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UNITED STATES SUPREME COURT AB- the insured, in answer to the question, “Is the party STRACT.

of temperate habits; has he always been so ?” an

swered " Yes; whereas the defendant company alINSURANCE-LIFE-BREACH OF CONDITION-HABIT

leged that in fact he was a man of intemperate habits. UAL INTEMPERANCE.-The true meaning and siguifica

The court, through Mr. Justice Field, said: “The tion of the words "babitually intemperate" in a pol

question was as to the habits of the insured. His ocicy of life insurance, as they relate to the customs and

casional use of intoxicating liquors did not render habits of men generally in regard to the use of intoxi

him a man of intemperate habits, nor would an occacating drivks, is a question addressed rather to the

sional case of excess justify the application of this jury, than to tbe court, and instructions which at

character to him. An attack of delirium tremens may tempted to define approximately for the jury the num

sometimes follow a single excessive indulgence. *** ber of times the assured must have got drunk or bad

When we speak of the habits of a person wo refer to a spree, or bow closely such excesses must have suc

his customary conduct, to pursue wbich he has acceeded each other, to constitute him an "habitual

quired a tendency from frequent repetition of the

same acts. drunkard," and thus avoid the policy, are rightly re

It would be incorrect to say that a man fused. The questions wbich the jury bave to respond

has a habit of any thing from a single act. to were whether Comstock was of intemperate habits

The court did not therefore err in instructing the jury at the time the policy was taken out, and whether he

that if the habits of the insured, in the usual, ordibecame habitually intemperate after that period. The

nary and erery-day routine of his life, were temperwhole case turned, so far as the jury was concerned,

ate,' the representations made are not untrue, within upon the true definition of the words “habitually in

the meaning of the policy, although he may have an temperate,” takeu in connection with the testimony

attack of delirium tremers from an exceptional oreron tbe subject, at these two different periods. The

indulgence. It could not have been contemplated, plaintit was not bound to prove that the assured was

from the language used in the policy, that it should temperate, or that he was a temperate man; but the

become void for an occasional excess by the iusured, defendant was bound to prove, not only that Com

but only when such excess bad by frequent repetition stock was in temperate at those periods, but that he

become a habit. And the testimony of witnesses, was babitually so. This it was bound to do by such a

who had been intimate with him for years, and knew preponderance of testimony as should satisfy the jury

his general habits, may well have satisfied the jury, that at one of these periods or the other be was habit.

that whatever excesses he may at times have commitually intemperate. We do not know of any estab

ted, he was not habitually intemperate.” We think lished legal definition of those words. As they relate

this language emiuently applicable to the case before to the customs and babits of men generally in regard

us. May 23, 1887. Northwestern Mut. Life Ins. Co. v. to the use of intoxicating drivks, and as the observa.

