bor's property; but it was not in the line of their employment and was no more their duty to extinguish the fire than that of any other person who saw it. Railroad v. Shepley, 39 Md. 251. To illustrate: If a fire should originate on A's premises through no fault of his, and should extend to B's and consume his property, A, if not liable for the occurrence of the fire, would not be liable on the ground that carpenters, whom he had employed in repairing or building on his premises, or laboring men whom he had employed to dig a ditch through his farm, had neglected to extinguish it. If not liable for the origin of the fire, he can not be so held on account of the neglect of a social duty by persons in his employment, in a business not connected with the origin of the fire, or imposing any duty to extinguish it in addition to that which every citizen owes to society. Inasmuch, however, as the plaintiff does not seem to rely upon that ground for a recovery, we shall not now give it any further attention.

Judgment reversed and cause remanded. NAPTON and NORTON, JJ. concur. HOUGH, J., and SHERWOOD, C. J., concur in the result.

NOTE.-1. The decision of the court in this case, as contained in the first paragraph of the syllabus, is sustained by all the authorities and is manifestly correct. See Smith v. London, etc. R. Co., L. R. 6 C. P. 14; Burke v. Nashville, etc. R. Co. 7 Heisk. 451; Pennsylvania R. Co. v. Stranahan, 79 Pa. St. 405. The evidence in this case was not direct; it did not show that any one saw the fire communicated by the locomotive to the plaintiff's premises, but it raised the only inference possible on the facts, and was ample to sustain the verdict. In the infancy of litigation of this character, it was contended that such proof ought not to be received; that if upon the discovery of a fire near a railroad track, the engines of the company were to be taken to be the cause of it, without any more evidence than the fact that one of them had at some time previously passed within a short distance of the scene of the calamity, the company might frequently be mulcted in damages which, if the truth were known, were caused by a spark from the pipe of a passing pedestrian, or by the discarded cigar of a careless passenger. But it was answered that while the latter contingencies were possible, the former was more probable, and afforded a presumption sufficiently strong to support a verdict finding the railroad company to be the delinquent and entitled to reimburse the sufferers.

2. As a proposition of law, the instruction stated in the second paragraph of the syllabus is also correct. It is not alone in the construction and management of its engines that a railroad corporation is required to use care to prevent damage by fire. It is likewise its duty to see that its right of way is not in such a condition as to increase the chances of danger. The legislature, in chartering such corporations, no more intended that they should run their engines on premises surrounded and covered with combustible material, than they did that they should use locomotives without spark-arresters or other safe-guards. The ignition of combustible material lying on the track of a railroad by sparks dropped by a passing engine, is not an unavoidable accident. The removal of the combustible matter from the road is an obvious and sure protection." Flynn v. San Francisco, etc. R. Co., 40 Cal. 14. The court in the principal case did not find fault with the law as laid down by the trial judge in the abstract, but

were simply unable to sustain the giving of such an instruction in the absence of any averment in the petition, or any evidence on the trial, of any such omission on the part of the defendant. The matter was therefore only one of pleading and evidence, and had the allegation and proof not been wanting, the instruction would have been sustained by the court as in accord with the great weight of authority. Kellogg v. Chicago, etc. R. Co. 26 Wis. 223; Toledo, etc. R. Co. v. Wand, 48 Ind. 476; Burlington, etc. R. Co. v. Westover, 4 Neb. 268; Henry v. Southern, Pacific R. Co., 50 Cal. 176; Pittsburgh, etc. R. Co. v. Nelson, 57 Ind. 150; Salmon v. Delaware, etc. R. Co., 38 N. J. (Law) 5; s. c. 39 N. J. (Law) 299; Smith v. London, etc. R. Co., L. R. 5 C. P. 98; s. c., L. R. 6 C. P. 14; Troxler v. Richmond, etc. R. Co., 74 N. C. 377; Flynn v. San Francisco, etc. R. Co., 40 Cal. 14, and see Illinois Cent. R. Co. v. Mills, 42 Ill. 407; Ohio, etc. R. Co. v. Shanefelt, 47 Ill. 497; Illinois Cent. R. Co. v. Frazier, 47 Ill. 505; Bass v. Chicago, etc. R. Co., 28 Ill. 9; Rockford, etc. R. Co. v. Rogers, 62 Ill. 346; Kansas Pac. R. Co.v. Butts, 7 Kas. 308.

