against him. But the reason-the only reason of this rule is, that he may examine them by the poll to ascertain if they assent to his conviction." 2 "The only reason" of the defendant's right to be present is that he may poll the jury. It follows that if an agreement by counsel to a sealed verdict waives the right to poll the jury, such agreement would also waive the defendant's right to be present at the rendition of the verdict. If Bridges had no right to poll the jury that convicted him, he had no right to be in court when the verdict was read and recorded. In Waller v. State, it is held "that counsel had no authority to assent thereto, or to waive the right of a prisoner, charged with a felony, to be present when the jury delivered their verdict to the court." Many authorities are cited by Byrd, J., who delivered the opinion of the court, as sustaining this principle; which is affirmed in the recent case of Cook v. State. It follows that notwithstanding any agreement that could have been made, the defendant would have retained the right to be present at the rendition of the verdict; and the "only reason" of the existence of such right is that he might poll the jury. But an agreement to a sealed verdict is valid. It only means that the jury, having agreed, may write and seal their verdict; and separate during the adjournment of the court, or the absence of the judge from the bench. It does not waive any right connected with the rendition of the verdict when the court is again opened. And if the jury be polled and any one of them dissent, it can not be received as their verdict.25

But it is said that the jury ought not to have been polled in the Bridges case, because if one of the jurors had dissented from the verdict, the jury having separated, it would have amounted to an acquittal. Cook v. State, 26 is cited as sustaining this position. The fact that the exercise of a legal right will result in the defendant's acquittal, will not often be held a sufficient reason to deprive the defendant of that right. The case of Cook v. State,

(22) Brister v. State, 26 Ala. 131; State v. Hughes, 2 Ala. 102.

(23) 40 Ala. 325.

(24) 60 Ala. 39.

(25) Bunn v. Hoyt, 3 Johns. 255; Proffatt on Jury Trial, 462.

(26) 60 Ala. 39.

so far as it bears upon this question, only decides that the unauthorized discharge of a jury who have rendered a void verdict acquits the defendant. If, on polling the jury in Bridges' case, it had been ascertained that no verdict had been found, the jury could have been sent back to the jury room to consider of their verdict. And if they agreed upon a verdict, it would have been received; if they failed "to agree upon a verdict, after reasonable time for deliberation and effort, the jury could be discharged, and a mistrial entered, and the defendant could be put upon trial for the same facts before charged against him, and the proceedings had would constitute no protection."'28 protection." When the verdict of guilty is read, the defendant has but one legal way to ascertain, what he has the right to know, if every individual juror assents to his conviction, and that is to move the court to poll the jury. The dissent will not be heard a few moments later. When the verdict is recorded and the jury discharged as a jury in that case, the sworn statement of a juror can not be received to show that he did not agree to the verdict. The right to poll the jury is considered of sufficient importance to have caused the legislature of some of the States to enact laws guarding it. But an examination of the authorities will show that in criminal cases the courts in this country have ungrudgingly recognized the right in the absence of such legislation.

LIABILITIES FOR NEGLIGENCE NOT ARISING OUT OF CONTRACTUAL OBLIGATIONS.

The case of Parry v. Smith, 27 W. R. 801, L. R. 4 C. P. D. 325, [9 Cent. L. J. 248], belongs to a class of cases involving great difficulty, and we confess that it seems to us very doubtful whether any satisfactory formula with regard to such cases can at present be evolved from the decisions. The question that arises really amounts to this, viz: what persons, under what circumstances apart from obligations of a contractual nature, can bring an action when injured by the negligence of others-or, to put it in other words, towards whom is there a duty, in such cases, to use due care and diligence? The facts of the case of Parry v. Smith, were as follows: The defendant, a gasfitter, was employed by the plaintiff's master to repair a gas meter upon his premises, and, for the

(27) Proffatt on Jury Trial, § 460.
(28) Cooley Constitutional Lim. pp. 327-8.
(29) Proffatt on Jury Trial, 462.

purpose of doing so, took away the meter, and, in lieu of it, made a temporary connection by means of a flexible tube between the inlet pipe and the pipe communicating with the house. The plaintiff having gone, in the ordinary performance of his duty, with a light into the cellar where the meter had been, gas which had escaped by reason of the insufficiency of the connecting tube exploded and injured him. The jury found that the work had been negligently done, and that the injury to the plaintiff proceeded entirely from such negligence. It was held by Lopes, J., on further consideration, that the defendant was liable.

