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that of creditor and debtor. The agreement of December 16, 1873, in connection with the power of attorney, was simply a method of securing the defendant, as a creditor of the company, for past and future advances, and to insure the delivery of the ore which he had bought and paid for. The irrevocable character of the appointment of J. N. H. Patrick as manager, with the power given to the defendant to suspend and remove him, and to appoint another manager in his place, on consultation with the board of directors of the company, was an incident of the security to the defendant, and a means of having the operation of the mine continued until the debt to him should be discharged. Any new manager to be appointed was to have the rights, powers, and authority delegated to J. N. H. Patrick under the agreement, and none others. The agreement did not in any manner make the defendant a partner with the company, or with J. N. H. Patrick, or make J. N. H. Patrick the agent of the defendant in managing the mine, so as to make the defendant responsible for any contract entered into by J. N. H. Patrick. The company continued to be the owner of the mine, operating it through J. N. H. Patrick, as its manager, agent, and attorney, and responsible for his contracts as such. Cox v. Hickman, 8 H. L. Cas. 268; Mollwo v. Court of Wards, L. R., 4 P. C. 419; Cassidy v. Hall, 97 N. Y. 159. May 23, 1887. Davis v. Patrick. Opinion by Blatchford, J.

NOVELTY

DRIVEN WELLS

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PATENTS PROCESS — ANTICIPATION BY PUBLICATION.—(1) Prior to the "driven well" (letters patent No. 73,425, of January 14, 1868, and reissued No. 4,372, of May 9, 1871, to Nelson W. Green), the wells then in use, whether dug or bored, were subject, except in the case of the flowing artesian, to become dry for a time upon constant use. This was caused by the fact that gravity was the only means of supply. When the water at the bottom of the well was drawn out faster than gravity forced it in, no more could be got until that force brought it in throught the surrounding earth. The earth forming the core having been removed, the "pit" was not air-tight, and the pressure of the atmosphere upon the water in the "pit," and on the sides of it, counterbalanced the same pressure on the water in the earth around it. The "driven well," being made by puncture, compacted this core, which the others removed, around the driven tube, and then closed the tube at the top by the valve of a pump, thus making the entire tube air-tight, except at that part of it where it stood in the water-bearing stratum, where it was supplied with openings of a proper size, covered with screens. The effect of this was that the pressure of the air on the water in the surrounding earth, not being counterbalanced by a similar pressure in the "pit," was added to the force of gravity in producing the supply, and that the supply was practically inexhaustible. Held, that the process was novel and valuable, a new application of a power of nature being made by which a new and useful result was attained. (2) It is further contended that the driven-well patent is anticipated by having been previously described in numerous printed publications. The rule governing defenses alleging the invalidity of the patent by reason of prior printed publications was stated by Mr. Justice Clifford in Seymour v. Osborne, 11 Wall. 516, 555, in this language: "Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, though of prior date, unless the description and drawings contain and exhibit a substantial representation of the patented improvement, in such full, clear, and exact terms to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention to the same practical extent as they would be enabled to do if

the information was derived from a prior patent. Mere vague and general representations will not support such a defense, as the knowledge supposed to be derived from the publication must be sufficient to enable those skilled in the art or science to understand the nature and operation of the invention, and to carry it into practical use. Whatever may be the particular circumstances under which the publication takes place, the account published, to be of any effect to support such a defense, must be an account of a complete and operative invention, capable of being put into practical operation." The same rule was repeated by Mr. Justice Strong in the opinion of the court in Cohn v United States Corset Co., 93 U. S. 366, 370, as follows: "It must be admitted that, unless the earlier printed and published description does exhibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent, or to make it, or repeat the process claimed, it is insufficient to invalidate the patent." This rule was affirmed in Downton v. Yeager Milling Co., 108 U. S. 466, 471. The application of this rule to the publications relied upon in the present case shows that none of them can properly be said to anticipate the invention of the driven-well. May 23, 1887. The Driven-Well Cases. Opinion by Matthews, J. Bradley, Field, and Gray, JJ., dissenting.