3. But as regards the law as laid down by the learned court in the principal case, and as stated in the third paragraph of the syllabus, we can not refrain from entering our strongest dissent, and protesting against such a rule being established in our law. The opinion of the judge who apparently speaks on this question for the whole court, is entirely without the support of authority, is wanting in reason, and is opposed to the plainest principles of public policy. Although the point was not necessary to the disposal of the case, the court decide it as explicitly as they could have done had the case depended upon it; although the overruling of a previous decision and the establishment of a contrary rule certainly required some examination, the opinion bears upon its face the stamp of haste and want of consideration-for the only argument it offers is not applicable to public corporations, and the only authority it cites decided nothing of the kind.

The duty of a railroad company to prevent, by every means in its power, loss to adjacent proprietors, through the running of its engines, is more than a "social duty"-it is a legal one. The illustration which the learned judge gives is not apposite. It need not be argued, nor need we cite authorities to show, that the duties and responsibilities of corporations holding franchises and privileges granted by the State are greater than those of private individuals. A private person running a locomotive through the streets of a city or the roads of the country, would be obliged to restrain the fire at all hazards, while a railroad company, being given by the State a license to use a dangerous agency, is liable only for negligence, not for accidents. But in consideration of this privilege something is required of it; it must use care and diligence in preventing damage. Its engines must be properly constructed; they must be kept in good order; the best appliances for preventing the escape of sparks must be used; its engineers must be competent and careful, its servants must be active and vigilant. Its duty is to prevent damage to property of others through the agency which it is permitted to use. This it must do through its agents and servants. This being so whether the fire is in the furnace or on its track, as in the principal case, the duty is the same to keep it from the property of others if possible; and in the one case as in the other, if its servants have notice that the fire is likely to spread and are able to prevent it and do not, the failure to act is negligence, which will render the company liable for the loss. What is exactly within the line of their employment' is not very material in such cases; for the "disposition of the courts,'' says Judge Redfield, "has been to give such agents and servants a large and liberal

discretion, and to hold the companies liable for all their acts within the most extensive range of their corporate powers." 1 Redfield on Railways, § 130.

As we have already said, the case of Baltimore, etc. R. Co. v. Shepley, 39 Md. 253, cited by the court in the principal case, and the only one, does not sustain their conclusion at all. There the question considered by the Court of Appeals of Maryland was whether, in such an action as this, it was competent for the plaintiff to prove that none of the hands or employees of the defendant were present aiding and assisting in putting out the fire, the plaintiff stating at the time that he proposed to follow it by proving that a gang of ten or twelve men, employed for the purpose of repairs, on the section of the road where the fire occurred, were absent not on business of the company. This evidence was offered to prove negligence on the part of the company through its agents and servants--to show that these employees by thus negligently leaving their work were unable to render such assistance to the plaintiff as might have extinguished the fire, and was founded on the theory that one of the duties of the section hands of the company was to guard adjacent property from damage by fire from passing locomotives. The court held the evidence incompetent, Robinson, J., saying: "A company is not obliged to keep men stationed along the line of its road, either to guard against or to extinguish fires which may happen. With trains passing almost at every hour on many roads, and with a rapidity unknown to any other power, it would be utterly impracticable to keep men stationed at every point where a fire may occur. To impose such a duty would not only be unreasonable in itself, but it would in fact make railroad companies insurers against loss by fire of all the property along the line of their roads. The proof thus offered was calculated to mislead the jury by leaving them to infer that the absence of the hands for the purpose of repairs on the section of the road where the fire occurred, and the failure on their part to assist in extinguishing the same, was evidence of negligence on the part of the defendant." What the Maryland court did decide in this case was that the company was not bound to provide a police to watch the track and to extinguish fires which might be caused by passing engines, a proposition certainly correct. Indianapolis, etc. R. Co. v. Paramore, 31 Ind. 143. But this was very different from saying that the servants of the company being present and having notice of the fire were not bound to render assistance, and that for their failure the company would not be liable.

