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terruption of its enjoyment (Case v. Favier, supra; Wilder v. St. Paul, supra; City of Mankato v. Warren, supra; 2 Greenl. Ev., § 662), evidence of such use, assent, time, circumstances, public accommodation, and private rights, and the effect of the interruption spoken of, is proper to be admitted and considered. As regards acceptance by the public, "common user is the very highest kind of evidence that the highway is one of common convenience and necessity, and therefore beneficial to it," and from these facts an acceptance may well be presumed. Kennedy v. Le Vau, supra; | Brakken v. Railway Co., supra. A presumption of equal strength may well be drawn from an actual assumption of care and control of the alleged highway by the public authorities by grading, working, or bridging upon it. Brakken v. Railway Co., supra; Washb. Easem. (3d ed.) 223. Morse v. Zeize. Opinion by Berry, J.

[Decided July 15, 1885.]

SALE-TRANSFER OF NOTES AND MORTGAGE IN PAYMENT-INDORSEMENT OF NOTES-CUSTOM-EVIDENCE.

-Plaintiffs sold defendants a bill of lumber to be paid for in promissory notes, secured by mortgage against a third party, which defendants agreed to transfer and plaintiffs to accept in payment of the lumber. Nothing was said about defendants "indorsing" the notes. Held, that this neither included nor implied an obligation to "indorse;" that any assignment or transfer that would convey good title would fulfill the contract on part of the defendants; also that evidence was inadmissible to prove a general custom, in cases of the transfer or sale of negotiable paper, to "indorse," although not expressed in the terms of the contract. Usage may be admissible to explain what is doubtful, but never to contradict what is plain. When it is sought to incorporate a custom into a contract, expressed in language neither technical nor ambiguous, and therefore needing no aid in its construction, it amounts to establishing the principle that a custom may add to, vary, or contradict the well-expressed intention of the parties. Without entering into any discussion or citation of authorities, we may say that it is too broad a statement to assert without qualification that the modern drift of judicial opinion is in favor of greater latitude in the introduction of proof of usage or custom to explain or construe contracts. In a commercial community many words or phrases acquire a technical meaning well understood by those in a particular trade or business. Certain business customs and usages also become well established and understood by business men, who in making their contracts, assume them, and take them for granted, and contract with reference to them, without taking time to incorporate them into the expressed terms of their bargains. Hence from the necessities of the case arising from such habits, courts are no doubt inclined (and properly so) to greater latitude than formerly in admitting evidence of usage to explain the expressed terms of a contract, and to add to it mere incidents

not expressed, but not inconsistent with what is expressed. But courts are still uniformly opposed to allowing evidence of custom to vary or contradict the plain expressed terms of a contract, or to imply from these terms an obligation different from what the law would imply, or as was in effect sought to be done in this case, to imply an obligation in the absence of any contract on the subject. Any other rule would introduce a dangerous element of uncertainty into contracts. There is no need of any such customs; for if parties wish to add an obligation which the law would not imply, or exclude one which it would imply, it is easy for them to so express themselves. Paine v. Smith. Opinion by Mitchell, J. [Decided July 1, 1885.]

HIGHWAY-TRSPASS BY OVERSEER-INJUNCTION.This case turned upon the question whether there was a public highway across plaintiff's land. It being found that there was not, and it appearing that defendant was a road overseer, and that he had torn down plaintiff's fence, cut down his shade-trees, and done other injuries to his land, and that in so doing he was assuming to act as such overseer under direction of the town supervisors to keep the alleged highway open, held, that an injunction was properly allowed. In such case the injunction is properly granted upon the ground that the wrongful acts enjoined may become the foundation of adverse rights; that they are in the nature of a private nuisance to the plaintiff, and may occasion a multiplicity of suits. High Inj., § 702. Johnson v. City of Rochester, 13 Hun, 285; Poirier v. Fetter, 20 Kan. 47; and see Wilson v. City of Mineral Point, 39 Wis. 160; 3 Pom. Eq. Jur., § 1357. Chadbourn v. Zilsdorf. Opinion by Berry, J. [Decided July 21, 1885.]

