ministrators are applicable. They should be applied in settling this question. 4. One of the exceptions is to a balance of $2,124.75 due her on the last settlement. This is not an exception to any item in the present account but rather to the correctness of a former account. It is quite doubtful whether it is sufficiently specific as to direct the attention to any item in the former accounts. The statute, however, provides: "That when an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein; excepting that any matter in dispute between two parties which has previously been heard and determined by the courts shall not again be brought in question by either of the same parties without leave of the court." See also Stayner's case, 33 Ohio St. 481. If, therefore, there was any error or mistake either in the debit or credit side of the former accounts, not theretofore adjudicated between these parties, it was subject to correction on this account, whether that error or mistake consisted in omitting proper charges or credits or including incorrect charges or credits, or whether made by the court or the executrix. Judgments of the district court and of the common pleas reversed and cause remanded for further proceedings. [To appear in 38 Ohio St.] RAILWAY PASSENGER-INJURY ON SLEEPING RAILROAD COMPANY v. WALRATH. Nov. 28, 1882. 1. A passenger, by train of a railroad company, traveling in the coach of a sleeping car company, may properly assume, in the absence of notice to the contrary, that the whole train is under one management, and in such case, where he sustains injury by the negligence of one in the employ of the sleeping car company, he may maintain an action against the railroad company. What the effect of such notice would be is not determined. 2. On proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the raflroad company is liable. Railroad Co. v. Mowery, 36 Ohio St. 418, followed. Error to the District Court of Hamilton County. Walrath brought suit in the Superior Court of Cincinnati, against the Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company to recover damages for an injury alleged to have been sustained while he was a passenger on the company's road. He paid to the company his fare from Cleveland to Cincinnati and also, after the train had started, paid for a berth in a car of the Woodruff Sleeping Car Company, which car formed part of the train. After riding in his proper seat in the sleeping car an hour or more the upper berth came down, striking him, as he alleges on the head causing injury to the spinal cord and ultimately paralysis. This he avers was without fault on his part, and by reason of the negligence of the railroad company as well in using defective appliances, as in the management of the same. There was evidence that the berth had never fallen before or afterward, and that, on examination after the accident, no defect could be discovered in its construction. The case was heard upon petition, answer, reply and testimony, and a verdict for $6,000 was found, upon which judgment was rendered. The judgment was affirmed in the district court, and the opinion of the court by Avery, J. will be found in 7 Am. Law Record, 555. This petition in error was filed by the railroad company to reverse the judgments. Refusing to charge in terms that no presumption of negligence arose from the fact that an accident occurred to Walrath while traveling as a passenger in the sleeping car and that if there was no defect in the road, or the car, or the mechanism used, the burden to show negligence of the railroad company's employees was on him, the court charged the jury, among other things, as follows: "The burden of proof is on the plaintiff to show that he was injured by the defendant's negligence either in not providing safe and suitable cars or in not properly inspecting and taking care of said cars. A mere statement that a person was injured while riding on a railway, without any statement of the character, manner, or circumstances of the injury does not raise a presumption of negligence on the part of the railway company. But if the character, manner and circumstances of the injury are also stated, such statement may raise on the one hand a presumption of such negligence, or, on the other, a presumption that there was no such negligence. If the plaintiff was in fact injured while sitting in his proper place, by the falling on to his head of the upper berth, while said upper berth ought to have remained in place above, such fact raises a presumption in this case of negligence, for which the defendant is liable. If you find that there was no defect in the road, or in the car, or the mechanism used, yet, if upon the evidence in this case, you find it reasonable to presume that the accident happened by reason of the upper berth not having been properly fastened in place, or by reason of the persons having charge of the car having failed to ob serve that it had become loosened, if such insecure condition would be observed by proper diligence, you have a right so to presume, and you would then find the