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NEGLIGENCE OF LESSOR STORING EXPLOSIVES

nesses a temporary shed on the farm, where it had -LIABLE FOR INJURY TO LESSEE'S CHILD been placed by Hodgson. The shed was made by plac-WAY OF NECESSITY.

ing a piece of scantling across the top of a stump, and

sloping planks from this piece to the ground. The MICHIGAN SUPREME COURT.

planks did not form a perfect inclosure, and it was in

evidence that persons had sometimes gone under the POWERS V. HARLOW.

planks to escape showers. The father of the plaintiff

had done this a few days before the injury, and he had One who leases a piece of land in the midst of a farm, with an seen the box there partly uncovered, with sawdust in approach toward it by a farm road, which does not reach

it, but he did not know what else. There were screws in it, is entitled to a right of way of necessity from the end of

the top boards of the box to fasten them down, and the farm road to his tenement.

these were screwed in and out with the fingers. The If the way has never been marked out by either lessor or lessee, the lessee is nevertheless licensed to pass from the

word “powder" was written conspicuously upon the farm road to the land leased, and this license is coupled box, but plaintiff and his father could not read, and with an interest, and not subject to revocation.

had not been told that any thing dangerous was One who leases land to a laboring man should contemplate the stored there. The shed was distant from any public

probability of the lessee cultivating his land with the aid highway. A farm road which was used by defendant of members of his family, and must at his peril see that it and his lessees ran from the direction of the city is not unsafe for children to come upon the land for the

toward the leased parcels, but without reaching any of purpose

them, and in passing from its terminus to the several A child is not a trespasser in doing, in a place where he has a right to be, that which his natural instincts and propen

parcels one would pass by the shed, but how near to it sities incline him to do, and which others should expect would depend upon the parcel to which he was going. him to do in the circumstances.

One parcel was leased by the plaintiff's father, and this The owner of a farm leased small parcels in the middle of it was one of the nearest to the road and to the shed.

to laboring men. A farm road approached the holdings, He had leased it for some years; it contained a little but did not reach them. Toward the leased parcels from

less than an acre, and in 1883 he was paying reat for it the end of the road the lessor stored a box of dynamite,

at the rate of $16 an acre, and had it planted to potawith cartridge exploders, under a low shed made against

toes. a stump,ard only partially inclosed, and in a rough-bound

In going to the several holdings the lessees box, not always kept covered, and never securely fastened.

crossed each other's parcels as was found convenient, A child of one of the lessees who had been at work in the and also passed over land plowed by defendant for his field went into the shed, broke one of the cartridges from own use. How near the plaintiff's father would go to the box, and striking it with a stone, exploded it, and was the shed in passing from the farm road in a straight injured. Neither he nor his father knew what was kept in

line to his own holding is left uncertain on the erithe shed, or knew of any danger there or of any reason for dence; it might be perhaps ten rods, or it might be keeping away from it; and there was no warning on or

less than one. There was no inclosure about the shed, about the shed, except the word “powder" written on the box, which neither of them, if they had seen it coula have

and nothing to warn people away from it except the read. Held, that to store so dangerous an article under

word "powder" upon the box. The superintendent such a structure, near the parcels leased, where children went to the box for dynamite and exploders as he had should be expected to come, was culpable negligence, for occasion to use them. The evidence all tended to show which the lessor was responsible.

that the handling of the exploders by persons who COOLEY, C. J. Action on the case to recover dam. were ignorant of their nature, or were careless, or unages for an injury alleged to have been caused by the der circumstances rendering them liable to accidental negligence of defendaut's servant.

concussion would be exceedingly hazardous. The material facts are the following: For many

