disposed of more rapidly than at present there must be some arrangement whereby a greater number can be submitted. How can this be accomplished except by having either more than one tribunal sitting at the same time or by extending the duration of the present sessions. This latter proposition is practically impossible as it would leave but little time for the consideration of causes, which is of far more importance than the hearing of them.

The former proposition, which is the one that seems preferable to me, involves the separation of the court into divisions for the purpose of hearing causes in the first instance at least. A division of the courts into two branches would at once double the number of causes submitted provided the duration of the sessions was the same as now in vogue, and if there were enough members of the court to decide the causes thus submitted with the same rapidity as at present there would in the course of the year be twice the number of causes disposed of.

This however would necessitate doubling the number of judges. But as it is not necessary to so far increase the number of causes disposed of in order to keep the calendar within limits, the court need not be so greatly enlarged, provided the method of constituting each branch when holding sessions for the submission of causes is not the same as now obtains for the whole court. Is this necessary? Could not just as complete justice be attained by lessening the number of judges necessary to form a quorum? I think it could, certain qualifications attaching.

The present number of judges, as we have already seen, is seven, five form a quorum, and a concurrence 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 purpose of having causes submitted, either with or without argument. The objective point being to obtain the submission of such a number of causes as that after the calendar is once properly roduced, it may be kept within limits, let such a length of session be adopted by the two branches as would accomplish this end; the judges to determine this time to suit themselves.

Let each division of the court consist of five judges to be designated by the chief judge, and changeable from one division to the other as might be deemed advisable, the chief judge to sit with either division, and when sitting to be the presiding judge of that division. In the other division and upon such occasions as the chief judge did not sit, the eldest judge in each division in point of time upon the bench, to preside. Three judges to form a quorum in the divisions, all the members sitting when possible; a concurrence of four judges upon consultation between the five necessary to render a decision; either division to call upon the other in consultation upon such causes as a majority of such division might desire. In which event however in order to arrive at a decision of the particular cause there would have to be a concurrence of six judges, with the power, if after such consultation it was deemed advisable by a majority of the whole court, to decree a re-argument before the court.

All causes involving a construction of the Constitution of the State of New York to be argued before the whole court, when seven judges must sit to form a quorum, and six concur in rendering a decision. This rule to apply on all occassions when the court sits as one body. The practice in taking appeals to remain as at present.

The next point to be considered is, what causes shall be heard by the divisions? Shall the causes be divided into classes and these classes apportioned between the two branches? I think not. It seems to me a division of

this kind upon whatever basis arranged would almost inevitably lead to confusion, and in any event to a more or less unequal division of work among the judges; whereas it is advisible to accomplish the object in view with as little an invasion upon established usages as possible and with as near an equal division of labor as may may be.

The simplest method occurring to me of accomplishing this end, is to make up a calendar under the same regulations as at present obtain.

Then when the court convenes, the two divisions sitting in separate rooms, let one division hear those causes which appear upon the general calendar designated by odd numbers, and the other division those causes designated by even numbers; with the understanding that all causes, whenever there should happen to be any such involving practically the same question, be heard in the same branch.

It will be seen that the method of relief here proposed involves very little change in the court and methods of procedure, but only suggests a change in the present mode of hearing causes, and proposes a larger number of judges to expedite the decisions of the extra number of causes submitted.

Of course the number of judges here named does not have any very material bearing upon the method of relief suggested.

J. M. P.

BURNING CORPSE NOT A MISDEMEANOR.

ENGLISH HIGH COURT OF JUSTICE, FEBRUARY

7, 1884.

QUEEN V. PRICE, L. R., 12 Q. B. Drv. 247.

To burn a dead body, instead of burying it, is not a misdemeanor, unless it is so done as to amount to a public nui

sance.

If an inquest ought to be held upon a dead body, it is a misdemeanor so to dispose of the body so as to prevent the coroner from holding the inquest.

A1

T the assizes held at Cardiff before Stephen, J., in February, 1884, William Price was indicted for attempting to burn the body of his child, instead of burying it; and a second indictment charged him with attempting to burn the body with intent to prevent the holding of an inquest upon it.