This is a case of the destruction of property, but the illustration given by the learned court would apply equally to a loss of life arising from the indifference of another. Suppose A's house were situated near a river, and his servants-his carpenters and laboring men, as in Judge Henry's illustration-should observe B struggling in the water and refuse to assist him, or after he had reached the bank they should cast him into the road and leave him there, whereby he died, A would of course not be liable for their acts either criminally or civilly. But the acts of the servants of a railroad corporation under somewhat similar circumstances were regarded in a different light in a Maryland case, There the locomotive of the defendant ran upon and seriously injured one Price, a trespasser on the track. He was taken up by two of the employees of the company and carried to an empty warehouse, where he was locked up and left without medical assistance. In the morning, when the warehouse was opened, life was extinct, but it was found that he had crawled about during the night and had bled to death for lack of attendance. In an action for damages, the jury were instructed that although the company was

not responsible for running over Price, yet if hi death was subsequently caused by the negligence of the defendant or its agents acting in the course of their employment, it was responsible, It was argued in the Court of Appeals that the instruction was wrong; that towards passengers, the company might be under an obligation to perform the ordinary duties of humanity but not toward strangers, and that it was no part of the duties of the conductor and telegraph operator (the persons who placed Price in the warehouse) to take care of persons requiring assistance along the line of the road. But the court said: "This we think free from doubt or difficulty. *To contend that the agents were not acting in the course of their employment in so removing and disposing of the party, is to contend that the duty of defendant extended no further than to have cast off by the way-side, the helpless and apparently dead man, without taking care to ascertain whether he was dead or alive, whether his life could be saved by reasonable assistance timely rendered. For such a rule of restricted responsibility, no authority has been produced and, we apprehend, none can be found." Northern Cent. R. Co. v. State, 29 Md. 420.

Fortunately, however, there is authority in the books directly in point and entirely opposed to the inconsiderate and impolitic rule laid down in the principal case. In Rolke v. Chicago, etc. R. Co., 26 Wis. 537, this question was the only one considered. The engine of a gravel train on which were a number of employees of the defendant destroyed the plaintiff's property. The latter asked an instruction that if the servants of the company knew of the existence of the fire, they were bound to use diligence in extinguishing it, and that if, knowing that the fire had been communicated to his property, they used no efforts to extinguish it, but went away and left it burning, such conduct on their part was evidence of negligence and should be taken into consideration in determining the question whether the train was managed with care with regard to fire. There was a verdict for the defendant which was reversed on appeal. Cole J., who delivered the opinion of the court said: "We think this instruction should have been given. It appears that the train in question was a gravel train, engaged in the repair of the road bed and had about twenty eight men on the train. And even if it had been prudent and necessary for the train itself to move off to the proper station as soon as it was unloaded, in order to avoid collision with other trains, what difficulty was there in leaving behind a sufficient number of men to put out the fire? It was a dry time in the summer, when a fire kindled upon the track of the road would very likely spread to the adjoi ning premises. Men of ordinary care would, under such circumstances, use proper diligence to prevent the fire from communicating to the property of others. And if, according to the hypothesis upon which the instruction is framed, the employees of the company knew that a fire had been kindled on the track by means of the locomotive, they were certainly bound to use ordinary care and diligence to extinguish it; and if they uesd no efforts whatever to extinguish it, but went away and left it burning, such conduct, we think, would amount to gross negligence. These remarks are made with reference to the character and condition of the train in question. It was a gravel train, and there could be no difficulty, even if the train moved off, in leaving behind a portion of the men to look after the fire. In the case of an ordinary freight or passenger train, even if the employees know that the locomotive had kindled a fire upon the track, yet it might not be possible to stop the train and put it out, or leave behind any one for the purpose. The safety of the train and passengers would be a matter

of first importance, and negligence could not necessarily be imputed if the servants left the fire burning without using any efforts to extinguish it. But the instruction, when applied to the facts of this case, raises quite a different question; and that is whether, when a fire has been set by a gravel train which has a large number of men on the train who know about the fire, they can all go away leaving the fire to spread and destroy the property of others without being guilty of negligence. If the jury

