CURRENT TOPICS.

It seems to be now well settled that words of inheritance are not necessary to pass a fee by will, if the intent to pass it is otherwise evinced. In Waterman v. Green, lately decided by the Supreme Court of Rhode Island, a devise was as follows: "I give and devise to my nephew, H. W. G., my undivided half of the Potowomut Mill and mill privilege and the land and dwelling-house occupied as a part of said mill estate." The testator held a fee simple in the realty devised. It was held that H. W. G. took a fee simple, and not an estate for life. A devise of all my estate" or of "my estate," will pass a fee, if the testator has it, whether the devise be general or with words of locality. Leland v. Adams, 9 Gray, 171; Arnold v. Lincoln, 8 R. I. 384; Beall y. Holmes, 6 H. & J. 205, 208; Chamberlain v. Owings, 30 Md. 447; Donovan v. Donovan, 4 Harring. (Del.) 177; Lambert v. Paine, 3 Cranch, 97; 2 Redfield on Wills, cap. 14, § 68, 13. So a devise of "my landed property," or of "all my landed property,'' will carry a fee. Fogg v. Clark, 1 N. H. 163; Foster v. Stewart, 18 Pa. St. 23. In Neide v. Neide, 4 Rawle, 75, the devise was, "my late purchase from E. C., and also four acres of woodland," in a designated locality, and the purchase from E, C. having been a fee, it was held that the devisee took a fee not only in the purchase, but also in the four acres of woodland. In Doe dem. Atkinson v. Fawcett, 8 C. B. 274, 283, a devise to R of "my moiety of the house he now lives in, was held to carry the fee. In Paris v. Miller, 5 M. & S. 408, a. devise of "my share" in certain lands was held to carry a fee; and McClure v. Douthitt, 3 Pa. St. 446; reheard 6 Pa. St. 414, is to the same effect. These latter cases are not distinguishable from the case at bar. In Bebb v. Penoyre, 11 East, 160, the language was, "I give to my brother Samuel Castell my half part of the five freehold houses which I hold with him in Leadenhall street;" and Lord Ellenborough expressed the opinion that the devise carried the fee though he did not have to decide the point. In Montgomery v. Montgomery, 3 Jo. & Lat. 47, in the Irish Chancery, Sir Edward Sugden, as Chancellor, cited Lord Ellenborough's opinion with approval, and followed it. See also Hance v. West, 32 N. J. Law, 223; Purcell v. Wilson, 4 Gratt, 16.

We are glad to see a passenger who has, by the failure of a street car company to provide sufficient cars, been compelled to stand on the platform and thus receive an injury, bring an action against the company, and we are still better pleased to see the company compelled to pay damages. A defense such as that interposed in the case of Thirteenth &c. R. Co. v. Boudrou, decided by the Supreme Court of Pennsylvania recently is, to say the least, rather "cheeky.' The plaintiff got upon a crowded street car, and stood with six or eight other passengers upon the rear platform. While there he was struck in the back and severely injured by the pole of a following car, by reason of the breaking of the brake chain of the last car. In an action for that injury the defendants asked the court to rule that the action of the plaintiff in standing on the platform was such contributory negligence as to bar his recovery. This the court refused and this ruling was affirmed on appeal. "The learned judge, "' said TRUNREY, J., "taking a different and correct view, very properly charged that the plaintiff could not recover if the injury resulted from any negligence on his part; that if the jury should find that

the plaintiff was negligent in standing on the rear platform, and yet find that the collision could not have happened but for the negligence of the driver of car fourteen, plaintiff's negligence was remote and not a bar to his recovery. His reasons given as leading to that conclusion are unanswerable. The large number of passengers in this city, who voluntarily stand on the platforms, because there is neither sitting nor standing room in the cars, do not, and ought not to anticipate that they will be run over by following cars. Their position has no tendency to induce the driving of one car into another, whatever the degree of their negligence in riding on the platforms, and the risks they take in so doing. Every one knows that so long as he remains there he is in no danger of being run down by a car, unless from its heedless handling. When the plaintiff was struck, his post was a condition, but not a cause of his injury. It neither lessened the speed of the car he was on, nor increased that of the other; his presence was not a cause of the broken chain and reckless driving of car fourteen; his place was an incident of an over-crowded car, whose conductor had left the platform to give him standing room, and had not pointed him to a seat or requested him to enter the car. We are not persuaded that different minds could honestly draw different conclusions from the facts."