G. B. Hughes, Q. C., and B. T. Williams, appeared for the prosecution.

The prisoner was undefended.

After hearing counsel for the prosecution, the learned judge left the case to the jury, directing them in the terms of his charge to the grand jury, which on account of the importance and novelty of the subject to which it relates is here given. The jury acquitted the prisoner on both charges.

STEPHEN, J. One of the cases to be brought before you is so singular in its character, and involves a legal question of so much novelty and of such general interest, that I propose to state at some length what I believe to be the law upon the matter. I have given it all the consideration I could, and I am permitted to say that although I alone am responsible for what I am about to say to you, Lord Justice Fry takes the same view of the subject as I do, and for the same rea

sons.

William Price is charged with a misdemeanor under the following circumstances: He had in his house a child five months old of which he is said to have been the father. The child died, and Price, as it seems, did not register its death. The coroner accordingly gave him notice on Saturday, the 12th of January, 1884, that unless he sent a medical certificate of the cause of the

child's death he (the coroner) would hold an inquest on the body on the following Monday. Price on the Monday afternoon took the body of the child to a field of his own, some distance from the town of Llantrissant, put it into a ten gallon cask of petroleum and set the petroleum on fire. A crowd collected, the body of the child which was burning was covered with earth, and the flames were extinguished, and Price was brought before the magistrates aud committed for trial. He will be indicted before you on a charge which in different forms imputes to him as criminal two parts of what he is said to have done. Namely, first, his having prevented the holding of an inquest on the body; and secondly, his having attempted to burn the child's body.

With respect to the prevention of the inquest the law is, that it is a misdemeanor to prevent the holding of an inquest which ought to be held by disposing of the body. It is essential to this offense that the inquest which it is proposed to hold is one which ought to be held. The coroner has not an absolute right to hold inquests in every case in which he chooses to do so. It would be intolerable if he had power to intrude without adequate cause upon the privacy of a family in distress and to interfere with their arrangements for a funeral. Nothing can justify such interference except a reasonable suspicion that there may have been something peculiar in the death, that it may have been due to other causes than common illness. In such cases the coroner not only may, but ought, to hold an inquest, and to prevent him from doing so by disposing of the body in any way-for an inquest must be held on the view of the body-is a misdemeanor. The depositions in the present case do not very clearly show why the coroner considered an inquest necessary. If you think that the conduct of Price was such as to give the coroner fair grounds for holding one, you ought to find a true bill, for beyond all question Price did as much as in him lay to dispose of the body in such a manner as to make an inquest impossible.

The other fact charged as criminal is the attempt made by Price to burn the child's body, and this raises, in a form which makes it my duty to direct you upon it, a question which has been several times discussed, and has attracted some public attention, though so far as I know no legal decision upon it has ever been given, the question, namely, whether it is a misdemeanor at common law to burn a dead body instead of burying it.

As there is no direct authority upon this question I have found it necessary to examine several branches of the law which bear upon it more or less remotely. The practice of burning dead bodies prevailed to a considerable extent under the Romans as it does to this day amongst the Hindoos, though it is said that the practice of burial is both older and more general. Burning appears to have been discontinued in this country and in other parts of Europe when Christianity was fully established, as the destruction of the body by fire was considered, for reasons to which I need not refer here, to be opposed to Christian sentiment, but this change took place so long ago, and the aubstitution of burial for burning was so complete, that the burning of the dead has never been formally forbidden or even mentioned or referred to, so far as I know, in any part of our law. The subject of burial was formerly, and for many centuries exclusively a branch of the ecclesiastical or canon law. Amongst the English writers on this subject little is to be found relating to burial. The subject was much more elaborately and systematically studied in Roman Catholic countries than in England, because the law itself prevailed much more extensively. In the Jus Ecclesiasticum of Van Espen, II. 142-168, Part II., sec.

iv., tit. vii., there is an elaborate discourse, filling twenty-two folio pages in double columns, on the subject of burial, in which every branch of the subject is systematically arranged and discussed, with references to numerous authorities. The importance of it is that it shows the view taken by the Canonists, and this view had great influence on our own ecclesiasti cal lawyers, though only a small part of the canon law itself was ever introduced into this country.

