the liability incurred by her negligence. Verdict and judgment for plaintiff. The defendant took this writ.

GORDON, J.

The case turns mainly on the fourth point. The place where the accident happened was not in the open country but in a small village. At a point one hundred and six feet from the public road crossing there was an old and well used foot-path leading over the railroad, and while attempting to cross by this path the plaintiff was injured.

The court below thought that a person using this path to pass over the tracks could not be regarded as a trespasser. We can discover nothing wrong in this conclusion. If this was a common and well known foot-path, used by the public for many years, it must have been well known to the employees and officers of this company, and if, without let or hindrance, the use of it was permitted to persons desiring to cross and recross the roadway, we cannot see how one thus using it could be treated as a trespasser. Certainly if a private person had so permitted his land to be used an action of trespass by him against one passing over it without previous notice of prohibition would meet with but little favor. But we cannot in this respect clothe corporations with powers superior to those of natural persons. Indeed, if we regard Penr.. R. R. v. Lewis, 29 P. F. S. 33, as authority, even a trespasser may have. some rights which a railroad company is bound to respect, a fortiori, as to a person who is on the roadway by permission. To hold otherwise would be but a poor comment upon our civilization and upon the wisdom of this court.

As the negligence of the employees having charge of the cars by which the injury was done there can be no doubt. A more perfect trap for destruction could scarcely have been devised. The train designed for the flying switch is cut from the engine some three quarters of a mile from and out of sight of the crossing; the locomotive is run forward and stationed directly across the foot-path; the train comes down at a rapid rate, and when within one hundred and fifty-nine feet of the place where the child stood, by some sleight of hand unknown to persons not skilled in the management of railroads, and without warning of any kind, it is suddenly turned on to the switch. When, in addition, we understand that the hands on and about this train paid no attention whatever to the track upon which it was running, and that the engineer actually saw the child in the act of approaching and did nothing to warn her, we cannot understand how any one can have the face to say that there was no negligence on the part of those having charge of the train, or, indeed, that they were not guilty of very gross negli

nence.

As to the plaintiff's contributory negligence, we can find no evidence of it; certainly not of that conclusive kind which would require the court to take the question from the jury.

It is true, a witness, an engineer, says the girl remained upon the siding two or three minutes before she was struck; but in events of this kind, time is at best but a mere matter of guess-work. Be this as it may, it is no serious reflection upon the discretion of a child of her age, that she waited and watched until the locomotive had stopped, and until, so far as she could see, the track was entirely clear, even though standing upon the siding. To an ordinary observer not aware that the flying switch movement was about to be executed, her position was one of no danger. "Even had she seen the train moving upon the main track how could she know that it would not continue on that track?" How could this child tell that by a single motion of a lever the cars would be upon her within a space of time measured by some ten or fifteen seconds. This would be too much to ask of a grown person, much more of one of such tender years.

Judgment affirmed.

INJURY FROM DEFECTIVE SIDEWALK— DAMAGES.

COURT OF APPEALS OF KENTUCKY.

CITY OF LEXINGTON v. AUGER, JR.

June 10, 1882.

For injuries caused by falling into a hole in a sidewalk in the city of Lexington, of which hole, members of the city council had notice, the plaintiff recovered a judgment against the city for the sum of $500. That judg ment is affirmed.

The quantum of damages in such a case is with the jury, and they had the right to consider the physical suffering of the plaintiff in estimating the amount of recovery. A drunken man has the right to presume that the streets and sidewalks of a city are safe to passers thereon. PRYOR, J.

It is not material to the decision of this case that an inquiry should be made as to the sufficiency of the first paragraph of the appellee's petition. The second paragraph contains every essential averment necessary to constitute a cause of action, and the appellant only traverses the question of negligence. That the hole was dug or was in the street, of which the appellant had notice, is a fact admitted by the pleadings, and the sole question was, that of negligence on the part of the city authorities. The issue being formed as to the question of negligence, there is no reason for reversing this case, if the testimony authorized the finding, and this involves the question made by counsel for the city, on the motion for a peremptory instruction.

No exceptions were taken to any of the instructions by the appellant and, therefore, it is not necessary to discuss them. And one of the grounds for a new trial being that there was no evidence to support the verdict, permits the question made by the peremptory instruction.

