To recover damages for this injury, suit was brought in the court of common pleas and verdict and judgment rendered in plaintiff's favor; which judgment was subsequently affirmed in the district court.

It is argued on behalf of plaintiff in this court that, upon this state of facts no recovery could be had against the city for the reason that the negligent act which caused the injury was not in any sense the act of the city or of its agents: It is insisted that King, acting without orders from the trustees, upon his own responsibility under the direction of certain members of the council, in their individual capacity, was simply a wrong-doer, and that neither he nor those under whom he acted could render the city responsible for their tortious doings.

We do not think this position tenable. Conceding, for the sake of argument, all that is claimed by plaintiff in error upon this point, it is manifest that the wrongful act which caused the injury was not the digging the ditch, but leaving it unprotected. It is clearly the duty of a municipal corporation, having the control of its streets to keep them in a condition safe for the passage of vehicles and foot passengers using ordinary care, at all times during tl night as well as the day. This responsibility cannot be avoided by showing that the danger was caused, not by the acts of the city's authorized agents, but by mere trespassers or wrong-doers.

We concede where the ground of action is the neglect of the corporation to put the streets in repair, or to remove obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, notice of the condition of street, or what is equivalent to notice, is necessary to give to the person injured a right of action against the corporation. (See 2 Dillon § 789). But in the case before us the work was done by a city officer whose duty, as such, it was to superintend the digging, of all ditches for water-pipe, and who did not cease to be such public officer from the mere fact, (if fact it be), that in this instance he was acting without authority. The ditch having been dug, it then immediately became his duty to see that proper precautions against danger should be taken. More than this, the work was done with the full knowledge, if not with the consent of the trustees, who saw the work progressing; and under the direct order and supervision of members of council. What other or more complete notice could be given to the city it is dfficult to determine.

However this may be, we are by no means prepared to say that the work was performed without authority.

The council had provided by ordinance, and the trustees by resolution, that this very work. should be done, and this action had not been reconsidered or rescinded. The trustees simply refused to carry it out. They sought to shield themselves from responsibility by doing nothing. They did not, at any time, seek to prevent the work, although they had full knowledge of its

progress under the charge and superintendence of their own servant and officer.

We do not think it fair to say, under these circumstances, that the act of King was wholly unauthorized.

Numerous exceptions were taken at the trial to the action of the court in refusing special charges and to the charges given which we do not consider it necessary to review in detail. They are all covered by what we have already said; and whatever error may exist in any of them was to the prejudice of the plaintiff below and not of the defendant.

Judgment affirmed.

[This case will appear in 38 0. S.]

CHARGE TO JURY.

SUPREME COURT OF OHIO.

LLOYD V. MOORE.

April 25, 1882.

Where the judge, at defendant's request, gave to the jury a certain special charge, in addition to his general charg, which said special charge was erroneous, and aft rwards having been requested by the jury to repeat his charge to them, repeated the general charge, but declined to. repeat the special charge, there was no error in refusing to repeat the erroneous instruction.

Error to the District Court of Scioto County. Defendants in error brought suit in the Court. of Common Pleas of Scioto County against plaintiff in error upon four promissory notes executed by him payable to the order of Hess & Burke, and by them endorsed and delivered to defendants in error. Lloyd claimed that there had been, as between himself and the indorsees, a total failure of consideration, and that although the notes had been transferred before due they were not taken in the usual course of trade nor was any value given for them by plaintiffs.

The bill of exceptions does not contain all the evidence offered in the court below, and we are not advised what the facts of the transaction may have been. There was, however, evidence, tending to show that Hess & Burke were largely indebted to Moore & Welch for purchase money for the sale of tracts of land which had been conveyed to them and which indebtedness they had secured by a deposit of certain collateral securities.

There was also evidence tending to prove that on the 18th of November, 1873, Hess had in his possession notes on parties in Sandusky, Ohio, amounting on their face to $23,735.50, which he proposed to get discounted and apply to the payment of what he owed plaintiffs on the land purchased from them, if they (the plaintiffs) would stand the discount. But plaintiffs declined, and proposed to take the notes as money, to be credited on what Hess owed, if he would submit to the discount on the notes, leaving the net amount to be credited for the notes $22,063.80. That this was agreed to by Hess, and the Sandusky notes were accordingly endorsed and trans

ferred to plaintiffs, and the $29,000 in collaterals, except about two or three thousand dollars in the notes, were returned to Hess.