RECENT LEGAL LITERATURE.

SCHOULER ON BAILMENTS.

This is a valuable work by an author already well known to the profession by his previous Treatise on the Law of the Domestic Relations," etc. The important subject discussed in this volume is treated exhaustively. The text is full and clear, and the notes are evidently prepared with great care. It contains all the excellencies of its predecessor, Mr. Justice Story's great work upon the same subject, besides a faithful record of the growth of the law of Bailments since that work was written. Few branches of our jurisprudence have had a larger development within the past fifty years than the one treated in this volume. It was, therefore, high time for a new and more exhaustive discussion of the whole subject in the light of the more recent adjudications and with special reference to the modern law of Carriers. This task has been well performed by Mr. Schouler.

The work is divided into seven parts as follows: 1. Bailments in general. 2. Bailments for the bailor's sole benefit. 3. Bailments for the bailee's sole benefit. 4. Ordinary bailments for mutual benefit. 5. Exceptional mutual benefit bailments, postmasters and innkeepers. 6. Exceptional mutual benefit bailments, common carriers. 7. Carriers of passengers. The parts are divided into chapters, and the whole volume occupies 699 pages.

The author's discussion of the subject of Exceptional Mutual Benefit Bailments, with special reference to the duties and responsibilities of post masters, inn-keepers and common carriers, will be found especially interesting and valuable. Much space is devoted to a discussion of the law of Bailments in its relations to that of Common Carriers, and it is perhaps not too much to say that this feature of the work is of unequalled excellence.

A Treatise on the Law of Bailments, including carriers, inn-keepers and pledge. By James Schouler. Boston: Little, Brown & Co. 1880.

RECENT REPORTS.

The sixth volume of the Missouri Appeal Reports contains the cases decided from April 30, 1878, to March 5, 1879, many of them on topics of general professional interest among which we note the following: In Orphan's Home Assn. v. Sharp it is ruled that a gratuitous subscription to a charitable object can not be enforced, unless the promisee has done something in reliance upon it; the fact that others were thereby led to subscribe is not sufficient. Sureties on the bond of a book-keeper of a bank are discharged by his employment, without their consent, as teller. Home Saving's Bank v. Trauhe. A city ordinance that no horse or cattle dealer shall engage in such business without a license, which however is not to be granted without a certificate from the Board of Police Commissioners that the applicant is a person of good moral character, is not unreasonable. City of St. Louis v. Knox. A promise by the president of a bank to a depositor that if the latter will not check out his funds but permit them to remain in the bank, the former will pay the total deposit if the bank should close, is within the statute of frauds. Walter v. Merrell. An architect is not within the statute giving a lien to "every mechanic or other person'' who performs work or labor on buildings, etc. Raeder v. Bensberg. The reporter's work is beyond criticism, and the publisher's leaves nothing to be desired. The volume contains 670 pages.

NOTES.

-The following is from California. Scene a police court. Judge-"Bill Sheets, you are charged with burglary. Are you guilty?" "Sure, yer 'onor, an' if it's gooilthy I am, do yez thinks I be afther tellin' yez ov it? I pleads not gooilthy, was the response of Bill. "All right," said the judge, and turning to one of the most eminent members of the bar, said: "You will please act as counsel for the defendant." At this the prisoner turned and calmly surveyed the placid countenance of his champion, and then addressed the court as follows: "Sure, an' if it's that yez afther givin' me fur a loiyer, I pleads gooilthy, and be done with it at once." Then as he turned and pointed to the robust form of a youthful member of the bar, he continued: "But if yoill give me him, as what is a foine loiyer, oil plade not gooilthy." The prisoner was allowed his choice of

counsel.

-Lord Selborne, the Chancellor under the new English government, is sixty-eight years old. He was called to the bar in 1837, became a Q. C. in 1849, entered Parliament in 1852, and was appointed attorney-general in 1864. In 1868 he declined the chancellorship. In 1872, as Sir Roundell Palmer, he distinguished himself as counsel for the British government at the Geneva Arbitration, and was subsequently created a lord. He succeeded Lord Hatherly as Chancellor in 1873, retiring with Mr. Gladstone's ministry in 1874. when he was succeeded by Lord Cairns whom he now in turn displaces.-George A.

Cases Determined in the St. Louis Court of Appeals of the State of Missouri. Reported by A. Moore Berry, officicial reporter. Vol. 6. St. Louis: F. H. Thomas & Co., 1880.

