of such promise, did forbear; and that the will was approved without delay. Held, in an action to recover the five thousand dollars, the plaintiff was neither bound to allege, nor prove that undue influence had been used to procure the making of the will. But the consideration was sufficient if he was able to show that he honestly thought he had good and reasonable ground for making the claim that the will, so far as it related to him, was the production of undue influence, and for that reason he honestly and in good faith intended to oppose its establishment. A doubtful right compromised to be a good consideration for a promise, must upon reasonable grounds be honestly entertained. There must be a yielding of something by each party. Bellows v. Sowles. Opinion by Ross, J.

CONDITIONAL SALE OF CATTLE TITLE OF PURCHASER FROM CONDITIONAL VENDEE.-The plaintiff sold a herd of cattle conditionally, taking a note therefore for $837.50, and a lien by which they were to remain his until the note was "fully paid." The vendee without the knowledge of the plaintiff, sold a part of the cattle to the defendants, who paid him, and he paid the plaintiff, the plaintiff endorsing it on the note. In an action of trover, the note remaining unpaid, held, that the defendants were liable; and that the money paid by them could not be allowed in mitigation of damages. The lien was recorded; the title was in the plaintiff till the whole debt was paid; the defendants were charged with notice of these facts; and their good faith cannot help them. Evidence was not admissible in mitigation of damages to show that the identical bank bills paid for the cattle were sent to the plaintiff, he being ignorant of the sale. Thrall v. Lathrop, 30 Vt. 307; Coles v. Clark, 3 Cush. 399. The case is distinguishable from Plevin v. Henshall, 25 E. C. L. 21 (10 Bing. 24.) Morgan v. Kidder. Opinion by Veazie, J.

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NEGLIGENCE-INJURY TO TRAVELLER ON HIGHWAYTRAVEL MUST BE ON PROPER PART OF HIGHWAY.-It is the duty of the traveller on the highway to remain in the travelled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence if without necessity, or for his own pleasure or convenience he voluntarily deviates from the travelled track, which is in good condition, and in so doing meets with an accident from some cause outside of the travelled track, the town will not be responsible for any damage or injury which he may thus sustain. Sykes v. Pawlet, 43 Vt. 446; Matthews v. Baraboo, 39 Wis. 674; Cremer v. Portland, 36 id. 92. Cartwright v. Town of Belmont. Opinion by Lyon, J.

NEGLIGENCE OF RAILROAD COMPANY SETTING FIRE -EVIDENCE AS TO-LEAVING COMBUSTIBLE MATERIAL ON GROUND.-(1) In an action against a railroad company for setting fire by locomotive sparks where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to be authority in reason. In Ross v. Boston, etc., R. Co., 6 Allen, 87, it was held competent to show that the engine in question emitted burning sparks a fortnight previous to the fire in question, and that other similarly constructed engines had emitted sparks which set fires. Where there is no proof of what particular engine set the fire, and the


circumstantial evidence is such that there is a strong probability that some engine on the road did set the fire, then it may be proper to show the engines on that road generally emitted sparks, or that some one or of them did so at other times and places. Sheldon v. Hudson River R. Co., 14 N. Y. 221; Field v. New York, etc., R. Co., 32 id. 339; St. Joseph, etc., R. Co. v. Chase, 11 Kan. 47; Huyett v. Philadelphia, etc., R. Co., 23 Penn. St. 373; 1 Thomp. Neg. notes, 160. Testimony showing that some of the company's locomotives had previously or subsequently scattered fire is not admissible unless it is also shown that the locomotive which caused the fire was one of them, or was similar in construction, state of repair, or management. Boyce v. Cheshire R. Co., 42 N. H. 97; Phelps v. Conant, 30 Vt. 277; Malton v. Nesbit, 1 Car. & P. 70; Hubbard v. Railroad Co., 39 Me. 506; Standish v. Washburn, 21 Pick. 237; Collins v. Dorchester, 6 Cush. 396; Robinson v. Railroad Co., 7 Gray, 92; Jordan v. Osgood, 109 Mass. 457; Smith v. Railroad Co., 37 Mo. 287; Railroad Co. v. Doak, 52 Penn. St. 379. In Pennsylvania R. Co. v. Stranahan, 79 id. 405, the court said: "This was not a case where a certain engine had thrown out the sparks which set fire to the plaintiff's barn, but it was where the engine was unknown. Yet the cause of the fire was clearly traced to the railroad track, and left the belief that some one of the engines of the defendants had emitted the coals which set the barn on fire. Hence it was necessary to permit the party to show that the emitting of coals and sparks in unusual quantities was frequent, and was permitted to be done by a number of engines." (2) It is a question of fact whether in any particular place it was negligence to so leave material on or near the track on the grounds of the company, liable to be ignited by the sparks emitted by engines. It is not per se, or as a question of law, negligence, but a question of fact to be determined by the jury in any given case. Pierce Railw. 434; Sear. & R. Neg. 404; Ohio & M. R. Co. v. Shanefelt, 47 Ill. 497; 1 Redf. Railw. 477, and notes; Smith v. Lind & S. W. R. Co., L. R., 5 C. Pl. 98; Karsen v. Milwaukee & St. P. R. Co., 29 Minn. 12; Toledo, etc., R. Co. v. Wand, 48 Ind. 476; Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 id. 150; Kansas P. R. Co. v. Butts, 7 Kans, 308. Gibbons v. Wisconsin Valley Railroad Co. Opinion by Osborn, J.