Also evidence tending to prove that in December, 1873, at the request of plaintiffs, Hess conveyed to them 640 acres of land in Kansas; also 160 in Indiana, and his residence in Columbus, the latter subject to a mortgage for $6,000. These deeds were all absolute on their face, but were intended as mortgages to secure plaintiffs

for what Hess owed them for the land sold.

There was evidence also in the form of letters from plaintiffs and the depositions of Hess, offered in behalf of defendant, tending to prove that the plaintiffs refused to give Hess credit for the amount of the Sandusky notes, and has never in fact done so, and that subsequently, in March, 1874, it was agreed between plaintiffs and Hess that plaintiffs could hold said Sandusky notes, or those that they still had, as collateral only.

Also evidence in behalf of plaintiffs tending to prove that in February, 1874, Hess desired to get back a part of the Sandusky notes, but plaintiffs refused to return any part of them unless Hess would give other notes in lieu thereof. Thereupon, Hess, on the 26th of February, 1874, transferred to plaintiffs the Lloyd notes now sued on, and some notes against one Thos. T. Yeager, the whole amounting to about $2,400; and the plaintiffs returned to Hess about $5,000 of the Sandusky notes for the same, Hess agreeing to transfer other notes to make up the amount of the Sandusky notes.

The court charged the jury correctly upon the law of the case and in addition to the general charge gave to them a special charge asked by plaintiff in error. Some time after the jury had retired they came into court and requested the judge to repeat his charge to them. The court thereupon read over to the jury the instructions herein before stated, as they were given originally, but omitting the said special charge given at the request of the defendant. And, at the request of one of the jury, read a second time the said instruction in respect to the sufficiency of proof as to the knowledge of plaintiffs to defeat a recovery. The defendant, Lloyd, being present after the court had concluded reading said instructions, inquired of the court if it was not proper to read also the said instruction given at the request of his attorney, and requested that the same should be read; to which the court replied that it was not necessary to read it again, and the same was not reud.

The special charge was as follows:

"If the jury shall find from the evidence that Hess voluntarily delivered to plaintiffs certain notes, to be credited on a debt not yet due, but the same were not so credited, and plaintiffs refused to so credit them, and subsequently said notes so delivered were exchanged for the notes in controversy, the plaintiffs cannot be said to be the holders of the notes in suit for value."

The jury found for the plaintiffs and judgment was entered upon the verdict. This judgment was subsequently affirmed in the district court.

It is now claimed that there was such an abuse of discretion on the part of the judge as would warrant a re-trial of the case.

LONGWORTH,, J.

Without doubt it was the duty of the judge at charge to the jury, to omit no material part of it, the trial, when he had undertaken to repeat his and it was defendant's right to insist that the special charge, which he claimed to be in his favor, should, if correct, be read to the jury together with the general charge; but whether or not this refusal was prejudicial to defendant in such manner as to warrant a new trial, we are relieved from the necessity of considering, being, as we are, unanimously of opinion that the special charge was not law.

There was evidence before the jury tending to show that when the notes sued on were transferred to plaintiffs to be credited upon their claim, they parted with valuable securities in consideration of the transfer. If this were true, defendant was not at liberty to rescind the contract, since he was not able to place his indorsees in statu quo. Under such a state of facts his right, and only right was to insist that the amount of the notes should be credited upon his indebtedness. If the endorsement was made simply as security for an antecedent debt the rule in Roxborough v. Merrick, 6 O. S., 448 would apply, but the evidence not being before us, we are in the dark as to the true state of the facts. special charge the jury were instructed that the By this plaintiffs were not the holders for value if they had broken their contract by refusing to credit the amount of the notes upon their claim.

The error made by the court was in giving this instruction in the first instance, and this was prejudicial to the plaintiff alone. There was no error in refusing to repeat it. Judgment affirmed.

