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there are no shipping articles, and no prescribed voy- 43; Brunent v. Taber, 1 id. 243; Hutchinson v. Coombs, 1 age stated, the implied contract or legal presumption Ware, 65; Sheffield v. Page, 1 Sprague, 285, 288; Sheffield is that he is to be returned to the port of shipment. v. Page, 2 Curt. C. C. 377; Hunt v. Colburn, 1 Sprague, Were this otherwise, most disastrous consequences 215; Nimrod, 1 Ware, 9; Anderson v. Solon, Crabbe's might often result. The doctrines as to seagoing ves Adm. 17; The Gazelle, 1 Sprague, 378; Burke v. Buttsels are well settled, and the principles on which they | mann, 1 Lowell, 191; The Elizabeth, 2 Dodson, 402, 412; have been asserted apply to internal navigation, in the Brooks v. Dorr, 2 Mass. 39; The John Martin, 2 Abb. absence of any congressional legislation upon the sub- | (U. S.) 172, 181; The B. F. Bruce, Newberry, 539; ject. If a mariner shipped on a vessel bound to Fort | The Crusader, 1 Ware, 437; White v. Atkins, 8 Cush. Benton, Montana, it could not be fairly urged, that | 367; Rossiter v. Cooper, 23 Vt. 522; Heim v. Wolf, 1 E. in the absence of an express' agreement, he could quit D. Smith, 70. the vessel at Fort Benton, and with impunity disable her from returning; nor on the other hand, that he

NEW YORK COURT OF APPEALS ABSTRACT. could be left in that distant region without means of returning. The duties are reciprocal. This court had occasion years ago to pass upon a like

ASSUMPTION -OF DEBT BY ONE ACQUIRING CONquestion, occurring upon the upper Missouri. Re

RACT TO SELL REAL ESTATE FROM VENDEE as SECURported cases seem not to be fully in accord; yet when

ITY -- STATUTE OF FRAUDS.-(1) Plaintiff executed to carefully considered, are not different in principle. A

H. & contract in which he agreed to convey to H., mariner wrongfully discharged may work his passage

upon the payment of $1,350, $300 upon the execution home in the same capacity as that for which he was

of the contract and the balance in five equal annual originally engaged, and thus såve the cost of transpor

payments, a lot of land. The $300 was paid and intation to the owners of the vessel. In the absence of

terest at the end of the first year on the balance. such an opportunity he may return as a passenger. In

Thereafter H. conveyed the contract to defendant to seagoing voyages, where the destination is to a foreign

whom he was indebted, in consideration of the cancelport specified, and a direct return to the port of ship

ling of the debt, and of an agreement on the part of ment, it has been decided that his wages should be

defendant to let him have in trade sufficient to amount paid up to the time of the vessel's return, and it has

with the debt to $300. There was also an agreement also been decided that his wages should run to the date

that upon repaying the amount advanced H. might of his return in another vessel. Circumstances may

redeem the contract. Plaintiff brought action against make one or the other of these rulings applicable :

defendant for the amount due on the contract, on the foreign voyages.

ground that defendant had promised H. to pay what In the internal navigation of this country it is evi

should fall due upon the contract, and that this promise dent that no arbitrary rule can obtain, in justice to the

inured to the benefit of plaintiff. The only evidence interests involved, for, as in the case under considera

of such an agreement was in the testimony of H. tion, the return could not be made in a reasonable

which did not show any express promise to that effect. time on a vessel, because navigation was closed by ice.

Held, that the action could not be sustained. There The mariners, being discharged at a port whence by

was no absolute promise on the part of defendant to railroad they could return home in a few days, would

pay the debt, no assumption so as to make it the debt not have been justified in waiting until spring for a

of defendant. The case falls within Garnsey v. Rogers, vessel to take them to their port of shipment. Hence,

47 N. Y. 237, and the transaction between H. and dethe rule for their compensation is the amount of their

fendant gave no right of action to plaintiff. In the necessary transportation and expenses, together with

case cited the right of redemption had been exercised; their rate of wages from date of discharge to their ar

in this it had not, but the difference is immaterial. rival at the port of shipment; for the contracts were

The rule depends upon the existence of the right and not for a specified time of employment.

not upon its exercise. The cases Ricard v. Sanderson, It might have been that their term of service would