Muskegon Nat. Bank. Opinion by Miller, J. tion and experience of one man on that subject is as JUDGMENT - BY DEFAULT — CONCLUSIVENESS - ESgood as another of eqnal capacity and opportunities, TOPPEL-MANDAMUS.-In a proceeding by mandamus their true meaning and signification would seem to to com pel the levy by a County ('ourt of a tax suffibe a question addressed rather to the jury than to the cient to pay a judgment obtained against the county, court. While there may be on the one hand such a the return of the respondents to the alternate writ of clear case of intemperate habits as to justify the mandamus admitted that the judgment of the relator court in saying that such and such facts constitute a was recovered upon bonds and coupons issued by the condition of babitual intemperance, or on the other county, but alleged that the said coupons were not such an entire absence of any proof, beyond an occa- issued in pursuance of law, making them the valid obsional indulgence in the use of ardent spirits, as to ligations of the county. Held, that the return was warrant the opposite conclusion, yet the main field of insufficient in law, the respondents being estopped to inquiry, and the determination of the question within deny the validity of the bonds by the judgment in it, must be submitted to the jury, and the question on favor of the relator against the county, and that said this submission must be decided by them. Th9 re- judgment was noue the less conclusive because rene quests all, as near as they dare, attempt to define ap- dered by default. As this is a direct proceeding upon proximately for the jury the number of times a man the judgment, its effect as an estoppel is determined must get drunk, or have a spree, or how closely such by the first branch of the rule as laid down in Cromexcesses must succeed each other, to constitute “hab- well v. County of Sao, 91 C. S. 351. That is: “It is a itual intemperance." Tbey also attempt to say how fivality as to the claim or demand in controversy, conlong a time a man must bave abstained from drunk- cluding parties and those in privity with them, not enness or sprees in order to relieve him from that ouly as to every matter which was offered or received charge. And especially are the requests obnoxious to sustain or defeat the claim or demand, but as to in saying that under such circumstances a person any other admissible matter which might bare been comes within the definition of being habitually intem- offered for that purpose." And as stated in Burlen v. perate, although he might remain sober for a month, Shannon, 99 Mass. 200, 203: “The estoppel is not conthree or six months, or longer, at a time; one of them fived to the judgment, but extends to all facts insays, or even a year at a time.” What effect should volved in it as necessary steps or the grouudwork be given to an entire abstinence from the use of liquors upon which it must have been founded." It is none for a whole year, in connection with occasional the less conclusive because rendered by default. drunken sprees before or after, is not for the court to The conclusiveness of a judgment upon the rights of determine. It would be rather harsh for a court to in- the parties does in nowise depend upon its form, or struct a jury, as a matter of law, that a man who was upon the fact that the court investigated or decided sober nearly two years was at a period near the mid- the legal principles involved. A judgment by default dle of that time "babitually intemperate." It was for or upon confession is in its nature just as conclusive the jury to weigh all these circumstances, and to de- upon the rights of the parties before the court as a termine, in view of them all, whether he was habit. judgment upon demurrer or verdict." Gifford v. vally intemperate. There are very few decisions by Thorn, 9 N. J. Eq. 722. The bar is all the more percourts of high character relating to this question. The fect and complete in this proceeding because it is not principal one which has been brought to our attention a new action.

Mandamus, as it bas been repeatedly is Insurance Co. v. Foley, 105 U. S. 350. In that case decided by this court in such cases as the present, is a remedy in the nature of an execution for the purpose his employees have reason to suppose is in proper of collecting the judgment. Riggs v. Johnson Co., 6 working condition. Every thing was open and risiWall. 166; Supervisors v. Durant, 9 id. 417; Thompson ble, and the deceased had only to use his senses and 5. U. 8., 103 U. S. 484. Certainly nothing that contra- his faculties to avoid the dangers to which he was exdicts the record of the judgment can be alleged in a posed. One of these dangers was that of the draw. proceeding at law for its collection by execution. In bars slipping and passing each other when the cars Ralls Co. v. U. S., 105 U. S. 733, the chief justice said : were brought together. It was his duty to look out “In the return to the alternative writ many defenses for this and avoid it. The danger existed only on the were set up which related to the validity of the cou- inside of the curve. This must have been known to pons on which the judgment bad been obtained, as him. It will be presumed that as an experienced obligations of tbe county. As to these defenses, it is brakeman, he did know it; for it is one of those things sufficient to say it was conclusively settled by the which bappen, in the course of his employment, unjudgment, wbich lies at the foundation of the present der such couditions as existed here. The defendant, suit, tbat the coupons were binding obligations of the as we have seen, had a right to construct its side county, duly created under the autbority of the char- track with such curves as its engineers deemed expeter of the railroad company, and as such entitled to dient and proper; and as to the draw-heads, and the payment out of any fund that could lawfully be raised absence of bumpers, the plaintiff herself abandoned for that purpose. It has been in effect so decided by the all claim founded upon any supposed miscoustruction Supreme Court of Missouri in State v. Rainey, 74 Mo. of the cars in relation thereto. Then it was clearly 229; and tbe principle on which the decision rests is shown to be a not uncommon accident, especially on elementary.” As the execution follows the nature of sharp curves, for the draw-heads of cars to slip by and the judgment, and its precept is to carry into effect pass each other. Tuttle, the deceased, entered into the rights of tbe plaintiff as declared by the judgment, the employment of the defendant as a brakeman in with ibat mode and measure of redress which in such the yard in question, with a full knowledge (actual or cases tbe law gives, so the mandamus in a case like presumed) of these things—the form of the side tracks, the present can be limited in its mandate only by the construction of the cars, and the hazards incident that which the judgment itselt declares. Ralls Co. v. to the service. Of one of these hazards he was unfor. U. 8., 105 U. S. 733, distinguished. May 27, 1887. tunately the victim. The only conclusion to be United States v. County Court. Opinion by Mat- reached from these undoubted facts is that he assumed thews, J.

