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that of creditor and debtor. The agreement of the information was derived from a prior patent. Mere December 16, 1873, in connection with the power of vague and general representations will not support attorney, was simply a method of securing the defend- such a defense, as the knowledge supposed to be deant, as a creditor of the company, for past and future rived from the publication must be sufficient to enable advances, and to insure the delivery of the ore which those skilled in the art or science to understand the he had bought and paid for. The irrevocable charac- wature aud operation of the invention, and to carry it ter of the appointment of J. N. H. Patrick as manager, into practical use. Whatever may be the particular with the power given to the defendant to suspend and circumstances under which the publication takes place, remove him, and to appoint another manager in his the account published, to be of any effect to support place, on consultation with the board of directors of such a defense, must be an account of a complete and the company, was an incident of the security to the operative invention, capable of being put into practical defendant, and a ineans of having the operation of the operation." The same rule was repeated by Mr. Jusmine continued until the debt to him should be dis- tice Strong in the opinion of the court in Cohn v charged. Any new manager to be appointed was to United States Corset Co., 93 U. S. 366, 370, as follows: have the rights, powers, and authority delegated to “It must be admitted that, uuless the earlier printed J. N. H. Patrick under the agreement, and none and published description does exhibit the later others. The agreement did not in any manner make patented invention in such a full and intelligible the defendant a partner with the company, or with J. manner as to enable persons skilled in the art to which N. H. Patrick, or make J. N. H. Patrick the agent of the invention is related to comprehend it without asthe defendant in managing the mine, so as to make sistance from the patent, or to make it, or repeat the the defendant responsible for any contract entered process claimed, it is insufficient to invalidate the into by J. N. H. Patrick. The company continued to patent." This rule was affirmed in Downton v. Yeager be the owner of the mine, operating it through J. N. Milling Co., 108 U. S. 466, 471. The application of this H. Patrick, as its manager, agent, and attorney, and

rule to the publications relied upon in the present case responsible for his contracts as such. Cox v. Hickman, shows that none of them can properly be said to antici8 H. L. Cas. 268; Mollwo v. Court of Wards, L. R., 4 pate the invention of the driven-well. May 23, 1887P. C. 419; Cassidy v. Hall, 97 N. Y. 159. May 23, 1887. The Driven-Well Cases. Opinion by Matthews, J. Davis v. Patrick. Opinion by Blatchford, J.

Bradley, Field, and Gray, JJ., dissenting. PATENTS — PROCESS - NOVELTY DRIVEN WELLS TREATIES

