tions, but whether the reasons in favor of a proposition outweigh those against it. One who should undertake to find a rule against which no plausible objection could be urged, would find his quest as fruitless as that of the knight of La Mancha. In favor of the rule we sanction are these reasons: If successive actions are allowed, one injury may be made to constitute many causes of action. If successive actions are permitted, the rule forbidding the splitting of demands is violated. If many actions may be maintained a recovery in one may embrace what has been recovered in former actions. If many actions are allowed, the public welfare and convenience is disturbed. The principle we here assert is by no means a novel one in this court. City v. Hudnut, 13 N. E. Rep. 686 (this term); Railway Co. v. Eberle, 110 Ind. 542; City v. Voegler, supra; Burrow v. Railroad Co., 107 Ind. 432, 439; Railroad Co. v. Stockton, 43 id. 328; Plank-Road Co. v. Railroad Co., 13 id. 90. In the case of Copper Co. v. Mining Co., 57 Mich. 82, and 58 Am. Rep. 333, Judge Cooley, as the representative of the court, discussed this question with the ability and learning to be expected of so great a lawyer, and affirmed what we here affirm that where injuries to real property are caused by an act of a permanent character, done under color of legal right, only one action can be maintained. In the more recent case of Railroad Co. v. Loeb, 118 Ill. 203, and 54 Am. Rep. 241, the question was very fully considered, and a like conclusion reached. The general principle was thus stated in Railroad Co. v. Combs, 10 Bush, 393; 19 Am. Rep. 67. "The injury in this case, if any, is permanent and enduring, aud no reason is perceived why a single recovery may not be had for the whole injury to result from the acts complained of." In Railroad Co. v. Andrews, 26 Kaus. 711, this principle was asserted, and applied to the obstruction of an alley. We do not however deem it necessary to further refer to the authorities, for in City v. Voegler, supra, we collected and reviewed very many of the cases upon the subject, so that there is no necessity for again discussing them. Many authorities will be found in Mr. Starr's able article on Prospective Damages, to which we refer without further comment. 26 Am. Law Reg. 231-245. Ind. Sup. Ct., Jan. 18, 1888. City of Lafayette v. Nagle. Opinion by Elliott, J. Ou FOR BELIEF.-In a divorce suit for adultery and cruelty, where plaintiff claimed to have had just cause for separating from defendant, the latter testified on cross-examination that he supposed plaiutiff left him because she loved another man more than him. redirect examination he was asked what reasons he had for such belief. Held, proper redirect examination, although recrimination was not pleaded. Greenleaf says: "To ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on crossexamination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; but he has no right to go further and to introduce matter new in itself and not suited to the purpose of explaining either the expressions or the motives of the witness." 1 Greenl. Ev., $467. Taylor, in his work on Evidence, § 1474, says the witness may be re-examined, not only with respect to his motive, but also his provocation which induced the expression used on cross examination. Let us look at the few illustrations which the books present. On a trial of the defendant for incest with his niece, the woman was not examined as a witness by the State, but the defendant examined her as a witness in his behalf. On being asked if defendant had ever had sexual intercourse with her, she answered he had not. On the cross-examination, counsel for the prosecution presented her with the affidavit which she had made by which proceedings in bastardy had been instituted, and in answer to his question she stated that she had signed the affidavit. On re-examination by defendant's counsel, she was asked if the signing of the affidavit was voluntary on her part. The question was objected to as not a re-examination, and the objection sustained, and on appeal this was held to be error. Yeoman v. State, 31 N. W. Rep. 669. In Kendall v. City of Albia, 34 N. W. Rep. 833, the plaintiff testified, without objection, that his services were worth in his business $200 per month. On cross-examination he said, I can get more than that; I can get $2,500 for my time outside of my business. On re-direct examination he said he meant he could get that sum for superintending