the risks of the business, and his representative has

no recourse for damages against the company. May NEGLIGENCE-CONTRIBUTORY-COUPLING CARS-IN

23, 1887. Tuttle v. Detroit, G. H. & M. Ry. Co. OpinSTRUCTION-KNOWLEDGE.-Plaintiff's intestate was

ion by Bradley, J. Miller and Harlau, JJ., dissent. employed in coupling cars in defendant's depot yard in Detroit, Mich., and while coupling certain cars CUSTOMS DUTIES — APPRAISALS - "ROSARIES." standing on a sbarp curve, the draw-heads of the cars “Rosaries are not an enumerated article in the tariff failed to meet, and passed each other, allowing the act (Rev. Stat. U. S., tit. 33), and under section 2499, cars to come so close together that he was crushed to which provides, as to non-enumerated articles, that death. The evidence showed that deceased was stand- on all articles manufactured from two or more maing on the inside of the draw-bar while coupling, and terials the duty shall be * * * the highest rate at that the outside was free from danger. Held, that the which any of its component articles may be chargeplaintiff was not entitled to recover, the deceased hav. able," they are liable to the duty of fifty per cent ad ing wantonly assumed the risk of remaining upon the valorem imposed by section 2504 on "beads and bead inside of the draw-bar when he should have gone to oruaments." May 27, 1887. Benziger V. Robertson. the other side; and that having assumed the risks of Opinion by Blatchford, J. the employment, he was bound to look out for and avoid the dangers arising from the sharpness of the curre, to wbich, as an experienced brakeman, deceased must have known he was exposed. Iu such a

ABSTRACTS OF VARIOUS RECENT DEcaso, when testimony has been introduced to the ef

CISIONS. fect that draw-bars slip sometimes even upon straight track, aud there is no evidence to contradict BANKRUPTCY - DISCHARGE- NEW PROMISE. — We it, it is not error for the trial court to charge the jury consider next the nature of the new promise wbich that “he (the deceased) kuew, as he was an expe- will revive a debt discharged by bankruptcy, or what rienced man, that draw-bars do slip sometimes, even is the same in legal effect, will operate to waive the upon a straight track, * and the sharper the discharge of the bankrupt. In Wolffe v. Eberlein, 74 curve the greater was the danger of slipping." The Ala. 99; S. C., 49 Am. Rep. 809, we discussed at length brakemen and others employed to work in such situa- the effect of such promise in its relation to the plea of tions must decide for themselves whether they will bankruptcy, and the rules of pleading on the subject, encounter the hazards incidental thereto; and if they to which we need add nothing further. Speaking of decide to do so they must be content to assume the the discharged debt, we there said: “The old debt bas risks. For the views of this court ir a cognate matter become extinguished by operation of law, and no see Randall v. Baltimore & O. R. Co., 109 U. S. 478, longer exists. But the moral obligation to pay still 483, where it was said: “A railroad yard, where trains exists, and this coupled with the antecedent valuable are made up, necessarily has a great number of tracks consideration, is sufficient to support a new promise, and switches close to one another, and any one who if clear, distinct and unequivocal in its nature.” An enters the service of a railroad company connected implied promise is insufficient. It must be express; with the moving of trains assumes the risk of that thus differing from the promise required at common condition of things.” It is for those who enter into law to take a debt out of the operation of the statute such employments to exercise all that care and can- of limitations. It must be clear, distinct and unetion which the perils of the business in each case de-quivocal, such as to indicate on the part of the debtor mand. The perils in the present case, arising from "a clear intention to bind hiniself to the payment of the sharpness of the curve, were seen and known. the debt.” So partial payments on a discharged debt They were not like the defeots of unsafe machinery are insufficient evidence of a new promise to pay the which the employer has neglected to repair, and which residue. Allen v. Ferguson, 18 Wall. 1; Dearing v.