It appears from the evidence that Broadway street is one of the principal streets in the city, and that in or near the pavement of the sidewalk of this street, not far from the depot of the Cin

cinnati Railway, where foot passengers were in the constant habit of passing, a hole three feet deep and two feet wide was dug for the purpose of putting down a gasoline post; that this hole was dug about the middle of November by the directions of the city council, and left open and exposed without any guard around it or near it or anything to notify the passer-by of his danger. This hole, together with others, was left open for several weeks, although some of the council, according to the testimony of a member of the police, had been notified of the danger. It is true there was ample room on the sidewalk for the traveler and he would have to make a diversion from the main path in order to reach the danger, still he had the right to use any part of the street, for the purpose of travel, and there was no excuse for the negligence on the part of the city in leaving these holes uncovered for such a length of time. It is attempted to be shown that the appellee was under the influence of liquor at the time the accident occurred, and if this was even true, and it is not sustained by the testimony, he had the right, although drunk, to presume that no such danger existed in one. of the great thoroughfares of the city, and if in a helpless condition the greater the necessity for vigilance on the part of the city fathers in order to prevent such injuries. The hole dug for this The hole dug for this post had been filled with snow and there was nothing to apprise the appellee of his danger, nor was there anything from which a man of ordinary prudence had the right to suppose that the danger existed. The quantum of damage was with the jury. The testimony was heard as to the character of the wound, and while the actual expenses incurred, including the loss of time, might not have exceeded one hundred dollars, the physical suffering of the appellee had to be considered in estimating the amount of recovery, and with the proof on this subject we are not prepared to say that the verdict was the result of prejudice or passion. The judgment below is therefore affirined.

The judgment appealed from and affirmed in this case was for $500.

LOSS OF GOODS BY CARRIERS.

In the case of Eyre v. Midland Great Western (of Ir.) R. Co., recently decided by Harrison, J., on appeal, it appeared that a railway passenger in consequence of the non-arrival of his luggage, had been obliged to purchase various personal necessaries in substitution for those which were detained; but in the award of damages nothing was included for this consequential loss. This rather surprised us at the time, but on inquiry we ascertained that no claim in respect of those articles had been pressed for. We made some researches for authorities on the subject, but could find none directly in point-the nearest, which, however, are distinguishable, being British Columbia Saw Mill Co. v. Nettleship (L. R. 3 C. P. 499; 37 L. J. C. P. 235) and Walton v. Fothergill, (9 C. & P. 394) and to those

cases

we refer accordingly. It is satisfactory that at last a decision rather more in point has been reported which we find in last Saturday's Law Times Millen v. Brash & Co. (45 L. T. (N. S.) 653). And not only may that case be collated with

those already collated in our papers on remoteness of consequen tial damage, but on several special points in the law of carriers, to which we have previously adverted, it will be found of importance, as indeed, Lopes, J., indicated.

The defendants were carriers from London to Rome; and on November 13, 1879, the plaintiff's agent delivered to them a trunk to be sent by rail from London to Liverpool, and then shipped in one of Bibbey's steamers for Italy. It happened that the defendants had in their possession a case of paper goods (Christmas cards) consigned to Mr. Hamburger, of New York; and by the carelessness of the defendants' servants, the trunk belonging to the plaintiff was taken to the Victoria Docks, and shipped as and for Hamburger's case to New York. The defendants did not become aware of this mistake till about the 15th of December, following, on which day they wrote to Hamburger, and on the 19th the trunk arrived in New York. On the 11th of March, 1880, the miscarried trunk arrived at the defendant's offices, and, at the plaintiff's request was retained there till June, and then delivered to the plaintiff. The plaintiff afterwards brought an action for £210 damages for the loss of the trunk and injury to its contents. The miscarriage and loss for the time were admitted, as also that some of its contents had been injured in New York, owing to the custom house officer unpacking the trunk, and negligently and unskillfully repacking it. It was further admited that certain silk dresses and a sealskin jacket which it contained were articles within the Carriers Act, that their value exceeded £10, and that no declaration had been made. The jury was discharged by consent, and all questions of law and fact were left to the decision of Lopes, J., who presided at the trial. the amount of damages, in case the plaintiff was entitled to a verdict, being agreed upon, including the sum of £10 for the re-purchase by the plaintiff of certain other articles of clothing in Rome at enchanced prices, to replace those contained in the trunk.

