con

The

furnishing implements and machinery for them to work with. In some of the cases dangerous and defective machinery and implements are founded. Machinery is not necessarily defective, because dangerous. The most perfect steam engine requires skill and care in its management, and is a dangerous agent. Circular saws, planing machines, and nearly all machines used in wood work, are dangerous, but are not therefore necessarily defective. This distinction must be kept in view in determining all questions which arise in suits for injuries received by employees in using implements and machinery furnished them by the employer. If the employer furnish defective machinery to an employee, ignorant of a defect which was or might have been known to the employer, by the use of proper care and vigilance, he is liable to the employee for any injury the latter may sustain in operating the machine with proper care on his part. This is all that was decided in Porter v. Hannibal, etc., R. Co., 60 Mo. 162. As was said by Bacon, J., in Warren v. Erie R. Co., 39 N. Y. 471: "We are not now dealing with the liability which a railroad corporation assumes in respect to the safety and security of passengers transported on their road for a compensation, and in regard to whom they become absolute insurers against all defects which the highest degree of vigilance would detect or provide against. liability here, if there is any, is measured by that lower standard which all the authorities recognize in the case of an employee, and which is answered if the care bestowed accords with that reasonable skill and prudence which men exercise in the transaction of their accustomed business and employments." Lewis v. St. Louis, &c., R. Co. 59 Mo. 495, is not in conflict with the foregoing views of the New York court, in the decision of the question before the court. The plaintiffs intestate was a brakeman and in coupling cars, stepping along as they moved partly forward and partly out toward the rail until he reached the rail, when taking a step sideways to get clear of the rail, his right foot went into a hole, which caused him to fall, and in falling, his left foot was caught by the wheel of the car, which ran over and crushed it. The hole had been dug by steamboat men for a purpose of their own, and had with the knowledge of other brakemen been there several days, and the attention of the section foreman had been called to it. The evidence tended to show that plaintiffs intestate was ignorant of its existence. The principal question in the case was, whether the instruction for plaintiff was correct, which declared that defendant was responsible, if the risk of injury to plaintiff was increased by the hole being there, and it was allowed to remain after defendant knew of its existence, or might by the exercise of reasonable diligence and care have known thereof, and that the injury was received in consequence of the hole remaining, after defendant knew or might have known of its existence. Upon the hypothetical case thus put to the jury, no doubt could be entertained of defendant's liability. The instruction was proper and the court so held, but the principle controlling that case is wholly inappli

cable to this. In discussing the questions involved in that instruction, Wagner, J., who delivered the opinion, remarks: "The rule has long been established, and it is founded in reason and justice, that it is the duty of railroad companies to keep their road and works, and all portions of the track, in such repair, and so watched and tended, as to insure the safety of all who may lawfully be upon them, whether passengers, or servants, or others. They are bound to furnish a safe road, and sufficient and safe machinery or cars. The legal implication is, that the roads will have and keep a safe track, and adopt all suitable instruments and means with which to carry on their business." The paragraph of the opinion is relied upon by respondent, and if it is to be taken literally, without qualification, it furnishes some support to the doctrine announced in plaintiff's first instruction.

What is meant by a safe track is not very clear. An absolutely safe track is one on which no accident would occur, attributable to the track. On the best roads, in construction and management, accidents do occur, and a strictly safe track is nowhere to be found. The remarks we have quoted taken literally without qualification, are disapproved.

a

The plaintiff who avers, must prove negligence. Is the fact that there is another kind of rail, of which a guard rail might be constructed, that would make the guard rail safer for employees, and equally answer its purpose, sufficient to render the company liable to an employee for injury received by him in consequence of the failure of the company to use that other kind of rail? Is proof of that fact proof or any evidence of negligence on the part of the company? Plaintiff's first instruction declares that it is. Wharton, in his Law of Negligence, sec. 213, says: "An employer is not required to change his machinery in order to apply every new invention, or supposed improvement, in appliance, and he may even have in use machine or appliance for its operation, shown to be less safe than another in use, without being liable to his servants for the non-adoption of the improvement; provided the servant be not deceived as to the degree of danger that he incurs." Again, in section 244, "When an employee, after having the opportunity of becoming acquainted with the risks of the situation, accepts them, he cannot complain if he is subsequently injured by such exposure. Hence, to turn specificially to the consideration of the employer's liability, an employee who contracts for the performance of hazardous duties, assumes such risks as are incident to their discharge from causes open and obvious; the dangerous character of which causes, he has had opportunity to ascertain." The authorities cited by him in support of those propositions fully sustain the text.

