One who leases a piece of land in the midst of a farm, with an approach toward it by a farm road, which does not reach it, is entitled to a right of way of necessity from the end of the farm road to his tenement.

If the way has never been marked out by either lessor or lessee, the lessee is nevertheless licensed to pass from the farm road to the land leased, and this license is coupled with an interest, and not subject to revocation. One who leases land to a laboring man should contemplate the probability of the lessee cultivating his land with the aid of members of his family, and must at his peril see that it is not unsafe for children to come upon the land for the purpose

A child is not a trespasser in doing, in a place where he has a right to be, that which his natural instincts and propensities incline him to do, and which others should expect him to do in the circumstances. The owner of a farm leased small parcels in the middle of it to laboring men. A farm road approached the holdings, but did not reach them. Toward the leased parcels from the end of the road the lessor stored a box of dynamite, with cartridge exploders, under a low shed made against a stump, and only partially inclosed, and in a rough-bound box, not always kept covered,and never securely fastened. A child of one of the lessees who had been at work in the field went into the shed, broke one of the cartridges from the box, and striking it with a stone, exploded it, and was injured. Neither he nor his father knew what was kept in the shed, or knew of any danger there or of any reason for keeping away from it; and there was no warning on or about the shed, except the word "powder" written on the box, which neither of them, if they had seen it, could have read. Held, that to store so dangerous an article under such a structure, near the parcels leased, where children should be expected to come, was culpable negligence, for which the lessor was responsible.

COOLEY, C. J. Action on the case to recover dam ages for an injury alleged to have been caused by the negligence of defendant's servant.

The material facts are the following: For many years the defendant has been owner of a farm near the city of Marquette, which has been under the geneeral management of one Hodgson, his foreman or superintendent, who has leased small parcels to laboring men for cultivation. Upon these parcels potatoes and other vegetables have been raised, and the ground has been cultivated by the lessees with the assistance of their wives and children. In the year 1883 the farm was divided by a rail fence into two fields, in one of which there were some ten or twelve parcels of the leased land, and in the other thirty. The farm was formerly covered with timber, and many stumps still remain, which the superintendent, when he finds them in the way of cultivation, has been accustomed to remove by the use of dynamite. The dynamite is put up by the manufacturers in boxes made of rough boards, in which it is covered and surrounded with sawdust; and in the same box, but put up by themselves in a small tin box, are placed the exploders. These exploders are shaped like ordinary percussion caps, but are very much larger, and they are partially filled with a fulminate, which is exceedindly sensitive, and more powerful as well as more explosive than dynamite. It is liable to explode at any time if accidentally struck against a stone or any hard metal, or if picked with a pin or knife or touched with fire. A piece of dynamite is exploded by placing one of the exploders at the end with a fuse attached, which is ignited, and stumps are blown in pieces by their use. In the spring of 1883 one of the wood boxes containing dynamite and exploders was deposited under what is called by some of the wit

nesses a temporary shed on the farm, where it had been placed by Hodgson. The shed was made by plac ing a piece of scantling across the top of a stump, and sloping planks from this piece to the ground. The planks did not form a perfect inclosure, and it was in evidence that persons had sometimes gone under the planks to escape showers. The father of the plaintiff had done this a few days before the injury, and he had seen the box there partly uncovered, with sawdust in it, but he did not know what else. There were screws in the top boards of the box to fasten them down, and these were screwed in and out with the fingers. The word "powder" was written conspicuously upon the box, but plaintiff and his father could not read, and had not been told that any thing dangerous was stored there. The shed was distant from any public highway. A farm road which was used by defendant and his lessees ran from the direction of the city toward the leased parcels, but without reaching any of them, and in passing from its terminus to the several parcels one would pass by the shed, but how near to it would depend upon the parcel to which he was going. One parcel was leased by the plaintiff's father, and this was one of the nearest to the road and to the shed. He had leased it for some years; it contained a little less than an acre, and in 1883 he was paying rent for it at the rate of $16 an acre, and had it planted to potatoes. In going to the several holdings the lessees crossed each other's parcels as was found convenient, and also passed over land plowed by defendant for his How near the plaintiff's father would go to the shed in passing from the farm road in a straight line to his own holding is left uncertain on the evidence; it might be perhaps ten rods, or it might be less than one. There was no inclosure about the shed, and nothing to warn people away from it except the word "powder" upon the box. The superintendent went to the box for dynamite and exploders as he had occasion to use them. The evidence all tended to show that the handling of the exploders by persons who were ignorant of their nature, or were careless, or under circumstances rendering them liable to accidental concussion would be exceedingly hazardous.

own use.