41 N. Y. 179; Cooley v. Howe Machine Co., 53 id. have ended sooner than it did; for the voyage might

620; Campbell v. Smith, 71 id. 26, do not conflict with have been made only to Cincinnati or Louisville and

this rule. In all of them the covenant to pay was abback to Pittsburg. It must however be always con

solute and the liability fixed. (2) It was claimed that sidered that mariners stand in the relation of wards

defendant had obtained from plaintiff an extension of of court, and that inasmuch as it is in the power of

time for the payment of some of the installments due, the master and owners to make their contracts definite

and had promised to pay them in consideration of by shipping articles or otherwise, the legal presump

which an extension was given. lleld, that no such tion arises, if they do not specify in their agreements

cause of action was set up. The action was on deto the contrary. The differences in river navigation

feudant's promise to H. (3) Held, also, that the promise from seagoing voyages have been often considered in

claimed being to pay the debt of another, was invalid this court, and this case furnishes an apt illustration

under the statute of frauds, not being in writing, even of what maritime principles require. From various

though supported by a sufficient consideration. Watcauses a steamboat may have to procure additional

son v. Randall, 20 Wend. 201; Mallory v. Gillett, 21 id. mariners in different stages of her route, instead of an

411; Burtis v. Thompson, 42 id. 246. Judgment affirmed. entire crew for the whole voyage; yet the same rule

Roe, appellunt, v. Barker. Opinion by Finch, J. must apply to each.

[Decided Nov. 9, 1880.] It is very easy for officers to state to a mariner defi · NEGLIGENCE -- OMISSION TO RING BELL AND KEEP nitely what his employment is to be, whether to be FLAGMAN AT STREET CROSSING IF NOT CONTRIBUTING discharged at the port of arrival or otherwise, if they TO INJURY FROM RAILROAD TRAIN NOT NEGLIGENCE.wish to limit his term of service or reserve a right to In an action against a railroad company for injury to discharge him before his return to the port of shipment. plaintiff, a boy ten years old, caused by being run over Brown v. Lull, 2 Sum. 443, 419; In re Glocester, 2 early in the evening by defendant's engine at a street Pet. Adm. 403, 405; In re Rovena, 1 Ware, 309; The crossing, it was claimed that no bell was rung when Exeter, 2 Rob. Adm. 261; Beaver, 3 id. 92; Sullivan v. the engine approached the crossing. It appeared, Morgan, 11 Johus. (C6) 67; IIoyt v. Wildfire, 3 id. 518, however, that plaintiff saw the engine, which was 520; 28 Mo. 280; id. 338; Rice v. Polly & Kitty, 2 Pet. backing, approaching and tried to run across in front Adm. 420, 43; The Union, Blatchf. & H. 568; Farrell of it, but his foot caught between a rail and the plankv. French, id. 275; Emerson v. Hovlund, 1 Mason, 45: ing and he fell down and was run over. Held, that as Nevitt v. Clarke, Olc. 316; Jones v. Sears, 2 Sprague, I the object of ringing a bell upon an engine is to warn

people of its approach, it was not negligence contributo business or the trade-mark. There was nothing in the ing to the accident to omit to ring it, as plaintiff had bill of sale about the trade-mark, and there was no all the notice that ringing would have given. A flag- agreement on the part of defendants that they would man was usually kept at this crossing, but he was ab- not engage in manufacturing the same kind of goods, sent on this occasion. It was not the duty of defend- | | or that plaintiff should have the exclusive right to

a flagman at that crossing and plaintiff did carry on the business in the city of Brooklyn. There not know that one had been usually kept. Held, that was no fraud or mistake. Held, that plaintiff did not there was no negligence on the part of the defendant have the exclusive right to use the word "silex" as a in this particular. McGrath v. New York Central, eto., trade-mark, but that defendants had an equal right R. Co., 59 N. Y. 468; S. C., 63 id. 5:22. The regular with him to its use. The deed and bill of sale must be fireman was not on the engine at the time, and there held to embody the contract between the parties. was no light on the rear of the engine and it was dark. Pickering v. Dawson, 4 Taunt. 779; Mumford v. MeHeld, as it appeared that plaintiff plainly saw the en: Pherson, 1 Johns. 414; Durgin v. Ireland, 14 N. Y. gine approaching, there was no negligence. Judgment 322; Pollen v. Leroy, 30 id. 549. A trade-mark is a reversed and new trial granted. Pakalinskey v. New species of property which may be sold or transmitted York Central & Hudson River Railroad Co., appellant. by deed, with the business in which it has been used. Opinion by Earl, J., Folger, C. J., and Rapallo and Leather Cloth Co. v. American Leather Cloth Co., 4 Miller, JJ., concurred; Andrews, Danforth and Finch, De Gex, J. & S. 137 ; S. C., 11 H. L. Cas. 523; G. & H. JJ., dissented.