[This case will appear in 38 O. S.] PRACTICE-DEATH OF PARTY DURING PENDENCY OF PROCEEDINGS IN ERROR.

SUPREME COURT OF OHIO.

JOHN D. WILLIAMS

V.

CHARLOTTE ENGLEBRECHT ET AL.

April 18, 1882.

A judgment of reversal is effective notwithstanding the death of the plaintiff in error during the pendency of procedings in error. Such judgment takes effect, by relation, as of the date of the commencement of the proceeding in error; and it is competent for the court, to which the cause is remanded for a new trial, to order revivor of the action in the name of the proper representative of the deceased party.

Error to the District Court of Scioto County. Motion to re-instate, e c.

At the last term of this court, a final judgment was rendered in this case, reversing the judgment of the district court and remanding the cause for a new trial.

It is now made to appear that John D. Williams, plaintiff in error, died during the pendency of the proceedings in error. The object of the present motion is to re-instate the case on the docket, set aside the judgment of reversal, revive the action in the names of the representatives of the deceased plaintiff in error, in order that the judgment of reversal may be entered in the name of such representatives.

J. W. Bannon and W. A. Hutchins for the motion.

F. C. Searl and O. F. Moore contra.

BY THE COURT.

Notwithstanding the death of the plaintiff in error after the assignment of errors and before final judgment, the judgment of reversal is valid and effective.

By relation, the judgment of reversal takes effect as of the date of the commencement of the proceedings in error.

True, the original action must be revived before a new trial can be had in the court below; but such revivor may be had in the court to which the cause has been remanded for a new trial. See Black v. Hill, 29 Ohio St. 86, and Foresman v. Haag, 37 Ohio St. 143.

Motion overruled.

[This case will appear in 38 O. S.]

ADVANCEMENT-GIFTS.

COURT OF APPEALS OF MARYLAND.

HARLEY V. HARLEY.

1. An advancement is the giving by anticipation of the whole or a part of what it is supposed the child or person advanced would be entitled to receive on the death of the party making the advancement. It is a pure and irrevocable gift.

2. Loose declarations of a parent that he intended an existing debt should be an advancement, not evidenced by writing, nor made to the child, nor assented to by him, nor accompanied by any act, are not sufficient to destroy the debt and to change it by way of gift into an advancement.

Upon a distribution of assets among the heirs at law of D. J. Harley, deceased, questions arose as to whether one of the sons (George) had been advanced by the intestate, and whether such advancement should not be brought into hotchpot with the fund. The son, said George, appealed.

ALVEY, J., in delivering the opinion of the court, said: An advancement in legal contemplation is simply the giving by anticipation the whole or a part of what it is supposed the child or party advanced would be entitled to receive on the death of the party making the advancement. It does not involve the elements of legal obligation or future liability on the part of the party advanced, but it is a pure and irrevocable gift, and must result from a complete act of the Intestate in his lifetime, by which he divests himself of all property in the subject, though in some cases and under some circumstances it may not take effect in possession until after the intestate's death. Clark v. Wilson, 27 M., 700;

Edward v. Freeman, 1 P, Wms., 440, 446: 2 Williams on Ex., §§ 1289, 1261, 1262. Here the only proof relied upon to establish the fact of advancement are certain declarations of the intes tate made to certain members of his family as to his intention or purpose to treat the debts due him from the son as advancements with reference to the general division of his estate. These declarations, giving to them the strongest construction that they will reasonably bear, are by no means precise and definite as to any complete consummate act of the intestate whereby he had divested himself of all right of property in the notes, and thereby excluded himself from the exercise of any further dominion and control over the notes or the debts due from the son; and without such divestiture and surrender of dominion and control of the debts, they could not be converted into advancements to the debtor. It is not pretended that any of the declarations of the deceased offered in evidence in regard to his purpose to treat the existing debts of the son as advancements were assented to by the son or even brought to his knowledge during the life time of the father. These declarations of the father were elicited, it would seem, in conversations had with his other children, and appear to have been made more to appease their complaints and apprehensions in regard to the division of his estate than anything else. What was said by the Supreme Court of Pennsylvania in deciding the case of Haverstoch v. Sarback, 1 W. & S., 290-a case not unlike the present, in the character of the proof that was offered-applies here with entire fitness. That loose declarations of a parent that he intended an existing debt should be an advancement, not substantiated by writ ing, nor made to the child, nor assented to by him, nor accompanied by any act, are not sufficient to destroy a debt secured by a legal instrument in full force and to change it by way of gift into an advancement, whether offered by the son to defeat the recovery of the debt, or by the representation of the parent against the son to defeat his claim to a distributive share. See, also, Levering v. Rittenhouse, 4 Whart., 140; Yundt's Appeal, 13 Penn. St., 575. We shall, therefore reverse the order appealed from and remand the cause for further proceedings. Reversed and remanded.