CUSTOMS DUTIES

TREATIES MOST FAVOREDNATION CLAUSE. The treaty with the king of the Hawaiian Islands, by which the United States, in consideration of the king of Hawaii allowing the importation of certain articles into the Hawaiian Islands free of duty, and as an equivalent therefor" agreed to allow the importation of certain products into the United States free of duty, does not bind the United States, under the provisions in the treaty with the king of Denmark of April 26, 1826, as renewed on January 12, 1858, "not to grant any particular favor to other nations in respect to commerce and navigation which shall not immediately become common to the other party," and that "no higher or other duties," shall be charged by the United States on the importation of a Danish product "than are or shall be payable on the like articles being the product or manufacture of any other foreign country," to extend to Denmark, without compensation, the privileges which have been conceded to the Hawaiian Islands in exchange for valuable concessions. They were pledges of the two contracting parties, the United States and the king of Denmark, to each other, that in the imposition of duties on goods imported into one of the countries which were the produce or manufacture of the other, there should be no discrimination against them in favor of goods of like character imported from any other country. They imposed an obligation upon both countries to avoid hostile legislation in that respect. But they were not intended to interfere with special arrangements with other countries founded upon a concesion of special privileges. The stipulations were mutual, for reciprocal advantages. "No higher or other duties were to be imposed by either upon the goods specified; but if any particular favor should be granted by either to other countries in respect to com merce or navigation, the concession was to become common to the other party upon like consideration, that is, it was to be enjoyed freely if the concession were freely made, or on allowing the same compensation if the concession were conditional. The treaty with the Hawaiian Islands makes no provision for the imposition of any duties on goods, the produce or manufacture of that country, imported into the United States. It stipulates for the exemption from duty of certain goods thus imported, in consideration

of and as an equivalent for certain reciprocal concessions on the part of the Hawaiian Islands to the United States. There is in such exemption no violation of the stipulations in the treaty with Denmark, and if the exemption is deemed a "particular favor," in respect of commerce and navigation, within the first article of that treaty, it can only be claimed by Denmark upon like compensation to the United States. It does not appear that Denmark has ever objected to the imposition of duties upon goods from her dominions imported into the United States, because of the exemption from duty of similar goods imported from the Hawaiian Islands, such exemption being in consideration of reciprocal concessions, which she has never proposed to make. May 23, 1887. Bartram v. Robertson. Opinion by Field, J.

ABSTRACTS OF VARIOUS RECENT

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DECISIONS.

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CORPORATION ACTION BY REFUSAL OF DIRECTORS TO BRING.- Where a cause of action accrues to a corporation, the general rule is that suit must be brought in the name of the corporation, and not by the stockholders. And in all those cases where, on account of the wrongful refusal of the directors or officers managing the affairs of the corporation to sue, the stockholders are allowed to do so, the recusant directors or officers must be made defendants, and the action is to be considered as primarily against them. Mr. Pomeroy, in his work on Equity Jurisprudence, § 1095, states the rule as follows: "Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others for wrongful dealing with the corporate property, or wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and the corporation, either actually or virtually, refuses to institute or prosecute such a suit, then in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders." These principles of equity jurisprudence have been well considered and applied in a number of adjudicated cases. The following are some of them: Brewer v. Boston Theater, 104 Mass. 399; Peabody v. Flint, 6 Allen, 52; Robinson v. Smith, 3 Paige, 222; Pond v. Railroad Co., 12 Blatchf. 280; Detroit v. Deau, 106 U. S. 537; 1 Sup. Ct. Rep. 560; Hawes v. Oakland, 104 U. S. 450. The relief awarded is often of a preventive character, and in many cases the officers have been required to account for a breach of the trust reposed in them, and for the misapplication of the funds and property of the company. If the other parties have participated with the officers in such proceedings, they may be joined as defendants, and held to their just responsibility; and property of the company may be followed into their hands. Peabody v. Flint, supra; Russell v. Wakefield Water-Works Co., L. R., 20 Eq. 474. But in all these cases the defaulting directors or officers were made defendants, and the suits were primarily against them. That the suit must be primarily against them is also the deduction to be made from the above extracts from the text-books. The relief, when awarded against other persons, flows incidentally from their complicity with the officers in the wrong complained of. No officers of the plaintiffs' corporation are parties to this suit. It is simply a suit against the debtor company only to collect a debt or damages due to the dispatch company, and we do not understand that a suit for such a purpose only comes within the exceptions of the general rule before stated. If these managing officers were sued for the abuse of the trust im

