Western Ry. Co., 3 Ct. Sess. Cas. (4th series) 215. In America it has been followed in the courts of some States, but it has often been departed from, and upon the whole the view taken has been decidedly adverse to it. The latest case that I am aware of in that country is Little v. Hacket, 9 Davis (Sup. Ct. U. S.), 366. That was a decision of the Supreme Court of the United States, whose decisions, on account of its high character for learning and ability, are always to be regarded with respect. Field, J., in delivering judgment, examined all the English and American cases, and the conclusion adopted was the same as that at which your lordships have arrived. I have only this observation to add: The case of Waite v. North-Eastern Ry. Co., E. B. & E. 710, was much relied on in the argument for the appellants, but the very learned counsel who argued that case for the defendants, and all the judges who took part in the decision were of opinion that it was clearly distinguishable from Thorogood v. Bryan, and did not involve a review of that case. I think they were right. As regards the other questions argued before your lordships, I have only to say that I think they were properly dealt with by the court below. I am requested by my noble and learned friend, Lord Bramwell, who was unable to remain to read the opinion which he had prepared, to state that he concurs in the motion which I am about to make. I move your lordships that the judgment of the Court of Appeal be affirmed, and the appeal dismissed, with costs.

question with the driver or owner of the other omnibus which ran over him and was the immediate cause of his death. Coltman and Cresswell, JJ., express themselves in terms, which if literally understood, would lead to the conclusion that he would also have been responsible for damage solely attributable to the fault of the driver. Coltman, J., said: "Having trusted the party by selecting the particular conveyance the plaintiff has so far identified himself with the owner and her servants, that if any injury results from their negligence he must be considered a party to it." Maule, J., was careful to limit his observations to the case before him. "I incline to think," said the learned judge, "that for this purpose (i. e., recovering damages from the defendant) the deceased must be considered as identified with the owner of the omuibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased." I do not think the very eminent judges who decided Thorogood v. Bryan intended to affirm that the deceased, by taking his seat in the omnibus, incurred the same responsibility for the negligent acts of the driver as if the latter had been his servant. If they did mean to do so their conclusion might be perfectly logical, but their premises would be directly at variance with the principles laid down in Quarman v. Burnett, 6 M. & W. 489, which I have always regarded, and still regard, as a sound and authoritative precedent. If they did not, then they have affirmed that a passenger, travelling by a public conveyance, may be so unconnected with the driver as to be exempt from liability for his negligence, and yet be so identified with him as to lose all right of action against wrongdoers whose negligence, in combination with that of the driver, has occasioned personal injury to himself. This is a proposition which it is very difficult to understand. It must be a singular kind of relationship, and created by very exceptional circumstances, which results in the superior being affected by his inferior's negligence, in a question with wrong-doers, and not in a question with persons who are themselves free from blame. It humbly appears to me that the identification upon which the decision in Thorogood v. Bryan is based has no foundation in fact. I am of opinion that there is no relation constituted between the driver of an omnibus and its ordinary passengers which can justify the inference that they are identified to any extent whatever with his negligence. He is the servant of the owner, not their servant; he does not look to them for orders, and they have no right to interfere with his conduct of the vehicle, except perhaps the right of remonstrance when he is doing, or threatens to do, something that is wrong and inconsistent with their safety. Practically they have no greater measure of control over his actions than the passenger in a railway train has over the conduct of the engine driver. I am therefore unable to assent to the principle upon which the case of Thorogood v. Bryan rests. In my opinion an ordinary passenger by an omnibus, or by a ship, is not affected, either in a question with contributory wrong-doers or with Innocent third parties, by the negligence in the one case of the driver and in the other of the master and crew by whom the ship is navigated, unless he actually assumes control over their actions, and thereby occasions mischief. In that case he must of course be responsible for the consequences of his interference. Counsel for the appellants endeavored to support Thorogood v. Bryan upon a totally different principle from that assigned by the learned judges who decided the case. They argued alternately that the maxim respondeat superior does not apply, and that passengers are affected by the wrongful acts of the drivernot because he is in any sense their servant, or subject to their control, but by reason of their being for the

