must be taken to be a statement that the company in fact set fire to its depot by sparks and coals thrown from its locomotives, but did not do so negligently or carelessly." Railroad v. Barker, 94 Ky. 71, 21 S. W. 347. Is there a conjunctive averment in the statement that deceased "turned his back and failed to look out?" What does this mean in common understanding? It seems to mean that because he turned his back he failed to look out. One or the other part of the averment may be wholly surplusage or merely argumentative. In either event, it its not a conjunctive averment of two distinct material facts. The court cites Bliss on Code Pleading, § 332. But that very section shows that liberality of construction of pleadings enjoined upon courts, by statute, does not excuse a negative pregnant in states where it is necessary to make oath to pleadings, because "no one could be convicted of perjury who should swear to such a denial, as it is uncertain what fact he intended to deny." There seems quite a negative pregnant in this excerpt as a supporting authority. If the pleader does not have to make oath, the conjunctive denial might be an irregularity. This section also says: "In Missouri and Iowa, a negative pregnant is treated as an informality only." and closed up" windows. It was said there was no denial of the closing. There were here distinct acts conjunctively alleged. Larney v. Mooney, 51 Cal. 610. Take the Oregon cases the court cites. One states a conjunctive averment that plaintiff was "mentally infirm and not of sound mind and so insane as to be wholly incapable of attending to business." Scovill v. Barney, 4 Ore. 288. It was held there was an "aggregated statement of facts" in a conjunctive averment. That reason would not apply to the averment in this case. There is but one material fact averred in this pleading-careless and negligent failure to notice. The other Oregon case showed two distinct facts in a replevin petition a wrongful taking and a wrongful detention. If there were both, demand was unnecessary; if detention only, demand was necessary, as the court states. When conjunctively alleged they should have been disjunctively denied. Moser v. Jenkins, 5 Ore. 447. Where there was an averment that defendant carelessly, negligently and wantonly ran over plaintiff's mare, a denial in haec verbis was said not to be a denial that defendant occasioned the injury complained of. Harden v. Railroad, 4 Neb. 521. Disjunctiveness seemed not here considered at all, but there is negative pregnant, as plainly appears. A familiar illustration of a negative pregnant, according to Mr. Bliss, is shown in Young v. Catlett, 6 Duer. 437, in which it is said: "A denial that A went to Rome and to Egypt and to Jerusalem and returned from Jerusalem to New York is not a denial that A went to Egypt," and this is so because there were distinct acts averred conjunctively. This is not the case when it is averred that one "carelessly and negligent-reply ly" does a thing, or that he turned his back and failed to notice. The turning of the back is argumentative recital preceding the averment of a material fact. A California case shows a real negative pregnant where the gravamen of the action was obstructing the windows of tel. Defendant denies that he "entered We have patiently considered the rule upon which the court assumed to proceed, but which, even if it should not be ignored entirely, ought to be applied with reason. This is not, for example, like the Nebraska case, where wrong would be inferred from doing the act complained of. The in this case to make any issue at all had to be that though plaintiff may have failed to notice, he did not do so negligently. It was a material fact in the Nebraska case that the mare was injured. It was not a material fact in this case that deceased turned his back. The only material fact was that he negligently turned his back, or negligently failed to notice. Turning his back was but inducement for the averment that he failed to notice. We notice the daily press of Oregon is assailing this decision, and considering that there could be no possible misunderstanding, in ordinary parlance of what was meant, it is hard to see where any substantial injury resulted from the ruling by the trial court. The case was tried as it otherwise would have been tried, and well might the Oregon court "regret being compelled to reverse this case upon a question of pleading." But we do not think that the court was under any such compulsion. as a precedent for other cases, these dissentients would be right in contending that a question is never settled until it is settled correctly-otherwise they are wrong. A judicial settlement, whether on strict principle or otherwise, is a settlement that creates a precedent. If that is to be changed we have a legislature which should change it. Furthermore, a settlement for dissenting judges, just as for others, ought to be decreed a settlement of a principle and of every legitimate deduction therefrom. If the principle settled by a majority is broad enough, it ought to change greatly the theory upon which a former dissentient proceeded. Change of personnel of judges should not work uncertainty in that which an appellate tribunal is constituted to set at rest. NOTES OF IMPORTANT DECISIONS. COURTS DIVIDED OPINION BY A COURT.