fire to the grass along and by the side of its line of road, and damage ensued to the plaintiff as alleged, then the jury may infer or presume that the fire escaped through the negligence of the defendant, its servants, agents or employees. And the court instructs the jury that in such case it devolves upon the defendant to rebut the presumption of negligence, by proving that it was using proper and safe locomotives and engines, and that its servants and employees were conducting them in a proper and safe way at the time the fire escaped, and unless the jury believe that the defendant has thus rebutted this presumption, they will find for the plaintiff.

4. The court instructs the jury on the part of the plaintiff, that even though they should believe from the evidence that the defendant, on the 23d day of November, 1872, was using, in the operation of its road, machinery of the most approved mode of construction, and the latest and best appliances in known use, to prevent the escape of fire, and that they generally managed their said machinery and operated their said road in a safe and proper way; yet, if they should further believe from the evidence that in this instance the servants or employees of defendant were running an unreasonably long train, so that the engine was overloaded and pulled very hard, and in consequence thereof produced the escape of sparks and fire to a dangerous extent, then the jury may take into consideration this fact, with the surrounding circumstances, as shown by the evidence, in deciding whether or not there was negligence on the part of defendant, its servants or employees, in the running of its trains, the management and use of its said engines and machinery.

5. The court instructs the jury on the part of plaintiff, that even though they should believe that the defendant had, at one time, provided its engines with the best appliances in known use for the prevention of the escape of fire, and did generally manage the same in a proper and safe way, yet, if they should further believe from the evidence, that in this instance the defendant had suffered its engine to get into bad order, so that fire escaped therefrom as alleged, and by such escape of fire damage ensued to plaintiff, without fault on his part, then they will find for the plaintiff.

6. The court instructs the jury that, although they must, in finding a verdict in this case, be governed by the maxim that every one is liable for the natural and proximate, but not for the remote damages occasioned by his acts, yet this maxim is not to be controlled by time and distance; and if the jury believe from the evidence that there was but one burning-one continuous conflagration from the time the fire was set at or near the railroad track, till, by its natural extension, it extended to and burned plaintiff's property, in such a manner as to constitute but one event, one continuous burning, and that the damages complained of were, under the surrounding circumstances, the natural result of the escape of the fire from the engine of the defendant, through defendant's negligence, then they will find for the plaintiff, if they shall further find

that said damage was not caused by any fault of the plaintiff.

7. The court instructs the jury on the part of the plaintiff, that if they should believe from the evidence that the plaintiff is entitled to recover on the first count in his petition, then they shall assess his damage on said count at such sum as they shall believe from the evidence, that the property destroyed by the fire was reasonably worth, not to exceed the sum for which judgment is asked for in said count; and the jury may find for plaintiff on one count of the petition, and for the defendant on the other.

8. The court instructs the jury that, even though they should believe from the evidence that the defendant, on the 23d day of November, 1872, was using in its business the most approved machinery in known use, and had adopted and was using the best appliances in known practical use, for security, safety, and preventing the escape of fire, and that the same were properly managed, yet, if they should further believe from the evidence that the defendant permitted the dry grass and combustible material to accumulate by the side of, and near to the railroad track, within its right of way, in such manner as would not have been permitted by an ordinary prudent man upon his premises if exposed to the same hazard from fire under similar surrounding circumstances, then they may infer negligence from such acts.

9. The court instructs the jury, on the part of the plaintiff, that if they should believe from the evidence that the setting of the fire to the prairie grass, at or near the railroad track, was the proximate consequence or effect, or such an effect as might have been foreseen or expected by any reasonable man, of the escape of fire, under the circumstances, then this effect will continue to be proximate as to everything which the fire consumes in its direct course, and if they so believe they will find for the plaintiff, unless they should believe from the evidence that some new force or power intervened, of itself sufficient to have caused the mischief complained of.

