which it occurs, as a full day for all legal purposes. All people may be supposed to know when this extra day is to come in; and, as before said, as much work can be done by all engaged in litigation upon that day as upon any other of the month. Finally, it would seem from the foregoing reflections, that the rule cutting out the 29th day of February is merely technical, not founded in principle, and likely to cause injury to innocent people. Ought it not to be overruled by the courts, or if the doctrine of stare decisis be too strict to permit that, ought it not to be rectified by appropriate action of the legislative power?"

RECENT LEGAL LITERATURE.

RAPALJE'S FEDERAL REFERENCE DIGEST. To those to whom Mr. Rapalje's New York Reference Digest is not familiar, a word or two concerning the plan and extent of this book may not be without profit. Except the work which we have mentioned, and the one before us, we know of no legal digest executed in this manner-the idea is original with the compiler. Under the usual titles to be found in digests are various subdivisions, and under these are the volumes and pages of the reports in which cases on those topics may be found, Cross-references are very numerous, and in addition to this is an index of over 100 pages. References to all the Federal decisions to the year 1880, whether reported in the State or Federal reports or in the legal periodicals are here; likewise tables of reports, showing the abbreviations used, the time covered by, and the name of the courts whose decisions are reported in the several series; a table of circuit and district court decisions affected by State laws, showing in what State each decision was rendered. This work will be of great use to the practitioner searching for Federal decisions. We should say that a case in the United States courts which can not be traced by the aid of this digest may be put down as having never been decided, or at least never reported. The book contains over 800 pages; is printed on heavy paper with clear type and is substantially bound in the best law sheep.

HARRIS' PRINCIPLES OF CRIMINAL LAW. When we first took up this volume of 415 pages we thought that there surely could be no use for such a work. The many standard, elaborate and exhaustive treatises, both English and American, on criminal law had so completely covered the subject that there did not appear to be any necessity for this less pretentious volume. But from an examination of its

A digest of Federal decisions and statutes from the earliest period to the year 1880, comprising the reports of the Supreme, Circuit and District Courts of the United States; the Territorial Courts; such Federal cases as are scattered through the various State reports and legal periodicals, and those provisions of the statutes at large and the revised statutes which are of practical utility, together with a table of cases affirmed, reversed, overruled and otherwise criticised, covering the same period. By Stewart Rapalje, of the New York Bar. Jersey City: Frederick D. Linn & Co. 1880.

Principles of Criminal Law. By Seymour F. Harris, of the Inner Temple. With additions and notes adapting it to the American Law. By M. F. Force, Professor of Equity and Criminal Law in the Cincinnati Law School. Cincinnati: Robert Clarke & Co. 1879.

Of

pages we soon formed a different conclusion. course, it is not intended to supplant such works as Russell or Bishop or Wharton, but its object is more to meet the requirements of the young practitioner and supply a succinct and reliable book for the law student. A large portion of the English edition was an abridgement of recent English legislation. This has been omitted in the American edition, and its place supplied by matter setting forth the law as enacted and held in the United States.

Whilst the book does not pretend to be either historical or philosophical, or attempt to indulge in much independent discussion or criticism, it contains a greater amount of criminal law as it actually exists than can be elsewhere found in the same compass. Its scope is comprehensive and its definitions exact. The whole subject of crime in its various ramifications and divisions, and also criminal procedure, are tersely and clearly considered. The elements of crime, and persons capable of committing crime: offenses of a public nature, and offenses against individuals, their persons and property, are all treated of, under every head known to the criminal law The concluding book on criminal procedure forms one of the best outlines of the subject ever written. Every step in the proceeding of a trial from the organization of the court down to the final execution is given with a faithfulness and accuracy which must be satisfactory to every person consulting a book of its character. It is an extremely handy book to carry around the circuit, and should be in the hands of every young practitioner and law student, whilst the older members of the bar will find it very convenient for reference, as by its arrangement the precise point needed may be found at any moment.

CORRESPONDENCE.

PARTNERSHIP REALTY-REVIEW OF TIDD V. RINES.