Lord WATSON. My Lords: The appellants conceded in argument that unless it can be shown that Thorogood v. Bryan, 8 C. B. 115, is a valid precedent, they cannot succeed in this appeal. Although nearly forty years have elapsed since that case was decided, I think the rule which it established must still be dealt with upon its own merits. The decision has not met with general acceptance, and it cannot be represented as an authority upon which a course of practice has followed, or upon which persons guilty, or intending to be guilty, of contributory negligence are entitled to rely. When the combined negligence of two or more individuals, who are not acting in concert, results in personal lujury to one of them, he cannot recover compensation from the others for the obvious reason that but for his own neglect he would have sustained uo harm. Upon the same principle, individuals who are injured without being personally negligent are nevertheless disabled from recovering damages if at the time they stood in such a relation to any one of the actual wrong-doers as to imply their responsibility for his act or default. That constructive fault, which implies the liability of those to whom it is imputable to make reparation to an innocent sufferer, must also have the effect of barring all claims at their instance against others who are in pari delicto, is a proposition at once intelligible and reasonable. If they are within the incidence of the maxim, qui facit per alium facit per se, there can be no reason why it should apply in questions between them and the outside public, and not in questions between them and their fellow wrongdoers. But the facts which were before the court in Thorogood v. Bryan do not appear to me to bring the case within that principle. My noble and learned friend, Lord Bramwell, who is so conversant with the intricacies of English pleading, suggested in the course of the argument a technical ground upon which the decision in Thorogood v. Bryan might be justified. In that view the case would not be an authority for the appellants, who accordingly supported the reason assigned for the judgment, which was simply this, that the deceased passenger, by taking the seat on the omnibus, became so far identified with its driver that the negligence of its driver was imputable to him in any

Under the agreements effected between the plaintiff and the defendants for the extension of the credit to Vogel & Co., the defendants only became liable to plaintiff to provide for drafts accepted by its London agents within the precise terms upon which the credit was opened. The credit was authorized upon certain conditions prescribed by the parties to be ultimately bound, which they not only had the right to make, but which were assented to by the plaintiff. It is difficult to see how parties could more particularly define the terms of their engagements than was done in this case. By the proper construction of the agreement between them, the plaintiff was not bound to accept any drafts unless they were against Manilla hemp shipped by Vogel & Co. to defendants by the ship Robinson, vouched for as to each of those facts, and the stipulated costs, etc., by documents consisting of a letter of advice and a bill of lading; and the defendants were not bound to provide for or to take up any other kind of drafts. Each party was held to either accept or to provide for drafts, as the case might be, if they were accompanied by those mercantile documents evidencing the consignment of Manilla hemp in the particular manner, aud at the rates of cost and freight specified. In making their arrangements with the plaintiff, the defendants had the right to surround themselves as to their advances through the plaintiff's agency, with all the safeguards which the nature of the case admitted. The effect of their stipulating in respect of acceptances by plaintiff of Vogel & Co.'s drafts was to protect themselves, as far as was possible, against any unauthorized acts of Vogel & Co. Every lawful provision or condition in the contract of parties should control, and should not be disregarded in the determination of their rights, if it can be deemed to have entered into the contract with any definite or perceptible purpose. In interpreting their agreements, and in determining their respective obligations based upon their writings, courts should look at the surrounding circumstances, the situation and relations of the parties, and the subject-matter of their negotiations. In that way the intention, where there is any uncertainty, is better given effect, and their undertaking is more certain to receive a reasonable and fair interpretation. But when the agreement is determined into which the parties have entered, it is but just and fair that they should be held strictly to it, and all their stipulations we should assume to have been made, for a purpose, and to have been considered important by them, and therefore cannot be dispensed with. Hill v. Blake, 97 N. Y. 216. In Bank v. Taaks, 101 N. Y. 442, Andrews, J., speaking of the effect of a letter of the defendants, undertaking to accept the drafts of certain parties, said (page 449): "Assuming that it was a general letter of credit, * * * it nevertheless amounted simply to a contract on the part of Taaks & Lichtenstein to pay advances made in conformity therewith. They had a right to stand upon the very terms of their contract, and they were not bound unless the condition upon which their obligation depended was fulfilled." In Bank v. Griswold, 72 N. Y. 472, Church, C. J., said (page 479): "It is doubtless true that when the right to draw is limited in amount, or is dependent upou the condition of the performance of some act, or that certain facts exist, it must appear that the draft was within the limit, or that the act constituting the condition has been performed, or the facts exist." The principle is urged by the appellants that all commercial instruments are to be liberally interpreted, so as to protect persons who give credit on the faith of them. Lawrence v. McCalmont, 2 How. 449; Gates v. McKee, 13 N. Y. 235; Bank v. Myles, 73 id. 341. But that principle only applies where the provision of an agreement are ambiguous, loose, or susceptible of