Van Espen throughout regards the participation in funeral rites as a privilege to which, subject to certain conditions, all the members of the church were entitled, and the deprivation of which was a kind of posthumous punishment analogous to the excommunication of the living. The great question with which he occupies himself is, in what cases ought burial to be denied? The general principle is, that those who are not worthy of church privileges in life are also to be excluded from them after death. "Sicuti enim nonullos vivos a sua communione, præsertim in sacris, jam pridem exciudendos censuit, ita quoque eosdem sua communione post mortem indignos credidit." As for the manner in which the dead bodies of persons deprived of Christian burial were to be disposed of, Van Espen says only that though in some instances the civil power may have entirely forbidden burial, whereby bodies may remain unburied and exposed to the sight of all to be devoured by beasts or destroyed by the weather (he considers the dissection of criminals as a case of this sort), the church has never made such a provision, and has never prohibited the covering of such corpses with the earth.

This way of looking at the subject seems to explain how the law came to be silent on exceptional ways of disposing of dead bodies. The question was, in what cases burial must be refused? As for the way of disposing of bodies to which it was refused, the matter escaped attention, being probably regarded as a matter which interested those only who were so unfortunate as to have charge of such bodies.

The famous judgment of Lord Stowell in the case of iron coffins (Gilbert v. Buzzard, 2 Hag. Con Rep. 333), which constitutes an elaborate treatise on burial, proceeds upon the same principles. The law presumes that every one will wish that the bodies of those in whom he was interested in their life-time should have Christian burial. The posibility of a man's eutertaining and acting upon a different view is not considered.

These considerations explain the reason why the law is silent as to the practice of burning the dead. Before I come to consider its legality directly, it will be well to notice some analogous topics which throw light upon it. There is one practice which has an analogy to funereal burning, inasmuch as it constitutes an exceptional method of dealing with dead bodies. I refer to anatomy. Anatomy was practiced in England at least as far back as the very beginning of the seventeenth century. It continued to be practiced without, so far as I know, any interference on the part of the Legislature down to the year 1832, in which was passed the act for regulating schools of anatomy, 2 & 3 Wm. 4, ch. 75. This act recites the importance of anatomy, and that "the legal supply of human bodies for such anatomical examination is insufficient fully to provide the means of such knowledge." It then makes provision for the supply of such bodies by enabling “any executor or other party having lawful possession of the body of any deceased person," to permit the body to be dissected, except in certain cases. The effect of this has been that the bodies of persons dying in various public institutions whose relations are unknown are so dissected. The act establishes other regulations not material to the present question, and enacts that after examination the bodies shall be "decently

interred." This act appears to me to prove clearly that Parliament regarded anatomy as a legal practice, and further, that it considered that there was such a thing as "a legal supply of human bodies," though that supply was insufficient for the purpose. This is inconsistent with the opinion that it is an absolute duty on the part of persons in charge of dead bodies to bury them, and this conclusion is rather strengthened than otherwise by the provision in section 13, that the "party removing" the body shall provide for its decent burial after examination. This seems to imply that apart from the act the obligation to bury would not exist, and it is remarkable that the words are not, as in the earlier section, "executor or other party," but "party removing," referring no doubt to the master of the workhouse or other person in a similar position who hands the body over to the surgeons. Upon❘ him the statute imposes the duty of decently interring the bodies with which he is allowed to deal. The executor's rights at common law, whatever they may be, are not altered.