VIRCINIA.

SUPREME COURT OF APPEALS. JANUARY T., 1882.

BACHELDER & COLLINS v. RICHARDSON &c.

A litigant's pro ratu distributive share in a fund in court, under a decree, fixes the jurisdiction on appeal; although the original action was for a greater sum than that limiting the appeal.

This was an appeal from a decree pronounced by the Corporation Court of the city of Norfolk, in a suit in chancery, in which B. M. Bachelder and Win. H. Collins, merchants and partners, trading under the style of Bachelder & Collins, were plaintiffs and Francis Richardson and Henry C. Percy, trustee, were defendants. The Corporation Court decided against the plaintiffs, and they appealed to this court. The facts on which the point decided is based are suficiently stated in the opinion of the court.

STAPLES, J.

The appellants were the holders of two negotiable notes, amounting to $520.16, and the appellee was the holder of three negotiable notes, amounting to $428. These notes were executed by John W. Munden, and were secured by a deed of trust upon a house and lot in Norfolk county. A sale of the property was made by the trustee; the net proceeds of which amounted to $556.20. The fund not being sufficient for the payment of all the notes, and a controversy having risen between the parties, with respect to its distribution, the appellants filed their bill in the Corporation Court of Norfolk, claiming priority of payment upon certain grounds set forth by them, but t necessary to be stated here. The appellee did not deny the right of the appellants to partícipate in the fund. But he insisted upon a pro rata application to the notes in question. The corporation Court so decided, and at its December term of 1878, entered a decree, allowing the appellants the sum of $286.70, and to the appellees the sum of $228; the two sus being the aggregate of the net proceeds of the sale. From this statement, it will be perceived that the only matter in controversy here, and in the court below, is the sum of $228 allowed the appellee by the decree of the court. The appellants' right to the $286.70 has not been drawn in question. The first matter, therefore, for our consideration is with respect to the jurisdiction of this court to hear the case.

In a number of cases this court, following the decision of the Supreme Court of the United States, has held that where the plaintiff, in his bill or declaration, claims money or property of greater amount or value than $500, but by the ruling of the court obtains a decree or judgment for less, he is entitled to his appeal or writ of error; because, as to him, the matter in controversy is the sum or amount claimed, and he may, upon a reversal or a new trial, obtain a decree or judgment for the whole amount so claimed. Gage v. Crockett, 27 Gratt., 735; Harman v. City of Lynchburg, 33 Gratt., 37; Campbell v. Smith, 32 Gratt., 288.

Upon examining these cases, it will be found they do not lay down the rule as universal, but as subject to exceptions and modifications, which must be applied from time to time as new cases arise.

This has been the course pursued by the Supreme Court of the United States in dealing with similar questions. Thus it was early laid down by that court, that its jurisdiction attached where the appeal or writ of error is applied for by the plaintiff if the damages laid in the declaration exceed the sum of $2,000, although the recovery might be for a less sum. Cork v. Woodruff, 5. Cranch 13; Wise v. Columbia Turnpike Company, 7 Cranch; Gorden v. Ogden, 3 Peters 33; Smith v. Henry, Ibid. 469; Wallace v. United States, 4 Wallace 164.