FAVORED- ANTICIPATION BY PUBLICATION.- (1) Prior to the NATION CLAUSE.— The treaty with the king of the “driven well" (letters patent No. 73,425, of January Hawaiian Islands, by which the United States, in con14, 1868, and reissued No. 4,372, of May 9, 1871, to sideration of the king of Hawaii allowing the imNelsou W. Green), the wells then in use, whether dug portation of certain articles into the Hawaiian Islands or bored, were subject, except in the case of the flow- free of duty, "and as an equivalent therefor” agreed ing artesian, to become dry for a time upon constant to allow the importation of certain products into the use. This was caused by the fact that gravity was the United States free of duty, does not bind the United only means of supply. When the water at the bottom States, under the provisions in the treaty with the of the well was drawii out faster than gravity forced king of Denmark of April 26, 1826, as renewed on it in, no more could be got until that force brought it January 12, 1858, “not to grant any particular favor to in throught the surrounding earth. Tbe earth form- other nations in respect to commerce and navigation ing the core having been removed, the “pit” was not which sball not immediately become common to the air-tight, and the pressure of the atmosphere upon the other party," and that “no higher or other duties,” water in the "pit," and on the sides of it, counter- shall be charged by the United States on the importabalanced the same pressure on the water in the earth tion of a Danish product “thau are or shall be payable around it. The “driven well,” being made by punc- ou the like articles being the product or manufacture ture, compacted this core, which the others removed, of any other foreign country,” to extend to Denmark, around the driven tube, and then closed the tube at without compensation, the privileges which have been the top by the valve of a pump, thus making the entire conceded to the Hawaiian Islands in exchange for tube air-tight, except at that part of it where it stood valuable concessions. They were pledges of the two in the water-bearing stratum, where it was supplied contracting parties, the United States and the king of with openings of a proper size, covered with screens. Denmark, to each other, that in the imposition of The effect of this was that the pressure of the air on duties on goods imported into one of the countries the water in the surrounding earth, not being counter- which were the produce or manufacture of the other, balanced by a similar pressure in the “pit," there should be no discrimination against them in added to the foroe of gravity in producing the supply, favor of goods of like character imported from any and that the supply was practically inexhaustible. other country. They imposed an obligation upon both Held, that the process was novel and valuable, a new countries to avoid hostile legislation in that respect. application of a power of nature being made by which But they were not intended to interfere with special a new and useful result was attained. (2) It is further arrangements with other countries founded upon a contended that the driven-well patent is anticipated concesion of special privileges. The stipulations were by having been previously described in numerous mutual, for reciprocal advantages. “No higher or printed publications. The rule governing defenses other duties ' were to be imposed by either upon the alleging the invalidity of the patent by reason of prior goods specified; but if any particular favor should be printed publications was stated by Mr. Justice Clif- granted by either to other countries in respect to como ford in Seymour v. Osborne, 11 Wall. 516, 555, in this merce or navigation, the concession was to become language: “ Patented inventions cannot be super- common to the other party upon like consideration, seded by the mere introduction of a foreign publica- that is, it was to be enjoyed freely if the concession tion of the kind, though of prior date, unless the de- were freely made, or on allowing the same compensascription and drawings contain and exhibit a substan- tion if the coucession were conditional. The treaty tial representation of the patented improvement, in with the Hawaiian Islands makes no provision for the such full, clear, and exact terms to enable any person impositiou of any duties on goods, the produce or skilled in the art or science to which it appertains to manufacture of that country, imported into the make, construct, and practice the invention to the United States. It stipulates for the exemption from same practical extent as they would be enabled to do if duty of certain goods thus imported, in consideration


of and as au equivalent for certain reciprocal conces. posed upon them as officers, they inight possibly assigu sious on the part of the Hawaiian Islands to the a good reason why the suit should not be brought, and United States. There is in such exemption no viola

why the affairs of the corporation should not be taken tion of the stipulations in the treaty with Denmark, out of their hands. They are the proper persons to and if the exemption is deemed a “particular favor," show, if they can, why the management of the affairs in respect of commerce and navigation, within the the coinpany should not be taken ut of their hands, first article of that treaty, it can only be claimed by as must be done to sustain this suit. The case specially Denmark upon like compensation to the United States. cited by the plaintiffs, as giving them a right to proseIt does not appear tbat Denmark has ever objected to cute this suit, is that of Hawes v. Oakland, 104 C. S. the imposition of duties upon goods from her domiu

450. There a stockholder filed his bill against bis comions imported into the United States, because of the pany, the directors thereof, and the city. The comexemption from duty of similar goods imported from plaint was that the city demanded, without compensathe Hawaiian Islands, such exemption being in con- tion, water for certain municipal purposes, to which sideration of reciprocal concessions, which she has demand the company yielded, to the great loss of the never proposed to make. May 23, 1887. Bartram v. company, the complainant and the other stockholders. Robertson. Opiniou by Field, J.

The conclusion is there reached that in the State courts the right of a stockholder to sue, in cases where

the corporation is the proper party to bring the suit, ABSTRACTS OF VARIOUS RECENT

is limited to cases where the directors are guilty of a DECISIONS.

fraud or a breach of trust, or are proceeding ultra

vires. The enumeration of the different cases there CORPORATION ACTION BY

made in which such suit may be brought certainly

REFUSAL OF DIRECTORS TO BRING. - Where a cause of action accrues to a

does not include the one in hand. Mr. Justice Miller, corporation, the general rule is that suit must be

who prepared that opinion, refers to Samuel v. Hollabrought in the name of the corporation, and not by

day, Woolw. 418, where after reviewing Dodge v the stockholders. And in all those cases where, on