Take the case of an engineer who for years has been operating just such an engine as that he is employed to run, and is injured by an explosion, which would not have been so likely to occur, if an improvement or appliance had been furnished by the employer in use elsewhere, would the employer be liable to him in an action for damages, because

he had not furnished such improvement or appliance? If the railroad companies are required to take up their rails whenever a better rail is manufactured, because it would afford greater security to their employees, and to discard their machinery whenever a more perfect machinery is invented, or be liable to any employee who may be injured in using the old machiney, it would impose upon them pecuniary burdens which would compel them to suspend the operation of their roads. In Wonder v. Baltimore & O. R. R. Co., 32 Md. 411, the court remarks: "In the case before us, the question depending upon a diversity of opinion, as to whether the eye-bolt or the hook is the better mode of fastening the brake, is immaterial, as both seem to be approved appliances, tested by trial and experience; and if it were conceded that the eyebolt has superior merits, it by no means follows that the defendant was bound to discard the hook that had been used for a long time, and on so many trains without accident. A master is not bound to change his machinery in order to apply every new invention or supposed improvement in appliances, and he may even have in use a machine or appliance for its operation shown to be less safe than another in general use, without being liable to his servants for the consequence of the use of it. If the servant thinks proper to operate such machine, it is at his own risk, and all that he can require is that he shall not be deceived as to the degree of danger that he may incur."

Wood in his law of Master and Servant says, Sec. 331: "The employer is not bound to employ the latest improvements in machinery, and is not liable for an injury which might have been avoided if such improved machinery had been in use." In Toledo v. R. Co., 84 Ill. 434, which was an action by his administrator for damages for an injury received by an employee, the court remarked: "They are not required to seek and apply every new invention, but must adopt such as is found by experience to combine the greatest safety with practical use." That case goes far enough in that direction, and we think too far, in regard to the duties it exacts of the employer to the employee. The principle announced in the above extract, applies to the relation of carrier and passenger, but is more exacting of the companies with respect to employees than we think warranted by the authorities. There is no fault to be found with what was decided in the case. It is an authority, we think, against this plaintiff's first instruction considering the evidence in the cause. Even the doctrine announced in the paragraph quoted from that case will not sustain the judgment in this. The evidence does not show that the U rail" has been found by experience to combine the greatest safety with practical use."

Reason and the weight of authority alike condemn the first instruction given for the plaintiff. The liabilities of railroad companies to their passengers and their liabilities to their employees are to be distinguished, as in Warner v. Erie R. Co. 39 N. Y., 471, and Finney v. Boston &c. R. Co. 62 Barb. 218. The highest degree of diligence is

required in the one case, and the lower standard in the other.

Applying these principles to this case, what right has plaintiff to recover from the company? He was an experienced railroad man, thirty-five or forty years of age-had worked for years on railroads constructed as defendant's was. He had never seen any other than a T rail used. He knew that the guard rail was at the place where he was injured, and that it was made of T rail. This was his own testimony, and he proved by other witnesses that the U rail would have been less dangerous, although it was but little used in this country -his own witnesses stating that the most they knew of the U rail, they had learned from books, and not from observation. This, with evidence of the particular manner in which he received the injury, already detailed, and the extent of his injury, was the case made by the plaintiff, and his evidence neither proved, nor had any tendency to prove, negligence on the part of the defendant, which made it liable in damages for the injury plaintiff received.