On July 4, 1883, the plaintiff's father was at work years the defendant has been owner of a farm near among his potatoes, and plaintiff, who was then eight the city of Marquette, which has been under the gene- years and four months old, went with a brother two eral management of one Hodgson, his foreman or su- years older to take the father his dinner. Whea they had perintendent, who has leased small parcels to laboring delivered the dinner to him they worked for an hour or men for cultivation. Upon these parcels potatoes and

so destroying potato bugs, and then moved about at other vegetables have been raised, and the ground has pleasure for an hour or so longer in the vicinity of been cultivated by the lessees with the assistance of their father's work. The plaintiff looked into the shed their wives and children. In the year 1883 the farm and saw the box there partly uucovered, and from the was divided by a rail fence into two fields, in one of sawdust took out one of the exploders. He was aware which there were some ten or twelve parcels of the of no danger from handling it, aud thought no harm leased land, and in the other thirty. The farm was in taking it from the open box. After a little he picked formerly covered with timber, and many stumps still

up a small stoue, as large as his fist,aud holding the exremain, which the superintendent, when he finds them ploder upon another stope, which he describes as being in the way of cultivation, has been accustomed to re- of the size of a spittoon he struck it with the stone in one move by the use of dynamite. The dynamite is put up hand while holding it in the other, and with the third by the manufacturers in boxes made of rough boards, blow it exploded, breaking the stone on which it was in which it is covered and surrounded with sawdust;

held, and tearing from his left hand the thumb and and in the same box, but put up by themselves in a small

one finger. For this injury the suit was instituted. tin box, are placed the exploders. These exploders are The negligence charged against the defendant was shaped like ordinary percussion caps, but are very

the keeping of the exploders thus exposed and in danmuch larger, and they are partially filled with a fulmi- gerous proximity to where persons were accustomed nate, which is exceedindly sensitive, and more power

to pass and repass, and where children like the plaintful as well as more explosive than dynamite. It is

iff, with ohildish instinct and without any knowledge liable to explode at any time if accidentally struck of the great peril to which they were exposed, might against a stone or any hard metal, or if picked with a go to the open box and take and handle them. pin or knife or touched with fire. A piece of dynamite

When the case was submitted to the jury the Circuit is exploded by placing one of the exploders at the end judge instructed them to return a verdict for the dewith a fuse attached, which is ignited, and stumps are

fendaut. This he did upon the ground that it is the blown in pieces by their use. In the spring of 1883 one duty of parents to take care of their children, and to of the wood boxes containing dynamite and exploders see that they do not commit trespass, and if they do was deposited under what is called by some of the wit- | uot do that, but suffer the children to wander away upon other people's property, the children go there at their paid rent on a leasing to which the license was a necown risk, and the negligence is contributory on the essary incident, and his right to the enjoyment of it part of the parents in allowing them to wander where was as complete as the right of the defendant to the they have no right. And this negligence of the par- money he had received for the rent. The license was ents is, for the purposes of legal remedy, imputable to therefore a license coupled with an interest, and was the children themselves.

not revocable while the lease was in force. Wood v. This instruction was probably given in reliance upon Manley, 11 Ad. & El. 34; Hunt v. Rousmaniere, 8 Hargreaves v. Deacon, 25 Mich. 2, which was such a Wheat. 174; Barnes v. Barnes, 6 Vt. 388; Boults v. case as the instruction supposed. Counsel for the de- Mitchell, 15 Peun. St. 371; Thompson v. McElarney, fendant, with commendable industry, has collected 82 id. 174; Whitmarsh v. Walker, 1 Met. 313; Giles v. and brought to our attention a large list of similar Simons, 15 Gray, 441; Smith v. Benson, 1 Hill, 176; cases in which the same principle has been laid down Bonney v. Smith, 17 III. 531; White v. Elwell, 48 Me. and applied, and he insists that they are in their facts 350; Miller v. State, 39 Ind. 267; Lewis v. McNott, 65 analogous to the present case. The children, it is said, N. C. 63. That the defendant might have restricted the were trespassers in going in or to the shed; and even privilege within the bounds of an ordinary foot-path if it could be held that they were licensed to go where may be conceded, but it is enough for the purposes of they did, the result must be the same, since a license this case that apparently he had not cared to impose to enter or pass over an estate will not create a duty or such a restriction, and certainly bad not done so. impose an obligation on the part of the owner to pro. A person giving such a license, especially when he vide against accidental injuries. Illinois Cent. R. Co. gives it wholly or in part for bis own interest, as was v. Godfrey, 71 Ill. 506.