Manufact. Co. v. Hall, 61 N. Y. 226. The trade-mark [Decided Nov. 9, 1880.]

did not pass as included in what was sold. It was no TENDER — PLEADING, ADMITS THE SAME TO BE DUE

necessary part of what was sold. It did not import - OF DEBT WITHOUT COSTS AFTER SUIT BROUGHT, NO

that the goods upon which it was placed were mangAVAIL- PRACTICE — DECISION IN WRITING UNDER

factured or produced in any particular locality. In CODE, SECTION 1010. -- (1) In an action to foreclose a

this respect the case was unlike Congress, etc., Spring mortgage for $2,500, defendant averred a tender of

Co. v. High Rock, etc., Spring Co., 45 N. Y. 291. Un$2,568, which was made after suit brought, in payment

der the circumstances it was incumbeut upon plaintiff of the mortgage debt. Held, that there was no issue

to show that the exclusive right to use the trade-mark of fact as to whether there was any thing due on the

was actually, by agreement, vested in him. This he mortgage at the commencement of the suit. A tender

failed to do. Order affirmed and judgment absolute admits the cause of action stated in the complaint to

for defendants. Huwer, appellant, v. Dannenhoffer. the amount tendered. Johnson v. Ins. Co., 7 Johns.

Opinion by Earl, J. 315; Spalding v. Vandercook, 2 Wend. 431; Roosevelt

[Decided Nov. 9, 1880.] v. New York, etc., R. Co., 45 Barb. 554. Here the amount claimed in the complaint was $2,500 and inter UNITED STATES SUPREME COURT ADest from May 1. The tender was made September 19,

STRACT. and was for a few cents more than the amount claimed and interest, but no tender was made for costs, and CONSTITUTIONAL LAW -- 'IMPAIRING CONTRACT – there was no order for the tender of the debt without STATUTE IMPEDING COLLECTION OF JUDGMENT. – A a tender of the costs.. Held, that the defendant failed

State statute requiring that judgments against a city to satisfy the suit by the tender be made and plaintiff

before they should be paid should be registered with was entitled to a judgment against him. There was the comptroller of the city, held, not unconstitutional no need of proof of the amount of the debt before it

as impairing the obligation of a contract. The obligacould be known that the amount tendered was not tion of a contract, in the constitutional sense, is the enough to cover costs, as the allegation of the answer means provided by law by which it can be enforced was that it was in payment of the debt, and costs, by which the parties can be obliged to perform it. though incidental to the debt, are not a part of it. Whatever legislation lessens the efficacy of these means There was no trial of an issue of fact and no findings impairs the obligation. If it tend to post pone or reof fact were needed to sustain a judgment. The tard the enforcement of the contract, the obligation pleadings contained them. It was like a demurrer ore

of the latter is to that extent weakened. The Latin tenus, though not one in technical form. (2) It was

proverb, qui cito dat bis dat — he who gives quickly claimed that there was no decision in writing filed, as gives twice- has its counterpart in a maxim equally required by Code, section 1010. Held, that the order sound, qui serius solvit, minus solvit -- he who pays too for judgment would constitute a sufficient decision in late pays less. Any authorization of the postponement

late pays less. An authorization of than writing in this case. Even conceding that it was not, of payment, or of means by which such postponeit could not be taken advantage of by an order at ment may be effected, is in conflict with the constita

tional inhibition. There is, however, nothing in the a motion for a new trial. Order affirmed. Eaton v.

statute referred to which impeded the collection of Wells, appellant. Opinion by Folger, C. J.

judgments or prevented resort to other remedies it [Decided Nov. 16, 1880.]

