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disposed of more rapidly than at present there must this kind upon whatever basis arranged would almost be soine arrangement whereby a greater number can inevitably lead to confusion, and in any event to a be submitted. How can this be accomplished except more or less unequal division of work among the by haviug either more than one tribunal sitting at the judges; whereas it is advisible to accomplish the obsame time or by extending the duration of the present ject in view with as little an invasion upon established sessions. This latter proposition is practically impos- usages as possible and with as year an equal division of sible as it would leave but little time for the consid- labor as may may be. eration of causes, which is of far more importance tbau The simplest metbod occurring to me of accomplishthe hearing of them.

ing this end, is to make up a calendar under the same The former proposition, which is the one that seems regulations as at present obtain. preferable to me, involves the separation of the court Then when the court convenes, the two divisions into divisions for the purpose of hearing causes in the sitting in separate rooms, let one division hear those first instance at least. A division of the courts into causes which appear upon the general calendar desigtwo brauches would at once double the number of nated by odd numbers, and the other division those causes submitted provided the duration of the ses- causes designated by even numbers; with the undersious was the same as now in vogue, and if there were standing that all causes, whenever there should happen enougb members of the court to decide the causes to be any such involving practically the same question, thus submitted with the same rapidity as at present be heard in the same brancb. there would in the course of the year be twice the It will be seen that the method of relief here propumber of causes disposed of.

posed involves very little change in the court and This however would necessitate doubling the num. methods of procedure, but only suggests a change in ber of judges. But as it is not necessary to so far in- the present mode of hearing causes, and proposes a crease the number of causes disposed of in order to larger number of judges to expedite the decisions of keep the calendar withiu limits, the court need not be the extra number of causes submitted. so greatly enlarged, provided the method of constitut- Of course the number of judges here named does ing each branch when holding sessions for the sub

not have any very material bearing upon the method mission of causes is not the same as now obtains for of relief suggested. the whole court. Is this necessary? Could not just

J. M. P. as complete justice be attained by lessening the number of judges necessary to form a quorum? I thiuk it

BURNING CORPSE NOT A MISDEMEANOR. could, certain qualifications attaching.

The present number of judges, as we have already seen, is seven, five form a quorum, and a concurrence


7, 1884. of four is necessary to render a decision. I would suggest that this number be increased to eleven. Let the court then be divided into branches for the

QUEEN V. PRICE, L. R., 12 Q. B. Diy. 247. purpose of having causes submitted, either with or To burn a dead body, instead of burying it, is not a misdewithout argument. The objective point being to ob- meanor, unless it is so dono as to amount to a public nuitain the submission of such a number of causes as that after the calendar is once properly reduced, it may be

If an inquest ought to be held upon a dead body, it is a miskept witbiu limits, let such a length of session be

demeanor so to dispose of the body so as to prevent the adopted by the two branches as would accomplish this

coroner from holding the inquest. eud; the judges to determine this time to suit them.

T the assizes held at Cardiff before Stephen, J., in selves.

February, 1884, William Price was indicted for Let each division of the court consist of five judges attempting to buru the body of his child, instead of to be designated by, the chief judge, and changeable burying it; and a second indictment charged him with from one division to the other as might be deemed attempting to burn tho body with intent to preveut the advisable, the chief judge to sit with either division, holding of an inquest upon it. and when sitting to bo the presiding judge of that G. B. Hughes, Q. C., and B. T. Williams, appeared division. In the other division and upon such occa

for the prosecution. sions as the chief judge did not sit, the eldest judge in each division in point of time upon the bench, to pre

The prisoner was undefended. side. Three judges to form a quorum in the divisions, After hearing counsel for the prosecution, the all the members sitting when possible; a coucurrence learned judge left the case to the jury, directing them of four judges upon consultation between the five in the terms of his charge to the grand jury, which on necessary to render a decision; either division to call account of the importance and novelty of the subject upou the other in consultation upon such causes as a to which it relates is here given. The jury acquitted majority of such division might desire. In which the prisoner on both charges. event however in order to arrive at a decision of the STEPHEN, J. One of the cases to be brought before particular cause there would have to be a concurrence you is so singular in its character, and involves a legal of six judges, with the power, if after such consulta- question of so much novelty and of such general intertion it was deemed advisable by a majority of the est, that I propose to state at some length what I bewhole court, to decree a re-argument before the lieve to be the law upon the matter. I have given it court.

