accident, we are of the opinion that he took from servant of the defendant to obey such instructions, the jury the question of negligence on the part of The court ruled the evidence incompetent, as it the conductor in charge of the train at the time, was not shown that the instruction was given or whicb negligence the jury might have found, from known to the plaintiff. But proof that the accithe evidence, caused the accident. Both parties dent which caused the injury to the plaintiff was agree that under the law of Illinois, where this in- caused by the neglect of a fellow-servant, would jury to the plaintiff occurred, an employee cannot have been a defense to the action; and the offer recover for an injury happening to him by reason went to that extent. The defects of the engine in of the negligence of one of bis co-employees, nor the abstract were not the gist of the plaintiff's is there any dispute that the conductor in charge complaint, but its defects at the time, and for the of the train at the time, and the fireman, were co- service in which the defendant allowed it to be used employees within the meaving of the law.

when it ran on the plaintift. If it were fit and sufThere is evidence that the conductor was advised ficient for use in the manner in which the defendbefore he went to work on this road, that it was ant then allowed it to be used, its insufficiency for not in a very safe coudition, and that he was

other service at other times would not concern the cautioned to run slow over the same; it also plaintiff. Now it is plain that a machine may be shows that when the accident happened, he was safe and fit for one use, when it is not for anrunning the train at a speed which the conductor other." himself considered unsafe, taking into considera- Applying the principle of that case to the case tion the condition of the track, and the fact that at bar, there was certainly some evidence in the case the train was backing instead of going forward, to go the jury, upon the question as to whether the and the evidence tends also to show that the acci. accident did not happen by the negligence of the · dent happened by reason of the lateral pressure conductor of the train. It is probable that it would against the rails, occasioned by the backing of the not be negligence on the part of the company, for train at a speed which was not safe. Upon this which they could be held responsible to their emevidence, we think it was for the jury, and not ployees, that they did not keep this short track of for the court, to say whether there was neglieence road which was seldom used, and then only for a on the part of the conductor, in the running of the particular purpose, in that complete state of repair train, and whether such negligence caused the in which the law would require them to keep accident which resulted in injury to the plaintiff. that part of their road which was used constantly The case of Durgiu v. Munson, 9 Allen, 396, de- for all the purposes of transportation of passengers cided by the Supreme Court of Massachusetts, and freight. The question in the case at bar is, was similar in principle to the case at bar, and whether it was in a reasonable state of safety for that court held that the question as to whether the the purpose for which it was used, and if, in the negligence of the co-employee caused the injury use of this track, the company had directed their should have been submitted to the jury.

conductors and engineers to run carefully and In that case, the plaintiff, an employee of

slowly over the same, and the track was in such a the company, had been injured by an engine state of repair that it might be used safely in the running off a turn. table, when such employee

manner their employees were required to use it. was engaged in turning the same. His claim We are of the opinion that the company would not to recover against the company was based upon

be liable for an injury which happened to one of an alleged insufficiency of the brake on the engine,

its employees by reason of the negligence of a coto keep the same in place whilst it was being turn- employee in running with great speed over such ed upon the table. The court held that it was track, contrary to the orders of the company. coinpetent for the defendant to show, as a matter We have examined, with much care, the question of defense, that the person who had charge of all as to whether mere contributory negligence on the of the engines, had given instructions to the en- part of a co-employee or servant of the defendant, gineers in charge of the engines, before the acci- would be a good defense for the master in an acdent happined, to bave the wheels of their engines tion by an employee or servant for an injury reblocked while turning on the turn-table, and that ceived on account of the alleged negligence of the the accident occurred from the failure of some master. We have been able to find but one case in scrvant of the defendant to obey such instruction, which the question has been plainly before the was not known to the plaintift, and notwithstand- court-it is the case of Paulmier v. Erie R. Co., 5. ing there was proof of the insufficiency of the Vroom. 151. The court held in that case that brake on the engine. The learned judge who de- where the track of the company over a trestlelivered the opinion of the court in that case, says: work, was not capable of supporting an engine, “ The defect in the engine, which the plaintiff al- and the engineer in charge had orders not to put leged as the cause of his injury, was the insuffi- his engine thereon, which orders he disobeyed, and ciency of the brake to prevent the engine from the intestate of the plaintiff, who was a fireman on ruduing off while it was turned on the turn-table. said engine, and who was unaware of said orders The defendant proposed to show that the person or of the danger, was thereby killed, the said who had charge for him of all the engines on the trestle-work giving way, the plaintiff was entitled road, had given instructions, before the accident, to recover, on the ground that such death was octo the engineers, to have the wheels of their en- casioned in part by the want of care in the defendgines “chocked " while turning on the turn-table, ant, the railrond company, with respect to said and that this accident occurred by failure of some trestle-work;" and it was further held as a general