other people's business. Held, that the defendant could not object to this testimony, as it was merely explanatory of evidence introduced by himself. In Blumenthal v. Bloomingdale, 100 N. Y. 558, the question arose upon an action at law for breach of a contract in a lease. The court of last resort said: "The defendant, upon cross-examination of Elkin Blumenthal, a witness for the plaintiff, drew out of him the fact that on one occasion he sought to negotiate with defendant a sale of plaintiff's crockery business, which negotiation failed. The purpose of this evidence, or the inference which the defendant sought to draw from it, is not very apparent. It was new matter, not at all growing out of the direct examination. It was possible to infer from it that plaintiff's business was unsatisfactory, and so without profit as to make a sale desirable, and that independently of any interference by defendant, since nothing of the kind was alleged in the negotiation. Upon the re-direct examination of the witness, he was allowed to testify, under objection and exception, that plaintiff, when he requested him to attempt the negotiations, stated as a reason for his desire to sell, that defendants had obstructed him, and he could not compete with them. The alleged reason for the offer of sale actually given to the selected agent was a part of the res gesta of the particular transaction made by the defendants themselves the subject of inquiry. If they were entitled to part of it, plaintiff might prove the whole to prevent or rebut any adverse or damaging inferences. The answer too, as the general term suggests, beyond bringing out the true character and purpose of the attempted negotiation, tended to prove nothing more than what the plaintiff had already stated as a witness." In Bank v. Young, 36 Iowa, 44, a witness for the plaintiff said he saw the defendant sign the note in question. On cross-examination, he said the matter had once been talked over by the bank officers, aud the loan to Young had been refused. On re-examination he was asked to state the reasons for such assertion respecting the talk with the bank officers, and upon objection the question was overruled. On appeal this was held to be erroneous. In Rex v. George, 9 Car. & P. 193, on trial of A. for au attempt to discharge loaded arms at B., B. (with a view to discredit his evidence), was cross-examined as to whether he had not used violent language toward his father, which he admitted he had. Held, that on re-examination B. might be asked as to how his father had acted toward him before he used the language that he had been cross-examined about. In Railroad v. Doughty, 22 N. J. Law, 500, a witness was asked on cross-examination whether the plaintiff at any time had told him how his property was injured by the railroad, and was answered in the affirmative without more. On re-examination he was asked what the plaintiff said to him on that point, to which objection was made; but the question was allowed to be answered. The Supreme Court held that this was not error. The opinion of Abbott, C. J., in Queen's case, 2 Brod. & B. 284, seems to make quite plain the fair scope and limit of a re-examination. He shows that when a conversation is alluded to on crossexamination which is material to the issue, the re-examination may be extended to the whole of such conversation on that material point, but nothing beyond. He also says it is right "to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions; but I think he has no right to go further and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness." For further illustrations see Rex v. Beezley, 4 Car. & P. 220; Rex v. Simmonds, 1 id. 84; Rex v. Bodle, 6 id. 186. N. J. Ct. Chan., Jan. 26, 1888. Pullen v. Pullen. Opinion by Bird, V. C. LANDLORD AND TENANT DANGEROUS PREMISESLIABILITY OF LANDLORD.