a

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Moffitt, 6 Ala. 776; Evans v. Carey, 29 id. 99; Bump hereby required to suspend his business." Under this Bankr. (8th ed.) 744; Hill Bankr. 265, $ 53. Such a constructiou no privilege or right is conferred on one promise may be either absolute, or it may be condi- which is not granted to all-110 monopoly is created tional. But if dependent on a condition or contin- by the act which protects the one and excludes the gency, this fact must be stated by the pleader, and it others — but all persons stard upon an equality must be averred and proved that the condition has under the law, as they should-all who desire may esbeen performed or the contingency has happened. tablish a regular place of business, not temporary, but Branch Bank v. Boykin. 9 Ala, 3:20; Dearing v. Mof- permanent. We do not hold that a person, on the eve fitt, supra; Allen v. Ferguson, supra; Maxim v. Morse, of a meeting being held, would have a right to estab8 Mass. 127. A promise to pay as soon as the bank- Jish a booth or place for selling provisions or refreshrupt is able is a valid condition, not void for uncer- ments for a short period, or during a session of the tainty, and is so held generally by the authorities. camp-meeting, and claim protection under the statTaylor v. Nixon, 4 Sneed, 352; Sherman v. Hobart, 26 ute, ils this would be a design to defeat the purpose of Vt. 60; Bump Baukr. (8th ed.) 745, 746, and cases the law, whicb could not be sanctioned; but in order cited; Dearing v. Moffitt, 6 Ala. 776, and cases cited. to be protected, whoever undertook to avail of the law But to be available, the promise must be averred in would have to establish a regular, permanent business, proper form, and satisfactory proof adduced of the and after such regular business was established, the defendant's ability to pay; that is, of the fact that he person engaged in such regular business would not be bas sufficient property or means to pay. Mason v. required to suspend during the session of a campHughart, 9 B. Mon. 480; Hill Bankr. 266, § 55. The meeting. It is also said that vendors of provisions plaintiffs failed to aver in their replication any but and refreshments cannot under the Constitution be an unconditional promise to pay. Ala. Sup. Ct., May taxed, and that the act empowers the authorities in 11, 1887. Griel v. Solomon. Opinion by Somerville, J. charge of the meeting to license, which in effect is a

tax. As we understand the statute, it does not conBORGLARY-CHARACTER OF BUILDING. — A small

fer the power to license on the authorities in charge building separated from a hotel by a passage-way was of the meeting. The act merely declares that whoconnected with it by a bridge passing between the

ever, during the time of holding any camp or field second stories. The ground floor of the building was

meeting, without the permission of the authorities used as a saloon by the proprietor of the hotel, and

having charge of such meeting, establishes any tent, the upper floor was divided into rooms for the accom

booth or place for vending provisions or refreshdients modation of guesty of the hotel. There was a privy

within a certain distance of the meeting shall be fined. also on the ground floor, used both by guests of the

