OMIS PREFERENCE OF EMPLOYEES' WAGES SION TO STATE. The statute making the wages or salaries owing to employees preferred claims, they need not be inserted in the written assigument made in pursuance of the general act of 1877, as amended in 1884, nor is the assignment void because of its omis. sion. Here it is not directed that the assignor shall so provide, but that the assets" shall be applied" to such payment. It seems to dictate not what the assignor shall acquire, but what the' assignee shall do, and speaks of the "claims preferred pursuant to this section" instead of the claims for wages preferred by the instrument of assignment. These considerations incline our opinions toward the construction of the respondent, and they are strengthened by reflection upon the purpose of the provision and the consequences of a different view. The object was the protection of employees. That purpose in the present case may be defeated if we are simply to declare the assignment void. Suppose, too, as the General Term suggest, that an assignment is made without any preference but gives up the whole estate to creditors equally. “Equality is equity," but does it become fraudulent because a preference is not given, or rather is not the statutory preference impressed upon the trust fund in the hands of the trustee? We are warned that this construction may lead to unconstitutional results. It is argued that an assignment is a private contract creating a private trust fund and the assignee derives all his powers from the instrument; that where the assignor does not prefer employees, if the statute does it and compels the assignee to pay, the Legislature stands in the attitude of appropriating the assignor's property against his will and in violation of his expressed intentions. But the difficulty is imaginary. No one doubts the power of the Legislature to regulate and control general assignments for the benefit of oreditors. It may permit them to be made, as it has already done, only upon expressed conditions, and when it does so, he who makes an assignment by the act accepts and consents to the conditions. Availing himself of the permission he cannot be supposed also to repudiate its terms. That answer frees the Federal law from the accusation of confiscating the property of a debtor against his will. That law gives to the United States priority of payment even in a case of a voluntary assignment, and it seems to be conceded that such priority is wholly irrespective of the terms of the assignment. The learned counsel for the appellant points out distinctions peculiar to the Federal law and to governmental functions. There is great force in his suggestions, and yet the illustration shows that a statutory preference super-imposed upon a voluntary assignment is not a novelty, or incapable of enforcement, or necessarily inconsistent with the rights of the citizen. March 1, 1887. Richardson v. Thurber. Opinion by Finch, J. GUARANTY -RETROACTIVE ESTOPPEL.- The guaranty in question provided that the bank should well and faithfully account for and pay over all moneys deposited with it or for which it shall in any way become liable in and by said contract according to the terms and provisions thereof," and "that said bank shall account for and pay over all money now on deposit in said bank" to the people of the State of New York. Held, that the guaranty was retroactive in its operation; that it recognized an existing liability on the part of the bank to the State, and that the sureties were bound for the continuing security of the existing deposit. It cannot be disputed that there is much authority tending to support the position contended for by the appellants, but the cases cited by them are generally cases where the language of the condition was doubtful and uncertain, and a considera tion of the whole instrument and the circumstances surrounding the situation of the parties created an ambiguity requiring the application of rules of construction to determine the real interest of the parties. The rule contended for is however one of construction, and obtains only for the purpose of determining the real intention of the parties in making their contract. Burr v. American Spiral Spring Butt Co., 81 N. Y. 178; Braut Suretyship, § 138. It cannot prevail where the language of the condition clearly and unmistakably shows an intention to incur a liability not in terms referred to in the recital. Guaranties are subject to the same rules of interpretation as other contracts, and especially to that fundamental rule requiring them to be enforced according to the meaning aud intent, and in the manner desigued by the parties at the time of their execution. Rochester City Bank v. Elwoods, 21 N. Y. 90; Burr v. Am. Spiral Spring Butt Co., 81 id. 178. While the liability of guarantors is strictissimi juris, and cannot be extended by construction beyond the plain and explicit language of their contract, they are still subject to the rule that effect must be given to all of the language of the contract, and a meaning and effect ascribed to each word and phrase used therein, if it can be done without violating its plain meaning and intent. The general rule is, undoubtedly, that a contract cannot be construed to have a retroactive operation, and