posed upon them as officers, they might possibly assign a good reason why the suit should not be brought, and why the affairs of the corporation should not be taken out of their hands. They are the proper persons to show, if they can, why the management of the affairs of the company should not be taken out of their hands, as must be done to sustain this suit. The case specially cited by the plaintiffs, as giving them a right to prosecute this suit, is that of Hawes v. Oakland, 104 U. S. 450. There a stockholder filed his bill against his company, the directors thereof, and the city. The complaint was that the city demanded, without compensation, water for certain municipal purposes, to which demand the company yielded, to the great loss of the company, the complainant and the other stockholders. The conclusion is there reached that in the State courts the right of a stockholder to sue, in cases where the corporation is the proper party to bring the suit, is limited to cases where the directors are guilty of a fraud or a breach of trust, or are proceeding ultra vires. The enumeration of the different cases there made in which such suit may be brought certainly does not include the one in hand. Mr. Justice Miller, who prepared that opinion, refers to Samuel v. Holladay, Woolw. 418, where after reviewing Dodge v Woolsey, 18 How. 331, he says: "But no case is cited, nor does any dictum in that opinion go to the length of asserting, that when a corporation has been injured by a tort or a breach of a contract, or has any right of action, legal or equitable, against a party, an individual stockholder cau come into court and prosecute the causes of action because the corporation fails or refuses to do so." These authorities are in entire accord with and in confirmation of the conclusion before stated. Mo. Sup. Ct., March 21, 1887. Slattery v. St. Louis & New Orleans Transp. Co. Opinion by Black, J. EVIDENCE-CUSTOM OF TRADE.-The plaintiffs were permitted to prove that according to the usual course of business, it was the usage of the packing-house of Henderson, Parks & Co. to retain certain portions of hogs packed by them, such as the bristles, feet, fat from the entrails, and other offal, as compensation for slaughtering and cleaning the hogs, and placing them upon the hooks to cool, and afterward cutting them up. Evidence was also given, over objection, tending to prove that the usage above mentioned was the com. mon usage prevalent in other similar packing-houses in the State of Indiana, and that the retention of the offal was but reasonable compensation. The plaintiffs also offered evidence tending to prove that the term "product," as applied to the pork-packing business, had a known meaning peculiar to the trade, and did not include such parts of slaughtered hogs as are mentioned above. Other evidence involving similar principles was admitted. It is to be observed that the contract out of which the controversy arose was oral, and the evidence was such as to leave the terms and meaning of the agreement ambiguous. In such cases evidence of the known and usual course of a particular trade or business is competent, with a view of raising a presumption that the transaction in question was according to the ordinary and usual course of the business to which it related. Lyon v. Lenon, 106 Ind. 567; S. C., 7 N. E. Rep. 311; Mand v. Trail, 92 Ind. 521; Wallace v. Morgan, 23 id. 399; Lonergan v. Stewart, 55 Ill. 44; Jonsson v. Thompson, 97 N. Y. 642. It is not essential that such a usage should be shown to be so ancient "that the memory of man runneth not to the contrary," nor that it should combine all the other elements of a common-law custom, as defined in the books. 1 Cooley Bl. 76, and note. The distinction between a usage of trade and a common-law custom has not always been observed. A custom is something which has by its universality and antiquity ac

