paid down, and the balance in instalments; that nothing was said at any time about borrowing or paying rent for it; and that immediately after agreeing on the terms, the defendants requested him to sign the written contract, which he did, supposing the same to contain the terms and stipulations of the oral agreement. The plaintiff testified that the written agreement was not read or explained to him, and that he did not request that it should be. He admitted that the defendants made no written or verbal representations of its contents. The judge excluded the evidence and the plaintiff excepted. Held, that the evidence offered should have been submitted to the jury with proper instructions. The familiar rule, that parol evidence can not be admitted to vary the agreement which the parties have chosen to put in writing, does not exclude evidence which tends to show that the written contract was, by ■ome fraud or imposition, never in fact freely and intelligently signed by the party sought to be charged. Opinion by COLT, J.-Trambly v. Ricard.

SUPREME COURT OF OHIO.

February 1881.

NEGLIGENCE COLLISION PRIMA FACIE PRESUMPTION-PASSENGER LEAVING CAR ON ACCOUNT OF IMPENDING DANGER-CONTRIBUTORY NEGLIGENCE · REMITTITUR.-1. On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company. 2. Where a passenger, to avoid impending danger, attempts to leave the car in which he is riding, believing, upon reasonable grounds, that by so doing he will escape injury. and, while in the act of leaving, is injured through the company's negligence, he is not chargeable with contributory negligence, although had he made no attempt to leave the car, the injury would not have happened. 3. Where a party remits a part of a judgment in his favor to avoid a reversal of the same, he can not prosecute error to reverse the judgment thus reduced in the amount, although the court may have been wrong in finding that the judgment was excessive. Affirmed. Opinion by BOYNTON, J.-Mowery v. Iron R. Co.

FRAUDULENT MORTGAGE-FORECLOSURE.-In an action to foreclose a mortgage, the defense was set up, that the mortgage was given to secure double the amount of the money loaned thereon by the mortgagee, with intent to defraud the creditors of the mortgagor. Held, 1. That the consideration of said mortgage being entire and illegal, a court of equity will not aid its foreclosure. 2. That the defense of illegality of consideration in such case, may be made by the mortgagor, or by any person succeeding to his interest; hence, it is error for the court to exclude

testimony offered by the defendant to establish such defense. Reversed and remanded for a new trial. Opinion by BOYNTON, J.-McQuade v. Rosecrans.

WHEN A STATUTE TAKES EFFECT-CONVEYANCE OF HUSBAND AND WIFE-EFFECT OF THE HUSBAND'S CONVEYANCE OF THE WIFE'S ESTATE UPON THE HUSBAND'S CURTESY.-1. When a statute, which repeals a prior statute on the same subject, is to take effect and be in force from and after a day named, it does not take effect until the expiration of the day named. 2. The curative provisions of the act of 1857 (1 S. & C. 694) as revised (75 O. L. 783), extend only to deeds or other conveyances of husband and wife defectively executed by reason of some error, defect or mistake. It does not authorize the court, in the exercise of its chancery powers, to compel a married woman to execute a deed in the specific performance of her contract, as if she were a feme sole. 3. A deed for the wife's lands, duly executed and acknowledged by the husband, under the act of 1820 (2 Chase, 1139), but not signed or sealed by the wife, is not her "deed or other conveyance," within the curative provisions of said act (75 0. L. 783, sec. 6), though privately acknowledged by her before an officer. 4. Neither is it her instrument in writing," within the meaning of the act of 1859, as revised. 75 0. L. 782. 5. Where the husband becomes seized of an estate by the curtesy, and during the life of his wife assumed to control the fee of the land, and puts his grantee in possession, the conveyance of the husband is a valid transfer to the extent of his estate, and if he survive her, the statute of imitations does not commence to run against her heirs until the termination of his life estate. Affirmed. Opinion by JOHNSON, J.-Krotenbrock v. Cracraft.

QUERIES AND ANSWERS.

{*** The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

12. The Missouri Statute of Limitations reads as follows: "No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or non-resident of this State, unless it appears that the plaintiff, his ancestor, predecessor, grantor, or other person under whom he claims, were seized or possessed of the premises in question within ten years next before the commencement of such action." Does this statute operate to bar a proceeding in equity to divest and invest title, where the defendant has held the legal title for more than ten years, and neither party has been in the actual possession of the land within that time? It being a familiar principle that the legal title draws to it the possession. M.

The Central Law Journal,

ST. LOUIS, MARCH 11, 1881.

CURRENT TOPICS.