that such an effect can be given to it only where by express words or by necessary implication it clearly appears to be the intention of the parties to embrace past transactions, but when this does appear it is undisputably competent for parties to bind themselves for such liabilities. We are clearly of the opinion in this case that the contract itself recognizes an existing liability on the part of the bank to the State, and provides for its extension, and the surety thereof by the guarantors. More explicit language could not be used, and it is impossible to assign any other meaning to the language used than that the sureties intended to be bound for the continuing security of the existing deposit. (2) It is not competent for parties to such an undertaking to allege that they were ignorant of the existence of a debt expressly provided for, or that they have been misled by the omission of their principals to notify them of its existence. Western N. Y. L. Ins. Co. v. Clinton, 66 N. Y. 330; Brant Suretyship, § 138. March 1. 1887. People v. Lee. Opinion by Ruger, C. J. CONSIDERATION GUARANTY SURRENDER OF FORMER NATIONAL BANKS (1) The principal obligation recites that it was executed by the First National Bank of Buffalo, in consideration of deposits with said bank by the plaintiff, and the recital is followed by an undertaking on the part of the obligor to repay to the savings bank on demand all deposits which it has made, or may make with the First National Bank on call, as required, with interest at four per cent per annum. The undertaking of the guarantors, indorsed on the bond, is as follows: "In consideration of the making of the deposits mentioned in the foregoing agreement, we each and severally guarantee the performance of the foregoing contract by the First National Bank of Buffalo. The bond and guaranty were delivered by the First National Bank to the savings bank, on the 8th day of March, 1882, in compliance with a request theretofore made by the treasurer of the savings bank to the president of the First National Bank, to furnish a new bond, with sureties, to secure deposits of moneys of the savings bank in the First National Bank. The latter bank failed April 14, 1882, owing the plaintiff the sum of $30,000 for deposits on and prior to January 17, 1882. Upon these facts we are of opinion that the surrender of the bond of 1865 was a good consideration for the guaranty. It is needless to cite authorities to show that the surrender of an existing security is a good consideration for a new undertaking between the parties to the surrendered obligation. There being a good consideration for the bond between the obligor and obligee, it follows, we think, that the same consideration supports the guaranty, and that it is immaterial whether the guarantors knew or did not know that the surrender of the old bond was in the contemplation of the parties when they became guarantors. Where a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the principal contract supports the subsidiary one also. McNaught v. McClaughry, 42 N. Y. 22; Simons v. Steele, 36 N. H. 73; Brandt Suretyship, SS 6, 7. And the consideration need not be expressed in the guaranty, but may be shown by parol. Evansville Bank v. Kaufmann, 93 N. Y. 273. (2) The other principal question relates to the validity of the agreement evidenced by the bond. It is claimed that the arrangement between the savings bank and the First National Bank was in substance an agreement by the former to loan money to the latter, contrary to the statute prescribing the securities in which investments by savings banks may be made. We think it is a conclusive answer to this objection that the general act regulating the dealings and operations of savings banks (Laws of 1875, chap. 371, §§ 27, 28) expressly authorizes savings banks to keep ten per cent of their deposits on deposit in any incorporated bank in this State, and that it does not appear that the deposits made with the First Na tional Bank of Buffalo were in excess of this limit. The fact that the savings bank secured from the First National Bank an agreement to pay interest on the deposit does not convert the deposit into an unauthorized loan. It would seem strange to make an act of provident administration a cause of forfeiture upon a strained construction of the transaction. The deposits were at all times subject to call by the plaintiff. March 1, 1887. Erie County Savings Bank v. Coit. Opinion by Andrews, J. HIGHWAY LIABILITY OF TOWN FOR ACTION OF COMMISSIONERS.