NEGLIGENCE.

asked it, without qualification. or to have it plainly refused." Per
GOULD, J. Wilds vs. Hudson River Railroad Co.,

5. The danger at the crossing of a railroad and street at grade is one
which travellers are as much bound to guard against as the railway com-
pany, and the negligence of the company will not excuse or qualify the
duty of watchfulness on the part of the traveller. Per GOULD, J. Id.

6. A request on the part of defendant, to charge the jury, that if the
deceased was aware of the approach of the train, before he drove upon
the track, and voluntarily drove upon it after being so aware of its
approach, he cannot recover, should be answered in the affirmative. Per
GOULD, J. Id.

7. Where the plaintiff's negligence will bar his recovery for damage
resulting mainly from negligence of defendant. Note to Wilds vs. Hudson
River Railroad Co.,

76

8. A., being the owner of real estate situated upon a street in a city,
contracted with B to erect a building thereon, which included an exca-
vation of the sidewalk adjoining. Excavations of a dangerous character
were made by the contractor, to which the attention of A. was called by
the city. The city knew of the excavation of this and similar areas, and
interposed no objection, though no express permission to make this one
was given. C. fell into the unprotected area and was injured. He
brought an action against the city to recover damages. A. had know-
ledge of the action, but was not expressly notified to defend it; nor was
he informed that the city would look to him for indemnity. A judgment
was recovered against the city, which it was compelled to pay. In an
action by the city against A., to be reimbursed the amount which it had
paid under the judgment, Held, assuming that C. was injured through
the fault of A., and that the city was not a wrongdoer, A. is concluded
by the judgment recovered against the city. No express notice to him
of the pendency of the action was necessary. It is enough that he knew
it was pending, and could have defended it. Chicago vs. Robbins, . 529
9. The excavation, though not a nuisance in itself, became such on
account.of the improper manner in which it was made. The city is not,
however, for that reason a wrongdoer, in such a sense as to lose its right
of action against A. No license from the city to leave the area open and
unguarded can be presumed. Id.

10. The defendant was under an obligation to have the work done in
such a way as to save the city from damage and the public from harm.
He cannot escape liability by letting out the work to a contractor. The
work having been done in such a manner as to render the city liable in
the first instance, the defendant is answerable to it for the amount which
it was compelled to pay.
Id.

11. The case of Hilliard vs. Richardson, 3 Gray 349, distinguished,
and the case of Scammon vs. The City of Chicago, 25 Illinois 424, so far
as it conflicts with these principles, overruled. Id..

12. Plaintiff, a carman, was sent to defendants' premises to receive
certain goods, which were usually handed to him out of a room or door
in a passage.
After waiting some time, he inquired of the defendants'
gatekeeper for the warehouseman. The gatekeeper directed him to enter
at a certain door, and follow the passage in a certain direction, and he
would meet the warehouseman. Plaintiff followed the direction, and in
going along the passage, which was dark, fell down through the well-
hole of a staircase into an underground part of the premises. An action
having been brought by plaintiff he was nonsuited, and on a rule to set
it aside, it was held, that the nonsuit was rightly directed, on the ground
that if it was so dark that plaintiff could not see, he ought not to have
proceeded without a light; and if it was sufficiently light for him to see,
he might have avoided the staircase, which was a very different thing
from a hole or a trapdoor down which a man might fall. Wilkinson vs.
Fairrie et al.,

242

NEGLIGENCE.

13. It was not the business of the owners to have the passage lighted
and there was no contract or duty on their part that it should be in any
other condition than it was. Wilkinson vs. Fairrie et al.,

14. Generally speaking, it is the duty of every person to take care of
his own safety, so as not to go along a dark passage without a light to
tell him where he is going, and what the danger is that he is to
expect. Id.

15. Where the fence put round certain mill machinery, required by
statute to be fenced, had been broken, and the owner having notice of
the defect was guilty of negligence in not using reasonable care to have
his machinery properly secured, a servant who had entered into his
employment when the machinery was fenced, and who continued in the
service after knowledge that the fence was gone, in the reasonable ex-
pectation, induced by the expressions of the owner and his manager to
him, that the defect would be repaired, without negligence on his own
part, met with an injury by reason of the machinery being unfenced:-
Held, that he could maintain an action for the injury against his em-
ployer. Holmes vs. Clarke,

16. Liability of owner of a building for carelessness of workmen em-
ployed in repairing. Brackett vs. Lubke,

17. One who is employed to do a piece of work and uses his own
workmen and his own discretion, is alone liable for injuries from negli-
gence in the manner of doing it. O'Rourke vs. Hart,

18. Where a person is killed by the act of another, under such circum-
stances that the deceased, had he survived, could have maintained an
action for the injury, an action can be maintained under the 9 & 10 Vict.
c. 93, ss. 1 and 2, for the benefit of the surviving relatives, in respect of
an injury arising from a pecuniary loss occasioned by the death, although
the same pecuniary loss would not have resulted to the deceased had he
lived. Pym vs. Great Northern Railway Co.,

19. The loss of the benefit of a superior education and the enjoyment
of greater comforts and conveniences of life, is a pecuniary loss for which
the wife and children of the person killed may maintain an action under
the statute, where the income of the deceased wholly ceases with his
death, or where the premature death prevents the deceased from having
made the extra provision for his family which he might be reasonably
expected to have made had he lived out his natural life Id

242

107

63

367

234

20. Negligence of person having charge of young child is the same as
his own would be if he were an adult. Wright vs. Malden Railroad Co., 379
21. What is prima facie evidence of such neglect. Id.