all the consideration I could, and I am permitted to All causes involving a construction of the Constitu- say that although I alone am responsible for what I am tion of the State of New York to be argued before the about to say to you, Lord Justice Fry takes the whole court, when seven judges must sit to form a same view of the subject as I do, and for the same reaquorum, and six concur in rendering a decision. This rule to apply on all occassions when the court sits as William Price is charged with a misdemeanor under one body. The practice in taking appeals to remain as the following circumstances: He had in his house a at present.

child five months old of which he is said to have been The next point to be considered is, what causes shall the father. The child died, and Price, as it seems, did be heard by the divisions ? Shall the causes be divided not register its death. The coroner accordingly gave into classes and these classes apportioned between the him notice on Saturday, the 12th of January, 1884, that two brauches? I think not. It seems to me a division of unless he sent a medical certificate of the cause of the



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child's death he (the coroner) would hold an inquest iv., tit. vii., there is an elaborate discourse, filling on the body on the following Monday. Price on the twenty-two folio pages in double columns, on the subMonday afternoon took the body of the child to a ject of burial, in which every branch of the subject is field of his own, some distance from the town of Llan- systematically arranged and discussed, with referentrissant, put it into a ten gallou cask of petroleum and ces to numerous authorities. The importance of it is set the petroleum on fire. A crowd collected, the that it shows the view taken by the Canonists, and body of the child which was burning was covered with this view had great influence on our own ecclesiastiearth, and the flames were extinguished, and Price was cal lawyers, though only a small part of the canon law brought before the magistrates and committed for itself was ever introduced into this country. trial. He will be indicted before you on a charge Van Espen throughout regards the participation in which in different forms imputes to him as criminal funeral rites as a privilege to which, subject to certain two parts of what he is said to have done. Namely, conditions, all the members of the church were enfirst, his having prevented the holding of an inquest titled, and the deprivation of which was a kind of on the body; and secondly, his having attempted to posthumous punishment analogous to the excommuburn the child's body.

nication of the living. The great question with which With respect to the prevention of the inquest the he occupies himself is, in what cases ought bur law is, that it is a misdemeanor to prevent the holding ial to be denied? The general principle is, that those of an inquest which ought to be held by disposing of who are not worthy of church privileges in life are the body. It is essential to this offense that the in- also to be excluded from them after death. "Sicuti quest which it is proposed to hold is one which ought enim nonullos vivos a sua communione, præsertim in to be held. The coroner has not an absoluto right to sacris, jam pridem excludendos censuit, ita quoque hold inquests in every case in which he chooses to do eosdem sua communione post mortem indignos credidit." 80. It would be intolerable if he had power to in- As for the manner in which the dead bodies of pertrude without adequate cause upon the privacy of a sons deprived of Christian burial were to be disposed family in distress and to interfere with their arrange- of, Van Espen says only that though in some instan. ments for a funeral. Nothing can justify such inter- ces the civil power may have entirely forbidden burference except a reasonable suspicion that there may ial, whereby bodies may remain unburied and exposed have been something peculiar in the death, that it may to the sight of all to be devoured by beasts or de have been due to otber causes than common illness. stroyed by the weather (he considers the dissection of In such cases the coroner not only may, but ought, to criminals as a case of this sort), the church has never hold an inqnest, and to prevent him from doing so by made such a provision, and has never prohibited the disposing of the body in any way--for an inquest must covering of such corpses with the earth. be held on the view of the body-is a misdemeanor. This way of looking at the subject seems to explain The depositions in the present case do not very clearly how the law came to be silent on exceptional ways of show why the coroner considered an inquest neces- disposing of dend bodies. The question was, in wbat Bary. If you think that the conduct of Price was cases burial must be refused? As for the way of dissuch as to give the coroner fair grounds for holding posiug of bodies to which it was refused, the matter one, you ought to find a true bill, for beyond all escaped attention, being probably regarded as a matquestion Price did as much as in him lay to dispose of ter which interested those only who were so unfortu. the body in such a manner as to make an inquest im- Date as to have charge of such bodies. possible.