quired the force and effect of law, in a particular place or country, in respect to the subject-matter to which it relates, and is ordinarily taken notice of without proof. Thus when a payee indorses his name on the back of a promissory note, the law, by force of a pervading and universal custom, imports a well-recognized contract into the transaction. Smythe v. Scott, 106 Ind. 245 Walls v. Bailey, 49 N. Y. 466; Hursh v. North, 40 Penn. St. 241; Munn v. Burch, 25 Ill. 41. Many other examples of such customs might be given. They are distinguishable from a usage such as concerns us here. Where a usage in a particular trade or business is known, uniform, reasonable and not contrary to law, or opposed to public policy, evidence of such usage may be considered in ascertaining the otherwise uncertain meaning of a contract, unless the proof of such usage contradicts the express terms of the agreement. This is so, even though the usage be that of a particular person, provided it be known to the parties concerned, or provided it has been so long continued, or has become so generally known or notorious in the place or neighborhood, as to justify the presumption that it must have been known to the parties.

Carter v. Philadelphia Coal Co., 77 Penn. St. 286; Townsend v. Whitby, 5 Har. (Del.) 55; McMasters v. Pennsylvania R. Co., 69 Penn. St. 374. Lawson Usages, 40. Parties who are engaged in a particular trade or business, or persons accustomed to deal with those engaged in particular business,

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ministrators of A. brought a suit to recover $3,000, less the indebtedness and premiums paid. It appeared that A. was considered by the company a good risk, and that the transaction between A. aud B. was ir perfect good faith. Held, that the disproportion between the actual indebtedness and the sum insured did not. under the circumstances, create a presumption that this was a wagering policy, nor in the absence of positive proof, that it was intended as a collateral security merely. We approach this question with caution, the more so that this court has not yet laid down a rule upon this subject. That we shall be compelled some day to do so is possible. We have said that the sum insured must not be disproportioned to the interest the holder of the policy has in the life insured. To take out a policy of $5,000 to secure a debt of $5 would be such a palpable wager that no court would hesitate to declare it so as a matter of law. Care must be taken also that a debt shall not be collusively contracted for the mere purpose of creating an insurable interest. Mr. Dickens, in his inimitable "Pickwick Papers," has shown how a debt may be created for the purpose of lodging the debtor in prison by collusion with the creditor. Speaking for myself, it may be that a policy taken out by a creditor on the life of his debtor ought to be limited to the amount of the debt, with interest, and the amount of premiums, with interest thereon, during the expectancy of life as shown by the Carlisle tables. This view however has never yet been adopted by this court in any adjudicated case; nor do we feel compelled to define the disproportion now, in view of the particular facts of the case in hand. We do not regard it as either immoral or wag

may be presumed to have knowledge of the uniform course of such business. Its usages may therefore in the absence of an agreement to the contrary, reasonably be supposed to have entered into and formed part of their contracts and understand-ering for Kline to attempt to secure the sums he had ings in relation to such business as ordinary incidents thereto. East Tennessee R. Co. v. Johnston, 75 Ala. 596; Mooney v. Howard Ins. Co., 138 Mass. 375; Florence, etc., Co. v. Daggett, 135 id. 582; Fitzsimmons v. Academy, etc., 81 Mo. 37; Cooper v. Kane, 19 Wend. 386; Kelton v. Taylor, 11 Lea, 264; 7 Cent. L. J. 383. Thus where it was the uniform usage of a firm to exceed a definite credit on the sale of goods, it was held competent, in order to avoid the statute of limitations to prove such usage, and that the purchaser knew it. Hursh v. North, supra. So in Walls v. Bailey, supra, it was held competent to show the usage of plasterers in a particular place, in order to determine the method of measuring plastering done under a contract which stipulated that a certain price per yard should be paid. See also Lowe v. Lehman, 15 Ohio St. 179; Hinton v. Locke, 5 Hill, 437; Barton v. McKelway, 22 N. J. L. 165: Ford v. Tirrell, 9 Gray, 401. In like manner it is competent to prove that the words in which a contract is expressed, as respects the particular trade or business to which it refers, are used in a peculiar sense, and different from their ordinary import. Jaqua v. Witham, etc., Co., 106 Ind. 545; Spartali v. Benecke, 10 C. B. 212. The evidence, the admission of which is complained of, was not admitted for the purpose of showing a custom in a technical sense, but to show the general course and usage of the business as it was conducted by Henderson, Parks & Co. and others, so as to authorize the presumption, in the absence of a special contract, that the transaction in question was according to the usual course of business to which it referred. Ind. Sup. Ct. Morningstar v. Cunningham. Opinion by Mitchell, J.

