of the cold upon a wound in the foot, superinducing inflammation, and possibly necessitating amputation. Can it be said that the law imposed upon the carrier an enlarged duty having reference to the wound, and that the added risk of traveling in this condition must be assumed by him,and not by the passenger from whose personal condition it springs? We think 1 ot. While it is true that menstruation is a law of health, it is also true that it is a condition requiring greater care and prudence to avoid exposure." Referring to those cases, the Albany Law Journal (April 30, 1881), says, "the Hobbs case and the Barker case seem to us to strain the law to an extreme limit;" while, as regards the former, Mr. Thompson, now a judge of the St. Louis Court of Appeals, observes in a recent work, "the rule seems to have been applied with unnecessary vigor;" and that case was also criticised by Fry, J., in McMahon v. Field (44 L. T. N. S. 175), to which we shall subsequently advert. In Williams v. Vanderbilt (28 N. Y. 217), the defendant contracted to carry the plaintiff from New York to San Francisco, via Nicaragua; but, in consequence of the wreck of the connecting vessel on the Pacific coast, he was detained several weeks on the Isthmus, where he took a fever, which disabled him for a long time after his return to New York; and for this injury the defendant was held liable in damages. But that case seems hardly reconcilable with Francis v. St. Louis Transfer Co. (5 Mo. App. 7). There a passenger carrier contracted to carry a lady from a railway station to her house, but set her down in the city, a mile from her residence, on the sidewalk of a frequented street, along which ran a line of street cars, passing within a square of her house. The day was very cold, but dry; and the lady was delicate, but not ill. Being warmly clad, she walked home with a friend, and in doing so took a cold which permanently impaired her health. It was held that this injury was too remote to warrant a recovery against the defendant. In Lawyer v. Delaney (30 Tex. 479), it was held that, if a carrier has been guilty of negligence whereby his passengers have suffered injuries, he cannot plead in mitigation of damages that they were in bad health, and so suffered more from the accident than they otherwise would have done. And if a railway conductor, writes Mr. Rogers (citing the Canadian case of Williamson v. Grand Trunk Ry. Co., 17 C. P. 615), "in assuming to carry out what he is legally empowered to do, forcibly removes from the cars (without any excuse) a passenger who has paid his fare, he will be liable for the assault; but if, while being removed,the man should slip, fall, and be injured, the company will not be responsible for his scratches and bruises, or his sprains and strains, such things being the remote, and not the proximate, consequences of the ejectment." Cf. Glover v. L. & S. W. Ry. Co.. L. R. 3 Q. B. 25. In Jackson v. Met. R. Co., 3 App. Ca. 193, the negligence of the company, in permitting an uncontrolled crowd to

get into a carriage at one station, was held to be, if a cause at all. too remote to be made an actionable ground for damage which occurred to plaintiff's thumb through a scrimmage at the next station. Et cf. Cattle v. Stockton Waterworks Co., L. R. 10 Q. B. 453; Sharp v. Powell, L. R. 7 C. P. 253; Peacock v. Young, 18 W. R. 134; and as to damage caused by the wrongful acts of third persons, see 12 Ir. L. T. & S. J. 333; and see Brandon v. Gulf City Cotton Press Manufacturing Co. 8 Reporter, 670.