The famous judgment of Lord Stowell in the case of The other fact charged as criminal is the attempt iron coffins (Gilbert v. Buzzard, 2 Hag. Con Rep. 333). made by Price to burn the child's body, and this which constitutes an elaborate treatise on burial, proraises, in a form which makes it my duty to direct you ceeds upon the same principles. The law presumes upon it, a question which has been several times dis- that every one will wish that the bodies of those in cussed, and has attracted some public attention, whom he was interested in their life-time should though so far as I know no legal decision upon it has hare Christian burial. The posibility of a man's enever been given, the question, namely, whether it is a tertaining and acting upon a different view is not conmisdemeanor at common law to burn a dead body in- sidered. stead of burying it.

These considerations explain the reason why the law As there is no direct authority upon this question I is silent as to the practice of burning the dead. Before have found it necessary to examine several branches I come to consider its legality directly, it will be well of the law which bear upon it more or less remotely. to notice some analogous topics which throw light The practice of burning dead bodies prevailed to a con- upon it. There is one practice which has an analogy siderable extent under the Romans as it does to this to funereal burning, inasmuch as it constitutes an exday amongst the Hindoos, thvugh it is said that the ceptional method of dealing with dead bodies. I refer practice of burial is both older and more general. to anatomy. Anatomy was practiced in England at Burning appears to have been discontinued in this least as far back as the very beginning of the sevencountry and in other parts of Europe when Christian- teenth century. It continued to be practiced without, ity was fully established, as the destruction of the so far as I know, any interference on the part of the body by fire was considered, for reasons to which I Legislature down to the year 1832, in which was passed need not refer here, to be opposed to Christian senti- the act for regulating schools of anatomy, 2 & 3 Wm. ment, but this change took place so long ago, and the 4, ch. 75. This act recites the importance of anatomy, substitution of burial for burning was so complete, and that the legal supply of human bodies for such that the burning of the dead has never been formally anatomical examination is insufficient fully to provide forbidden or even mentioned or referred to, so far as the means of such knowledge." It then makes proI know, in any part of our law. The subject of burial vision for the supply of such bodies by enabling "any was formerly, and for many centuries exclusively a executor or other party having lawful possession of branch of the ecclesiastical or canon law. Amongst the body of any deceased person," to permit the body the English writers on this subject little is to be to be dissected, except in certain cases. The effect of found relating to burial. The subject was much more this has been that the bodies of persons dying in varelaborately and systematically studied in Romanious public institutions whose relations are unknown Catholic countries than in England, because the law are so dissected. The act establishes other regulaitself prevailed much more extensively. In the Jus tions pot material to the present question, and enacts Ecclesiasticum of Van Espen, II. 142–168, Part II., sec. tbat after examination the bodies shall be “decently interred." This act appears to me to prove clearly where his body lies to the parish cemetery." It adds: that Parliament regarded anatomy as a legal practice, “The individual under whose roof a poor person dies and further, that it considered that there was such a is bound” (i. e., if no one else is so bound-as appears thing as “a legal supply of human bodies," though from the rest of the case) “to carry the body decently that supply was insufficient for the purpose. This is covered to the place of burial. He cannot keep him inconsistent with the opinion that it is an absolute unburied, nor do any thing which prevents Christian duty on the part of persons in charge of dead bodies to burial. He cannot therefore cast him out so as to exbury them, and this conclusion is rather strengthened pose the body to violation, or to offend the feelings or than otherwise by the provision in section 13, that the endanger the health of the living; for the same reason "party removing" the body shall provide for its de- he cannot carry him uncovered to the grave.” In tho cent burial after examination. This seems to imply case of Reg.v. Vann, 2 Den. 325, the court held: “ That that apart from the act the obligation to bury would a man is bound to give Christian burial to his deceased not exist, and it is remarkable that the words are not, child if he has the means of doing so; but he is not as in the earlier section, "executor or other party,' liable to be indicted for a nuisance if he has not the but “party removing,” referring no doubt to the mas- means of providing burial for it.” ter of the workhouse or other person in a similar posi- These cases are the nearest approach which I have tion who hands the body over to the surgeons. Upon been able to find to an authority directly upon the him the statute imposes the duty of decently interring present point. It may be said that if there is an absothe bodies with which he is allowed to deal. The exec- lute duty upon a man having the means to bury his utor's rights at common law, whatever they may be, child, and if it is a duty to give every corpse Christian are not altered.

