which time it is clear these latter courts had no such power; and that as the revision repealed all other laws on the same subject, the act concerning the law of Maryland no longer applied to the case.

This leaves out of the process of reasoning the 92d section of the Revision, which declares again that "the laws of the State of Maryland, not inconsistent with this title, as the same existed on the 27th day of July, 1801, except as since modified or repealed by Congress or by authority thereof, or until so modified or repealed, continue in force within the District." Thus the argument is precisely the same as it was in the case of Kendall v. United States, for it was urged there, as here, that as the act creating the court measured its jurisdiction by that of the Circuit Courts of the United States, which had no such jurisdiction, there could be none in the former, to which the court replied, the provision which continued in force the laws of Maryland.

The revision has merely separated the different sections of the act of February 27, 1801, and placed part of it in section 760 and part of it in section 92. Neither provision is repealed, but we think both of them are retained, with the construction placed on them by this court in Kendall v. United States and the subsequent cases. But this question would seem to be set at rest by the act of 1877, "to perfect the revision of the statutes of the United States, and of the statutes relating to the District of Columbia." The act amends section 763 of the Revision of the Statutes of the District, by enacting that: "Said courts shall have cognizance of all crimes and offenses committed within said District, and in all cases in law and equity between parties, both or either of which shall be resident or be found within said District, and also of all suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants." 19 U. S. Stat. 253.

We are of opinion that the authority to issue writs of mandamus in cases in which the parties are by the common law entitled to them, is vested in the Supreme Court of the District of Columbia.

We proceed to inquire whether the relator has made such a case.

If the relator was entitled to the possession of the patent as his property, and it was the plain duty of the secretary to deliver it to him when demanded, then, under all the authorities, and especially the decisions of this court, he is entitled to the remedy he asks. From the case of Marbury v. Madison, 1 Cranch, 137, down to the present time, such has been the settled doctrine of this court. And though it may be said that the opinion of Chief Justice Marshall in that case was not necessary to the decision made, which was that this court had no original jurisdiction in that case, the principles of the opinion have been repeatedly recognized and acted upon in this court since, and the case cited with approval in its definition of the circumstances under which persons holding public offices will be compelled to perform certain duties which are merely ministerial. Kendall v. United States, 12 Pet. 618; Kendall v. Stokes, 3 How. 98; Decatur v. Paulding, 14 Pet. 353; Commissioner v. Whitely, 4 Wall. 534.

The next objection to issuing the writ which we are called to consider is that the secretary, in deciding whether he would deliver the patent to McBride or not, was called upon to exercise a judgment and discretion on the case presented to him which were not merely ministerial, but which were rather judicial in their character, and in regard to which many matters were to be considered-such as the validity of the title conferred by the patent, the circumstances under which it was signed, sealed and recorded, and the conflicting rights of other parties to the land covered by it. In short, that this execution of the patent con

cluded nothing, and the authority of the secretary and the commissioner of the general land office to deal with the whole subject, including the relator's right to the land, remained unaffected by the patent. Whether this be so or not must depend upon the authority conferred by Congress upon those officers, and the effect of the patent in the stage to which it had come when the demand for its possession was made by McBride.

The Constitution of the United States declares that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States, and under this provision the sale of the public lands has been placed by statute under the control of the secretary of the interior.

To aid him in the performance of this duty, a bureau has been created, at the head of which is the commissioner of the general land office, with many subordinates. To them as a special tribunal Congress has confided the execution of the laws which regulate the surveying, the selling and the general care of these lands.

Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen, and this court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring title were as yet in fieri before this special tribunal created by Congress for deciding the questions which should arise in the course of these proceedings, the courts would not interfere to control tho exercise of the power thus vested in that tribunal. To that doctrine we still adhere.

But we have also held that when, by the action of these officers and of the president of the United States, in issuing a patent to a citizen, the title to the land has passed from the government, the question of who is the real owner of it is open in the proper courts to all the considerations appropriate to the case. And this is so, whether the United States shall sue to set aside the patent and recover back the title so conveyed, as in United States v. Stone, 2 Wall. 525, or an individual shall sue to have the title conveyed by the patent held by the patentee in trust for that individual, on account of equitable circumstances which entitle him to that relief. Johnson v. Towsley, 13 Wall. 72, and other cases.