-The owner of a building is not liable for injuries caused by the fall of snow into the adjoining highway from the roof, where the whole building is let to a tenant, and it does not appear that the latter might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precaution have prevented the accident, there being no covenant on either side to repair, but the landlord reserving the right to enter the premises to repair the same, or to ascertain if they were properly used, etc. The only difference between this case and Leonard v. Storer, 115 Mass. 86, is that there the tenant had agreed to make all needful repairs, while in the case at bar there was no contract on either side, but the landlord reserved the right to enter the premises to repair the same, or to ascertain if the same were properly used, etc. This difference cannot affect the result, because the damage was not caused in either case by a want of repairs, but by the original character of the structure, and therefore the presence or absence of a covenant to repair has nothing to do with the question, and because the landlord's reservation of a right to enter, in the lease before us, did not include the control of the roof, which the landlord was held to have had in Kirby v. Market Ass'n, 14 Gray, 249; Shipley v. Fifty Associates, 101 Mass. 251, 254; 106 id. 194, 200. See Larue v. Hotel Co., 116 id. 67. See also Lowell v. Spaulding, 4 Cush. 377; Payne v. Rogers, 2 H. Bl. 350. It may be that the tenant had a right to put a guard upon the roof in Leonard v. Storer, but if so, his right was independent of his covenant to repair, and the tenant had the same right in the present case. Boston v. Worthington, 10 Gray, 496, 505. See Swords v. Edgar, 59 N. Y. 28, 36; Coupland v. Hardingham, 3 Camp. 398. On the other hand if the landlord had the right to put up a guard, in the present case, during the tenancy, it is not clear that he did not have it also in the other. In either case of course a guard might have been put up before the lease was made. The decision in Leonard v. Storer was on the ground that "it does not appear that [the tenant] might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precautions have prevented the accident." The same is true here. There is no doubt that a man sometimes may be liable in tort, notwithstanding the fact that the danger was attributable in part to the concurrent or subsequently intervening misconduct of a third person. Elmer v. Locke, 135 Mass. 575, 576; Lane v. Atlantic Works, 111 id. 136; Walker v. Caonin, 107 id. 555; Newman v. Zachary, Aleyn, 3; Scott v. Shepard, 2 W. Bl. 892; 3 Wils. 403; Dixon v. Bell, 5 Maule & S. 198; Clark v. Chambers, 3 Q. B. Div. 327; Winsmore v. Greenbank, Willes, 577 (see 21 Am. Law Rev. 765, 769); Lynch v. Knight, 9 H. L. Cas. 577, 590, 600; Lumley v. Gye, 2 El. & Bl. 216. See 1 Hale P. C. 428; Riding v. Smith, 1 Exch. Div. 91, 94. But the general teudency has been to look no further back than the last wrong-doer, especially when he has complete and intelligent control of the consequences of the earlier wrongful act. See for example Lane v. Atlantic Works, 111 Mass. 141; Hastings v. Stetson, 126 id. 329; Clarke v. Morgan, 38 L. T. Rep. (N. S.) 354; Carter v. Towne, 103 Mass. 507. In the case of landlords who have given up to the tenant control of the premises in the matter out of which the damage arises, this court has never gone further than to hold them liable when the use from which the damage or nuisance necessarily ensues was plainly contemplated by the lease. E. g., Jackman v. Arlington Mills, 137 Mass. 277; Harris v. James, 45 Law J. Q. B. 545. It is true, that if the nuisance exists when the premises are let, the landlord can be held, although the tenant may be liable also to the person injured, for the landlord is taken to have contemplated the premises remaining in the condition in which he let them. Dalay v. Savage, 145 Mass. 38, 41; Todd v. Flight, 9 C. B. (N. S.) 377; Swords v. Edgar, 59 N. Y. 28, 34; Joyce v. Martin (R. I.), Index A. A. 35; 10 Atl. 620 (July 16, 1887). But courts have differed when the nuisance existing at the time of the lease was due to want of repairs, and the tenant had covenanted to make repairs (Pretty v. Bickmore, L. R., 8 C. P. 401; Gwinnell v. Eamer, L. R., 10 C. P. 668; Swords v. Edgar, ubi supra), and the landlord will not be liable for the use of the premises in such a way as to do harm, merely because there was a manifest possibility of their being used in such a way. The liability will stop with the tenant whose intervening wrong is the immediate cause of the damMellen v. Morrill, 126 Mass. 545; Rich v. Basterfield, 4 C. B. 783; Gandy v. Jubber, 5 Best & S. 78, 90; 9 id. 15, 16; Nelson v. Brewery Co., 2 C. P. Div. 311; Edwards v. Railroad Co., 98 N. Y. 245. In such cases it cannot matter whether the wrong on the part of the tenant is an act which makes the premises a nuisance, or an omission which allows them to become so. It is as much his duty to act in the latter case as it is to abstain in the former. In either, as against the public, the landlord, unless he has assumed the duty himself by covenant, has