defendant guilty of negligence. If on the other hand, in such case, you find it equally reasonable to presume that the fastening of the berth was loosened by some other person, not those in the employment of the defendant, and such insecure condition would not be observed by proper diligence on the part of the persons having charge of the car, you have the right so to presume, and in that case would find the plaintiff failed to make out a case of negligence against the defendant. The plaintiff is entitled to damages for injury traceable to the defendant's fault, but not for injury caused by his own act." Exception was taken to specified portions of this charge. The railroad company also insisted that it was not liable for the negligence of the servants of the sleeping car company, but the charge of the court was adverse to the claim, and exception was taken. Stallo, Kittredge & Shoemaker for plaintiff in error. Follett, Hyman & Dawson and T. H. Kelley for defendant in error. OKEY, C. J. Two questions are presented; first, as to the liability of the railroad company for injury to a passenger traveling on one of its trains in a coach of a sleeping car company; secondly as to the presumption arising from proof of the injury. 1. In Southern Express Co. v. Railway Co. 10 Fed. Rep. 210, Miller, J. said that "the express business is a branch of the carrying trade that has, by the necessities of commerce and the usuages of those engaged in transportation, become known and recognized;" "that it is the duty of every railroad company to provide such conveyances, by special cars or otherwise, attached to their freight or passenger trains as are required for the safe and proper transportation of this express matter on their roads;" "that under these circumstances there does not exist, on the part of the railroad company, the right to open and inspect all packages so carried;" and "that, when matter is so confided to the charge of an agent or messenger [of the express company,] the railroad company is no longer liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due care, skill and diligence on the part of the railroad company." And see Penn. Co. v. Woodworth, 26 Ohio St. 585. Counsel for plaintiff in error argue in this case that sleeping cars have become recog nized as so far necessary to the comfort and convenience of passengers by railway, that railway companies may be compelled, in like manner, to attach the coaches of sleeping car companies to their trains, where they have failed to provide their own cars for such purpose, in which case there should be a corresponding modification of the liability of the railroad company, and that whether the arrangement between the companies be enforced or conventional, the railroad company should not be liable for injury to passengers resulting solely from negligence of the agents of the sleeping car company. In support of this view, attention is called to the fact that in Penn. Co. v. Roy, 102 U. S. 451, where the liability of the railroad company for an injury received in a car of the Pullman Palace Car Co. was asserted, Harlan, J. lays stress on the fact that the railroad company had published and circulated cards which were in such form as to induce the belief that the sleeping car was under the management and control of the railway company. But, on examination of the whole opinion, we find there was no intention to place the liability on such narrow ground; and we have no hesitancy in saying that in the absence of notice that the company will not be liable for defective appliances in the sleeping car or negligence of servants of the sleeping car company, a passenger may well assume that the whole train is under one general management. Thorpe v. Railway Co. 76 N. Y. 402. How far a railway company may, by agreement with a sleeping car company, known to the passenger, exonerate itself from liability for such injuries, is a question concerning which we express no opinion. 2. As to the presumption stated in the charge. Counsel for plaintiffin error say that there was no evidence that the injury resulted from defect in the car or any part of it. Hence the injury was occasioned by the negligence of the porter in securing the berth in its place or by the interference of some other person with the fastenings of the berth. This statement is probably correct. Now in charging that the burden was on Walrath to show the injury resulted from the negligence of the defendant below, and that he could only recover for negligence traceable to the defendant's fault, the court virtually charged that he was required to show that he was without fault. This being shown, we think the court might then well say, under the circumstances, that the negligence of the defendant might be presumed. We are aware that upon this subject the authorities are in some conflict. Roscoe's N. P. Ev. (14th ed.) 695; Thompson on Car. Pas. 209; Schouler on Bailments, 642; 2 Wait's Act & Def. 90; Pierce on Rail. (ed. of 1881) 298; Johnson v. Railroad Co. 20 N. Y. 65; Readhead ❤. Midland Railway. Co. 4 L. R. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Railway . Fawcett, 1 Moore (P. C.) 101, 116; cf. Czech v. General Steam Nav. Co. 3 L. R. C. P. 14. But the general question was carefully considered in Railroad Co. v. Mowery, 36 Ohio St. 418, and we think the principle of that case sustains the court below in the charge given and in refusing the charge requested. Railroad Co. v. McMillan, 37 Ohio St. 554, was an action for killing a horse on the company's road, and has no application. Whether the sentence next to the last in the portion of the charge set forth in the statement of this case, was not more favorable to the railroad company than was warranted, we need not determine. Judgment affirmed. [To appear in 38 Ohio St.] BILL OF EXCHANGE-PAYING DRAWEE TO BE REIMBURSED BY DRAWER. CHURCH v. SWOPE. November 28, 1882. 1. If the drawee of a bill of exchange is without funds of the drawer and pays the bill, he is entitled to be reimbursed by the drawer; and if there are several drawers part of whom are securities for the others, all are alike liable to reimburse the drawee in the absence of any understanding to the contrary. 2. Where a bill of exchange is made payable to S. and at the time of its execution, C. signs his name on the back, he becomes a party to the request upon the drawee to pay the bill; and in an action by the drawee to recover the amount paid in taking up the bill, C. is to be regarded as a drawer. Error to the District Court of Huron County. The orignal action was brought by the firm of Swope & Hughes against William W. Bissell, individually, Charles H. Church, Joshua B. Bissell and William W. Bissell, composing the firm of Church, Bissell & Co., to recover money paid by the plaintiffs as drawees of a bill of exchange, at the request of the defendants. The following is a copy of the bill of exchange: No. 1092. Church, Bissell & Co., Produce Dealars. $350.00. New London, O., Dec. 8th, 1874. Pay to the order of M. H. Smith, Cash'r, three hundred and fifty dollars, value received, and charge to the account of To Swope & Hughes, W. W. Bissell. No protest. Buffalo, N. Y. Written on the back was Church, Bissell & Co.; M. H. Smith, Cash'r. This bill, without the endorsement of M. H. Smith, Cash'r, was discounted at the Bank of New London, of which Smith was cashier, and the proceeds were placed to the credit of Church, Bissell & Co. By an arrangement between Church, Bissell & Co. and W. W. Bissell the proceeds were used by the former for the latter's benefit. At the time of drawing the bill it was expected that the drawees would be put in funds to pay it by a lot of sheep which W. W. Bissell was about to ship to them for sale. Bissell accompanied the sheep and had them taken to Albany, New York, instead of stopping with them at Buffalo. After having sold the sheep at Albany he returned with the proceeds to New London and paid Church, Bissell & Co., as he testifies, the money to be remitted to Swope & Hughes, to refund to them the amount they had paid in honoring the bill, which remittance they refused to make, and credited the amount thus paid to his account. The testimony on behalf of Church is to the effect that the payment thus made was only $340. Testimony was also given on behalf of plaintiffs, tending to show that on a settlement between W.W. Bissell and Church, Bissell & Co., the latter recognized their liability to pay Swope & Hughes and agreed to do so. There was no evidence of prior dealings between the defendants and plaintiffs, nor on whose credit or request the bill was paid by the plaintiffs except as is to be implied from the instrument itself. The case was tried to the court which found for the plaintiffs. A motion for a new trial was made and overruled, and a bill of exceptions taken embodying the evidence. Judgment was rendered for the plaintiffs, which, on error, was affirmed by the district court. now sought to reverse these judgments. G. T. Stewart for plaintiffs in error. Franklin Sawyer for defendants in error. WHITE, J. It is We find no error in the court rendering judgment for the plaintiffs. Where a drawee is without funds of the drawer of a bill of exchange, and pays the bill he is entitled to be reimbursed by the drawer for the money thus paid; and if there are several drawers, part of whom are sureties for the others, all are alike liable to re-imburse the drawee. The principle is thus stated in Nelson v. Richardson, (4 Snead 307). The surety drawer of a bill of exchange becomes chargeable with every obligation and liability which the law imposes upon the principal, as well those that are implied by law as those that are expressed; and this is so in regard to all the parties, the drawee or acceptor no less than the payee, endorsee, or holder of the bill. When the drawee pays the bill without funds of the drawers, the relation between the parties is reversed; the drawee instead of being a debtor, becomes the creditor of the drawer for the money advanced, and may re cover the same of such surety drawer, not indeed upon the bill itself, but upon his implied promise to reimburse the drawee. To the