The instruction asked by defendant at the close of plaintiffs' evidence, that it was not sufficient to warrant a verdict for plaintiff, should have been given. The first instruction for plaintiff, as already indicated, was also erroneous. Defendant's third instruction should have been given, if there had been any evidence tending to show carelessness on the part of plaintiff, but there was none.

We think that under the circumstances of this case, the fifteenth instruction asked by defendant should have been given. The evidence showed that the plaintiff was fully acquainted with the risk he incurred, from the nature of his employment and the kind of rail used for guard rails on defendant's road. It might not be a proper instruction in a case where the employee was inexperienced and ignorant of the danger he incurred in the work he was employed to perform.

The judgment is reversed. The other judges

concur.

NOTE. The distinction drawn in the foregoing case between defective machinery and machinery not of the most approved pattern and construction, is one of no little importance. As was said by a learned and careful judge, in Devitt v. Pacific R. Co., "Much of the work of the country is done without the employment of the best machinery or the most competent men, and it would be disastrous if those prosecuting it were held to insure the safety of all who enter their service." And to the same purport is the language of the court in Hayden v. Smithville Manufacturing Co., 29 Conn. 548: "Every manufacturer has a right to choose the machinery to be used in his business, and to conduct that business in the manner most agreeable to himself, provided he does not thereby violate the law of the land. He may select his appliances, and run his mill with old or new machinery, just as he may ride in an old or new carriage, navigate an old or new vessel, or occupy an old or a new house, as he pleases. The employee having knowledge of the circumstances, and entering his service for the stipulated reward, can not complain of the peculiar taste or habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service."

Numerous cases enunciating the same doctrine might

be cited, but we refer to these cases as stating a now generally accepted rule, for the purpose of calling attention to a distinction which, we think, necessarily follows from the premises. If the law is that an employer is not bound to furnish machinery of any particular pattern or construction, so that it is free from latent defects, discoverable by the exercise of ordinary care; then it would seem to follow that knowledge on the part of the employee that the machinery furnished for his use is not the best and safest of its kind is wholly immaterial. It may well be conceded that an employee is justified in presuming that his employer will comply with every obligation imposed by law. If the law does not require the best machinery to be used, what right has an employee to presume that it will be used? In such cases, must he not take his chances? Knowing that his employer may lawfully furnish machinery of an inferior character, must he not inspect the machinery so far as to be advised of its general pattern and construction, in order to ascertain whether it suits his taste, as well as that of his employer? In short, can it be negligence for one to do what he has a perfect right to do? M. A. L.

DAMAGES CAUSED BY DOMESTIC ANIMALS. Animals have in all times been the subject of curious cases and curious laws. Solon enacted that if a do bit a man it was to be delivered up bound to a log of four cubits long; but this was improved on by the Welsh legislator of the twelfth century, who provided that, after the dog had bitten three persons, it was to be tied to its master's leg and then killed. The charter of Elenora ("Carta de Logu"), drawn up in 1395 for Sardinia, enjoins that oxen and cows, whether wild or domesticated, may be legally killed when they are taken marauding; but an ass so convicted is liable to have one of its ears cropped off for a first offense, a like penalty being inflicted for a second delinquency, while a third trespass entails, not even the loss of its tail, but confiscation of the criminal to the Crown. The Jews distinguished in the Talmud between actions done by vicious or innocent animals, the owner of the latter being required to pay only half the damage caused; and the Mosaic law said that if the owner of an ox knew that it pushed with its horn, and if, being let loose, it killed a man, not only the ox but the owner was to be put to death. And here we might add a description of various singular actions brought against animals in ancient times, as related by M. Menabrea, in the 12th volume of the Transactions of the Chambery Society, and by M. Emile Agnel in his "Curiosites Judicaires et Historiques," but that we doubt whether they would be held binding authorities since the passing of the Judicature Acts. We prefer something more modern, if less marvelous; and instead of narrating the action brought by the Friars Minor of the Province of Pridade no Moranhao in Brazil, against the Ants of the said territory, suffice it to declare, in the first place, what befell but the other day, in the matter of a certain cock, at Birmingham county court, after which the writer will enlarge on the doings of a cat, as appeareth in the records of the sheriff court at Perth.