In the case before us it is said that the instrument called a patent, which purports in the name of the United States to convey to McBride the land in controversy, is not effectual for that purpose for want of delivery. That though signed and sealed and recorded, and sent to the register of the land office at Salt Lake City for delivery to him, it never was so delivered, and has always remained under the control of the officers of the land department, and that the instrument is invalid as a deed of conveyance for want of delivery to the grantee. If it were conceded that delivery of this patent is essential to its power to transfer title to the grantee, and that such delivery is required as that which is necessary between man and man, it would be a question of some difficulty to decide whether such delivery has taken place in this case. The well-known principle by which the intention of the grantor in a deed to make an act which falls far short of manual delivery, to stand for delivery, when so designed, might well be applied to the act of the commissioner in transmitting the patent by mail to the local office for the purpose of delivery; while on the other hand it is argued with much force that the instrument never actually passed from the land office or the control of its officers. We do not think the decision of this point necessary to the case before us.

We are of opinion that when upon the decision of the proper office, that the citizen has become entitled

to a patent for a portion of the public lands, such a patent is in that office made out and signed by the president, and when the seal of the United States is affixed to the instrument, countersigned by the recorder of the land office, and duly recorded in the record-book kept for that purpose, it becomes a solemn public act of the government of the United States and needs no further delivery or other authentication to make it perfect and valid. That in such case the title to the land conveyed passes by matter of record to the grantee, and that delivery as in cases of deeds of private individuals is not necessary to give effect to the granting clause of the instrument.

The authorities on this subject are numerous and they are uniform. They have their origin in the decisions of the English courts upou the grants of the crown evidenced by instruments called there, as here, patents.

Blackstone describes four modes of alienation or transfer of title to real estate, which he calls common assurance; the first of which is by matter in pais or deed, the second by matter of record or an assurance transacted only in the king's public courts of record, the third by special custom, and the fourth by devise in a last will or testament.

In the chapter devoted to alienation by deed he enumerates among the requisites to its validity the act of delivery. Book 2, ch. 20. But in chapter 21, devoted to alienation by matter of record, nothing is said about delivery as necessary to pass the title, and under this head he includes the king's grants. These he says are all made matter of public record, and are contained in charters or letters-patent. He then recites the processes by which patents are prepared and perfected, the various officers through whose hands they pass, and the manner of affixing the seal to them, and their final enrollment. They are then perfect grants, and no mention is made of delivery as a prerequisite to their validity. After this they can only be revoked or aunulled by scire facias or other judicial proceeding. 2 Commentaries, 346. The importance attached to the delivery of the deed in modern conveyancing arises largely from the fact that the deed has taken the place of the ancient livery of seizin in feudal times, when in order to give effect to the enfeoffment of the new tenant, the act of delivering possession in a public and notorious manner was the essential evidence of the investiture of the title to the land. This became gradually diminished in importance until the manual delivery of a piece of the turf, and many other symbolical acts, became sufficient. When all this passed away, and the creation and transfer of estates in land by a written instrument, called the act or deed of the 'party, became the usual mode, the instrument was at first delivered on the land in lieu of livery of seizin. Shepherd's Touchstone, 54; Coke upon Littleton, 266b; Washburn on Real Prop., book 3, p. 308. Finally, any delivery of the deed, or any act which the party intended to stand for such delivery, became effectual to pass the title. Church v. Gilman, 15 Wend. 656; Butler v. Baker, 3 Coke, 28b; Warren v. Levitt, 11 Fost. (N. H.) 340; Hatch v. Hatch, 9 Mass. 307.

But in regard to the transfer of title by matter of record, whether this record were a judgment or decree in a court of justice, as fines and recoveries, or the record made in the proper office (generally in the Court of Chancery by the lord chancellor) of the king's grant, called enrollment, no livery of seizin was necessary, nor any delivery of the document sealed with the king's seal; for when this seal was affixed to the instrument and the enrollment of it was made, no higher evidence could be had, nor was any other evidence necessary of this act or deed of the king. Hence, Mr. Cruise, in his Digest of the English Law of Real

Property, says: "The king's letters-patent need no delivery; nor his patents under the great seal of the duchy of Lancaster; for they are sufficiently authenticated and completed by the annexing of the respective seals to them." Title XXXIV, § 1, paragraph 3.

In the case of Marbury v. Madison, 1 Cranch, to which we have already referred, the court, likening the commission of the justice of the peace, which was signed and sealed by the president and left in the hands of the secretary of State, to a patent for lands, uses this language:

66

By the act passed in 1796, authorizing the sale of lands above the mouth of the Kentucky river (vol. 3, p. 229), the purchaser, on paying his purchase-money, becomes completely entitled to the property purchased, and on producing to the secretary of State the receipt of the treasurer, upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of State and recorded in his office. If the secretary of State should choose to withhold this patent, or the patent being lost should refuse a copy of it, can it be imagined that the law furnishes to the injured party no remedy? It is not believed that any person whatever would attempt to maintain such a proposition."