Various well-known cases will doubtless occur to the reader's mind in connection with the above decision, such as Longmead v. Holliday, 6 Exch. 761, Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 337, and Winterbottom v. Wright, 10 M. & W. 109. In Langridge v. Levy and Longmead v. Holliday, the vendor of an article was sued by a person other than the vendee in respect of injuries occasioned by the defective and dangerous character of the article sold. In the former case the vendor was held liable, on the ground that he had made a fraudulent representation concerning the article (a gun), knowing when he did so that the gun was purchased for the use of the person injured, and that the person injured had used the gun on the faith of such representation. The court say, "We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representation, nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale to whom the gun might have been sold or handed over; we decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased." In the case of Longmead v. Holliday, an attempt was made to render a vendor responsible in damages for breach of warranty to a person not the vendee, but a person whose use of the article was contemplated by the vendor at the time of the sale. The court refused so to extend the doctrine of Langridge v. Levy. In George v. Skivington, L. R. 5 Ex. 1, the court extended the doctrine of Langridge v. Levy, to cases where there is not fraud on the part of the vendor, but negligence. There a man bought hair-wash to be used by his wife as the defendant knew, and the defendant had been guilty of negligence in compounding the wash, which proved deleterious. The court held the defendant liable at the suit of husband and wife jointly. We cannot see very clearly why the defendant's knowledge that the hair-wash was to be used by the wife was material, because hairwash is always presumably intended to be used by somebody for the hair, and we can not see if there is a duty to anybody beyond the vendee why it should make a difference that the defendant contemplated a particular person. We can not help thinking that the analogy between this case and

Langbridge v. Levy, which the Court of Exchequer insisted on, is misleading. Surely Langridge v. Levy turned on the point that the defendant was to be treated as having made the false representations indirectly to the plaintiff, at any rate that his false representation was the cause of plaintiff's using the gun. This principle is wholly inapplicable to George v. Skivington. It seems to us doubtful whether, logically, George v. Skivington must not turn on the principle that a person is responsible in damages for his negligence to any person whom he knew that his negligence might injure, except when contributory negligence comes in question. Then, can it make any difference that the particular person is designated and known to the defendant? If a man goes and buys a bottle of hair-wash, and tells the seller it is for his wife, his wife can recover; otherwise not, if he does not mention whom it is for. Surely that seems absurd. But if the principle of George v. Skivington is as broad as we suggest, undoubtedly it may lead to some rather sweeping and startling consequences. To take the case put in Winterbottom v. Wright, a man negligently constructs some article which he sells to another. Can every person who may ultimately be injuriously affected by the defectiveness of the article have an action for damages against the vendor? Take the cases suggested by Byles, J., in arguing Winterbottom v. Wright. "For example, every one of the sufferers by such an accident as that which recently happened on the Versailles Railway, might have his action against the manufacturer of the defective axle. So, if the chain cable of an East Indiaman were to break, and the vessel went aground, every person affected, either in person or property, by the accident might have an action against the manufacturer."

The case which seems to have been thought nearest to Parry v. Smith is Collis v. Selden, L. R. 3 C. P. 495, and we must confess we have some difficulty in drawing the distinction that was drawn between them. Collis v. Selden is not a very satisfactory case, in that the question arose on demurrer to a declaration, and a decision under these circumstances is never so satisfactory as when it is based upon actual facts. The declaration alleged that the defendant wrongfully, negligently and improperly hung a chandelier in a public-house, knowing that the plaintiff and others were likely to be therein and under the chandelier, and that the chandelier, unless properly hung, was likely to fall and injure them; and that the plaintiff being lawfully in the public-house, the chandelier fell upon and injured him. It was held that the declaration was bad as it did not disclose any duty by the defendant toward the plaintiff, for the breach of which an action could be maintained. This decision was much pressed on the court in Parry v. Smith, but it was held to be distinguishable. The framer of the declaration seems to have gone on the general principle that we suggest may be the consequence of George v. Skivington, viz., that a person in doing any act is under a duty to use due care towards any person whom he may reasonably contemplate as likely to

