When the minor child is injured by negligence, the parent may recover not only for loss of service up to the time of trial, but for prospective loss during the child's minority; also for expenses necessarily incurred, or which are immediately necessary, for the child's care and cure. (Cuming vs. Brooklyn City R. Co., 109 N. Y., 95.)

In case of seduction of a daughter, the loss of service must be the proximate result of the seduction, not the remote consequence. Illness from fear of detection is not enough. (14 N. Y., 413.) It is immaterial whether the wrongful act was effected by artifice and persuasion or by force. (99 N. Y., 669.) Pregnancy is not necessary; any illness is sufficient which occasions loss of service. (31 N. Y., 405; 104 Mass, 222.)

Seduction under promise of marriage is made a crime in New York. The female must be of previous chaste character and the indictment must be brought within two years. Subsequent marriage of the parties is a bar to a conviction. (See Laws of 1848, Ch. 111, § 1275.) Many other states have similar laws.

In regard to minor daughters the American law differs from the English; for if such a daughter be seduced while in the actual employ of another, still, as a father has a right to reclaim her services at any time, there is deemed to be a relation of constructive service between them, and on this ground the father can sue. But if the father has apprenticed his daughter away, this rule does not hold good, and the father cannot sue, unless the actual master was the seducer and procured her to be apprenticed to him with a view to seducing her. (Dain vs. Wyckoff, 7 N. Y., 191; 18 N. Y., 45.)

In the case of adult daughter the actual relation of service must be proved, (47 Barb., 47.)

§ 1280. The mother may sue after the father's death for the daughter's seduction. (Furman vs. Van Sise, 56 N. Y., 435.)

§ 1284. See Whitney vs. Elner, 60 Barb., 250; Kniffen vs. McConnell, 30 N. Y., 285; Hogan vs. Cregan, 6 Robt., 138. INJURIES FROM THE EXERCISE OF STATUTORY POWERS.

1040. In regard to the liability of municipal corporations in the exercise of powers conferred by the legislature, the rule is that they are not liable for the exercise of functions which are of a judicial character, but are liable for negligence or wrongful omissions of duty in the modes of constructing and maintaining public works. (See 33 N. Y., 489; 46 N. Y., 194; 76 N. Y., 60.)

As to the liabilities of the N. Y. Elevated Railroad Companies for injuries to adjacent property, see Story vs. El. R. Co., 90 N. Y., 122; Lahr vs. El. R. C., 104 N. Y, 268.

§ 1043. Public officers are liable to a person who suffers special damage from the neglect to perform their official duties. For non-feasance (as in not repairing streets) they are not liable unless they had funds for making repairs; but for misfeasance, i. e., causing injury by neg ligence, such proof is not necessary. (Bennett vs. Whitney, 94 N. Y., 302.)

A municipal corporation is liable for an injury sustained by reason of one of its highways being out of repair, after the lapse of sufficient time to give constructive notice of it, or after actual notice. (Requa vs. Rochester, 45 N. Y., 129.)

NEGLIGENCE.

§ 544. Negligence may be defined as the lack of such care and caution as would be naturally expected of a reasonable man under like circumstances. No action

for negligence will lie unless there be a violation of some duty towards the plaintiff. Thus, where a boy between five and six years old was playing on a railway platform at a station and was struck by a projection on a car and injured, it was held that there was no duty towards him and he could not recover. (101 Pa. St., 258.) There may be said, in general, to be a broad general duty not to injure anybody by negligence. But sometimes there is a special duty to use care towards certain individuals and not towards others; thus the duty of care required of a carrier towards passengers is different from that required towards other persons. And sometimes the duty to use care only subsists in favor of a person with whom a contract is made which implies the exercise of care; thus where a man made a coach under contract for another and a third person was injured by its breaking down, the latter could not sue the coachmaker, since there was no duty towards the person injured. (Winterbottom vs. Wright, 10 M. & W., 109; for the limitations of this doctrine, see Thomas vs. Winchester, 6 N. Y., 397; Parry vs. Smith, 4 C. P. D., 325.)