Woolsey, 18 How. 331, he says: “ But no case is cited, account of the wrongful refusal of the directors or

nor does any dictum in that opinion go to the length officers managing the affairs of the corporation to sue,

of asserting, that when a corporation has been injured the stockholders are allowed to do so, the recusant

by a tort or a breach of a contract, or has any right of directors or officers must be made defendants, and the

action, legal or equitable, against a party, an individaction is to be cousidered as primarily against them.

ual stockholder can come into court and prosecute the Mr. Pomeroy, in bis work on Equity Jurisprudence,

causes of action because the corporation fails or re$ 1095, states the rule as follows: “Wherever a cause

fuses to do so." These authorities are in entire accord of action exists primarily in behalf of the corporation

with and in confirmation of the conclusion before against directors, officers and others for wrongful

stated. Mo. Sup. Ct., March 21, 1887. Slattery v. St. dealing with the corporate property, or wrongful exer

Louis & New Orleans Transp. Co. Opinion by Black, J. cise of corporate franchises, so that the remedy should EVIDENCE-CUSTOM OF TRADE.- The plaintiffs were regularly be obtained through a suit by and in the permitted to prove that according to the usual course name of the corporation, and the corporation, either of business, it was the usage of the packing-house of actually or virtually, refuses to institute or prosecute Henderson, Parks & Co. to retain certain portions of such a suit, then in order to prevent a failure of jus- hogs packed by them, such as the bristles, feet, fat tice, an action may be brought and maintained by from the entrails, and other offal, as compensation for stockholder or stockholders.' These principles of slaughtering and cleaning the hogs, and placing them equity jurisprudence bave been well considered and

upou the hooks to cool, and afterward cutting them applied in a number of adjudicated cases. The follow- up. Evidence was also given, over objection, tending ing are some of them: Brewer v. Boston Theater, 104 to prove that the usage above mentioned was the com. Mass. 399; Peabody v. Flint, Allen, 52; Robinson v. mon usage prevalent other similar packing-houses Smith, 3 Paige, 222; Pond v. Railroad Co., 12 Blatchf. in the State of Indiana, and that the retention of the 280; Detroit v. Dean, 106 U. 8. 537; 1 Sup. Ct. Rep. offal was but reasonable compensation. The plaintiffs 560; Hawes v. Oakland, 104 U. S. 450. The relief also offered evidence tending to prove that the term awarded is often of a preventive character, and in “product," as applied to the pork-packing business, many cases the officers bave been required to account had a kuown meaning peculiar to the trade, and did for a breach of the trust repored in them, and for not include such parts of slaughtered hogs as are the misapplication of the funds and property of the mentioned above. Other evidence involving similar company. If the other parties have participated with principles was admitted. It is to be observed that the the officers in such proceedings, they may be joined contract out of which the controversy arose was oral, as defendants, and held to their just responsibility; and the evidence was such as to leave the terms and and property of the company may be followed into meaning of the agreement ambiguous. In such cases their hands. Peabody v. Flint, supra; Russell v. evidence of the known and usual course of a particuWakefield Water-Works Co., L. R., 20 Eq. 474. But lar trade or business is competent, with a view of raisin all these cases the defaulting directors or officers ing a presumption that the transaction in question was were made defendants, and the suits were primarily according to the ordinary and usual course of the against them. That the suit must be primarily against business to which it related. Lyon v. Lenon, 106 Ind. them is also the deduction to be made from the above 567 ; S. (., 7 N. E. Rep. 311; Maud v. Trail, 92 Ind. extracts from the text-books. The relief, when awarded 521; Wallace v. Morgan, 23 id. 399; Lonergan v. Stewagainst other persons, flows incidentally from their art, 55 Ill. 44; Jonsson v. Thompson, 97 N. Y. 642. It complicity with the officers in the wrong complained is not essential that such a usage should be shown to of. No officers of the plaintiffs' corporation are parties be so ancient “that the memory of man runneth not to tbis suit. It is simply a suit against the debtor to the contrary," por that it should combine all the company only to collect a debt or damages due to the other elements of a common-law custom, as defined in dispatch company, and we do not understand that a the books. 1 Cooley Bl. 76, and nute. The distinction suit for such a purpose only comes within the excep- between a usage of trade and a common-law custom tions of the general rule before stated. If these manag- has not always been observed. A custoin is someing officers were sued for the abuse of the trust im- thing which has by its universality and antiquity ac