The fact that the act confers on the authorities the hotel and patrons of the saloon. There was no stair

right to consent or refuse consent cannot be held to way or means of communication between the saloon

authorize such authorities to license. The right to and the story over it. Held, that a breaking and

consent or refuse consent is one thing, while the right entering of the saloon at a time when the rooms over

or power to license a person to conduct a certain busihead were occupied by the bar-tender and a son of

ness at a certain place is quite a different thing. Had the proprietor, was uot indictable as a breaking and

the Legislature intended to authorize the authorities entering of a saloon "not adjoining to or occupied

to license, language expressing tbat intention in plain with a dwelling-house." Mich. Sup. Ct., May 5, 1887.

words would no doubt have been used ; but however People v. Calderwood. Opinion by Champliu, J.

this may be, we see nothing in the language of the act CONSTITUTIONAL LAW-POLICE POWER--LIQUOR LI

which can be construed as authorizing the authorities CENSE-RESTRAINT OF TRADE. —A statute imposing a

to liceuse. The act is a mere police regulation. The fine on any persou, who during the holding of a camp

purpose of the act is to preserve order, and prevent meeting, sells or hawks any goods, merchandise, or

the disturbance of those engaged in publio worship. gives away or sells any liquor, without the consent of

For many years we have had similar acts in our stat. the parties in charge of such meeting, within one mile

ute. Section 147 of the Criminal Code of 1845 is an act thereof; provided that whosoever has his regular place

of a similar character; one enacted as a police regulaof business within such limits is not required to sus

tion to prevent a disturbance of a religious congregapend his business—is not void as in restraint of trade,

tion. There is in our judgment no question in regard or as creating a monopoly in faror of those persons

to the power and authority of the Legislature to pass referred to in the proviso, and discriminating against

such laws. The tendency of such laws is to prevent others, or as illegally vesting power to license in the

disturbance and disorderly conduct, and preserve managers of the meeting, but is a legitimate exercise

peace and quiet, where a large number of people are of police power, and as such valid. If it was in

assembled for religious worship. The statute is a mere tended by the proviso to protect any person who

police regulation-one which the Legislature bad the might bave a business within the designated limits at

right to enact. We regard it valid, and free from the tbe time the act was passed, and not afford protection

objections urged against it. Ill. Sup. Ct., May 12, to any person who might engage in regular business

1887. Yeyer v. Baker. Opinion by Craig, J. within the designated limits after the passage of the MASTER AND SERVANT - NEGLIGENCE OF VICEact, there might be much force in the position of ap- PRINCIPAL. – A railway train dispatcher is a reppellant, but we do not understand that such is the resentative of the company, and for an accident meaning of the proviso. But on the other hand, we occurring tbrough his negligence to a subordinate think the manifest intention was to allow any person

employee subject to his orders, the company will who might think proper to establish a place for the be liable. The authorities bearing upon the quesvending provisions or refreshments within the desig- tion to whether or pot train dispatcher, pated limits at a time when the camp-meeting was not invested with such control, is a fellow-servaut with in progress, and after such person became established the conductor and engineer and others engaged in in a regular business, be would not be required to actually operating and moving trains, are conflicting suspend bis business during the time the camp-meet- and irreconcilable. The rule laid down in Massachu. ing was held. In other words, we think the word setts, and cases cited from other States, where it is "bas'' in the proviso should be read

may have."

held that all who are engaged in a common employ. The pro viso would then read : “Whoever may have ment, working to accomplish a common result, without his regular place of business within sucb limits is not regard to rank, are to be regarded as fellow-servants,

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supports defendant's contention. While this court has the latter, and not the former, must bear the loss. In held that, where one servant is injured by the negli- the sale of laud it becomes the real property of the gence of a fellow-servant, no action therefor can be vendee from the execution, delivery, and acceptance maintained against the master, only in exceptional of the written contract. “ It is vendible as his, char. cases (such as when the servant employed was in- geable as his, and capable of being devised or descendcompetent, which was either known or might with ing as big." Consequently it is a well-established and ordinary care have been known by the master!, we reasonable rule that the destruction of buildings have never gone so far as to adopt a rule by which to thereon by fire, between the time of such contract of determine who are fellow-servants so broad as that sale and the time fixed upon in the contract for the adopted in Massachusetts, nor are we disposed to do delivery of possession by the vendor to the vendee, 80 now. The tendency of recent decisions is to narrow must be the loss of the latter and not of the former. and not broadeu the rule, notably so the case of Rail- Calhoon v. Belden, 3 Bush, 674. There are only two roud Co. v. Ross, 112 U. S. 377, where it is said: “There exceptions to this rule. The first is when, as was the is a clear distinction to be made, in relation to their case iu Comb v. Fisher, 3 Bibb, 51, there is an express common principal, between the servants of a corpora