-(1) Where highway commissioners have not been provided with sufficient funds to repair all the defective places in the highways the town is not responsible for any error of judgment on the part of the commissioners in deciding upon what portion of the highway the moneys in their hands should be expended. Garglinghouse v. Jacobs, 29 N. Y. 297; Hover v. Barkoof, 44 id. 118. Where commissioners under a special act of the Legislature are authorized to lay out and construct a highway, the town charged with the duty of maintaining the same when completed, is not liable for an injury caused by a defect in the plan of its construction, as for the absence of guard rails at the side. Urquhart v. Ogdensburg, 91 N. Y. 67; S. C., 97 id. 238. March 1, 1887. Monk v. Town of New Utrecht. Opinion by Ruger, C. J. poration or elsewhere, and whether in the State or Federal Courts. Under the Rhode Island corporation act of 1847, providing for the enforcement of the individual liability of stockholders of manufacturing corporations for debts of the corporation, by bill in equity or by proceedings on an attachment or execution against the corporation, or under the act of 1877, limiting the remedy to a bill in equity or an action at law on a judgment obtained against the corporation, such liability cannot be enforced by action at law against a stockholder or his executor, without previously recovering judgment against the corporation, although the corporation is in bankruptcy. (2) A statute modifying the form of remedy for enforcing the individual liability of stockholders for debts of the corporation, but not annulling the liability, is constitutional, even as to debts contracted by the corporation before its enactment. (3) The Circuit Court of the United States, and the Supreme Court on appeal or error from the Circuit Court, take judicial notice of the laws of every State of the Union. (4) The general rule, that a judgment will not be reviewed on a ground not presented in the court below, should not be applied, when the effect would be to make the rights of the parties depend upon a statute which the court judicially knows is not the statute which governs the case. March 21, 1887. Fourth Nat. Bank of City of New York v. Francklyn. Opinion by Gray, J. REMOVAL OF CAUSES FEDERAL QUESTION -NATIONAL BANK. The act of Congress of July 12, 1882, repealing all acts or parts of acts inconsistent with itself, and providing that the jurisdiction of all suits in which a national bank should be a party should be the same as if it were a State bank at the same place, forbids the removal of a cause in which a national bank is a party from a State to a Federal Court on the mere ground of its being a national bank, and consequently the suit is not one arising under the laws of the United States. March 21, 1887. Leather Manufacturers' Nat. Bank v. Cooper. Opinion by Waite, C. J. ABSTRACTS OF VARIOUS RECENT DECISIONS. BANK-DRAFT INDORSED FOR COLLECTION-LIABILITY OF COLLECTING BANK.- Where a bank indorses a draft for collection to another bank, which bank, in turn, indorses it also for collection to a third bank, and that bank collects it, held, it cannot apply the proceeds to a debt due it by the second or intermediate bank, that bank having become insolvent, but the proceeds belong to the bank first making the indorsement, the restrictive indorsements giving notice of such ownership to the collecting bank. It is not a question of agency as to which bank the collecting bank is agent of, but the rights of the parties are determined by the fact that the collecting bank knowing, from the indorsements, to which bank it belonged, is liable as a trustee to such owner, for the proceeds. He has received the owner's money, knowing, by the indorsement upon the draft, that it is his, and will not be permitted to withhold it from him. The authorities in support of this proposition are overwhelming. The following cases from courts of high authority are directly in point. Sweeny v. Easter, 1 Wall. 166; Cecil Bank v. Farmers' Bank of Maryland, 22 Md. 148; Sigourney v. Lloyd, 8 Barn. & C. 622; 5 Bing. 525; Treultel v. Barandon, 8 Taunt. 100; Blaine v. Bourne, 11; R. I. 119. See also White v. National Bank, 102 U. S. 658; Hook v. Pratt, 78 N. Y. 371; 1 Daniel Neg. Inst., §§ 336, 698, et seq.; Story Prom. Notes, § 143. The only case holding the contrary doctrine is Hyde v. First Nat. Bank, 7 Biss. 156. The court seemed to consider that it was constrained to its decision by the principle decided in Hoover v. Wise, 91 U. S. 308, and claimed that that opinion was in conflict with the former decisions of the same court in Sweeny v. Easter, before cited. An examination of the two cases will show that there is no conflict between them, and the opinion in Hoover v. Wise, recognizes none; and although it contains an elaborate discussion of the authorities, it does not name the case of Sweeny v. Easter, for the obvious reason, as we think that the two decisions are dependent upon wholly different principles. Tex. Sup. Ct., Feb. 8, 1887. City Bank of Shermam v. Weiss. Opinion by Gaines, J. CONFLICT OF LAW — BILL OF EXCHANGE -ACCEPTANCE FOR ACCOMMODATION — HOLDER FOR VALUE. (1) In an action upon an acceptance in New York of a bill of exchange drawn in England upon a corporation having its place of business in New York, and made payable in New York, the law of New York governs. (2) A private manufacturing corporation has no power to accept drafts for the accommodation of its stockholders or others. The consent of the stockholders or directors cannot confer such power; and a previous course of dealing of the corporation will not enable the holder of such a draft to recover on it against the corporation, if he is not a holder for value, as well as in good faith, without notice that the acceptance was an accommodation acceptance. (3) If an accommodation acceptance is given in behalf of a corporation by its treasurer without any right to do so, a holder who has received it upon a pre-existing