the case here, and thereby invites others to come upon This is the point upon which the case must turn; his premises, assumes to all who accept the invitation and it therefore becomes necessary to determine the duty to warn them of any danger in coming, which whether, on the one hand, the Circuit judge was cor- he knows of,or ought to know of, and of which they are rect in holding the plaintiff to be a trespasser, or on the not aware. This principle has been recently examined other, the counsel are justified in regarding fhim and affirmed by this court in Samuelson v. Cleveland as a licensee to whom the defendant owed no duty of Iron Min. Co., 49 Mich. 164, 170; and again in McCone protection.

v. Mich. Cent. R. Co., 51 id. 601; and also recently by It is quite certain that the plaintiff's father was not the Federal Sapreme Court in Bennett v. R. Co., 102 a trespasser in crossing the defendant's land to reach U. S. 580; 23 Alb. L. J. 111, and is too familiar to rethe land he had leased. The leasing by implication quire further references. That duty was incumbent gave a right of way of necessity, in order that he might upon the defendant in this case. render his tenement beneficial. Clarke v. Coggs, Cro. But under the circumstances disclosed in this case Jac. 170; Beardsley v. Brook, id. 189; Pinnington v. the invitation to the tenant to come upon the land was Gulland, 9 Excb. 1; Pernam v. Wead, 2 Mass. 203;'Un- an invitation which embraced his family also. The derunod v. Carney, 1 Cush. 285; Pierce v. Selleck, 18 tenant was a laboring man, apparently of small meaus, Conn. 330; Holmes v. Seeley, 19 Wend. 507; Lawlon v. and it is customary for such men to be assisted in their Rivers, 2 MoCord, 445; Thompson v. Miner, 30 Iowa, manual labor by members of their families; and the 386; Thomas v. Bertram, 4 Bush, 317; Tracey v. Ather- defendant must have understood that the persons who ton, 35 Vt. 52; Wissler v. Hirshey, 23 Penn. St. 333; rented of him these small patobes of land would be Mitchell v. Seipel, 53 Md. 351, and the note thereto; 36 likely to avail themselves of the services of their chilAm. Rep. 415; Davis v. Sear, L. R., 7 Eq. 427. The de- dreu in cultivating them. It was perfectly allowable fendant, as the party creating this way, had the right for the plaintiff's father to do this; and defendant to mark out the line on which it should run, and ou would have had no right to keep the children from the his failure to do so the right of defining it passes to his field if he had been disposed to do so. Whether they tenaut (Holmes v. Seeley, 19 Wend. 507), and when it went to take their father his meals or to give him more was once defined both parties would be bound by the direct aid in cultivation, they went rightfully; and if lines so fixed. Nichols v. Luce, 24 Pick. 102; S. C., the superintendent or defendant made their going dan35 Am. Dec. 302. See O'Rorke v. Smith, 11 R. I. 259; S. gerous, defendant was chargeable with the conseC., 23 Am. Rep. 440. But in this case the way was quences. marked out by neither party, and the tenant had for The moving about of the children upon the land several years gone as was convenient from the end of where they were at liberty to go, while they were not the farm road to the land leased; not always on the actually employed, was as much an incident to their same precise line, but probably without any considera- being there as is the loitering or playing by children ble departure from the same general direction. No outside the travelled part of the highway as they go fences were built or staves set, or lines marked to in- upon it to school or upon errands. Children, wherever dicate that from any portion of the land between the they go, must be expected to act upon childish infarm road and his own lot he was excluded; and these stincts and impulses; and others who are chargeable facts seem to make out a practical agreement of the with a duty of care and caution toward them must parties, that the privilege of passing and repassing calculate upon this, and take precautions accordingly. might be freely exercised within limits broader than

If they leave exposed to the observation of children an ordinary foot-path, and that the tenant should be any thing which would be tempting to them, and deemed within the limits of his right if he did not de- which they in their immature judgment might natupart altogether from the direct line between the end rally suppose they were at liberty to handle or play of the farm road and the lot which had been leased to with, they should expect that liberty to be taken. him.