Brayton formerly and for many years Chief Justice of the Supreme Court of Rhode Island, died on the 21st inst. aged seventy-seven.Judge McCrary is to be tendered a reception by the Nebraska State Bar Association at Omaha, on the 5th prox.

-A good story, writes an Ohio subscriber from a prominent city in that State, is being related by members of the bar here, having for its principal characters two of our common pleas judges and the wealthy mayor of a suburban village. Judge X, who is a lover of good horse-flesh, invited Judge Y to take a ride with him behind his favorite steed. In the course of the drive they reached the above mentioned village. The avenues were broad, level and inviting and in spite of the fact that there is an ordinance restricting the rate of speed to five miles an hour, Judge X could not resist the temptation to give his horse a little spurt. But their enjoyment was short-lived. A police officer, came, saw and conquered. In vain they offered excuses and made known their official positions; it made no difference, they must go before the mayor. His Honor, the mayor, was on his dignity, unyielding, merciless. He said, Gentlemen, I feel it my duty to establish a precedent by your cases, that those who are inclined to use our avenues for reckless driving may know the penalty. I fine you each ten dollars and costs."' "Do I understand,'' inquired Judge X, that your honor fines Judge Y ten dollars and me ten dollars?" "I do," replied the mayor. "Well, Judge Y" said Judge X, "I grant you a supersedeas on writ of error in your case, and you may do the same in mine; we will take these cases up. your honor." And thereupon they took themselves up and off.

-Chief Justice Oliver Ellsworth was noted for his peculiarities, one of the most marked of which was his entire absorption in the welfare of his government. He made little account of table indulgences. His eating seemed to be regarded as a means of enabling him to continue his working and thinking; and the latter, indeed, was not often interfered with by his meals. When the table was ready and he had been summoned he generally came without delay, saying as he moved toward the table for the purpose of expediting matters: "Who eats? who eats?" He was devoid of ostentation and full of common sense. His father had given him a house and farm before he was married and about the time he began to practice law at the courts in Hartford. He was accustomed at that time to walk into the city during court time, and then to walk back in the evening, that he might attend to his cattle and his other home cares. One day, as he was walking into Hartford, he met an acquaintance of his, Mr. N., a man of wealth, riding in his own luxurious carriage. Said Mr. N, "Mr. Ellsworth, I am surprised to see a man like you going on foot, why don't you ride?" "I have observed," replied he, "that men generally have to walk some part of their lives, and I chose to do my walking while I am young and able to do it." This remark had the more significance when it came to be taken in connection with the fact that this same Mr. N afterwards lost his property and was obliged to do his walking in the feebleness of his advancing years; while Mr. Ellsworth, by his own talents and industry, had accumulated an ample fortune and traveled about in his own carriage. The Chief Justice was a man of commanding mien. When he was first presented to Napoleon, the emperor, after the interview, remarked to some one near him, "We shall have to make a treaty with that man; there is something uncommon in his looks."'

ST. LOUIS, MAY 7, 1880.

RAILROAD FIRES-EVIDENCE OF NEGLIGENCE.

Destructive conflagrations arising from the escape of sparks from locomotives are not unfrequent, and provide a fruitful source of litigation. It being conclusively settled that a railroad company is not liable for an accidental loss of this character, but that in order to obtain redress for his injuries the sufferer must establish negligence on the part of the defendant, what shall be deemed sufficient evidence of negligence becomes generally the first question which presents itself in actions for damages caused by fire. Two very recent Pennsylvania cases suggest a review of the decisions on this point.

In Jennings v. Pennsylvania Railroad Company,1 the action was for loss by fire, occuring through the alleged negligence of the defendant, of a certain quantity of hay in plaintiff's meadow adjacent to the railroad, by sparks thrown from the defendant's engine. The plaintiff's evidence was to the effect that on account of the steep grade at this point the engines were often overworked and overloaded, causing larger sparks than usual to fly from the smoke-stacks, and that the plaintiff's meadow was burned by the sparks.