It was, however, afterwards held that in determining the question of jurisdiction, the debt claimed and the amount stated in the declaration must be looked to and not merely the damages claimed in the prayer for judgment at its conclusion. Lee v. Watson, 1 Wallace 564. See also Schader v. Hartford, 3 Otto 241. And in Gray v. Blanchall, 7 Otto 564, the court still further modifying the application of the rule, said, “If the actual amount in dispute did not otherwise appear, they would look to the whole record, for the purpose of determining the jurisdiction. Ordinarily, this would be found in the pleadings. But the court would not necessarily confine itself to them. If, taking the whole record together, it appears there is no jurisdiction, the case must be dismíssed. And in Tinstman v. National Bank, 10 Otto, 6, Chief Justice Waite said: "We find, on looking into the record, that the case was heard on an agreed statement of facts, in the nature of a special verdict, in which it appeared that the plaintiff claimed of the defendant $8,233.79. The defendant admitted that he owed of this amount $5,099.59, for which the plaintiff was entitled to a judgment. The only controversy was as to the liability of the appellant for the difference between what he admitted to be due and what the plaintiff claimed. This, then, is the amount actually in dispute, and as it is less than $2,000, we have no jurisdiction."

These authorities seem to be decisive of the present case, for, as already stated, the only matter in dispute was the sum of $286, although the plaintiff claimed the entire fund in his bill. That this modification of the rule is correct, cannot be for a moment questioned. For otherwise, if the plaintiff claimed a debt of $500 in his bill or declaration and received $495, with the consent of

the defendant, the plaintiff may bring his case here to reverse a judgment, involving the sum of $5.00. Such a case is not likely to occur, but it seems to illustrate the point involved. We are, therefore, of opinion the appeal must be dismissed as improvidently allowed. Appeal dismissed.

The line which the judges propose to take with regard to the defence of prisoners is gradually developing itself. In the case of Regina v. Marwen, at Chelmsford, in which the prisoner was not defended by counsel, but made statements of his own knowledge, Lord Justice Cotton carefully told the jury that they must "not regard these statements as evidence, but only as suggestions of a possible account of the matter." In Regina v. Jones, at Worcester, Mr Justice Lopez stated that counsel could not be allowed to give the prisoner's version except as an hypothesis. So far, we have a logical application of the present rules of evidence. But in Regina v. Gerrish, at Devizes, the Chief Justice allowed the prisoner to make a statement after his counsel had been heard. It is difficult to base this proceeding on any existing rule of evidence or practice, but the judges apparently allow it in to banish henceforth from the courts the favorite topic of defending counsel that his client's mouth is shut. We are as yet in the dark as to the conditions on which the defendant is allowed to speak. If it is only after his counsel, the privilege is not of much value; and there seems no reason why the defendant should not be allowed to have his say first, his counsel still being forbidden to treat his statements as evidence. The existing state of affairs is not embarrassing to defending counsel. They know that the judges have come to certain decisions, but they half know what those decisions are.-Law Times.

SUPREME COURT RECORD.

[New cases filed since last report, up to May 2, 1882.]

No. 1132. Byron W. Rees v. F. C. Sessions et al. Error to the District Court of Franklin County. Charles E. Burr and Converse, Booth & Keating for plaintiff; G. G. Collins and W. E. Guerin for defendants.

1133. Peter Hecker et al. v. City of Cleveland et al. Error to the District Court of Cuyahoga County. Griswold & Starr for plaintiffs; Kain, Sherwood & Bunts for defendants.

1134. Edward P. King, Ex'r &c. v. Lilla G. Horr. Error to the District Court of Crawford County. Finlay & Eaton for plaintiff; Cahill Bros. for defendant.

SUPREME COURT ASSIGNMENT.

FOR ORAL ARGUMENT.

May 4th-No. 89. Texas Building Association, No. 2, of Cincinnati v. Aurora Fire and Marine Insurance Co. No. 93. Maratta et al. v. Coffin.

May 5th-No. 1137. Robert C. Lindsay v. The State of Ohio.

May 11th-No. 1067. Wm. McHugh v. The State of Ohio.

May 24th-No. 1117. Charles Stoddard v. The State of Ohio. No. 1118. Jacob Ridenour v The State of Ohio. May 25th-No. 111. Buudy v. Ophir Iron Co. No. 112. Simpson et .v. Greenfield Building and Savings Association

May 26th-No. 114. Coffin v. The Greenlees and Ran

som Co.