Briggs v. Gardiner, 19 Conn. 587; Keffe v. Milwaukee, If however we are in error as to this, and the right of

etc., R. Co., 21 Minn. 207; Railroad Co. v. Stout, 17 passage, while not specifically defined, is to be consid

Wall. 657; Evansich v. Gulf, etc., R. Co., 57 Tex. 123; ered as only a license, the conclusion in this case must S. C., 6 Ad. & E. R. Cas. 182; Nagel v. Mo. Pac. R. Co., still be the same. Licenses in general may be revoked 75 Mo. 653; S. C., 10 Ad. & E. R. Cas. 702. by the licensor at pleasure; but this license would con- in this case a shed in which a dangerous explosive tinue while the lense was in force; it had been created was stored was left only partly inclosed, and its strucnot exclusively for the benefit of the tenant, but for ture and location were such as naturally to invite the the benefit of the defendant also, The tenant had entrance of children either for play or for shelter from sun and rain. Children were rightfully near it; there interpleader. In support of this view, his counsel was nothing in its appearance to warn them off; it was cites section 824 of Story's Eq. Jur. (11th ed.), where not fastened against their entrance, and there was it is said that "there are many cases where a bill in nothing about it to indicate that they would do injury the nature of a bill of interpleader will lie by a party or be injured by going there. The box containing the in interest to ascertain and establish his own rights, explosives seems to have had more the appearance of a when there are other conflicting rights between third box discarded as of no value and with worthless refuse persons.” But in all such cases the relief sought is iu it than of a box which it was of the very highest im- equitable relief. Mohawk, etc., Railroad Co. v. Clute, portance should be guarded with sedulous care. It 4 Paige, 384; Parks v. Jackson, 11 Wend. 443; McHenry was never firmly fastened, and the only warning upon v. Hazard, 45 N. Y. 580; Goodrick v. Shotbolt, Price it was a word written upon a top board, which was not Ch. 333; 1 Mad. Ch. Pr. 146, 147. The authority cited always kept on. A man of ordinary prudence, if told by the appellee does not therefore aid the bill in this that so dangerous an article was so carelessly stored, case, which is that of a party out of possession claimmight well have deemed the statement incredible. We ing the legal title to real estate, seeking to oust the cannot, under these circumstances, say that the plaint- parties in possession, who also claim the legal title, iff's father was chargeable with fault in not suspecting and compel them to pay over the rents and profits. the danger and warning his children away from it; or This case is similar to the leading case of Hipp v. Babin, that the child himself was blameworthy in acting upon 19 How. 271, in which Mr. Justice Campbell said: the childish instincts and propensities, which com- “ Whenever a court of law is competent to take cogbined with the negligence of defendants' servant to nizance of a right, and has power to proceed to a bring the danger upon him.

judgment which affords a plain, adequate, and comA new trial must be ordered.

plete remedy, without the aid of a court of equity, the The other justices concurred.

plaintiff must proceed at law, because the defendant [See ante 366; 25 Am. Rep. 269; 31 id. 203, 206, note; 18 has a constitutional right to a trial by a jury." See id. 393; 28 Eug. R. 393.-ED.):

also Parker v. Cotton Company, 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 id.

466. And this objection to the jurisdiction may be UNITED STATES SUPREME COURT AB

OURT

enforced by the court sua sponte, though not raised by STRACT.

the pleadings or suggested by couusel. Killean v.

Ebbinghaus. Opinion by Woods, J. (See 18 N. W. MORTGAGE-FORECLOSURE SALE-SUBJECT TO LIEN

Rep.-ED.) PURCHASER CANNOT CONTEST VALIDITY.- Where a [Decided March 3, 1884.] sale of mortgaged property under a foreclosure deed is INJUNCTION-PENDING APPEAL-WHEN NOT ISSUED. ordered expressly subject, not simply to liens which - If suits in State courts go on and judgments are had at that time been established as prior and super- rendered, there is a way in which decisions overruling ior, but to all liens which might be established on defenses, set up under sections 4283-6 of R.S., may be reference previously order edand then pending, held, brought here for review, and the errors, if any, corthat a purchaser takes title thereto, subject to their rected. In view of these facts we are not inclined to future allowance by the court, and cannot contest the use the extraordinary writ of injunction to stay provalidity of the liens established on the reference.ceedings in suits begun in the State courts before the Swann v. Fabyan. Opinion by Harlan, J.

appellants filed their libel in the District Court, simply [Decided March 3, 1884.]