their payment was not obtained. The registry was a TRADE-MARK-BELONGING TO FIRM-SALE TO PART

convenient means of informing the city authorities of NER OF PERSONAL PROPERTY AND PREMISES WHERE

| the extent of the judgments, and that they had beBUSINESS CONDUCTED DOES NOT INCLUDE TRADE

come executory, to the end that proper steps might be MARK. — For more than three years prior to 1877,

taken for their payment. It did not impair existing plaintiff and defendants carried ou business in the

remedies. Decree of Supreme Court of Louisiana city of Brooklyn, manufacturing glass. They had

affirmed. State of Louisiana ex rel. Ranger, plaintiff adopted the word “silex” as a trade-mark for the

in error, v. City of New Orleans. Opinion by Field, J. designation of their goods. In 1877 the firm was dis

[Decided Nov. 22, 1880.] solved, and defendants sold to plaintiff their interest | EVIDENCE - COMPETENCY OF WITNESS IN FEDERAL in the real estate where the business was conducted, COURTS - WHEN DETERMINED BY STATE LAW AND and in certain personal property used in conducting it, WHEN NOT. — This action, which was tried in the and thereafter the plaintiff continued the same busi- United States ('ircuit Court for the Southern District ness at the same place, using the same trade-mark. of Illinois, was between a bank and an executor. One There was a deed of the real estate to plaintiff and a W. was called and testified as a witness for the bank, bill of sale of the personal property. Nothing was to a conversation between him and the testator touchsaid at the time of the sale about the good will of the I ing some of the matters involved in the coutroversy.

W. was interested in the issues to be tried, and was, curred if the Newell had had a sufficient watch on under the laws of Illinois, incompetent to testify to deck at the time, held, that the Clara was not liable for the conversation, and was objected to for that reason the damage done to the Newell by the collision. Deby the counsel for the executor. Held, that W. was cree of U. S. Circuit Court, E. D. New York, affirmed. competent to testify under the provision of United Shepherd et al., appellants, v. Schooner Clara et al. States Revised Statutes, section 858, which declares Opinion by Swayne, J. that “in the courts of the United States no witness [Decided Nov. 29, 1880.] shall be excluded in any action on account of color, or in any civil action because he is a party to or interested UNITED STATES CIRCUIT AND DISTRICT in the issue tried. Provided, that in actions by or

COURT ABSTRACT.* against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the

JUDICIAL SALE — WHEN ADVANCE BID AFTER SALE other as to any transaction with or statement by the

GROUND FOR OPENING-INTERVENTION OF THIRD PERtestator, intestate, or ward, unless called to testify

SON. - In an application to set aside a judicial salo thereto by the opposite party, or required to testify

upon the ground of gross inadequacy of price, it is not thereto by the court. In all other respects the laws of

essential that the amount of the advance bid should the State in which the court is held shall be the rules

be actually paid into court. It is essential, however, of decision as to the competency of witnesses in the

that such advance bid should be absolute and unconcourts of the United States in trials at common law

ditional. Under equity rule 19, adopting the practice and in equity and admiralty.” It is quite true that

of England so far as it is consistent with “our local the 34th section of the Judiciary Act of 1789 — pre

circumstances and conveniences," a third person can served, totidem verbis, in section 721 of the present

intervene and have a sale set aside, upon offering a suffirevision of the statutes - has been construed as requir

cient advance in price and paying all the expenses in

curred by the previous purchaser. Cases referred to: law, not within the exceptions named, to observe, as

Lucas v. Moore, 2 Lea, 1; Delves v. Delves, L. R., 20. rules of decision, the rules of evidence prescribed by

Eq. 77; Railroad Co. v. Soutter, 5 Wall. 660; Lawrence the laws of the States in which such courts respectively

v. Dale, 3 Johns. Ch. 39; Duncan v. Dodd, 2 Paige, 99; sit. Vance v. Campbell, 1 Black, 430; McNeal v. Hol

Am. Ins. Co. v. Oakley, 9 id. 259; Click v. Burris, 6 brook, 13 Peters, 84; Wright v. Bales, 2 Bl. 537; Sims

Heisk. 539; Glenn v. Glenn, 7 id. 367; Atkison v. Murv. Hundley, 6 How. 6; Byan v. Brindley, 1 Wall. 68.

free, 1 Tenn. Ch. 51; Ius. Co. v. Hamilton, 3 id. 228; But that section of the act of 1789, as does section 721

Vaughn v. Smith, id. 368; Atchison v. Murfree, id. of the Revised Statutes, expressly excepts from its