contract to deliver the possession of the land, with the tion exercising no supervision over others engaged improvenients or buildings thereon, in the same situawith them in the same employment, and agents of a

tion as was the case when the sale was made. The corporation clothed with the control and management

second is when, as was in Cornish v. Strutton, 8 B. of a distinct department, in which their duty is en

Mon. 586, the building bas been destroyed by the cultirely that of direction and superintendence In pable negligence of the vendor. There is no allegaSheehan v. Railway Co., 91 N. Y. 332, and Railroad

tion or proof that the destruction of the dwelling. Co. v. McCollen, 84 Ill. 109, the superintendent and house in this case was caused by the negligence of the assistant superiutendent, acting as train dispatchers, vendor, or any other person, nor do we think the were held to be vice-principals. In the case last cited

contract, fairly construed, amounts to an express it is said that, as between the conductor and company, agreement by the vendor to assume the risk of the the assistant superintendent, to whose orders the

destruction of the buildings by fire. The purpose of trains are all subject, is the representative of the cor

the supplemental contract executed by appellee was to poration, and that the rule applies as well to all orders

provide for the repair by him of the house as therein issued by his assistants as in his name.” That a train agreed, and which the evidence shows he did do, but dispatcher is to be regarded as the representative of

not to insure it against destruction by fire, or to shift the company is, in effect, held in the following cases:

the risk from appellants to himself. He simply copBooth v. Ry. Co., 73 N. Y. 38; Ry. ('o. v. Henderson,

enanted to deliver possession, without any express 37 Ohio St. 552; Washburn v. Railroad Co., 3 Head, undertaking to sustain any loss that might arise from 638; Darrigan v. Railroad Co., 24 Am. Law Reg. 453.

the burning of the house. Ky. Ct. App., May 5, 1887. Iu the case last cited it is said: “It is immaterial that

Marks v. Tichenor. Opinion by Lewis, J. these men are hired and paid by a common employer,

WAREHOUSEMAN NEGLIGENCE-DELAYIN SHIPand that their employment is designed to accomplish

PING – DANGER OF FIRE — PROXIMATE CAUSE.- Inan one common result. That argument, if pressed to its

action against a warehouseman to reoover for the delogical conclusion, would obliterate all distinctions among those engaged in railroad business, from the

struction of goods in his yard by fire, an instruction

that tells the jury that if the condition of the yard, president down to the humblest servant, and would

the proximity of laborers' cabins, the habit of smoking practically exempt the company from all duty and all liability to those in its service.” It is further said

in the yard, aud the fact that railroad engines ran in

the yard warned the defendant of the danger of fire, that “cases are constantly arising, especially in the

then if a fire occurred, though not originating from operation of railroads, which no general rule can pro

either of these sources, and though neither of them vide for, in which the master must be regarded as

contributed to the loss, he will be responsible therefor, constantly preseut, in which some one must be inves

is erroneous. It is conceded by the appellees that the ted with a discretion, and a right to speak and com

defendant, under ordinary circumstances, would have mand in his name and by his authority. Such a right

performed its duty by holding the cotton until the carries with it the corresponding duty of obedience;

arrival of the Helena or Choteau, if either should arsome one must hear and obey. It must also devise

rire within a reasonable time, and that it is not the some suitable and safe method by which to run special unvarying duty of a warehouseman and forwarder to and irregular trains, and regular trains when off their