because of the expense that will be consequent upon INTERPLEADER-MUST ALLEGE PLAINTIFF HAS NO IN

trials pending the appeal. If we have the power it TEREST--EQUITABLE RELIEF-REMEDY AT LAW.-The should not be used in a doubtful case, and after two bill in this case is either a bill of interpleader or a bill in judgments below denying the relief, unless the reathe nature of a bill of interpleader. It is clear that it

sons are imperative. Parcher v. Cuddy. Opinion by cannot be sustained as a bill of interpleader. In such Waite, C. J. a bill it is necessary to aver that the complainaut has [Decided March 10, 1884. ] no interest in the subject-matter of the suit; he must

BANKRUPTCY-ORDER REJECTING CLAIM - JURISadmit title in the claimants and aver that he is indif

DICTION.—This court has no jurisdiction to review a ferent between them, and he cannot seek relief in the judgment of the Circuit Court, rendered in a proceedpremises against either of them. Langston v. Boyls- ing upon an appeal from an order of the District ton, 2 Ves. Jr. 103; Angell v. Hadden, 15 id. 244; Court rejecting the claim of a supposed creditor Mitchell v. Hayne, 2 Sim. & Stu. 63; Aldridge v.

against the estate of the bankrupt, and for the reason Thompson, 2 Bro. Ch. 149; Metcalf v. Harvey, 1 Ves.

that a proceeding to prove a debt is part of the suit in 248; Darthez v. Winter, 2 Sim. & Stu. 336; Bedall v.

bankruptcy, and not an indeperdent suit at law or in Hoffman, 2 Paige Ch. 20; Atkinson v. Manks, 1 Cow. equity. Such being the nature of the proceeding, it is 691. In this case the bill fails to comply with any of

a matter of no consequence whether the appeal from these requirements. If the complainant were in pos- the District Court to the Circuit Court was taken by session of the property in question, holding it for the

the creditor or the assignee, for it has always been party beneficially interested, and had custody of rents held that this court has no control over judgments or and profits derived therefrom, and the two sets of de

orders made by the Circuit Courts in mere bankruptcy fendants asserted conflicting claims to the property and to the rents, the facts might sustain a bill of inter proceedings. Wiswall v.Campbell, 93 U. S. 347. Leggett pleader. But the complainant is out of possession; be [Decided March 10, 1884.)

v. Allen. Opinion by Waite, C. J. bas no rents in his custody. He is therefore in no jeopardy from the conflicting claims of the defend- MUNICIPAL CORPORATION

CONNECTING ants, and cannot call on them to interplead. Instead TWO COUNTIES–LIABILITY OF ONE FOR WHOLE COSTof admitting title in the two sets of claimants, and AMENDING PETITION TO GIVE JURISDICTION.-(1) A asking the court to decide between them, he sets up bridge was constructed over a stream dividing two title in himself for the benefit of one set, and seeks re- counties; the contract for building was made by one lief against the other. To avoid these obstacles to the county only, it cannot under the Kentucky statute maintenance of the suit, the appellee insists that it (art. 16, ch. 28, $ 1; and $$ 36-8, ch. 94, art. 1 Gen. St.) can be maintained as a bill in the nature of a bill of be relieved from its obligation becanse the other