quired the force and effect of law, in a particular place ministrators of A. brought a suit to recover $3,000, less or country, in respect to the subject-matter to which the indebtedness and premiums paid. It appeared it relates, and is ordinarily taken notice of without that A. was considered by the company a good risk, proof. Thus when a payee ivdorses his name on the and that the transaction between A. aud B.was ic. perback of a promissory note, the law, by force of a per- fect good faith. Held, that the disproportion between vading and universal custom, imports a well-recog

the actual indebtedness and the sum insured did not. pized contract into the transactiou. Smythe v. Scott, under the circumstances, create a presumption that 106 Ind. 2454 Walls v. Bailey, 49 N. Y. 466; Hursh v. this was a wagering policy, nor in the absevce of posiNorth, 40 Penn. St. 241; Muun v. Burch, 25 II). 41. tive proof, that it was intended as a collateral security Many other examples of such customs might be given. merely. We approach this question with caution, the They are distinguishable from a usage such as concerus more so that this court has not yet laid down a rule us bere. Where a usage in a particular trade or busi- upon this subject. That we shall be compelled some day ness is known, uniform, reasonable and vot contrary to do so is possible. We have said that the sum insured to law, or opposed to publio policy, evidence of such must not be disproportioned to the interest the holder usage may be considered in ascertaining the other

of the policy has in the life insured. To take out a wise uncertain meaning of a contract, unless the proof policy of $5,000 to secure a debt of $5 would be such a of such usage contradicts the express terms of the palpable wager that no court would hesitate to deagreement. This is so, even though the usage be that

clare it so as a matter of law. Care must be taken also of a particular person, provided it be known to the

that a debt shall not be collusively coutracted for the parties concerned, or provided it has been so long con

mere purpose of creating an insurable interest. Mr. tinued, or bas become so generally known or notorious

Dickens, in his inimitable “Pickwick Papers," has in the place or neighborhood, as to justify the pre

shown how a debt may be created for the purpose of sumption tbat it must bave been kvown to the par

lodging the debtor in prison by collusion with the ties. Carter v. Philadelphia Coal Co., 77 Penn. St.

creditor. Speaking for myself, it may be that a pol. 286; Townsend v. Whitby, 5 Har. (Del.) 55; McMas- icy taken out by a creditor on the life of his debtor ters v. Pennsylvania R. Co., 69 Penn. St. 374. Lawson ought to be limited to the amount of the debt, with Usages, 40. Parties who are evgaged in a particular interest, and the amount of premiums, with interest trade or business, or persons acoustomed to deal thereon, during the expectancy of life as shown by with those engaged in particular business,

the Carlisle tables. This view however has never yet may be presumed to have knowledge of the uni

been adopted by this court in any adjudicated case ; form course of such business. Its usages may

nor do we feel compelled to define the disproportion therefore in the absence of an agreement to the

now, in view of the particular facts of the caso in contrary, reasonably be supposed to have entered into

hand. We do not regard it as either immoral or wagand formed part of their contracts and understand.ering for Kline to attempt to secure the sums he had ings in relation to such business as ordinary incidents already fruitlessly paid in premiums on Grant's lise,aud thereto. East Tennessee R. Co. v. Jobuston, 75 Ala. if Grant bad no objection thereto, and assisted him 596; Mooney v. Howard Ins. Co., 138 Mass. 375; Flor- therein, I do not see that any one could object to this ence, etc., Co. v. Daggett, 135 id. 582; Fitzsimmons v. but the company. Again we have the declarations of Academy, etc., 81 Mo. 37; Cooper v. Kane, 19 Wend.