INSURANCE-LIFE-INSURARLE INTEREST-WAGERING POLICY.-A., being indebted to B., his brother-inlaw, in the sum of $743.56, insured his life for the benefit of the latter in the sum of $3,000, B. paying all the premiums. Upon A.'s death the company paid the amount of the insurance to B., against whom the ad

already fruitlessly paid in premiums onGrant's life, and if Grant had no objection thereto, and assisted him therein, I do not see that any one could object to this but the company. Again we have the declarations of Grant that he owed Kline a considerable sum of money-the precise amount not stated; that Kline had aided him in various ways; had never refused him a favor, etc. In view of their connection by marriage, and of their admitted relations, it is at least probable that Kline had aided him at many times and in various ways pecuniarily that are not represented by any evidences of debt. And if the sum insured was regarded by Grant as a reasonable amount to indemnify Kline, with what grace can Grant's administrator's come in aud allege that it was not? They have no possible equity. Grant never paid one dollar of the premium, and if they are allowed now to recover, it is not by virtue of any equity, but by force of an inexorable rule of public policy, which treats it as a wagering policy, and declares the policy-holder a trustee for the person insured as to the entire proceeds, save only the money actually loaned, with the premiums paid. Assuming then that Kline might, with Grant's consent and as against his administrators lawfully seek to indemnify himself for the premiums paid and lost, we have the sum of $743.56 as the amount which Kline was out of pocket. We do not know what Grant's expectation of life was when the policy was taken out, and there is nothing before us upon which we could base any reliable opinion. But it appears he was sixty-five years of age, and was an unusually good risk. While we do not know what the amount of the annual premium was, we do know that it must have been a considerable sum on $3,000 for a man of sixty-five years, and with the annual interest would roll up rapidly. That Grant died within a year is not to the purpose; he might have lived long enough for the debt and premiums and compound interest to have exceeded the amount of the policy. Surely in such case we cannot say as a matter of law

that the disproportion was so great as to make it a wagering policy. Tenn. Sup. Ct., April 11, 1887. Grant v. Kline. Opinion by Paxson, J.

ACCIDENT-DEATH BY ACT OF THIRD PERSON.