more than one fair interpretation, and we do not think that is the case here. We do not see the force in the argument that no other bill of lading could be demanded than was given here. The master of a ship is the general agent of the owners to perform all things relating to the usual employment of his ship, and among other things, to sign bills of lading for goods put on board, and acknowledge the nature, quality and condition of the goods. 1 Pars. Cont. (5th ed.) 45. That was possible to be done in this case; for a bale of Manilla hemp is not covered, as the trial court found on the evidence, and the shipper might have procured a bill of lading which would have indicated the kind of hemp put on board the ship. But whether the master could be compelled or not to identify in the bill of lading the merchandise shipped as Manilla hemp, that fact cannot control the disposition of this case. The agreement of the parties called for a particular statement in the bill of lading to accompany the drafts; and that statement, or the existence of facts which would have authorized it, is a condition precedent to defendants' responsibility to respond to plaintiff's demand. June 5, 1888. Bank of Montreal v. Recknagel. Opinion by Gray, J.

CORPORATIONS-STOCK -SUBSCRIPTION CONTRACT TO PURCHASE-FRAUD.-Where a company issues a prospectus reciting that certain of the principal stockholders have deposited a number of shares of stock with a trustee, the proceeds of which, except $50,000, were to be used as working capital, and that a portion of said shares have been ordered to be sold for that purpose and to pay a prior lien, and the subscription paper attached stipulates that the subscriptions for said stock shall not be binding until the whole number of shares are "reliably subscribed," an agreement by some of said principal stockholders that if plaintiff will subscribe for said stock they will, if he wishes, buy it from him after a year at the cost price, is no fraud on the co-subscribers. The cases mainly relied upon to support the claim that the contract was illegal and fraudulent are of two classes; cases of stock subscriptions to the stock of corporations, accompanied by a secret agreement between the company and the subscriber that the latter should not be bound by his subscription, or changing, in some other respect, its ostensible terms; and cases of composition between a debtor and his creditors, where a creditor, joining in the composition by a secret arrangement with the debtor, secures an advantage over other creditors, in violation of the understanding implied in all cases of compositions that the settlement with the creditors joining in the composition proceeds exclusively upon the terms of the common agreement. In both classes of cases mentioned, the collateral agreement is held to be void. In the first, the courts hold the subscriber to the ostensible contract, and permit it to be enforced in an action by the company, as the only means of preventing the consummation of the fraudulent scheme, and protecting the other subscriber. Railroad Co. v. Eastman, 34 N. H. 124. In the other class the court refuses to enforce the secret bargain, and confines the creditor, who is a party to the fraud, to a remedy to recover the sum which, by the terms of the composition, he agreed to accept. White v. Kuntz, 107 N. Y. 518. The case of Railroad Co. v. Eastman, supra, is a leading case, illustrating the class of cases first mentioned. The doctrine that an agreement between one subscriber to the stock of a corporation and the company, made concurrently with the making of the subscription, which purports to annul its obligation, or materially limit and change the liability of the subscriber, to the detriment of the company, is invalid and void, is founded upon the construction that a subscription to the stock of a corporation whose stock is open for general subscription is

affirm the proceedings below, or reverse, and either order a new trial or discharge the prisoner. That no constitutional right of the party is invaded must be a self-evident proposition, or it is a privilege which is granted, of which he may, but not must, avail himself. I think that the sounder doctrine which recognizes a distinction between jeopardy incurred with the consent of the prisoner and jeopardy incurred without that consent. We hold that the jurisdiction of the Oyer and Terminer to try the defendant again under his indictment is not affected. The offense charged was within its jurisdiction, and the judgment of the trial court having been reversed for errors committed on the trial, the case stands as though there had been no trial. The verdict is expunged, and there is no determination in regard to the matter but the judgment of the appellate court. The defendant must go back and stand his trial under the indictment, as thought he had never been tried; for he himself has renounced the bar which was effective to prevent his further trial for the offense charged. June 5, 1888. People v. Palmer. Opinion by Gray, J.

MASTER AND SERVANT-NEGLIGENCE OF FELLOWSERVANT.-Plaintiff was injured while in defendant's employ, the accident being due to the dullness of a circular saw and the need of its being reset. The employers had provided sharp saws to replace dull ones, and a co-servant, whose duty it was to sharpen and reset saws when dull, had failed to do so on this occasion, though requested by plaintiff. Held, that defendant was not liable. June 5, 1888. Webber v. Piper. Opinion by Finch, J.

