There are several assignments of error, but the points involved are few and simple. The charge was very carefully guarded and extremely fair, and for most of the points presented there is not much occasion for discussion. Several assignments rest on a claim that plaintiff was guilty of contributory negligence, and could not recover. The jury found that he was not, and we cannot discover any reason to doubt the justice of their conclusion. Certainly there was nothing entitling plaintiff in error to have this taken from the jury. It cannot be necessarily negligence for a person who is, by the invitation of a railroad company, going over an open passage prepared for that very purpose to give access to their depot, to assume it will be safe. No one is bound to imagine that cars will be driven where there is no car track, on a passage way which he is expected to use with his wagon. He has a right to expect that the utmost care will be used to protect passers on such a road, and that the company will use effectual measures to prevent the likelihood of any such danger. The court charged with sufficient fullness upon the care required of all persons to avoid danger in such places, and put the case to the jury quite as strongly as was proper. If the road had run across a track. over which cars were run frequently or habitually, a different rule of diligence would prevail, for very obvious reasons. But the law does not require men to be on a constant lookout for dangers that cannot be expected to exist, so long as there is ordinary care used by those whose action is the only thing that can cause danger. We cannot accede to the claim that there was no evidence of negligence on the part of the railroad company. It was very plainly their duty to make it at least reasonably certain that cars should not run across the passage way. They were bound to prevent it by posts or some other obstacle, or else to adopt some other adequate arrangement to hold the cars from moving beyond the end of the rails; and they were bound to prevent such carelessness in their train-drivers as would run the trains themselves over the end or drive others there. It certainly may be negligence to produce such results, and while we are not concerned in the present case to consider whether it can usually be any thing else, it is enough that the jury, on the facts, have found there was negligence. The criticism on the pleadings that claims evidence could not be received which showed that Martin, as well as his wagon, was struck, requires no comment. We think it was competent to give such a full account of plaintiff's business as to show how far he was affected in it, and this could not be done without showing its nature and extent. There was no evidence received as a ground of damage beyond his pre-. liminary loss by reason of the suspension of his personal oversight and labor. There was no error in this regard. The objection that a physician cannot reveal, with his patient's consent, what he has learned during his treatment, is one which, if valid, would render it impossible in either civil or criminal cases to use the only testimony which would show the nature and extent of the disease. The statute is one passed for the sole purpose of enabling persons to secure medical aid without betrayal of confidence. It is only a question of privilege, and such communications are on the same footing with any other privileged communications, which the public has no concern in suppressing where there is no desire for suppression on the part of the persons concerned. A reason has been suggested why the opinions asked of and given by the physicians were not within such limits as are admissible. They appear to us to be confined strictly to medical inferences from hypothetical facts presented for their consideration, and based on testimony. They were properly received. It is claimed that while the court informed the jury that they would be justified in disregarding the testimony of witnesses who wilfully swore falsely, there was error in not specifically instructing them in the same way concerning wilful exaggeration. We do not understand how wilful exaggeration is anything but wilful false swearing, and it is reasonable to suppose both court and jury would understand that they were the same. But it is well to suggest that while these cautions are very proper cautions, they belong to fact, and not to law. So long as juries must determine for themselves what force to give to testimony, and are not bound to reject testimony entirely, even though they believe some of it wilfully false, such suggestions must be very guarded, or they may become erroneous and misleading. Courts are not compelled to dwell upon them or enlarge upon them. We do not see how any further cautions could be reasonably asked than were given. We discover no other points which deserve serious consideration. The charge is extremely fair throughout, and the case presents no appearance of having been attended by any improper surroundings. Such cases are sometimes affected by considerations which it would be desirable, but is not easy, to avoid. In the present case we think there is no reason to complain of anything appearing in the record, and the result gives no reason to suppose that the jury did not rightly understand the law laid down. The judgment must be affirmed, with costs. (The other justices concurred.) CHICAGO & NORTHEASTERN R. Co. vs. JAMES L. EDSON and others. Filed October 21, 1879. Plaintiff in error, a corporation, was sued in justice court as the maker of a promissory note, and no defence being made judgment was rendered for the whole amount. The company appealed, and moved in the circuit court for leave to deny the execution by affidavit, which was denied, as well as to a motion to have such refusal vacated. Held, there was no abuse of discretion; that evidence offered was insufficient to impeach the note and show want of consideration.