Grant that he owed Kline a considerable sum of 386; Kelton v. Taylor, 11 Lea, 264; 7 ('eut. L. J. 383.

money-tbe precise amount not stated; that Kline Thus where it was the mitorm usage of a firm to ex

had aided him in various ways; bad never refused ceed a definite credit on the sale of goods, it was held

him a favor, etc. In view of their connection by competent, in order to avoid the statute of limitations marriage, and of their admitted relations, it is at to prove such usage, and that the purchaser knew it.

least probable that Kline had aided him at many times Hursh v. North, supra. So in Walls v. Bailey, supra,

and in various ways pecuniarily that are not repreit was held competent to show the usage of plasterers sented by any evidences of debt. And if the sum inin a particular place, in order to determine the method sured was regarded by Grant as a reasonable amount of measuring plastering done under a contract which

to indemnify Kline, with what grace can Grant's ad. stipulated that a certain price per yard should be paid. ministrator's come in and allege that it was not? They See also Lowe v. Lehman, 15 Ohio St. 179; Hintou v. have no possible equity. Grant never paid ove dollar Locke, 5 Hill, 437; Barton v. MoKelway, 22 N. J. L. of the premium, and if they are allowed now to re165; Ford v. Tirrell, 9 Gray, 401. In like manner it is

cover, it is not by virtue of any equity, but by force of competent to prove that the words in which a contract an inexorable rule of publio policy, which treats it as is expressed, as respects the particular trade or busi- a wagering policy, and declares the policy-holder a ness to wbioh it refers, are used in a peculiar sense,

trustee for the person insured as to the entire proand different from their ordinary import. Jaqua v.

ceods, save only the money actually loaned, with the Witham, etc., Co., 106 Ind. 545; Spartali v. Benecke, 10 premiums paid. Assuming then that Klive might, C. B. 212. The evidence, the admission of which is

with Grant's consent and as against his administrators complained of, was not admitted for the purpose of

lawfully seek to indemuify himself for the premiums showing a custom in a technical sense, but to show the paid and lost, we have the sum of $743.56 as the general course and usage of the business as it was con

amount which Kline was out of pocket. We do not ducted by Henderson, Parks & Co. and others, so as

kuow what Grant's expectation of life was when the to autborize the presumption, in the absence of a

policy was taken out, and there is nothing before us special contract, that the trausaction in question was

upon which we could base any reliable opinion. But according to the usual course of business to which it

it appears he was sixty-five years of age, and was an referred Ino Sup. Ct

Morningstar v. Cunningham. unusually good risk. While we do not know what the Opinion by Mitchell, J.

amount of the annual premium was, wedo know that

it must have been a considerable sum on $3,000 for a INSURANCE-LIFE-INSURARLE INTEREST-WAGER- man of sixty-five years, and with the annual inING POLICY.-A., being indebted to B., his brother-in- terest would roll up rapidly. That Grant died within law, in the sum of $743.56, insured his life for the bene- a year is not to the purpose; he might have lived long fit of the latter in the sum of $3,000, B. paying all the enough for the debt and premiums and compound inpremiums. Upon A.'s death the company paid the terest to have exceeded the amount of the policy. amount of the insurance to B., against whom the ad. Surely in such case we cannot say as a matter of law

* *

that the disproportion was so great as to make it a he did not know the man he fired at was Utter, and wagering policy. Tenn. Sup. Ct., April 11, 1887. Grant did not intend to kill Utter, it cannot be said that v. Kline. Opinion by Paxson, J.

Utter lost his life by the design of Berry. Nor oan it ACCIDENT-DEATH BY ACT OF THIRD PERSON. be held as a matter of law, that Utter was engaged in -U., a minor, who had enlisted, deserted from the an unlawful act, within the meaning of this policy. If army, and was shot by an under-sheriff, who at. he had been shot in the act of deserting, this claim tempted to arrest bim. There was a conflict of evi. might be made with some reason and propriety, but dence on the point as to whether the officer knew at such was not the case here. Neither was he shot bethe time of the shooting that the party shot was the cause he was a deserter, nor because he was in a house deserter, and also as to whether the killing was in of ill fame. He was shot, if Berry is to be believed, beself-defense. Held, that if the officer did not know cause he did not throw up his hands when commanded that the person he fired at was U., and did not intend to, and was in the act of drawing a pistol. He was to kill U., it could not be said as a matter of law that killed, if Branagan is to be belived, without provocaU. lost his life by the design of the officer, within the tion, and in a wanton and murderous manner, as soon meaning of an accident policy insuring U., which pro- as his head appeared in the door. Whether he was dovides that “the insurance should not extend to any ing any thing unlawful at the time of the shooting case of death or personal injury unless the claimant was also a question for the jury, to be determined by establish by direct and positive proof that the death