BRIDGE

county had not formally authorized the work or con- together, and she hires servants to purchase articles sented to share the cost. (2) At common law a bridge for domestic use, the law imparts to her the character was a common highway, and the county was bound to of agent and regards him as the principal debtor. She repair it. Reg. v. Sainthill, 2 Ld. Raym. 1174; 3 Salk. may contract as principal, but in order to charge her 76; Rex. v. Kent, 2 East, 342. Under the statute of 22 there must be an express contract on her part to pay Henry, 8, which has been held to be merely declara- out of her separate estate, or the circumstances must tory of the common law, when part of a bridge hap- be such as to show clearly that she assumed the indipened to be in one shire and the other part in another, vidual responsibility for payment exclusive of the liathe respective shires were bound to repair within their bility of the husband. Wilson v. Herbert, 12 Vr. 455. respective limits. Woolrych on Ways, 200. But when Dunn v. Raynor. Opinion by Van Syckel, J. (Sup.) a bridge which crossed a river dividing two counties [Decided Feb., 1884.] was maintained by one of the counties, under the MUNICIPAL CORPORATION-SURFACE WATER-DIVERstatute of 23 Henry, 8, it was held that under the same SION-LIABILITY FOR COLLECTING.--The authorities statute it was compellable to repair the highway as a are quite uniform in holding that no responsibility atpart of the bridge for a distance of three hundred feet taches for damage done by the diversion of surface from each end of the bridge, although one end was in water by the public authorities where the diversion is another county. Rex v. Inhabitants of Devon, 14 merely incidental to and occasioned by the making or East, 477. It is therefore clear that at the common alteration of street grades. The injury complained of law a county might be required to maintain a bridge here is not that consequent upon the alteration of or causeway across its boundary line, and extending grades, but flows from å scheme put into execution by into the territory of an adjoining county. The same the municipal authorities by which the water is prerule prevails in this country. “A county is one of the vented from following the grades of the streets. By territorial divisions of a State created for public po- means of artificial ducts or channels the surface water litical purposes connected with the administration of over a large district is carried away from where it the State government, and being in its nature and ob- would otherwise be discharged and made to pour upon jects a municipal organization the Legislature may ex- the complainant's lands. Thus what is styled the comercise control over the county agencies, and require mon enemy, which every proprietor must resist as best such public duties and functions to be performed by he may, is invested with accumulated volume and them as fall within the general scope and objects of force and thereon upon one in ease of all others. The the municipal organization." Talbot v. Queen Anne's effect of this application of the doctrine, as the chanCo., 50 Md. 245. It may even impose on one countycellor well says, would be to condemn private property the expense of an improvement by which it mainly is to public use without compensation. In Massschusetts benefited, but in which the whole State is interested. there are cases denying a right of action to the indiCounty of Mobile v. Kimball, 102 U. 8. 691. In the vidual under such circumstances, but there is a public case of Agawam v. Hampden, 130 Mass. 528, it was statute provides that when any owner of land adjoinsaid by the court that “it is well settled that the Leg- ing a highway shall sustain any damage in his propislature may enact that a particular road or bridge erty by reason of any raising, lowering or other act shall be a public highway, or may direct it to be laid done for the repairing of such way, he shall have comout as such by county commissioners, and in either pensation therefor, to be determined by the selectmen case may order the cost thereof, * as well as of the town. Although the rule adopted in New York the cost of maintaining it or keeping it in repair, to be accords with that of our Supreme Court in the Durkes paid either by the Commonwealth or by the counties, case, the Court of Appeals in New York in Noonan v. cities, or towne in which it lies, or which may be de- City of Albany, 79 N. Y. 470; 35 Am. Rep. 540, distintermined by commissioners appointed by the counties guished the case where, by means of artificial structo be specially benefited thereby." See also Norwich tures in the streets, the surface water of a large terriV. County Commissioners, 13 Pick. 60; Attorney-tory was collected and discharged on the premises of General v. Cambridge, 16 Gray, 247; Scituate v. Wey- the plaintiff, and held that an action would lie for the mouth, 108 Mass. 128. It is therefore not open to ques- consequent injury. Unless the right of municipalition that the Legislature may, in its discretion, au- ties is limited to this extent there would be nothing thorize or require one county to build, at its own ex- to restrain them from constructing sewers by which pense, a bridge or road across the boundary line be- the concentrated surface water of an entire city would tween it and another county. (3) When a petition is be cast upon the premises of any proprietor that might amended by leave of the court the cause proceeds on arbitrarily be selected to bear the burden. The cases the amended petition. If its averments show that furnish no authority for such an invasion of property this court has jurisdiction the jurisdiction will be rights without making due reparation. Field v. Townmaintained without regard to the original petition. ship of West Orange. Opinion by Van Syckel, J. (Er.) It has been held by this court that after a case had (See 11 Am. Rep. 126; id. 169.-ED. been dismissed by it for want of jurisdiction, the [Decided Nov., 1883.] pleadings being technically defective, the Circuit Court might allow an amendment so as to show the

KANSAS SUPREME COURT ABSTRACT. jurisdiction, and on a decree newly rendered the case

JULY TERM, 1883.* might be again brought to this court. Jackson v. Ashton, 10 Pet. 480. Washer v. Bullit Co. Opinion by RECEIVER-RIGHT TO INTERVENE-DISCRETIONARY Woods, J.

