recovery. its placed to the credit of the same depositor, | the bank in any liability. This is no answer, must be in the shape of a plain direction, if simply because what might have been done was such a duty is to be imposed on the bank." not done. Had the bank opened the account The court likewise held that "the bank had a for this fund in the name of Clagett, trustee, right to assume that these memoranda of num- instead of entering the credit to his personal bers in the deposits and in the checks were account, it would have done what it was its merely for the convenience of the court and plain duty to do, and it would not have been its officers." Dodge was accordingly denied a guilty of the error which it did commit. Had it done its duty, and had Clagett afterwards withdrawn the money, as he might have done, and had he then misapplied it without the cooperation of the bank, there would have been no liability incurred by the bank at all. But this was not done, and the failure of the bank to do what it ought to have done cannot be treated as tantamount to the thing that it did do unless contraries are equivalent of each other. What it ought to have done is not what it did do, and it cannot escape liability upon the mere conjecture that what did happen to the funds might have also happened had the bank not been derelict in its dealings with those funds. Unless we give to the memorandum made by Mr. Stanley for his own convenience on the first check, an effect which the supreme court declined to give to a much more significant memorandum contained in the checks delivered to Dodge, we must hold that the Mechanics Bank, by carrying to the personal credit of Clagett, the proceeds of the check representing the avails of the Beall foreclosure did no act that made it liable to the Bowling trust estate for the misappropriation of those particular proceeds by the deposed trustee. And this is so because the memorandum could not operate to qualify the right of Clagett to receive the funds individually and the bank did no wrong in placing them to his credit in the capacity in which he was obviously authorized to receive them. The bank having, therefore, rightfully entered the proceeds of the first check to Clagett's individual credit, he was entitled to draw them out so far as the bank was concerned, and the bank was under no obligation and had no authority to interfere with him in doing so. It has, however, been insisted that Clagett, knowing that the bank had wrongfully placed. trust funds to his individual credit, ratified that wrongful act by his subsequent conduct, and as his ratification was equivalent to a prior direction to do what was done, the bank is not answerable. Both Clagett and the bank participated in the wrong with respect to the proceeds of the Duckett mortgage. Because they both did wrong they are both accountable for it. But the contention is, if one of two wrongdoers who reaps the fruits of the joint wrongful acts ratifies what his accomplice has done, that accomplice is thereby released and exculpated. This, of course, is not the bald form in which the rather ingenious argument advanced to support the contention is presented; but, reduced to its last analysis, it comes to that startling proposition. The wrong was done, not to the trustee, but to the trust estate. As between the bank and the trustee, his ratification of its act might bind him; but upon what principle can such a ratification bind the beneficiaries of the trust, who have been injured by the joint breach of trust on the part of the bank and the trustee? No ratification by the trustee of the bank's participation in the breach of trust can possibly affect in any way the bank's accountability to the new trustees. Precisely for the reasons that the bank is not responsible for the misappropriation of the proceeds of the first check, it is liable to the new trustees for the misapplication by Clagett of the fund collected by it on the second check. The second, or Duckett check, in terms directed the cashier of the Mechanics Bank "to deposit" the $2,024.30 "to the credit of Henry W. Clagett, 'trustee."" This was an explicit notification to the bank that Clagett was not the actual owner of the money. Bundy v. Monticello, 84 Ind. 119; 3 Am. & Eng. Enc. Law, 2d ed. p. 832. It was an equally explicit instruction to the bank not to place the funds to the credit of Clagett's personal account. It was consequently more than a mere memorandum made for the convenience of the drawer