The bill for the establishment of a commission to relieve the docket of the Supreme Court of Missouri has failed. The Senate, however, has passed a new measure, intended to effect the same object. It is now proposed to increase (by constitutional amendment) the number of the members of the Supreme Court from five to six, and to provide for the division of the court into two branches, and to enlarge the jurisdiction of the St. Louis Court of Appeals, making it practically a court of final resort, within its territorial jurisdiction. It is thought that the division of the court into two branches of three members each, will enable it to try twice as many cases as at present; while the enlargement of the jurisdiction of the Court of Appeals will have a tendency to lessen the number of causes upon the Supreme Court's docket.

We have never approved of the commission, which is indeed a miserable make-shift for gaining a temporary relief from an evil which proceeds from several defects in the judicial system itself, and which should be remedied by a reorganization of the system.

A divis

ion of the court into two branches, however, while not obnoxious to the objection of being ▲ mere temporary expedient, still is subject to grave objections; the most obvious of which is, that under such an arrangement, the deeisions of the two divisions would inevitably conflict with each other, and thus be productive of great confusion and many perplexing questions. We would suggest, too, (albeit with due reverence) that the Missouri Supreme Court has not, in the course of its history, made for itself such a reputation for sound views of the law and judicial discretion, as to justify the law-making power in putting it into such a trying position, the natural result of which would be, that one wing might follow one set of conflicting preeedents of the court, and the other wing another set, and thus continue to add precedent to precedent in two diverging lines, until the court was again consolidated.

Vol. 12-No. 10.

We have just received a copy of the constitution and by-laws of the Missouri Bar Association organized at the convention of the State bar which assembled in December last at Kansas City, for the purpose of devising a method of relief for the overcrowded docket of the Supreme Court. The organization is simple and well adapted to further the purposes of such bodies. The standing committees are upon "Jurisprudence and Law Reform;" Judicial Administration and Remedial Procedure;" "Legal Education and Admissions to the Bar" "Commercial Law;" "Publications" and "Grievances."

In the nature of things the bar has always exercised, and will continue to exercise, a potent influence on the course of legislation. But such influence is far more likely to be beneficial in its consequences, if it come as the result of the deliberations of a body, composed of the leading lawyers of the State, than if it is the mere expression of the individual weight and influence of such lawyers as happen to be in the general assembly from time to time. It is to be hoped that the profession throughout the State will follow the example of their brethren elsewhere, and take such a live interest in this organization and its proceedings, as to make it an unquestionable success.

Another decision has been added to the tangled mass of conflicting adjudications on the miscegnation question. Judge Wood in the Federal Circuit Court for Texas, recently held the statute of that State forbidding the marriage of a white person with a negro, unconstitutional and void, as being opposed to the Fourteenth Amendment to the Constitution of the United States, and ordered a writ of habeas corpus in the case of Francois, a white man, confined in the Texas penitentiary under sentence of the State court for marrying a negro woman. This decision is opposed to the doctrine of the State court in the cases of Frasher v. State, 3 Tex. App. 276, s. c. 30 Am. Rep. 131, and Francois v. State, 4 Tex. L. J. 35. See the case of Hovey v. Clark (37 Tex. 696), decided in 1869, in which the statute was held unconstitutional by the State Supreme Court.

This case was overruled in Clements v. Crawford (42 Tex. 601), decided in 1875. See also, Green v. State, 58 Ala. 190; s. c. 29 Am. Rep. 739; In re Kinney, 30 Gratt. 858; State v. Bell, 7 Baxter, 12; State v. Gibson, 36 Ind. 389; Medway v. Needham, 16 Mass. 157; Dickerson v. Brown, 49 Miss. 357; North Carolina v. Kennedy, 4 Cent. L. J. 391; North Carolina v. Ross, 4 Cent. L. J. 392; Texas v. Webb, 4 Cent. L. J. 588; Ex parte Hobbs, 1 Woods, C. C. 537; Scott v. State, 39 Ga. 321; and see 5 Cent. L. J. 2, and 149; and 6 Cent. L. J. 1.

NEGLIGENCE AS AFFECTED BY CUS

TOM.

II.

lawful, and therefore worthless. It is urged that mining can not be carried on without this outflow of acidulous water, hence of necessity the neighboring streams must be polluted. This is true, and it is also true that coal mining would come to nothing without roads upon which to transport the coal after it is mined; therefore roads are necessary; but it does not follow that for such purpose the land of an adjacent owner may be taken, or his right of way incumbered, without compensation. If, indeed, the custom set up were to prevail, then, at least so far as coalmining companies are concerned, there would be an abrogation of the 8th section, art. 16 of the Constitution, which provides that 'municipal and other corporations, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction and enlargement of their works, highways or improvements.' Not only would we thus have a custom superior to the supreme law of the land, but one reaching even beyond the possible sovereignty of the State, in that it would empower private persons, for private purposes, to injure or destroy private property, and that without compensation. A custom such as this is radically bad, and can not be sustained." Here we have the rule laid down, that a custom, to affect the general law of negligence, must, in the first place, be ancient; secondly, must be reasonable; and thirdly, must not conflict with the statutory law of the State. The first requisite is not essential in the case of the ordinary usages of trade; but the second and third are strictly required to support a usage which is introduced to affect legal rights and relations. The cases of Berg v. Chicago, etc. Railway Company; Miller v. Pendleton; Maury v. Talmadge; Hibler v. McCarthy; Hill v. Portland, etc. Railway Company, and Good. enow v. Tyler, referred to elsewhere in this article, illustrate the second requisite; the cases of City of Champaign v. Patterson, and Cayzer v. Taylor, the third.