-U., a minor, who had enlisted, deserted from the army, and was shot by an under-sheriff, who attempted to arrest him. There was a conflict of evidence on the point as to whether the officer knew at the time of the shooting that the party shot was the deserter, and also as to whether the killing was in self-defense. Held, that if the officer did not know that the person he fired at was U., and did not intend to kill U., it could not be said as a matter of law that U. lost his life by the design of the officer, within the meaning of an accident policy insuring U., which provides that "the insurance should not extend to any case of death or personal injury unless the claimant establish by direct and positive proof that the death or injury was caused by external violence and accidental means, and was not the result of design either on the part of deceased or any other person," and that the case should be submitted to the jury. Where a person who is insured deserts from the army, and is shot by a sheriff who is attempting to arrest him, as alleged in self-defense, it cannot be held as matter of law that he was engaged in an unlawful act, within the meaning of a policy of accident insurance, providing that no claim shall be made "when the death or injury may have happened * * * while engaged in or in consequence of any unlawful act." If a person should draw a pistol in a crowded street, and deliberately fire the same, with the intent of killing some one, or with a reckless disregard of human life, and a person was killed or wounded, would such killing or wounding be an accident in the meaning of this policy or would it be by the design referred to therein? There would undoubtedly be a design to kill or wound some one, but no design to kill or wound the particular person injured. Suppose that for the purposes of plunder, persons arrange to throw a passenger train off a railroad track, knowing that such act is liable to kill or injure some one, but having no malice against any individual thereon, and the train is derailed, and the assured killed, can it be said that his death was not accidental, under this policy, but by the design of some person? The argument may be carried further. Suppose one fires a pistol in the air. He fires by design, but does not intend to kill any one. The shot strikes the assured and kills him. The act which causes the death-the shooting of the pistol-is designed, and therefore not accidental, but the killing is certainly accidental, and not designed. If the pistol is fired at one man, and hits another, is it any less accidental as far as the person hit is concerned, to the mind of the person who does the shooting? And if the shot is fired at the assured in the belief that he is another man, is not the character of the act the same? If one designedly roll a stone down a mountain side, with no intent to injure any one, and in its course it crush a man, it is an accident. If it were purposely rolled down to crush one man, and it is deflected from the course intended, and it kills another, is it not equally an accident? The design or purpose was not to kill the one injured, because it was intended to kill another, and not him. The criminal intent of the one putting the stone in motion may render him guilty, and responsible for the actual result; though not intended; yet the death of the person thus killed must be considered, so far as he is concerned, an accident, as his death was not intended by any one. It seems to me that the design intended by the terms of this policy must be the design that intended the actual result accomplished, and not the design of the act itself, which act resulted in the killing of one contrary to the design of the act. If when Berry fired his shot,

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he did not know the man he fired at was Utter, and did not intend to kill Utter, it cannot be said that Utter lost his life by the design of Berry. Nor can it be held as a matter of law, that Utter was engaged in an unlawful act, within the meaning of this policy. If he had been shot in the act of deserting, this claim might be made with some reason and propriety, but such was not the case here. Neither was he shot because he was a deserter, nor because he was in a house of ill fame. He was shot, if Berry is to be believed, because he did not throw up his hands when commanded to, and was in the act of drawing a pistol. He was killed, if Branagan is to be belived, without provocation, and in a wanton and murderous manner, as soon as his head appeared in the door. Whether he was doing any thing unlawful at the time of the shooting was also a question for the jury, to be determined by them under all the circumstances of the case. Mich. Sup. Ct., April 28, 1887. Utter v. Travellers' Ins. Co. Opinion by Morse, J.