SALE OF CHATTELS OF SPECIFIED QUALITY-MUST BE SEPARATED FROM OTHERS BY VENDOR TO MAKE DELIVERY.-In a contract for the sale of lumber of a specified quality, held that it was the duty of vendor to separate and set apart the lumber from inferior lumber of different dimensions so as to be capable of identification, and until this should be done, there would not be a sufficient offer to deliver to put the vendee in default for refusing to accept and carry it away. To constitute a delivery of chattels sold, the articles must be set apart so that possession can be taken by the purchaser, without any further act on the part of the seller, except in the case of such articles as wine, oil or grain of common quality, and as are incapable of identification. Kimberly v. Patchin, 19 N. Y. 333; Ward v. Shaw, 7 Wend. 404; Downer v. Thompson, 2 Hill, 137; 2 Pars. Cont. 160; 2 Kent, Comm. 496; Veazy v. Harmony, 7 Greenl. 91; Isherwood v. Whitmore, 11 Mees. & W. 345; Avery v. Stewart, 2 Conn. 69. Hoffman v. King. Opinion by Orton, J.

TOWN-BOUNDARIES BY PRESCRIPTION-IRREGULAR ACTION OF COUNTY BOARD ACQUIESCED IN.-Where the proceedings of a county board in attaching territory to a town were irregular to such a degree as would justify a court in holding them void in an action in which they might have been drawn in question, com

menced within a short time after the attachment, held, that after the public had acquiesced in the action of the county board for twenty years or more, it was too late to question the right of the town to exercise its jurisdiction over such territory. The lapse of time must be held to cure a defect of this kind in the organization of towns. Swain v. Comstock, 18 Wis. 463. In People v. Magnad, 15 Mich. 470, it was held that where a town was organized by an act of the Legislature which was unconstitutional, yet the town having acted as a town for ten years or more, and been recognized as such, it was too late to question its rightful organization. The court said: "If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty; but inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections which might have availed them if not waived. But in public affairs where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements and exercising their usual functions, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer questioned." The doctrine laid down in this opinion is sustained by an abundance of authority, and is undoubtedly most salutary. See Rumsey v. People, 19 N. Y. 41; Jameson v. People, 16 Ill. 257; People v. Farnham, 35 id. 562; Bow v. Allenstown, 34 N. H. 351; Stuart v. School-dist., 30 Mich. 69; Fractional School-dist. v. Joint Board, 27 id. 3. Sherry v. Gilmore. Opinion by Taylor J.


FIRE POLICY-ON GOODS LOST BY CARRIER-SUBROGATION OF COMPANY TO INSURER'S CLAIM AGAINST CARRIER.-Where A. employs B., a common carrier, to transport goods to C., and B. employs D. to transport them part of the way, and they are lost in transitu, while in D.'s possession and through his negligence, B. is liable for the loss to A., or any one who may become subrogated to his rights. Where a carrier becomes liable to a shipper for the loss of goods, and an insurer pays the shipper the amouut of the loss, becomes subrogated to his rights, and sues the carrier for the damages sustained, the carrier cannot avail himself of defenses which might have been interposed by the insurer in an action at law against it. Where goods insured "from St. Louis to New Orleans" are lost while beiug transported from East St. Louis to St. Louis, preparatory to a final start by the carrier which has undertaken to transport them to New Orleans, the loss is within the terms of the policy for the purposes of such a case; the harbor of St. Louis ought to be regarded as extending to the opposite shore. U. S. Circ. Ct., E. D. Missouri. Sept. 24, 1883. Sun Mutual Insurance Co. v. Mississippi Valley Transportation Co. Opinion by McCrary, J.(17 F. R. 919).