On July 4, 1883, the plaintiff's father was at work among his potatoes, and plaintiff, who was then eight years and four months old, went with a brother two years older to take the father his dinner. When they had delivered the dinner to him they worked for an hour or so destroying potato bugs, and then moved about at pleasure for an hour or so longer in the vicinity of their father's work. The plaintiff looked into the shed and saw the box there partly uncovered, and from the sawdust took out one of the exploders. He was aware of no danger from handling it, and thought no harm in taking it from the open box. After a little he picked up a small stone, as large as his fist,aud holding the exploder upon another stone, which he describes as being of the size of a spittoon he struck it with the stone in one hand while holding it in the other, and with the third blow it exploded, breaking the stone on which it was held, and tearing from his left hand the thumb and one finger. For this injury the suit was instituted.

The negligence charged against the defendant was the keeping of the exploders thus exposed and in dangerous proximity to where persons were accustomed to pass and repass, and where children like the plaintiff, with childish instinct and without any knowledge of the great peril to which they were exposed, might go to the open box and take and handle them.

When the case was submitted to the jury the Circuit judge instructed them to return a verdict for the defendant. This he did upon the ground that it is the duty of parents to take care of their children, and to see that they do not commit trespass, and if they do not do that, but suffer the children to wander away upon

other people's property, the children go there at their own risk, and the negligence is contributory on the part of the parents in allowing them to wander where they have no right. And this negligence of the parents is, for the purposes of legal remedy, imputable to the children themselves.

This instruction was probably given in reliance upon Hargreaves v. Deacon, 25 Mich. 2, which was such a case as the instruction supposed. Counsel for the defendant, with commendable industry, has collected and brought to our attention a large list of similar cases in which the same principle has been laid down and applied, and he insists that they are in their facts analogous to the present case. The children, it is said, were trespassers in going in or to the shed; and even if it could be held that they were licensed to go where they did, the result must be the same, since a license to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against accidental injuries. Illinois Cent. R. Co. v. Godfrey, 71 Ill. 506.

This is the point upon which the case must turn; and it therefore becomes necessary to determine whether, on the one hand, the Circuit judge was correct in holding the plaintiff to be a trespasser, or on the other, the counsel are justified in regarding him as a licensee to whom the defendant owed no duty of protection.

It is quite certain that the plaintiff's father was not a trespasser in crossing the defendant's land to reach the land he had leased. The leasing by implication gave a right of way of necessity, in order that he might render his tenement beneficial. Clarke v. Coggs, Cro. Jac. 170; Beardsley v. Brook, id. 189; Pinnington v. Gulland, 9 Exch. 1; Pernam v. Wead, 2 Mass. 203; Underwood v. Carney, 1 Cush. 285; Pierce v. Selleck, 18 Conn. 330; Holmes v. Seeley, 19 Wend. 507; Lawton v. Rivers, 2 McCord, 445; Thompson v. Miner, 30 Iowa, 386; Thomas v. Bertram, 4 Bush, 317; Tracey v. Atherton, 35 Vt. 52; Wissler v. Hirshey, 23 Penn. St. 333; Mitchell v. Seipel, 53 Md. 351, and the note thereto; 36 Am. Rep. 415; Davis v. Sear, L. R., 7 Eq. 427. The defendant, as the party creating this way, had the right to mark out the line on which it should run, and ou his failure to do so the right of defining it passes to his tenant (Holmes v. Seeley, 19 Wend. 507), and when it was once defined both parties would be bound by the lines so fixed. Nichols v. Luce, 24 Pick. 102; S. C., 35 Am. Dec. 302. See O'Rorke v. Smith, 11 R. I. 259; S. C., 23 Am. Rep. 440. But in this case the way was marked out by neither party, and the tenant had for several years gone as was convenient from the end of the farm road to the land leased; not always on the same precise line, but probably without any considerable departure from the same general direction. No fences were built or stakes set, or lines marked to indicate that from any portion of the land between the farm road and his own lot he was excluded; and these facts seem to make out a practical agreement of the parties, that the privilege of passing and repassing might be freely exercised within limits broader than an ordinary foot-path, and that the tenant should be deemed within the limits of his right if he did not depart altogether from the direct line between the end of the farm road and the lot which had been leased to him.