LIBEL-DISPARAGEMENT OF PROPERTY.-The alleged libel was as follows: 'Probably never in the history of the Ancient and Honorable Artillery Company was a more unsatisfactory dinner given than that of Monday last. One would suppose, from the elaborate bill of fare, that a sumptuous dinner would be furnished by the caterer, Dooling: but instead a wretched dinner was served, and in such a way that even hungry barbarians might justly object. The cigars were simply vile, and the wines not much better." The question is whether the language used imports any personal reflection upon the plaintiff in the conduct of his business, or whether it was merely in disparagement of the dinner which he provided. Words relating merely to the quality of articles made, provided, furnished, or sold by a person, though false and malicious, are not actionable without special damage. For example, the condemnation of books, paintings and other works of art, music, architecture, and generally of the product of one's labor, skill or genius, may be unsparing, but it is not actionable without the averment and proof of special damage, unless it goes further and attacks the individnal. Gott v. Pulsifer, 122 Mass. 235; Swan v. Tappan, 5 Cush. 104; Tobias v. Harland, 4 Wend. 537; Western Counties Manure Co. v. Lawes Chem. Manure Co., L. R., 9 Exch. 218; Young v. Macrae, 3 B. & S. 264; Ingraham v. Lawson, 6 Bing. N. C. 212. Disparagement of property may involve an imputation on personal character or conduct, and the question may be nice, in a particular case, whether or not the words extend so far as to be libellous as in Bignell v. Bazzard, 3 H. & N. 217. The old case of Fenn v. Dixe, W. Jones, 444, is much in point. The plaintiff there was a brewer, and the defendant spoke of his beer in terms of quite as strong disparagement as those used by the present defendants in respect to the plaintiff's dinner, wine and cigars, but the action failed for want of proof of special damage. In Evans v. Harlow, 5 Q, B. 631, Lord Denman, C. J., said: "A tradesman offering goods for sale exposes himself to observations of this kind, and it is not by averring them to be false, scandalous, malicious and defamatory that the plaintiff can found a charge of libel upon them." In the present case there was no libel on the plaintiff in the way of his business. Though the language used was somewhat strong, it amounts only to a condemnation of the dinner and its accompaniments. No lack of good faith, no violation of agreement, no promise that the dinner should be of a particular quality, no habit of providing diuners which the plaintiff knew to be bad, is charged, nor even an excess of price beyond what the dinner was worth, but the charge was in effect, simply that the plaintiff, being a caterer, on a single occasion provided a very poor dinner, vile cigars and bad wine.

Such a charge is not actionable without proof of a special damage. Mass. Sup. Jud. Ct., March 23, 1887. Dooling v. Budget Publishing Co. Opinion by C. Allen, J.

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MARRIAGE-ORAL ANTENUPTIAL CONTRACT-STATUTE OF FRAUDS.- In the absence of fraud affecting the equities between the parties, the reduction to writing, after marriage, of a verbal antenuptial contract, will not take it out of the Illinois statute of frauds, which provides that "no action shall be brought * * to charge any person upon any agreement made upon consideration of marriage, * * * unless the promise or agreement shall be in writing." The signing of the written instrument after the marriage can be regarded, at the very furthest, as nothing more than a mere acknowledgment in writing of the terms of the previous verbal agreement, and this certainly does not meet the requirements of the statute, for the simple reason the statute requires the contract itself to be in writing. The case is unlike that of an express trust, which is only required to be "manifested and proved" by some writing. Doubtless a verbal antenuptial agreement might, under special circumstances, be enforced in equity in order to prevent the party invoking the statute from perpetrating a fraud upon the other party. Thus if, in this case, Mrs. McAnulty, had by some artifice, trick, or device, prevented the contract from being reduced to writing, and had received any substantial benefits from it, so that it would have operated as a fraud upon the testator, we have no doubt of the power of a court of equity in such case to afford the proper relief, notwithstanding the statute, on the general principle that the statute is never to be so expounded as to make it a mere instrument in consummating a fraud upon the party against whom it is invoked. Eldredge v. Jenkins, 3 Story, 181; 2 Pom. Eq. § 921. That marriage is not sufficient to take such an agreement out of the statute is clearly established by an unbroken current of authority. Crane v. Gough, 4 Md. 316; Henry v. Henry, 27 Ohio St. 121; Flenner v. Flenner, 29 Ind. 564; Brown v. Conger, 8 Hun, 625; Finch v. Finch, 10 Ohio St. 507; Hackney v. Hackney, 8 Humph. 452; Wood v. Savage, 2 Doug. 316: Lloyd v. Fulton, 91 U. S. 479. Ill. Sup. Ct., March 23, 1887. McAnulty v. McAnulty. Opinion by Mulkey, J.