In another part of the opinion it is said: "In all cases of letters-patent, certain solemnities are required by law, which solemnities are tho evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign-manual of the president and the seal of the United States are those solemnities."

The same principle is found in the opinion of the court, delivered by Mr. Justice Story, in the case of Green v. Liter, 8 Cranch, 229.

Many decisions of State courts of the highest character to the same effect are cited in the brief of counsel for relator in this case, among which may be mentioned Ex parte Kuhtman, 3 Rich. Eq. 257; Downer v. Palmer, 31 Cal. 513. The subject is very fully and ably discussed by Mr. Justice Field in the case of Leroy v. Jamison, 3 Sawyer, 369.

It is also said that there was no acceptance of this patent by the grantee, and for that reason it is ineffectual to convey title. It is not necessary to enter into much discussion on this subject, because the acceptance of a deed may be presumed under circumstances far short of what was admitted to exist in this

case.

The doctrine on this point is well stated by Attorney-General Crittenden, in the case of Pierre Mutelle, in 1841, as found in 3 Opinions of Attorneys-General, 654, which was a case like the present, in regard to the duty of the secretary to deliver the patent then lying in the office.

"My opinion," said he, "is that the title to the land did pass to Pierre Mutelle at the date of the patent to him, though that patent still remains in the land office without any actual tradition of it to any one. The patent was issued by authority and direction of law, and upon general principles, where the patentee does not expressly dissent, his assent and acceptance are to be presumed from the beneficial nature of the grant. But it is hardly necessary to resort to such presumptions, because, in this and in all such cases, the acts required to be done by the claimant, and actually done by him in the preparation of his claim for patenting, are equivalent to a positive demand of the patent and amount to an acceptance of it. The patent, in the meaning of the act referred to, is granted to the patentee from its date, though he may never actually see or receive it, and is valid and effectual to pass the title to the land. "All legal muniments of title belong to him who owns the land, ** * but as the patent is a recorded

evidence of title, always accessible, no material prejudice can result to the true owner from a stranger getting possession of it."

The long pursuit of this claim by McBride, his repeated demand for the patent after it had been perfected, and his persistent effort to obtain possession of it, are ample proof of his acceptance of the grant of which it is the evidence.

It is argued with much plausibility that the relator was not entitled to the land by the laws of the United States, because it was not subject to homestead entry, and that the patent is therefore void, and the law will not require the secretary to do a vain thing by delivering it, which may at the same time embarrass the rights of others in regard to the same land.

We are not prepared to say that if the patent is absolutely void, so that no right could possibly accrue to the plaintiff under it, the suggestion would not be a sound one.

But the distinction between a void and voidable instrument, though sometimes a very nice one, is still a well-recognized distinction on which valuable rights often depend. And the case before us is one to which we think it is clearly applicable. To the officers of the land department, among whom we include the secretary of the interior, are confided, as we have already said, the administration of the laws concerning the sale of the public lands. The land in the present case had been surveyed and the lands in that district generally had been opened to pre-emption, to homestead entry, and to sale under their control. The question whether any particular piece of land belonging to the government was open to sale, to pre-emption, or to homestead right, is in every instance a question of law as applied to the facts for the determination of those officers. Their decision of such question is judicial in its character, as also the decision of conflicting claims to the same land by different parties.

It is clear that the right and the duty of deciding all such questions belong to those officers, and the statutes have provided for original and appellate hearings in that department before the successive officers of higher grade up to the secretary. They have therefore jurisdiction of such cases, and provision is made for the correction of errors in the exercise of that jurisdiction. How can it be said that when their decision of such a question is finally made and recorded in the shape of a patent, that instrument is absolutely void for such errors as these? If a patent should issue for land in the State of Massachusetts where the government never had land, it would be absolutely void. If it should issue for land 'once owned by the government but long before sold and conveyed by patent to another who held possession, it might be held void in a court of law on the production of the senior patent. But such is not the case before us. Here the question is whether this land had been withdrawn from the control of the land department by certain acts of other persons, which include it within the limits of an incorporated town. The whole question is one of disputed law and disputed facts. It was a question for the land officers to consider and decide before they determined to issue McBride's patent. It was within their jurisdiction to do so. If they decided erroneously the patent may be voidable, but not absolutely void.