10. The court instructs the jury, on the part of the plaintiff, that if they should believe from the evidence that the plaintiff is entitled to recover on the first count in his petition, then they shall assess his damage in said count at such sum as they shall believe from the evidence the property destroyed by the fire was reasonably worth, not to exceed the sum for which judgment is asked in said count.

Of which instructions those numbered 1, 2, 3, 4, 5, 6, 7 and 10, were given by the court, against defendant's objections, and those numbered 8 and 9 were refused, and to the action of the court in giving said instructions, numbers 1, 2, 3, 4, 5, 6, 7 and 10, the defendant then and there excepted at the time.

The defendant prayed the court to instruct the jury in its behalf as follows:

1. The court instructs the jury, if they find from the evidence that the damage done the plaintiff was not the usual and natural result of the

negligent acts of defendant, they will find their verdict for defendant.

2. If the jury find that the burning of plaintiff's property was not, under usual and ordinary circumstances, the natural result of a fire set where this was, or that the exertion of plaintiff and his neighbors, or the precautions taken by plaintiff and his neighbors, or any natural and existing obstacles to the rate of said fire, would, under ordinary and usual circumstances, have extinguished or stopped said fire before it reached plaintiff's property, they will find their verdict for defendant.

3. If the jury believe from the evidence that the burning of plaintiff's property was not such a usual and natural result of the negligent acts of defendant as a prudent and careful person would, under usual and ordinary circumstances, reasonably have anticipated, you will find your verdict for defendant.

4. If the jury believe from the evidence that after the fire was started it would, in the natural order of events, have expired itself, or have been extinguished before reaching plaintiff's property, but on account of the increased severity of the wind blowing the next morning, or a change in the direction of the wind, or an increase in the inflammable material which the fire reached, it was carried upon plaintiff's premises and destroyed his property, they will find their verdict for defendant.

5. If the jury find that ordinarily plaintiff's property, situated as it was, was not exposed to damage from any fire originating at the place this did, and that a prudent man would have anticipated no danger to said property from such fire under ordinary circumstances, and that the damage done said property was owing to a high wind blowing in the direction from where the fire started, conveying the fire with great speed through the dry and heavy grass to plaintiff's premises, where, under ordinary or usual circumstances it could or would have been stopped or expired before reaching there, then their verdict must be for the defendant.

6. If the jury find from the evidence that the fire set by defendant on its right of way would have expired by itself during the night, or would have been put out by other parties, had it not been for the high wind which was blowing when the fire was set, and which sprang up next morning, and the heavy growth of grass on the prairie between the plaintiff's premises and the place where the fire was set, they will find their verdict for defendant.

7. If the jury find that the fire, during the night after it was set, burned low and slow, and the wind calmed down, and the next morning the wind increased very much and the fire burned rapidly across the intervening prairie to plaintiff's premises, and but for the high wind which sprang up in the morning, and the high wind and dry grass and the rapidity with which the fire traveled, the plaintiff could, by the exercise of ordinary care, have protected his premises from harm, you will find your verdict for defendant.

8. And if the jury find that during the night of Saturday, November 23d, 1872, the fire became extinguished, or nearly so, and could, by the exer

cise of ordinary care and exertion on plaintiff's part, or would by reason of the exertion of his neighbors, or precautions which they had taken to guard against fire, have been extinguished the next day, had it not been for the high winds which prevailed the next day, they will find their verdict for defendant.

9. If the jury find from the evidence that, after the fire was set by defendant, the same was extinguished, or nearly so, and afterwards increased and spread over a great extent of territory and finally reached the plaintiff's premises, in consequence of an unusually high wind springing up in the morning, and would not have increased and reached the plaintiff's premises but for such high wind springing up next day, they must find for the defendant.

Which instructions the court refused to give, and to which action of the court, in refusing to give said instructions, defendant then and there excepted.

The defendant also prayed the court to instruct the jury as follows, viz.:

10. To entitle the plaintiff to recover in this cause it devolves upon him to show to the satisfaction of the jury that the fire was set out or caused by the negligence of the defendants or its employees.

Which instruction the court gave as prayed.