burial, the duty must be violated by burning it. I do I come now to a series of cases more closely con- not think however that the cases really mean to lay nected with the present case. As is well known the down any such rule. The question of burning was not great demand for bodies for anatomical purposes not before the court in either case. In Reg. v. Stewart, 12 only led in some cases to murders, the object of which A. & E. 773, 779, the question was whether the duty of was to sell the body of the murdered person, but also burial lay upon the parish officers or on some other perto robberies of churchyards by what were commonly son. In Reg.v. Vann, 2 Den. C. C. 325, the question was called resurrection men. This practice prevailed for whether a man who had not the means to bury his a considerable length of time,as appears from the case child was bound to incur a debt in order to do so. In of Rest v. Lynn, 2 T. R. 733; S. ('., 1 Leach, 497, decided neither case can the court have intended to express in 1788–44 years before the anatomy act. In that case themselves with complete verbal accuracy, for in the it was held to be a misdemeanor to disinter a body for case of Reg. v. Stewart, 12 A. & E. 773, 779, the court the purpose of dissection, the court saying that com- speaks of the “rights" of a dead body, which is obmon decency required that the practice should be put viously a popular form of expression—a corpse not bea stop to, that the offense was cognizable in a criminal ing capable of rights, and in both cases the expression court as being “highly indecent and contra bonos Christian burial" is used, which is obviously inapmores, at the bare idea alone of which nature re- plicable to persons who are not Christians, Jews, for volted ” They also said that "it had been the regu- instance, Mahommedaus, or Hindoos. To this I may lar practice of the Old Bailey in modern times to try add that the attention of neither court was called to charges of this nature.” It is to be observed in refer- the subject of anatomy already referred to. Skeletons ence to this case that the act done would have been a and anatomical preparations could not be innocently peculiarly indecent theft if it had not been for the obtained if the language of the cases referred to were technical reaso that a dead body is not the subject construed as if it were intended to be severely and litof property. The case however has been carried a erally accurate. step farther in modern times. It was held in Reg. v. There is only one other case to be mentioned. It is Sharpe, 1 D. & B. 160, to be a misdemeanor to disiuter the case of Williams v. Williams, which was decided a body at all without lawful authority, even when the just two years ago by Kay, J., in the Chancery Divismotives of the offender were pious and laudable, the ion of the High Court, and is reported in the Law Recase being one in which a son disinterred his mother ports, 20 Ch. D. 659. In this case one H. Crookeuden in order to bury her in his father's grave, but he got directed his friend, Eliza Williams, to burn his body, and access to the grave and permission to open it by a false directed his executors to pay her expenses. The execupretense.

tors buriedthe body. Miss Williams got leave from the The law to be collected from these authorities seems secretary of State to disinter it in order, as she said, to be to me to be this: The practice of anatomy is lawful buried elsewhere. Having obtained possession of it by and useful, though it may involve an unusual meaus this misrepresentation, she burnt it, and sued the execof disposing of dead bodies, and though it certainly utors for her expenses. The case leaves the question shocks the feelings of many persons, but to open a now before me uudecided. “The purpose,” says Kay, grave and disinter a dead body without authority is J., “confessedly was to have the body burnt, and a misdemeanor, even if it is done for a laudable pur- thereupon arises a very considerable question whether pose.

that is or is not a lawful purpose according to the law These cases, for the reasons I have given, have some of this country. That is a question I am not going to analogy to the case of burying a dead body, but they are decide." He held that in that particular case the reremote from it. They certainly do not warrant the moval of the body and its burning were both illegal proposition that to burn a dead body is in itself a mis according to the decision of Reg. v. Sharpe, 1 D. & B. demeauor.