debt, without an express agreement to release the debt, is not, under the New York law a holder for value, so as to enable him to recover against the corporation. Conn. Sup. Ct. Errors. Dec. 17, 1886. Webster v. Howe Machine Co. Opinion by Pardee, J., Carpenter and Granger, JJ., dissenting. CRIMINAL LAW LARCENY FROM SAME ROOM-PROPERTY OF DIFFERENT PERSONS. Two indictments were brought against a defendant, one for burglariously entering a house, and committing a larceny by taking and carrying away clothing, the property of one person; and the other charging the simple larceny of clothing belonging to another person. The articles were taken from the same room but not at the same instant. Held, that an acquittal upon the first indictment was no bar to the trial under the second indictment, upon the ground of "former jeopardy," there being two separate and distinct larcenies. The goods of the two ladies, though in the same room, were in different parts of that room, and so far apart that the thief could not have taken those belonging to the mother and those belonging to the daughter at the same moment of time,and by the same act. The taking into his possession of the goods on one side of the room, and the removal of them from their place, without the consent of the owner, aud with the intent of appropriating them to his own use, and depriving the owner thereof, constitutes a complete larceny; and if the thief had been apprehended in the middle of the room, as he passed from one side to the other with the goods already taken in his possession, the crime would have been perfect, the trespass as to the owner of those particular goods and the asportation would have been finished. The thief was then guilty of the larceny of the clothing he had then taken under his dominion, and what he did afterward was another crime. It was the taking and carrying away of the goods of another person, in a subsequent moment of time, and by different movements of his hands and body, with the necessary felonious intent. The taking of this other person's goods was without her consent, and was therefore a trespass against her; and all the goods were actually carried entirely off the premises, and dropped some distance away. The taking of the goods of the mother was a trespass against her, and not against the daughter; and the taking of the goods of the daughter was a trespass against her, and not against her mother, Then were there not necessarily two trespasses,the one as to the mother, and the other as to the daughter? Most certainly so; and the one was completed before the other was commenced. Then with reference to the asportation, the goods first taken into the dominion and possession of the thief were by him carried across the room, to the place of those belonging to the other person, or those last taken were carried to the place where the thief deposited those first taken for the time being. In either event the carrying away was complete in legal contemplation; there was an asportation of each lot of goods. Neither of the ladies had the possession of the goods of the other, or any property rights therein; hence the trespass and asporation as to the one was no kind of legal offense against the other. The wrong to one of them was no wrong to the other; and if the wrong as to each was not a complete crime within itself, there was no crime at all, because two acts involving the distinct property and rights of different individuals cannot be coupled in order to constitute one offense against the law. The trespass, as against Mr. Moore, the owner of the house invaded, was continuous so long as the thief remained upon his premises, his presence there being without the consent of such owner; but the trespasses against the ladies were entirely different things. The offenses against them would have been the same if the thief had been rightfully upon the premises. In South Carolina the defendant was indicted in three cases for taking the cotton of three persons at the same time. It was held that a conviction in one case was no bar to a conviction in the other two, the court being of the opinion that the larceny of the different parcels of cotton constituted three distinct offenses. State v. Thurston, 2 McMul. 382. The Supreme Court of Massachusetts went still further, in Com. v. Andrews, 2 Mass. 409. Andrews had received stolen goods belonging to A. and B., from the same person, at the same time, and in the same package. He was convicted upon an indictment for receiving the goods of B., and pleaded that conviction in bar to an indictment for receiving the goods of A. The plea was adjudged to be insufficient, upon the ground that there were two offenses. In Ohio it was held that the larceny of goods of two different persons at the same time was one transaction, and therefore but one offense. State v. Hennessey, 23 Ohio St. 339; 13 Am. Rep. 253. Wilson was indicted and convicted for stealing a horse. Subsequently he was put upon trial for stealing other property belonging to a different person. Plea of former conviction was sustained, it appearing that the act in each case was the same, the goods charged in the second indict. ment to have been stolen being upon the horse when he was taken. Wilson v. State, 45 Tex. 76; 23 Am. Rep. 602. In section 931 of the ninth edition of his work on Criminal Law, Wharton mentious several instances in which the taking of different things by one continuous act has been held to be a single larceny; and in doing so he refers to some of the cases cited in notes to the case of The King v. Ellis, 2 Heard Lead. Crim. Cas. At the conclusion of this section, treating of the singleness of the transaction, the author says: "But if broken up, as is stated, by extrinsic action, then separate indictments are necessary. This perhaps occurs when articles of different owners are taken by a continuous act." Tenn. Sup. Ct., March 8, 1887. Phillips v. State. Opinion by Caldwell, J. Snodgrass, J., dissents. CONFESSION.