MASTER AND SERVANT-FELLOW-SERVANTS-INJURY TO EMPLOYEE.-It appearing that the work in which plaintiff was engaged when he received the injury complained of was wholly outside of that for which he entered defendant's service, and outside of the line of defendant's usual business, and the entire general charge, superintendence, and direction of it, as in the nature of a distinct department of business, appearing to have been committed to B. and K., at least as far as plaintiff and his co-employees were concerned, B. and K. are to be taken as standing in the shoes of their principal, the defendant, as respects the place where plaintiff should work, and in sending him to, such place of danger, so that their negligence in so doing is the negligence of their principal. The general duty of a master to exercise care to prevent the exposure of his servant to unnecessary and unreasonable risks requires him, among other things, to use reasonable diligence in seeing that the place where the service is to be performed is safe for that purpose. Noyes v. Smith, 28 Vt. 59; Hutchinson v. Ry. Co., 5 Exch. 352; Gibson v. Pacific R. Co., 46 Mo. 163; Huddleston v. Lowell Mach. Shop, 106 Mass. 282; Snow v. Housatonic R. Co., 8 Allen, 446; Sullivan v. India Manuf. Co., 113 Mass. 396; Ryan v. Fowler, 24 N. Y. 410; Patterson v. Pittsburg & C. R. Co., 76 Penn. St. 389; Swoboda v. Ward, 40 Mich. 420. The master's duty and liability to his servant extend not only to such unnecessary and unreasonable risks as are in fact known to him, but to such as he ought to know in the exercise of proper diligence, i. e., diligence proportionate to the occasion. Hayden v. Smithville Manuf. Co., 29 Conn. 548; Noyes v. Smith and Gibson v. Pacific R. Co., supra. The servant, of course, assumes the ordinary risks of his employment, such as are reasonably necessary and incidental to it, including negligence of fellow-servants; and as a general rule, he also assumes such extraordinary risks as he may knowingly and voluntarily see fit to encounter. But while be may cut himself off from any recourse against his master if he recklessly rush into danger, he does not stand upon the same footing as his master as respects the matter of care in inspecting and investigating the risks to which he may be exposed. He has a right to presume that the master will do his duty in this respect, and therefore when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders without being chargeable with contributory negligence or with the assumption of the risks of so doing. Russell v. Minneapolis & St. L. R. Co., 32 Minn. 230; Hutchinson v. Ry. Co. and Gibson v. Ry. Co., supra. But this proposition is ordinarily subject to the qualification that he must not rashly or delib

erately expose himself to unnecessary and unreasonable risks which he knows and appreciates. And here it is important to note a distinction well elucidated in Russell v. Minneapolis & St. L. Ry. Co., supra, that it is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence or the assumption of the risks growing out of them. The question is, did he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects existed? Cook v. St. Paul R. Co. Opinion by Berry, J. [Decided July 21, 1885.]

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CHANGING FORM OF PROCEDURE-IMPAIRING CONTRACT

RIGHTS.-The charter of a railroad company, which was irrepealable, gave the company the power to take lands by condemnation, and provided for an appeal by the land-owner from the award of damages to a certain court. Held, that a general statute which took away the right to appeal to that court, and gave an appeal to another court on the same terms and conditions, and with the same mode of trial, was not unconstitutional. In Rader v. S. E. Road District, 7 Vroom, 273, the Legislature projected a plan of public improvement, and created a special municipal body as a corporation to contract for and execute the work and make assessments to provide the means of payment. This corporation made a contract with a contractor to perform part of the work. Subsequently the Legislature extinguished the original corporation and substituted in its place another municipal body with exactly the same functions and powers, and imposed upon it the obligation to perform the contracts of its predecessor. The contractor brought suit on his contract against the original corporation, and contended that the repealing act either impaired the obligation of his contract or deprived him of a remedy upon it which he had when the contract was made, and was therefore unconstitutional and void. This

court held otherwise, and decided that the repealing act was constitutional; that it was competent for the Legislature to change the form and mode of procedure for the enforcement of the contract, provided that no substantial right of the contracting party was impaired. To the same effect is Munday v. Rahway, 14 Vroom, 338; S. C., 15 id. 395. A subscription to the stock of a corporetion is a contract of the subscriber with the corporation then existing. D. & A. R. Co. v.

