provision is a police regulation; and indeed such con-
tention is silenced, not only by the nature, but by the
express terms of the provision itself, which qualify
the exaction as a "consideration for the privilege."
No consideration whatever of public morals, health,
or convenience is involved. It is not proposed to
abolish the use of poles or to alter their location, con-
struction or of use, in any way, to subserve the public
comfort. The simple requirement is the payment of
a price, on payment of which the status quo continues;
while without such payment it must cease. The case
presents no feature of an exercise of the, police power.
(2) A municipal ordinance granting to a particular
company authority to construct and maintain tele-
phone lines on the streets, without any limitation as
to time, and for a consideration stipulated, when ac-
cepted and acted on by the grantee by a compliance
with all its conditions and the construction of a valu-
able and expensive plant, acquires thereby the
features of a contract, which the city cannot there-
after abolish or alter in its essential terms without the
consent of the grantee. If the city can do this now,
she could have done it the very day after the defend-
ant had completed its lines, when it had incurred all
the expense, and before it had reaped a particle of re-
turn. If she can impose a charge of five dollars per
pole, she can with equal power impose one of $1,000,
and for that matter she could arbitrarily revoke the
grant at her pleasure. Either she is bound, according |
to the terms of her proposition accepted and acted
on by defendant, or she is not bound at all. Obviously,
upon the clearest considerations of law and justice,
the grant of authority to defendant, when accepted
and acted upon, became an irrevocable contract, and
the city is powerless to set it aside or to interpolate new
or more onerous considerations therein. Such has
been the well-receguized doctrine of the authorities
since the Dartmouth College case, 4 Wheat. 518. La.
Sup. Ct., Feb. 13, 1888. City of New Orleans v. Great
South. Telephone & Tel. Co. Opinion by Fenner, J.

that the jury could have so understood it. It appeared by the evidence-and that without conflict-that the wife was confined to her bed at home; and we must suppose that the jury considered the instruction in the light of that fact. The court was right. The strong presumption is that a husband, in the purchase of necessaries, either food or medicine, for his wife or children, is acting upon the promptings of the duty which he owes to them as a husband and father, rather than as a mere medium or agent in a business trausaction; and evidence to rebut this presumption should be quite clear and satisfactory, at least answering the requirements of the very careful and considerate instruction of the court below upon this subject. Immediately connected with this subject is that arising upon the exception to the instruction which is set forth in the seventh paragraph of this statement, which we shall next consider. The court instructed the jury that the doctrine of imputed negligence does not prevail in Ohio, and that if the jury should find that the deceased came to her death by the wrongful act, neglect or default of the defendant, by himself or his agent, then the plaintiff is not deprived of the right of action by reason of the negligence of the husband, unless he was her agent at the time. The court below was asked to apply the familiar principle of contributory negligence as a defense to the plaintiff's action. To do this it became necessary, in case the jury should find the wife without fault, to insist that the negligence of the husband contributed with that of the defendant to produce the injury complained of. This defense necessarily involved the assumption either that the husband was the agent of the wife, or that by reason of their marital relations his negligence was to be imputed to her. The contention now is that the doctrine of imputed negligence still prevails in Ohio, so far as relates to husband and wife. In Railroad Co. v. Snyder, 18 Ohio St. 399, it was held that the negligence of a parent or custodlan of a child can. not be imputed to the child to bar its right of action against others for injuries resulting from their wrongful acts. Again it was said by this court in Railroad Co. v. Manson, 30 Ohio St. 451 (first paragraph of the syllabus): "The doctrine of imputed negligence does not prevail in Ohio, and a child of tender years injured by the fault of another is not deprived of a right of action by reason of contributory negligence on the part of a parent or guardian." In Transfer Co. v. Kelly, 36 Ohio St. 86, it was held that in an action by a railroad passenger (without fault himself) for a personal injury, against a defendant whose negligence directly and proximately concurred with the negli