ABSTRACTS OF RECENT DECISIONS. 11 Kas. 32, followed, 3. Where the court has jurisdic

tion of the person of the prisoner, and of the offense with which he is charged, and the verdict is valid,

and the judgment pronounced is not void, but merely SUPREME COURT OF KANSAS.

irregular: Held, that such prisoner can not be relieved

under a petition for habeas corpus. Prisoner reJuly Term, 1879.

manded. Opinion by HORTON, C. J.-Ex parte

Petty. Tax CERTIFICATES -RECOVERY OF MONIES BY HOLDERS OF TAX TITLEA. In order that a peti. tion shall state sufficient facts to constitute a cause of action, under sec. 120, ch. 107, Gen. Stats. 58, against | SUPREME JUDICIAL COURT OF MASSAa board of county commissioners of a county, in favor

CHUSETTS. of the holder of a tax certificate, granted upon a sale, where such an error or irregularity exists that the land ought not to be conveyed, it must allege a want of

[Filed June, 1879.) funds in the hands of the county treasurer, or some valid reason for his inability to refund, or else some

EVIDENCE TESTIMONY OF PERSON AS TO His. action on the part o the commissioners in the way of Own AGE.-A person may testify as to bis own age, direction to the county treasurer or other interfer- and such weight may be given to his testimony as the ence, whereby the holder of the tax certificate is delayed court or jury trying the case may think it entitled or denied of his right to have his money repaid.

to receive. Per CURIAM.-Hill v. Eldridge. Judgment reversed. Opinion by Horton, C. J.- NEGLIGENCE-RECOVERY OVER.-At the trial of Commrs. v. Geis.

an action of tort, the plaintiffs offered evidence tendTax PROCEEDINGS, INSUFFICIENT DESCRIPTION

ing to show that, at the time of the accident hereafter - LIABILITIES OF COUNTIES.- 1. Where lands are

described, there was a hatchway leading from the levied on, placed on the tax roll, advertised for sale, sidewalk to the store of which the plaintiffs were thesold and entered in the book of tax sales, and describ

lessees and occupants, which hatchway they left in a ed in the tax certificate only as "137 A of s. e. 1-4 sec

reasonably safe condition; that a servant of the detion 27, town. 19, range 12.” “21-2 A of W 1-2 of W,

fendonts, in the course of their business, without the 1-2 of $. W. of S. E. 1-4 section 8, town. 19, range 12,"

knowledge of the plaintiffs, removed the cover and and “5 A N. W. 1-4 section 2, town. 19, range 12," and

left without replacing it or providing any barrier or there is nothing outside of such descriprion to ident

warning, and that while it was thus open one M fell ify the land, the descriptions are so uncertain in each

in and was injured; that M brought an action against case that the assessment and all the subsequent tax

the plaintiffs for the injury, and recovered a judgproceedings are void. The irregularities are so great

ment, which they paid. The plaintiffs brought this. that the county clerk ought not to convey any portion

action to recover the amount of such judgment paid of the same by tax deeds. 2. A county does not guar

by them, but the presiding judge ruled that the aboveantee tax titles, except as the statute may provide for

facts wonld not support the action, and reported the it. Neither the board of commissioners of a county,

case for the consideration of the full court. Held, nor the county treasurer can refund any moneys upon

that the case must stand for trial. The liability of the the failure of tax titles, except as some statute re

plaintiffs depended upon the question whether the quires it. Judgment reversed. Opinion by HORTON,

hatchway was dangerous to travelers under such cir. C. J.-Commrs. v. Lyon Co.

cumstances that the occupant of the building was re

sponsible for the injury suffered, and not upon the PRACTICE-STATUTE OF LIMITATIONS- NON-RE

question as to who negligently did the act which TURN OF A PLEDGE.-1. Where a defendant attempts

created the danger. If the defendants or a servant in by plea to raise the question as to whether the plain

the prosecution of their business, negligently uncov.. tiff's cause of action is barred by the statute of limi.