Irick, 3 Zab. 321. The Legislature does not impair the obligation of a contract by limiting or altering the modes of proceeding for enforcing it, provided that the remedy be not withheld or embarrassed with conditions or restrictions which impair the value of the right. The Legislature may change the remedy, provided no substantial right secured by the contract is impaired. Tennessee v. Sneed, 96 U. S. 69; South Carolina v. Gaillard, 101 id. 433-439; Morawetz Corp., § 448. These principles are applicable to the case in hand. The original charter of the company gave the land-owner the same right of appeal as the act of 1877

did, and the right of either party to trial by jury given by the charter is retained in the subsequent act. The only change that was made was in the mode of procedure in the forum in which the appeal should be *Appearing in 47 N. J. L. Reports.

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TENANT

tried. Railroad Co. v. Hecht, 95 U. S. 168, is a precedent quite in point. There the company had a charter which provided that process against the company should be served on the president in a particular manner. A subsequent act provided that process against corporations might, in certain contingencies, be served on the clerk of the company. The process in the case was served on the clerk, and the company contended that the service was illegal for the reason that the later act impaired the contract in the company's charter. The court held the service to be good, and that a statute which prescribed a mode of service on a corporation different from that provided for in a charter previously granted to a particular company did not impair the obligation of the contract between such company and the State. The State may, without violating this constitutional provision, change the mode of taking lands, transfer the duty of assessing the damages from one tribunal to another, give a right of appeal, and extend the time within which claims for damages may be made. Pierce Railroads, 541. United Companies v. Weldon. Opinion by Depue, J. LANDLORD AND TENANT-NUISANCE CREATED BY LIABILITY OF LANDLORD. - A landlord whose tenant during the term has created a nuisance on the demised premises will not be liable therefor so long as he has no right of entry or power to abate; but when the term expires, or the landlord may enter and abate the nuisance, he will become liable for its continuance, and that liability cannot be evaded by a renewal of the lease, though with covenants to repair, and without the landlord's having taken actual possession. If one create a nuisance on his own premises and thus become liable for its erection and also for its maintenance, he cannot escape the latter liability of demising the premises whereon the nuisance is. This was established in the leading case of Rosewell v. Prior, 2 Salk. 460; S. C., 1 Ld. Raym. 713. This doctrine has been restated and developed in many cases, which have been said to be all reconciled on the proposition that where the injury is the result of the misfeasance or nonfeasance of the lessor, the party suffering damages may sue him. Todd v. Flight, 9 C. B. (N. S.) 377. A distinction has been taken between the liability of the landlord and that of the tenant, and the former has been restricted to that which is a nuis. ance in its very essence and nature at the time of letting, and not something merely capable of being rendered a nuisance by the tenant. Gandy v. Jubber,5 B. & S. 87. But there are cases which affirm the lessor's liability for a nuisance which was a necessary, contemplated or probable result of the use of the thing leased for the purposes for which it was leased. Fish v. Dodge, 4 Den. 311; Rex v. Pedly, 1 Ad. & El. 822; House v. Metcalf, 27 Conn. 631; Wood Landl. & Ten. § 639, and cases in notes. Besides the above-cited cases, the following illustrate the principle: Nelson v. Liverpool Brewing Co., L. R., 2 C. P. D. 311; Staple v. Spring, 10 Mass. 72; Saltonstall v. Banker, 8 Gray, 195; Swords v. Edgar, 59 N. Y. 28; Waggoner v. Jermaine, 3 Den. 306; McCallum v. Hutchison, 7 U. C. C. P. 508. The principle was adopted in this State by the Court of Errors in Durant v. Palmer, 5 Dutcher, 544. I am unable to bring my mind to the conclusion that the landlord's liability in such case will be disstipulate to keep the demised premises in repair. Such charged by reason of his having required the tenant to a view seems to have been taken in Pretty v. Bickmore, L. R., 8 C. P. 401, which case was followed and

approved in Gwinnell v. Eamer, 10 id. 658. In my judgprinciple established by the leading cases or with reament it is impossible to reconcile those cases with the son. For it is absurd to say that one who is liable for a continuing nuisance may escape that liability by merely taking a contract from another to remedy the