found from the evidence that the supposed facts were established, we have no doubt the company would be liable for the loss occasioned by the fire." In Bass v. Chicago etc. R. Co., 28 Ill. 9, amongst other allegations in the plaintiff's petition for damages caused by the defendant's engines, the failure of the servants of the latter to assist in extinguishing the fire was set out and a demurrer thereto filed. "The plea," said Breese, J., "set up by the defendant for the refusal is so absurd as to be unworthy of notice, any further than to stamp it as unworthy of civilized and Christian men. They had no right, forsooth, to enter upon the premises for such a purpose! Has it come to this, that citizens of this community are not permitted to enter the premises of another, whose house or barn is on fire, to extinguish the flames? Is any license necessary for a purpose so benevolent? Would not savages, prompted by their own instincts, rush to the rescue of property so endangered? It is sad and humilitating to contemplate the fact that employees of a railroad company, acting under a charter granted by this State, should be so lost to all calls of benevolence and kindness-to all the common instincts of the most ordinary humanity-as to refuse to aid in extinguishing a fire which their own employers, by their negligence, had originated; which threatened the destruction of valuable property, and which they had power to prevent. We are shocked at the exhibition of such heartless, such criminal indifference, and can find no apology for it." The language of Breese, J., was cited with approval in the Wisconsin case, ante, and will certainly commend itself as better policy, better justice and better law than that promulgated in the principal case, even though we may not be prepared to go to the extent of Chief Justice Best in the celebrated Spring Gun Case. "It has been argued," said he, that the law does not compel every line of conduct which humanity or religion may require; but there is no act which Christianity forbids that the law will not reach." Holbrook, 4 Bing. 641.

66

Bird v.

ABSTRACTS OF RECENT DECISIONS.

Bail. § 442. Supreme Court of Texas. Opinion by MOORE, C. J.-Ladd v. Southern Cotton Press Co. CORPORATIONS-TRANSFER OF SHARES-LIABILITY OF COMPANY FOR WRONGFUL ISSUE OF CERTIFICATE.-1. The by-laws of a corporation provided that a transfer of its stock should be made in writing, and that upon the presentation of such transfer with the certificate to the secretary, a new certificate should be issued to the assignee, and the certificates of stock contained a provision to the like effect. B, the owner of stock, transferred the same with the certificate to F, from whom plaintiff received a transfer with the certificate for value. B subsequently transferred the stock for value to M, but without the certificate. The corporation issued a new certificate of the stock to M. Held, that the corporation was liable to plaintiff for the value of the stock, even though the record in the books of the company showed title to the stock in M at the time plaintiff purchased the certificate. 2. The records of the corporation were not constructive notice to persons dealing in its stock. Supreme Court of Texas. Opinion by BONNER, J.-Strange v. Houston, etc. R. Co. 22 Alb, L. J. 153.

INJUNCTION-PUBLICATION INJURIOUS TO TRADE. -Defendant, who had letters patent for a "carpet exhibitor," issued circulars setting forth that plaintiffs, who also held letters patent for a carpet exhibitor, "'or other irresponsible parties,'' professed to have "a new carpet exhibitor, intending to make considerable profit before legal proceedings put a stop to their nefarious efforts," and that plaintiffs had no right "to make, sell or lease any carpet exhibitors,'' and threatening legal proceedings against any one "purchasing, leasing or using sucb exhibitor." It appeared that no suit for infringement of patent had been commenced, and it did not appear that defendant intended to commence any. Held, that a State court had jurisdiction to enjoin defendant from issuing the circulars, and that there was sufficient shown to authorize an injunction. Supreme Court of New York. Opinion by POTTER, J.-Croft v. Richardson. 22 Alb. L. J. 152.

LOTTERY GRANTS MUST BE STRICTLY CONSTRUED -LIABILITY OF SURETIES.--Where a statute authorizes a city council to devise a lottery scheme, and sell such scheme, and the city devises a scheme on the ternary plan, no lottery can be conducted under such grant in any other way whatever, and the sureties of the proprietor of such lottery can not be held liable for tickets sold by him in a single number lottery. Affirmed. Court of Appeals of Kentucky. Opinion PER CURIAM.-Meredith v. Barron.

NOTES OF RECENT DECISIONS.

PUBLIC EMPLOYMENT-WAREHOUSING AND COMPRESSING COTTON NOT A.-A business privati juris can not be declared by the courts publici juris, and this principle is not affected by the circumstance that it is carried on by a corporation. The business of warehousing and compressing cotton is privati juris. It will not, in the absence of legislation, become publici juris by reason of its extent. The business is free to every one who wishes to engage in it. No grant or franchise need be obtained from the State to authorize those desiring to do so to embark in this character of business. It is not one of the employments which the common law declares public. Coggs v. Barnard, 2 Ld. Raym, 99; 2 Parsons on Cont. 139; Story on

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS. July, 1880.