I come now to a series of cases more closely connected with the present case. As is well known the great demand for bodies for anatomical purposes not only led in some cases to murders, the object of which was to sell the body of the murdered person, but also to robberies of churchyards by what were commonly called resurrection men. This practice prevailed for a considerable length of time, as appears from the case of Rex v. Lynn, 2 T. R. 733; S. C., 1 Leach, 497, decided in 1788-44 years before the anatomy act. In that case it was held to be a misdemeanor to disinter a body for the purpose of dissection, the court saying that common decency required that the practice should be put a stop to, that the offense was cognizable in a criminal court as being "highly indecent and contra bonos mores, at the bare idea alone of which nature revolted" They also said that "it had been the regular practice of the Old Bailey in modern times to try charges of this nature." It is to be observed in reference to this case that the act done would have been a peculiarly indecent theft if it had not been for the technical reason that a dead body is not the subject of property. The case however has been carried a step farther in modern times. It was held in Reg. v. Sharpe, 1 D. & B. 160, to be a misdemeanor to disinter a body at all without lawful authority, even when the motives of the offender were pious and laudable, the case being one in which a son disinterred his mother in order to bury her in his father's grave, but he got access to the grave and permission to open it by a false pretense.

The law to be collected from these authorities seems to me to be this: The practice of anatomy is lawful and useful, though it may involve an unusual means of disposing of dead bodies, and though it certainly shocks the feelings of many persons, but to open a grave and disinter a dead body without authority is a misdemeanor, even if it is done for a laudable purpose.

These cases, for the reasons I have given, have some analogy to the case of burying a dead body, but they are remote from it. They certainly do not warrant the proposition that to burn a dead body is in itself a misdemeanor.

Two other cases come rather nearer to the point. They are Reg. v. Vann, 2 Den. C. C. 325, and Reg.v. Stew. art, 12 A. &E.773, 779. Each of these cases lays down in unqualified terms that it is the duty of certain specified persons to bury in particular cases. The case of Reg. v. Stewart, 12 A. & E. 773, 779, lays down the following principles: "Every person dying in this country, and not within certain exclusions laid down by the ecclesiastical law, has a right to Christian burial; and that implies the right to be carried from the place

It adds:

where his body lies to the parish cemetery." "The individual under whose roof a poor person dies is bound" (i. e., if no one else is so bound-as appears from the rest of the case) "to carry the body decently covered to the place of burial. He cannot keep him unburied, nor do any thing which prevents Christian burial. He cannot therefore cast him out so as to expose the body to violation, or to offend the feelings or endanger the health of the living; for the same reason he cannot carry him uncovered to the grave." In the case of Reg.v. Vann, 2 Den. 325, the court held: "That a man is bound to give Christian burial to his deceased child if he has the means of doing so; but he is not liable to be indicted for a nuisance if he has not the means of providing burial for it."

These cases are the nearest approach which I have been able to find to an authority directly upon the present point. It may be said that if there is an absolute duty upon a man having the means to bury his child, and if it is a duty to give every corpse Christian burial, the duty must be violated by burning it. I do not think however that the cases really mean to lay down any such rule. The question of burning was not before the court in either case. In Reg. v. Stewart, 12 A. & E. 773, 779, the question was whether the duty of burial lay upon the parish officers or on some other person. In Reg.v. Vann, 2 Den. C. C. 325, the question was whether a man who had not the means to bury his child was bound to incur a debt in order to do so. In neither case can the court have intended to express themselves with complete verbal accuracy, for in the case of Reg. v. Stewart, 12 A. & E. 773, 779, the court speaks of the "rights' "of a dead body, which is obviously a popular form of expression-a corpse not being capable of rights, and in both cases the expression "Christian burial" is used, which is obviously inapplicable to persons who are not Christians, Jews, for instance, Mahommedans, or Hindoos. To this I may add that the attention of neither court was called to the subject of anatomy already referred to. Skeletons and anatomical preparations could not be innocently obtained if the language of the cases referred to were construed as if it were intended to be severely and literally accurate.

There is only one other case to be mentioned. It is the case of Williams v. Williams, which was decided just two years ago by Kay, J., in the Chancery Division of the High Court, and is reported in the Law Reports, 20 Ch. D. 659. In this case one H. Crookeuden directed his friend, Eliza Williams, to burn his body, and directed his executors to pay her expenses. The executors buried the body. Miss Williams got leave from the secretary of State to disinter it in order, as she said, to be buried elsewhere. Having obtained possession of it by this misrepresentation, she burnt it, and sued the executors for her expenses. The case leaves the question now before me undecided. "The purpose," says Kay, J., "confessedly was to have the body burnt, and thereupon arises a very considerable question whether that is or is not a lawful purpose according to the law of this country. That is a question I am not going to decide." He held that in that particular case the removal of the body and its burning were both illegal according to the decision of Reg. v. Sharpe, 1 D. & B. 160, already referred to. "Giving the lady credit," he said "for the best of motives, there can be no kind of doubt that the act of removing the body by that license and then burning it, was as distinct a fraud on that license as any thing could possibly be." This was enough for the purposes of the particular case, and the learned judge accordingly expressed no opinion on the question on which it now becomes my duty to direct you.