728; Barlow v. Osborne, 6 H. L. Cas. 556; Garstone operations cases “where the Constitution, treaties, or

v. Edwards, 1 Sim. & S. 20; Brookfield v. Bradley, id. statutes of the United States otherwise provide.” The

23; Watson v. Birch, 2 Ves. 51; S. C., 4 Bro. Ch. 178; existing statutes of the United States do “otherwise

Upton v. Lord Fenus, id. 700; Andrews v. Emerson, 7

id. 420: Morice v. Bishop of Dunham, 11 id. 65: Whito provide," in that they forbid the exclusion of a witness upon the ground that he is a party to, or interested in,

v. Wilson, 14 id. 151; Farlow v. Weildon, 4 Madd. 460; the issue, in any civil action whatever pending in a

Blossom v. Railroad Co., 3 Wall. 196; Smith v. Arnold, Federal court, except in a certain class of actions,

5 Mason, 414; S.C., 1 Wall. 655; Savery v. Sypher, 6 id. which do not embrace the one now before us. “In all

157; Anson v. Twogood, 1 Jac. & W. 637; Vesey v. Elother respects," that is, in all cases not provided for by

wood, 3 Dr. & W.74; Lathrop v. Nelson, 4 Dill. 194; the statutes of the United States, the laws of the

Twigg v. Fifield, 13 Ves. 517; Ex parte Minor, 11 id. State, in which the Federal court sits, constitute rules of decision as to competency of witnesses in all actions

Cold, 64; Owen v. Owen, 5 Humph. 352; The Sparkle, at common law, in equity or in admiralty. It is clear,

7 Ben. 528; Ottey v. Pensam, 1 Hare, 322; Gray v. therefore, that the law of Illinois could have no bear

Brignardello, 1 Wall. 627; Freeman v. Freeman, 2 C. ing upon a case which is embraced, or has been pro

E. Green, 49; Wilson v. Brannan, 27 Cal. 258. U. S. vided for, by the Federal statute. Judgment of U.S.

Ciro. Ct., W. D. Tennessee, July, 1880. Blackburn v. Circuit Court, S. D. Illinois, affirmed. Potter, plaint

Selma Railroad Co. Opinion by Hammond, D. J. iff in error, v. Third National Bank of Chicago. Opin JURISDICTION – SERVICE OF PROCESS — RAILROAD ion by Harland, J.

COMPANY OF ONE STATE LEASING RAILROAD IN AN[Decided Nov. 8, 1880.]

OTHER, NOT CITIZEN OF LATTER STATE. — Section 118,

chapter 28, of the General Statutes of Vermont, proMARITIME LAW — RULE IN CASE OF COLLISION.- In

vided that the lessee of a railroad within the State, cases of collision the rule is well settled that when the

residing out of the State, should appoint one person fault is wholly on one side the party in fault must bear

resident in the State, upon whom service of every kind his own loss and compensate the other party, if such

of process known to the laws of the State might at party have sustained any damage. If neither be in

any time be made, and that all such service upon tho fault, neither is entitled to compensation from the

person so appointed should be a legal service upon tho other. If both are in fault the damages will be divided.

lessee. Held, that service upon the agent of the non1 Parsous on Shipp. & Adm. 525, 526: The Morning Light, 2 Wall. 556; Union S. S. Co. v. N. Y. & Va. S.

in accordance with the terms of this section, and S. Co., 24 How. 313. The want of a proper watch is a

served in the manner provided by the laws of the State fault of great weight. 1 Parsons on Shipp, & Adm.

for the service of such process, would suffice to vest 576, 577; The Sapphire, 11 Wall, 170; The Mary T.

the Circuit Court for the district of Vermont with Wilde, Taney's Decis. 567; The Lydia, 4 Benedict, 523.

jurisdiction of an action agaiust such non-resident In a case of collision the plaintiff, in order to recover

lessee. Ex parte Schollenberger, 96 U. S. 369; Railentire damages, must prove both care on his own part

road v. Harris, 12 Wall. 65. The case, Baltimore & Ohio and want of it on the part of the defendant. 1 Par

R. Co. v. Noels (Va.), 21 Alb. L. J. 477, holding that a Bons, supra, 529 and note 2. Accordingly, where a ves

corporation of Maryland leasing and operating a railsel named the Newell, which was anchored at night

road in Virginia was so a citizen of Virginia that a and in a severe suowstorm, without a sufficient watch

suit against it by a citizen of Virginia was not removon deck, was run into by a vessel named the Clara,

able to the Federal courts, dissented from. In Knapp v. which was well manned and had proper lights and a proper look-out, and the collision would not have oc

* Appearing in 3d Federal Reporter.