The defendants also prayed the court to instruct the jury as follows:

11. The escape of fire from the engine or locomotive of defendant at the time and place alleged, if proved to the satisfaction of the jury, is sufficient proof of negligence on the part of defendant and its employees to authorize the jury to find such facts, but this proof of negligence must be consid ered by the jury as fully rebutted if proved to their satisfaction that their engine from which the fire escaped was at the time in good condition and provided with the best machinery and contrivances to prevent the escape of sparks and coals of fire, and was operated by skillful and competent employees, and they themselves were at the time guilty of no negligence.

12. The jury are instructed, that even if they find the fact to be that the defendant's right of way at the point where the fire is alleged to have been set was covered with dry grass and weeds, the natural growth of the soil, this is no negligence on the part of the defendant, or any evidence of negli gence, unless it be shown by the evidence that the fire, which escaped from defendant's engine, alighted upon or set fire to the grass on defendant's right of way and was from thence communicated to the grass on the lands adjoining the right of

way.

Which instructions the court refused to give, and to which action of the court, in refusing to give said instructions, defendant then and there excepted at the time.

It will be perceived that two points are presented by the facts, and the instructions to the jury. First, whether the question of negligence was properly submitted to the jury; and secondly, whether the instructions, in regard to proximate and remote cause, were correct.

The sixth instruction is the one principally objected to, but keeping in view the facts on which this instruction was based, we think it was not calculated to mislead. Although the instruction announces the rather startling proposition that neither time nor distance controls the decision of the question of proximate and remote damages, it is at the same time declared in the instruction that the damages must be the natural result of the fire, originated by the negligence of the defendant. This seems to be in accordance with the doctrine generally sanctioned, that proximate damages are such as would be reasonably anticipated by a prudent man.

The evidence showed that there was no intervention of a new agency in the destruction of plantiff's property, The fluctuation of the wind at the season of the year when this fire occurred is nothing remarkable or extraordinary, as the testimony in this case shows. The cessation of the wind at nightfall on the prairie, is a matter of course, and the increase of the wind the next morning is a circumstance which might well be anticipated. We do not regard this as an intervention of a new agent, relieving the wrong-doer of responsibility. Had the wind been on the next day extraordinary, not to have been anticipated, it might be considered a casus, but the evidence in this case shows that the violent wind on the day succeeding the starting of the fire was not an unfrequent occurrence at that season of the year. It is agreed by the witnesses on both sides, that such winds, though somewhat unusual, frequently blow in that section of the country.

The instructions asked by defendant on this point seem principally directed to a state of facts of which there was no proof. Abstractly considered, they were undoubtedly law, and some of them might well have been given. It is urged, however, that the judgment must be reversed on account of the refusal of the court to give the 11th instruction asked by defendant. It confessedly announces the same principle stated by the court in the 3d instruction given for the plaintiff, and might well have been given. In the case of Coates v. M., K. & T. R'y. Co., 61 Mo. 40, we reversed a judgment because a similar instruction to the 11th asked in this case was refused, but in that case the instructions for plaintiff did not state what facts would rebut the prima facie case made by proof of the fire originating from sparks from the engine. In the present case the 3d instruction for plaintiff does state that proof of the use of proper and safe locomotives and engines, and that its servants and employees were conducting them in a proper and safe way at the time the fire es aped, would rebut the presumption of negligence arising from the mere escape of the fire. This might very well have been repeated in the instruction asked by de

endant on the same subject, but with some hesitation we have concluded that the refusal of this 11th instruction will not warrant a reversal of the judgment.

Judgment affirmed.

"DUE PROCESS OF LAW."

It is proposed to discuss this term of constitutional law, with reference only to the application made of it by the Supreme Court of the United States in Pennoyer v. Neff, 5 Otto, 714.