The question arises in the present case in a perfectly clear and simple form, unembarrassed by any

such consideration as applied to the other cases to which I have referred. There is no question here of the illegality and dishonesty which marked the con duct of those who were described as resurrection men, nor of the artifices, not indeed criminal but certainly disingenuous, by which possession of the body was obtained in the cases of Reg. v. Sharpe, 1 D. & B. 160, and Williams v. Williams, 20 Ch. D. 659. Price had lawful possession of the child's body, and it was not only his right but his duty to dispose of it by burying or in any other manner not in itself illegal. Hence I must consider the question whether to burn a dead body instead of burying it is in itself an illegal

act.

After full consideration, I am of opinion that a person who burns instead of burying a dead body does not commit a criminal act, unless he does it in such a manner as to amount to a public nuisance at common law. My reason for this opinion is that upon the fullest examination of the authorities, I have, as the preceding review of them shows, been unable to discover 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 to be one.

There are some instances, no doubt, in which courts of justice have declared acts to be misdemeanors which had never previously been decided to be so, but I think it will be found that in every such case the act involved great public mischief or moral scandal. It is not my place to offer any opinion on the comparative merits of burning and burying corpses, but before I could hold that it must be a misdemeanor to burn a dead body, I must be satisfied not only that some people, or even that many people, object to the practice, 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 misdemeanor, for many acts involving the grossest indecency and grave public mischief-incest, for instance, and where there is no conspiracy, seduction or adultery-are not misdemeanors, but I cannot take even the first step. Sir Thomas Browne finishes his famous essay on Urn Burial with a quotation from Lucan, which in eight words seems to sum up the matter: "Tabesne cadavera solvat an rogus haud refert." Whether decay or fire consumes corpses matters not. The difference between the two processes is only that one is quick, the other slow. Each is so horrible that every healthy imagination would turn away from its details; but one or the other is inevitable and each may be concealed from observation by proper precautions. There are, no doubt, religious convictions and feelings connected with the subject which every one would wish to treat with respect and tenderness, and I suppose there is no doubt that as a matter of historical fact the disuse of burning bodies was due to the force of those sentiments. I do not think however that it can be said that every practice which startles and jars upon the religious sentiments of the majority of the population is for that reason a misdemeanor at common law. The statement of such a proposition, in plain words, is a sufficient refutation of it, but nothing short of this will support the conclusion that to burn a dead body must be a misdemeanor. As for the public interest in the matter, burning on the one hand effectually prevents the bodies of the dead from poisoning the living. On the other hand, it might no doubt destroy the evidence of crime. These however are matters for the Legislature, and not for me. It may be that it would be well for Parliament to regulate or to forbid the burning of bodies, but the great leading rule of criminal law is that nothing is a crime unless it is plainly forbidden by law. This rule is no doubt subject to exceptions, but they are rare, narrow, and

to be admitted with the greatest reluctance, and only upon the strongest reasons.

This brings me to the last observation I have to make. Though I think that to burn a dead body decently and inoffensively is not criminal, it is obvious that if it is done in such a manner as to be offensive to others it is a nuisance of an aggravated kind. A common nuisance is an act which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her majesty's subjects. To burn a dead body in such a place and such a manner as to aunoy persons passing along public roads or other places where they have a right to go is beyond all doubt a nuisance, as nothing more offensive both to sight and to smell can be imagined. The depositions in this case do not state very distinctly the nature and situation of the place where this act was done, but if you think upon inquiry that there is evidence of its having been done in such a situation and manner as to be offensive to auy considerable number of persons, you should find a true bill.