ship by the first opportunity. The contention is, that regular time. Emergencies will arise which no system

if by all the surrounding and accompanying facts and or rules can anticipate and provide for, in which the

circumstances, the warehousemen, as men of ordinary company must act promptly and efficiently. In this

prudence, were admonished of the danger to which case the scheme devised was to have these trains con

the property was exposed by reason of its liability to trolled by one who knew the position and movement

fire, it was their duty to ship out the cotton by the first of every train on the road liable to be affected by them,

opportunity afforded, because to retain it in the yard a train dispatcher acting in the pame and by the au

endangered its safety. That it was dangerous to perthority of the superintendent. Is there not a wide

mit it to remain, they contend was an inference that difference between the duty of such an agent, and the

the managers must have drawn from the fact that the duty of a locomotive engineer? The duty of the former

yard was in a crowded condition; that much of the pertains to management and direction; that of the

cotton had been sampled, and the combustible cotton, latter to obedience." Mo. Sup. Ct,, March 21, 1887.

drawn from the bales, scattered around where men Smith v. Wabash, St. L. & P. Ry. Co. Opiniou by

were in the habit of smoking, and where the engines Norton, C. J. Sherwood, J., dissented.

of the railroads ran in drawing their cars into the yard ; VENDOR AND PURCHASER

that the adjacent cabins, occupied by laborers, and the Upon the sale of land it becomes the property of the seed-house, were sources from which accidental fires rendee from the execution, delivery, and acceptance might be expected; that the oil-mill and other build. of the written contract; and if a building thereon is ings located within dangerous limits should also have destroyed by fire between the time of such contract of been considered by the warehouseman; and if, from enle and the time fixed upon in the contract for the all these, danger from fire might reasonably bave been delivery of possession by the vendor to the vendee, feared, it was negligence to retain the cotton after the

CONTRACT

RISK.