-Remembering that we have seen dissenting judges holding to their views on questions in which they had interposed dissenting opinions, we submit what was said by South Carolina Supreme Court in Matthews v. Clark, 89 S. E. 471. "It is said that the authorities cited embrace opinions by a divided court. It is well to clear up a misapprehension in the minds of the bar as to the force of a decision of the court in cases in which the court is divided. A dissenting opinion shows that the case has been thoroughly considered. The opinion of the majority governs. When that question arises in future cases, the dissenting justice is as much bound by the decision of the majority as is the justice who wrote the prevailing opinion. The dissenting opinion, within the jurisdiction of the court, strengthens the case. Outside of the jurisdiction of the court, where the decision is not binding but merely evidence as to what the law is, of course the conflict of the witness weakens the force of the opinion." We have come across cases where dissentients, from change of personnel in a court, have come to represent the majority, and they have not hesitated to reverse former holdings, all theory of stare decisis to the contrary notwithstanding. And some judges have rather boasted that their dissenting views have eventually come to be adopted as law by the court. If a decision by an appellate tribunal was only to decide a particular case and not stand MARRIAGE-ANNULMENT FOR INTENT BY DEFENDANT NEVER TO CONSIDER MARRIAGE BINDING.-It was held by Supreme Judicial Court of Masachusetts, that where a woman marries solely to secure the right to be known as a married woman and with the affirmative intention to leave her husband at the church door and never to see him again, and does so leave him, he may have the marriage annulled for fraud. Anders v. Anders, 113 N. E. 203. The court reviews decision, holding to nullity because of incapacity and refers to an English case in which "upon great consideration it was held that the objects for which matrimony exists are as much defeated, in case the wife wilfully persists in refusing to have marital intercourse when she can as they are in case she is willing, but for some reason cannot." The court intimates that the object of matrimony is not procreation, but merely "marital intercourse," and if the woman resolves the latter shall not be had, she entraps the man into a seeming and not a real contract. This, however, is not true, as a fact, but only if after a ceremony of marriage she persists in the resolution formed at the time of the ceremony. She is given, so to speak, a locus poenitentiae. In almost all, if not all, contracts they are null or not at the time they are seemingly entered into, if parties to them are not laboring under contractual incapacity. If in Massachusetts the fact of refusal to perform marital duties gives no ground for divorce, it seems it ought not to be true, that intent at the time of marriage not to perform cught to be ground for annulment. A RATIONAL RULE OF PROXIMATE CAUSATION IN TORTS. The question of the extent of the liability of a tortfeasor has long been a confused and vexed one. In reported decisions involving this question, seemingly needless complexity and confusion of thought have been usual; and only a few courts have arrived at a fairly simple and reasonable rule possible of application to any future. case. In a general way, the law is well settled that a tortious wrongdoer is liable for all proximate consequences of his wrongful act. The usual general rule has been fairly well stated as follows: "Legal responsibility in tort extends to any injurious consequence resulting by ordinary natural sequence, whether foreseen by the wrongdoer or not, provided that the operation of the cause of action is not interrupted by the intervention of an independent agent or overpowering force, and that but for the operation of the cause of action the consequence would not have ensued."1 It is generally held, as stated in the wellknown case of Milwaukee & St. P. Ry. v. Kellogg, that "in order to warrant a find... ing that negligence, or an act amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of attending circumstances." (1) Sedg. El. Dam., p. 50. (2) 94 U. S. 469, 24 L. ed. 256. See also Empire State Cattle Co. v. Atchison, etc., R. Co., 135 Fed. 135; Kreigh v. Westinghouse, etc., Co., 152 Fed. 120, 81 C. C. A. 38, 11 L. R. A. (N. S.) 684; Hoag v. Lake Shore, etc., R. Co., 85 Pa. 293, 27 Am. Rep. 653: Wood v. Pennsylvania R. Co., 177 Pa. 306, 35 Atl. 609, 35 L. R. A. 199, 55 Am. St. Rep. 728; Coley v. Statesville, 121 N. C. 301, 28 S. E. 482; Gilman v. Noyes, 57 N. H. 627; Benedict Pineapple Co. v. A. C. L. R. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A. (N. S.) 92; McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Scheffer v. Railroad Co., 105 U. S. 249, 26 L. ed. 1070; Pullman Palace Car Co. v. Barker, 4 Colo. 344. 34 Am. Rep. 89; Burlington & Missouri River R. Co. v. Budin, 6 Colo. App. 275, 13 Am. In its original and ordinary use, "proximate" neither means nor implies anything of naturalness or probability. Disregard ing, for the moment, legal definitions of "proximate," which may be mere erroneous definitions by earlier courts, forced upon. later courts with the sacredness of precedent, let us examine the word as ordinarily used among the laity and defined in two leading dictionaries. No one will dispute the fact that "proximate," according to its Latin derivation and its constant use, means "nearest" or "next." One dictionary defines "proximate" as "lying or being in relation with something else;" another, as "nearest; next immediately preceding or following." Neither of these dictionaries, except in giving the legal meaning of the term, says anything about naturalness or probability; which seems to indicate that the word never included either of these elements in its meaning, until stretched by the courts. One naturally asks, "How did 'proximate' come to have a combined meaning of 'proximate, natural, and probable,' as it now has in most jurisdictions?" This anomaly seems to be the result of an utter confusion of the rules for ascertaining the primary fact of negligence or willful wrong, with the rules for determining the fact-secondary in point of time and proper to be considered by the court only after the determination of the first fact of negligence or willful wrong-of proximity of the wrong established to the injury inflicted. In a negligence case, there are two important facts to determine: first, the negligence of the defendant; second, the proximity of such negligence to the injury suffered by the plaintiff. The probability of an injurious result is the very factor whose presence or absence makes the defendant's conduct negligence or not negligence. If no negligence is shown, the question of proximity need not be considered; if there is proof of negligence, further inquiry should be devoted strictly and solely to the question of proximity, naturalness and probability no longer having any place in the discussion of the case. Perhaps with desirable results in the particular case, but with bad results in establishing precedent, some courts, when there has seemed to be no negligence, though there was some slight evidence to uphold a verdict of negligence, have, in their eagerness to do justice in the individual case, set aside the verdict on the ground that no proximity of cause and result was shown, making proximity dependent upon "naturalness and probability." Such a case is Hoag v. Lake Shore, etc., R. Co. In this case, a recent landslide had thrown defendant's oil train from the track. The oil tanks burst, and the oil became ignited and flowed down into a creek, which had been augmented by recent rains. The burning oil flowed down the creek and ignited and destroyed plaintiff's buildings, which were three or four hundred feet from the track. The report of the case seems to make it extremely doubtful whether the defendant company was guilty of any negligence whatever. The court expressly refrained from determining the question of negligence and placed its decision for the defendant on the ground that, even if defendant was (5) Cited in footnote No. 2. For a similar case, see Burlington & Missouri River R. Co. v. Budin, also cited in footnote No. 2. It seems very doubtful whether there was any negligence in the Burlington case. See also Western Ry. Co. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L R. A. 316, 38 Am. St. Rep. 179; in which case plaintiff's intestate, a small boy, was killed while attempting to board a freight car of defendant, which was running at a greater rate of speed than permitted by ordinance. The court held that the negligence of the company was not the proximate cause of the injury. It might just as well have been said, as a matter of law, that there was no negligence, as no violation of a duty of defendant toward plaintiff's intestate was shown. "Negligence is a breach of duty. Where there is no duty or no breach, there is no negligence." Kreigh v. Westinghouse, etc., Co., cited in footnote No. 2. negligent, the damage to plaintiff was too remote to warrant a recovery. The matters of anticipation and probability were given weight here by the court, as affecting proximity, and not as affecting the primary fact of negligence. The court says: "It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff's property as a consequence likely to flow from his negligence in not looking out and seeing the landslide. The obstruction itself was unexpected. An engine had passed along within ten minutes, with a clear track. But the obstruction was there, and the tender struck it. The probable consequence of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream by means of which, in part at least, the burning oil set fire to the plaintiff's buildings? This would be a severe rule to apply, and might have made the defendants responsible for the destruction of property for miles down Oil Creek." The court here seems to consider it essential to plaintiff's recovery that the engineer should have foreseen practically the exact results that ensued. Probably, though feeling that, as a matter of fact, there was no negligence in the case, the court did not wish to find upon that point, and so resorted to an extreme interpretation of proximate result, in order to save an innocent and unfortunate defendant. (6) It is interesting to note the remark of the court to the effect that a different rule in this case "might have made the defendants liable for the destruction of property for miles down Oil Creek." Even if such were the obvious result of a holding adverse to the company, it would not constitute a valid argument against such a holding. Distance in space, and lapse of time, of themselves, without any independent, efficient, intervening cause, cannot properly be said so to break causal connection as to cut off a right of action. "A result may be, physically speaking, secondary and consequential, and yet in legal contemplation be for exactly such results as the defendant An unjust and absurd result has sometimes arisen from holding that, in order to hold a defendant liable for results of his negligence, the results must be such as the defendant, as a reasonable man, should have foreseen. Pullman Palace Car Co. v. Barker, a Colorado case, affords an excellent illustration. In this case, the defendant sleeping car company negligently permitted its sleeping car to catch fire, by reason of which the plaintiff, a female passenger in the car, who was then menstruating, was compelled to leave the car, half-interesting Florida case, the defendant, a clad, on a cold night. Suppression of menses and a long illness followed. As the plaintiff had given the defendant no notice of her condition at any time before the company's negligent act, it was held that the defendant was not liable for the resulting illness. The court reasoned that exposure in her then condition intervened as a cause, and that the defendant, having no notice of such condition, could not be held liable for a result of which the condition was an intervening cause. Happily, this holding, making it the duty of every female passenger to tell the brakeman or conductor of any disorder she may at the moment have, is not generally law. In a case of injury to a pregnant passenger by negligently putting her off three miles out of town, and thus compelling her to take a long walk, the Wisconsin court, speaking through Mr. Justice Taylor, refused to apply such a rule as the one just noted, and said: "The defendant is not excused because it did not know the state of health of Mrs. Brown, and is equally responsible for the consequence of the walk as though its employes had full knowledge of the fact.' railroad company, was charged with the negligent burning of a canvas cover used to protect growing pineapple plants and fruit from injury by cold and frost. The question was raised whether this negligent destruction of the cover was a proximate cause of injury by cold and frost to the growing plants and fruit before the burned cover could, by reasonable diligence, be restored, so as to give the owner a right to recover damages for the injury to the plants and fruit by cold and frost. Mr. Justice Whitfield, in reversing a judgment for defendant on demurrer to the declaration, after giving some weight to the question of probability, states the law as follows: "Results that follow in ordinary, natural, continuous sequence from a negligent act or omission, and are not produced by an independent efficient cause, are proximate results of the negligence, and for such results the negligent party is liable in damages, even though the particular results that did follow were not foreseen." This is an excellent statement of the law as it now stands in most jurisdictions. The Minnesota Supreme Court, speaking through Mr. Justice Collins, says: "The in |