- Where a prisoner was committed to jail for murder, and the committing magis trate went to see the prisoner for the purpose of obtaining a confession as to his guilt, and told him that it "would be better for him to tell the truth, and have no more trouble about it," the confession thereupon made by the prisoner is inadmissible in evidence. The prisoner was in the custody of the law, and although pressed time and again to make a confession, and pressed too, by one in authority, he persisted in denying his guilt; and it was not until he was told that it would be better for him to tell the truth, and have no more trouble about it, that the confession was made. Here then was an inducement, and one too of the strongest kind, held out to him. The witness, it is true, says he told the prisoner he could make no promises. But what does this amount to when, in the next breath, we find him saying to the prisoner that it would be better for him to tell the truth, and thereby have no more trouble about the matter. It was in fact saying to the prisoner: "If you will tell me the truth, it will not only be better for you, but you shall have no more trouble about the matter." In Garner's case, 2 Car. & K. 920, the witness told the prisoner "that it would be better for him to tell the truth." Patterson, J., before whom the case was tried, after conferring with Lord Denman, C. J., held the confession to be admissible, and upon the conviction of the prisoners, the question was reserved for the consideration of all the judges. After full argument of the case, Pollock, C. B., said: "When a person has been told that he had better tell the truth, and these expressions are used by or in the presence of a person in authority, I always reject the evidence." Maule, J.: "That the expression, 'You had better tell the truth,' coming from a person in competent authority, excludes what is said by the prisoner afterward, has been decided in more than a hundred instances." Erle, J., was of the same opinion; and Patterson, J., before whom the case was tried, was of opinion that he had erred in admitting the confession, and as there was no other evidence, he said "he ought to have directed an acquittal." In Kingston's case, 4 Car. & P. 387, the prisoner was indicted for administering arsenic to one Eliza Bates, with intent to murder. The surgeon who was called in saw the prisoner, and said to him: under suspicion of this, and you had better tell all you know." Mr. Justice Parke, having conferred with Mr. Justice Littledale, held the confession made by the prisoner to be inadmissible. So again in Rex. v. Partridge, 7 Car. & P. 557, the prisoner being in the custody of the constable, the latter said to Mr. Morling, the prosecutor: "You must not use any threat or promise to the prisoner;" and immediately afterward Morling said to the prisoner: "I should be obliged to you if you would tell me what you know about it. If you will not, we, of course, can do nothing. I shall be glad if you will." Mr. Justice Patterson held this to be a promise. "What could the prosecutor mean," say the court, "by saying that if the prisoner would not tell they could do nothing, but that if the prisoner would tell they would do something for him?" The whole question was fully considered in the later case of Baldry, 2 Denison, Cr. Cas. 430, by Lord Cambell, C. J., Pollock, C. B., Parke, B., and Erle and Williams, JJ. Pollock, C. B., said "A single caution to the accused to tell the truth if he says any thing, it has been decided not to be sufficient to prevent the statement made being given in evidence; but where the admonition to speak the truth has been coupled with any expression importing that it would be better for him to do so, it has been held that the confession was not receivable, the objectionable words being that it would be better to speak the truth, because they im. port that it would be better for him to say something. Now Morgan, the magistrate, having told the prisoner "You are SEPARATION OF JURY that it would be better for him to tell the truth, and have no more trouble about it," the confession there. upon made by the prisoner is according to all the decisions inadmissible, and the court ought to have excluded it from the jury. Md. Ct. of App., March 15, 1887. Biscoe v. State. Opinion by Robinson, J. MURDER.-On a trial for murder a separation of the jury, by which some of them remain in the dining-room of a hotel, while others go out of their sight into a saloon, with the sheriff, during the progress of the trial, and after the jury were put in charge of the sheriff, is ground for reversal. Mr. Bishop states that the rule in this country prohibiting the separation of the jury in capital cases is nearly universal. 