them under all the circumstauces of the case. Mich. or injury was caused by external violence and acci- Sup. Ct., April 28, 1887. Utter v. Travellers' Ins. Co. dental means, and was not the result of design either Opinion by Morse, J. on the part of deceased or any other person,” and LIBEL - DISPARAGEMENT OF PROPERTY.-The al. that the case should be submitted to the jury. Where leged libel was as follows: “Probably never in the a person who is insured deserts from the army, and is history of the Ancient and Honorable Artillery Comshot by a sheriff who is attempting to arrest him, as pany was a more unsatisfactory dipper given than alleged in self-defense, it cannot be held as matter that of Monday last. One would suppose, from the of law that he was engaged in an unlawful act, within elaborate bill of fare, that a sumptuous dinner would the meaning of a policy of accident insurance, provid-be furnished by the caterer, Dooling: but instead a ing that no claim shall be made “ when the death or wretched dinner was served, and in such a way that injury may have happened * while engaged in even hungry barbarians might justly object. The cior in consequence of any unlawful act." If a person gars were simply vile, and the wines pot much better." should draw a pistol in a crowded street, and delib- | The question is whether the language used imports erately fire the same, with the intent of killing some any personal reflection upon the plaintiff in the conone, or with a reckless disregard of human life, and a duct of his business, or whether it was merely in disperson was killed or wounded, would such killing or paragement of the dinner which he provided. Words wounding be an accident in the meaning of this policy relating merely to the quality of articles made, proor would it be by the design referred to therein? vided, furnished, or sold by a person, though false and There would undoubtedly be a design to kill or wound malicious, are not actionable without special damage. some one, but no design to kill or wound the particu- For example, the condemnation of books, paintings lar person injured. Suppose that for the purposes of and other works of art, music, architecture, and genplunder, persons arrange to throw a passenger train erally of the product of one's labor, skill or genius, off a railroad track, knowing that such act is liable to may be unsparing, but it is not actionable without kill or injure some one, but having no malice against the averment and proof of special damage, unless it any individual thereon, and the train is derailed, and goes further and attacks the individ nal. Gott v. Pul. the assured killed, can it be said that his death was sifer, 122 Mass. 235; Swan v. Tappan, 5 Cush. 104; Tonot accidental, under this policy, but by the design bias v. Harland, 4 Wend. 537 ; Western Counties Manof some person? The argument may be carried fur- ure Co. v. Lawes Chem. Manure Co., L. R., 9 Exch. thier. Suppose one fires a pistol in the air. He fires 218; Young v. Macrae, 3 B. & S. 264; Ingraham v. by design, but does not intend to kill any one. The Lawson, 6 Bing. N. C. 212. Disparagement of propshot strikes the assured and kills bim. The act which erty may involve an imputation on personal character causes the death-the shooting of the pistol-is de- or conduct, and the question may be nice, in a parsigned, and therefore not accidental, but the killing is ticular case, whether or not the words extend so far as certainly accidental, and not designed. If the pistol to be libellous as in Bignell v. Bazzard, 3 H. & N. 217. is fired at one man, and hits another, is it any less ac- The old case of Fenn v. Dixe, W. Jones, 444, is much in cidental as far as the person hit is concerned, to the point. The plaintiff there was a brewer, and the demind of the person who does the shooting? And if fendant spoke of his beer in terms of quite as strong the shot is fired at the assured in the belief that he is disparagement as those used by the present defendants another man, is not the character of the act the same? in respect to the plaintiff's dinner, wine and cigars, If one designedly roll a stone down a mountain side, but the action failed for want of proof of special dam. with no intent to injure any one, and in its course it age. In Evans v. Harlow, 5 Q, B. 631, Lord Denman, crush a man, it is an accident. If it were purposely C. J., said: “A tradesman offering goods for sale exrolled down to crush one man, and it is deflected from poses himself to observations of this kind, and it is the course intended, and it kills another, is it not not by averring them to be false, scandalous, malicious equally an accident? The design or purpose was not and defamatory that the plaintiff can found a charge to kill the one injured, because it was intended to kill of libel upon them.” In the present case tbere was another, and not him. The criminal intent of the no libel on the plaintiff in the way of his business. one putting the stone in motion may render him Though the language used was somewhat strong, it guilty, and responsible for the actual result; though amounts only to a condemnation of the dinner and not intended; yet the death of the person thus killed its accompaniments. No lack of good faith, no violamust be considered, so far as he is concerned, an acciation of agreement, no promise that the dinner should dent, as his death was not intended by any one. It be of a particular quality, no habit of providing diuseems to me that the design intended by the terms of ners which the plaintiff knew to be bad, is charged, this policy must be the design that intended the actual nor even an excess of price beyond wbat the dinner result accomplished, and not the design of the act was worth, but the charge was in effect, simply that itself, which act resulted in the killing of one contrary the plaintiff, being a caterer, on a single occasion proto the design of the act. If when Berry fired bis shot, vided a very poor dinner, vile cigars and bad wine.