To the Editor of the Central Law Journal:

It seems from the note on the above case in the CENTRAL LAW JOURNAL of the 6th inst. (10 Cent. L. J. 100), that the court decided that by a deed to ''Todd, Gorton & Co.'' who were co-parners, the legal title to the property did not pass to the grantees or any of them, but that the grantor held the legal title in trust for the firm. The writer in his comments says: "This is the only instance we now recall in which a court has been compelled to pass upon the validity of a deed drawn as was the one in question." He then refers to the case of Moreau v. Saffarans, 3 Sneed. (Tenn.) 595, where the court held that, by a deed to "S L & Co." the legal title passed to S L in trust for S L & Co., and says that the only difference between the two cases is the omission in the Minnesota case of any initial letters designating the persons composing the partnership. Now, it is only necessary to enable the grantor to take the legal title that he be named in the deed in such manner as to distinguish him from other persons, and to show to whom the deed was intended to be made. Where the Christian name of the grantee was left blank in a deed, it was held competent for him to show who was intended by proof aliunde, he being in possession of the deed. Fletcher v. Mansur, 5 Ind. 267; see Ward v. Espy, 6 Hun. 447.

The precise point in the Minnesota case has been rightly decided by several courts to the contrary of the conclusion reached in that case. Morse v. Carpenter, 19 Vt, 615; Holmes v. Jarrett, 4 Heisk. (Tenn.)

506; Schumpert V. Dillard, 55 Miss. 348. In Holmes v. Jarrett, the court held that a deed to a partnership vests the legal title in such of the members of the firm individually as are named in the conveyance, in trust for the partnership; and that, if Jarrett, Moon & Co. (that being the style of the grantees in the deed), was a partnership composed of Jarrett and Moon, and others not named, the legal title vested in Jarrett and Moon as trustees for the partnership; and that the ambiguity occasioned by the omission of their Christian names or initials might be explained by parol proof, and the parties intended to be designated as grantees thus made certain. See, also, Hofman v. Porter, 2 Brock. 158. The doctrine announced in these cases is certainly recommended by its practical application to the subject, and does not seem to be attended with any technical difficulties.

If the Supreme Court of Minnesota were correct in deciding that the legal title to the property never passed out of the grantor, then the conclusion that he held it in trust for the partnership grantees seems to be far-fetched. The deed would be absolutely void, and the only remedy left to "Todd, Gorton & Co., would be a suit against the grantor for money had and received to recover the purchase-money paid by them for the property. If the co-partners should be prohibited from showing by parol the Christian names of those mentioned in the deed, to defeat the passing of the legal estate, why should they be permitted to make such proof in order to take the equitable estate? JOHN D. GILLAND.

Vicksburg, Miss.

NOTES.

-The Patent Law Review is a new monthly published at Washington, D. C., and conducted by Charles S. Whitman. It contains digests of all current reported decisions of the Supreme and Circuit Courts of the United States, the courts of last resort in the several States, and the English courts in Patent, Copyright and Trade-Mark cases; also the latest intelligence of unreported cases, decisions of the Commissioner of Patents, Rules and Orders of the United States and British Patent Offices, and other matter of interest to the classes for whom it is intended.-We have received from Alexander Blumenstiel, of New York City, a digest of an act to establish a uniform system of bankruptcy throughout the United States. It is the work of Mr. Blumenstiel, who will be re· membered as the author of a treatise on the law o Bankruptcy published two years ago,

—In his recollections, which we have more than once referred to in these pages, Mr. Congdon talks as follows concerning one of his college classmates, afterwards a lawyer of eminence: "In the class of 1838 was Mr. Justice Bradley, of Rhode Island, the first scholar I think of his year, of whom we did anticipate great things. There is something pleasant in the loyal way in which lads in college recognize an associate of superior ability and special promise. How proud they are of him, and how fond they are of talking of him as the greatest genius in the world? So we all talked of Bradley. When he was to speak in the chapel after evening prayers, how irreverently eager we were for the devotions to be over, that we might listen to our favorite. There were other clever fellows, of course, but none so clever as he. He handled all topics, philosophical, political and literary, with such force and ease, that we held the matter hardly second to the manner, though the manner was as nearly perfect as any elocution coald be."