There

was no evidence that the particular locomotive in question was improperly constructed. The defendant's evidence was to the effect that their engines were provided with the best approved spark-catchers, the most perfect in the service, and the best that were known or heard of at the time used. The court held that there was no evidence of negligence to go to the jury and directed a verdict for the defendant. On appeal this ruling was affirmed, the Supreme Court saying: hold that the fact of the fire having taken place, was prima facie evidence that the spark-arrester was defective, and therefore, that the case ought to have been submitted to the jury, would be practically to hold railroad companies liable for

137 Leg. Int. 157.

Vol. 10- No. 19.

rester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a larger one, it depending very much on the dryness or humidity of the atmostphere, whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited." In Reading & Columbus Railroad Company v. Latshaw 2 decided by the same court, March 15th, 1880, the claim was similar to that in the former case. The defendant's counsel requested the court to charge the jury that as the only evidence offered by the plaintiff was that shortly after the train passed the grass was seen to be on fire, there was no evidence of negligence and therefore the verdict must be for the defendant, and that as it was shown that the sparkarrester on the locomotive was of the most efficient kind and in good condition and properly managed, they were not guilty of negligence and the verdict should go for them. The court refused to so instruct, but left it to the jury to say on the whole case whether there had been any negligence. The jury found for the plaintiff. On appeal to the Supreme Court, the judgment was reversed for the reasons given in the previous case.

3

Such a doctrine, viz.: that proof of the escape of fire from a locomotive without more does not establish a prima facie case of negligence on the part of the company, though supported by previous decisions in Pennsylvania and some other States,1 does not commend itself as reasonable or just. The cases in which the contrary doctrine has been adopted are numerous and authoritative, and include all the English adjudications from the earliest down to the present time. In Aldridge v. Great Western R. Co.,5 decided in 1841, the first action against a railroad for causing fires, the case stated for the opinion of the court, simply showed that the engine of the defendant was of the kind used

237 Leg. Int. 157.

3 Railroad Co. v. Yeiser, 8 Pa. St. 366.

4 Sheldon v. Hudson River R. Co., 14 N. Y. 218; Kansas Pacific R. Co. v. Butts, 7 Kas. 308; Hull v. Sacramento R. Co., 14 Cal, 387; Burroughs v. Housatonic R. Co., 15 Conn. 124; Indiana Cent. R. Co. v. Paramore, 31 Ind. 143; Ellis v. R. Co., 2 Ired. 138; Jefferis v. R. Co., 3 Houst. 447; Ruffner v. Chicago &c. R. Co., 7 Cent. L. J. 316; Thomp. on Neg. Cap. II.

3 M. & G. 515.

66

"I

on railroads generally, and at the time of the damage was being used in the ordinary manner. The Court of Common Pleas refused to decide the question as 66 on a case stated," but ordered it to be submitted to a jury. am not prepared to say," said Tindal, C. J., "that the fact of the engine emitting sparks may not amount to negligence." In Piggott v. Eastern Counties R. Co.6 the principal question was as to the evidence of negligence, Coltman, J., said: The fact of the building being fired by sparks emitted from the defendant's engine established a prima facie case of negligence which called upon them to show that they had adopted some precautions to guard against such accidents." MAULE, J., added: "It appears that the plaintiff was possessed of certain farm buildings adjoining the railway, and that in consequence of the sort of management adopted by the company fire was thrown from a passing engine upon these buildings and destroyed them. I am far from saying that it is impossible that this could have occurred without negligence on the part of the company. But it at least affords a strong presumption of negligence."

In Bass v. Chicago &c. R. Co.,7 decided by the Supreme Court of Illinois in 1862, Breese, J., who delivered the opinion of the court, said: "The first question that arises is, does the mere fact of fire escaping from a locomotive, by which property is destroyed, imply negligence? At an early period in the history of railroads, it was settled by the courts of Great Britain, upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine was prima facie evidence of negligence on the part of the company, making it incumbent on them to show that proper precautions had been adopt ed by them reasonably calculated to prevent such accidents. We think that there is great justice in the English rule, and are inclined to adopt it as most conducive to the safety of property on our lines of railroad, extending as they do through vast prairies filled at certain seasons of the year with dry grass of a highly inflammable nature." In the next case in this State where the same question arose, Walker, C. J., added other reasons in support of the rule adopted by the

63 C. B. 228.

7 28 Ill. 9.