same effect are Dickerson v. Turner, 15 | Ind. 4; Swilley v.. Lyon, 18 Ala. 552. See also, Story on Bills, § 420; Daniel on Nego. Inst. § 95. The question in the present case is, in what character did Church, Bissell & Co. sign the bill? They, by signing their names upon the bill at the time of its execution, filled up as it was, become parties to the request upon the drawees to pay the amount named in the bill to Smith, the payee. The payee can only regard them as drawers of the bill chargeable alike with W. W. Bissell as such drawees. By signing on the back they may have evinced, as the fact was, that they were sureties of Bissell. Nevertheless they were drawers and being drawers as respects the payee, they must also be drawers as respects the drawers. The essential element of a drawer is that he is an original party to the request upon the drawee to pay the bill. If W. W. Bissell is regarded as the sole drawer of the bill, Church, Bissell & Co. would be strangers to it and could not be endorsers of the bill to the payee; hence their true relation to the bill must be that of drawers, and thus equally bound with Bissell to furnish funds to meet it. It can be no more said that the drawees would have paid the bill without the names of Church, Bissell & Co. than it can be said that the bank would have discounted the bill without their names. The fact that the name of Church, Bissell & Co. was written on the back of the bill instead of on the face, does not preclude their being regarded as drawers. Penny v. Innes, 1 Cs. M. & R. 439. Judgment affirmed. [To appear in 38 Ohio St.] Wisconsin Supreme Court. OBSTRUCTING NAVIGABLE RIVER. WEATHERBY v. MICKLEJOHN October 31, 1882. Plaintiff sued for damages resulting from obstructions in a navigable river by defendants, whereby plaintiff was prevented from floating logs down such river, and defendants set up as a counter-claim that said river being tortuous, they had cut a canal from one bend to another therein, and so facilitated and cheapened the floating of logs down such river, and for the use of such canal and men employed by defendants, plaintiffs were indebted to them in a certain sum. Held, that as to the use of the canal the defendants must be held to have dedicated it to the public, and that they could not charge plaintiff therefor; and as to the charges for the men, they did not arise out of the transactions set up in the complaint, and such a counter-claim could not be sustained. The complaint contains two counts: One for wrongfully and unlawfully obstructing the Little Wolf river, a public navigable stream, by the dam and booms of the defendants, and thereby hindering and delaying, for the pe riod of thirty-one days, the logs of the plaintiff being floated down said river, to the special damage of the plaintiff in the sum of $300. The other was for the forfeiture of $25 a day for each of said thirty-one days by reason of such obstruction, under section 1598, Rev. St., making the amount of such forfeit ure $775. The defendants, besides answering defensively, alleged, in effect, by way of counter-claim, that the natural channel of the river, for a portion of the distance covered by the pond created by the dam of the defendants, was very tortuous, making long detours from a direct line, and then running nearly to the point of departure, which feature in said river greatly hindered, delayed, and made very expensive the floating of logs and timber down said river, and that for the purpose of improving the navigation of the river and lessening the expense of driving and booming logs thereon to all persons choosing or desiring to use such improvements, the defendants, prior to the supposed injury, at their own expense and on their own land, constructed a canal from said river, above a long bend in the same, straight across to the river immediately below, of sufficient size and capacity to admit of the floating of logs and lumber through the same, thereby affording a straight, navigable channel, and avoiding the trouble and expense of driving logs around said bend by the natural channel, and greatly lessening the expense of driving logs at that point; that the defendants, at the special request of the plaintiff, furnished through and by means of their said dam, by raising the gates therein, water to aid the plaintiff in floating and driving his logs down said stream below said dam; that the plaintiff used and occupied the said channel for the purpose of floating his logs down said stream; that such use and the water furnished as aforesaid, and the labor of six men in assisting the plaintiff to run his logs through said pond, were worth $500; and the defendants thereby demanded that the same be allowed as a counter-claim against every claim the plaintiff might establish on the trial of this action sufficient to pay and discharge the same, and that for any excess thereof over and above such claim the defendants might have judgment, besides the costs of this action. To this counter-claim, the plaintiff demurred, on the grounds, in effect: First, that the court had no