CON

WRIT OF ENTRY-MISNOMER-RECORDS STRUCTIVE NOTICE.-In a writ of entry dated June 2, 1877, submitted on an agreed statement of facts, to recover possession of certain real estate in Chelsea, in the County of Suffolk, the plaintiff claimed title under a sale to him by the sheriff of Suffolk County, made June 3, 1876, by virtue of a writ of execution issued upon a judgment recovered March 20, 1876, in the Superior Court for Suffolk County, in a suit by the plaintiff against Elizabeth B. Howarth, in which suit a general attachment was made December 21, 1874, of the real estate of said Elizabeth B. Howarth in Suffolk County. The sheriff's deed to the plaintiff was

dated June 3, 1876, and duly recorded the same day. The defendant, at the date of the plaintiff's writ in this action, was the owner of a mortgage upon the demanded premises, dated May 10, 1875, acknowledged May 17, 1875, and recorded August 9, 1875, by Charles 0. Manny and Elizabeth B. Manny, his wife, in her right; but no actual possession of said premises under said mortgage, or otherwise, had been taken by the defendant. Elizabeth B. Manny, whose former name was Elizabeth B. Howarth, was married to Charles O. Manny at some time prior to November 12. 1874, and the premises were conveyed to her, and deed recorded some years previous to her said marriage, when her name was Elizabeth B. Howarth. A conveyance of other real estate in Suffolk County was made and recorded in Suffolk registry of deeds November 14, 1874, by and in the name of Charles O. Manny and said Elizabeth B. Manny, his wife, in her right. The plaintiff did not kuow or hear of the marriage till after the entry of his writ in January, 1875, and knew her only by her maiden name. Upon the foregoing facts the superior court ordered judgment for the defendant, and upon appeal to this court it was held, 1. That as Elizabeth B. Manny did not plead the misnomer in the plaintiff's action against her, and as the action proceeded to judgment and execution, it was a waiver of the error, and the execution could properly be enforced against her and her property taken to satisfy it. Trull v. Howland, 10 Cush. 109; Fitzgerald v. Salentine, 10 Met. 436; Sanford v. Hodges, 11 Gray, 485; Langmaid v. Puffer, 7 Gray, 378. As against her the demandant's title is complete. 2. That proper precaution required the tenant to examine the records for attachments in suits against her before marriage in her maiden name, and for attachments against her in that name after as well as before her marriage. An attachment of these premises made before her marriage on a writ against her in the name of Elizabeth B. Howarth would not necessarily be recorded till after her marriage. The tenant thus took its mortgage subject to the attachment. 3. The fact that Elizabeth B. Manny made conveyance, after her marriage and before the attachment, of other real estate in the County of Suffolk standing in her maiden name, was not constructive notice to the demandant of her marriage. 4. The fact that the tenant was not in possession is not decisive. The pleadings put in issue only the demandant's title; and the case being submitted on an agreed statement of facts, it may be decided on its merits, and the only question open is whether the demandant can recover in any form of action. Esty v. Currier, 98 Mass. 500; West Roxbury v. Minot, 114 Mass. 546. Judgment for demandant. Opinion by ENDICOTT, J.-Cleaveland v. Boston Five Cents Savings Bank.

MECHANIC'S LIEN - CERTIFICATE

OWNERSHIP

OF PREMISES-DEED NOT DELIVERED.-In an action to enforce a mechanic's lien under Gen. Stats. ch. 150, by petition inserted in a writ dated May 2, 1877, it was agreed that the respondent began to build a house upon the premises upon which the lien was claimed, having agreed to purchase from the then owner and taken a bond for a deed in the usual form, and made the agreement alleged between him and the petitioner not long after. December 1, 1876, a deed was made to the respondent, but said deed was not delivered until the 18th of January following, when the respondent made a deed of mortgage to one King, and both deeds were delivered at the same time. There was evidence that in November, 1876, during the erection of the building, the respondent borrowed $150 of his daughter Emma, and afterwards borrowed of her a further sum of $250, and that he told her he would give her a deed when he got a deed and secure her on the