This honorable garment we are informed is to descend upon the shoulders of Hon. E. J. West of Wilmington, Ohio. We are not au fait in matters political, but we do know that Mr. West is serving his fourth term as Prosecuting Attorney of Clinton County; that he is a lawyer of undoubted ability and integrity, and is extremely popular in the southern counties of the State. We also know that he has achieved various great successes as a prosecutor, among which was the abatement of various slaughter-house nuisances in his county, which became a stench in the nostrils of all decent citizens. For his honesty and fearlessness.in this matter alone, Mr. West deserves a high office, for it proves him to be neither a coward nor corruptible..

THE SMITH SUNDAY LAW.

The success of this christian scheme has not been phenomenal in the Capital City.

The proprietors of a beer garden announced last week that they would sell beer in spite of the law or the police, on Sunday, and they did. The law closed up all other saloons and gardens and drove the thirsty multitude to the open doors and foaming mugs of the defiant Germans who profaned the Sabbath by riotous revellings, and slandered the legal profession by claiming to be acting in obedience to the "advice" of a "lawyer." He would be a pretty lawyer who would give such counsel even upon grounds of common christian decency; or who would give such counsel unless he was sure of his ability to control the executive branch of public authority; for he must know that the sale of each glass of beer or whiskey is a distinct violation of the law, and that any officer who properly discharges his duty could ruin the aforesaid beer vendors for their one Sunday's proceedings as above. How long will the Capital City allow this insult to go unpunished?

COLUMBUS, OHIO, May 7th, 1882. EDITORS OHIO LAW JOURNAL.

Gentlemen: In reading your editorial on "Malpractice" in the LAW JOURNAL of this date, I was surprised at the text which you selected as the basis for your note of warning to the doctors.

You cited the case of Haslet v. Byles which you say was recently decided by the Supreme Court of Pennsylvania. It may be that the same case and the same question was before the Supreme Court of that State before March 2d, 1882, or has been since that time, although the latter is hardly probable. On that date (see The Central Law Monthly for April, 1882, Vol. III, No. 4, p. 112), the case of Byles v. Hazlett, an action for damages for medical malpractice in a case where Hazlett had suffered a severe fracture of the leg, was decided in the Supreme Court of that State. In the charge to the jury the court below said: "The plaintiff, by his manner on the stand and his misfortune, has no doubt made upon mine. He is an intelligent man, and he inroads upon your sympathies-he certainly has appeared to be a candid witness upon the stand, so far as the court could observe." Certainly this charge instead of being condemned, would be highly approved by the writer of the editorial on "Malpractice." It is just what he hopes for and commends the Supreme Court for enunciating as the law governing such cases. But the Supreme Court say, and in my judgment rightfully, in speaking of this charge, "that this expression of sympathy by the court was error," and for this error, and for failure to refer in the charge, to important evidence in the case, the judgment for $1,100 in favor of Hazlett was reversed and a new trial was awarded. It does not seem probable to me that there could have been two cases between parties having the same names, and involving the same questions recently decided by the same court so directly against each other. So if the case is correctly reported in the Central Law Monthly, you will have to transfer your commendations from the Supreme Court to the lower court, and your criticisms from the lower court to the Supreme Court, and consign the State of Pennsylvania to the ranks

of those States which still adhere to the old fashioned doctrine of requiring juries to bring in their verdicts in accordance with the law and the evidence, and not in accordance with their sympathies or those of the court.

Yours Respectfully,

GILBERT H. STEWART.

There is evidently a difference between the report we have of the case referred to and the report as cited by Mr. Stewart. We apprehend the difference to be that his report is but a partial one, and that the court below went further than the quoted words and cautioned the jury against heeding the sympathy aroused by the pitiful condition of the plaintiff, notwithstanding the fact that that condition was directly brought about by the ignorance of the so-called surgeon. Be that as it may, however, the fact remains that the time is drifting by, wherein Dr. Bungle can relieve Dr. Blunder of the evil results of his mistakes by simply swearing that