Troy & Boston R. R. Co., 20 Wall. 117, it was held that doubt that the negligence of intestate contributed to
this defendant, while lessee, operating this road in the injury which he suffered. Wills v. Lynn & Boston
Vermont, and the plaintiff here, who was a citizen of | Railroad Co. Opinion by Colt, J.
New York, were citizens of the same State of New
York, so that the case was not removable. U. S. Circ. LIFE INSURANCE — PAYMENT OF FIRST PREMIUM BY
Ct., Vermont, May, 1880. Brownell v. Troy & Boston ANOTHER THAN INSURED WITHOUT HIS KNOWLEDGE.--
Railroad Co. Opinion by Wheeler, D. J.

A policy of insurance on the life of F. contained this

provision, that "it shall not take effect until the adMARITIME LAW —- JURISDICTION OF ADMIRALTY AS

vance premium thereon shall have been paid during TO CREW OF FOREIGN VESSEL. “The nationality of a l the lifetime of the person when life is thereby inforeigu vessel, and not that of the crew, should regu- , sured." F. applied for the policy and it was issued late the action of a court of admiralty in assuming and left at F.'s place of business by an agent of the jurisdiction over a controversy between the officers

company, who, by letter, requested the payment of the and seamen of such vessel. And in the investigation premium if correct and satisfactory. The agent reof a case where seamen asked to be discharged from peated the request by letter a few weeks later. This further service on a Swedish ship and for tho payment

letter was received by the sister of F. and opened by of wages, held, that all the crew of the ship must be her, ho being ill of a sickness whereof he died. The deemed Swedish subjects, notwithstanding it appeared

sister, without his direction or knowledge, paid the that some of them wero in fact citizens of other na

premium and F. died without knowledge of the paytionalities. The Nina, L. R., 2 P. C. 39. U. S. Dist.

ment. Held, that the policy was not binding upon the Ct., Maine, Sept. 13, 1880. The Amalia. Opinion by

insurance company. No contract of insurance existed Fox, D. J.

between the parties at the time of the death of F. The

possession of the policy, without a waiver on the part MASSACHUSETTS SUPREME JUDICIAL of the company of the condition upon the performCOURT ABSTRACT.

ance of which it was to take effect, did not, on the

facts disclosed, show a delivery of it in completion of SEPTEMBER, 1880.

the contract, or furnish any evidence that the minds

of the parties had met. It was not enough that the CARRIER OF PASSENGERS — INJURY TO PASSENGER ON form of the policy had been approved, for it was still STREET RAILROAD - CONTRIBUTORY NEGLIGENCE optional with F. whether he would by payment make SITTING ON FRONT PLATFORM.-Plaintiff's intestate, a it a binding contract. If he declined or neglected to passenger on defendant's street railroad car, when the pay, the company would have no claim for the premium car was approaching a draw-bridge sat down on the against him or against his estate, because the risk front platform. He was told by the driver of the car