be injured if he does not. It is very difficult to say what the precise result of Collis v. Selden is, because the court was not dealing with actual facts proved; but it is to be noticed that both Bovill, C. J., and Willes, J., construed the declaration as not necessarily alleging personal negligence by the defendant in the hanging of the chandelier. They both say that negligence by a servant would satisfy the allegations of the declaration. But assuming that this was so, we have considerable doubt as to whether that circumstance was material and, whether in this respect a false issue was not raised. According to the general rules that govern a master's liability for the act of his servant, we doubt whether it would make any difference whether the negligence was that of the servant or the master. Willis, J., however, goes further, and his observations seem to us to be, in their general tendency, somewhat antagonistic to the decisions in George v. Skivington and Parry v. Smith. He says, "There would be no end of actions if we were to hold that a person having once done a piece of work carelessly should, independently of honesty of purpose, be fixed with liability in this way by reason of bad materials or insufficient fastenings." He then instances the case of a man building a house. Five or six years afterwards a chimney stack falls down and injures a person with whom the builder has no contract, to whom he owes no duty, and as against whom he can not have been guilty of any fraud. In giving judgment in Parry v. Smith, Lopes, J., distinguished the decision in Collis v. Selden on the ground that gas was a highly dangerous agent, and imposed a duty on all persons meddling with gas fittings to be very careful. This distinction he founded on the following remark of Willes, J., in Collis v. Selden: "The declaration should have shown that it (the chandelier) was a thing dangerous in itself, and likely to do damage, or that it was so hung as to be dangerous to persons frequenting the house.” We should have thought the declaration did by necessary intendment what the learned judge said it ought to have done. We have great difficulty in apprehending this distinction between things of a dangerous nature and of a more dangerous nature. As Bramwell, L. J., said in some case, the name of which we forget, a brick wall may, under some circumstances, be as dangerous as a tiger. All depends on the surrounding circumstances. A chandelier, suspended by a very weak fastening, is as dangerous as gas, as far as we can see. Perhaps more dangerous, as gas announces the danger by its smell. Again, we are somewhat in doubt as to the soundness of the argument that is derived from the sweeping nature of the consequences It does not seem to us that because the consequences of a piece of negligence may be sweeping and ruinous that it logically results that there is no duty to use due care towards the persons who may be injured.

per se.

We are, we confess, somewhat puzzled to deduce any definite principle from the decisions on this class of cases. There is a class of cases somewhat similar to Parry v. Smith, but which seem to turn

on a somewhat different principle, as, for instance, where the article which does the mischief is placed by the defendant in a public highway or other public place. But even here difficulty arises. What is a public place for the purposes of this doctrine? Would a theater be a public place for this purpose? If a theater would, why not a public-house? In Clark v. Chambers, 3 Q. B. D. 327, [7 Cent. L. J. 11] the defendant was held liable in respect of injuries occasioned to the plaintiff by a dangerous implement placed by him in a private road of which neither plaintiff nor defendant was owner, but upon which the defendant lawfully was when injured. We can not distinguish between a private road and a private house for this purpose.

There are many cases cited in the arguments and judgment in Clark v. Chambers which show the difficulty that arises in cases where the duty, if any, is to the general public, such as Dixon v. Bell, 5 M. & S. 198, and Ilott v. Wilks, 3 B. & A. 304, the case where a trespasser was injured by spring guns; but in some of those cases the distinction arises between acts which must be contemplated by the doer as necessarily dangerous however done, and acts only dangerous through negligence in the doing, but not necessarily contemplated by the doer as dangerous. This, as it appears to us, may be a very important distinction in all cases of negligence not arising from contractual relations. It is obvious that the moral responsibility of a man who does what he knows to be a dangerous act is very different from that of a man who is negligent, but not knowingly so. This distinction is so obvious as to seem a truism, but many of the cases seem to overlook it. Again, in some of the cases the danger was necessarily incurred by the party injured, not in doing some lawful act, but through the voluntary use of the article which did the mischief. Again, there are the cases which may be called "trap" cases, in which it was held that the defendant was liable because there was an invitation, and the negligence of the defendant constituted a trap for the plaintiff. Again, in some of the cases the defendant was the owner of the premises on which the dangerous thing was, in others he was not; the number of distinctions that may be suggested is very great. It would be impossible to discuss these distinctions in detail, but it is undeniable that our law on the subject of negligence apart from contract is very unsystematic and very difficult to reduce to general principles. We doubt whether it would be possible to reduce all the decisions in the kind of question we have touched upon to sound general propositions, but it is very much to be wished that it could be done.

LIABILITY OF RAILROAD FOR INJURY TO TRESPASSER.

SWEENY v. BOSTON, ETC. R. CO.

Supreme Judicial Court of Massachusetts, November Term, 1878.

A railroad company is not liable for injuries occasioned by one of its engines to an employee of one who has contracted to repair a bridge on a highway over its road, when it appears that such employee, at the time of the injury, was crossing over the track from one abutment to the other under the direction and for the convenience of the contractor, and that no inherent difficulty in the nature of the work required such a use of the track.