The defense rested on the Carriers Act. It was, in the first place, contended on behalf of the plaintiff, that the act did not apply, because the loss was temporary and not permanent. Lopes, J., however, observed that there was nothing in the act or in the authorities to justify the placing of so narrow a construction on the word "loss," and in his opinion, it was immaterial whether the loss was temporary or absolute, and, not being delivered within a reasonable time, the trunk and its contents were lost to the owner within the meaning of the act. He cited no decision on the subject, but the reader will do well to refer to Hearn v. London, etc R. Co., (10 Ex. 793; 24 L. J. Ex. 180) holding that

"loss" within the act means total loss, and does not apply to protect the company from liability for consequential loss by reason of delay in delivery; while in Wallace v. Dublin, etc. R. Co., (8 Ir. L. T. Rep. 163) a plea excusing delay in delivery upon the ground of a temporary loss of the goods, while in charge of the defendants, was held a good answer to an action for not delivering within a reasonable time. In the next place, the plaintiff contended that the act did not apply, because the defendants were not carriers of the trunk by land, the trunk having been accepted to be carried partly by land, and partly by sea. But Lopes, J., rightly held that the contract was divisible, and that the trunk was lost, within the meaning of the act, directly it was on the road to the Victoria Docks instead of to Liverpool. As an authority for this position he referred to Le Conteur v. London, etc. R. Co.; (L. R. I. Q. B. 54) to which we may add references to Pianciani v. L. & N. W. R. Co.; (18 C. B. 225) Baxendale v. Great Eastern R. Co.; (L. R. 4 Q. B. 244) Moore v. Midland R. Co.; (8. Ir. L. T. Rep. 165) Doolan v. Midland R. Co.; (L. R. 2. H. L. 792) and London, etc. R. Co. v. James. (L. R. S. Ch. App. 241.) Again, it was contended by the plaintiff that the defendants were not entitled to the protection of the act, because they were wrong doers-wrong doers in that they sent the trunk on the wrong road and not on the journey contracted for. But Morritt v. North Eastern R. Co., (1 Q. B. D. 302) affords an answer to that objection; Blackburn, J., saying: "Unless it is proved the misdelivery was intentional, the case is within the act ;" and Mellish, L. J. saying: "If goods by negligence of the carrier are carried beyond the point of destination and injured, this is within the Carriers Act."

But, lastly, remained the question whether the plaintiff was entitled to recover the £10 for repurchase of other articles in Rome at enhanced prices, irrespective of the Carriers Act-the plaintiff contending that the act did not apply to that part of his claim. "I think the plaintiff is right," said Lopes, J., "for this is not a loss by the carrier of the trunk, nor an injury to its contents, but damages sustained by the owner in consequence of the non-delivery within good time; it is something consequential to its loss. I do not think this £10 is within the protection of the Carriers Act. But the defendants say if it is not within the protection of the Carriers Act, this portion of the claim is too remote. Much depends on whether it was a reasonable and necessary act of the plaintiff to buy these articles in Rome. This is a question of fact which I have to decide, and I think it was both the reasonable and necessary consequence of defendants' failure to deliver, that plaintiff should purchase what he did in Rome-a necessity arising from the non-delivery of a trunk which the defendants might fairly assume contained wearing apparel. The observations of Mellish, L. J., in the case of Le Blanch v. London, etc. R. Co., (1 C. P. D. 286) are not inapplicable here.

That was a case where a passenger, delayed in his journey by the want of punctuality in the arrival of the defendants' train, sought to recover the costs of a special train which he had engaged. Mellish, L. J., said: "Now one mode of determining what, under the circumstances, was reasonable, is to consider whether the expenditure was one which any person in the position of the plaintiff would have been likely to incur, if he had missed the train through his own fault. and not through the fault of a railway company. I think the plaintiff would have gone to the same expense and bought the same articles for the use of his wife if there had been no railroad company to look to, and if the trunk had been lost by his own fault. There was nothing extravagant or unreasonable in his so doing. I do not think these damages too remote." This conclusion seems to us to be fortified by the cases of Walton v. Fothergill and British Columbia Saw Mill Co. v. Nettleship, to which we referred at the outset; the former case seeming to hold that, if the plaintiff, in order to perform a contract, was forced to buy other goods at an increased price, in consequence of the non-arrival of those which the defendant had contracted to carry, this would be such a natural result of the defendants' neglect as to entitle him to recover his loss; while in the latter case the court considered the plaintiffs entitled to recover the sum necessarily expended in replacing the lost box of machinery there in question. Nor can we any longer deem it doubtful that in Eyre v. Midland Great Western R. Co., (15 Ir. L. T. 291) the plaintiff would have been entitled to recover for the loss incurred by having to replace the personal necessaries contained in his trunk. -Irish Law Times.