ered the batch way and allowed it to remain unguardtations or not, and both parties and the court below

ed, without the knowledge of the plaintiffs, whereby treat the plea as sufficient: Held, that the Supreme

the plaintiffs from their relation to the building were Court will also treat the plea as sufficient, although it

made liable to the person injured, the rule as to joint may not be as formal and elaborately circumstantial as

tortfeasors does not apply, but the plaintiffs can mainit might be. 2. Where B owes A and gives to A bis

tain this action. Opinion by MORTON, J.-Churchill promissory note for the amount, and pledges and de

v. Holt. livers to A a city bond as security for the payment of

RIGHT OF WAY PREMISES BOUNDED UPON A the note, and afterwards the note is paid, but the bond

“SQUARE."-In an action of tort for obstructing a way is not returned to B: Held, in the absence of anything

it appeared that the plaintiff claimed title under a showing that A bas converted the bond to his own

mortgage deed foreclosed at the time of this suit, conuse, that no cause of action accrues in favor of B and

veying to it a lot of land “beginning at the corner of against A for the value of the bond until B has made a

Cedar Square and Cedar street, and thence running demand for the bond, and therefore that the statute of

by said Cedar street,” etc., “then by said Cedar limitations does not begin to run against B's cause of

Square one bundred and twenty-five feet to the point action for the value of the bond until there has been

of beginning,” being the premises "lately known as such demand and a refusal by A to return the bond.

the Hotel Flanders.” Before this deed was made, Judgment affirmed. Opinion by VALENTINE, J.

Reed, the mortgagor, being the owner of the land now BREWER, J., concurring. Horton, C. J., not sitting.

claimed by the plaintiff and the defendant, had laid -Auld v. Butcher.

out and graded over the land claimed by the defendHABEAS CORPUS-CHAPTER 166 LAWS OF 1872 nor ant on the northerly front of the plaintiff's premises, RETROSPECTIVE IRREGULAR SENTENCE - 1. The a way called Cedar Square thirty feet wide, running provisions of ch. 166, Laws of 1872, if intended to ap- from Cedar street to McLean Place. This way was ply to offenses committed prior to the adoption of that graded, finished and curved, curb-stones having been act and to operate retrospectively, are unconstitution- set up by the city at the corners of Cedar street, and al and void, as coming within the condemnation of the was intended and used by the defendant and by the national Constitution, probibiting the passage of any plaintiff after its foreclosure as a private foot and carex-post facto law. 2. The case of State v. Crawford, riage-way and means of access to said Hotel Flanders. The defendant claimed under a subsequent mortgage ant never took possession, nor exercised acts of from said Reed. Held, that the plaintiff took by im• ownership, except to pay taxes till 1866 or 1867, when plication a right of way over the thirty feet passage- he had a house built and fenced a truck patch of -way. Tobey v. Taunton, 119 Mass. 404; Lewis v. half an acre. Held, that defendant's taking possession

Beattie, 105 Mass. 410; Howe v. Alger, 4 Allen, 206. at the date of deed to him would not avail bim Opinion by MORTON, J.-Franklin Ins. Co.o.Cousins. unless R's possession together with his own an.

swered the require:nents of the statute, and that there had not been for the statutory period such a vis. ible, open and notorious or actual possession of a part

of the premises as would bave unmistakably and SUPREME COURT OF MISSOURI.

continuously informed the owner for six years next

before suit brought that K or defendant was in actual April Term, 1879.

or adverse possession of a portion of the tract

sued for, Thę possession of part of tract, . under NEGLIGENCE-QUESTION FOR THE JURY CON

W. S. Mo. Stats. p. 917. sec. 5, means actual possession, TRIBUTORY NEGLIGENCE.-Plaintiff was a citizen of

and two things must concur to make good the statu. the town of Canton, and fell at night from a bridge

tory bar: first, actual possession must be taken of a over a ravine in one of its streets, and his leg was

part in the name of the whole tract claimed; second, broken. The bridge was sixteen feet square but had

there must be an exercise during the time of such no side railings. Held, that whether the failure to

partial possession of the usual acts of ownership over erect side railings was negligence or not was a question

the entire tract claimed. Affirmed. Opinion by for the jury to determine from the surroundings of

SHERWOOD, C. J.-Norfleet o. Hutchins. the bridge, its width, length, travel over it and other circumstances, and the court erred in instructing the jury that the want of railings was negligence per se. The court also erred in an instruction that if the night