of the check. Knowing that the money was not Clagett's, but that it was payable to him, and to be deposited to his credit as trustee, the bank had no authority to place it to his individual credit (American Exch. Nat. Bank v. Loretta Gold & S. Min. Co. 165 Ill. 109); and if loss ensued by reason of Clagett drawing the fund out by checks on his personal account, the bank is liable to make restitution to the trust estate. The bank in the eye of the law participated in the breach of trust of which Clagett was guilty. In fact, the bank took the first step that ended in the spoliation of the trust. Its act in placing distinctly marked trust funds to the personal credit of Clagett was obviously wrongful, and it must bear the resulting consequences. It is no answer to say that had the bank obeyed the direction given to it, and had it opened an account in the name of Clagett as trustee, and credited that account with these funds, still Clagett could have withdrawn them We have made no allusion to a line of cases on checks appropriately signed, and could then of which Third Nat. Bank v. Lange, 51 Md. have misapplied the money without involving | 138, 34 Am. Rep. 304; Marbury v. Ehlen, 72: As to the statute of limitations it is only necessary to say that a participant in a breach of trust cannot, any more than can the trustee himself, invoke that defense. 2 Pom. Eq. Jur. 1080. Even if the statute applied, to be availed of as a defense it must be invoked by either as a plea or an answer. Allender v. Trinity Church, 3 Gill, 166. The answer of the bank relies on limitations only as against the claim for $2,000, which is not the claim for $2,024.30 collected on the check given in pay ment of the Duckett mortgage debt-and that is the claim for which we hold the bank liable. So in fact the statute is pleaded against the claim that the bank is not liable for and is not pleaded against the claim for which it is responsible. deposit is made, and the bank's duty is to pay out the fund to or upon the order of the person making the deposit when the check is properly signed, without looking to the application of the fund; and it incurs no responsibility by so doing unless it knowingly participates in a breach of trust or itself reaps the fruit thereof. We hold, then, on the entire case, that the bank is accountable for the sum of $2,024.30 the amount of the check dated September 17, 1892, with interest thereon from the date of the deposit of the proceeds to the credit of Clagett's individual account, and that it is not liable for the proceeds of the other check. The decree dismissing the bill of complaint will accordingly be reversed, and the cause will be remanded that a new decree may be passed conforming to this opinion. Decree reversed with costs above and below, and cause remanded. KANSAS SUPREME COURT. TOPEKA WATER COMPANY, Piff. in Err., v. Kate J. WHITING. (........Kan.........) *1. The fact that a municipality confers 3. The testimony examined, and held, that is reasonably safe for ordinary travel. While they must act with reasonable care, they are not required to keep their eyes upon the pavement continuously, watching for obstructions or pit falls. 7. Upon examination of the testimony it is held, that the question whether the plaintiff below was in the exercise of due care when her horse was frightened, and the injury inflicted, was fairly a question for the jury, and the finding in her favor upon the question is conclusive. (November 6, 1897.) ERRO RROR to the District Court for Shawnee County to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion. Messrs. D. W. Mulvane and N. H. Loomis, for plaintiff in error: There was no negligence upon the part of defendant, and its demurrer to the evidence should have been sustained, and its request for an instruction in its favor should have been granted. Morton v. Frankfort, 55 Me. 46; Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522; Cowan v. Muskegon R. Co. 84 Mich. 583; Sin5. Ordinarily, it is a question of fact inclair v. Baltimore, 59 Md. 592: Welsh v. Wileach case whether the precautions taken and the care exercised are sufficient to warn and protect travelers who are using ordinary care. 6. Persons using a street which is in constant use, and when their attention has not been called to any obstructions or perils thereon, have a right to presume that the street *Headnotes by JOHNSTON, J. NOTE. As to the liability for injuries caused by horses becoming frightened on a highway, see Bowes