NEGLIGENCE-IMPUTED · -HUSBAND AS AGENT OF WIFE-EVIDENCE-SUBSEQUENT MARRIAGE.-(1) The doctrine of imputed negligence does not prevail in Ohio; and the contributory negligence of a husband in the purchase of a drug to be used by his wife is not to be imputed to her in an action by her or her administrator against the dealer for injury or death resulting from the use of such drug, unless she constituted him her agent; and in simply making known to her husband her desire for the medicine, by reason of which he obtains it, the wife did not constitute him her agent in such sense as that his contributory negligence of the railroad company in producing the ingence in making the purchase can be imputed to her. As shown by the statement of the case, the only authority given to the husband by the wife for the purchase of medicine is to be found in the expression by her of a desire or need of some oil of sweet almonds. There is nothing in the record to justify the assumption that she had done or said any thing that can be construed as a direction to him concerning the purchase for her of the medicine she required. It was clearly within the line of his simplest duty as a husband to procure for her the desired medicine. The criticism of counsel upon the instructions complained of is that in the definition of agency the wife must have been personally present with her husband at the store, and he there must have been under her direction and control. The instruction was: "In order to make him the agent of the wife in this transaction, she must have selected the medicine, directed that he should purchase it, and he must have had nothing to do in the matter except by her procurement and direction." We do not think that this instruction is capable of the construction given it by counsel, nor

jury, the concurrent negligence of the company cannot be imputed to the plaintiff, so as to charge him with contributing to his own injury. In Railway Co. v. Eadie, 43 Ohio St. 51, a minor, fully capable of taking reasonable care of herself, was riding with her father ih his wagon, when she was injured by a collision between the wagon and street car, caused by the mutual negligence of her father and the street car driver, but without fault on her part. It was held that her father's negligence was not to be imputed to her to bar her recovery against the street car company. It is maintained however that those cases are all distingnifhable from the case at bar. The contention is that "the common-law doctrine with reference to the marital relation still continues in force in Ohio; that so far as their personal relations are concerned the husbanu and wife are one in law; that the acts of each are binding upon and imputable to the other." The statute authorizes an action like the present one in any case where the defendant would have been liable if death had not ensued. Indeed this is one of the tests of the right to recover. If the wife were alive

and prosecuting her action for an injury resulting to her by reason of the wrongful act of the defendant, her recovery would be solely for her own use and benefit, and the fruits of her judgment would be her sole and separate property, free from any right of her husband therein growing out of the marital relation. The plaintiff does not prosecute this action as husband, but as the administrator of his wife. It is prosecuted for the benefit of the children as well as the husband of the intestate. The rights of the beneficiaries, as well to a recovery af to the fruits of it, are to be tested by the statutes which the law would have ascribed to the wife and mother if she were alive and prosecuting her action for an injury to her health or person. The law having severed the relation for the purposes of such prosecution by her, what reason can be urged for imputing to her the contributory negligence of one who could have had no lawful pecuniary interest in a recovery by her for an injury she had sustained by the negligence of a wrong-doer? The doctrine of contributory negligence, which is invoked by the plaintiff in error, is founded upon considerations which had no application in logic or justice to the caso at bar. (2) Upon the plaintiff's appointment as administrator, the right of action at once vested in him, and there can be no doubt that if the trial had occurred at any time prior to his second marriage, the full measure of recovery contemplated by the statute should have been accorded to him. Did the measure of that recovery become impaired or narrowed by a measure which occurred subsequent to the commencement of this action? Althorf v. Wolfe, 22 N. Y. 355, was an action brought under a statute similar to our own, for wrongfully causing the death of an intestate. The defendant offered to prove in mitigation of damages that the life of the deceased was insured, and that the insurance money was paid to his wife upon his death. It was held that the evidence was not admissible. It could be contended with some plausibility that the loss was mitigated by the receipt of this money by the widow. Let it be supposed that in the case at bar insurance money due upon the death of the wife had been paid to the husband, and from this sum he had procured the services of a woman to perform like pecuniary services, and contribute by her labor (far beyond the wages paid her) to the accumulation of property in the same manner as the deceased wife. Could it be said, with the same plausibility as it is now maintained, that these facts tended to mitigate the damages sought to be recovered by reason of the loss of that pecuniary benefit which was derived to her husband and children from her services? It should be kept in mind that the statutes, as construed by the courts, have thoroughly divested this subject of every element of sentiment, and of every theory of solace for bereavement, as was well illustrated by the charge of the trial court. The only loss to be repaired is pecuniary loss, and the only theory of redress is that supplied by the statute, which does not seem to admit of any theory of set-off or compensation with which the wrong-doer is in no manner connected. It has been said that "the fact of insurance does not diminish the amount of pecuniary damage suffered by the defendant's fault, though it provides a method of compensation for it. Besides the party effecting the insurance paid the full value of it, and there is no equity in the claim of the negligent person to the benefit of a contract for which he never gave any consideration." Shear. & R. Neg., § 609. This general view is supported by Railway Co. v. Wightman, 29 Grat. 431; Harding v. Town of Townshend, 43 Vt. 556; Railroad Co. v. Thompson, 56 Ill. 138. It is due to counsel for plaintiff in error to say that he does not maintain that the fact of remarriage and the services of the second wife of the plaintiff shall have been submitted to the jury in mitigation of damages for the reason that the dent may have been caused by the other defendant,