The mode of avoiding it if voidable is not by arbitrarily withholding it, but by judicial proceeding to set it aside, or correct it if only partly wrong. It was within the province of those officers to sell the land and to decide to whom and for what price it should be sold, and when, in accordance with their decision, it was sold, the money paid for it and the grant carried into effect by a patent under the seal of the United States and the signature of the president, that instrument carried with it the title of the United States to the land.

From the very nature of the functions performed by these officers and from the fact that a transfer of the title from the United States to another owner follows their favorable action, it must result that at some stage or other of the proceeding their authority in the matter ceases.

It is equally clear that this period is at the latest, precisely when the last act in the series essential to the transfer of title has been performed. Whenever this takes place the land has ceased to be the land of the government; or to speak in technical language, the legal title has passed from the government and the power of these officers to deal with it has also passed away. The fact that the evidence of this transfer of title remains in the possession of the land officers cannot restore the title to the United States or defeat that of the grantee, any more than the burning up of a man's title-deeds destroys his title.

What is this final act which closes the transaction? In the case of Marbury v. Madison, this court was of opinion that when the commission of an officer was signed by the president and the seal of the United States affixed to it, the commission was complete, and the officer appointed entitled to its possession, so that he could enforce its delivery by the writ of mandamus. In regard to patents for land, it may be somewhat different, and it is not necessary in this case to go quite so far.

But we may well consider that in all nations, as far as we know, where grants of the property of the government or of the Crown are made by written instruments, provision is made for a record of these instruments in some public government office. Our experience in regard to Mexican, Spanish and French grants of parts of the public domain purchased by us from those governments, teaches us that such is the uniform law of those countries. We have already shown that under the English law all letters-patent are enrolled and that this is the last act in the process of issuing a patent which is essential to its validity.

We are safe in saying that every State in the Union has similar provisions in reference to its grants of land, and it has been the effort of most of them to compel public record of all conveyances of land by individuals or corporations.

The acts of Congress provide for the record of all patents for land in an office and in books kept for that purpose. An officer, called the recorder, is appointed by law to make and to keep these records. This officer is required to record every patent before it is issued and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction the legally appointed act which completes what Sir William Blackstone calls title by record; and when this is done the grantee is invested with that title.

We do not say that there may not be rare cases where all this has been done and yet the officer in possession of the patent be not compellable to deliver it to the grantee. If, for instance, the clerk whom the president is authorized by law to appoint to sign the president's name to the patent, should do so when he has been forbidden by the president, or if, by some mere clerical mistake, the intention of the officer performing an essential part in the execution of the patent has been frustrated. It is not necessary to decide on all the hypothetical cases that could be imagined.

But we are of opinion that when all that we have mentioned has been consciously and purposely done by each officer engaged in it, and where these officers have been acting in a matter within the scope of their duties, the legal title to the land passes to the grantee, and with it the right to the possession of the patent. No further authority to consider the patentee's case remains in the land office. No right to consider whether he ought in equity, or on new information, to

have the title, or receive the patent. There remains the duty, simply ministerial, to deliver the patent to the owner-a duty which, within all the definitions, can be enforced by the writ of mandamus.

It is not always that the ill consequences of a principle should control a court in deciding what the established law on a particular subject is, and in the delicate matter of controlling the action of a high officer of the executive branch of the government, it would certainly not alone be sufficient to justify judicial interposition. But it may tend to reconcile us to such action as we feel forced to take, under settled doctrines of the courts, to see that any other course would lead to irremediable injustice.

If the relator in this case cannot obtain his patent he is wholly without remedy. He cannot sue the United States, in whom is the title in the absence of the patent, for the United States can be sued in no other court than the Court of Claims, and we have decided that that court has no jurisdiction in such case. Bonner v. The United States, 9 Wall. 156. There is no one else to sue, for the title is either in the relator or the United States. It may be many years before the city of Grantville, the party now claiming against relator, will get a patent, and it may never do so.

The relator is therefore utterly without remedy if the land be rightfully his, until he can obtain possession of this evidence of his title.