The cock came before the court (May 20th) in this wise: Florence Walford, by her father and next friend, sued George Mathews to recover £5 damages, sustained by her in consequence of the defendant wrongfully and negligently keeping a savage and dangerous cock fowl, knowing it to be savage and dangerous and accustomed to injure mankind, whereby the plaintiff was, on February 27th, pecked and injured. The Judge (Mr. Mutteram, Q. C.), protested he had never heard of such a case; the plaintiff's solicitor admitted

that it was one of first impressson; and the defendant's solicitor announced that he had vainly spent three hours in endeavoring to find an authority in point. But, on the other hand, why, on principle, should not damages be recoverable if it could be shown that the cock fowl aforesaid had pecked and injured children before, that the defendant knew thereof, and yet, not having the fear of Mr. Motteram before his eyes, neglected to shut up the said savage and dangerous bird? The court confessed there was a good deal in this, and thereupon made a precedent, at an expense to the defendant of £1 compensation, and 16s surgeon's expenses.

The cat figured in the case of Webb v. McFeat, 22Journ. of Jur. 669. There the claim was for £1, being loss and damage sustained by the pursuer in conse-. quence of a cat, belonging to the defender, having killed a carrier-pigeon belonging to the pursuer, in the neighborhood of his premises, it being claimed that the defender was "responsible in respect of the natural disposition or propensity of cats to kill birds, and the defender's failure to keep the animal properly enclosed or secured." It was denied that the defender's cat was the actual culprit; but though it appeared that the residences of the parties were surrounded by a colony of cats, Sheriff Barclay was satisfied that the defender's cat was the true offender. The question of liability, however, remained. Said the Sheriff (Oct. 25, 1878): "There is no precise authority on the point. The pursuer had suffered a loss, but the defender has made no gain in consequence, and therefore the principle of equity which forbids one to make profit by another's loss has no place here, neither can the claim be sustained on mere ownership. There must be some culpa. Many accidents, some even fatal, arise from property, but there must be some evidence of culpa on the part of the proprietor to render him liable for the consequences. It was quite legitimatefor the pursuer to keep a pigeon, but just as much so for the defender to keep a cat. The latter is more a domestic animal than the pursuer's bird. But there are no obligations on the owner of a cat to restrain it to the house. The pursuer's plea is that the natural instinct of the feline race is to prey upon birds as well. as mice. So it was argued that the owner of the cat should prevent the possibility of its coming into contact with its favorite sport. But it is equally true that the owner of a bird should exercise similar caution to prevent its coming within the range of a hostile race. If the defender's cat had trespassed into the pursuer's house or aviary where the bird was secured, there might be ground to find the owner of the cat liable for the consequencens of its being at large. With parity of reason had the bird intruded itself on the territory of the cat and there been slain, there could have been no recourse, because the owner of the bird should have prevented its escape. In the present case, it appears that both the quadruped and the winged animal were in trespass. Both were on neutral territory, being a green of a neighboring proprietor. It was the duty of the pursuer to take the guardianship of his bird said to be so valuable, and therefore both owners are in equal blame, and the case must be viewed as arising from natural law, for which neither owner without culpa can be answerable. The defender having at first not sympathized with the loss of the pursuer, but rather put him at defiance, and forced him to prove that it was the defender's cat who slew his bird, the defender will be assoilized, but without costs."-Irish Law Times.

NOTES OF RECENT CASES IN THE UNITED STATES CIRCUIT AND DISTRICT COURTS.