-The Illinois militia law has been declared constitutional by the Supreme Court of that State.The New York Tribune of the 3d inst. has the following in a dispatch from Washington of that date: "There was a novel scene in the United States Supreme Court room this afternoon. It had just been moved that the Hon. Joel Parker, of New Jersey, Democratic candidate for the Presidential nomination, be admitted to the bar of the court. Mrs. Belva Lockwood, who was admitted to practice before that court by special act of the last Congress, rose immediately, and in a shrill, piping voice, moved the admission of a lawyer from South Carolina, who she testified upon honor possessed the necessary qualifications for practice before the Supreme Court of the United States. The lawyer whose admission she moved rose and proved to be a negro. Joel Parker, the Democratic candidate for President, and the negro then stepped forward to the clerk's desk, placed their hands upon the same Bible and were sworn in together, standing very near to the niche where the bust of Chief Justice Taney, the author of the Dred Scott decision, is placed. The most visionary prophets of the last decade would scarcely have ventured to predict that a negro, upon motion of a woman who is a qualified counselor before that court. and a Democratic candidate for the Presidency, would have been enrolled among the counsellors of the court together."

-A curious question, says the Solicitors' Journal, was raised in a recent case at the Stafford assizes: A woman was indicted for that she, having as mother the care and custody of the corpse of her infant child, and being bound to provide for its decent Christain burial, unlawfully, wilfully and indecently did neglect and omit to provide such decent Christian burial, and unlawfully, wilfully and indecently did put and permanently leave, or caused the said corpse to be put and permanently left in a place unfit and improper for the reception thereof." The facts of the case were that the prisoner having been confined of an illegitimate child, the child died two days after birth, and was buried in the garden of the house where the mother and family lived. The rule of the common law as laid down by Lord Campbell in R. v. Vann, 2 Den. C. C. 325, is that a man is bound, if he has the means, to give his child Christian burial, but unless he has the means he is not indictabie for neglecting to do so." But there appears to be no clear authority as to what is meant by "Christian burial" and as Mr. Justice Bowen held in the recent case that there was no evidence to go the jury, the point was left undecided.--In the Life of Macaulay the following account of how the leaders of the English bar sometimes treated each other is given: Brougham squabbles with Pollock more than in generosity or policy he ought to do. I have heard several of our younger men wondering that he does not show more magnanimity. He yawns while Pollock is speaking, a sign of weariness which, in their present relation to each, he would do well to suppress. He has said some good but very bitter things. There was a case of a lead mine. Pollock was for the proprietors, and complained bitterly of the encroachments which Brougham's clients had made upon this property, which he represented as of immense value. Brougham said that the estimate which his learned friend formed of the property was vastly exaggerated; but that it was no wonder that a person who found it so easy to get gold for his lead should appreciate that heavy metal so highly. The other day Pollock laid down a point of law rather dogmatically. 'Mr. Pollock,' said Brougham, perhaps before you rule the point you will suffer his lordship to submit a few observations on it to your consideration.' "'

66

The Central Law Journal.

ST. LOUIS, FEBRUARY 27, 1880.

ACCIDENTS ON THE HIGHWAY.

A correspondent in Indiana writes as follows:

A person hitches a team of horses attached to a wagon in a public street to a hitching post on the sidewalk, and while so fastened by a new hitching strap they take fright, run away, breaking their fastenings and run upon and against a party on his sidewalk at his house, who, stooping at his work without knowing of their approach, was injured. The team was frightened by another team that had run away, and it seems that the team doing the injury had by their owner been tied or fastened by a new hitching strap, so that the only negligence, if any, was in hitching them where he did on the side of a public street in a city. There is no ordinance prohibiting such hitching of animals, as there is in some cities. Do you remember any case that in its facts is like this one, and in which the plaintiff on such proof only recovered, or is the fact of hitching them in the public street, their breaking loose, being scared by a runaway team, sufficient negligence to entitle the plaintiff, who was at his legitimate work (a blacksmith) on a part of his sidewalk very near the door of his shop, sufficient to enable him to recover? If you know of, or can find without too much trouble, any such case, it will be an accommodation to me, a subscriber to your JOURNAL. If you find one please send it to me."

We get a great many letters of this kind, in which subscribers (and some who are not subscribers) desire opinions on cases which they have in hand. We are always glad to answer such inquiries when the information is at hand, and can be sent without labor. But the above letter opens up an inquiry of general interest, and therefore we propose to make it the text of a few remarks.

It is obvious that there were three factors in this catastrophe. 1. Team A, which first ran away, frightening team B, which ran over the blacksmith. 2. Team B, which, frightened by team A, ran over the blacksmith. 3. The blacksmith who carried on the business of blacksmithing on the public street. 1. Whether the owner of team A is liable, depends upon whether he was negligent in letting his team escape, and whether this negligence, if any, was the proximate cause of the injury to the blacksmith. If we turn answer to this to the adjudications for an question we shall find with the doge in Othello, that

"There is no composition in these news.'
Vol. 10-No. 9.