MUNICIPAL CORPORATIONS--PUBLIC IMPROVEMENTS -ESTIMATES-COLLUSION-REMEDY.-Under the New York act of 1873, chap. 335, § 91, all contracts for work to be done in New York city involving an expenditure of more than $1,000 must be let to the lowest bidder, in a manner fixed by ordinance of the common council; and it was established by ordinance that in all such cases the commissioner of public works should issue proposals, and advertise for bids, and when necessary cause a survey of the work to be made by a competent engineer, and that the advertisement should state as near as possible the quantity and quality of work done. Held, that an estimate which was only a random guess, and placed the amount of stone excavation at more than double, and earth excavation at less than one-half the actual amount, did not form a basis for a valid contract. Such estimates, taken in connection with a bid of over five times the actual worth for earth-work, and less than 1% percent of the actual cost of stone-work, thus showing on its face as the lowest, but really nearly the highest, raises a just inference that the contract was the result of fraud and collusion. In such a case, under the Laws of New York of 1880, chap. 550, § 12, which provides that no court shall have power to vacate or reduce an assessment for any local improvement in New York city, except to reduce an assessment to the extent the same may have been increased by reason of fraud or substantial error, a property-owner may have his assessment reduced the full amount which it exceeds the actual cost of the improvement. It is not needful for us to find that there was actual fraud, but it is sufficient that all the facts of the case were such as justified an inference of fraud in the court below. The case of Protestant Episcopal Public School, 75 N. Y. 324, is not an authority for the city in this case. do not hold that every unbalanced bid is per se fraudulent, or evidence of substantial error. An unbalanced bid that does not materially enhance the aggregate cost of the work cannot be complained of. If there is no deception or mistake as to the quantities and if the ordinances have fairly been complied with, and the quantity and quality of the work has been es

We

timated as nearly as practicable, there is no ground for alleging substantial error merely because of an unbalanced bid under which the contract was let, and if the cost of the work has not thereby been enhanced there is no ground for alleging fraud. In the case cited it had been determined that the contract was free from fraud. The case of Brady v. Mayor, 20 N. Y. 312, is not a precise authority for the petitioner, but the grounds of the decision are sufficient to sustain this contention. The petitioner has a strong equity for the reduction of this assessment. He has no benefit whatever from the excessive amount paid to the contractor, and there is no reason why that amount should fall upon him or his lots. The city, in making street improvements, the expense of which is to be charged to the owners of the property in the vicinity of the improvements, acts in some sense as the agent of such owners in making the improvements (Lake v. Trustees, 4 Denio, 520), and it should in the discharge of its assumed agency be required to exercise reasonable care and diligence in connection with the work. If by gross negligence on the part of the city or the fraud of its officers, the expense of the work has been largely and unnecessarily increased, it is certainly unjust that the eonsequences of the wrong should be visited wholly upon the owners of the property in the vicinity of the improvement. It is just in a case like this, that the excessive and unnecessary expense should be borne by the whole body of tax payers of the city instead of being cast upon a few lot-owners. June 5, 1888. In re Anderson. Opinion by Earl, J. Ruger, C. J., Andrews and Gray, JJ., dissent.

OF

TAXATION-ERRONEOUS ASSESSMENT-BURDEN PROOF.-Under the laws of New York of 1880, chap. 269, which authorizes a review on certiorari of assessments in respect to illegality, over-valuation, and inequality of valuation, at the instance of any person or corporation aggrieved by an assessment in any of the respects mentioned, in order to be entitled to a reduction on the ground of inequality, it does not suffice that the claimant show, that in a particular instance property on the same roll, and in immediate proximity to his, is assessed at a lower valuation; he must prove that he is subjected to the payment of more than his just proportion of the aggregate tax. June 5, 1888. People, ex rel. Warren, v. Carter. Opinion by Andrews, J.

UNITED STATES SUPREME COURT AB-
STRACT.

INSURANCE -ACCIDENT-SUICIDE- PRESUMPTION. -A policy of accident insurance provided that it should not extend to any case of death or personal injury, unless it was established by direct and positive evidence that such death or personal injury was caused by external violence and accidental means. The insured was found dead with a pistol bullet through his heart. Held, (1) that the court did not err in instructing the jury that the law would presume that the death was not caused by suicide, but would, on the contrary, presume that it was unintentional on the part of the insured, within the meaning of the policy; and that plaintiff, in the absence of rebutting evidence, was entitled to the benefit of such presumptions. The policy provided that uo claim should be made under it, where the death of the insured was caused by "intentional injuries inflicted by the insured or any other person.' Held, (2) that the court erred in instructing the jury that if the insured was murdered, the means used were "accidental" as to him, and plaintiff would be entitled to recover. (1) There is no escape from the conclusion that under the issue presented by the general denial in the answer, it was incumbent upon the plaintiff to show, from all the