S. B. Allen and A. Hemenway for the plaintiff. Hale, Walcott & Perkins, for the defendant. ENDICOTT, J., delivered the opinion of the

court:

A railroad corporation has a right, in the due performance of its public duties, to the use of the land within its location and occupied by its tracks, which is permanent in its nature, and, generally speaking, exclusive, though not absolutely so under all circumstances. Emergencies and necessities may arise which will justify its invasion; as when it is necessary to pass over it to procure water to stop a conflagration, or to lay hose for the sane purpose over the tracks used by the railroad. Hazen V. Boston and Maine R. Co. 2 Gray, 574, 580; Metallic Compression Casting Co. v. Flitchburg R. Co., 109 Mass. 277. It is impossible to enumerate all the cases in which such necessity may arise; but it is undoubtedly true that in building a bridge over a railroad for the purpose of laying out a highway, or in repairing such a bridge over an existing way, it may be necessary in certain stages of the progress of the work, for the city or town engaged in it or its servants, to enter upon the railroad in order properly to repair the bridge. Whether such obstruction or use is necessary must depend upon the peculiar circumstances of each case, and it is incumbent on those who enter to show that there is a real and imperative necessity for so doing.

In the case at bar the City of Boston had made a contract with two persons to take down and rebuild the abutments of the bridge on Huntington avenue over the road of the defendant, and to make alterations and repairs in the superstruction of the bridge itself. The contract contained this clause: "That the contractor must not deposit any stone, earth or other material on the road bed of the railroad, nor in any way impede or endanger the passage of trains during the progress of the work." The persons thus contracting with the city under-let that portion of the contract, which related to the removal and rebuilding of the abutment, to sub-contractors, and the plaintiff's intestate was employed by them on that work when he received the alleged injury. The bill of exceptions states that they were removing the abutments or beginning to rebuild them at that time, and it is to be inferred from the evidence reported that the bridge had

either been taken down or was then impassable. The defendant had six parallel tracks at this point, and engines and trains were constantly passing over them at intervals of fifteen or twenty minutes as testified to by one of the plaintiff's wit

nesses.

It appears from the evidence that the work upon both abutments was proceeding at the same time, and that it was the practice of the sub-contractors to cross the tracks constantly, and also for the men employed by them to do so, when directed by those in charge. The plaintiff's intestate, when struck by the defendant's engine, was crossing in obedience to a direction by one of the sub-contractors. The only occasion or necessity for this crossing, as stated by all the witnesses, was that the men were wanted on the one side or on the other as the work went on. But it also appears that there was no necessary connection between the construction of the two abutments. All the work on either was done on that side, and it does not appear that there was any difficulty in constructing each abutment separately, or in constructing them both at the same time, if a sufficient number of men were employed. The socalled necessity which required the men to cross arose from the manner in which the contractors undertook to do this particular work, and not from any inherent difficulty arising out of the work. itself. It was for the convenience of the contractors that the men should be thus transferred, and not because such transfer was necessary for the proper prosecution of the work.

We are, therefore, of opinion that the jury should have been instructed as requested by the defendant, that upon the evidence in the case, the contractors and their servants had no legal right to cross or to be upon the tracks. Exceptions sustained.

NOTE.-See 2 Cent. L. J. 482; 3 Cent. L. J. 47; 4 Cent. L. J. 213. Pittsburg &c. R. Co. v. Bingham, 5 Cent. L. J., 82; Indianapolis &c. R. Co. v. McClaren, 8 Cent. L. J. 244; 8 Cent. L. J. 385.

CRIMINAL PRACTICE SEALED VERDICT -RIGHT TO POLL JURY.

UNITED STATES v. BRIDGES.

United States Circuit Court, Northern District of Alabama, October Term, 1879.

Where a defendant in a criminal case agrees to a sealed verdict and the jury deliver their verdict finding him guilty to the clerk of the court and then separate, the defendant has no right to have the jury polled when the verdict is read.

The defendant was indicted for perjury. After the court had charged the jury, it then being night, one of the defendant's counsel said that the jury might bring in a "sealed verdict." The judge presiding said that the court would not immediately adjourn. After a short interval, the

jury not having returned their verdict, the judge left the court house. That night about two o'clock, the jury delivered a sealed verdict to the clerk of the court, and separated. The court was opened the next morning at ten o'clock. The jury all being present, the verdict, signed by the foreman of the jury, was opened and read in the presence of the defendant: "We, the jury, find the defendant guilty as charged in the indictment." One of the attorneys representing the defendant immediately rose and said: "May it please the court, I move that the jury be polled." The court, BRUCE, J., presiding, overruled the motion to poll the jury, for the reason that the defendant by his counsel had agreed to a sealed verdict, and that the jury had filed their sealed verdict with the clerk, and had separated. At a subsequent day of the term, the defendant moved for a new trial, alleging as one ground that he had been denied the right to poll the jury.