a right to rely upon the tenant managing the premises in his occupation in such a way as to prevent their being a nuisance. Stewart v. Putnam, 127 Mass, 403, 406; Lowell v. Spaulding, 4 Cush. 277; Russell v. Shenton, 3 Q. B. Div. 449; 1 Chit. Pl. (7th ed.) 94. The defendant's house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment. It was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it. But so far as appears, the tenant could have done so by using reasonable care. If he could, it was his duty to do so, and the landlord was not liable, for the reasons which we have stated. Mass. Sup. Jud. Ct., Jan. 9, 1888. Clifford v. Atlantic Cotton Mills. Opinion by Holmes, J. age. MASTER AND SERVANT WHEN SERVANT ENGAGED IN MASTER'S EMPLOYMENT.-(1) Plaintiff was a wiper in defendant's roundhouse. In going to his work, he and others employed in the roundhouse were accustomed to use a certain path across the yards. While going along this path within the yard, on his way to the roundhouse to go to work, plaintiff was injured while crossing the track between some cars that had been left apart for that purpose. Held, that plaintiff was, at the time of the injury, in the employment of If it be not properly inferable from the evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a permissive privilege granted to the plaintiff, of which he availed himself, to facilitate his service and labor, and is equally connected with it and the relation of master and servant, and therefore furnishes no ground for maintaining this action." This expresses the exact principle of this case. The keeping open of this pathway between the cars was a permissive privilege (established by custom in this case) granted to the plaintiff, of which he availed himself, to facilitate his labor and service, and is connected with it and the relation of master and servant. In Seaver v. Railroad Co., 14 Gray, 466, a carpenter employed to repair the fences, bridges, etc., of the company, was carried to his work on the train and was injured by the negligence of the engineer or of those whose duty it was to inspect the axles of the cars. It was held that he was a servant of the company and a fellow-servant of the engineer and the others and could not recover. The case of Ryan v. Railroad Co., 23 Penn. St. 384, is closely in point. The plaintiff was a common laborer employed in digging and filling cars with gravel, etc. He lived about four miles distant from his principal work, and it was usual for him and his fellow-workmen to ride on a gravel train to and from their work, and while being so carried to his work he was injured by the carelessness of those in management of the train. It was held that he was a mere servant of the company with the privilege of riding, as a part of his business, in the gravel train, which was one of the instruments of his work; and that he sued in his true relation, not as a passenger but as a servant; and was injured by the carelessness of his fellow-servants and could not reCover. In Le Blanche v. Railway Co., L. R., 1 C. P. 289, the plaintiff was a laborer with others to assist in loading a pick-up train, and it was a part of their contract of service that they should be carried to and from their work. After his work was done for the day, he was being carried to the place of his residence, and on the way was injured by the negligence of the managers of the train; and it was held that he was still a servant and could not recover for the negligence of his fellow-servants; and the case of Gillshannon v. Railroad Corp., supra, is cited as authority by Field, queen's counsel. The case of Higgins v. Railroad Co., 36 Mo. 418, is an extreme case in favor of this princi defendant. As to what may be the law when an employee of a railway company is not actually employed, or at any intervals of actual labor, or going to or from his labor his own way, and independently of the company, or under other circumstances, is immaterial to this case. The authorities may be in great conflict upon that question; but we are not aware that they are in conflict upon the question presented by the facts of this case. Here we have a private pathway over the grounds of the company, granted and allowed to the plaintiff and other employees of the company who worked in the roundhouse, by usage, custom and consent for their ingress and egress to and from their work, kept open across the track of the road, and which had been worn and used by himself and others for a long time