If however we are in error as to this, and the right of passage, while not specifically defined, is to be considered as only a license, the conclusion in this case must still be the same. Licenses in general may be revoked by the licensor at pleasure; but this license would continue while the lease was in force; it had been created not exclusively for the benefit of the tenant, but for the benefit of the defendant also, The tenant had

paid rent on a leasing to which the license was a necessary incident, and his right to the enjoyment of it was as complete as the right of the defendant to the money he had received for the rent. The license was therefore a license coupled with an interest, and was not revocable while the lease was in force. Wood v. Manley, 11 Ad. & El. 34; Hunt v. Rousmaniere, 8 Wheat. 174; Barnes v. Barnes, 6 Vt. 388; Boults v. Mitchell, 15 Peun. St. 371; Thompson v. McElarney, 82 id. 174; Whitmarsh v. Walker, 1 Met. 313; Giles v. Simons, 15 Gray, 441; Smith v. Benson, 1 Hill, 176; Bonney v. Smith, 17 Ill. 531; White v. Elwell, 48 Me. 350; Miller v. State, 39 Ind. 267; Lewis v. McNott, 65 N. C. 63. That the defendant might have restricted the privilege within the bounds of an ordinary foot-path may be conceded, but it is enough for the purposes of this case that apparently he had not cared to impose such a restriction, and certainly had not done so.

A person giving such a license, especially when he gives it wholly or in part for his own interest, as was the case here, and thereby invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware. This principle has been recently examined and affirmed by this court in Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164, 170; and again in McCone v. Mich. Cent. R. Co., 51 id. 601; and also recently by the Federal Supreme Court in Bennett v. R. Co., 102 U. S. 580; 23 Alb. L. J. 111, and is too familiar to require further references. That duty was incumbent upon the defendant in this case.

But under the circumstances disclosed in this case the invitation to the tenant to come upon the land was an invitation which embraced his family also. The tenant was a laboring man, apparently of small means, and it is customary for such men to be assisted in their manual labor by members of their families; and the defendant must have understood that the persons who rented of him these small patches of land would be likely to avail themselves of the services of their children in cultivating them. It was perfectly allowable for the plaintiff's father to do this; and defendant would have had no right to keep the children from the field if he had been disposed to do so. Whether they went to take their father his meals or to give him more direct aid in cultivation, they went rightfully; and if the superintendent or defendant made their going dangerous, defendant was chargeable with the consequences.

The moving about of the children upon the land where they were at liberty to go, while they were not actually employed, was as much an incident to their being there as is the loitering or playing by children outside the travelled part of the highway as they go upon it to school or upon errands. Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children any thing which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. Briggs v. Gardiner, 19 Conn. 587; Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207; Railroad Co. v. Stout, 17 Wall. 657; Evansich v. Gulf, etc., R. Co., 57 Tex. 123; S. C., 6 Ad. & E. R. Cas. 182; Nagel v. Mo. Pac. R. Co., 75 Mo. 653; S. C., 10 Ad. & E. R. Cas. 702.

