, negligence of itself. Where the question is one depending upon a variety of circumstances, or where the testimony is conflicting in regard to them, or where different inferences may be drawn from the evidence upon that subject, or where there may be a reasonable ground for question as to whether the act or omission alleged to be contributing negligence did, in fact, contribute directly to the production of the injury, the jury has been held to be the proper tribunal to determine whether such act or omission amounts to the imputed contributing negligence. Whether, therefore, the appellee was negligent in not anticipating and foreseeing the possibility of the scow taking fire, and of its being then set adrift without the employment of any means to manage or direct it, depended upon what the jury, on all the evidence, might find that an ordinarily prudent and careful man would have done in the same situation. He was not anchored in the track of navigation, but in a cove resorted to only by small craft like his own for shelter, and his vessel was within a short distance of a wharf. The utmost which it is insisted an anchor watch could have accomplished would have been the hoisting of a jib, and that, as already stated, might have avoided the injury, or it might have increased the hazard, and caused even more serious damage than actually did occur. As, from the nature of the surroundings, it was more improbable that a collision would occur, from any cause, in that cove, than upon the open bay or river, there was less reason for watchfulness there than in the latter instance. While the absence of a proper watch would, under certain conditions, where the risk is great, amount to negligence, as decided by this court in Kerr's Case, 33 Md. 331, the same omission, where there would be very slight, if any, probability of injury, could not be thus characterized. Hence, under all the circumstances, it was proper for the jury to determine, as a matter of fact, whether the appellee was guilty of contributing negligence, in not having provided the anchor watch; and it was not, therefore, a question of law, to be decided by the court.

The cases relied upon by the appellant in support of this prayer are chiefly in the admiralty. But the mode of procedure there is materially different from that which obtains in courts of common law. In the one jurisdiction the law and the facts, ordinarily, are both passed upon by a single judge, and his conclusions in respect to the acts which constitute negligence are frequently mixed ones of law and fact. However entitled to deference and respect such conclusions may be, they cannot, in the other jurisdiction, where the province of the court is distinct from that of the jury, be accepted as establishing the doctrine that the absence of an anchor watch is, in law, of itself, under all circumstances, contributing negligence. By following in the case at bar these decisions in the admiralty, and by thus exacting from the master of an oyster pungy, situated as this one was, the same precautions which are demanded of the masters of totally different vessels, both at anchor and afloat, in localities unlike this cove, and in positions of far greater hazard, we would effectually obliterate the relative or comparative feature of negligence. This would be in conflict with long-settled principles.

Under the granted instruction, it was perfectly competent for the jury to have found a verdict for the appellant, had they deemed the absence of the watch an act of contributing negligence, directly concurring in producing the injury. It was likewise competent for them to treat the absence of such a

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