prior to the injury, and that in order to reach the roundhouse it was necessary for him to go upon said pathway and to cross the track of the company at that place. It was the means and only means of entrance and exit to and from their work furnished by the company, and the plaintiff and others had a right to its free and uninterrupted use as they always had; and it was because they were the employees of the company in the roundhouse that they had such right and privilege. It was an essential part and ingredient of the plaintiff's contract of employment and incidental to it, as much as any means and facilities for his labor in the roundhouse itself furnished by the company. The plaintiff therefore, while enjoying such privilege and facility, or while passing along that pathway, and between the opening of the cars, was an employee and servant of the company as much as while actually laboring for the company in the roundhouse, and as much within his contract of employment. On the other hand there was, by virtue of the same contract, a corresponding duty of the company to keep that passage-way open for the plaintiff, for he had a right to be there as an employee of the company working in the roundhouse. If the company violated that duty, to the plaintiff's injury, by its own act or primary negligence, its liability to respond in damages is absolute and unquestionable. Our present concern is, was he, when injured, an em. ployee of the company? The peculiar facts of this case which make him such, appear to involve precisely the same principle of that class of cases where the plaintiff was being carried on his way from and to his place of labor by the railroad company, by consent, custom or contract, and was injured by the negligence of other employees of the company. This carriage of the plain-ple. The plaintiff had been employed as a brakeman, tiff was the means, facility and advantage to which he was entitled by reason of his being an employee or servant, which entered into and became a part of his contract of employment or were incidental and necessary to it. In Gilman v. Railroad Corp., 10 Allen, 233, the plaintiff was a car repairer, and was being carried on the cars of the company to his home at night, a distance of about four miles, free of charge by the contract. He was injured on the way by the carelessness of a switchman of the company. It was held, not only that he was an employee of the company at the time but a co-employee of the switchman, and could not recover. In Gillshannon v. Railroad Corp., 10 Cush. 228, the plaintiff was a laborer repairing the road-bed, several miles from his home, and was being carried on a gravel train to his work free and by the mere consent of the company, and was injured on his way by the carelessness of those having charge of the train. Dewey, J., says, in the opinion: "If the plaintiff was, by the contract of service, to be carried to the place of his labor, then the injury was received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining an injury from the negligence of other servants. but had ceased work for a considerable time, but had not been paid off. He bailed a train and took his place with other employees, and on his way he was injured. It was held that he was still an employee and that his case did not come within the statute relating to the injury of passengers. In Railway Co. v. Salmon, 11 Kau. 83; in Russell v. Railroad Co., 17 N. Y. 134; in McQueen v. Railway Co., 30 Kan. 689, and in Vick v. Railroad Co., 95 N. Y. 267, the plaintiff was a laborer being carried by the company to or from his work, and was injured by the negligence of those in charge of the train; and it was held that they were fellow-servants with him, and that he could not recover. See also Ross v. Railroad Co., 5 Hun, 488. There are many other similar cases, but they need not be cited, for the principle is sufficiently established. It is questionable whether any case conflicting with these cases can be found. There are cases which seem to conflict with them, but they are those in which the facts show that the plaintiff was a passenger paying fare, or from whom fare could have been exacted. But if perchance there are such cases, we think them unreasonable, and are not disposed to follow them. But again it may be said that the plaintiff was still an summarized by Judge Cooper, who says: "In order to charge the master, the superior servant must so far stand in the place of the master as to be charged, in