-[ED. Error to Shiawassee. S. B. Gaskill, for plaintiff in error. Hugh McCurdy, for defendant in error. GRAVES, J. Edson and the others sued the railroad company as makers, and Cummin as indorser, of a note for $201.11. The suit was brought before a justice of the peace, and the note was duly filed. The company made no defence, and the justice rendered judgment for the amount of the note. The company appealed, and then moved the circuit court for leave to deny the execution of the note by affidavit. The motion was refused. Afterwards an attempt was made, on further showing, to get the refusal vacated, but this was also denied. We cannot review these proceedings. The rulings were discretionary, and we see nothing to cast doubt on their propriety. The evidence offered to impeach the execution of the note was not admissible. As there was no denial on oath the company was concluded. Pegg v. Bidleman, 5 Mich. 26. The offer to show that the note was given to satisfy a claim by Cummin against the Chicago & Lake Huron Railroad Company was properly ruled out. If conceded the fact would only show that the consideration was the liability of another corporation, and not that no consideration existed. The right or ability of the defendant corporation to make an undertaking on account of the other would be a question of As authority, and any inquiry in that direction was incompetent against the admission that the note was well executed. the case stood, with the fact admitted that the note was the true paper of the defendant corporation, the plaintiffs below were prima facie the bona fide holders of the note for value, and there was nothing to impugn their right. All of the rejected proof which was not ruled out on account of its being inconsistent with the admission of execution only tended to show that the note was given for the debt of another, and this was not sufficient to put the holders to the proof that they paid value. Harger v. Worrall, 69 N. Y. 370. The view expressed covers all the questions, and, as no error is shown, the judgment given for defendants in error must be affirmed, with costs. (The other justices concurred.) OZIAS W. SHIPMAN and others vs. GEORGE W. GRAVES. Certain tobacco was bargained for by sample, on condition that when received the purchaser was to examine and see that it corresponded with sample,and then forward notes agreed to be given therefor. It was received, laid aside for examination, and some days after, and before the notes were executed or any payment made, the vendee made an assignment, turning over the tobacco with other assets. Held, that no title passed to the assignee, and the original vendor could reclaim the same.-[ED. Error to superior court of Detroit. Griffin & Dickinson and H. T. Thurber, for plaintiffs in error. Samuel Slesinger, for defendant in error. GRAVES, J. There was a bargaining by correspondence between the Wilsons, at Detroit, and Graves, in Connecticut, for the purchase of certain tobacco. Graves furnished a sample, and the Wilsons agreed to take a specified quantity of that sort and to give notes. Their offer was to give the notes on "regular time," and Graves requested notes at three months. The time is not especially important. In the forepart of January, 1878, Graves sent the tobacco, and the Wilsons received it and put it aside to be examined and compared with the sample, and their foreman made some examination, but does not seem to have decided positively. However this may be, the bargain required the Wilsons to proceed within a reasonable time to ascertain whether the bulk agreed with the sample, and, in case of acceptance, to send forward the v3-12 (no. ii) (177) agreed notes thereupon. They delayed, however, and neither forwarded any notes nor informed Graves whether the tobacco agreed or not with the sample, or whether they proposed or did not propose to accept the article, and on the 18th of the same month, some eleven days after the arrival of the tobacco, they made a general assignment to Shipman for the benefit of creditors, and turned this tobacco over to him as part of their assets. A few days later Graves demanded the tobacco, and the parties refusing to surrender it he replevied it in this action, and the court allowed him to recover. The true question is whether the court erred in holding, on the facts presented, that no title vested in the Wilsons, and we think he did not. In order to pass the property by force of the bargain shown, the seasonable transmission of the notes, or perhaps, instead thereof, the amount in money, was indispensable. The facts show that the only possession given was conditional, and to enable the Wilsons before receiving title to ascertain whether the goods agreed with sample, and to perpetuate the ownership of Graves until the notes, or possibly the amount in cash, should be forwarded; and we think the the time of waiting on the part of Graves not sufficient to make room for argument that he waived his right as against these parties. We find no error, and therefore affirm the judgment, with costs. (The other justices concurred.) JONAS R. LEARNED vs. FREDERICK S. AYRES and others. Filed October 21, 1879. A partner in a firm sold out his interest in the firm and firm assets to a third person, his private account with the firm showing a balance against him. Held, that the new firm could not maintain an action at law to recover such balance.-[ED Error to Huron. Winsor & Snover and W. T. Mitchell, for plaintiff in error. James H. Hall and John Atkinson, for defendant in error. CAMPBELL, C. J. Jonas R. Learned, who had been a partner of Frederick and James R. Learned, transferred his interest to Ebenezer R. Ayres. His private account with the firm before this sale showed a balance against him. For this balance the three defendants in error, as partners, sued him and were |