nuisance by repairs. The tenant cannot, either by reason of his tenancy or by reason of his contract to repair, be interposed between the person injured by the nuisance and the landlord liable therefor. Shearm. & R. Neg., § 502. In Swords v. Edgar, ubi supra, the Court of Appeals of New York disapproved of Pretty v. Brickmore, and by a unanimous judgment held that a lessee's covenant to repair would not shield the lessor from liability. In some cases knowledge on the part of the lessor of the existence at the time of the demise is held to be an essential element of his liability. Gwinnell v. Eamer, ubi supra; State v. Williams, 1 Vroom, 102. A different view was expressed by the Queen's Bench in Gandy v. Jubber, ubi supra, but as the plaintiff in that case upon error in the Exchequer Chamber, accepted a stet processus on the recommendation of the court, the weight of that case may be considered lessened. If such knowledge is an essential element of the landlord's liability, the cases of Pretty v. Bickmore and Gwinnell v. Eamer may be reconciled with the other cases. In the latter case it appears that the lessor demised in ignorance of the defect. In the former case the same ignorance may be inferred. Nor do I now perceive how the liability of the landlord in such cases will be diminished by the fact that he renewed the tenant's lease without retaking actual possession. Such a conclusion would be opposed to the principles creating and governing his liability. If a nuisance is created during a term already existing, no liability falls on the landlord pending that term, for the reason that he has no legal means of abating the nuisance. He cannot enter upon his tenant's possession for that purpose, and would be a trespasser if he did so. But when the term expires, his right of entry and power to abate at once arise, and for that reason a liability commences. If he declines

to re-enter and abate the nuisance, and relets the premises, the liability which arose at the termination of the term will be neither discharged nor evaded. The test of his liability in such case is his power to have remedied the wrong. If he has, but fails to exercise such power, his liability remains. The cases seem to be uniform in this view. Whalen v. Gloucester, 4 Hun, 24; Rex v. Pedley, ubi supra, Rich v. Basterfield, 4 C. B. 783; Clancy v. Byrne, 56 N. Y. 129. In Gandy v. Jubber the landlord was held liable in case of a tenancy from year to year, which he could have terminated by notice, which he failed to give. Ingwersen v. Rankin. Opinion by Magie, J.

NEBRASKA SUPREME COURT ABSTRACT.

EMINENT DOMAIN-OWNERSHIP-ESTOPPEL - RAILROAD COMPANY.-A. and B. were in possession of real estate, having a title of record therefor. The railroad company, desiring to construct its road over the real estate, applied to them for a grant of the right of way, which was refused. It then applied to the county judge for the appointment of commissioners to assess the damage to the real estate by reason of the appropriation of the necessary right of way, alleging A. and B. as the owners, and their refusal to make the grant. It was then agreed between the railroad company and A. and B. that the land might be taken and occupied in the construction of the road, and the damages settled by a commission to be hereafter appointed. The commission was subsequently appointed and the damages assessed, from which the railroad company appealed. No other person was made a party to the proceedings in the District Court, and no other person claimed any interest in the land, nor demanded the damages. Held, that the railroad company could not dispute the ownership of A. and B., nor of their right to the damages assessed by the commissioners.

Citing Southard v. Dorrington, 10 Neb. 119; Mills Em' Domain, 107; 1 Redf. Railways, 239, 240; Reitenbaugh v. Chester, etc., R. Co., 21 Penn. St. 100; Rippe v. Chicago., etc., R. Co., 23 Minn. 18. Omaha, etc., R. Co. v. Gerrard. Opinion by Reese, J. [Decided July 7, 1885.]