WITH COURTS.-Where a suit is commenced against an [Decided March 3, 1884.]

insolvent corporatiou to foreclose a mortgage executed by the corporation, embracing a large amount of his

property, and thereafter in an action brought by a NEW JERSEY COURT OF ERRORS AND SU. creditor against the corporation, a receiver of the real PREME COURT.

and personal property of the corporation is appointed,

with the qualification that he was not to interfere with MARRIAGE-HUSBAND AS WIFE'S AGENT-JOINED AS

the possession of the mortgaged property of the corpoDEFENDANTS-LIABILITY OF WIFE.-In a suit upon a

ration, or with the corporate records of the company, contract with a married woman for services prior to

and such receiver makes application to the court apJanuary 2, 1875, the husband and wife must be joined pointing him to be permitted to be made a party deas defendants. When a husband and wife are living

* Appearing in 30 Kansas Reports.

14 Mo. 160. See also Wallach v. Wylie, 28 Kans. 138 If in the transaction the creditor had no actual kuowl. edge of the fraud or notice of the fraudulent design of the debtor, yet if the circumstances surrounding his purchase were such as would put a prudent man upon inquiry, which if prosecuted diligently would disclose the fraud, he cannot be deemed a bona fide purchaser in good faith. Phillips v. Reitz, 16 Kaus. 396; Baker v. Bliss, 39 N.Y. 70. McDonald v. Gaunt. Opinion by Horton, C. J. (8. C., 2 Pac. Rep. 871. See 45 Am. Rep. 185.- ED.)

CONTRACT–LABOR AND SERVICES IN FAMILY-WHEN MAY RECOVER.–Where a step-granddaughter, after her marriage, remains in the family of her step-grandfather as before, performing her share of the ordinary labors of the household, and receives in return ber maintenance and the comfort and protection of the family, the law will not imply a contract for services rendered. Ayres v. Hull, 5 Kans. 419. But where the step-granddaughter marries, and no longer continues to live as a member of the family of the step-grandfather, and the latter boards with her aud her husband for several years, and during all this time she does the washing, ironing aud mending of clothes for the stepgrandfather, and nurses, waits upon and takes care of him, upon an understanding between them that she is to have a reasonable compensation for such services, in an action instituted therefor she is entitled to recover. Ensey v. Hines. Opinion by Horton, C. J. (See 36 Am. Rep. 254; 45 id. 394; 14 Alb. L. J. 4.-ED.)

PENNSYLVANIA SUPREME COURT

ABSTRACT.

fendant in the foreclosure suit, and for leave to file an answer to the effect that the mortgages and bonds described therein were made without cousideration and for the purpose of defrauding the creditors of the company, held, as the receiver is the officer of the court, he had uo absolute right to have his application granted. His motion was addressed to the discretion of the court, and being denied, the Supreme Court will not interfere under the circumstances of this case. Savings Bank v.Simpson, 22 Kans.414; Kerr on Receivers, 215; Swavey v. Dickon, 5 Sim. 629; 6 Ves. 287; Danf. Ch. Pr. 439; Dunlop v. Ins. Co., 74 N. Y. 145; 12 Hon, 627. Under the rules of chancery even a receiver could not defend an action which was brought against him without the sanction of the judge. Swavey v. Dickon, supra; 6 Ves. 287; Kerr on Receivers, supra; Danf. Ch. Pr., supra. Patrick v. Eells. Opinion by Hortow C. J.