In this case a shed in which a dangerous explosive was stored was left only partly inclosed, and its structure and location were such as naturally to invite the entrance of children either for play or for shelter from

sun and rain. Children were rightfully near it; there was nothing in its appearance to warn them off; it was not fastened against their entrance, and there was nothing about it to indicate that they would do injury or be injured by going there. The box containing the explosives seems to have had more the appearance of a box discarded as of no value and with worthless refuse in it than of a box which it was of the very highest importance should be guarded with sedulous care. It was never firmly fastened, and the only warning upon it was a word written upon a top board, which was not always kept on. A man of ordinary prudence, if told that so dangerous an article was so carelessly stored, might well have deemed the statement incredible. We cannot, under these circumstances, say that the plaintiff's father was chargeable with fault in not suspecting the danger and warning his children away from it; or that the child himself was blameworthy in acting upon the childish instincts and propensities, which combined with the negligence of defendants' servant to bring the danger upon him.

A new trial must be ordered.
The other justices concurred.

[See ante 366; 25 Am. Rep. 269; 31 id. 203, 206, note; 18 id. 393; 28 Eng. R. 393.-ED.];

UNITED STATES SUPREME COURT ABSTRACT.

MORTGAGE-FORECLOSURE SALE-SUBJECT TO LIENPURCHASER CANNOT CONTEST VALIDITY.- Where a sale of mortgaged property under a foreclosure deed is ordered expressly subject, not simply to liens which had at that time been established as prior and superior, but to all liens which might be established on reference previously order edand then pending, held, that a purchaser takes title thereto, subject to their future allowance by the court, and cannot contest the validity of the liens established on the reference. Swann v. Fabyan. Opinion by Harlan, J. [Decided March 3, 1884.]

INTERPLEADER-MUST ALLEGE PLAINTIFF HAS NO INTEREST--EQUITABLE RELIEF REMEDY AT LAW.-The bill in this case is either a bill of interpleader or a bill in the nature of a bill of interpleader. It is clear that it cannot be sustained as a bill of interpleader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them. Langston v. Boylston, 2 Ves. Jr. 103; Angell v. Hadden, 15 id. 244; Mitchell v. Hayne, 2 Sim. & Stu. 63; Aldridge v. Thompson, 2 Bro. Ch. 149; Metcalf v. Harvey, 1 Ves. 248; Darthez v. Winter, 2 Sim. & Stu. 336; Bedall v. Hoffman, 2 Paige Ch. 20; Atkinson v. Manks, 1 Cow. 691. In this case the bill fails to comply with any of these requirements. If the complainant were in possession of the property in question, holding it for the party beneficially interested, and had custody of rents and profits derived therefrom, and the two sets of defendants asserted conflicting claims to the property and to the rents, the facts might sustain a bill of inter

pleader. But the complainant is out of possession; he has no rents in his custody. He is therefore in no jeopardy from the conflicting claims of the defendants, and cannot call on them to interplead. Instead of admitting title in the two sets of claimants, and asking the court to decide between them, he sets up title in himself for the benefit of one set, and seeks relief against the other. To avoid these obstacles to the maintenance of the suit, the appellee insists that it can be maintained as a bill in the nature of a bill of

interpleader. In support of this view, his counsel cites section 824 of Story's Eq. Jur. (11th ed.), where it is said that "there are many cases where a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights, when there are other conflicting rights between third persons." But in all such cases the relief sought is equitable relief. Mohawk, etc., Railroad Co. v. Clute, 4 Paige, 384; Parks v. Jackson, 11 Wend. 443; McHeury v. Hazard, 45 N. Y. 580; Goodrick v. Shotbolt, Price Ch. 333; 1 Mad. Ch. Pr. 146, 147. The authority cited by the appellee does not therefore aid the bill in this case, which is that of a party out of possession claiming the legal title to real estate, seeking to oust the parties in possession, who also claim the legal title, and compel them to pay over the rents and profits. This case is similar to the leading case of Hipp v. Babin, 19 How. 271, in which Mr. Justice Campbell said: "Whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by a jury." See 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 enforced by the court sua sponte, though not raised by the pleadings or suggested by counsel. Killean v. Ebbinghaus. Opinion by Woods, J. (See 18 N. W. Rep.-ED.)

[Decided March 3, 1884.]