22. Of owner of property left by mistake on another's wharf will not
justify a sale of the property by wharfinger. Kusenburg vs. Browne,
NEGOTIABLE BONDS.

1. Without statutory provision, no action can be maintained in the
name of an assignee, upon interest coupons, which contain no nego
tiable words, nor language from which it can be inferred, that it was
the design of the corporation issuing them, to treat them as negotiable
paper, or as creating an obligation distinct from the bonds to which they
were severally attached when the bonds were issued. Jackson vs. The Y.
&C. Railroad Co.

2. The negotiability of such coupons is a question of law, to be deter-
mined, from the papers themselves, and proof of custom, as to the nego
tiability of them, is inadmissible. Id.

3. The bonds being specialties, the remedy for breaches thereof, is by
an action of debt or of covenant; not being legally assignable, no action
is maintainable in the name of the holder, though he be assignee. Id.
4. It is indispensable that the cause of action exist at the time the ac-
tion was commenced. The statute of Maine of 1856, c. 248, does not
remedy this defect. Id.

503

585

NEGOTIABLE INSTRUMENTS.

1. What may be considered such, and particularly of negotiable bonds.
Note to Jackson vs. Y. & C. Railroad Co. 595; and Supplementary Note, 748.
NEPHEWS.

1. Devise to "all my nephews," &c., does not include nephews of tes-
tatrix's husband. Paul's Estate,

NOTICE.

See JUDGMENT, 2.

NUISANCE.

1. Where a lawful business is carried on at unseasonable hours, it be-
comes a nuisance, and equity will interfere by injunction to restrain it.
Dennis vs. Echardt,

2. On a highway, cannot be abated by a private individual unless it
does him special injury. Harrower et al. vs. Ritson et al.

3. Erection of a pier in navigable river without legal authority will be
a nuisance per se, which will be enjoined, and no evidence will be received
to show that it will do no harm. People vs. Vanderbilt,

447

166

. 315

632

697

4. Notice to remove before action brought. Caldwell vs. Gale,
5. The fact that other causes have helped render a well impure, is no
defence to action for injury to it by the escape of gas into it, but may
affect the amount of damages. Sherman vs. Fall River Iron Works Co.,. 763

OFFICER.

See BILLS, 2.

DEED, 1.

PUBLIC OFFICER.

PARDON.

1. A pardon is an act of mere grace, and is not founded on any pre-
liminary steps that furnish legal merits or a legal title. Commonwealth
ex rel. Crosse vs. Halloway,

2. The intention of the Executive to grant a pardon can have no legal
force until carried into completed act. The completed act is the charter
of pardon delivered. Id.

3. By usage in Pennsylvania, the delivery of a pardon to the warden
of a prison is primâ facie equivalent to delivery, or is a constructive deli-
very to the prisoner, but it is open to be proved no delivery by showing
circumstances that are inconsistent with the intention to deliver it. Id.
4. A pardon procured by false and forged representations and papers
18 void. Id.

5. Therefore, in a case where on the faith of a forged letter from the
War Department, asking for a pardon, and stating that the prisoner was
wanted for secret public service, a pardon was executed by the Governor
and put into the hands of the United States Marshal, to be delivered to
the prisoner on his performance of the service, and by the marshal deli-
vered to the warden of the prison in order to obtain the release of the
prisoner, Held, that this was not a delivery to the prisoner, notwith-
standing the custom in Pennsylvania to deliver pardons to the warden of
the prison to keep as his voucher. Id.

6. Even had this been a delivery, the fraud in obtaining the par-
don would have avoided it, although it was not shown that the prisoner
had any hand in perpetrating the fraud.

Id.

7. Whether the statute 27 Edw. 3, c. 2, is in force in Pennsylvania,
quære? Id.

8. What is a pardon-who may pardon--what may be pardoned-con-
ditional pardons-void pardons-how taken advantage of-effect of. Note
tc Commonwealth ex rel. Crosse vs. Halloway,

474

486

PARDON.

9. Pardon pleaded before sentence discharges defendant from liability
for costs. Commonwealth vs. Ahl, .

PARENT AND CHILD.