The point of that decision is, that a monied judgment by default, in one of the state courts of Oregon, in 1866, in favor of a citizen of that state against a nonresident, on service had pursuant to the provisions of an act of the state of Oregon, authorizing service on non-residents by publication of the summons in a newspaper in the county where the suit is brought, is void; and the sale in 1866 of land of the defendant in Oregon under the judgment conveyed no title, on the ground that such service is not "due process of law;" and such provision of the act is within the prohibition against a state depriving any person of life, liberty or property without "due process of law," contained in sec. 1 of the 14th amendment to the Constitution of the United States, adopted in 1868. The suit was in the federal court by the non-resident defendant in the judgment against the purchaser at execution sale, to try the title-and decision as indicated.

"Since the adoption of the 14th amendment to the Federal Constitution," say the court, "the validity of such judgments may be directly questioned, and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction does not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation-to pass upon the subject-matter of the suit; and if that involves merely a determation of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. "Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other states, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property, or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem."

Something is said in the course of the opinion about a judgment obtained on such constructive service, authorized by legislative act, being treated in any other state of the Union as contrary to the first principles of

justice, and as an absolute nullity; but these suggestions seem to be made rather by way of argument, in support of the construction given to the clause of the fourteenth amendment referred to, than as a substantive basis of decision.

The fifth article of the ten amendments adopted in 1791, provides that no person "shall be deprived of life, liberty or property without due process of law." This article, however, is not referred to in the opinion of the court, and has never been construed to impose any limitation on the states, but upon the Federal Government only.

Mr. Paschal, in his Annotated Constitution, referring to the definition of American citizenship, in section 1 of the fourteenth amendment, says: "All else in this section had already been guaranteed by the constitution and amendments. The new feature declared is, that the general principles which had been construed to apply only to the National Government, are thus imposed on the states. Most of the states, in general terms, had adopted the same bill of rights in their own constitutions."

With unimportant differences of phraseology, this term "due process of law" is to be found in the constitution of every state in the Union, and probably had its origin in magna charta. Such verbal differences have not, however, given rise to any difference of construction. "The principles upon which the process is based, and not the mere form of the process," says Mr. Justice Cooley, "are to determine whether it is due process are not."

There was no question before the court of the "force and effect" or "faith and credit" to be given in one state to a judgment recovered in another. The provisions of the constitution and of the judiciary act of 1789 on this subject, have not been thought to embrace a judgment in personam against a non-resident on constructive service, and without appearance-except in so far as under the provisions it was long thought to be the law that the recital of personal service, or of appearance in the record, could not be contradicted in a collateral proceeding. This construction was, however, negatived by the Supreme Court in Thompson v. Whitton, 18 Wall., and Knowles v. Gas Light and Coke Co., 19 Wall. Nor can it scarcely be said that the denial of extra-territorial operation to such judgments has been considered an open question within legal memory. D'Arcy v. Ketchum, 11 Howard.

As remarked by Mr. Justice Hunt, "the learning in the opinion of the court on these subjects is not applicable." That learned judge, in the course of an able and perspicuous dissenting opinion, referring to the long existence of statutes similar to that of Oregon in nearly every state of the Union, says: "All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of the value of the paper on which they are recorded, except where a preliminary attachment was issued. *** In my opinion, this decision is at variance with the longestablished practice under the statutes of the states of this Union, is unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in titles which have been obtained under similar statutes in existence for nearly a century; it invites litigation and strife, and overthrows a well-settled rule of property." And, in conclusion, "I am not willing to declare that a sovereign state can not subject the land within its limits to the payment of debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail, and I am of opinion that if reasonable notice be given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied."

The extract already given from the opinion of the court, contains all that is said bearing directly upon the point on which the decision of the case was rested.

What is "due process of law"? From the opinion of the court it at least seems that it is not such process as has obtained, from the inauguration of most of the state governments under special legislative sanction; though by virtue of provisions in the constitutions of their own states, the state courts have at all times been under the same obligation to denounce such legislation as "contrary to the due process or course of the law of the land;" as the courts of the United States find themselves since the adoption of the fourteenth amendment. It would certainly seem to be a sound rule of legal construction, that the term used in the amendment in 1868, was to be construed in harmony with a practice long before declared by the legislative departments of most of the state governments, sanctioned without interruption by the state courts through a long series of years, and which constituted a law of real estate, under which rights and titles had long been vested.