INJUNCTION-PENDING APPEAL WHEN NOT ISSUED. -If suits in State courts go on and judgments are rendered, there is a way in which decisions overruling defenses, set up under sections 4283-6 of R.S., may be brought here for review, and the errors, if any, corrected. In view of these facts we are not inclined to use the extraordinary writ of injunction to stay proceedings in suits begun in the State courts before the appellants filed their libel in the District Court, simply because of the expense that will be consequent upon trials pending the appeal. If we have the power it should not be used in a doubtful case, and after two judgments below denying the relief, unless the reasons are imperative. Parcher v. Cuddy. Opinion by Waite, C. J.

[Decided March 10, 1884.]

BANKRUPTCY-ORDER REJECTING CLAIM JURISDICTION. This court has no jurisdiction to review a judgment of the Circuit Court, rendered in a proceeding upon an appeal from an order of the District " Court rejecting the claim of a supposed creditor against the estate of the bankrupt, and for the reason that a proceeding to prove a debt is part of the suit in bankruptcy, and not an independent suit at law or in equity. Such being the nature of the proceeding, it is a matter of no consequence whether the appeal from the District Court to the Circuit Court was taken by the creditor or the assignee, for it has always been held that this court has no control over judgments or orders made by the Circuit Courts in mere bankruptcy proceedings. Wiswall v. Campbell, 93 U. S. 347. Leggett v. Allen. Opinion by Waite, C. J. [Decided March 10, 1884.]

county had not formally authorized the work or consented to share the cost. (2) At common law a bridge was a common highway, and the county was bound to repair it. Reg. v. Sainthill, 2 Ld. Raym. 1174; 3 Salk. 76; Rex. v. Kent, 2 East, 342. Under the statute of 22 Henry, 8, which has been held to be merely declaratory of the common law, when part of a bridge happened to be in one shire and the other part in another, the respective shires were bound to repair within their respective limits. Woolrych on Ways, 200. But when a bridge which crossed a river dividing two counties was maintained by one of the counties, under the statute of 23 Henry, 8, it was held that under the same statute it was compellable to repair the highway as a part of the bridge for a distance of three hundred feet from each end of the bridge, although one end was in another county. Rex v. Inhabitants of Devon, 14 East, 477. It is therefore clear that at the common law a county might be required to maintain a bridge or causeway across its boundary line, and extending into the territory of an adjoining county. The same rule prevails in this country. "A county is one of the territorial divisions of a State created for public political purposes connected with the administration of the State government, and being in its nature and objects a municipal organization the Legislature may exercise control over the county agencies, and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization." Talbot v. Queen Anne's Co., 50 Md. 245. It may even impose on one county the expense of an improvement by which it mainly is benefited, but in which the whole State is interested. County of Mobile v. Kimball, 102 U. S. 691. In the case of Agawam v. Hampden, 130 Mass. 528, it was said by the court that "it is well settled that the Legislature may enact that a particular road or bridge shall be a public highway, or may direct it to be laid out as such by county commissioners, and in either case may order the cost thereof, * * as well as the cost of maintaining it or keeping it in repair, to be paid either by the Commonwealth or by the counties, cities, or towne in which it lies, or which may be determined by commissioners appointed by the counties to be specially benefited thereby." See also Norwich v. County Commissioners, 13 Pick. 60; AttorneyGeneral v. Cambridge, 16 Gray, 247; Scituate v. Weymouth, 108 Mass. 128. It is therefore not open to question that the Legislature may, in its discretion, authorize or require one county to build, at its own expense, a bridge or road across the boundary line between it and another county. (3) When a petition is amended by leave of the court the cause proceeds on the amended petition. If its averments show that this court has jurisdiction the jurisdiction will be maintained without regard to the original petition. It has been held by this court that after a case had been dismissed by it for want of jurisdiction, the pleadings being technically defective, the Circuit Court might allow an amendment so as to show the jurisdiction, and on a decree newly rendered the case might be again brought to this court. Jackson v. Ashton, 10 Pet. 480. Washer v. Bullit Co. Opinion by Woods, J.

[Decided March 3, 1884.]

*

NEW JERSEY COURT OF ERRORS AND SUPREME COURT.