v. Boston (Mass.) 15 L. R. A. 365, and note; Iso Kieffer v. Hummelstown (Pa.) 17 L. R. A. 217. son. 101 N. Y. 254, 54 Am. Rep. 698; Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804; Agnew v. Corunna, 55 Mich. 431, 54 Am. Rep. 338; Loberg v. Amherst, 87 Wis. 634; O'Rourke V. Monroe, 98 Mich. 520. The plaintiff and her sister, who was driving, were both chargeable with contributory negli gence. Robb v. Connellsville, 137 Pa. 42; Barnes v. Sowden, 119 Pa. 53; King v. Thompson, 87 Pa. 365, 30 Am. Rep. 364; Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804; Butterfield v. Forrester, 11 East, 60; Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66; Plymouth v. Milner, | of law, is charged with the duty of operating 117 Ind. 324; Evans v. Adams Exp. Co. 122 it with such reasonable care that horses will Ind. 362, 7 L. R. A. 678. not frighten. If the defendant had no license to operate the hydrant in the street it was a nuisance and an illegal obstruction, and it was negligence to operate it at all. The court erred in instructing the jury that if plaintiff was chargeable with only slight negligence, and the defendant with gross neg ligence, a recovery could be had. Kansas P. R. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; Chicago, K. & W. R. Co. v. O'Connell, 46 Kan. 581; Atchison, T. & S. F. R. Co. v. Wells, 56 Kan. 222; Atchison, T. & S. F. R. Co. v. Winston, 56 Kan. 456; Atchi son, T. & S. F. R. Co. v. Hague, 54 Kan. 284. Messrs. Waters & Waters, E. F. Hilton, and A. W. Dana, for defendant in error: Even upon its own premises, the defendant would have been bound, in the flushing of its hydrant, to a due regard to the rights of others. Central Branch Union P. R. Co. v. Henigh, 23 Kan. 358, 33 Am. Rep. 167; Kansas C. R. Co. v. Fitzsimmons, 22 Kan. 691, 31 Am. Rep. 203; Culp v. Atchison & N. R. Co. 17 Kan. 477. And if of necessity, in flushing it, defendant had to use a portion of the highway, it was still bound to take such precautions as should prevent injury to the traveler using ordinary care. 2 Shearm. & Redf. Neg. SS 342, 361; Ray, Negligence of Imposed Duties, 247. Yates v. Warrenton, 84 Va. 337; Cohen v. New York, 113 N. Y. 532, 4 L. R. A. 406; Clifford v. Dam, 81 N. Y. 52. If defendant had a license it was a license only to operate it in an ordinarily careful way, and the negligent operation of it cannot be justified by its license. Bordentown & S. A. Turnp. Road v. Camden & A. R. & Transp. Co. 17 N. J. L. 314; Moshier v. Utica & S. R. Co. 8 Barb. 427. There is not an element lacking to make plaintiffs conduct that of ordinary care as the jury found. Salina v. Trosper, 27 Kan. 562. In a legalized obstruction the thing must be done in a reasonably careful way and not in a negligent way. Russell v. Columbia, 74 Mo. 480, 41 Am. Rep. 325; Indianapolis v. Doherty, 71 Ind. 5. Plaintiff was not bound to look out for an obstruction that she did not know existed, and could not reasonably anticipate. Moulton v. Aldrich, 28 Kan. 300; Davenport v. Ruckman, 37 N. Y. 568; Barry v. TerkildNo use of a public highway can be allowed sen, 72 Cal. 244; Kelly v. Blackstone, 147 Mass. except its use for travel and transportation. 448; Indianapolis v. Gaston, 58 Ind. 224; HowMikesell v. Durkee, 34 Kan. 509; Smith v.ard County Comrs. v. Legg, 110 Ind. 479; McLeavenworth, 15 Kan. 81. Guire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668. Negligence is not imputable to a person for failing to look for a danger when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended. Brown v. Atchison, T. & S. F. R. Co. 31 Kan. 1; Moulton v. Aldrich, 28 Kan. 300; Central Branch Union P. R. Co. v. Henigh, 23 Kan. 358, 33 Am. Rep. 167; Langan v. St. Louis, I. M. & S. R. Co. 72 Mo. 392; Gray v. Scott, 66 Pa. 345, 5 Am. Rep. 371; Fowler v. Baltimore & O. R. Co. 18 W. Va. 579; Dush v. Fitzhugh, 2 Lea, 307; Freer v. Cameron, 4 Rich. L. 228, 55 Am. Dec. 672, and note; Beach, Contrib. Neg. 38, 39; Deering, Neg. 16; 2 Shearm. & Redf. Neg. 4th ed. § 90; 4 Am. & Eng. Enc. Law, pp. 34, 35, and note. Johnston, J., delivered the opinion of the court: Near the noon hour on December 21, 1891, Kate J. Whiting, accompanied by her mother and sister, was driving upon one of the streets of Topeka, when their horse became frightened at the water spurting or flowing from an open hydrant in the street, and turned around suddenly, capsizing the buggy, and breaking Kate J. Whiting's arm, and otherwise seriously injuring her. The hydrant, which was upon a dead end of a