husband and children were thereby provided with another wife and mother, but be restricts his claim to the pecuniary services and value to them of the second wife, who in such a degree as the jury, if permitted, might find, performed like services, or contributed in like manner to the pecuniary benefit of the family as the deceased wife and mother. If the jury were permitted to consider this element of mitigation of damages, the plaintiff ought to be permitted to show, as a sort of counter-set-off to it, the expenses incurred by the husband on account of the marriage, and whether the nuptials were cheap and simple or expensive or luxurious; for certainly to the extent of such outlay the means of supporting the family were reduced. These considerations, and the comparison which such a rule would invite between the respective earning capacity of the first wife and mother on the one hand, and the second wife and stepmother on the other, would tend to complicate the issues beyond any thing contemplated by the statutes under whose plain provisions the relief is sought. Ohio Sup. Ct., Dec. 13, 1887. Davis v. Guarnieri. Opinion by Owen, C. J.

NEGOTIABLE INSTRUMENT-NEGOTIABILITY-PLACE OF PAYMENT-CERTAINTY.-A promissory note, payable at Matthews, Ala.," which is a station on the railroad, where there are several dwelling-houses and store-houses, is not payable "at a certain place of payment therein designated," as the words are used in the statute, declaring what instruments are governed by the commercial law. Merely naming a city, town, or village having many, or even several, places of business, is not a compliance with the statute, either in letter or spirit. The intention was that a certain place should be designated-a place at which debtor and creditor could meet, the one to pay and the other to receive payment. That is the sense of the provision, and that must be its interpretation. To hold otherwise would be to open a door, the breadth and dimensions of which we cannot foresee. Ala. Sup. Ct., Jan. 13, 1888. Haden v. Lehman. Opinion by Stone, C. J.

RAILROADS CONCURRENT NEGLIGENCE-PRESUMPTIONS-BURDEN OF PROOF.-A passenger upon a horsecar was injured by reason of a collision of a car with a steam engine at a railroad crossing. In this action against both the horse-car company and the steam-car company, charging concurrent negligence, held, that the burden was upon the horse-car company to show proper care, and upon the plaintiff to show negligence upon the part of the steam-car company. Mr. Cooley on Torts, referring to a Pennsylvania case (Laing v. Colder, 8 Penn. St. 479; Sullivan v. Philadelphia, 30 id. 234), says: "Prima facie where a passenger, being carried on a train is injured without fault of his own, there is a legal presumption of negligence casting upon the carrier the onus of disproving it." "This is the rule where the injury is caused by a defect in the road, cars or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can or ought to control, as a part of its duty to carry the passengers safely, but this rule of evidence is not conclusive." Cooley Torts, 663. The injury in this case was the want of diligence in the driver, and the law will presume neglect from the mere fact of the injury, and the burden is on the defendant, who may show that the injury originated from causes the driver could not prevent. The passenger commits himself to the custody and control of the carrier, and if the car breaks, or the cars, while controlled by the driver, should strike an obstruction, as a wall or an embankment, the presumption of negligence arises, and must be overcome by the carrier on the complaint of the passenger injured by the accident. The acci

in this State to remarry, and remarrying here, was

Journal. guilty of bigamy - and very doubtful law it is, too.

The Albany Law Journal.

ALBANY, JULY 21, 1888.