MARRIAGE-HUSBAND AS WIFE'S AGENT-JOINED AS DEFENDANTS-LIABILITY OF WIFE.-In a suit upon a contract with a married woman for services prior to

together, and she hires servants to purchase articles for domestic use, the law imparts to her the character of agent and regards him as the principal debtor. She may contract as principal, but in order to charge her there must be an express contract on her part to pay out of her separate estate, or the circumstances must be such as to show clearly that she assumed the individual responsibility for payment exclusive of the liability of the husband. Wilson v. Herbert, 12 Vr. 455. Dunn v. Raynor. Opinion by Van Syckel, J. (Sup.) [Decided Feb., 1884.]

MUNICIPAL CORPORATION-SURFACE WATER-DIVERSION-LIABILITY FOR COLLECTING.--The authorities are quite uniform in holding that no responsibility attaches for damage done by the diversion of surface water by the public authorities where the diversion is merely incidental to and occasioned by the making or alteration of street grades. The injury complained of here is not that consequent upon the alteration of grades, but flows from a scheme put into execution by the municipal authorities by which the water is prevented from following the grades of the streets. By means of artificial ducts or channels the surface water over a large district is carried away from where it would otherwise be discharged and made to pour upon the complainant's lands. Thus what is styled the common enemy, which every proprietor must resist as best he may, is invested with accumulated volume and force and thereon upon one in ease of all others. The effect of this application of the doctrine, as the chancellor well says, would be to condemn private property to public use without compensation. In Massschusetts there are cases denying a right of action to the individual under such circumstances, but there is a public statute provides that when any owner of land adjoining a highway shall sustain any damage in his property by reason of any raising, lowering or other act done for the repairing of such way, he shall have compensation therefor, to be determined by the selectmen of the town. Although the rule adopted in New York accords with that of our Supreme Court in the Durkes case, the Court of Appeals in New York in Noonan v. City of Albany, 79 N. Y. 470; 35 Am. Rep. 540, distinguished the case where, by means of artificial structures in the streets, the surface water of a large territory was collected and discharged on the premises of the plaintiff, and held that an action would lie for the consequent injury. Unless the right of municipalities is limited to this extent there would be nothing to restrain them from constructing sewers by which the concentrated surface water of an entire city would be cast upon the premises of any proprietor that might arbitrarily be selected to bear the burden. The cases furnish no authority for such an invasion of property rights without making due reparation. Field v. Township of West Orange. Opinion by Van Syckel, J. (Er.) (See 11 Am. Rep. 126; id. 169.—ED. [Decided Nov., 1883.]

KANSAS SUPREME

COURT ABSTRACT. JULY TERM, 1883.*

RECEIVER-RIGHT TO INTERVENE-DISCRETIONARY WITH COURTS.-Where a suit is commenced against an insolvent corporation to foreclose a mortgage executed by the corporation, embracing a large amount of his property, and thereafter in an action brought by a creditor against the corporation, a receiver of the real and personal property of the corporation is appointed, with the qualification that he was not to interfere with the possession of the mortgaged property of the corporation, or with the corporate records of the company, and such receiver makes application to the court ap

as defendants. When a husband and wife are living

*Appearing in 30 Kansas Reports.

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 consideration and for the purpose of defrauding the creditors of the company, held, as the receiver is the officer of the court, he had no 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 Hun, 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 along 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 merely 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 nor 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; Hayden v. Manufacturing Co., 29 Conn. 548; Railroad Co. v. Kinney, 58 Ga. 485; Lumley v. Caswell, 47 Iowa, 159; Railroad Co. v. Monroe, 85 Ill. 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, hinder 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,

14 Mo. 160. See also Wallach v. Wylie, 28 Kans. 138 If in the transaction the creditor had no actual knowledge 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. (S. 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 her 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 and her husband for several years, and during all this time she does the washing, ironing and 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.

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 Bank'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 indexed, so that it might give constructive 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 defective 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.) [Decided 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. Lancaster, 78 Ky. 198 (1879), and printed with that case. It is believed to be strictly accurate, and its use is perfectly plain and simple.

LOUISVILLE, KY., May 5, 1884.

WM. REINECKE.

[See also Colby on Surplus Moneys on Mortgage Sales, p. 76.—ED. Alb. Law Jour.]