the particular matter, with the performance of a duty toward the inferior servant which under the law the master owes to such servant." Railroad v. Handman, 13 Lea, 423. To the same effect is the rule as stated by Judge McFarland, who says: "The plaintiff must employee because he was attempting to use the path-ligence of such superior. Railroad v. Bowler, 9 Heisk. way between the cars as the only customary and con- 866; Railroad v. Collins, 1 Pickle, 227. The true disvenient means of access to and exit from the round-tinction we think is drawn, and by it our case may be house which the company had provided, and was under obligation to keep open and safe for him and his fellow-workmen, when he was injured. In Brydon v. Stewart, 2 Macq. 30, the plaintiff was a miner, and had quit work, in mutiny; and yet the master was held bound to provide his safe exit from the mine as an employee or servant. We conclude therefore that the plaintiff, when injured, was an employee and servant of the company with all the rights and liabilities im-show that his injury resulted from the carelessness or plied by that relation. (2) But he was a co-employee with the traiumen and therefore cannot recover. Wis. Sup. Ct., Jan. 10, 1888. Ewald v. Chicago & N. W. Ry. Co. Opinion by Orton, J. want of skill of some one who in the particular matter stands in the place of the master." Railroad v. Wheless, 10 Lea, 748. This rule draws or rather recognizes a clear distinction between the mere personal negligence of a superior fellow-servant and his negligence in a matter in which he stands in the place of the master who under the law owed a duty in that matter to the servant. The cases of Fox v. Sanford and Railroad v. Handman furnish illustrations of the distinction that the mere personal negligence, as distinguished from official negligence of a superior, will not be imputed to the master. Applying the law as we have stated it, we can but regard the negligence of Ligar, the foreman, whereby Lahr was injured, as coming clearly within the doctrine of the case of Railroad v. Handman. The absence of sufficient proof that any duty rested upon Ligar to see to the means of descent used by his fellow-workmen, and the fact that Lahr did not notify Ligar of his purpose to descend, and that the proof clearly establishes that he was acting under no immediate order from Ligar in attempting to descend, makes the case one of mere personal negligence of Ligar, for which the master is not responsible. In other words, they were followservants. Tenn. Sup. Ct., Feb. 4, 1888. Louisville & N. Ry. Co. v. Lahr. Opinion by Lurton, J. NEGLIGENCE OF VICE-PRINCIPAL.-Plaintiff, a carpenter, working on a railroad trestle, intending to descend to a lower bent, asked the foreman of his gang, who was above him on the trestle, if a certain hanging rope was made fast. On answer that it was, plaintiff swung himself off, and the rope being loose, was thrown to the ground and injured. It appeared that plaintiff's descent was without orders of the foreman, and might have been made another way; that he did not tell the foreman of his intention to descend; and that no duty rested on the foreman to see to the means of descent. Held, that the foreman's negligence was merely personal and not as of a viceprincipal, and that plaintiff could not recover from the railroad company. The difficulty has been to determine who are fellow-servants within the meaning of the rule. Upon full consideration of the question, it has long been determined that employees engaged in a separate and distinct department were not fellow-servants. Railroad v. Carroll, 6 Heisk. 363. The rule, as thus qualified or limited, is too well established both upon reason and authority to be now departed from. It rests, not only upon the implied agreement to assume all the risks consequent upon the negligence of fellow-servants, but in the case of railway employees particularly it is supported by considerations of a just and true public policy. The safety of the travelling public is largely dependent upon the care and skill with which railway employees discharge their responsible and perilous duties. The fact that such fellow-servants must, as between themselves and the company, take upon themselves the results of the carelessness and negligence of a fellowservant, tends to quicken the zeal and arouse the activities of each employee against such negligence. The public weal demands that no guaranty which tends to guard the public against the