Walker v. Shelby, for the motion, cited: 1 Bishop on Crim. Pro. § 830; United States v. Porter, 6 McLean, 188; Fox v. Smith, 3 Cow. 23; Sargent v. State, 11 Ohio, 472; State v. Hughes, 2 Ala. 102; Brister v. State, 26 Ala. 132.

Charles E. Meyer, contra, cited: 1 Bishop on Crim. Pro. § 830; Commonwealth v. Roby, 12 Pick. 496; State v. Wise, 7 Rich. 412; Cook v. State, 60 Ala. 39.

BRUCE, J., in an oral opinion, commented upon the cases cited by defendant's counsel, distinguishing them from the case at bar, and overruling the motion for a new trial. He adhered to the former ruling, that where a defendant agrees to a sealed verdict, and the jury find him guilty, and deliver the verdict sealed to the clerk of the court and separate, the defendant has waived his right to have the jury polled when the verdict is read.

EQUITABLE ESTATES OF INHERITANCEHOW CREATED.

STARR V. KEALHOFER.

Supreme Court of Tennessee, Commission of Arbitration, November 13, 1879.

To create an equitable estate of inheritance, under a deed conveying land to a trustee, words are necessary implying an inheritable quality in the estate of cestui que trust. Where such a deed contemplates no estate beyond the life of the cestui que trust, the beneficial estate terminates at her death, and the land reverts to the grantor and his heirs, although the deed in trust vested the fee simple title in the trustee and his heirs.

COCHRAN, COM.

On the 10th day of September, 1845, Richard D. Starr, by deed of that date conveyed land to Ethel H. Porter, for a nominal consideration expressed in the deed with these words: "And for and in consideration of the premises more especially hereinafter set forth, hath given, granted, bargained and sold, and by these presents doth

bargain, sell, give, grant, convey and confirm unto the said Ethel H. Porter, all that piece or parcel of land,” etc., describing the land, "To have and to hold, etc., unto him, the said Ethel H. Porter, his heirs and assigns forever." The deed then declares a trust in these words: "This conveyance is nevertheless made in trust, for the following uses and purposes and none other whatever, that is to say, whereas the said Richard D. Starr, being out of debt and unembarrassed, and being desirous of providing and securing, in case of his death or other accident, a residence and home for his faithful and affectionate wife, Caroline V. Starr, has conveyed the aforesaid tract of land, with the appurtenances, to the said Ethel H. Porter, trustee, for the sole and . separate use and benefit of his said wife, Caroline V. Starr. Now, therefore, this indenture witnesseth, that the conveyance of the aforesaid tract of land is made to the said Ethel H. Porter, in trust as aforesaid, and upon the express condition that the said Ethel H. Porter shall suffer and allow the said Caroline V. Starr to have, hold, use and occupy the said premises hereby conveyed, or lease, rent and receive the rents and profits, giving her receipt therefor, so that she may use and enjoy the said property, or the rents and profits thereof, for her sole and separate use and benefit, in as full and ample a manner as if she was a feme sole, and free from let or hindrance of her said husband in any way whatsoever. And in the event of a sale of said property becoming proper, so as to reinvest the proceeds elsewhere for like use and benefit of the said Caroline V. Starr, it shall be lawful and the duty of the said Ethel H. Porter, on the request in writing, by the said Caroline to that effect, to make sale and conveyance of said property hereby conveyed, the receipt alone of said Caroline V. Starr being good for the proceeds of such sale."

The question is, what estate did Caroline V. Starr take by said conveyance; an equitable estate of inheritance, or only an estate for her life?

By the deed the legal estate in fee was vested in Ethel H. Porter. This was necessary for the purposes of the trust, whether the beneficiary took an estate of inheritance, or only a life estate. As to the estate granted to the said Caroline, no words of inheritance are used.

As a general rule in all conveyances by deed, which are governed by the rules of the common law, as in this case, the conveyance must be made to the purchaser and his or her heirs, in order to create an estate of inheritance. If such or equivalent words are wanting, such deed creates only a life estate. Such is the doctrine as held in the case of Hunter v. Bryan, 5 Humph. 47; also in the elementary books; see 4 Kent's Com. pp. 4, 5, 6, 7. Such is the law in regard to the legal estate. In 2 Wash. on Real Prop. p. 454, the rules in regard to the estate of the beneficiary in such trusts are declared to be the same as those which govern the legal estate; that the trust estate is considered equivalent to the legal ownership, governed in general by the same rules; that the trust is the land, the declaration of the trust is the disposition of the land. Thus, a trust in favor