place." On February 10th, 1877, without her knowledge, he executed and caused to be recorded, before the respondent's certificate was ffled in the office of the town clerk, an absolute deed of the lot in question and of other real estate. Said deed remained in the registry until after the bringing of this suit, when it was taken away by respondent and placed in the hands of counsel. Said Emma was informed by her father that a deed had been made, but she never had possession of it, and there was no evidence that she ever had possession of the land described in it, or that she ever had any knowledge of its form and contents. The petitioner had knowledge of the making and record of this deed. The petition and certificate set forth that the respondent was the owner of the land. The court below found for the respondent and reported for the determination of this court the question whether upon the foregoing facts the petitioner was entitled to maintain his petition. Held, that the evidence warranted the finding, which the judge who presided at the trial must have made, that the deed to Emma was made for a valuable consideration; and that she assented to and accepted the deed in payment of the debt due her from the grantor; and that it follows that the petitioner has lost his lien, because he did not state in his certificate filed in the town clerk's office the name of the owner of the land, it being known to him. Opinion by SOULE, J.-Amidon v. Benjamin.

SUPREME COURT OF MISSOURI.
June 14, 1880.

NEGLIGENCE.-CONTRIBUTORY NEGLIGENCE-INJURY TO PASSENGER-LIABILITY FOR UNAUTHOR. IZED ACTS OF SERVANTS.-This was an action for personal injury to plaintiff's ward, who was a minor. Plaintiff's evidence tended to prove that the ward got on a freight train of defendant at Chillicothe, Mo., October 6th, 1875, without the knowledge or consent of his parents. That he rode on said car some ten miles, when he was discovered, being still in Livingston county, Missouri, by a brakeman on said train, and was told by the brakeman if he wanted to ride he must help brake, and was placed at a brake and instructed in the signals when to brake and signal the engineer; and when he got to Cameron he was told if he wanted to ride to St. Joe he must help coal up. That the brakeman permitted him to ride on said train and not in the caboose car attached to the train for the purpose of carrying passengers, till the train arrived at Cameron, a point forty miles west of Chillicothe. That at Cameron the boy, who was thirteen years and ten months old, and a bright capable boy of his age, was directed by said brakeman to assist in coaling up the engine, which he did. That when it was coaled up the brakeman told the boy to get on top of a certain freight car if he wanted to ride to St. Joseph, which he did; and while riding on top of said train, and about one mile from St. Joseph, and in Buchanan county, the brakeman, by signs, directed him to adjust some boards on a car, which boards were falling off. That while he was in the act of so adjusting said boards, one of them, striking on and against a post, hit and threw him off the train, which was then in rapid motion, and broke his leg, seriously injuring him for life. That the conductor of said train knew plaintiff was on the train at Cameron, and afterward to the time of the accident, but never spoke to him or gave him any directions in any way. Defendant's evidence tended to show that the conductor had exclusive control of the train and all persons

on it. That plaintiff never paid any fare. That he secreted himself when he got on the train. That no employee of defendant had authority from defendant to carry passengers unless they paid their fare, or to permit any person to ride on any part of the train except in the caboose attached to the train for the purpose of carrying passengers. That this train had a caboose attached. That all conductors and brakemen had been instructed never to carry any person without he paid his fare, and never to carry any person on a train other than in the caboose. That the brakeman had exclusive control of coaling up at Cameron, Mo., Held, on these facts: 1. The boy may be regarded as a passenger, at the time he was injured. The train being one on which passengers were allowed to be carried, although he boarded it without the knowledge or permission of the conductor, yet, as the conductor, after he became aware of his presence, suffered him to remain, he was entitled to the same protection, as if he had paid his fare. Wilton v. Middlesex R. R., 107 Mass. 108. 2. The boy was not injured simply by reason of his being carried as a passenger in a dangerous position, in violation of the rules of the company. The order of the brakeman to adjust the boards, and his obedience thereof, must be regarded as the proximate cause of the injury. To render the master liable for the tortious acts of his servant, the act causing the injury must have been in the line of the servant's duty and within the scope of his employment. In this case, the brakeman had no control whatever over passengers; nor was it any part of his duty to employ or direct any person, much less a passenger, to perform any service on the train; and his negligence in so doing cannot be imputed to the defendant. It does not appear that the conductor was aware of the misconduct of the brakeman. The youth of the boy may excuse him from concurring negligence, but it cannot supply the place of negligence on the part of the company, or confer authority on one who had none."' Flower v. Railroad, 69 Pa. St. 216; Snyder v. Railroad, 60 Mo. 413; Towanda Coal Co. v. Heman, 86 Pa. St. 418. 3. Had the injury been the result of an accident to the train, the defendant would be held liable, as it does not appear that the regulations of the company, prohibiting passengers from riding elsewhere than in the caboose, were conspicuously posted as required by law. R. S. § 800; Higgins v. Railroad, 36 Mo. 418. If the rules were properly posted, the mere acquiescence of the conductor in the boy remaining on one of the freight cars, after discovering him, would not render the defendant liable, unless, perhaps, the boy could not read and the conductor was aware of that fact, and had reason to believe he was ignorant of the rules. Reversed and remanded. Opinion by HOUGH, J.Sherman v. Hannibal & St. Jo. R. Co.]