The general rule is that where an injury is the combined result of the negligence of the defendant, and an accident for which neither the plaintiff nor the defendant is responsible, the defendant must pay damages, unless the injury would have happened if he had not been negligent.1 To illustrate: A is passing along the street in his chaise, when the dog of B leaps at his horse; the horse takes fright and becomes unmanageable; in endeavoring to restrain him a rein is broken; in consequence of this the chaise is dashed against a post and broken. The attack of the dog, and not the breaking of the rein, is the proximate cause of the injury; and under a statute making the owners of vicious dogs liable for damages caused by them,2 B must pay damages to A.3 A and B are traveling upon a turnpike road, each with a horse and wheeled vehicle, B immediately behind A, and in consequence of obstructions in the road, negligently left there by the turnpike company, the harness of B, though made of good and sufficient material, breaks, and thereby the horse of B becomes frightened and ungovernable and runs with his wagon upon A, injuring him. Here the negligence of the turnpike company is the proximate cause of A's injury, and such company is liable to him in damages. A road is cut around a precipitous mountain side, at the foot of which flows a river. The side of

1 Palmer v. Andover, 2 Cush. 600; Titcomb v. Fitchburg K. Co. 12 Allen, 254; Austin v. New Jersey Steamboat Co. 43 N. Y. 75; Lords Bailiff-Jurats of Romney Marsh v. Trinity House, L. R. 5 Exch. 204, (affirmed L. R. 7 Exch. 247; see Thompson Neg. 1063; Atchison v. King, 9 Kan. 550; Clark v. Barrington, 41 N. H. 52; Kelsey v. Glover, 15 Vt. 708; Lower Macungie Township v. Merkhoffer, 71 Pa. St. 276; Hey v. Philadelphia, 81 Pa. St. 44; Morse v. Richmond, 41 Vt. 435; Seigel v. Eisen, 41 Cal. 109; Tucker v. Henniker. 41 N. H. 317; Winship v. Enfield, 42 N. H. 197; Woodward v. Aborn, 35 Me. 271: Macauley v. New York, 67 N. Y 602; Thomas v. Hook, 4 Phila. 119; Holley v. Winooski Turnpike Co., 1 Aik. 74; Byrne v. Wilson, 15 I. R. C. L. 332; Hunt v. Pownal,

9 Vt. 411: Powell v. Deveny, 3 Cush. 300: Joliet v. Verley, 35 Ill. 58; Lacon v. Page, 48 Ill. 499; Aurora v. Pulfer, 56 Ill. 270; Hull v. Kansas City, 34 Mo. 598; Ward v. North Haven, 43 Conn. 148; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238; Contra, Wilson v. Susquehanna Turnpike Co., 21 Barb. 68; Bigelow v. Reed, 51 Me. 325; Proctor v. Jennings, 6 Nev. 83. Compare Parker v. Union Woollen Co.,

42 Conn. 399.

2 Rev. Stat. Mass. Chap. 58, § 13.

3 Sherman v. Favour, 1 Allen, 191. See also Sneesby

v. Lancashire etc. R. Co. L. R. 9 Q. B. 263.

4 Goshen Turnpike Co. v. Sears, 7 Conn. 86, 94.

5

the road toward the river is insufficiently guarded. At this point a bolt in the wagon of a traveler becomes accidently unfastened, whereby the fore wheels of his wagon turn suddenly out of the road, and the wagon is percipitated down the embankment, and the traveler injured. The traveler has been guilty of no contributory negligence. The town must pay the damages. The horse of a traveler accidentally takes fright, and running away receives or inflicts an injury by coming in contact with a defect in the highway. The town is not liable, the damages being too remote.6 A town negligently constructs a bridge without railings. In crossing it, the horse of a traveler becomes accidentally frightened; the carriage is thrown into the water and the traveler injured. The town is not liable, for the fright of the horse, and not the failure of the town to provide the bridge with a railing is the proximate cause of the damage.7