main, was opened by an employee of the Topeka Water Company for the purpose of flushing the main, and relieving it of the stagnant and impure water therein. The plaintiff below alleged, and it is her contention, that the water company was culpably negligent in doing the flushing at the time when and in the manner in which it was done, and in failing to take due care for the protection and safety of those who were then passing along the street. The company, on the other hand, claims that, as the right to place hyMcGuire v. Spence, 91 N. Y. 303, 43 Am.drants upon the streets had been conferred on Rep. 668; Wells v. Sibley, 31 N. Y. S. R. 40; it, it was rightfully upon the street; that the Barry v. Terkildsen, 72 Cal. 256; Jennings v. flushing of the main at that point was necesVan Schaick, 108 N. Y. 530; Thompson v. sary; and that it was done in the usual and orBridgewater, 7 Pick. 189; Gordon v. Richmond, dinary way, and at a proper time. There was 83 Va. 438; Davenport v. Ruckman, 37 N. Y. a further contention in favor of the company 573; Howard County Comrs. v. Legg, 110 Ind. | that the plaintiff below was negligent in fail483; Koch v. Edgewater, 14 Hun, 544; Indian-ing to earlier observe the open hydrant, so that apolis v. Gaston, 58 Ind. 225; Pennsylvania she could take greater care in controlling the Canal Co. v. Bentley, 66 Pa. 33; Smith v. Sherwood Twp. 62 Mich. 159; Brown v. Atchison, T. & S. F. R. Co. 31 Kan. 1. Even though these parties had not become educated into a belief as to the safety of the highway, through an experience that left no suspicion of danger, they still had a right, from the very fact of its being a public highway, to presume it to be safe, and to regulate their conduct upon such presumption. If gentle or ordinarily well-broken horses would naturally frighten at an unattended hydrant under full flow, the defendant, as matter horse, and avoiding accident or injury. It appears that the flow from the hydrant extended into the street for about 10 feet, and could have been seen by the Whitings, if their attention had been directed to it, for a distance of about 500 feet. Grace Whiting was driving the horse, and neither she nor the plaintiff be- | opened in the night-time, when few, if any, low noticed the flowing hydrant until they persons would be passing along the street; and were within 100 feet of the same, and just at it appears that sometimes the flushing was that time and place the horse discovered it, done at night. It also claimed that employees took fright, and overturned the buggy. The might have been stationed at the open hydrant trial resulted in a verdict in favor of the plain- to shut off the water on the approach of frighttiff below in the sum of $5,000, and the prin- ened horses, or one stationed on either side of cipal contention of the company is that the it to warn travelers of the danger. A flag testimony was insufficient to support the ver- signal or other object of warning might have dict, or to show culpable negligence on the been placed on either side of the hydrant to part of the company. call the attention of travelers to the open bydrant, and thus enable them to better control their horses, or to turn aside, and pass over another street. Still another method is suggested, which appears to be quite practicable, and that is, to conduct the water from the hydrant through a suitable hose. Just what method should have been employed, and what precautions should have been taken, we need not determine; but certainly they should be sufficient to accomplish the purpose. It is a question of fact in each case whether the precautions taken and the care exercised are sufficient to warn or protect travelers who are using ordinary care; and, under the testimony and findings of the jury, it must be held that the company failed to use that care which the law required of them. That the company had the right to place its hydrants in the streets, and to flush them, is conceded; but it had no license or right to flush them at such a time, or in such a manner, as to impede travel, or imperil the safety of those passing and repassing over the street. The license to flush carried with it the obligation to do so with reasonable care, and a due regard for the rights of others. The primary purpose of streets is use by the public for travel and transportation, and, if the water company unnecessarily interferes with that use, or negligently flushes its mains, thereby causing injury to others, it is liable for the