arrival of the Richardson. We concur in the position the defendants it was dangerous to keep it there, and thus assumed, and are of opinion that it was properly that they were guilty of vegligence in so doing. Iftbe left to the jury to determine whether the defendants fire had resulted from those circumstances which were were guilty of negligence in failing to ship out the relied on by the plaintiff as indicating the danger to cotton by the opportunity afforded by the Richardson wbich the property was exposed, or either one of on Sunday; and this brings us to the final question in them, the defendants would have been responsible for the cause. The plaintiffs insist that a wrong-doer the loss; but it does not follow that because the incannot apportion his own wrong; wherefore, since but jury resulted from fire,and the defendants were admonfor the negligent act of the defendant in failing to ished of danger from fire, they are to be held responship the cotton by the Richardson (which failure the sible. The inquiry returns, was it a fire from which verdict of the jury bas found to have been negligence) a reasonably prudent man would hare anticipated it could not have been destroyed by the fire, it is danger? To illustrate: If a bailee should deposit the liable for the injury sustained; orin other words, that goods of tho bailor wear the walls of a building which if the negligent act furnished the opportunity for the were toppling and threatening to fall, aud the wall injury, tbe defendants must respond in damages re- should fall and injure the property, he should be gardless of the immediate cause of the injury; or if answerable; for it was his duty to have avoided the mistaken in this, then the plaintiffs contend, that if danger. But if the dangerous building do pot fall, certain surrounding and attendant circumstances ad- and another building from which no danger could movish the defendants that to retain the cotton would rensonably be anticipated unexpectedly fall and injure expose it to danger of fire from these sources, then if the goods, here he is not answerable, though the inthe fire did destroy it, the defendant is liable, even jury has resulted from a like cause, the falling of a though it did not originate from those things which wall; for the wall which fell, fell not according to the admonished of the danger, but occurred from a source ordinary or probable course of events, but unexpecfrom which no danger was or could bave been reason- tedly. In Morrison v. Davis, 20 Penn. St. 171, a carably apprehended. It is contended for the defendants rier by canal used a lame horse in pulling his boat, by that if it be conceded it wils negligent in not shipping reason of which it was delayed, and because of the out the cottou, such negligence was the remote and delay it was subjected to a flood, whereby the goods not proximate cause of the loss, and causa proxima were injured. It was held that he was not liable, for non remota spectatur. It would be unprofitable to at- the reason that he could not foresee the danger. In tempt au investigation of the very numerous, perplex- McGrew v. Stone, 53 Penn. St. 440, the owner of a ing, and contradictory decisions which have been canal-boat anchored in a dangerous part of the stream, made upon this much ve ed subject. W have ex- in the vicinity of many other boats. One of his boats amined the cases cited by counsel, and find them to was injured, and sinking, floated under the boat of have been selected with discrimination, and to fairly the plaintiff, which, upon the subsiding of the waters, represent tho conflicting views which prevail in dif. settled upon it and was lost. Is was held to be a quesferent States. We have found no more intelligent and tion of fact, to be decided by the jury, whether under satisfactory deductions from the general course of de- all the circumstances the defendant should have cisions than the following propositious laid down by anticipated the probability of danger to the boat of the Mr. Cooley in bis work on Torts: (1) That in the case plaintiff, the court saying: “If he knew that barges of any distinct legal wrong, which in itself constitutes filled with coal are ponderous, unwieldy, and difficult an invasion of the right of another, the law will pre- of control, are liable to injury, and easily sunken, and sume that some damage follows as a natural, necessary, that the place of mooring, by reason of the strength and proximate result. Here the wrong itself fixes the of the current aud floating drift, was one of danger, right of action. We need not go further than to show and most likely to cause such boats to sink, and also a rigbt of recovery, though the extent of the recovery knew that this place, in case of the sinking of his may depend upon the evidence. (2) When the act of boats, was likely to prove to be dangerous to some of omission comnlained of is not in itself a distinct the boats lying below, and that the flood would come, wrong, and can only become a wrong to any particular (for it was his purpose to await its coming to carry individual through injurious consequences resulting him out), it could scarcely be held that these circumtherefrom, this consequence must not only be showni, stances did not indicate to his mind the greater danbut it must be so connected by averment and evidence ger of mooring there; and if an accident should hapwith the act or omission as to appear to have resulted pen there, the danger to which it would expose others. therefrom according to the ordinary course of events, The injury, under such circumstances, would not be and as a proximate result of a sufficient cause. (3) If 80 remote that it ought not to be taken into account. the original act was wrongful, and would naturally, But it must be observed that these are inferences of according to the ordinary course of evevts, prove in- | fact which belong to the jury, whose province it is to jarious to some person or persons, and does actually determine what are the circumstances, and the inferresult in injury through the intervention of other ences of probability to be drawn from them.” Miss. causes which are not wrongful, the injury shall be re- Sup. Ct., April 25, 1887. Merchants' Wharf-Boat Ass'n ferred to the wrongful cause, passing by those which v. Wood Opinion by Cooper, C. J. are innocent. But if the original wrong only becomes injurious in consequence of the interventinn of some distinct wrongful act or omission of another, the

CORRESPONDENCE. injury shall be imputed to the last wrong as the proxi. mate cause, and not to that which was more remote.

MARRIAGE LAWS. Cooley Torts, 69. We accept the second proposition, assuming that the words “according to the ordinary Editor of the Albany Law Journal: course of events "include, not only those consequences I bave been wondering why you have been expendwhich necessarily and invariably follow from known ing so much wit and sarcasm of late upon the “Marcauses, but those which may and probably will follow. | riage License Bill,'' but the colored individual in the The verdict of the jury has established, for the pur- woodpile makes his appearance in your issue of July poses of this examination, the fact that the circum- 2, wherein you say, “To declare that a common-law stances existing at the time when the cotton might marriage shall be void is going too far." There was bave been shipped from the yard were such as to warn po such provision as you suggest in the proposed aot,

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