SUPREME COURT OF KANSAS.

July 12, 1880.

CONTRACT-DISPUTE AS TO PRICE-AGENT.-1. Where parties contract for the doing of certain work, and the work is done and accepted, and it appears that there was a misunderstanding as to the price to be paid for it, the law rejects the understanding of each, and awards reasonable compensation. 2. The same rule obtains where an agent is employed to contract for work, and in good faith, and with reasonable care and diligence, makes the contract, although such reasonable compensation exceeds the sum which the agent was authorized to promise. Affirmed. Opinion

by BREWER, J. All the justices concurring.-Turner v. Webster.

ASSAULT WITH INTENT - SELF-DEFENSE-EVIDENCE OF THREATS.-In a criminal prosecution for an alleged assault with intent to kill, where the defendant claims that he acted solely in self-defense and to prevent a felony from being committed upon him, and evidence is introduced tending to show that such were the nature and character of his acts, it is then competent for the defendant in corroboration of such evidence to introduce other evidence tending to show that the person on whom the alleged assault is alleged to have been committed, had, sometime previously to such alleged assault, assaulted the defendant with a deadly weapon, and had also threatened to kill him, which threats had been communicated to the defendant previously to such alleged assault. Reversed. Opinion by VALENTINE, J. All the justices concurring.-State v. Scott.

PRESUMPTION AS TO DEEDS NOT PRODUCED PURCHASE FROM GUARDIAN-DEED NOT DELIVERED EVIDENCE OF SALE.-1. Where, in an action to recover lands, the defendants claim title thereto by purchase, and the testimony discloses that they received deeds at the time of such alleged purchase, that these deeds are still in existence and in their possession, and they fail to produce them on the trial, or account for their non-production, the courts will not presume that such deeds are complete and sufficient, or uphold the title simply upon parol testimony of a purchase. 2. Where four persons, one an adult and the others minors, are joint owners of a tract of land, and certain parties clair to have purchased the interests of all four, at a public sale, from one representing himself to be the attorney in fact of the adult and the guardian of the minors, and upon such purchase accept deeds from him simply as guardian, and purporting to convey only the interests of the minors, and after payment enter upon and improve the land: Held, in an action brought many years thereafter by the adult to recover her interest in the land, that parol testimony that the understanding both of the party selling and of the purchasers was, that the sale was of the interest of the adult as well as of those of the minors, together with proof of payment of full sum bid, to him or to his successor as guardian, of delivery of possession and the making of valuable improvements, would not take the case out of the statute of frauds, and that, notwithstanding the title attempted to be conveyed by the guardian's deeds did not in fact pass. Payment alone does not take a parol sale out of the statute of frauds, and the entry and improvement must be taken to have been made upon the faith of the title attempted to be conveyed by the deeds, rather than of that claimed through the parol contract. 3. A deed signed and acknowledged, but never delivered, may be good as evidence tending to prove a sale; but as a conveyance, or evidence of title, it amounts to nothing. Affirmed. Opinion by BREWER, J. All the justices concurring.-May v. Magrain.

QUERIES AND ANSWERS.

31. If property is replevied under process issuing out of a circuit court in the State of Missouri and delivered to the plaintiff, then levied upon and attached by proc. ess issuing out of a justice court, is such levy and attachment valid? If not valid, is there any remedy to release the property? May the constable be restrained from selling the property till a final judgment of the circuit court. C. C. A.

Mound City, Mo.