160, already referred to. “Giving the lady credit,” he Two other cases come rather nearer to the point. said "for the best of motives, there can be no kind of They are Reg. v.Vann, 2 Den.C.C. 325, and Reg.v. Stew. doubt that the act of removing the body by that liart, 12 A. &E.773, 779. Each of these cases lays down in cense and then burning it, was as distinot a fraud on unqualified terms that it is the duty of certain speci- that license as any thing could possibly be.” This was fied persons to bury in particular cases. The case of enough for the purposes of the particular case, and Reg. v. Stewart, 12 A. & E. 773, 779, lays down the fol- the learned judge accordingly expressed no opinion on lowing principles: “Every person dying in this coun- the question on which it now becomes my duty to ditry, and not within certain exclusions laid down by rect you. the ecclesiastical law, has a right to Christian burial; The question arises in the present case in a perand that implies the right to be carried from the place fectly clear and simple form, unembarrassed by any

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such consideration as applied to the other cases to to be admitted with the greatest reluctance, and only which I have referred. There is no question here of upon the strongest reasons. the illegality and dishonesty which marked the con Tois brings me to the last observation I have to duct of those who were described as resurrection men, make. Though I think that to buru a dead body denor of the artifices, not iudeed criminal but certainly cently and inoffensively is not crimiual, it is obvions disingenuous, by which possession of the body was ob- that if it is doue in such a manner as to be offensive to tained in the cases of Reg. v. Sharpe, 1 D. & B. 160, others it is a nuisance of au aggravated kind. A comand Williams v. Williams, 20 Ch. D. 659. Price had mon nuisance is an act which obstructs or causes inlawful possession of the child's body, and it was not convenience or damage to the public in the exercise of only his right but his duty to dispose of it by burying rights common to all her majesty's subjects. To burn or in any other manner not in itself illegal. Hence I a dead body in such a place and such a manner as to must cousider the question whether to burn a annoy persons passing along public roads or other dead body instead of burying it is in itself an illegal places where they have a right to go is beyond all act.

doubt a nuisance, as nothing more offensive both to After full consideration, I am of opinion that a per- sight and to smell can be imagined. The depositions son who burns instead of burying a dead body does in this case do not state very distinctly the nature and not commit a criminal act, unless he does it in such a situation of the place where this act was done, but it manuer as to amount to a public nuisance at common you think upon inquiry that there is evidence of its law. My reason for this opinion is that upon the having been done in such a situation and manner as to fullest examination of the authorities, I have, as the be offensive to any considerable number of persons, preceding review of them shows, been unable to dis- you should find a true bill. cover any authority for the proposition that it is a misdemeanor to burn a dead body, and in the absence of such authority I feel that I have no right to declare it DUTY IMPOSED BY STATUTE-CON TRIBU. to be one.

TORY NEGLIGENCE NO DEFENSE. There are some instances, no doubt, in which courts of justice have declared acts to be misdemeanors NEW HAMPSHIRE SUPREME COURT, JUNE, 1891. which had never previously been decided to be so, but I think it will be found that in every such case the

CRESS EY V. The NORTHERN RAILROAD.* act involved great public mischief or moral scandal. It is not my place to offer any opinion on the compara

The neglect of a railroad company to fence their road does not tive merits of buruing and burying corpses, but before

excuse them from liability for injury to animals upon their

track, although the owner of such animals was aware of I could hold that it must be a misdemeanor to buru a

that neglect when he turned them out to graze on his own dead body, I must be satisfied not only that some peo

adjoining land. ple, or even that many people, object to the practice,

VASE for killing the plaintiff's mare, through the deg. but that it is, on plain, undeniable grounds, highly mischievous or grossly scandalous. Even then I should pause long before I held it to be a misde

between their railroad and the high way. The plaintiff, meanor, for many acts involving the grossest inde- kuowing the want of a fence, turned his mare into the cency and gruve public mischief-incest, for instance, highway to feed, and she wandered at large and quatand where there is no conspiracy, seduction or adul

tended in the highway within the limits of the plainttery-are not misdemeanors, but I cannot take even

ift's farm and upon the railroad, and was overtaken by

the defendants' cars and killed. the first step. Sir Thomas Browne finishes his famous essay on Uru Burial with a quotation from Lu

Verdict for the defendants, and motion for a new

trial. can, which in eight words seems to sum up the matter: Tabesne cadavera solvat an rogus haud refert.Hawthorne & Davis, for plaintiff. Whether decay or fire consumes corpses matters not. Mugridge, for defendant. The difference between the two processes is only that one is quick, the other slow. Each is so horrible that