On the other hand, when he obtains this possession, if there be any equitable reason, why, as against the government, he should not have it if it has been issued without authority of law, or by mistake of facts, or by fraud of the grantee - the United States can, by a bill in chancery, have a decree annulling the patent, or, possibly, a writ of scire facias. If another party (as the city of Grantville) is, for any of the reasons cognizable in a court of equity, entitled, as against the relator, to have the title which the patent conveys to him, a court of chancery can give similar relief to the city as soon as the patent comes into his possession, or perhaps before. So that it is plain that by non-action of the land department the legal rights of the parties may remain indefinitely undecided, and the rights of the relator seriously embarrassed or totally defeated, while the delivery of the patent, under the writ of mandamus, opens to all the parties the portals of the courts, where their rights can be judicially determined.

We are of opinion that the relator in the case, as presented to us, is entitled to the possession of the patent which he demanded, that the writ of mandamus by the Supreme Court of the District of Columbia is the appropriate remedy to enforce that right, and the judgment of that court is reversed, and the case remanded, with instructions to issue the writ. Waite, C. J., and Swayne, J., dissented.

INJURY FROM DEFECTIVE PREMISES TO ONE THEREON BY INVITATION.

SUPREME COURT OF THE UNITED STATES, JANUARY 10, 1880.

HARLAN, J. This is a writ of error to the Circuit Court of the United States for the District of Kentucky.

The action was commenced by a petition framed in accordance with the Kentucky Code of Practice in civil cases. Its object is to recover damages for personal injuries alleged to have resulted from negligence or want of proper care on the part of the agents, servants and employees of a railroad corporation engaged in the business of transporting freight and passengers for hire. The petition was twice amended, and to it, as amended, a demurrer was interposed, and being sustained, judgment was given for the defendant. After judgment the plaintiff died, and the action was revived in this court in the name of his personal representative. is The controlling question before us whether the petition and amended petition make out a cause of action against the company.

Under the averments in the pleadings, and for the purposes of this case, as presented, we must assume the existence of the following facts:

In the year 1876, the deceased was a passenger on the cars of the defendant company from Vernon to Danville, in the State of Tennessee. At the last named place he left the train for the purpose of taking the steamer Rapidan, which belonged to the Evansville & Tennessee River Packet Company, and was engaged in the navigation of that river. Its customary place of landing for Danville and immediate vicinity, on that side of the river, was at a wharf-boat, moored at or against a lot, within a few hundred yards of the railroad station. Between the railroad company and the packet company there was, at the time, an arrangement or contract, by the terms of which each party enjoyed a community of interest (in what proportion it is not stated) in the freight and passenger traffic at that point. They were mutually at liberty to sell through tickets, and give through bills of lading, over their respective lines. Both the wharf and the lot were owned by, and were under the exclusive control of, the railroad company. The former was used by the company and the public for storing freight, and as a convenient place for the landing of steamboats navigating the river. The lot had been purchased and used by the company in connection with the wharf-boat, for the purpose of facilitating its passenger business, as well as for the receipt and discharge of freight coming from the river to the railroad, or going from the railroad to the river. For such use of its wharf-boat and landing, the railroad company received benefit and compensation. To further facilitate their freight and passenger business, the railroad company had erected and maintained upon such lot, in front of the wharf-boat, a large open shed depot, about 240 feet in length, and twenty feet in width, in the centre of which was a room or apartment containing an engine, which was used for the purpose of hauling freight to and from the river by means of flats or cars drawn by ropes on railroad tracks. These cars were pulled up the bank into spaces (of which there were four, two on each side of the engine-room) left in the floor of the

VILLE RAILROAD CO.

The owner or occupant of land, who by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons-they using due care for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, with. out timely notice to the public, or to those who were likely to act upon such invitation.

were about eleven feet in extent, and reached from the river side of the depot nearly to its center.

The customary, and indeed the only safe, available and convenient route for persons passing from Danville to the steamboat landing, was along a plankway (on each side of which the ground was low and marshy), put down by the railroad company, about 600 yards in length, extending from Danville along a side track to the railroad, and terminating at or near the northern end of the depot; thence up a flight of

steps to the depot floor, and across the floor of the depot toward its southern end; thence down a flight of steps, located between two of the hatch-holes, to the wharf-boat, over a macadamized or gravel way, which the railroad company had constructed for the convenience of those going upon business to or from the steamboat landing. The custom of travellers, passing between the railroad station at Danville and the steamboat landing, to use as a footway the plankroad, the depot floor, and the macadamized way leading to the wharf-boat, was not only a necessary one, but was known to and permitted by the company. There was no path or safe or convenient way around the shed depot to the wharf.