1. The rule that there is no implied contract for compensation between
parent and child, on the one part for maintenance and education and on
the other for services, applies also between a child and a person assuming
the relation of parent to it. Duffy et al. vs. Duffy,

2. Though the father is bound to maintain his child, yet if the latter
is taken and maintained by a relative without the father's previous re-
quest, though with his assent, there is no implied contract by the father
to reimburse the relative for his expenses on the child's account. Id.
3. Suit by parent for child's earnings-emancipation. Brown vs. Ram-

say,

4. Emancipation is revocable under certain circumstances. Abbott vs.
Converse,

PARTNERSHIP.

See SET-OFF, 2.
TRUSTS, 5.

633

434

56

380

1. A partner has power to compromise and discharge a claim of the
partnership against a third party. Noyes vs. The New Haven Railroad Co., 347
2. And a payment to a partner is a good payment to the firm, although
the other partner or partners had given notice to the debtor not to pay
to such partner. Id.

3. Whether the power of a partner to bind the partnership by an execu-
tory contract, would not be affected by a notice from the other partners
revoking his authority: Quere. Id.

4. Authority of partner to settle the affairs of the concern after disso-
lution remains the same as it was before. Robbins et al. vs. Fuller,

185

5. What may be held proof of partnership as to third parties. Dren-
nen et al. vs. House et al.

187

6. Not liable for money borrowed by individual partner.

Donnally vs.

Ryan,

7. Guarantee of private debt of one partner in contemplation of insol
vency cannot be proved against the joint estate by a creditor who knew
the firm to be insolvent. Phillips vs. Ames et al.

8. Where one permits another to buy stock on joint account in antici-
pation of partnership and immediately after repudiates the agreement, he
is not entitled to any of the property bought, nor are his creditors. Rice
vs. Shuman,

698

635

9. Requisitions of the statutes in regard to limited partnership must
be strictly complied with. Pierce vs. Bryant et al.

10. Creditor need not prove special loss from want of such compliance.
Id.
PARTY-WALL.

1. Right to lateral support from an ancient party-wall. Phillips vs.
Bordman,

64

PATENT.

1. At common law an inventor has no exclusive right to his invention
Such right is the creature of the statute, by which alone the right claimed
in any given case must be determined. Morton vs. New York Eye Infirm-

ary,

2. In its strict sense a discovery is not patentable. Id.
3. The discovery of the use of ether in surgical operations. though
of inestimable benefit to the human race, was merely the discovery of
a more perfect effect of the action of well-known agents, operating by

372

PATENT.

well-known means upon well-known subjects, and as such was not legally
entitled to be patented. Morton vs. New York Eye Infirmary,

4. Sale of worthless patent not a sufficient consideration for promis-
sory note. Lester vs. Palmer,

PERSONAL PROPERTY.

1. Power of Legislature to declare what shall be held to be personalty.
Maus vs. Logansport &c., Railroad Co.

2. Chattel interests in land should be sold as personal property. Buhl
vs. Kenyon,

FHYSICIANS AND SURGEONS.

1. Physicians and surgeons who offer themselves to the public as prac-
titioners, impliedly promise thereby, that they possess the requisite know-
ledge and skill to enable them to treat such cases as they undertake with
reasonable success. Patten vs. Wiggin,

2. This rule does not require the possession of the highest, or even the
average, skill, knowledge, or experience, but only such as will enable
them to treat the case understandingly and safely. Id.

3. The law also implies that in the treatment of all cases which they
undertake, they will exercise reasonable and ordinary care and diligence.
Id.

4. They are also bound always to use their best skill and judgment
in determining the nature of the malady and the best mode of treatment,
and in all respects to do their best to secure a perfect restoration of
their patients to health and soundness. Id.

5. But physicians and surgeons do not impliedly warrant the reco-
very of their patients, and are not liable on account of any failure in
that respect, unless through some default of their own duty, as already
defined. Id.

6. If the settled practice and law of the profession allows of but one
course of treatment in the case, then any departure from such course
might properly be regarded as the result of want of knowledge, skill,
experience, or attention. Id.

7. If there are different schools of practice, all that any physician or
surgeon undertakes is, that he understands, and will faithfully treat the
case according to, the recognised law and rules of his particular school.
Id.

8. Distinction between physicians and surgeons.
Wiggin,

672

62

118

570

401

Note to Patten vs.

405

9. Right to sue for compensation for services-liability for malprac-
tice-knowledge and skill required of them. Id.

PLANK ROADS.

1. Liability of subscribers under the New York Act. Poughkeepsie,
&c., Plankroad Co. vs. Griffin,

121

PLEADING.

1. THE TRAVERSE DE INJURIA,

2. Defective averment of compromise. Dolcher et ux. vs. Fry,

POORHOUSE.

. 577
124

1. Not taxable for school purposes in Pennsylvania. Directors of Poor
vs. School Directors,

448

POWER.

1. Of sale in mortgage must be strictly complied with.

Smith vs. Pro-

376

vin,