MANDAMUS-INTERVENTION-SETTING ASIDE FOR FRAUD.-An alternative writ of mandamus was issued to compel the county clerk and board of canvassers of G. county to reassemble and canvass the votes of said county for county seat. The board at once proceeded to canvass the votes as commanded in the writ, and made due return thereof. On the return day certain citizens of that county asked leave to intervene, on the grounds of collusion and fraud between the relator and defendants. Leave was granted. The rule is well settled that in matters of mere public right the people are the real party in interest, and in such cases the wrongful refusal of officers to act is no more the concern of one citizen than another. People v. Collins, 19 Wend. 56; County of Pike v. State, 11 Ill. 202; King v. Commissioners, 1 Term R. 146; Moses Mand. 197, 198. In such cases it is sufficient for the relator to show that he is a citizen, and as such interested in the execution of the laws. State v. Stearns, 11 Neb. 104; State v. Peacock, 15 id. 442; Hall v. People, 57 Ill. 313; State v. Judge, 7 Iowa, 202; Hamilton v. State, 3 Ind. 458; People v. Halsey, 37 N. Y. 348; State v. Shropshire, 4 Neb. 413. And if any citizen may initiate proceedings to secure the enforcement of the laws, where the decision upon the relation might affect every citizen in the county, any other citizen certainly has the right to show to the court any fact which would defeat the action. This would have been so had an order to show cause been made, instead of issuing an alternative writ; and the fact that the writ was issued does not prevent the court from receiving such an application, showing that the writ was issued under a mistaken statement of facts. We therefore hold that the application to intervene was properly made. Second, it is competent for a court, granting even a peremptory writ of mandamus, to set it aside if it was obtained by fraud, false representations, or concealment of material facts on the part of the relator. Everitt v. People, 1 Caines, 8; People v. Everitt, Cole & C. Cas. 149. The rule is well settled that a judgment obtained through fraud, accident, or mistake will, in a proper case, be set aside. Truly v. Wauzer, 5 How. 141; Davis v. Tileston, 6 id. 114; Hendrickson v. Hinckley, 17 id. 443; Ocean Ins. Co. v. Fields, 2 Story, 59; Robinson v. Wheeler, 51 N. H. 384; Wingate v. Haywood, 40 id. 437; Emerson v. Udall, 13 Vt. 477; Gainty v. Russell, 40 Conn. 450; Dobson v. Pearce, 12 N. Y. 156; Munn v. Worrall, 16 Barb. 221; Foster v. Wood, 6 Johns. Ch. 87; Tomkins v. Tomkins, 11 N. J. Eq. 512; Wistar v. McManes, 54 Penu. St. 318; Webster v. Skipwith, 26 Miss. 341; Humphries v. Bartee, 10 Smedes & M. 282; Pelham v. Moreland, 11 Ark. 442; Nelson v. Rockwell, 14 Ill. 375; How v. Mortell. 28 id. 479; New Orleans v. Morris, 3 Woods, 103; Smith v. McLain, 11 W. Va. 654; Shields v. McClung, 6 id. 79; Crim v. Handley, 94 U. S. 652; Pom. Eq., § 1364, and cases cited. State v. Matley. Opinion by Maxwell, J. [Decided July 7, 1885.]

NOTES.

It seems there is a Chinese Law Review published at St. Louis. At any rate the Southern Law Times speaks of the Amelican Law Review.

The Law Journal says: "Montagu Chambers was old enough to have obtained a commission in the Grenadier Guards the year before the battle of Waterloo." Well, did he get it?

The Albany Law Journal.

ALBANY, OCTOBER 24, 1885.

CURRENT TOPICS.

HE Bar Association of the city of New York

THE

Theld its first fall meeting on Tuesday evening

of last week. Mr. James C. Carter occupied the chair. The expected usual October report against the Civil Code was not made. Mr. David Dudley Field moved that the report of last October, which was received but not adopted, be made the special order for the next stated meeting. The chairman ruled the motion out of order, inasmuch as the report had been received and action upon it ended. Mr. Field then presented two resolutions, and moved that they be made the special order of business for the next stated meeting. This motion was carried by a great majority. The resolutions were as follows: Resolved, That in the opinion of this association the laws should be reduced, so far as possible, into the form of a statute. Resolved, That the law of real property, and the law of personal property, and the law of commercial contracts, can be reduced into the form of a statute. Mr. Field further moved the following resolution: Resolved, That a committee of five be appointed to report, as soon as practicable, whether the present delay and uncertainty in judicial administration in the city of New York can be lessened, and if so, by what means. Mr. Field stated that the subject had attracted the attention of other associations, and thought it would be beneficial to have the matter investigated. The resolution was carried unanimously, and the president was designated to appoint the committee.