NOT FRAUD.-In an action by the assured, alleging that he had sustained a loss by fire upon property insured to the amount of one thousand dollars, and was induced by the false representations of the company's

agent, to the effect that the non-occupancy of the building insured rendered the policy void, to settle and discharge his claim for two hundred and fifty dollars, and had thereby sustained a loss of seven hundred and fifty dollars, held, that if the declarations of the agent are regarded as statements of the law of insurance, they are not actionable, though false; that it be said that the representation of an increased risk, by non-occupancy, rendering the policy void, was one of fact and not of law, still it was only the expression of an opinion and does not sustain an action. When the whole subject in fact rests upon the opinion of the parties and cannot reasonably be understood otherwise, false expressions on either hand do not generally constitute fraud in law. See Rashdall v. Ford, L. R., 2 Ev. 750; Stubbs v. Johnson, 127 Mass. 219; Belcher v. Costello, 122 id. 186; Birdsey v. Butterfield, 34 Wis. 52; Etua Ins. Co. v. Reed, 33 Ohio St. 283; Mayhew v. Phoenix Ins. Co., 23 Mich. 105. Maine Sup. Jud. Ct. March 30, 1883. Thompson v. Phænix Insurance Co. Opinion by Symonds, J.(75 Me. 55).

INSURANCE STATUTES-CONSTITUTIONALITY OF STATUTES DEPENDENT ON LEGISLATION OF OTHER STATES -RETALIATORY LEGISLATION.-While the legislative power of the State is by the Constitution vested in the Legislature, yet that body has authority to pass a law whose operation is by its terms made to depend on a contingency, even though that contingency be some action on the part of the Legislature of another State. Section 17 of the act relating to insurance (chap. 50a, Comp. Laws 1879) so far as it provides that when the laws of any other State impose upon the corporations of this State applying to transact business within its limits other and more onerous burdens and conditions than those prescribed by the general provisions of said chapter for corporations seeking to transact business in this State, the same burdens and conditions shall be imposed upon corporations from that State applying to enter this, is a complete and absolute expression of the legislative will, and though its operation depends on the contingency of legislative action in other States, it is not thereby rendered unconstitutional. The fees and charges required by said section are to be considered in the nature of licenses, and as such not subject to the constitutional provision as to equality of taxation. The contingency named in said section arises when the laws of another State impose the additional burdens aud conditions, and is not delayed until some corporation of this State is actually subjected to such burdens and conditions. Kansas Supreme Court. January Term, 1883. Phoenix Insurance Co. v. Welch. Opinion by Brower, J. Horton, C. J., dissenting (29 Kan. 672).

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taking the chair at the annual meeting on the

8th instant, Governor Cleveland spoke as follows: GENTLEMEN OF THE ASSOCIATION:-At a late hour I was solicited to preside at your meeting. I should certainly have felt that I must decline the invitation, but for two considerations: I was assured that no address would be expected of me, aud that even a little speech on assuming the chair might be dispensed with. This disposed of one objection to my consent. The other consideration sprang up in my mind when I reflected that there would be here an assemblage of my professional brethren, and the impulse was irresistible to be among them for a time, though necessarily brief, and to feel about me the atmosphere from which for a twelvemonth I have been excluded. I beg to assure you, gentlemen, that in the crowd of official duties which for the past year have surrounded me, have never lost sight of the guild to which I am proud

to belong; nor have I lost any of the love and care for the noble profession I have chosen. On the contrary as I have seen the controlling part which the lawyers of the State have assumed in the making of her laws and in all other works that pertain to her progress and her welfare, I have appreciated more than ever the value and usefulness of the legal profession. And when I have seen how generally my professional brethren have been faithful to their public trusts, my pride has constantly increased.