Such was the situation when the deceased reached Danville by the cars of the company. He stopped at a hotel to await the coming, that night, of the steamer Rapidan, whose usual hours of arrival at the landing were known to the railroad company. Some time after midnight the steamer reached the vicinity of the landing, and by whistle signalled for landing at the wharf-boat. Deceased started from the hotel for the steamboat, for the purpose of prosecuting his journey, taking with him a lighted lantern. He went upon the plankway leading to the shed depot, having been informed by the landlord that that was the proper route to take. He had proceeded but a short distance when the wind extinguished the light, and fearing the boat would immediately depart, and being able to see the plankway, he proceeded to the depot (which was unlighted), and passing up the steps at its northern end, he attempted to cross the floor in the direction of the steps, at the southern end, leading down to the macadamized or gravel way which we have described. He was unaware of the existence of the openings or hatch-holes in the depot floor, or of any other obstruction or danger in his path, and although using due care, he fell through one of the hatch-holes (which had been left uncovered and unguarded for some time before), down a distance of at least five feet, upon the cross-ties and rails beneath. By the fall his left ancle and foot were broken and crushed, causing severe and permanent injury, attended by sickness and long confinement to his bed. The demurrer concedes that the company were aware, as well of the condition of the hatch-holes in the depot floor, as that such condition was unsafe and dangerous to the travelling public.

1. The right to revive this action in the name of the personal representative of Bennett seems to be clear under the laws both of Kentucky and Tennessee, by each of which States the defendant company was incorporated, and in the latter of which occurred the injuries for which damages are claimed. Ky. Gen. Stat. 179; Tennessee Code, § 2846.

2. The facts disclosed by the pleadings, and by the demurrer conceded to exist, seem to bring this case within the rule-founded in justice and necessity, and illustrated in many adjudged cases in the American courts that the owner or occupant of land, who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons-they using due care for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation. Railroad Co. v. Hanning, 15 Wall. 659; Carleton v. Franconia Iron and Steel Co., 99 Mass. 217; Sweeny v. Old Col., 10 Allen, 373; Wharton's Law of Negligence, § 349-352; Cooley on Torts, 604-7, and authorities cited by those authors. The last named author says that when one "expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into

danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit."

The rule is also illustrated in many cases in the English courts, some of which it may be well to examine. One, referred to by this court in Railroad v. Hanning, is Corby v. Hill, 4 Scott's C. B. (N. S.) 562. That was an action for an injury sustained by the plaintiff while travelling upon a private way leading from a turnpike road to a certain building, and over which parties having occasion to visit such building were likely to pass, and were accustomed to pass, by leave of the owners of the soil. The defendant negligently obstructed the way by placing thereon certain materials without giving notice or warning of the obstruction by light or other signal, and by reason thereof the plaintiff's horse was driven against the obstruction and injured. One of the pleas was that the defendant had placed the materials on the road by the license or consent of the owners of the soil. Upon the argument of the case counsel for the defendant contended that the owners of the soil, and consequently, also, any person having leave or license from them, might, as against any other person using the way by the like leave and license, place an obstruction thereon without incurring responsibility for injury resulting therefrom, unless in the case where an allurement or inducement was held out to such other person to make use of the way. Upon the general question, as well as in response to this argument, Cockburn, C. J., said: "It seems to me that the very case from which the learned counsel seeks to distinguish this, is the case now before us. The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question; they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. * * * Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent for them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to whom they held it out as a way along which they might safely go. If that be so, a third person could not acquire the right to do so under their license or permission." In the same case, Williams, J., said: "I see no reason why the plaintiff should not have a remedy against such a wrong-doer, just as much as if the obstruction had taken place upon a public road. Good sense and justice require that he should have a remedy, and there is no authority against it." Willis, J., remarked: "The defendant has no right to set a trap for the plaintiff. One who comes upon another's land by the owner's permission or invitation has a right to expect that the owner will not dig a pit thereon, or permit another to dig a pit thereon, so that persons lawfully coming there may receive injury."

Another case often cited is Chapman v. Rothwell, El., Bl. & El. 168. The declaration there charged that tho defendant was in possession and occupation of a brewery, office and passage leading thereto from the public street, used by him for the reception of customers and others in his trade and business as a brewer. The passage was the usual and ordinary means of ingress and egress to and from the office, from and to the public street. The defendant negligently permitted a trapdoor in the floor of that passage to be and remain open, without being properly guarded and lighted. The plaintiff's wife had been to the brewery office as a customer in the defendant's business, and was walking along the passage on her return to the public street, when she fell through the trap-door and was injured and killed. Upon the argument counsel for defendant insisted that no facts appeared showing it to be the