A retroactive operation has also thus been given this clause of the fourteenth amendment, certainly not called for by its terms. Not only so, but the title to land vested and acquired under the laws of Oregon two years before the adoption of this amendment to the federal constitution is, by construction of that amendment, divested.

Nothing has been said as to the abstract justice of such law, for no power is admitted to exist in the courts of the Union to declare void statutes of the states, because they conflict with the notions of the judges on the "first principles of justice."

It admits of grave doubts whether state legislation will conform the future operation of these statutes to the limitations sought to be imposed by this decision, and as to rights already acquired under such laws, I can not think it doubtful that the state courts will uphold such titles.

The field of conflict thus opened up is a most extensive one, and it is respectfully submitted by the writer, should now, in the absence of further decision, receive the most careful attention at the hands of the profession. R. G.

Galveston, Texas.

SOME RECENT FOREIGN DECISIONS.

COVENANTS AS TO TITLE DO NOT COVER PATENT -DEFECTS.-Besley v. Besley. English High Court, Chy. Div. 38 L. T. N. S. 844. A agreed to take an underlease for whatever term B held. By mistake of B's solicitor the underlease purported to grant a term of seven years longer than B held. The underlease contained the usual qualified covenant for quiet enjoyment. A entered into possession and held it till nearly the end of B's real term. Then B's executors, finding out the mistake, wrote to A that they would be obliged to require him to give up possession at the end of the term which B really held. A procured a fresh lease from the ground landlord at an increased rent, and claimed the amount of such increased rent for the seven years as damages for misrepresentation and breach of the covenant of quiet enjoyment. Held, that it was the duty of A to look at the original lease, and not having done so he could not recover damages for the common mistake; that there had been no breach of covenant.

siter v. Miller. English House of Lords, 26 W. R. 865. An estate belonging to three persons was offered for sale in lots, subject to certain conditions and stipulations printed on the plan, stating (among other things) that "each purchaser will be required to sign a contract embodying the foregoing conditions," and providing for the payment of a deposit of £10 per cent. on the amount of the purchase-money, and for the completion of the purchase at the expiration of not exceeding two months from the date of the contract. M. made a verbal proposal to W., the agent for the owners of the property, to purchase certain of the lots for £1,000. W. told M. that the purchase must be subject to the conditions and stipulations printed upon the plan, and shortly afterwards wrote him a letter which contained the following words: "The proprietors have this day agreed to accept your offer of Saturday last, conveyed to them through me, viz: to purchase for £1,000, etc., subject to the conditions and stipulations printed on the plan. * I have requested Messrs. H. & M. (solicitors) to forward you the agreement for purchase. Will you please elect whether to take the title, or employ your own solicitor?" M. wrote in reply, acknowledging W.'s letter, but complaining of a particular condition relative to building on the land, and W. wrote to state that this condition would not be insisted upon. M. afterwards declined to complete the purchase. Held, 1, that the vendors were sufficiently described as the "proprietors," and that the contract was evidenced by a memorandum in writing so as to satisfy the statute of frauds; and 2, that the correspondence between M. and W. disclosed a binding contract without the signature of the more formal agreement which was to be prepared by the solicitors. Judgment of the Court of Appeal (25 W. R. 890, L. R. 5 Ch. D. 648) reversed. Chinnock v. Marchioness of Ely, 13 W. R. 597, 4 De G. J. & S. 638, distinguished.