And yet from the outside world I came within the grateful circle of professional life to say to you that much is to be done before the bar of this State will, in all its parts, be what we all could wish. We hold honorable places, but we hold places of power-if well used, to protect and save our fellows-if prostituted and badly used, to betray and to destroy. It seems to me that a profession so high and noble in all the purposes of its existence should be only high and noble in all its results. But we know it is not so. There is not a member of the bar in this assemblage who has not shuddered when he thought of the wicked things he had the power to safely do; and he has shuddered again when he recalled those whom he was obliged to call professional brethren who needed but the motive to do these very things. An association like this to be really useful must be something more than a society devoted to laudation of the profession. It should have duties to perform, earnest in their nature and not the less boldly met because they are disagreeable. Those who steal our livery to aid them in the commission of crime should be detected and exposed; and this association or branches of it should have watchmen on the walls to protect the honor and fair fame of the Bar of the State. Your words are fair, when in your Constitution you declare the object of this association to be "to elevate the standard of integrity, honor and courtesy in the legal profession;" and I have no doubt you have done much in this direction; but I hope I may be pardoned for reminding you here that frequently to insure health and vigor, the bad, diseased limbs of the tree must be lopped off.

My thoughts have carried me further than I intended. Be assured I have spoken in no censorious spirit. I congratulate the State Bar Association on all that it has done, and for one am determined to aid its work as well during my temporary professional exile as when I shall again gladly mingle in the contests of the bar.



Editor of the Albany Law Journal:

The Court of Appeals is suffering from a vicious system; a remedy cannot be found in treating symptoms.

Six independent and inharmonious General Terms pour their differences into the Court of Appeals. These antagonisms must be examined and composed in the interests of settled law. To borrow an analogy from trade, the raw material is produced more rapidly than can be utilized; result, a disturbance in the relation of supply and demand. We must limit the production of the raw material.

We are the creatures of too much court law. The common law encourages the courts in assuming legislative functions. Thus have the laws of the land grown into the thousands of volumes of reports of cases, compelling the employment of counsellors and attorneys to ascertain that which ought to be open to all, to wit: Knowledge of the law.

The limitation of appeals to such cases as involve a certain amount of money would to that extent relieve the court, but at the expense of justice. Whether

you limit or extinguish the right of appeal is only a difference in degree not in kind.

In the last volume of the Court of Appeals Reports, 92 N. Y., of the eighty cases reported in full, there were twenty-eight reversals. Now when we consider that if less than five hundred dollars had been involved in those cases, the law of the State of New York would not be what it is, we cannot draw conclusions favorable to the impartiality of justice.

Changes impairing the honor of the laws should not be entertained, and especially when it seems there is 80 straight a road out of our troubles.

Our present system leads to confusion. We may easily supplement it by one which will lead to order. Codification is the short road. Our present situation comes from confused law. Now any one knows that bad law is better than doubtful law.

A hastily prepared Code would at least let us know what the law is; when we know what it is, we have removed the necessity of asking the court to tell us, and to that extent lessened the burdens of the judges.

Codification means order, and the only branches of the law to-day we can point to with any pride are those which have been appropriated from the Codes.

Let the Legislature adopt a Code, and there will be no more of this trouble with the courts. There may be less necessity for lawyers, but that is no reason why we should prove ourselves no better than the Ephesians by clinging to our idols.

Very respectfully,

NEW YORK, Jan. 3, 1884.

Editor of the Albany Law Journal: Permit me to suggest through the JOURNAL a plan for the relief of the Court of Appeals. Have the num. ber of judges increased, say to nine. Have all appeals to the court brought on and argued before the whole bench as now; at the time of the argument, let the judge then presiding designate five of the judges who shall take the case, and if these five agree, or no more than two dissent, let them or the majority who agree render the decision of the court. If more than two dissent, or if at the time of the argument the chief judge shall deem that the case is one that the whole court shall pass upon, in either case the whole court shall as now consider and decide the case. By this plan we shall still have a united court, and I think onethird more cases can be disposed of during a year.

I am, etc.,

NEW YORK, Jan. 4, 1884.


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OHN Barker sued Worcester, Mass., for injuries by slipping on an icy sidewalk, but was beaten on the absurd ground that he should not have been out walking on Sunday.-Exchange. We should rather say, a slippery ground. Mr. Roosevelt went out for wool and came home Sheard.

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The Albany Law Journal.