jurisdiction; second, that it did not state facts sufficient to constitute a cause of action; third, that the cause of action stated was not pleadable as a counter-claim. The court overruled the demurrer, with costs, to which the plaintiff excepted, and from the order overruling the demurrer this appeal is brought. CASSODAY, J. The defensive portion of the answer is not before us for consideration, except in so far as it may be resorted to for the purpose of making certain what might otherwise be regarded as indefinite and uncertain in the counter-claim. It is the settled law of this state that streams of sufficent capacity to float logs to market are navigable. Whistler v. Wilkinson, 22 Wis. 572. Sellers v. Co. 39 Wis. 525; Olson v. Merrill, 42 Wis. 203; Cohn v. Co. 47 Wis. 324; The counter-claim, therefore following the complaint, refers to the river as a navigable stream; for it has been held that & demurrer to the counter-claim goes goes back to the complaint. Lowe v. Hyde, 39 Wis. 355. It is there expressly alleged that the Little Wolf river is a public navigable stream. These things being so, we think the stream must, for the purposes of this demurrer be regarded as a public navigable river. Is the artificial channel, cut by the defendants from one portion of their pond to the other, also to be regarded as a public navigable stream? The defendants claim it should not, and insist that it was a private channel, which the plaintiff was not obliged to use, but was bound to pay for if he did use. No authorities are cited for or against the proposition by either party. It appears from the counter-claim that it was cut" for the purpose of improving the navigation of said river, and lessening the expense of driving and booming logs thereon, to all persons choosing or desiring to use such improvement." In Lawson v. Mowry, 52 Wis. 235, it was assumed that owners of lots abutting upon the canal had the same riparian rights as they would if their lots abutted to the river. Such was held to be the law in Townsend v. McDonald, 12 N. Y. 276. Whether such is the law in all cases or not, it would seeem that an artificial water-course may be made under such circumstances as to confer all such rights as a riparian owner would have had in case of a natural stream. Sutcliffe v. Booth, 9 Jurist, (U. S.) 1037; Wood . Wand, 3 Exch. 148; Coul. & F. Waters, 247, 261. through such break and new channel, doing no unnecessary damage. In the recent English work of Coulson & Forbes on the Law of Waters, page 416, it is said that "where a navigable river changes its channels, although the soil of the bed and the right of fishing may be vested in the owner of the adjoining land, so as to bar the right of the crown to the bed and of the public to the fishing, it would appear that the right of navigation will follow to the new channel, the test being whether the river remains tidal." See also, Ang. Watercourses, §§ 58, 540. The question is interesting, but we have no time now to pursue the investigation, nor do we think it necessary under the allegations of the counter-claim above quoted. The short cut being made "for the purpose of improving the navigation of said river, and lessening the expense of driving and booming logs thereon to all persons choosing or desiring to use such improvement," must be deemed to have been left open without gates or guards, and hence free for the use of any one choosing or desiring to use the same. Nor does it appear that any objection was made by the defendants to its use. Such being the allegations, we must hold that the artificial channel in question was dedicated to the public use of all persons choosing or desiring to float logs through the same, and that after allowing it to be thus used without objection, the defendants are thus not entitled to recover from the plaintiff for its use any more than they could for the use of the stream had no such channel been cut. The counter-claim to the alleged obstruction is, in effect, among other things, that by reason of the artificial channel, the dam, the gates, and the use of the water, the speed of the plaintiff's logs along this public navigable stream, above and below the dam, was, on the whole, actually accelerated instead of being retarded, and for such acceleration they ask to recover against the plaintiff. Such was the nature of the defense in Valk v. Eldred, 20 Wis. 410, where the dam was erected by the authority of the legislature, but it was held not available; and for a much stronger reason it should not be available as a counter-claim where it does not appear that the dam or booms were by legislative authority. It is, in effect, the exaction of tolls for the improvement of a public highway. But the right to take tolls for passage over a public highway is a franchise to be acquired only by way of grant from the legislature. Sellers v. Co. 39 Wis. 525. Without discussing the question further, we must hold that that portion of the counter-claim seeking to charge the plaintiff for the use of the straight cut, the dam, the gates, and the use of the water is without |