Such a charge is not actionable without proof of a case is exceptional. The agent of the employer sudspecial damage. Mass. Sup. Jud. Ct., March 23, 1887. denly commands the laborer to do an extra hazardous Dooling v. Budget Publishing Co. Opinion by C. act in the course of his duty, (one that may, tbough Allen, J.

not probably, be safely done by observing due care), MARRIAGE – ORAL ANTENUPTIAL CONTRACT-STAT

one that must be done at once, if done at all. The

laborer obeys the command promptly, moved only by UTE OF FRAUDS.- In the absence of fraud affecting the equities between the parties, the reduction to writing,

a faithful sense of duty, and as a consequence suffers after marriage, of a verbal antenuptial contract, will

serious injury. In that case the injured party does not take it out of the Illinois statute of frauds, wbich

not, in legal contemplation, contribute to his own inprovides that “no action shall be brought *

jury. The facts and circumstances were such as that to

he might suddenly, not unreasonably, believe that the charge any person upon any agreement made upon consideration of marriage, * unless the prom

command was a proper one that be ought to obey. ise or agreement shall be in writing.” The signing of

Although the act was hazardous, it was not essentially the written instrument after the marriage can be re- dangerous. It was done suddenly, and in obedience

to the command of one who had the right to direct garded, at the very furthest, as nothing more than a

the laborer in the course of his duty. The latter had mere acknowledgment in writing of the terms of the previous verbal agreement, and this oertainly does not

but a moment to think of duty, a moment to think of meet the requirements of the statute, for the simple danger. The law attributes the injury in such case to reason the statute requires the contract itself to be

the negligence of the employer. His agent gave the in writing. The case is unlike that of an express trust,

unwarranted, negligent command. The injured party which is only required to be "manifested and proved ”

simply obeyed, and was not negligent, because under by some writing. Doubtless a verbal antenuptial

the circumstances, he might obey. It would be uu. agreement might, under special circumstances, be en

reasonable and unjust to allow the employer to have forced in equity in order to prevent the party invok

immunity from civil liability for his own negligence, ing the statute from perpetrating a fraud upon the

or that of his agent, thus resulting in injury to a faith

ful servant. We therefore think the court erred in other party. Thus if, in this case, Mrs. McAnulty, had by some artifice, trick, or device, prevented the con

deciding that the appellant could not recover because tract from being reduced to writing, and had received

of his contributory negligence. N. C. Sup. Ct., April

11, 1887. Patton v. Western North Carolina R. Co. any substantial benefits from it, so that it would have operated as a fraud upon the testator, we have no