E have received many responses to our invitation for propositions to relieve the Court of Appeals, most of which we have published in full. Meanwhile we have been waiting, with bated breath, for the utterance of the American "Thunderer," the New York Times, on this subject. We knew that when it came it would settle the question. And now it has come. The sovereign remedy, it seems, is not a proposed way to do the business, but a way not to do it. It may be objected that we have already a way not to do it, but the Times has devised a new way not to do it. The proposal to limit appeals to cases involving at least $1,000 is not new, and is no credit to the Times' inventive genius. But its plan of denying compensation to every lawyer who has advised an appeal which the court shall adjudge frivolous is decidedly original with the Times. It does not appear in the "funny man's" peculiar column, but it bears the marks of his inimitable humor. Now if the Times would only add a penalty against the clients who advise appeals in spite of the warnings of their lawyers, much would be accomplished toward the desired relief. To be sure, the Times' proposal might be thought unconstitutional, but what good reformer would ever stop for a little thing like that? To be sure, the great majority of appeals are on serious grounds, in cases of grave moment, — (in the last volume of the Court of Appeals' Reports more than a third of the decisions are reversals) — and the cases in which an appeal can be adjudged "frivolous" are exceedingly rare, as every lawyer and every judge knows; but on the "old woman's" ground that "every little helps," the Times' idea is entitled to the most respectful consideration.

And then the Times has another original idea, namely: that practicing lawyers are never “efficient law reformers." Mr. Matthew Hale, of this city, most conclusively answers this, as well as the other notions of the Times, in a recent letter to that newspaper. On this particular point he says: "Can you instance any practical law reform in England or in this country which has not either originated | with or received its most efficient aid from 'practic-❘ ing lawyers'? Bentham himself was a lawyer by education. The greatest law reformer of his day in England was Sir Samuel Romilly, who is said to have been the most successful advocate since the time of Coke, and to have had the largest practice in the court of chancery of any barrister of his time. The recent law reforms in England have been largely due to the efforts, while at the bar, of the present Lord Chief Justice Coleridge, and Lord Chancellor Selborne (Sir Roundell Palmer), both VOL. 29 No. 3.

most actively engaged in practice, the former in the law and the latter in the equity courts, before their promotion respectively to the Queen's Bench and the woolsack. It is an easy, but not altogether a fair way of criticising a plan suggested, to say that it comes from a lawyer, and therefore must be prompted by self interest." Mr. Hale might also have instanced Brougham, next to Romilly the greatest of England's practical law reformers, who it is understood was quite actively engaged in practice, and David Dudley Field, the greatest of American law reformers, who is still heard of in our courts now and then, as well as before our Legislature. The simple truth is, that every law reform has originated with and been consummated by lawyers.

Attention should be given to the address, in another column, delivered before the State Bar Association at its late annual meeting, by Mr. Milburn. This address is one of the most thoughtful, suggestive, and admirable to which the lawyers of our State have ever listened. Its ideas, so gracefully and so cogently presented, especially upon the subject of general codification, should find attentive audience, and should be laid close to the intelligence and the consciences of our legislators. If every lawyer could be persuaded to regard this subject with the calmness and disinterestedness of the orator, the first costly step toward the accomplishment of this great object would be taken. We hope our profession this winter will demonstrate the incorrectness of the Times' assertion that practicing lawyers are never efficient law reformers, by laying aside personal prejudices and arising above their ordinary habits of thought, and working earnestly, candidly and unselfishly for the interests of the State. The great measure of general codification - the most important that has been presented to our Legislature and our Governor in a third of a century - should not be discussed or decided on personal or partisan grounds. We hope every legislator will read the closing paragraphs of Mr. Milburn's admirable paper.

Our Court of Appeals met in their new chamber for the first time on Tuesday last. They did not assume robes, but Mr. David Dudley Field presented resolutions at the State Bar Association, asking them to consider the matter, and advocated the wearing of robes in an elegant address which may be found in another column. We hope the court will not be deterred from acceding by the following found in last Sunday's Argus: The next thing we know these gentlemen will be asking that the judges wear perruquiers, or judicials wigs. In fact I am informed on excellent authority, that one of these super-serviceable, high-toned gentlemen recently brought from Europe with him a complete collection of wigs, which he is ready to bring out, as soon as the entering wedge is successfully inserted." Our judges' burdens are certainly heavy enough without assuming the extraordinary addition


deprecated by the Argus. A court loaded in such a Sinbad fashion would be an object of commiseration. It would be bad enough to wear wigs, without wearing the wig-makers. But we guess that the judges will put on robes, and we hope they will; but whether they do or not we shall think they do right.