NEGLIGENCE-WHEN EMPLOYEE NOT PASSENGERKNOWLEDGE OF DANGER--CONTRIBUTORY NEGLIGENCE. - Where the plaintiff was in the employ of the railroad company, painting depots, bridges, tanks and switches uloug the line of the road, and was transported over the road to discharge the duties of his employment in a small steam car used only by the officers and employees of the railroad company, which car was propelled by steam, and was something after the shape of a hand-car, held, that plaintiff was mereiy an employee of the railroad company, riding upon the road in the steam hand-car in consequence of his employment and as an employee, without paying any fare; therefore he was not a passenger within the true sense of that term por entitled to the rights of a passenger. Sher. & Redf. on Neg. 101-127 ; 1 Redf.on Rys.520-537; Railway Co.v. Nichols, 8 Kas. 505; Railway Co. v. Salmon, 11 id. 83. (2) The plaintiff offered evidence tending to prove that he was injured by the car jumping from the track, caused by the carelessness of the company in using defective wheels, in this, that the flanges of the wheels were not as deep as the wheels of other cars, and that the wheels were worn flat. It did not appear that the plaintiff rode upon the car under any special orders of the company, or made any report of the alleged defects to the company, or to any of its officers, or that he had any promise or assurance of the company that it would remedy the defects in the wheels of the car, or provide new wheels, and before the injury complained of the defects in the wheels, if any existed, were plainly visible, and the plaintiff not only had full opportunity to acquire knowledge of the condition of the wheels, but must have known their condition. Held, that even if the defects existed in the wheels the company was not liable to the plaintiff, because he must be held to have either voluntarily run the risk of being injured, or to have been guilty of contributory negligence. Woodley v. Railroad Co., 2 Exch. Div. 348; 21 Eng. R. 506; Kielly v. Mining Co., 3 Sawy. 500; Hay. den v. Manufacturing Co., 29 Conn. 548; Railroad Co. v. Kinney, 58 Ga. 485; Lumley v. Caswell, 47 Iowa, 159; Railroad Co. v. Monroe, 85 III. 25; Coal Co. v. Reed, 6 Cent. L. J. 275; Artman v. Railroad Co., 22 Kans. 299. McQueen v. Chicago. Opinion by Horton, C. J. (S. C., 1 Pac. Rep. 139; 18 W. Dig. 505.--Ed.)

FRAUD--BONA FIDE PURCHASER-NOTICE OF FRAUDULENT INTENT.-Where a creditor purchases of his debtor a stock of goods and merchandise of different classes, and easily separable, of the value of $2,350, $1,600 of which he pays by the surrender of notes held by him against the debtor, and the remainder of $750 in money, and the debtor transfers all his goods and merchandise with the direct intention to defraud, bin. der and delay his other creditors, the purchase by the creditor cannot be upheld if he is cognizant of and privy to the fraud of the debtor which he intended to perpetrate upon his other creditors. Little v. Eddy,

JUDGMENT-SHOULD BE INDEXED-ACTUAL NOTICE SUPPLIES DEFECT.-Where a judgment against a firm is docketed and indexed in the firm's name, without naming or giving any sufficient designation of the persons constituting that firm, by the addition of the Christian names, held a valid objection, when made by subsequent lien creditors without notice. Ridgway, Budd & Co.'s Appeal, 3 Harris, 181; York Bauk's Appeal, 12 Casey, 458; Smith's Appeal, 11 Wright, 128; Hutchinson's Appeal, 11 Norris, 186. It was the duty of the plaintiff to see that his judgment was properly entered and iudexed, so that it might give construotire notice to subsequent purchasers and lien creditors, and his recourse for an improper entry was against the prothonotary. Actual personal notice of the judgment to subsequent purchasers and lien creditors, before their rights attach, will supply such defectire entry and index as to them. Smith's Appeal, 11 Wright, supra. Hamilton's Appeal. Opinion by Clark, J. (See 45 Am. Rep. 189, 190.-ED.) [Docided Oct. 1, 1883.]

CORRESPONDENCE.

TABLES OF VALUE OF INCHOATE DOWER. Editor of the Albany Law Journal :

In answer to the communication of Mr. J. C. Levi, in your issue of May 3, I call attention to a table of the present value of the inchoate dower of a married woman, compiled by Professor Bowditch, adopted by the Kentucky Court of Appeals, in Lancaster v. Lan. caster, 78 Ky. 198 (1879), and privted with that case. It is believed to be strictly accurate, and its use is perfectly plain and simple.

WM. REINECKE. LOUISVILLE, Ky., May 5, 1884.

[See also Colby on Surplus Moneys on Mortgage Sales, p. 76.-ED. ALB. LAW JOUR.]

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