If the courts go on at the present rate we shall certainly have to open a distinct department of humorous cases in this journal. We thought the Texas sheep case of last week was extremely amusing, but this week we have a Kansas bull case that crowds it hard. The humor seems just now to run in the direction of the animal kingdom. In Maier v. Randolph, 33 Kans. 340, where a master instructed his servant to go to a certain place at a certain time and kill a beef, and the servant went to such a place at such a time, and finding no animal there except plaintiff's bull, killed the bull, skinned him, dressed him, and hung his carcass up in the slaughter-house as a beef, honestly attempting to carry out his master's orders, held, that the master is liable. The court said: "A 'beef,' according to Webster's Dictionary, may be either a bull, a cow, or an ox." But it was not in proof that the servant had consulted Webster or knew the definition. At any rate he made a bull of it. There was an interesting question of evidence. To enhance damages the plaintiff introduced in evidence a book issued by private individuals as an advertisement of animals VOL. 32-No. 17.

which they had for sale, containing what purported to be a pedigree of the bull in question, and showing that he was of a highly respectable family — came over with the conqueror, or with all the old furniture in the "Mayflower," or something like that. This was held error; it was mere hearsay; but it was probably much more truthful than the pedigrees of most of our alleged first families. The danger of having too faithful

cast demonstrates the destitute of imagination, and

and literal a servant, destitute of the necessity of foresceing contingencies and providing against them.

The case of Bohannon v. State, Nebraska Supreme Court, reported in another column, is not exactly funny, but it is one of a grim humor. The defendant, convicted of murder in the second degree, punishable with imprisonment, appealed, got a new trial, and was convicted of murder in the second degree, punishable with death. Held, that he must hang. If he asks for a new trial he must take all the chances and risks. This seems to be right. It is hardly fair that he should have a new trial only so far as it is advantageous to him. He is put in statu quo by the award of the new trial, and must take the chances of the result being better or worse for him. A petition for commutation would appeal strongly to the executive clemency, but the law is clear enough.

The recent death of Emory A. Storrs, of Chicago, deserves more than a passing notice. He was one of the brightest wits and cleverest advocates in this country, and one of the best political and occasional speakers. He had the salt of good sense in an extraordinary measure. The Central Law Journal says: "He belonged to a brilliant galaxy of men, of which Erskine and Grattan in the old world, and Choate, Prentiss and Ingersoll in the new, are the most conspicuous types." We think he cannot fairly be ranked with Erskine and Choate, the two greatest advocates, in our opinion, that the two worlds have ever known. Nor was he so phenomenal a sky-flyer as Prentiss. But it is hard on him to class him with Ingersoll. It seems to us he was nearer like Mat. Carpenter than any of these. He was a native of our State, and was only fifty-one years old. We are sorry that one of his latest professional acts was to defend the polygamists.

We commented, ante, 203, on the case of Avery v Avery, 33 Kans. 1, holding that it is "extreme cruelty" justifying a divorce, for a husband to accuse his wife of unchastity. The Nevada court now outdo the Kansas court, and hold the same conduct to justify a divorce in favor of the husband. Really this doctrine of extreme cruelty is reduced to a dangerous absurdity. See Kelly v. Kelly, 18 Nev.

49.

An address recently delivered before the Law Department of the University of Pennsylvania, by the Hon. John B. McPherson, on Trial by Jury in Civil Cases, was a very thoughtful and well ex