CONSTITUTIONAL LAW FOURTEENTH AMENDMENT-MARRIAGE.-1. There are two elasses of privileges attaching to an American citizen, to wit: (1) those which he has as a citizen of the United States; and (2) those which he has as a citizen of the State where he resides as a member of society. The fourteenth amendment of the United States Constitution forbids the States from abridging the privileges belonging to a person as a citizen of the United States; but does not forbid the States from abridging the privileges belonging to their citizens as citizens of States. 2. Marriage is a privilege belonging to persons as members of society, and as citizens of the States in which they reside, and may be abridged at the will of the States in which they reside. Marriage, though a contract, is more than a civil contract, and is not affected by the clause of the tenth section of the first article of the Constitution forbidding a State from passing any laws impairing the obligation of eontracts. 3. A prisoner who has been prosecuted and imprisoned by his State for violating a law of his State relating to marriage, can not be released by a United States court on habeas corpus, on the ground that such law violates. the Constitution or laws of the United States. Section 1977, of the United States Revised Statutes, giving to all persons the same right of making and enforcing contracts as is enjoyed by white persons, only extends to lawful contracts, and does not extend to a marriage declared void by the law of the State of the parties to the marriage; and this, whether the ceremony of marriage was performed in that State or in another State where such marriage was legal, if the parties to it go out of the State of their residence in order to evade her laws, and return to live and cohabit in the State in positive violation of her express law.-Ex parte Kinney. United States Circuit Court, Eastern District of Virginia. Opinion by HUGHES, J. 3 Va. L. J. 370.

CHARTER PARTY-USAGE-" RAINY DAY "—BILL OF LADING-DEMURRAGE. 1. The phrase "rainy day" being of itself indefinite and uncertain, the sense in which it was used in a particular contract may therefore be shown by the surrounding circumstances including the usage of the particular port or trade to which the contract relates. 2. A charter party provided that the charterers should have 30 working days, not counting "rainy days" in which to load a vessel with grain at Portland, Oregon. Held, that the phrase "rainy days" was intended to apply only to the days on which the rainfall was such as to prevent the loading of the vessel with safety and convenience-the actual facilities of the port for so doing being considered. 3. A contract entered into in Liverpool to load a vessel with grain in Portland, Oregon, is in contemplation of law made at the latter place and therefore the condition and conveniences of such port for loading vessels with grain or the established usage thereof upon that subject may be shown to explain the meaning and use of dubious and uncertain phrases in the same-as for instance-"rainy days." 4. The person to whom a bill of lading of a cargo is made, or the indorsee thereof, has the legal property in the same, free from the lien for demurrage, and therefore the owners of a vessel with an overdue claim for demurrage against the charterers, for which by the terms of the charter party they have a lien upon the cargo, are not bound to sign unqualified bills of lading to the charterers for such cargo, until such claim for demurrage is satisfied; and if such vessel is detained in port for want of a clearance, which by the terms of the charter party the charterers were to obtain, but did not for want of the bills of lading, such detention is nevertheless the fault of the

charterers in not paying the demurrage or accepting bills of lading subject to the same, and therefore they are liable to the owners for the damage arising from such detention.-Balfour v. Wilkins. United States District Court, District of Oregon. Opinion by DEADY, J.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

[Filed June 30, 1879.]

TORT CONVERSION GOODS CONSIGNED TO THIRD PERSON.-An action of tort for conversion can not be maintained where the goods alleged to have been converted have been consigned by the plaintiff to a third person to be paid for as they were sold by him. Fairbanks v. Phelps, 22 Pick. 535; Winship v. Neale, 10 Gray, 382; Ring v. Neale, 114 Mass. 111. Opinion by COLT, J.-Hardy v. Munroe.

PROMISSORY NOTE-INDORSER-NOTICE.-1. The defendant signed his name upon the back of a promissory note, payable to the order of the maker, after it was signed upon the face, but before the same was indorsed by the maker thereof, and before the same was negotiated: Held, that the note was in legal effect a note payable to the bearer; that the defendant, as indorser, was entitled to demand and receive notice, and did not come within that limited class of cases where one who is neither maker or payee, and who puts his name on the back of a note before it is negotiated, has been held as a joint promissor. Bigelow v. Cotton, 13 Gray, 309. 2. In the absence of any evidence, the presumption is that the law applicable to a case is the same in another State as here, Wood v. Core, 4 Met. 203; Cribbs v. Adams, 13 Gray, 597. Opinion by COLT, J.-Dubois v. Mason.