consequences of such negligence. The testimony abundantly shows that an open, flowing hydrant is calculated to frighten horses of ordinary gentleness. Some of the witnesses said that the flowing water made a roaring noise; others, that it came with a great splash; while others said that there was a great deal of spray and froth. Experienced horsemen testified that gentle and well-broken horses were apt to be frightened at such objects; and it appears that, while the hydrant in question was only open for a few minutes, three driving horses were actually frightened by it. Whether an object is such as is calculated to frighten a gentle and roadworthy horse is usually a question of fact for the jury to determine. On these questions the findings of the jury are in favor of the defendant in error. The horse was gentle, the driver was experienced in handling horses, and the jury find that the manner in which the flushing was done had a peculiar tendency to frighten ordinarily gentle and well-broken horses. The water company was aware of this tendency, as the jury have found, and yet no precautions were taken to warn passers-by of the impending danger, or to protect them from injury. The employee who opened the hydrant was from 100 to 150 feet distant from the same when the horse took fright, and from his testimony it is evident that he was not endeavor ing to warn or protect those passing along the street. It is said that the method of flushing in this instance was the usual and ordinary one which had been pursued, but this will not avail the company, as it cannot be sheltered from liability by frequent trespasses upon the rights of others, nor by the long continuance of negligent methods. What precautions should have been taken, and what degree of care should have been exercised? It is generally said that there should be that care and prudence which an ordinarily discreet and careful person would exercise under like circumstances. The protection and care which it is necessary to use in cases of this kind must be determined by the character of the risk and the nature of the threatened injury. It is claimed that the hydrants might have been We are not favorably impressed with the contention that the plaintiff below and her sister, Grace, were guilty of contributory negligence. It appears that they were riding in a single seated buggy, and that Grace, who was seated between her mother and the plaintiff below, was driving. They were talking about Christmas presents, which they were intending to purchase. The plaintiff below and her mother were not giving special attention to the street, or keeping a lookout for obstructions. Grace, however, was giving ordinary attention, and, as the jury have found, was exercising reasonable care. Although they had driven into and through the street frequently, they had never seen an open, flowing hydrant, and were not anticipating any danger from that source. It is true that the open hydrant was within range of their vision if their attention had been called to it, and it was discernible before it was discovered by them. They were not, however, required to keep their eyes upon the pavement continuously looking for obstructions and pitfalls. It was a street which was in constant use, and over which they had passed almost daily without encountering such a danger. While they must still act with reasonable care, they had a right to presume, and to act on the presumption, that the street was reasonably safe for ordinary travel. They were not required to use the wisest precautions nor extraordinary care, but only such as persons of common prudence ordinarily exercise under similar circumstances. Grace did discover the danger when within about 100 feet of it, and it appears from the testimony that others whose horses were frightened did not observe the danger until they were quite close to it. Under these circumstances it certainly cannot be said, as a matter of law, that the plaintiff in error was guilty of contributory negligence. Whether she and her sister were in the exercise of ordinary care was fairly a question for the jury, and their finding in her favor is conclusive. Complaint is made because the court, in its, of negligence was a matter for the determinacharge, remarked that slight negligence should tion of the jury, and we cannot say that preju not necessarily defeat a recovery by the plain-dicial error was committed by reference to tiff if the company was guilty of gross negli- gross negligence. When the trial