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The 100th Pennsylvania Reports is probably not intended as a humorous publication, but there are a few things in it that will excite a smile: In Mutual Aid Society v. White, p. 12, in an application for insurance there were the following question and answer: "A. Are you married? B. Give name of consort. A B. Widdower." The court said: "The court also erred in submitting to the jury, for its construction, the answer to the question, are you married?' It was the duty of the learned judge to construe this, as well as every other part of the application. To us there does not seem to be any ambiguity about the reply to this interrogatory. It is perhaps true, that properly, the answer 'widdower' should have followed question A, but however put, it is responsive to both the questions. It means that though once married, his wife is now dead, hence her name is not necessary. Nor do we think the fact, that the word widdower is spelled with two d's, of the slightest consequence; it was certainly not intended for a proper name, and bad spelling is not so rare as, of itself, to create hesitation."

In Rice v. Commonwealth, p. 32, the court below, in commenting on courtship with matrimonial intent, said, "each case must stand on its own four legs." We think the court meant to say, "on the parties' own four legs." The court also said: "He met her out in the evenings, sometimes at church, walked home with her, and left her at the gate. This is not the kind of intercourse that usually takes place between persons engaged to be married." That is true, for in those cases it seems as if the man never would leave her at the gate.

The voluntary retirement of Justice Benjamin F. Graves of the Supreme Court of Michigan, after a judicial experience of a quarter of a century sixteen years of which was upon the bench of the court he has just left is deserving remark, especially as he is a son of New York. Judge Graves was in his youth a student of Addison Gardiner at Rochester, but went to Michigan soon after its admission to the Union, and soon became known as an upright and honorable man, with a thoroughly judicial habit of mind, and the State availed itself of his services in a judicial position as soon as he was disposed to accept one. After serving one term and part of another as Circuit Judge he was made Justice of the Supreme Court, with Justices Christiancy, Campbell and Cooley as associates, and at the expiration of his term of eight years was re-elected without opposition. He retires

voluntarily, at the early age of sixty-six, in the full possession of mental and physical vigor, and to the general regret of the people of his State. The Michigan Supreme Court under the administration of the four judges above-named was one of the ablest the country has ever known. We are informed it has been the uniform practice of the Michigan court for twenty-six years, to adjourn no term until every case ready for hearing had been submitted, and to decide every case submitted during the term or in the early part of the term ensuing. Keeping to this practice, it has been impossible that there should be any arrears. Before Justice Graves retired he could have the satisfaction of saying that every case which the parties were ready to bring to the notice of the court had been heard, and that the judgment of the court had been passed upon it. So here is a third instance, in addition to our Court of Appeals, of a court habitually keeping up with its business. We do not expect to hear of more.


Dudley v. Camden and Philadelphia Ferry Co.,


368, the plaintiff drove upon a ferry boat with a span of high-strung horses and a wagon. Wishing to blanket the horses, he left the wagon and stepped out of reach of the lines. The horses becoming frightened, plunged forward, and there being no barrier but a single chain hanging at its centre but a few inches from the deck, they went over-board and were drowned. The plaintiff did not require any of the persons in charge of the boat to assist him in the care of the horses, and was not required to pay toll. Held, that the plaintiff's contributory negligence prevented a recovery, and that a nonsuit was properly ordered. Magie, J., said: "Under such circumstances I have come to entertain no doubt that the plaintiff was not exercising the care of this property which was required of him on that occasion. In my judgment his duty required him to place himself and remain in a position where he might control, or at least have the opportunity and means of exerting all possible control of his horses if startled by any of the occurrences incident to the crossing. He should have retained the reins in hand or within reach, or should have stood at their heads. He did neither, but he voluntarily placed himself, at the instant of their mad, ungovernable rush, where he was incapable of either checking or making an effort to check them. That this was negligence is clear to my mind. It was negligence which undoubtedly contributed to the loss of the plaintiff's property. Indeed, if the most approved gates had been erected, and had been securely closed, it is doubtful whether, then, these young horses, thus left to themselves, would have been checked or preserved by them. But it is strenuously contended that the blanketing of these horses was a necessity, which the plaintiff had a right to do

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