RESCISSION OF CONTRACT-TENDER OF CONSIDERATION RECEIVED.-The rule that if a party enters into a contract and in consideration of so doing receives money or merchandise, and afterwards seeks to avoid the effect of such contract as having been fraudulently obtained, he must first give back to the other party the consideration received, applies to those cases only where that which was received, and which must be returned, was the consideration of the contract or settlement which the receiver intended to make, and understood that he was making, and which he seeks to avoid by reason of fraudulent practices of the other party which led him to agree to its terms. It does not apply to cases where a party holds out that he gives the consideration for one thing, and by fraud obtains an agreement that it was given for another thing. Opinion by SOULE, J.-Mullen v. Old Colony R. Co. SALE-CONSIDERATION-EVIDENCE.-The plaintiff agreed to sell a horse and some diamonds to the defendant, for which he claimed he was to receive in payment a horse belonging to the defendant called "Little Ned," and that the defendant fraudulently delivered to him a horse resembling "Little Ned," but of much less value. The defendant, admitting that he delivered the less valuable horse, contended that the bargain was for that horse, and not for "Little Ned," and introduced evidence to prove this. The defendant offered to show that the value of the property which he was to receive, and did receive, in accordance with the bargain made, was, and was known to be, far less than the value of "Little Ned," but the court excluded the evidence. Held, that the evidence was competent. The fact, if proved, would have a

tendency to show that probably the contract was not for the sale of the more valuable horse to the plaintiff, 'but for the sale of the horse which he actually received; and so that the plaintiff had no cause of action. Bradbury v. Dwight, 3 Met. 31; Lee v. Wheeler, 11 Gray, 236; Rennell v. Kimball, 5 Allen, 356; Parker v. Coburn. 10 Allen, 82; Upton v. Winchester, 106 Mass. 330; Brewer v. Housatonic R. Co., 107 Mass. 277. Opinion by SOULE, J.-Norris v. Spofford.

MONEY HAD AND RECEIVED-DRAFT.-In an action for money had and received, it appeared that one C was building a house for the defendant under a sealed contract, and that C purchased his lumber from the plaintiff's agent A. C, who owed the plaintiff, gave to A a written order upon the defendant for a sum less than the defendant owed him, and the defendant orally promised A that he would pay to him the amount of the plaintiff's bill against C, saying that he had money enough due to C to do so, but he subsequently settled with C, paying him the whole amount due him under said contract. Held, that the action could not be maintained. The defendant not having accepted the draft was still liable to pay his debt to C; and the plaintiff's demand against C was not extinguished in whole or in part by the promise. Parkhurst v. Dickerson, 21 Pick. 307; Suff v, Pope, 5 Hill, 413; Liversidge v. Broadbent, 4 H. & N. 602; Rogers v. Union Stone Co., 126 Mass.; Morse v. Adams, Id. Opinion by ENDICOTT, J.-Clement v. Earle.

SUPREME COURT OF MISSOURI.

April Term, 1879.

[Filed June 2, 1879 ]

LANDLORD AND TENANT-WHERE LEASE STIPULATES FOR RENEWAL UPON SAME TERMS AND BOTH PARTIES ACT IN ACCORDANCE THEREWITH NO ACTUAL RENEWAL IS REQUIRED. In May, 1867, plaintiff leased to defendant a building at St. Louis for a term of three years, at yearly rent of $7,000, payable monthly. Lease was in writing and signed by both parties, and contained stipulations that lessee was to pay double rent for every day it held on to premises after expiration of lease. There was also privilege of a renewal for ten years more from expiration of lease at same terms. Defendant entered into possession, and at expiration of first term continued in possession, paying same rent until May, 1876, when having given a month's notice, removed from the premises. No new lease had been requested or tendered. Plaintiff refused to accept a surrender, and brought present action for rent accruing subsequent to removal of defendant. On trial in circuit court, judgment for defendant, which was reversed in Court of Appeals, and judgment thereon rendered for plaintiff. Defendant brings his writ of error. Held, that the general rule undoubtedly is that where a lessee for years holds over his term in the absence of any express contract, the law implies he is holding over under the terms of the original lease, and makes him