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NEGLIGENCE OF VICE

MASTER AND SERVANT PRINCIPAL- CONTRIBUTORY NEGLIGENCE. A railroad section master, duly authorized to hire, direct, and discharge the hands of his section, suddenly ordered a new section hand, in the course of his employment, to jump from a swiftly moving train. Held, in an action by the section hand to recover for the injuries thereby sustained, that the railroad was liable. It seems that the command was given, and promptly obeyed, without hesitation. It was rash, negligent, unreasonable, and unwarranted; but the danger to be encountered in obeying it was not so manifest and so great as under the circumstances to render a prompt obedience to it contributory negligence on the part of the appellant. An ordinary laborer on railroads, one of ordinary experience, might make such a leap without injury. He might not unreasonably believe that he could, taking proper care, and especially so when commanded to do so by a railroad employee of long experience, who had the right to command him in the course of his duty. While to jump from a rapidly moving train of cars is very hazardous, and ordinarily to do so is negligence, it is not contributory negligence, where the plaintiff, a laborer on the railroad, is suddenly commanded by his employer or his agent to do so in the course of his employment, and the command is at once obeyed from a sense of duty, and without waiting to think of and consider the hazard. Such a

case is exceptional. The agent of the employer suddenly commands the laborer to do an extra hazardous act in the course of his duty, (one that may, though not probably, be safely done by observing due care), one that must be done at once, if done at all. The laborer obeys the command promptly, moved only by a faithful sense of duty, and as a consequence suffers serious injury. In that case the injured party does not, in legal contemplation, contribute to his own injury. The facts and circumstances were such as that he might suddenly, not unreasonably, believe that the command was a proper one that he ought to obey. Although the act was hazardous, it was not essentially dangerous. It was done suddenly, and in obedience to the command of one who had the right to direct the laborer in the course of his duty. The latter had but a moment to think of duty, a moment to think of danger. The law attributes the injury in such case to the negligence of the employer. His agent gave the unwarranted, negligent command. The injured party simply obeyed, and was not negligent, because under the circumstances, he might obey. It would be unreasonable and unjust to allow the employer to have immunity from civil liability for his own negligence, or that of his agent, thus resulting in injury to a faithful servant. We therefore think the court erred in deciding that the appellant could not recover because of his contributory negligence. N. C. Sup. Ct., April 11, 1887. Patton v. Western North Carolina R. Co. Opinion by Merrimon, J.

NUISANCE-SOOT FROM SMOKE-STACK-ABATEMENT. - It appeared that the issuing of soot from defendant's smoke-stack was a nuisance of a most disagreeable character to plaintiff and his family. It was not shown but that the smoke-stack might have been easily used in such a way that soot would not have issued therefrom. Held, that this was not one of the inconveniences necessarily flowing from a concentration of population, which one impliedly consents to by living in a city, and that it was properly prohibited. The defendant's counsel makes a very strenuous argument, that in effect the verdict, judgment, and findings, as he claims, most improperly pronounced the smoke-stack of the defendant to be a nuisance. The language of the decree or judgment upon that subject is as follows: "It is adjudged and decreed that said defendant is perpetually enjoined from allowing soot to issue from the smoke-stack on the premises," etc. The findings show that the issuing of this soot from the smoke-stack above mentioned was a nuisance of a most disagreeable character to the plaintiff and his family. We are not informed from the record but that this smoke-stack might have been used in such a way, both readily and easily, as that soot would not have issued therefrom. But be that as it may, it is said by this court in the case of Tuebner v. California St. R. Co., 66 Cal. 174: "The keeping of a hotel or restaurant is a lawful and very necessary business, * ** yet it could not be held that a person carrying on such business, or any requiring a large consumption of fuel, could erect his chimney to a height that would discharge the smoke and soot into his neighbor's windows. It is true, as argued by appellant, that persons preferring to live in the city rather than in the country must accept many inconveniences, probably all that flow naturally and necessarily from the concentration of populations; but that doctrine should not be carried too far. The law looks to a medium course to be pursued by each for the mutual benefit of all." Tested by this rule, we do not see why the plaintiff should not be restrained from so using his smoke-stack as that the soot issuing therefrom shall be prevented from being a disturbance, annoyance, and source of positive injury to the defend

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