STANLEY, J. The plaintiff's mare was grazing upon

his land. It is not material that it was on land in every healthy imagination would turn away from its details; but one or the other is inevitably and each

which the public bad au easement, since her grazing may be concealed from observation by proper precau

did not interfere with thu public rights, and subtions. There are, no doubt, religious convictions and

ject to these rights, the plaintiff was entitled to feelings connected with the subject which every one

the use of the land within the limits of the highwould wish to treat with respect and tenderness, and

way as fully as to the use of any land he owued. I suppose there is no doubt that as a matter of histori

Makepeace v. Worden, 1 N. H. 16; Avery v. Marwell, 4 cal fact the disuse of burning bodies was due to the

id. 37; State v. New Boston, 11 id. 407; Baker v. Shepforce of those sentiments. I do not think however

ard, 24 id. 208. This case must therefore be decided that it can be said that every practice which startles

upou the same principles as if the animal had wandered and jars upon the religious sentiments of the majority from the plaiutiff's field, through which the railroad of the population is for that reason a misdemeanor at

was built, and had been killed in consequence of a decommon law. The statement of such a proposition, in

fect in the fence, which the defendants were bound to

maintain. In such cases the law is well settled. Woolson plain words, is a sufficient refutation of it, but nothing short of this will support the conclusion that to burn

v. N. R., 19 N.H. 267; Chapin v. Sullivan R., 39 id. 564;

Dean v. Sullivan R., 22 id. 316; Cornwall v. Sullivan R., a dead body must be a misdemeanor. As for the public interest in the matter, burning on the one hand ef

28 id. 161; Smith v. Eastern R., 35 id. 356; Touns v. fectually prevents the bodies of the dead from poison

Cheshire R., 21 id. 363; Giles v. B. & M. R.. 55 id. 552. ing the living. On the other hand, it might no doubt

Whether the change made by the enactment of the destroy the evidence of crime. These however are

General Statutes, chapter 148, section 1, whereby railmatters for the Legislature, and not for me. It may

roads are, in terms, required to fence on both sides of be that it would be well for Parliament to regulate or

their road, except at their intersectiou with highways, to forbid the burning of bodies, but the great leading swerable for all damage occasioned by their neglect to

has so changed their liabilities that now they are anrule of criminal law is that nothing is a crime unless it is plainly forbidden by law. This rule is no doubt perform this duty, whether such damage is to the propsubject to exceptions, but they are rare, narrow, and

* Appearing in 59 New Hampshire Reports.

erty of adjoining land-owners or not, we need not now rule, for the owner to pasture his stook upon his own consider, since upon the facts found, we hold that the land because the railroad fails to discharge its statuplaintiff's mare was rightfully in the highway. It may tory duty and fence its road. Shepard v. N. Y. & E. R., however be suggested that the change to which we 35 N. Y. 641. have adverted was regarded by the commissioners who Whether the defendants would be liable if the plaintrevised the General Statutes as material, as is shown iff willfully drove his mare upon the railroad or drove by the marginal note of their report. Chap. 149, $ 1. her and left her in an exposed situation, we veed not

The instructions to the jury made the liability of consider, since the facts stated do not raise such a the defendants depend upon the want of ordinary question. There can however be no doubt of the care by the plaintiff in turning his mare into the high- plaintiff's right to use his land as he pleases, doing no way. This was error. As we have seen, the plaintiff's unnecessary injury to others. There was no neglirights in the highway were the same as in any other gence in his pasturing his mare upon his own premland owned by him, except so far as they were modi- ises, although he was aware of the defective condition fied by the public rights, and in such cases neither his of the fence, which it was the duty of the defendants rights nur the defendant's liabilities are affected by to maintain. Corwin v. N. Y. & E. R., 13 N. Y. 42, 49, the plaintiff's want of ordinary care. If the plaintiff | 54; 1 Thomp. Neg. 531; Rogers v. Newburyport R., 1 had the right to turn his mare into the highway to Allen, 16. In Horn v. A. & St. L. R., 35 N. H. 169, and feed, due care was not required of him to prevent her Smith v. E. R., id: 356, the defendants were held escape to the defendant's track. The fact that they liable because they had neglected their duty, and the had neglected to fonce their roadway, and the plaint- question of contributory negligence was not suggested. iff's knowledge of that fact, did not deprive him of the Iu McCoy v. Cal. Pac. R., 40 Cal. 532; S. C., 6 Am. rightful use of his land. The defendant's neglect did Rep. 623, the court say: "Nor was the plaintiff guilty not impose upon the plaintiff any obligation, or put of contributory negligence, from the fact that he knew him under any disability with respect to the reasona- that the road was not feuced when he turned his stock ble enjoyment of his property. The defendants elect- into the field. The neglect of the defendant to build ing to use their road without complying with the law, the fence certaivly did not operate to dispossess the which required them to fence it, they assumed the plaintiff of his entire field, or what is the same thing, risk of the accident which happened in this case as a prevent him from making a lawful use of it.” consequence of their neglect. It is not a question here It is no answer to say that the land-owner, if agwhether the plaintiff had an active agency in causing grieved by the negligence of the railroad, has a remedy the injury of which he complains. If it were it might by proper proceedings to compel the building of the be incumbent on him to show that he was in the exer. fence, or if the road neglect after notice, by building cise of ordinary care. Here the question is, whether it himself and recovering double the cost from the the plaintiff is to be deprived of a remedy for an in- railroad. Justice does not require that the Jand-owner jury caused to him while in the ordinary use of his shall be compelled, before he can enjoy his property, to property. By the common law the plaintiff was bound discharge a duty which the law places elsewhere, and to keep his mare upon his own land; but here the stat-take the risk of payment, even though he may have ute had imposed that duty upon the defendants, and