never attached. A proof of loss by the widow and that he had better not sit in that place, as it was personal representative of F. did not amount to such against the rules of the defendant and unsafe, to which ratification of the unauthorized payment by F.'s sishe made a reply not understood by the driver. He ter as would give validity to the policy. The difficulty continued to occupy bis position while the car was de- l is that there was no contract existing at the time of tained at the bridge some fifteen minutes by an open the death to be ratified. The payment of the premium draw: and remained there until he fell from the car was not the payment by another of a debt due from after it had passed the bridge, receiving the injuries F., which the administrator, without affecting the whereof he died. There were notices posted upon the rights of the company, would have power to ratify; car forbidding passengers to be upon the platforms and and to say that the administrator might do it so as to that the defendant would not be responsible for the bind the company, would be to say that a policy of life safety of passengers while there. In au action for insurance may be made to take effect as a contract by such injuries, held, that the defendant was not liable. an act of ratification by the administrator after tho It was for the plaintiff to prove that the intestate was death of the person whose life is thereby insured. free from negligence contributing to the injury which Whiting v. Massachusetts Life Insurance Co. Opinion he received. Plaintiff could recover if the case pre-| by Colt, J. sented failed to disclose the exercise on his part of ordinary care, as judged of in the light of common NEGLIGENCE - FAILURE TO MAINTAIN FLAGMAN OR knowledge and experience. The rule is to be applied GATE AT RAILROAD CROSSING, IN ABSENCE OF MUNICIwhich requires the exercise of such care as men of PAL REQUIREMENTS, MAY BE.-In an action for injuries common prudence usually exercise in positions of like received by plaintiffs who were travelling in the highexposure and danger. The question is in most cases a way at a crossing of defendant's railroad, by reason of question to be submitted to the jury, but when the defendant's negligence, it was claimed that defendant circumstances are not complicated, and the undisputed was negligent in not having a gate or a flagman at the evidence discloses conduct which would be condemned railroad crossing. It appeared that no proper authoras careless by men of common prudence, it is the duty | ity had ever required the establishment of a flagman of the judge to instruct the jury to find a verdict for or gate at this crossing. The court below ruled that it the defendant. Garrett v. Manchester & Lawrenco R. was competent for tho jury, under the declaration, to Co., 16 Gray, 501; Gahagan v. Boston & Lowell R. Co., consider whether the defendant had used such reason1 Allen, 187; Todd v. Old Colony R. Co., 7 id. 207. | able care, in addition to tho ringing of the bell or tho The evidence in this case wholly failed to show that blowing of the whistlo required by the statutes, as the intestate was in the exercise of due care. He was a safety of travellers demanded at this particular crosspassenger occupying an exposed and unusual place in a ing. Held, that the ruling was correct, as recognized constrained and awkward position, against the rules of | by numerous decisions. These cases all rest on the the road and the warning of the driver. The case common-law rule that when there are different public differs from Meesel v. Lyun & Boston R. Co., 8 Allen, easements to be enjoyed by two parties, at the same 234. A street railway corporation has a right to make time and at the same place, each must use his privilege all reasonable regulations for the safety of passengers. with due care not to injure the other. The rule applies A rule prohibiting passengers from riding on the front to grade crossings, because the traveller and the railplatform is a reasonable regulation; and one who | road each has common rights in the highway at those knowingly violates it, without some reasonable excuse points. The fact that the Legislature has seen fit for or necessity, cannot be said to be free from negligence, the additional safety of travellers imperatively to reif the act contributes to his injury. There could be no l quire the corporation to use certain warnings at such

crossings, does not relieve it from the duty of doing could have been present if he had desired, but preferwhatever else may be reasonably necessary. Bradley red not to be. Subsequently the party assaulted died, v. Boston & Maine R. Co., 2 Cush. 539; Liufield v. Old aud a charge of murder was preferred in lieu of the Colony R. Co., 10 id. 562; Norton v. Eastern R. Co., original charge of assault with intent to kill. Upon 113 Mass. 366; Favor v. Boston & Lowell R. Co., 114 the trial upon this charge, evidence was received of the id. 351. Even though the proper authorities had never testimony given by such deceased witness on the prerequired the maintenance of a gate or flagman at the liminary examination. Held no error. In United crossing in question, the defendant was still under the | States v. Macomb, 5 McLean, 286, the testimony of a rule which requires the exercise of reasonable care on witness since deceased, given on a preliminary examits part; and the jury could not be limited in their in ination, was held admissible on the trial of the indictquiries by the fact that a gate or a flagman has never ment found for the same offense. See, also, Davis v. been ordered, however proper it might be for them to State, 17 Ala. 354; Kendrick v. State, 10 Humph. 479; take that fact into consideration, Eaton v. Fitchburg | Rex v. Barber, 1 Root (Conn.), 76; Bostwick v. State, 3 Railroad Co. Opinion by Colt, J.

Humph. 341; State v. Campbell, 1 Rich. (S. C.) 214;
United States v. Wood, 3 Wash. C. C. 440; State v.

Atkins, 1 Overton, 229. Both reason and authority
CRIMINAL LAW.

unite to support the competency of this testimony.

Kansas Supreme Court, July term, 1880. State of PLEADING-IDEM SONANS.—The indictment charged Kansas v. Wilson. Opinion by Brewer, J. defendant with entry into a stable with intent to commit “larcey." Held, that the maxim of idem sonans did not apply so as to render the indictment valid by

CORRESPONDENCE. reason of the word “larcey” meaning “larceny." California Supreme Court, Aug. 17, 1880. People of

JUSTICE Davis. California v. St. Clair. Opinion per curiam.