Digest of Decisions.

IOWA.

(Supreme Court of Iowa.)

CRAIG . FOWLER. July 13, 1882.

Writ-Officer-Fund.-A writ in the hands of an officer does not authorize him to seize property belonging to another than the defendant named in the writ. In such case he is a trespasser, and such owner has a valid claim against him and a right of action for the value of the goods seized.

The burden of proof of fraud is on the party alleging it, and fraud, or knowledge or participation in fraudulent designs or practices, is usually proved by facts and circumstances, and the exclusion of such evidence, when it tends to establish fraud, is erroneous.

An instruction to the affect that if a wife held an honest claim against her husband she could not use it for the purpose of hindering or delaying other creditors, implies that though she holds an honest claim, she could not, under pre

tence thereof, cover her husband's property so as to defeat or delay his creditors, and is substantially correct.

Any fraud of the husband in encumbering or disposing of his property cannot affect the wife's rights, unless she knew of and assented to the fraud and aided in the particular fraudulent transaction.

RICHARDSON BROS. v. PETERSON. JULY 11, 1882. Landlord's Lien on Chattles.-The landlord's lien given by statute is a charge upon the tenant to secure the rent due under the lease, and it cannot be defeated by the sale or removal thereof.

If a statute creating a lien provides for no protection in favor of persons having no notice thereof, property subject thereto cannot be transferred free of the lien on the ground that the purchaser has no notice of its existence.

Horses kept by a tenant for use on a farm and not for sale, according to the tenant 's ordinary business, are subject to the landlord's lien.

ELLIS v. ELLIS. JULY 11, 1882.

Where a wife had no knowledge that her husband, living apart from her had married again, or was cohabiting with another woman, until after his death, and there is no evidence tending to show that she did not at all times regard the marriage as an existing fact, no presumption can be indulged that he had procured a divorce. A subsequent marriage will not raise the presumption of a divorce from a prior marriage.

ILLINOIS.

(Supreme Court.)

THE ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY. RUSSEL M. Larned. JUNE 21, 1882.

1. Carrier Liability beyond its own line of conveyance.-While it is true that a railroad carrier may restrict its liability to its own line, there is no doubt that it may extend its liability beyond its own line.

2. So, where a railroad company in its own wrong shipped a lot of cotton from its depot in Arkansas to Waterville, in the State of Maine, beyond the terminus of its road, and on the application of the agent purchasing the cotton, gave him a bill of lading containing a printed stipulation, restricting its liability to its own line of road, naming the number of bales and containing this entry written in a blank: "to be forwarded from Waterville, Maine, (where the cotton is now lying), at consignee's expense. All charges for transportation to that point, and necessary charges to be paid by him," and the oral evidence showed it was to be transported to Putnam, Connecticut, it was held that the company was liable to the assignee of the bill of lading, the consignee, for the value of the cotton, on account of its non-delivery at Putnam.

3. Which of two carriers liable.-An agent for

Eastern parties bought cotton in Arkansas, which he left at the defendant's railroad depot, taking receipts for the same, but gave no orders for its shipment, and the railroad company, without any authority from such agent, shipped the same to Waterville, Maine where the Maine Central Railroad Company delivered the same to a person for whom it was not bought. On learning the facts the defendant railroad gave a bill of lading agreeing to transport the cotton to the person for whom it was bought in Connecticut, at the consignee's cost and expense, which was not done, the person receiving the cotton refusing to give it up, claiming it was bought for him. The agent drew a draft on his principal, to which he attached the bill of lading properly assigned, which was paid by the principal, and the latter brought suit against the defendant railroad for the value of the cotton, and recovered. It was contended that the consignee should have sued the Maine Central Railroad and not the defenant; held, that while he might have waived the defendant's contract and have sued the other company for a conversion or the person receiving the cotton, he was under no obligation to do so, and that the recovery against the defendant was warranted.

4.