DUTY IMPOSED BY STATUTE-CON TRIBUTORY NEGLIGENCE NO DEFENSE.

NEW HAMPSHIRE SUPREME COURT, JUNE, 1880.

CRESSEY V. THE NORTHERN RAILROAD.* The neglect of a railroad company to fence their road does not excuse them from liability for injury to animals upon their track, although the owner of such animals was aware of that neglect when he turned them out to graze on his own adjoining land.

CASE

ASE for killing the plaintiff's mare, through the neg. lect of the defendants to maintain a sufficient fence between their railroad and the highway. The plaintiff, knowing the want of a fence, turned his mare into the highway to feed, and she wandered at large and uuattended in the highway within the limits of the plaintiff's farm and upon the railroad, and was overtaken by the defendants' cars and killed.

Verdict for the defendants, and motion for a new trial.

Hawthorne & Davis, for plaintiff.
Mugridge, for defendant.

STANLEY, J. The plaintiff's mare was grazing upon his land. It is not material that it was on land in which the public had an easement, since her grazing did not interfere with the public rights, and subject to these rights, the plaintiff was entitled to the use of the land within the limits of the highway as fully as to the use of any land he owned. Makepeace v. Worden, 1 N. H. 16; Avery v. Maxwell, 4 id. 37; State v. New Boston, 11 id. 407; Baker v. Shepard, 24 id. 208. This case must therefore be decided upon the same principles as if the animal had wandered from the plaintiff's field, through which the railroad was built, and had been killed in consequence of a defect in the fence, which the defendants were bound to maintain. In such cases the law is well settled. Woolson 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., 28 id. 161; Smith v. Eastern R., 35 id. 356: Towns v. Cheshire R., 21 id. 363; Giles v. B. & M. R.. 55 id. 552.

Whether the change made by the enactment of the General Statutes, chapter 148, section 1, whereby railroads are, in terms, required to fence on both sides of their road, except at their intersection with highways, has so changed their liabilities that now they are answerable for all damage occasioned by their neglect to perform this duty, whether such damage is to the prop* Appearing in 59 New Hampshire Reports.

erty of adjoining land-owners or not, we need not now consider, since upon the facts found, we hold that the plaintiff's mare was rightfully in the highway. It may however be suggested that the change to which we have adverted was regarded by the commissioners who revised the General Statutes as material, as is shown by the marginal note of their report. Chap. 149, § 1.

The instructions to the jury made the liability of the defendants depend upon the want of ordinary care by the plaintiff in turning his mare into the highway. This was error. As we have seen, the plaintiff's rights in the highway were the same as in any other land owned by him, except so far as they were modified by the public rights, and in such cases neither his rights nor the defendant's liabilities are affected by the plaintiff's want of ordinary care. If the plaintiff had the right to turn his mare into the highway to feed, due care was not required of him to prevent her escape to the defendant's track. The fact that they had neglected to fence their roadway, and the plaintiff's knowledge of that fact, did not deprive him of the rightful use of his land. The defendant's neglect did not impose upon the plaintiff any obligation, or put him under any disability with respect to the reasonable enjoyment of his property. The defendants electing to use their road without complying with the law, which required them to fence it, they assumed the risk of the accident which happened in this case as a consequence of their neglect. It is not a question here whether the plaintiff had an active agency in causing the injury of which he complains. If it were it might be incumbent on him to show that he was in the exer. cise of ordinary care. Here the question is, whether the plaintiff is to be deprived of a remedy for an injury caused to him while in the ordinary use of his property. By the common law the plaintiff was bound to keep his mare upon his own land; but here the statute had imposed that duty upon the defendants, and the rights of the parties are to be determined by the statute. If the plaintiff is held to the same care as the common law requires of him, the statute is inoperative.

In Ohio the law is that where the plaintiff, in the ordinary exercise of his own right, allows his property to be in an exposed or hazardous position, and it becomes injured by the negligence of defendant, he is entitled to damages. By his allowing his property to be exposed to damage he took upon himself the risk of loss or injury by mere accident, but he did not thereby voluntarily incur the risk of injury by the negligence of another. Kerwhaker v. C. C. & C. R., 3 Ohio St. 172.