court in 1862: "Observance and experience," he said, "teach that engines unprovided with such appliances [i. e., to prevent the escape of fire] are liable in a high degree to communicate fire to adjoining property. And experience proves that by the use of modern inventions for the purpose, the escape of fire may ordinarily be prevented. And when it does escape we may safely infer that such machinery has been omitted, and require the company to show that it was employed and in proper condition. In this there is no hardship, as the engine is under the control of the employees of the road, and they know, or at least are bound to know, that the engine is properly equipped to prevent fire from escaping. They know whether any mechanical contrivances were employed and, if so, their character. Trains passing at a high rate of speed are not accessible to examination by persons not connected with the train, and who are thereby denied all means of ascertaining whether the necessary equipments are employed by the company. Hence the necessity of requiring the company to show their use at the time, to rebut the presumption of negligence." negligence." In Burke v. Louisville &c. R. Co., an action for destroying plaintiff's house by sparks from defendant's engine, the defendant requested the court to charge that if the plaintiff sought to recover on the ground of negligence, the burden of proof of negligence was upon him, which request the court refused. This ruling was affirmed by the Supreme Court of Tennessee, such "not being the law as applicable to this kind of case. "The reasons given for requiring the companies to show that this duty has been performed on their part," say the Supreme Court of Wisconsin, ployees of the road know, or at least are are that the agents and embound to know, that the engine is properly equipped to prevent fire from escaping, and that they know whether any mechanical contrivances were employed for that purpose, and if so what was their character; whilst, on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to and can not be obtained by them without great trouble and expense, and then often only as a

66

87 Heisk. 451.

favor from the company which, under the circumstances, the company would be very likely to withhold. These considerations seem to this court to afford very clear and satisfactory grounds in support of the rule." The same doctrine, for the same reason, is held in Nevada 9 and Nebraska, 10

13

In Missouri this point was for some time unsettled. In 1866 it was ruled by the Supreme Court that in cases of this character evidence of negligence must be produced by the plaintiff in addition to proof of the simple fact of the escape of fire or he could not recover. 11 This conclusion was. reached by Holmes, J., after a technical discussion which wholly ignored the question of public convenience and policy. It was not long, however, before this doctrine was overruled, and the law as to the evidence of negligence in actions against railroads for causing fires set at rest. 12 "We may safely presume," said Vories, J., in delivering the opinion of the court in the case of Clemens v. Hannibal etc. R. Co.,1 "that railway companies are not running locomotives on their roads the natural or probable effect of which would be to set fire to the farms of those who resided along the road if they were carefully managed, from which the natural presumption would be that when fire escaped and burned up the farms along the road it proceeded from negligence. If it should be held otherwise it would amount to a denial of justice to those who were injured by such fires. It would be in most cases wholly impossible for the farmer who was injured to be able to tell how the servants of the company were conducting the business, and they would be in most cases wholly ignorant by what witnesses the fact of negligence could be proved. These are facts that would be peculiarly within the knowledge of the defendant and its servants. In such cases the onus should devolve on the defendant to

prove how it and its servants were conducting its business at the time the fire escaped. The question is now I consider well settled in this State."

dependent of contract no presumption of negligence can ordinarily arise from the mere happening of an accident may be admitted, but to this rule there can in hardly any case be any objection. Others besides railroads are liable to actions for negligently setting out fires a man, for example, clearing his land in this manner or running his mill by this agency, is answerable under some circumstance and there is no dissent from the rule that in such cases the fact of fire does not raise a presumption of negligence. Here it is generally easy for the person injured to show some facts from which an inference of negligence may properly arise. But a farmer whose property has been destroyed by a spark from a locomotive, what does he know or what can he prove except that his house or crops have been destroyed, and that the defendant furnished the means? He must suffer his injury without redress if the company have used engines adapted to the purpose and without defect; is it too much then to demand of them that they shall prove this and not he?

But if the courts will take notice of the progress which is being made in mechanical invention they can easily find another ground on which to base the rule for which we contend. We have read so frequently in journals devoted to the railroad interests, of contrivances which are in use on some roads, and which it is said absolutely prevent the escape of sparks of sufficient size to cause damage, that we are satisfied that such safeguards are to be had. If so, it is the duty of the railroads to use them; if, on account of either expense or inconvenience, they are not adopted by a particular road the responsibility is theirs. Whenever the courts are able to find as a matter of common observation that the sparks from locomotives can be restrained if the proper means are used, then, without being obliged to call either public policy or precedent to their support, they can decide that the escape of fire is negligence. Judicial support for this finding is even now not wanting, for more than one judge has already expressed the opinion that it is perfectly practicable to adopt precautions that will render such accidents impossible. 14

14 See the remarks of Maule, J., in Piggott v. Eastern Counties R. Co.; of the Supreme Court of Illinois