But if a defect in a highway causes such a breaking and derangement of a safe and proper vehicle that the direct and natural consequence is the frightening of a kind, safe, and well broken horse, and putting him beyond the control of a reasonably skilful and careful driver, the town liable to repair the highway, and having notice of the defect, must answer for the consequences, although the ultimate injury occurs, fortunately for all concerned, on a spot where the way may be smooth and not defective.8 Thus A, a female, is traveling along a highway which the town has negligently permitted to become rough and out of repair. While passing over a rock and a rut, the bolt comes out of the whippletree, and the whippletree strikes the heels of the horse; whereat the horse becomes frightened, and after running violently down a steep hill, stumbles and falls on a level place, throwing A out of the carriage and injuring her. If the defects in the highway caused the bolt to come out, the negligence

5 Hunt. v. Pownal, 9 Vt. 411. A similar ruling was made on similar facts in Palmer v. Audover, 2 Cush. 600; one of the judges, understood to have been Chief Justice Shaw, (see Moulton v. Sanford, 51 Me. 130,) dissented.

6 Davis v. Dudley, 4 Allen, 557.

7 Moulton v. Sanford, 51 Me. 127; (Davis, Cutting, Kent, Walton and Barrows, JJ., concurring; Appleton, C. J., and Rice and Dickerson, JJ., dissenting. 8 Willey v. Belfast, 61 Me. 569. To the same point, Topeka v. Tuttle, 5 Kan. 311, 322.

9

of the town was the proximate cause of the injury, and not the stumbling of the horse. It is to be deemed all one catastrophe, from the passing of the vehicle over the rock and rut until A strikes the ground. But if a horse drawing a vehicle driven with due care, becomes frightened in consequence of the vehicle pitching into a hole in the highway, negligently suffered to remain there by the city, and running away escapes control of its driver and turns, and, at the distance of fifty rods from the defect in the highway, knocks down a pedestrian who is traveling along the highway in the exercise of reasonable care, the negligence of the city is not the proximate cause of the injury to the pedestrian, although no other cause intervenes between the taking fright of the horse and the receiving of the injury.10

Again, if the concurrent or successive negligence of two persons combined together results in an injury to a third person, he may recover damages of either or both.11 Thus, A leaves his horse and cart standing in the street without any person to watch them, and a passer-by strikes the horse, in consequence of which damage ensues. A is answerable for such damage, 12 An omnibus overturns, precipitating a passenger into the lock of a canal. A third person, for whose acts the proprietors of the omnibus is not responsible, lets the water into the canal, in consequence of which the the passenger is drowned. The proprietor of the omnibus must pay damages for the death of the passenger.

13

Let us look further. If A is guilty of a negligent act which would not have produced the catastrophe but for the subsequent intervening negligence of B, such negligence of B not being a result which A might reasonably

9 Willey v. Belfast, supra.

10 Marble v. City of Worcester, 4 Gray, 395.

11 Burrows v. March Gas and Coke Co., 11 Allen, 500; Illidge v. Goodwin, 5 Car. & P. 190; Lynch v. Nurdin, 1 Q. B. 29; Lockhart v. Lichtenthaler, 46 Pa. St. 151; McCahill v. Kipp, 2 E. D. Smith. 413; Peck v. Neil, 3 McLean 26; Smith v. Dobson, 3 Scotts, N. R. 336; Congreve v. Morgan, 18 N. Y. 84; Irwin v. Fowler, 5 Robt. 482; Ricker v. Freeman, 50 N. H. 420; Wheeler v. Worcester, 10 Allen, 591; Chapman v. New Haven etc. R. Co., 19 N. Y. 341; Colegrove v. New Haven etc. R. Co. 20 N. Y. 492; Barrett v. Third Avenue R. Co. 45 N. Y. 628; McMahon v. Davidson, 12 Minn. 357; Griggs v. Fleckenstein, 14 Minn 81, 93; Philadelphia v. Weller, 4 Brews. 24; Carpenter v. Central Park R. Co.. 11 Abb. Pr. (N. S.) 416.