Opinion by Merrimon, J. doubt of the power of a court of equity in such case NUISANCE-SOOT FROM SMOKE-STACK-ABATEMENT. to afford the proper relief, notwithstandiug the stat- It appeared that the issuing of soot from defend. ute, on the general principle that the statute is never ant's smoke-stack was a nuisance of a most disagreeto be so expounded as to make it a mere instrument able character to plaintiff and his family. It was not in consummating a fraud upon the party against whom shown but that the smoke-stack might have been it is invoked. Eldredge v. Jenkins, 3 Story, 181; 2 easily used in such a way that soot would not bave Pom. Eq. $ 921. That marriage is not sufficient to take issued therefrom. Held, that this was not one of the such an agreement out of the statute is clearly estab- inconveniences necessarily flowing from a concentralished by an unbroken current of authority. Crane tion of populatiou, which one impliedly consents to v. Gough, 4 Md. 316; Henry v. Henry, 27 Ohio St. by living in a city, and that it was properly prohibited. 121; Flepner v. Flenner, 29 Ind. 564; Brown v. Conger, The defendant's counsel makes a very strenuous 8 Hun, 625; Finch v. Finch, 10 Ohio St. 507; Hackney argument, that in effect the verdict, judgment, and v. Hackney, 8 Humph. 452 ; Wood v. Savage, 2 Doug. findings, as he claims, most improperly pronounced 316; Lloyd v. Fulton, 91 U. S. 479. Ill. Sup. Ct., March the smoke-stack of the defendant to be a nuisance. 23, 1887. McAnulty v. McAnulty. Opinion by Mul- The language of the decree or judgment upon that key, J.

subject is as follows: “It is adjudged and decreed MASTER AND SERVANT NEGLIGENCE OF VICE- that said defendant is perpetually enjoined from PRINCIPAL CONTRIBUTORY NEGLIGENCE.- A rail- allowing soot to issue from the smoke-stack on the road section master, duly authorized to hire, direct, premises," etc. The findings sbow that the issuing and discharge the hands of his section, suddenly of this soot from the smoke-stack above mentioned ordered a new section hand, in the course of his em- was a puisance of a most disagreeable character to the ployment, to jump from a swiftly moving train. Held, plaintiff and his family. We are not informed from in an action by the section hand to recover for the in- the record but that this smoke-stack might have been juries thereby sustained, that the railroad was liable. used in such a way, both readily and easily, as that soot It seems that the command was given, and promptly would not have issued therefrom. But be that as it obeyed, without hesitation. It was rash, negligent, may, it is said by this court in the case of Tuebner v. unreasonable, and unwarranted; but the danger to be California St. R. Co., 66 Cal. 174: “The keeping of a encountered in obeying it was not so manifest and so hotel or restaurant is a lawful and very necessary great as under the circumstances to render a prompt business, * * * yet it could not be held that a obedience to it contributory negligence on the part of person carrying on such business, or any requiring a the appellant. An ordinary laborer on railroads, one large consumption of fuel, could erect his chimney to of ordinary experience, might make such a leap with- a beight that would discharge the smoke and soot into out injury. He might not upreasonably believe that his neighbor's windows. It is true, as argued by apbe could, taking proper care, and especially so when pellant, that persons preferring to live in the city commanded to do so by a railroad employee of long rather than in the country must accept many inconexperience, who had the right to command him in veniences, probably all that flow naturally and vecesthe course of his duty. While to jump from a rapidly sarily from the concentration of populations; but that moving train of cars is very hazardous, and ordinarily doctrine should not be carried too far. The law looks to do so is negligence, it is not contributory negligence, to a medium course to be pursued by each for the where the plaintiff, a laborer on the railroad, is sud- mutual benefit of all.” Tested by this rule, we do not denly commanded by his employer or his agent to do see why the plaintiff should not be restrained from 80 in the course of his employment, and the command 80 using his smoke-stack as that the soot issuing thereis at once obeyed from a sense of duty, and without from shall be prevented from being a disturbance, anwaiting to think of and consider the hazard. Such a noyance, and source of positive injury to the defend.

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