There is no responsibility in an action. of tort for pure and inevitable accident. (71 N. Y., 574.)

$545. See Weeks vs. N. Y., etc., R. Co., 72 N. Y., 50; Putnam vs. Broadway, R., etc. Co., 55 N. Y., 108; Weston vs. El. R. Co., 73 N. Y., 595.

§ 546. In general, the plaintiff has the burden of proof to establish the defendant's negligence by giving evidence of facts and circumstances tending to show the lack of proper care and caution. But But sometimes it is sufficient to make a prima facie case, to show merely the fact of the injury; here it is said res ipsa loquitur. When a thing causing injury is under the

control of the defendant and the accident is such as, in the ordinary course of business, would not happen if reasonable care were used, it affords, in the absence of explanation by the defendant, sufficient evidence that the accident arose from want of care on his part. (109 N. Y., 297.)

§ 547. Dyer vs. Erie R. Co., 71 N. Y., 228; Dolan vs. D. & H. Canal Co., id. 285.

§ 549. A foot passenger has a right to cross a city street not only at the crosswalk but wherever he pleases; and one driving on the street must be watchful at all points not to injure persons crossing. (Moebus vs. Herrmann, 108 N. Y., 349; 110 N. Y., 504.)

§ 550. Master may be liable for reckless and wanton act of servant. (Rounds vs. D. L. & W. R. Co., 64 N. Y., 129; Shea vs. 6th Avenue R. Co., 62 N. Y., 180.) For a good illustration as to scope of duty, see Quinn vs. Power, 87 N. Y., 535.

553. Thorogood vs. Bryan has lately been overruled in England in the case of The Bernina, 12 Pro. Div., 58; 13 App. Cas., I. It has generally been denied in this country. Thus, a woman who is invited to ride with a person competent to manage a horse is not chargeable with his negligence, if a collision be caused by his negligence and that of the driver of another vehicle, and she be thereby injured. (66 N. Y., 11.) Where two persons are driving in the same wagon and are persons engaged in a common employment, both may be chargeable with negligence from the negligent driving of one of them. (109 N. (Y., 16.

564. As to masters keeping a sufficient staff of servants for the work he has to do, the contrary rule to that stated in the text was held in 73 N. Y., 38.

§ 580. As to contractors, see Rochester Ds. Montgomery, 72 N. Y., 66; Buffalo vs. Holloway, 7 N. Y., 497; Bower vs. Peate, I Q. B. D., 321; Pierrpont vs. Loveless, 72 N. Y., 211.

§ 593. See Carpenter vs. Trans. Co., 71 N. Y., 574; Conn. Ins. Co. vs. Erie R. Co., 73 N. Y., 399.

FRAUD AND DECEIT.

§ 1174. The fraud which will afford a ground of action ex delicto to recover damages is actual fraud rather than constructive, and comprises the following elements:

(1.) There must be a representation, false in fact; it may be made by words, spoken or written, by acts or conduct calculated to deceive, or by silence if there be a duty to speak. The representation must be as to facts, not as to promises or matter of opinion.

(2.) The representation must be made with fraudulent intent. This may be proved by showing, (a) That the defendant knew the representation to be false; (b) That he believed it to be false; (c) That he made it as true of his own knowledge, when he was conscious that he had no knowledge on the subject; (d) That, though he believed it to be true, he had no reasonable ground for such belief.

(3.) The representation must have been made with intent that it should be acted upon, or under circumstances from which it could be reasonably anticipated that some one would be likely so to act.

(4.) The plaintiff must have acted upon the representation in good faith, relying upon its truth, and have been justified as a reasonable man in so acting. If he acts on his own judgment, the person making the false representation is not liable. So, if the false statements are merely as to matters of opinion, or as to patent and

obvious defects which even casual observation would have enabled the vendee to discover, an action for fraud cannot be sustained. Under this rule it is also to be noticed that the statement must be material. The test of materiality is whether the plaintiff would have acted as he did if he had known the truth.

(5.) Pecuniary damage must have followed as a proximate result.