CURRENT TOPICS.

very exciting, not to say alarming legal

Two very exiture made during the last week,

But whether England would have imported our notions into its own law is outside any reasonable consideration, because Mr. Marlborough has done nothing against any law of his own country or of this. So for aught we see, Mrs. Marlborough has made a valid sale of herself to the dirtiest little cad and brute in all Great Britain.

The other disclosure is more serious, and more likely to be founded on fact, because not originated but only reported by a newspaper. Messrs. Banks, law-book publishers of this city, have been trying to get a bill through Congress for the purchase by the government of certain sets of the United States Supreme Court Reports, of which they are the publishers. Whereupon the "Co-Ops," of Rochester, inform Congress that they have published a recent edition of these reports from certified copies of the records, and that a comparison with the official series published by Banks shows that the reporters, Wallace and Otto, took unwarrantable liberties with the records, making material changes, and omitting a great many cases. It is alleged that the changes are not merely grammatical or rhetorical, but vital and essential, and that they occur in thousands of instances, and that the omissions amount to hundreds. It is hard to believe this, but some examples are given of material alterations of the statements of facts made by the judges. For example, it is alleged that in the celebrated Kilbourne contempt case, where Mr. Justice Miller wrote, "did arrest said Kilbourne using no more force than was necessary," the unfaithful steward, Otto, took his pen and wrote quickly, "went to him and did then and there gently lay his hands on him to arrest him, and did then and there arrest him by his body,' etc.- how could he arrest him by his soul? There certainly is a vast difference between "gently" and "no more force than was necessary." So Otto is said to have changed, in the same statement, "which are the same trespasses complained of," to "the same several supposed trespasses," etc. It may be that the "Co-Ops" have put their best foot forward, and that these are the most serious changes, but they say not. They say the official edition is not to be relied on as a transcript of the records. If what they allege about the omission of opinions not withheld by direction of the judges is true, that alone ought to be enough to condemn Wallace and Otto. As for Wallace, we can believe almost any thing of a reporter who injected part of a scene from Shakespeare into the report of Parker v. Phetterplace, and who stuffs the report of Burr v. Duryee with five pages of his own explanation and history of the art of felting. Probably his own sensations on being turned out or required to resign added to his stock of knowledge on the subject of "felt." Nothing is alleged against the accuracy and taste of the present reporter, Mr. Davis. We shall watch this "battle of the books" with

one of which seems to prove to be something in the nature of a "mare's nest." Needless to say it was made by a newspaper, and it is not at all surprising that it was made by the Herald. It was nothing less than the discovery that the recent marriage of the Duke of Marlborough in this State was illegal, void and bigamous. Interviews with counsel learned in the law were held, and it was reported that they didn't know about it - which was true enough or doubted, or feared, etc. One gentleman had sat up nights with our statutes on the subject, and smelled bigamy. If he had given five minutes of daylight attention to the English statutes his fears would have been dispelled. It is plain that the first inquiry is, has Mr. Marlborough done any thing contrary to the law of his domicile? For if not, there is nothing to talk about; he certainly has done nothing contrary to our laws. We never prohibited his remarrying, and if his own law did not, that is the end of the matter. Now by the law of England he was not prohibited from remarrying during the life of Lady Blandford. In Hammick's Law of Marriage (1887), page 29, it is said: "Liberty to divorced persons to marry again is given by the Divorce Act of 1857, which provides (section 57) that when the time limited for appealing against any decree dissolving a marriage has expired, and no appeal has been presented; or when any such appeal has been dismissed; or when in the result of any appeal any marriage has been declared to be dissolved; then, but not sooner, it shall be lawful for the respective parties to marry again as if the prior marriage had been dissolved by death. The statute therefore allows divorced persons to enter into fresh nuptials as soon as the marriage has been conclusively rescinded, and they may marry whom they please, the intermarriage of the delinquents not being prohibited." The case is thus free of the possible complications which might have arisen from his remarrying against the law of his domicile and that of this State prohibiting remarriage in such circumstances by its own citizens. Whether the English courts would have held his marriage void because of the New York statute not in terms applying to foreigners, and having of course no extra-territorial force, we need not bother our brains. By our own law, in the Van Voorhis case, remarriage in Connecticut, where there is no such prohibitory clause in the statute, is valid, although made to evade our own laws. And the Faber case, cited by anxious counsel, simply held that a citizen of this State, forbidden by a divorce VOL. 38 No. 3.