a tenant from year to year; but to sustain this implication, the acts of the parties must be consistent with such a tenancy; and when the terms of the lease and the conduct of the parties are such as to clearly indicate that the lessee is not holding over under the terms of the original lease, and there is any contract in writing between the parties to which such conduct may be referred, the legal implication of a tenancy from year to year will be rebutted and the law will presume that the parties are acting under such contract. In this case, defendant continued for a period of six years to pay, and plaintiff to receive the month

ly rent provided for in the clause of renewal just half the sum defendant had obligated to pay if the privilege of renewal was not exercised, and under the circumstances defendant is estopped to deny that the term had been extended under the clause of renewal. Judgment of Court of Appeals affirmed. Opinion by HOUGH, J.-Insurance, etc. Building Co. v. National Bank of Mo.

DAMAGES CITY NOT RESPONSIBLE FOR INJURIES CAUSED BY DESTRUCTION OF ITS BUILDINGS BY UNUSUAL AND UNPRECEDENTED STORMS-MISLEADING INSTRUCTIONS.-Action for damages for injuries inflicted on plaintiff, Mary Flori, by prostration of the Center Market in the City of St. Louis. Appeal by city from St. Louis Court of Appeals. 3 Mo. App. 231. There was evidence on part of plaintiff to show that roof of market-house was blown off and wall prostrated by a wind-storm, neither unusual nor uncommon, and only of ordinary force and violence. Defendant's evidence tended to show that building was thrown down by a storm of unusual violence, amounting to a cyclone. In the circuit court the court gave an instruction that, unless the jury found the wall was blown down "by the action of an unprecedented or extraordinary wind-storm, which was not reasonable to have been anticipated by the city," they must find for plaintiff. Held, error. There was no obligation on the city in the construction and maintainance of the market-house to anticipate unprecedented wind-storms, as required by the instruction. It would be strange doctrine to require defendant to anticipate such a storm as had never before occurred and provide against it. The utmost requirement that could be exacted would be that it should keep the building in such condition as would enable it to withstand ordinary force and power of usual wind-storms. The addition of the words quoted in instruction was calculated to mislead jury and deprive defendant of benefit of declaration given on its behalf that if the storm which overthrew the market-house was one of unusual force and violence, the jury would find for defendant. Because of its misleading character and conflict with instruction given for defendant judgment is reversed. Geaty v. R. Co., 30 Mo. 473: Henchler v. O'Bannon, 56 Mo. 290. Opinion by Norton, J.Flori v. St. Louis.

SUPREME COURT OF MINNESOTA.

[Filed June 24, 1879.]

MORTGAGE-REDEMPTION.-After the foreclosure of a mortgage upon real estate under the power, the only right of redemption by mere act of the parties is that given by statute, and can be exercised only as prescribed in the statute. Such a redemption can not be made by a tender of less than the amount for which the property was sold, with interest, even where the foreclosure was for more than was actually due on the mortgage. After such a foreclosure for more than is actually due, the court may, upon a proper showing, allow the mortgagor to redeem by paying what

was justly due upon the mortgage. But the mortgagor must show an excuse for not applying to the court before the foreclosure to prevent a sale for more than was due. Opinion by GILFILLAN, C. J.-Dickerson v. Hayes.

[Filed June 25, 1879.]

UNCONSTITUTIONALITY OF ELECTION LAW.-The election law of 1878, regulating elections in incorporated cities of over 12,000 inhabitants, provided as follows: "The ballots shall be folded by the voter and delivered to one of the judges of election, who shall forthwith lay the same on top of the ballot-box, at th