12 Illidge v. Goodwin, 5 Car. & P. 190. 13 Byrne v. Wilson, 15 Ir. C. L. 332.

15

anticipate, nor one against which it was his duty to guard, A will not be responsible for the resulting damages. 14. But an intervening act of an independent voluntary agent does not arrest causation, nor relieve the person doing the first wrong from the consequence of his wrong, if such intervening act was one which would ordinarily be expected to flow from the act of the first wrong-doer. Thus A negligently leaves his horse unhitched in a crowded street. The horse runs away, and while going violently down the street, people run towards it endeavoring to stop it. This causes the horse to swerve from the course it is taking, and brings it into contact with the horse and sleigh of B, causing damage to B. A is answerable for the damage which B has thus sustained.1 So A, a dealer in lumber, negligently piled some timbers on each other near a passage way. A wheel of the wagon of B, a customer, casually caught in a timber projecting from the pile, and threw the whole structure down upon C, another customer. Although the timbers had been thus piled several months before the accident, it was held that the negligence of A was the proximate cause of the injury to C.16 In another case hoisting-shears were held in position by two guys. A stevedore cast the front guy loose, and did not refasten it. The next day some boys swung on the rear guy, and caused the shears to fall and break. They would not have fallen but for the swinging of the boys, and the swinging of the boys would not have caused them to fall had the stevedore refastened the front guy. The court held that the stevedore was not liable for the injury to the sheares caused by the fall.17 The servant of A, at the close of his day's work, negligently left his truck in a public street, with the shafts shoved up in the customary manner and supported by a plank. The driver of B's truck proceeding with ordinary care and skill, accidentally drove his truck into A's truck, whereby the shafts were knocked down, swung around horizontally

14 Carter v. Towne, 103 Mass. 507; Davidson v. Nichols, 11 Allen, 514; Parker v. Cohoes, 10 Hun, 531. Compare Clark v. Chambers, L. R.3 Q. B. Div. 327; s. c. 7 Cent. L. J. 11; Doggett v. Richmond etc. R. Co., 78 N. C. 305.

15 Griggs v. Fleckenstein, 14 Minn. 81. 16 Pastene v. Adams, 49 Cal. 87.

17 Tutein v. Hurley, 98 Mass. 211.

upon the sidewalk, and struck C, a passer-by. A was held liable to pay damages to C.18 If A negligently leaves a dangerous machine in a street or other public place, and B, a child, in playing with it, sets it in motion or throws it down, so that it injures C, another child, A must pay damages to C, notwithstanding the intervening negligence of B.19

Confusing as these decisions seem to be, there is a principle running through all of them, and it is this: An act or omission is never deemed the proximate cause of an injury, unless the actor, under all the circumstances surrounding him, ought reasonably to have foreseen that it would result in such injury.20

Now, applying this principle, suppose that the owner of team A was negligent in fastening his team, or in driving them, so that they escaped from his control and ran away, he still would not be liable to the blacksmith; for a reasonable man could not foresee, (1) that his horses running away would cause the team of B, securely fastened, to break loose; (2) that the team of B, breaking loose, would also run away; (3) that a blacksmith would be at work at his "legitimate business" on the sidewalk; and (4) that the team of B, so frightened, would run over such blacksmith while so at work. He might well be held to have foreseen that his horses running away would do damage, but he could not reasonably be held to have foreseen that they would do such remote damage as this. Of course there may be facts in the case not stated by our correspondent which would change the application of the rule we have made.

18 Powell v. Deveney. 3 Cush. 300.

19 Whether A was guilty of negligence in exposing the machine is, as in most other cases, a question of fact for the jury. Lane v. Atlantic Works, 107 Mass. 104. Compare Mangan v. Atterton, L. R. 1 Exch. 238; s. c. 35 L. J. Exch. 161; 14 Moak Rep. 771; 4 Hurl & Colt, 388; Hughes v. Macfie, 2 Hurl. & Colt, 744; s. c. 10 Jur. (N S.) 682; 33 L. J. Exch. 177; 12 Moak Rep. 315.

20 McKinstry, J., in Henry v. Southern Pacific R.. Co., 50 Cal. 183; Rigby v. Hewitt, 5, Exch. 240; Fairbanks v. Kerr, 70 Pa. St. 86; Morrison v. Davis, 20, Pa. St. 171; McGrew v. Stone, 53 Pa. St. 436; Scott v. Hunter, 46 Pa. St. 192; Lake v. Milliken, 62 Mo. 240; Stark v. Lancaster, 57 N. H. 88; Atchison etc. R. Co. v. Stanford, 12 Kan. 354; Marble v. Worcester, 4 Gray, 395; Bennett v. Lockwood, 20 Wend.. 223; Proctor v. Jennings, 6 Nev. 83; Doggett v.. Richmond etc. R. Co., 78 N. C. 305; Phillips v. Dickerson, 85 Ill. 11; State v. Manchester etc. R. R. 52 N.、 H. 528, 552.