In Pennsylvania Coal Company v. Sanderson, determined in the Supreme Court of Pennsylvania in May last, a coal company had pumped from its mines a quantity of water, which polluted a previously pure stream of the plaintiffs, into which it found its way. In an action therefor, it was contended by the defendant that the customary mode of disposing of water pumped from the mines in that region had always been to allow it to flow into the adjacent natural water-courses; and proof of such a custom was offered. But it was held in the Supreme Court that the custom would not help the defendant, and was of no effect for three distinct reasons. "As a general custom," said Gordon, J., "it lacks the necessary age, for the beginning of deep coal mining in the regions above named, is quite within the memory of men yet living. Wanting this, it fails in a particular essential to the establishment of such a custom.1 But more fatal still to the defendant's pretension, is the fact that the effort is thus to justify the disturbance of private property for the advancement of the private interests of the defendant corporation; and that, not under the plea of an ancient customary use, arising before the plaintiff acquired title, but of a general custom which would authorize the present injury or destruction of the rights of riparian owners. But a custom such as this would not only be unreasonable, but also un

1 Jones v. Wagner, 16 P. F. Smith, 429.

The want of a fourth ingredient to the validity of a usage or custom, i. ., generality, rendered the custom set up in Couch v. Watson Coal Company,2 of no avail. The plaintiff was employed by the defendant in its

2 46 Iowa, 17.

mine, and was injured while ascending the shaft in a cage from a drill which fell from a descending cage. He sought a recovery on the ground that the cages were defective, in not being supplied with bonnets or coverings. As tending to show that the cages were defectively constructed, and that the defendant was therefore guilty of negligence in using them, the plaintiff called a witness who testified to having worked for many years in coal mines in Wales and Pennsylvania, where steam machinery was used. He was thereupon asked: "What was the custom, or how was the machinery constructed-how were the cages constructed as to bonnets?" To which he answered: "I only worked in one shaft." He was then asked: "How was that, as to bonnets?" and replied: "There was what we called bonnets, or covers, there in that one shaft." In the Supreme Court, this evidence was held to have been improperly admitted. "Before a custom can affect the rights of parties," said the court, "it must be so general that a knowledge thereof by them may be presumed. For instance, before the defendant could be deemed guilty of negligence in the construction or use of the cages, the custom under which it was sought to make it liable, should be so general that the defendant could be presumed to have knowledge of its existence. The fact that bon nets were used in one mine in Pennsylvania or Wales, had no tendency to prove the existence of such a custom there, much less here. Besides, mines, of necessity, must be of various depths, and what would be proper machinery for one, might not be for another. What is customary in Pennsylvania, may not be so here. If it had been shown that operators of mines in this State, similarly situated, and using substantially the same kind of machinery, generally constructed cages with bonnets, it could be reasonably presumed that defendant had knowledge of such custom, and the failure to do what was usual, and generally done by others in a similar business and under similar circumstances, would have a tendency to show that these cages were improperly and negligently constructed."

Another essential element, that of notoriety, controlled the decision of the court in Berkshire Woolen Mills Company v. Proctor.3 87 Cush. 417.

The plaintiff's agent went to Boston for the purpose of attending to a law suit, taking with him about one thousand dollars of their money to defray expenses. He put up at the Marlboro Hotel, which was kept by the defendant, on the 15th of October, 1849, and deposited the money in his trunk in his room, taking from it, from day to day, small sums as he required them. On the 2d of November, he counted his money, and found that he had exactly five hundred dollars, which he rolled up in a newspaper and placed at the bottom of his trunk, locking it. The day after he found that the lock had been picked and the money stolen. The plaintiff having brought an action for the amount of money stolen, the defendant, at the trial, in order to charge the agent with negligence in not taking the proper precautions to secure the money, introduced evidence of the custom of guests at their hotel, to deposit large sums of money and other valuable articles with the clerk, and in a safe provided by the proprietor for that purpose. The agent swore that he did

not know of the custom. The defendant contended that he was nevertheless bound by the custom, and would be presumed in law to know it. But the court instructed the jury that if the plaintiff's agent had knowledge of the custom of defendant's hotel, the plaintiff would be bound by it; but that if he had no knowledge of the custom, the plaintiff would not be affected by it, unless he was wilfully ignorant of it. A judgment for the plaintiff was affirmed in the Supreme Court. "Proof of knowledge as a matter of fact," said Fletcher, J., "is required in order to give effect to any and all particular usages not of so general a nature as to furnish a presumption of knowledge. There certainly can be no legal presumption that every traveler who alights at an inn has knowledge of the particular usages of that particular inn, of which there is no notice in any way given to him."