Editor of the Albany Law Journal: RIGHT OF PUBLIC PROSECUTOR TO BE ASSISTED BY Mr. Arnoux's communication in the LAW JOURNAL COUNSEL — EVIDENCE -- TESTIMONY OF DECEASED WIT- of the 4th inst., concerning Mr. Justice Davis, does NESS. — (1) Under statutes making it the duty of a not fully dispose of the case. That distinguished county attorney to appear in the District Court and judge's abilities are well known. Lawyers who have prosecute all criminal cases, and providing that no felt compelled to condemn his performance of the county attorney should receive any fee or other reward | character of a committing magistrate, would deeply from any prosecutor or individual for services in prose- regret his absence from the tribunal where his learning cuting criminals, nor be an attorney or counsel for any and ability could with difficulty be supplied. From party other than the State, in any civil action depend the General Term of the Supreme Court it is to be ing upon the same facts upon which a criminal prose hoped that he will not soon deem himself called away cution undetermined might depend, held, that this in deference to a precedent which might better be did no

hibit the county attorney from accepting called notorious than illustrious. the assistance of counsel employed for hire by private In the Philp case the justice differed in opinion from parties to aid him in a criminal prosecution. The case the testimony by a witness of his own opinion conof Meister v. People, 31 Mich. 101, dissented from. The cerning the genuineness of certain handwriting. The purpose of a public prosecution is to prevent the use question of genuineness was, in the view of the law of the criminal law to gratify private malice or accom taken by the justice, of essential importance to the plish personal gain. This purpose is fully subserved prisoner. The testimony of an accomplice before the when the control of the case is with the county attor fact – of a witness who by asserting its genuineness ney. As to an argument that if private counsel be had prompted the exhibition, or rather publication, of permitted, the county attorney will be influenced by this writing, would be of less weight than that of a their wishes and defer to their views and thus in effect person free from such previous connection with the a private be substituted for a public prosecution, a suspected writing. Is it not a fact that the justice so satisfactory reply is, that if he is disposed to so yield misstated the evidence before him as to place this and defer, he will be as apt to do it when those sugges-witness for the prisoner in the position of an accomtions and wishes are made known to him outside the plice, whose testimony as that of an accomplice was to court room, and that there is less danger of wrong by be deemed of little weight? May not the justice's permitting private counsel to appear and act openly in own conclusion in the matter have been aided by his the presence of the court, than by shutting them out | mistake concerning the facts ? from any open participation in the trial and leaving Such an error, according to the spirit of the English them to their private and secret suggestions to him in law, when committed to the possible prejudice of a his office. Publicity prevents wrong, and the courts prisoner is inexcusable. It is startling to think what can always check undue zeal. The true construction | might result from similar want of attention in a trial of the statute is that it prohibits the public prosecutor involving life or death.

C. W. S. from accepting private compensation and gives him Dec. 9, 1880. the control of all public prosecutions, leaving to him a discretion as to the matter of accepting offered assist NEW BOOKS AND NEW EDITIONS. ance, subject to the power of the court to interfere and prevent any oppression of the defendant, and

Bliss' NEW YORK ANNOTATED CODE, VOL. II. holding him personally responsible for any violation of the statute or malfeasance in office. See State v. The New York Code of Civil Procedure, chapters 14 to 22, as Bartlett, 55 Me. 200; Commonwealth v. Knapp, 10 enacted in 1880, with explanatory notes showing the Pick. 478; Commonwealth v. Williams, 2 Cush. 582.

changes introduced thereby, together with the statutory (2) Defendant was arrested and a preliminary examina

provisions on the same subjects still remaining in force, tiou held on a charge of assault with intent to kilt. On

with notes of judicial decisions on pleading, practice

and evidence. Vol. II. By George Bliss. New York: such examination the testimony of the party assaulted

Baker, Voorhis & Co., 1880. was taken. This testimony was taken at the rooms of the witness, he being unable to move therefrom, and MHIS volume completes a work upon which a very in the presence of the justice and the counsel for de- | 1 considerable amount of labor has been bestowed, fendant, the defendant himself being absent. He / and which has been already recognized as of almost

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