court came gence. It is claimed that there was no aver closer to the facts in the case, he instructed ment or testimony which warranted the that the company was required to exercise orallusion to gross negligence. There is but dinary care, and also that the plaintiff below little in the testimony tending to show gross was held to the exercise of the same degree of negligence, but, as we have seen, the method care, and the jury have practically found used for flushing was calculated to frighten that she exercised ordinary care. There are even gentle horses. The hydrant was opened some other criticisms of the charge of the in the daytime, when many persons were pass-court, and also of its rulings upon the testiing along the street. The jury found that the mony and findings, but we find nothing subcompany was aware that the flowing hydrant stantial in them. had a tendency to frighten ordinarily gentle The judgment of the District Court will thereand well-broken horses, and yet, with this fore be affirmed. knowledge, it pursued the negligent method. Under the circumstances, we think the degree. All the Justices concur. KENTUCKY COURT OF APPEALS. City of MAYSVILLE, Appt., v. George T. WOOD et al. (... Ky......) PPEAL by complainant from a decree of the Circuit Court for Mason County refusing to declare void a judicial sale of certain property and to enjoin defendants from interfering therewith. Affirmed. The facts are stated in the opinion.] Messrs. J. N. Kehoe and W. H. Wadsworth for appellant. are the proper parties to sue for any diversion of the dedicated property to other purposes. Baptist Church v. Presbyterian Church, 18 B. Mon. 641. White, J., delivered the opinion of the court. This action was begun in the circuit court of Mason county by the appellant, the city of Maysville, against the appellees, George T. Wood and others, by which the appellant sioner, made under an ex parte proceeding on sought to have a sale by the court's commis behalf of appellees, Woods and others, declared void, and a nullity, and to enjoin said appellees from in any way interfering with a certain lot of ground in the said city of Maysville, and also sought to perpetuate said ground for the purposes for which same had been dedicated years before. The petition states that in the in that part of the city of Maysville, and laid year 1818 one Samuel January owned the land same off into streets and alleys and lots, and sold lots according to said plat, and had same Mr. E. L. Worthington, for appellees: The state or any subdivision thereof may hold title to land in trust for such charitable purposes as are germane to the objects of its creation, such as for schools, poorhouses, hos-recorded. The place was then called "Limepitals. The one thing under our system of government that the state and its subdivisions must keep their hands off of is religion. Const. § 5. stone," but was not an incorporated town. On this plat there is a lot of ground-the land here in contest-marked "Meeting House Square.' This ground was never sold, and has never been built upon. Some time after the year A grant, whether by deed, devise, or dedica- 1818 the said town of Limestone was incorpotion to a municipal corporation in trust for re-rated as East Maysville, and in 1853 the trusligious purposes, is void, in so far as the title is attempted to be vested in the municipality. 2 Dill. Mun. Corp. $573; Jackson, Lynch, V. Hartwell, 8 Johns. 422; Franklin's Estate, 150 Pa. 437. tees of said town of East Maysville by a regular deed of conveyance executed and acknowledged, deeded or undertook to convey to Shackelford, Anderson, and Spencer, as trustees for the Christian or Reform Baptist Church, Property may be effectually dedicated with- and to their successors in office, this said ground out the legal title to it being transferred to any-known as "Meeting House Square," providing body, or any corporation. In such a case it remains in the dedicator and his heirs, in trust for the particular portion of the public for whose use the dedication was made; and they NOTE.-For municipal corporation as trustee of charity, see also Dailey v. New Haven (Conn.) 14 L. R. A. 69, and note. that said trustees should take possession of same and inclose and improve same in conformity to the true spirit and intention of the original donor; the said deed reciting that, as the said Samuel January and his wife and eight out of their nine children were or had been members of the Christian or Reform Baptist Church, |