But usages to excuse neglect have been rejected in several cases. It has been held that a usage will not excuse a carrier for the neglect of any duty which he owes to a passenger. Thus in an action against a ferryman for the loss of a horse and wagon while crossing a river on his ferry, it appeared that there was a chain at the forward end of the boat, which, if it had been fastened up, would

have prevented the accident. The defendant offered, but was not permitted to show, that it was the custom at the ferries on that river, to have a chain at the end of the boat, but only to put it up at the request of passengers. On appeal, the court held that the evidence of custom was rightly rejected. "The usage sought to be proved would not be a good usage if it prevailed; it would make the safety of the passenger depend upon his own conduct, and not on the care and vigilance of the ferryman. If the putting up of the cha:n was a reasonable and proper precaution, it ought to be put up by the ferryman without a request; if it was not so, a request would not make it so." And where in an action against a stage coach proprietor, for an injury to a passenger, the negligence alleged being the overloading of the coach, the defendant offered to prove that it was the custom on that route, to carry as great a number of passengers as were on that particular coach at the time of the accident, the evidence was ruled to be inadmissible.5 Similarly, where a num ber of boxes of books and other property were stowed by a warehouseman on a wharf in close proximity to the water, and by reason of a sudden storm, that portion of the wharf was submerged and the goods were injured, it was held that evidence that it was defendant's custom to store goods on the wharf, was properly excluded, as such a usage could not free him from responsibility.6 In an action against a town for an injury caused by a defective bridge, the question as to how the particular bridge compared, as to safety and repair, with other bridges of like character on roads of like amount of travel, is irrelevant;7 and in an action against a railroad company for damages caused by fire from one of its locomotives, the issue being whether the defendant had used due caution and diligence in preventing the spread of the fire, evidence that it was not the usual practice among railroads in that section of the country to employ watchmen, is inadmissible.8 In an Alabama case where a quantity of cotton was ignited by a torchlight on the boat on which it was being carried, in a suit for its

4 Miller v. Pendleton, 8 Gray, 547.

5 Maury v. Talmadge, 2 McLean, 157.

6 Merchants', etc. Trans. Co. v. Story, 50 Md. 5. 7 Bliss v. Inhabitants of Wilbraham, 8 Allen, 564. 8 Grand Trunk R. Co. v. Richardson, 91 U. S. 454.

loss the plaintiff asked an instruction that, if the torchlight had communicated the fire to the cotton, the latter being so near as to be exposed to the danger, this was negligence and rendered the defendant liable, "although the jury should believe that it was usual for steamboats to carry torchlights," which the court refused. This the Supreme Court held to be error, saying: "The result would not be changed by the existence of a custom to carry torches at night. A custom which would authorize a carrier to carry a torch in such a manner as to endanger the cargo, would be violative of law and good faith, and could not receive judicial sanction. If & boat can not be run at night without the aid of torches carried in such a manner as to endanger the cotton or freight, to stop is the plain duty of the carrier. Custom can not relieve from the obligation to bestow, even in guarding against the excepted danger from fire, reasonable care and diligence in taking care of the freight."9 So, where the question was whether a railroad company had been negligent in blowing the whistles of locomotives at crossings so as to frighten horses, it was held incompetent to show a custom on other railroads to blow whistles in a similar way. "If all the railroads in the country," it was said, "adopt any rule or custom which is unreasonable or dangerous and productive of injury, the generality of the custom can not, in a given case, in any degree, excuse or justify the act."'10 And, therefore, where the negligence imputed to a railroad company was the failure to maintain a flagman at a crossing, the custom of other railroads in maintaining flagmen at crossings was excluded. 11 In an action against a city for an injury to a pedestrian caused by an opening in the sidewalk, it was ruled that the existence of similar apertures, in various other parts of the city for a long period, did not show that the alleged defect was not one for which the city was liable, if any damage was occasioned thereby.12 Therefore in a subsequent case where the injury was from a defective crossing, and evidence of the manner in which other cities and towns of similar

9 Hibler v. McCartney, 31 Ala. 501.

10 Hill v. Portland, etc. R. Co., 55 Me. 438; and, see, Gahagan v. Boston, etc. R. Co., 1 Allen, 187. 11 Bailey v. New Haven, etc. R. Co., 107 Mass. 496. 12 Bacon v. City of Boston, 8 Cush. 174.