In Michigan it is held that the negligence of the plaintiff will not bar his recovery. F. & P. M. R. Co. v. Lull, 28 Mich. 510. In that case Cooley, J., says: "Indeed, if contributory negligence could constitute a defense, the purpose of the statute might be in a great measure if not wholly defeated, for the mere neglect of the railway company to observe the directions of the statute would render it unsafe for the owner of beasts to suffer them to be at large, or even on his own ground, in the vicinity of the road, so that if he did what but for the neglect of the company it would be entirely safe and proper for him to do, the very neglect of the company would constitute its protection, since that neglect alone rendered the conduct of the plaintiff negligent."

If the liability of the defendants depends on the exercise of ordinary care by the plaintiff, the defendants need never fence their road so far as respects adjoining owners. The plaintiff could not enjoy the full benefit of his land. He could only make such use of it as would not require it to be inclosed. His use of it would depend on the pleasure of the defendants. It is not contributory negligence, within the meaning of the

rule, for the owner to pasture his stock upon his own land because the railroad fails to discharge its statutory duty and fence its road. Shepard v. N. Y. & E. R., 35 N. Y. 641.

Whether the defendants would be liable if the plaintiff willfully drove his mare upon the railroad or drove her and left her in an exposed situation, we need not consider, since the facts stated do not raise such a question. There can however be no doubt of the plaintiff's right to use his land as he pleases, doing no unnecessary injury to others. There was no negligence in his pasturing his mare upon his own premises, although he was aware of the defective condition of the fence, which it was the duty of the defendants to maintain. Corwin v. N. Y. & E. R., 13 N. Y. 42, 49, 54; 1 Thomp. Neg. 531; Rogers v. Newburyport R., 1 Allen, 16. In Horn v. A. & St. L. R., 35 N. H. 169, and Smith v. E. R., id: 356, the defendants were held liable because they had neglected their duty, and the question of contributory negligence was not suggested. In McCoy v. Cal. Pac. R., 40 Cal. 532; S. C., 6 Am. Rep. 623, the court say: "Nor was the plaintiff guilty of contributory negligence, from the fact that he knew that the road was not fenced when he turned his stock into the field. The neglect of the defendant to build the fence certainly did not operate to dispossess the plaintiff of his entire field, or what is the same thing, prevent him from making a lawful use of it."

It is no answer to say that the land-owner, if aggrieved by the negligence of the railroad, has a remedy by proper proceedings to compel the building of the fence, or if the road neglect after notice, by building it himself and recovering double the cost from the railroad. Justice does not require that the land-owner shall be compelled, before he can enjoy his property, to discharge a duty which the law places elsewhere, and take the risk of payment, even though he may have double pay.

In Wilder v.Maine Cent. R., 65 Me. 332; S. C., 20 Am. Rep. 698, the court say: "The owner of land has a right to use it in the natural and ordinary way for purposes for which it is fit. This right does not depend upon the performance or non-performance of any duty or obligation enjoined by law upon another in respect to his land. He has a right to expect that the requirements of the law will be complied with, and to act accordingly. Nor does his knowledge that they have not been affect his right of use one way or the other. If it did the neglect of the other to obey the law might operate to prevent him from the lawful use of his own property."

The true principle applicable to this class of cases is stated in Cook v. Champlain Transportation Co., 1 Den. 91, 101. It is this: "While a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful, and his want of due care or judgment in its selection can never amount to negligence so as thereby to deprive him of redress for wrongs done to him by others." This doctrine was reaffirmed in Fero v. Buffalo & State Line R., 22 N. Y. 209.

Applying this principle here, the plaintiff's use of the highway being rightful, he is entitled to recover for the damages caused to him by the defendants' negligence, regardless of the question whether his knowledge of the defendants' fault made his use of his own land negligent. The first request for instructions embodied this view of the law, and should have been granted.

[See 1 Alb. L. J. 359; 17 id. 472.-ED.]

Verdict set aside.