negligence of guiding the powerful appliances of the modern railway shall be broken down, and we can but guard the rule, as quali-ing a sidewalk must be controlled by the necessities fied by the courts of this State, as well calculated to stimulate each servant to his utmost exertion to prevent negligence in others. While this general rule is thus well settled, it is equally well established that the mere fact that the injury was the result of the negligence of one superior in rank to the injured servant does not take the case out of the rule. Fox v. San ford, 4 Sneed, 36; Railroad v. Elliott, 1 Cold. 611; Railroad v. Wheless, 10 Lea, 741; Railroad v. Rush, 15 id. 151; Railway v. Handman, 13 id. 423. The last case referred to ably and clearly states the rule and reviews the authorities. When however the inferior is injured while executing a lawful command of his superior, or where the superior represents and stands for the master, and has a right to control the movements of the train and of all the employees, in all such cases the rule respondeat superior applies with reference to any injury resulting from the official neg MUNICIPAL CORPORATION-DUTY TO LIGHT STREET-DEFECTIVE STREETS-STEPS FROM SIDEWALK TO STREET CROSSING.-(1)A city is under no obligation to light its streets, and its mere neglect to do so is not a ground of liability, unless the charter expressly imposes that duty. But inasmuch as a street partially obstructed or out of repair may be reasonably safe if lighted, but dangerous if unlighted, the fact that it was or was not lighted may be material upon the question of negligence. (2) The existence of a step, properly constructed, from a sidewalk to a street crossing, is not a defect, so as to render a city liable for accidents to pedestrians. In any city, and especially in one growing rapidly, where the streets and sidewalks cannot all be put at once on a uniform grade, it may and often must happen that the manner of construct of the situation. A step or steps from the walk to the street crossing may, on the whole, be the most suitable plan of which the case will admit. Pedestrians must expect and be on the lookout for steps when they reach a street crossing. This case is not in this respect at all like that of Tabor v. City of St. Paul, 30 N. W. Rep. 765. Minn. Sup. Ct., Jan. 27, 1888. Miller v. City of St. Paul. Opinion by Mitchell, J. NEGOTIABLE INSTRUMENTS DRAFT- ACCEPTANCE EXCEPTED. "-The drawee of a draft wrote across the face thereof the words, "Excepted, September 18th, L. B. Maben." Held, a valid acceptance. In a number of cases it has been held that the word excepted," thus written, is an acceptance. Vanstrum v. Liljengren, 33 N. W. Rep. 555; Miller v. Butler, Crauch C. C. 470; 1 Dan. Neg. Inst., § 497. The evident purpose of Maben in writing the word "ex cepted" was to accept the draft; and parol proof of this purpose, not being inconsistent with the writing, was proper, and should have been received. Had Maben intended to refuse acceptance, it was unnecessary to put such refusal in writing, and no doubt he was well aware of this fact. The law is not a system of quirks and quibbles upon which courts may seize to defeat rights, but a system of rules and principles in which the rights of parties are protected and enforced, and it is the duty of a court to disregard mere pretexts and decide a case if possible upon the merits. Neb. Sup. Ct., Jan. 5, 1888. Cortelyou v. Maben. Opinion by Maxwell, J. Schenectady; William F. Walker, Rutland, Vt.; Edward U. Wade, Albany. NEW BOOKS AND NEW EDITIONS. AMERICAN DIGEST. The following is a list of the graduates: James W. Atkinson, Waterford; Edwin C. Angle, Schenectady: Elhanan W. Bucklin, Jr., Jamestown; Albert Cole, Farmer Village; Thomas F. Connealy, Marlboro, Mass. Michael F. Culbert, Hornellsville; Edward W. Champion, Goshen; Marvin Hill Dana, New Haven, Vt.; Henry A. Edwards, Albany; Frank Howard Edmunds, East Corinth, Me.; Erastus U. Ely, Rochester; J. Sheldon Frost, Albany; George Lovell Flanders, Albany; John J. Halligan, Troy: Allen H. Jackson, Schenectady; James G. Kirkpatrick, Canastota; A. H. Martin, Denver, Col.; Hugh T. Mathers, Sidney, Ohio; Hugh P. O'Flaherty, Albany; Berkeley Pearce, Providence, R. I.; JackREWARD-CAPTURE OF ONE PRISONER-RECOVERY son Silbaugh, Viroqua, Wis.; J. Orin Smith, Norway PRO TANTO.