1 Bish. Crim. Law, § 995. The earliest case in this State in relation to the enforcement of this rule arose in a capital case, that of McLean v. State, 8 Mo. 153, where the judgment was reversed upon the sole ground that the jury, after being sworn, were permitted to separate. This was the unanimous opinion of the court. At the same term of the court, the case of Whitney v. State, was decided. Id. 165. It was not a capital case, and the judgment was affirmed. There however the jury had brought into court an informal verdict whereby the defendant was found guilty; but inasmuch as the verdict was informal, the jury was sent back to put their verdict in shape. During this interval one of the jurors absented himself from the others for the space of half an hour, but on his return to his fellows the verdict of guilty was put into proper shape, and returned into court, and the absence of the juror was held no ground for a reversal, and very properly was it so held. This also was an unanimous opinion and no intimation is given that the rule established in McLean's case is disturbed. Yet strange to say, the latter case is ignored, and Whitney's case constantly cited as upholding the rule of the immateriality of the mere separation of the jury, even in a criminal case of the highest grade. The law being thus established, the Legislature at the revising ses. sion, in 1879, enacted several new sections in relation to jurors in criminal prosecutions. Section 1909 provides: "With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at an adjournment or recess of the court during the trial, in cases of felony, except in capital cases; and in misdemeanors the court may permit such separation of its own motion." It will thus readily be seen that the Legislature saw fit to establish a rule dividing criminal prosecutions into three classes: (1) To permit the trial court to exercise its own discretion of allowing the jury to separate in cases of misdemeanor: (2) to permit such separation, "with the consent of the prosecuting attorney and of the defendant, in all cases of felony except in capital cases; "(3) to cut off all power in the trial court, either with or without the consent of the prosecuting attorney and the defendant, or permitting the jury to separate in the class of cases last mentioned. This view is emphasized by the provisions of section 1910, a new section, which requires that in cases of a felony, when a jury retires to deliberate on the verdict, they shall do so in charge of an officer, who shall be sworn to keep them together," etc. This view finds further emphasis in the provisions of section 1966, another new section, making it a cause for a new trial that the jury has "been separated without leave of the court," etc.; and this too in cases where the court could have permitted their separation, in the first instance, by consent of parties, and though no proof be offered of prejudice by reason of such separation. In view of this recent legislation, so zealously guarding against the separation of juries in "capital cases, there would seem to be but one conclusion to be drawn from this action of the Legislature, and that was to overthrow the rule then prevailing of regarding the mere separation of the jury in capital cases as immaterial. If this is not the correct view to take of the matter, then it must be confessed that such stringent legislation has failed of its purpose in establishing a rule of procedure in criminal cases; for if the legislative behest can be violated with impunity unless something in additiou to such violation be shown, it cannot be said to possess any of those sanctions which ordinarily pertain to legislative enactments. Within reasonable bounds, I regard this legislation as mandatory. Mo. Sup. Ct., Feb. 14, 1887. State v. Murray. Opinion by Sherwood, J.; Norton, C. J., and Ray, J., dissenting. NEGLIGENCE-RAILWAY CROSSING-CONTRIBUTORY -ONUS OF PROOF.-- A railway line crossed a public footpath on a level, the approaches to the crossing being guarded by hand gates. A watchman who was employed by the railway company to take charge of the gates aud crossing during the day was with drawn at night. The dead body of a man was found on the line near the level crossing at night, the man having been killed by a train which carried the usual head lights but did not whistle or otherwise give warning of its approach. No evidence was given of the circumstances under which the deceased got on to the line. An action on the ground of negligence having been brought by the administratrix of the deceased, the jury found a verdict for the plaintiff. Held, affirming the decision of the Court of Appeal, that even assuming (but without deciding) that there was evidence of negligence on the part of the company, yet there was no evidence to connect such negligence with the accident; that there was therefore no case to go to the jury and that the railway company was not liable. Observations as to the onus of proof with regard to contributory negligence. Wakelin v. London and South Western Railway Company, 12 