Estoppel-To assert facts that would defeat transfer of property by an assignment of a bill of lading.-While it may be that property in the adverse possession of another is not transferable so as to pass the title, yet where a railroad company gives a bill of lading reciting that the property is then lying in a depot at a certain place and agrees to forward the same to the consignee, and others advance money on the faith of such bill of lading, which is assigned by the shipper, the railroad company will be estopped as against such persons from showing that at the time of giving such bill of lading, and its indorsement the goods were in the adverse possession of another person, so as to defeat an action brought by the consignee so advancing money on the bill of lading.

PENNSYLVANIA.

(Supreme Court.)

PETRY'S APPEAL. April 3, 1882. Partnership-Dissolution- Authority of Liquidating Partner-Where a liquidating partner is given, by the articles of dissolution, authority to settle claims due to the firm, by allowing a deduction or otherwise, and the late firm has beer in the habit of selling on credit, the liquidating partner may dispose of the firm's assets upon credit; and will not, so long as he acts in good faith, be held liable for a loss arising to the firm from an injudicious allowance of credit.

SUMMIT GROVE CAMP-MEETING ASSOCIATION V. SCHOOL DISTRICT OF NEW FREEDOM. May 29, 1882.

1. Taxation-Exemption- Actual Place of Religious Worship.- Buildings upon a camp-meeting

STATES.

STATE v. ROTEN. February, 1882. Criminal Law-Carrying Concealed WeaponsUpon trial of an indictment under the Act of 1879, c. 127, for carrying a weapon concealed, it was shown that defendant had two pistols buckled around him without scabbards and naked on a belt, on the outside of his clothing. Held, that defendant was not guilty, the presumption of concealment raised by the statute being rebufted. Held, also, if the privilege of carrying arms in this manner should be abused, the party would be liable to indictment at common law.

(District of Oregon.)

A. H. TANNER V. THE DUNDEE LAND INVESTMENT COMPANY AND WILLIAM REID. JULY 5, 1882.

Interest on Note.-When a note is made payable at a future day "with" interest at a prescribed rate per annum, such interest does not become due or payable until the principal sum does, unless there is a special provision in the note or contract to that effect.

Specific Performance.—A contract to convey real property will be specifically enforced as prayed for by the plaintiff where its terms are admitted by the defendant, and the only objection made to such performance is based upon a construction of the contract, as to the part to be performed by the plaintiff, which in the judginent of the court is unsupported by the language of the contract or the circumstances of the case.

W. S. CHAPMAN v. E. P. FERRY AND EUGENE WHITE. JULY 10, 1882.

Discovery.-A demurrer will lie to an allegation in a bill, the answer to which may subject the defendant to anything in the nature of the penalty or forfeiture-as an allegation concerning the number of copies sold and on hand of a pirated map.

Penalties and Forfeitures.-The penalties and forfeitures given by Section 4965 of the Revised Statutes (17 Stat. 214), for an infringement of a copyright, cannot be enforced in a suit in equity; and a prayer in a bill, that the plate and unsold copies of a pirated map be delivered up to an officer of the Court for cancellation and destruction is demurrable, as asking the enforcement of such forfeiture.

Damages.-Damages as well as profits may now be recovered in a suit in equity for an infringement of a patent, but not a copyright.

Pound Sterling.-By section 2 of the Act of March 3, 1873 (11 Stat. 603; Sec. 3565, R. S.), it is provided that, "in the construction of contracts payable in sovereigns or pounds sterling," each pound shall be valued at $4.86.6%. Held, that in an action upon a note payable in pounds sterling, it is not necessary to aver or prove the value of such pound in money of the United States, but that the Court will give judgment for the value of the contents of the note in money of the United States, according to the ratio prescribed by the statute.

TERRITORY OF UTAH.

(Supreme Court.)

SARAH SKEWES V. BALLARD S. DUNN. JULY 7, 1882. Practice-Substitution-Party in Interest.-Where an action has been commenced in the Justice Court in the name of the husband, and judgment given for him, it is error for the District Court to substitute the wife as plaintiff upon the petition and affidavit of the husband that she is the true owner of the original demand, and

that he has transferred the judgment obtained by him to her; the action was not begun by the real party in

interest.

Id.-Evidence-Husband and Wife.-Assuming that the husband was the owner of the notes sued on, and therefore had an assignable interest in the judgment, he would have no right to substitute his wife as plaintiff in order that she might testify in support of the claim which she could not have done had her husband remained plaintiff,