§ 1175. There is no such thing as legal fraud in the absence of moral fraud. (Joliffe vs. Baker, 11 Q. B. Div., 255; see Oberlander vs. Spiess, 45 N. Y., 175.)

Belief in the truth of the statement is not a sufficient defense, when not founded on reasonable grounds. (Litchfield vs. Hutchinson, 117 Mass., 195.)

$1178. One who falsely represents another to be solvent, knowing or having reason to believe that this is untrue, and with intent to defraud, is liable for deceit. The representation need not here, as in England, be in writing. (Morehouse vs. Yeager, 71 N. Y., 594; Stitt vs. Little, 63 N. Y., 427.)

A person wrongly stating his financial standing to a mercantile agency, is liable to a customer of the agency who deals with him on the faith of such statements. (Eaton, &c., Co. vs. Avery, 83 N. Y., 31.) § 1180. As to the liability of directors of a corporation, see Morgan vs. Skiddy, 62 N. Y., 319.

§ 1181. A warranty which turns out to be untrue is not necessarily fraudulent, though the text so states. There may be fraud in such a case, but there may also be no fraud. (Ross vs. Mather, 51 N. Y., 108.) To recover for fraud, the various elements of fraud which have been above specified (see under § 1174) would have to be proved. When there is fraud with the warranty, there is a choice of remedies, either to sue in tort for the fraud, or in

contract upon the warranty. When there is no fraud, only the suit on the warranty will be sustainable.

§ 1186. Statements of opinion are none the less because expressed in positive categorical form. (See Marsh vs. Falker, 40 N. Y. 562.) As to the difference between fact and opinion, see Hickey vs. Morrell, 102 N. Y., 454.

§ 1188. See Beardsley vs. Duntley, 69 N. Y., 577; Ellis vs. Andrews, 56 N. Y., 83; Miller vs. Barber, 66 N. Y., 558.

§ 1196. See Dung vs. Parker, 52 N. Y., 494; Madison vs. White, 26 N. Y., 118.

§ 1197. See Indianapolis, &c., R. Co. vs. Tyng, 63 N. Y., 653; Swire vs. Francis, 3 App. Cas., 106.

§ 1203. Burch vs. Spencer, 15 Hun, 504. § 1205. See Anonymous, 67 N. Y., 598; Cæsar vs. Kuntz, 60 N. Y., 229; Wright vs. Brown, 67 N. Y., 1.

THE ORIGIN AND GROWTH OF THE ENGLISH CONSTITUTION. An Historical Treatise in which is drawn out, by the Light of the most Recent Researches, the Gradual Development of the English Constitutional System, and the Growth out of that System of the Federal Republic of the United States. By Hannis Taylor. In Two Parts. Part I: The Making of the Constitution. Boston & New York: Houghton, Miflin & Co., 1889.

The task essayed in this work involves an attempt to draw out, within the limits of two octavo volumes, the entire historical development of the English constitutional system, and the growth out of that system of the Federal Republic of the United States. The constitutional histories of England and of the United States together make up a continuous and natural evolution which can be fully mastered only when viewed as one unbroken story. Such a view is given by Mr. Taylor in his present treatise, the first volume of which has just appeared. The work seems well to carry out the author's double purpose of satisfying the critical student of the Science of Politics as to fullness and accuracy of detail, while at the same time

affording interest to the American citizen who desires to read within reasonable limits the entire history of the wonderful constitution under which he lives.

Upon the almost perfect physical makeup of the work, we detect two blemishes: one, the omission of "Part I." upon the cover, which is misleading; another, the perhaps careless misprint of Columbia for Columbian College, Washington, in the preface.

THE LAWYER'S REPORTS ANNOTATED, Vol. IV. Rochester: The Lawyers' Coöperative Publishing Co., 1889.

The ever increasing, and already enormous, mass of State Reports, to possess a complete set of which would require an outlay of money which few lawyers can afford for books, renders necessary a series of reports containing selections from the best or most important decisions of the courts of the various States. Of such series there are several, two or three of which have already received attention in these columns. We cannot assume to possess that intimate acquaintance with