SUPREME COURT OF ILLINOIS. was so dark as to prevent plaintiff from seeing his way safely across, and in consequence he fell from the

(Filed at Springfield ine 20, 1879.] bridge, the jury should find for bim. This ignored the defense of contributory negligence on the part of

PROMISSORY NOTE – INTEREST FROM DATE IF plaintiff. One knowing a bridge to be dangerous in the dark, because it has no side railings, and that he

NOT PAID AT MATURITY DEATH OF MAKER BPcan not see his way over it, can not, without using any

FORE MATURITY.-The claim in this case is based on precaution for his safety, make the attempt and re

a promissory note made by S, since deceased, bearing - cover damages for the fall. Reversed. Opinion by

date February 1st, 1876, payable ten months after date, HENRY, J.- Staples v. Toon of Canton.

with interest at the rate of ten per cent. per annum

from date if not paid when due, and by the payee as. JURISDICTION BANKRUPTCY PROCEEDINGS

signed to claimant. The maker of the note dicd May FRAUDULENT CONVEYANCES.- Plaintiff brought suit

15, 1876, and appellant was appointed administrator. to set aside deed of E L to co-defendant J L, because

The note was presented for allowance as a claim against made to defraud creditors, obtained a judgment and

the estate Dec. 21, 1876. The county clerk allowed the purchased the land under execution sale. E L had

principal with interest at the rate of ten per cent. af. been adjudged a bankrupt,but subsequent to the judg.

ter the maturity of the note, but on appeal the cire ment and levy of execution. The assignee in bank.

cuit court allowed claimant the face of the note with ruptcy also instituted suit in the United States Dis.

interest from the date of the note to the date of al. trict Court to set aside said above deed to JL

lowance. The appellate court affirmed this judgment, for fraud. The court found for defendant. Held,

and the administrator brings the case to this court on that the sale though made after adjudication of bank- appeal. SCOTT, J., says: “The defense insisted upon „ruptcy was valid (Eyster v. Gaff, 91 U. 8. 524, 3

is that the interest reserved in the note from the date Cent. L. J. 250), and the judgment against the as.

thereof, unless paid at maturity, is a penalty, and as signee was not binding on plaintiff who was not a par

the maker died before the note matured, it is contend. ty thereto, and who acquired a lien, and for all that

ed that the estate equitably ought not to be held for it. appears in the record a title, before suit by the as.

The fallacy of the position taken lies in the assump: signee was instituted. The plaintiff, by virtue of his

tion that the rate of interest reserved from the date of judgment lien, had such an interest as to make him a

the note, wbich was evidently intended to secure necessary party, nor was plaintiff, because a creditor

prompt payment, is a penalty and not liquidated dam. of the bankrupt, represented by the assignee, for the

ages.

Whether the sum named in an agreement to reason that the creditor had acquired by his judgment

secure performance will be treated as liquidated dien an interest in the property other than that of a

damages or as a penalty is often a question of general creditor. EL was not involved at the time of

much difficulty, but the authorities are to the conveyance, yet having determined to engage in a haz.

effect that it must be determined in accordance ardous business which would probably require him to

with the intention of the contracting parties when incur debts, a conveyance to protect his property

that can be ascertained. 76 Ill. 157. It is very against future debts was properly set aside. Affirmed. I clear that the parties in this case iutended the Opinion by HENRY, J.-Fisher v. Levis.

interest reserved should be the measure of damages STATUTE OF LIMITATIONS-POSSESSION OF Part in case the note was not paid when due. The parties OF TRACT.-Plaintiff brought ejectment February 25, called it neither penalty nor liquidated damages, but 1875, claiming under S. Defendant claimed under R, that is a matter of no consequence. It is simply a rate who claimed to have purchased interest of S at an ex- of interest which is lawful by contract under our stat. ecution sale August 22, 1863. Deed of R to defendant ute from the date of the note, inserted with a view to dated April 13, 1865. The sheriff's deed conveyed no secure prompt payment.

* It is said that title, and the question was as to defense of statute of because of the dea:h of the maker he could not pay limitations. R never was in actual possession of the note so as to avoid the interest from date. Were

any portion of the land, nor ever exercised any that a valid objection, it might be urged with equal --of the usual acts of ownership, except paying taxes propriety against paying interest on any interest bear. , and on one occasion expelling a trespasser. Defend. ing obligation after maturity in case of death of the

*