pressed utterance in favor of the present system. The speaker said: "In my own experience - if I may take the stand an unjust verdict is the rare exception, and by an unjust verdict I now mean one technically so, one against the decided weight of evidence, or in defiance of the rules laid down by the court. Can any lawyer bear a different testimony? Look over the records in any district, and remembering the power and steady tendency of courts to set aside a finding they think wrong, count up the instances in which that power has been used. Miscarriages of justice, when they do occur, not only shock the sense of those who know the facts, but are surprising also, and in the surprise they cause is found some further evidence that such occurrences are rare." Of the impolicy of substituting the judge for the jury he said: “I need not say again that judges would often tend, in finding facts to classify the cases, set them in groups, and thus overlook the little differences which yet are sometimes vital. I suggest now the dangers arising from an honest twist of character, from stubborn opinions, from eccentric attitudes of mind, and ask you to consider how hard a strain would come in any case in which these were involved. A strain upon the evidence I mean, no doubt in many instances unconscious, but still a real and a dangerous strain. How strong would be temptation to fit the facts to preconceived opinion, to give the victory to a cherished thought, to pave the way for triumph long delayed. To my own mind this argument is final against the merger of the jury in the judge. Where there is little question about the facts, I see no danger, but rather much convenience in committing the whole matter to one mind, but wherever there is room for serious doubt, either about the facts directly sworn to, or about other relevant facts to be inferred therefrom, I am persuaded that a judge should never solve the doubt. Especially, I think, where inferences must be drawn. A subtle mind may draw what inference it will, and draw it with much seeming, or indeed much actual fairness. The affairs of men are so complex, so intertwined, their motives are so mixed, their actions look so different from different points of view, that one may tell a dozen stories, all probable and all conflicting, but resting on the same few facts. It is not wise to let the judge declare what facts are indicated by the facts in proof, when he must also say what consequence shall follow. Better a jury many times, and better if its real defects were greater, than put the courts in such a place of danger. To do so is to press unfairly upon honest, but still human minds, to make the effort to be just, a constant, weary strain, to slay with your own hands your own belief in right, impersonal decision, and substitute for trial an unworthy struggle to find or make or strengthen some leaning in the judge."

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where two men are engaged in business together as apothecaries, and one of them makes a gift of what he supposes to be extract of dandelion, but which is in reality belladonna, to a customer or acquaintance, the firm will not be responsible for any injury resulting therefrom. Also that where a person

goes with a prescription to an apothecary's to have the medicine called for put up, and the apothecary makes a mistake in the drug he puts up, and thus leads such person to believe the jar from which the drug was taken contained the drug he wanted, and proceeded to help himself to a dose of the same, he thereby becomes a trespasser, and the apothecary is liable only for willful acts. On the latter point the court said: "The plaintiff testified, in effect, that he took the drug under the permission of S. B. Duffield. The latter denied that he gave such permission. If he is to be believed, the plaintiff was a trespasser; and if a trespasser he cannot be allowed to set up his own ignorance and say that he relied upon S. B. Duffield's knowledge, and was misled by his mistake. The instruction precluded the consid eration of the defendants' theory of the case, which was supported by evidence that the jury might have believed. That a person trespassing upon the property of another cannot recover for an injury sustained through the negligence of the owner in respect to such property, unless the negligence was wanton, or evinced an indifference to the safety of others, appears to us to be well settled. Bush v. Brainard, 1 Cow. 78; Baltimore, etc., R. Co. v. Schwindling, 101 Penn. St. 258; Gillespie v. McGowan, 100 id. 144; S. C., 45 Am. Rep. 365; Morrissey v. Eastern R. Co., 126 Mass. 377; S. C., 30 Am. Rep. 686; Hargreaves v. Deacon, 25 Mich. 1; Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. Rep. 514; O'Keefe v. Chicago, R. I. & P. R. Co., 32 Iowa, 467; Vanhorn v. Burlington, C. R. & N. Ry. Co., 63 id. 67. In Parker v. Portland Pub. Co., 69 Me. 173; S. C., 31 Am. Rep. 262, it was held that even a licensee could not recover." Beck, C. J., dissenting, said: "The Circuit Court failed to present the theory of the defense, so far as it is based upon the claim that plaintiff was trespassing upon the property of defendants when he took the poison. There is a satisfactory answer to this objection based upon this ground. In my opinion there is no evidence whatever tending to support the allegation of defendant's answer to the effect that defendant was a trespasser, or guilty of wrong in taking the poison. The plaintiff in his evidence declares that he took it upon the explicit direction of defendants. The defendant who had the transaction with plaintiff testifies, substantially, that plaintiff came to defendant's store and asked for dandelion. After some conversation as to price and quantity of the drug desired by plaintiff, the defendant proceeded to put up belladonna instead of dandelion. While the poison was being put up plaintiff took from the jar whence defendant had taken the drug a dose. No assent thereto was given by defendant, nor did he object. He testifies that he saw plaintiff taking the drug from the jar, and

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