App. Cas. (H. L). INFANT. When a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point, not in itself a public crossing. it owes the duty of reasonable care toward those using the crossing; and whether, in a given case, such reasonable care has been exercised or not, is ordinarily a question for the jury, under all the evidence. Plaintiff's contention is that the jury would have been warranted in finding negligence of the company defendant from which the injury complained of resulted; that the testimony tended to prove such facts and circumstances as bring the case within the general principle recognized and approved by this court in Philadelphia & R. Co. v. Troutman, 11 Wkly. Notes Cas. 453, in which it is ruled that where a person crosses a railroad track by a common and well-known footpath, used by the public for many years without let or hinderance on the part of the railroad company and its employees, he cannot be regarded as a trespasser; and where it is shown, as was done in this case, that the footpath across the company's land had been habitually used by the public for many years without objection, it is for the jury to say whether the company has not acquiesced in such use. LICENSE While such user does not convert the company's right of way into a public highway, it certainly does relieve persons passing over the same from being treated as trespassers on the company's premises; and there is a manifest distinction between the degree of care which a railroad company is bound to exercise toward mere trespassers and those who may be using the right of way by tacit consent or implied permission of the company. In the case of such long-continued user by the public, the company and its employees are charged with notice of the fact, and therefore cannot with impunity neglect precaution to prevent danger to persons thus using the same. In Barry v. Railroad Co., 92 N. Y. 289; S. C., 44 Am. Rep. 377, it is said: 'The acquiescence of defendant for so long a time, in the crossing of the tracks by pedestrians, amounted to a license and permission by defendants to all persons to cross the tracks at this point. These circumstances imposed a duty on the defendant, in respects of persons using the crossing, to exercise reasonable care lu the movement of its trains. The company had a lawful right to use the tracks for its busiuess, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right therein exists, but so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury. *** The company, in such cases, is an actor at the time in creating the circumstances which imperil human life, and it would be an alarming doctrine that it was under no duty to exercise any care in the movement of its trains.' The principle settled by the foregoing and many other cases that might be cited is, that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care toward those using the crossing, and whether, in a given case, such reasonable care has been exercised or not, is ordinarily a question for the jury, under all the evidence. Penn. Sup. Ct.. Oct., 4, 1886. Taylor v. President, etc., of Del. & H. Canal Co. Opinion by Sterrett, J. ---- IMPLIED PATENTS INVENTIONS BY EMPLOYEE LICENSE TO EMPLOYER. Where a person, while in the employ of a manufacturing corporation, invents a machine. and under its directions, aided by its employees, with its material, and at its expense, volun. tarily goes to work to perfect and construct such machines, and to aid in putting them on the market for the corporation, the law will imply an agreement for a license from the inventor to such employer to manufacture perpetually, at its then present works, machines embodying the invention in question, and to sell the same wherever it can find a market, but will not imply an agreement to assign the patent absolutely to the employer. McClurg v. Kingsland, 1 How. 202. Such presumption of license found in McClurg v. Kingsland, supra, has frequently been sanctioned in other cases. Whiting v. Graves, 3 Ban. & A. 222; Chabot v. American Button-hole & O. Co., 6 Fish. 71; Hapgood v. Hewitt, 7 Sup. Ct. 193; 119 U. S.; affirming S. C., 11 Fed. Rep. 422; 11 Biss. 184. But the facts do not clearly and definitely point to the inhibition of such manufacture and sale by some one else, in some distant State, as Maine, Texas, or Oregon. A patent not only gives the right to manufacture and sell, but secures to the inventor, and those having rights under him, the exclusive monopoly in the invention. Such monopoly extends to each and every portion of our common country. It excludes all persons from such right, unless they first acquire it from the inventor. While the facts disclosed are sufficient to support such affirmative rights in the plaintiff, they are barren of any thing to negative all the rights of the defendant as the inventor. The mere fact that in making the invention, an employee uses the materials of his employer, and is aided by the services and suggestions of his co-employees and employer in perfect. ing and bringing the same into successful use. is insufficient to preclude him from all right thereto as an inventor. The same is true of an invention conceived wholly by an employer, and then perfected under his supervision, by aid of the mechanical skill and sugges |