double pay. the rights of the parties are to be determined by the In Wilder v.Maine Cent. R., 65 Me. 332; S. C., 20 Am. statute. If the plaintiff is held to the same care as the Rep. 698, the court say: “The owner of laud has a common law requires of him, the statute is inopera- right to use it in the natural and ordinary way for tive.

purposes for which it is fit. This right does not deIn Ohio the law is that where the plaintiff, in the or- pend upon the performance or non-performance of dinary exercise of his owu right, allows his property to any duty or obligation enjoined by law upon another be in au exposed or hazardous position, and it becomes in respect to his land. He has a right to expect that injured by the negligence of defendant, he is entitled the requirements of the law will be complied with, to damages. By his allowing his property to be ex- and to act accordingly. Nor does his knowledge that posed to damage he took upon himself the risk of loss they have not been affect his right of use one way or the or injury by mere accident, but he did not thereby other. If it did the neglect of the other to obey the voluntarily incur tbe risk of injury by the negligence law might operate to prevent him from the lawful use of another. Kerwhaker v. C. C. & C. R., 3 Ohio St. of his own property." 172.

The true principle applicable to this class of cases is In Michigau it is held that the negligence of the plain- stated in Cook v. Champlain Transportation Co., 1 Den. tiff will not bar his recovery. F. & P. M.R. Co. v. Lull, 28 Mich. 510. In that case Cooley, J., says: “Indeed,

91, 101. It is this: “While a person confines himself if contributory negligence could constitute a defense,

to a lawful employment on his own premises, his posithe purpose of the statute might be in a great measure

tion, however injudicious and imprudent it may be, is if not wholly defeated, for the mere neglect of the rail- not therefore wrongful, and his want of due care or way company to observe the directions of the statute judgmeut in its selection can never amount to negliwould render it unsafe for the owner of beasts to suf

gence so as thereby to deprive him of redress for fer them to be at large, or even on his own ground, in

wrongs done to him by others." This doctrine was the vicinity of the road, so that if he did what but for the neglect of the company it would be entirely safe

reaffirmed in Fero v. Buffalo & State Line R., 22 N. Y. and proper for him to do, the very neglect of the com

209. pany would constitute its protection, since that neglect Applying this principle here, the plaintiff's use of the alone rendered the conduct of the plaintiff negli- highway being rightful, he is entitled to recover for gent."

the damages caused to him by the defendants' negliIf the liability of the defendauts depends on the ex

gence, regardless of the question whether his knowlercise of ordinary care by the plaintiff, the defendants

edge of the defendants' fault made his use of his own need never fence their road so far as respects adjoin. ing owners. The plaintiff could not enjoy the full

land negligent. The first request for instructions embenefit of his land. He could only make such use of it bodied this view of the law, and should have been as would not require it to be inclosed. His use of it granted. would depend on the pleasure of the defendants. It is [See 1 Alb. L. J. 359; 17 id. 472.-ED.) not contributory negligeuce, within the meaning of the

Verdict set aside.

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