-An offer of reward made for the cap- Lake, Me.; Shelton L. Smith, Lexington, Ill.; Mature of two persons is not so acted upon by the cap-thias J. Severence, Jr., Albany; Alonzo W. Wheeler, ture of one as to entitle the captor to recover pro tanto upon the offer It is urged that the proclamation offering the reward for the arrest of the two persons, if acted upon in the arrest of one, would constitute a contract that might be apportioned, and the plaintiffs under it entitled to one-half of the reward offered for the arrest of both on the arrest of one of the persons for whom the reward was offered, and so, independent of any declaration or agreement to that effect, claimed to have been made after the arrest. The promise is to pay so much money for the arrest of the two persons. This is an entire proposition, which when acted upon by any person, would constitute a contract single in its nature, and not subject to apportionment under rules recognized wherever the common law is in force. No facts are stated, such as that the plaintiffs were prevented from arresting both the persons for whom a reward was offered, by the fault or fraud of the defendant, from which the law would raise a new contract, and give a remedy on a quantum meruit. It would be but the ordinary case of a partial performance of an entire contract if it appeared that the act done by the plaintiffs was performed with a knowledge that the reward had been offered, which does not appear to have been true in this case. It does not become necessary to determine whether one, who without knowledge that a reward has been offered for a named person, arrests such person, is entitled to the reward. As to this there is some conflict of authority. Nor does it become necessary to determine whether the fact that the plaintiffs were peace officers would defeat their right to recover the reward if they were otherwise shown to be entitled to it. Tex. Sup. Ct., Nov. 11, 1887. Blain v. Pacific Exp. Co. Opiniou by Stayton, J. This is the first volume of the Annual Digest published by the West Company of St. Paul. It comprises all the decisions of all courts in this country during 1887, and is a consolidation of the monthly digests published by the same company. It is a closely printed volume of above 1400 pages. The table of cases reported has references to the official volume and page in cases officially reported. The book is furnished with marginal letters for convenience in turning over the pages. We have several times commended the monthly issues, and the present consolidation seems no less excellent. GENERAL DIGEST OF THE UNITED STATES. This is the first of two volumes from the Lawyers' Co-operative Company of Rochester, embracing all cases thus far included in their series of weekly reporters and Inter-State Commerce Reports, and all others officially reported in 1887. This volume comes down to H., and has 900 pages and a full table of cases digested. The ground covered is not exactly the same as that of the West Co.'s digest. The work by Mr. Guilbert seems very well done. ALBANY LAW SCHOOL COMMENCEMENT. PHE exercises took place at the Leland Opera House THE WHARTON ON EVIDENCE. This is a third edition, in two volumes, published by Kay and Brother of Philadelphia. One hundred and forty pages of text have been added, and forty-one hundred additional cases have been cited. It is superfluous to speak of the merits of the work, for it has become a standard authority like all the learned author's other productions. The new issue is very timely. The volumes are very handsomely printed. TAYLOR ON CORPORATIONS. on Thursday evening, May 24. The Hou. W. L. Learned presided. Prayer was made by the Rev. J. Wilbur Chapman. The following orations were delivered by members of the class: "Foreign Immigration," Frank Howard Edmunds, East Corinth, Me. Music by the orchestra. Oration, "International Law," Hugh T. Mathers, Sidney, Ohio. Oration, "Trust Monopolies," William F. Walker, Rutland, Vt., followed by singing by the law school quartette, composed of James G. Kirkpatrick, first tenor; Frank H. Edmunds, second tenor; Erastus U. Ely, first bass; Marvin H. Dana, second bass. The valedictory was then delivered by Erastus U. Ely of Rochester, sub-practitioner cannot have too many works on this en This is a second edition of Mr. Henry O. Taylor's work, published only four years ago, and is issued by Kay & Brother of Philadelphia. It is brought down to date. We can only reiterate the commendation which we thought the first edition deserved. The grossing and all-important topic, and we warmly commend Mr. Taylor's scholarly and practical treatise. |