INTERPRETATION- STATUTE APPEAL-COMMISSIONERS OF HIGHWAYS.-The only question of importance presented in this case is, whether a person has the right to appeal from the decision of the commissioners of highways, in laying out a new road, or vacating an old one, who does not own land adjoining the road laid out or vacated. The statute which authorizes an appeal from the decision of the commissioners reads that "any person interested in the decision," etc., may appeal. CRAIG, J., says: "The word 'interested' must receive a reasonable construction, such as will on the one hand protect those who have a direct and substantial interest in the matter, and on the other hand protect the commissioners of highways from unnecessary litigation. Every citizen of a state, in one sense, has an interest in the public highways. If, therefore, the language of the statute is interpreted liberally an appeal might be taken by any citizen of the state. But we apprehend it was not the intention of the legislature that the word 'interested' should receive such a liberal construction. It was, doubtless, intended to give the right of appeal to those persons who had a direct and pecuniary interest not

shared by the public at large, such as owned lands adjoining." Affirmed. SCOTT, J., dissents.-Taylor v. Commrs. of Highways.

APPEAL BONDS-EFFECT OF DEFECTIVE RECITAL -STATUTORY FORM.-This was a suit on an appeal bond, in which judgment in the lower court went for plaintiff. It is insisted that the bond is insufficient to authorize a recovery. The bond was executed by W, the defendant in the first suit, and by appellant here, to John Reisdorf. The condition recites the judgment and parties to it correctly, but states: "Now if the said August Reisdorf shall prosecute-appeal with effect," etc. WALKER, J., says: "The names are correctly given in all other parts of the bond, but it is urged this mistake renders the bond invalid. This, in principle, if not in fact, is like the bond in the case of Hibbard v. McKinlay, 28 Ill. 244. Here as there the context of the bond clearly shows that the name Reisdorf was, by mistake, inserted instead of Walbaum, and under the authority of that case the objection in this must be held not well taken. It is also urged that the condition of the bond is not in the form prescribed by the statute. The recital is, 'Now if the said shall prosecute appeal with effect, and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said appeal, then,' etc. The form given in the statute then in force is this: 'Now if the said A B shall prosecute his appeal with effect and pay the judgment rendered against him by said court upon the trial of said appeal, or by consent, or in case the appeal is dismissed will pay the judgment rendered against him by said justice and all costs occasioned by said appeal,' etc. We are of opinion that the bond in this case is in substance the same as the form. See 3 Scam. 349; 28 Ill. 524; 36 Ill. 458. But if this were not so the bond is good as a common law obligation. See 1 Gilm. 525; 11 Ill. 417; 50 Ill. 174; 68 Ill. 236; 76 Ill. 383." Affirmed. -Schill v. Reisdorf.

CONTRACT TO COLLECT AND PAY OVER MONEY— TRUST.-This was assumpsit on a special undertaking by defendant to pay over to plaintiff the proceeds of certain notes left with one G to discharge an indebtedness of G to the plaintiff. It is averred that defendant collected the notes and refused to pay the proceeds to plaintiff. The defendant pleaded the statute of limitations, the general issue and other pleas. Judgment went for plaintiff, and defendant appeals, and claims: 1st. that the evidence does not show he received the notes or the money; and, 2d, under the law he is not liable to plaintiff. BREESE, J., says, after discussing the evidence: "There is abundant testimony going to show that appellant did receive the notes, and that he had agreed to pay out of them appellee's claim; but he alleged as an excuse for non-performance that he had sent the notes to G. This is the main point in the case. Was appellant justified in returning these notes to G without notice to appellee? We think not. Appellant held these notes in trust for appellee, and had no right to turn them over to G. While it is true that the mere promise of appellant to do an act for the benefit of appellee, without any consideration moving from appellee to him would be nudum pactum, yet, after the promise entering upon its performance, there arises an obligation on the part of the promissor to execute the trust faithfully, and an action lies for the failure to do so. The views expressed by this court in Prather v. Vineyard, 4 Gilm, 40, are quite applicable to this case, and that is a case very like this in its main features. It has often been held by this court that a person may make himself trustee for another and be liable to an action by such third party. 17 Ill. 505; 19 Ill. 89: 21 Ill. 194. This being a trust, the statute of limitations can not be set up as a defense. 58 Ill. 186. Affirmed.-Walden v. Karr.