In Coombe and Wife v. Moore, a curious question as to remoteness has just arisen. The defendant, an American residing in London, let off some rockets in his garden, on the night of the centenary of the declaration of American Independence, and the sticks fell into the plaintiff's garden. Alarmed by the fall or by the detonation, the plaintiff's wife, who had gone into the garden, was attacked by hysteria, upon which neuralgia supervened, and she was obliged to seek medical advice. Under the doctor's advice she took a trip to Ireland, which improved, though it did not quite restore, her health. An action for damages having been brought, a nonsuit was asked for, on the ground that the consequences alleged were not such as might reasonably have been contemplated as the result of the defendant's acts; but. Bowen, J., declined to nonsuit. He left two questions to the jury—whether the defendant's acts were reasonably calculated to interfere with the health of people living in the neighborhood, having regard to people's ordinary habits of life; and whether the injury to Mrs. Coombe's health was the consequence of the defendant's acts; and he directed the jury that the defendant would not be liable for an interference with the plaintiffs' comfort, unless their comfort was so far interfered with as to affect health. The jury answered in the plaintiffs' favor, and assessed damages at one farthing, and his lordship directed that judgment be entered for the plaintiffs, without costs. Disgusted with the irreducible minimum awarded, the anti-pyrotechnical plaintiffs applied to the Queen's Bench Division, on the 12th inst., for a new trial, contending that the verdict was perverse and illogical. Coleridge. C. J., however, explained that the jury meant by their verdict, "We can not say that in strict law the plaintiff had no right to complain, but the case is so small and contemptible, that we give a verdict for a farthing, which may be illogical, but is very good sense”—a neat exposition which may be compared with the definition of nominal damages by Maule, J., in Beaumont v. Greathead, 2 C. B. 494: "Such an action," he added, "no doubt, is maintainable in law where there is, in a legal sense, nuisance and an injury to an individual, but the damages are for the jury, and there is in this case no reason to interfere with the verdict." Had the plaintiffs got larger damages and costs, we think there would have been great reason to interfere with the verdict; for although, as it was put, there

was such a noise created at the dead of night,that if the shade of Washington had revisited the earth, he would have sternly rebuked his enthusiastic countryman, yet if the lady had been satisfied to just look out of her window,she would have seen that there were only some rockets making the racket, and that there was no reasonable occasion for a fit of hysteria. And had the defendant been familiar with the decisions of his country, he might have invoked the case of Phillipps v. Dickenson (85 Ill. 11). in which the Supreme Court of Illinois held (Scott, J., diss,), in 1877, that the damages were too remote, not being such a natural and proximate consequence of defendant's conduct as to make him liable therefor, where it appeared that the defendant came to the house of plaintiff's husband, while the plaintiff was in bed, and raised a disturbance on the porch, next to the room where plaintiff was lying; used violent language towards plaintiff's husband and his (defendant's) little boy, who had been working at the house; threatened to take the life of plaintiff's husband, raising a knife to strike him; talked in a loud and violent tone (there being no proof that defendant knew that plaintiff was so near him, or was in a delicate condition), the plaintiff being at the time about eight months gone in pregnancy, and being found shortly afterwards suffering severe pain, after which she gave birth to a dead child, caused by fear growing out of the violence of defendant. And so, in an English case, where in trespass for breaking into the plaintiff's house, evidence was offered that his wife was so terrified by the defendant's conduct that she took ill and died, this (not being the natural result of the trespass) was received, not as a ground for substantial damage, but merely as showing the violence of defendant's conduct. Huxley v. Berg, 1 Stark. 98. Et cf. Allsop v. Allsop (5 H. & N. 534, confirmed in Lynch v. Knight, 8 H. L. C. 577), where a wife's illness, caused by slander, was deemed too remote to sustain an action by the husband. Mere mental anxiety. unattended by Injury to the person, caused by simple actionable negligence (as where rocks in blasting were cast on plaintiff's land), would, of course, not constitute an element of damage to sustain an action. Wyman v. Leavitt, 23 Alb. L. J. 253. Those cases, like some others already examined (and see the Australian cases of Cargill v. Mervyn, 2 N. Z. Jur. N. S. 50, 12 Ir. L. T. 376; Kirkpatrick v. Glendining, 3 N. Z. Jur. N. S. 146), it will be observed, were cases of tort, in which the doctrine as to remoteness of consequential damage has not been even SO rigidly narrowed as in cases of contract solely; for instance, if in the Hobbs Case (L. R. 10 Q. B. 111, 44 L. J. Q. B. 49), already cited, instead of putting down the plaintiff safely at the wrong place, the defendants had by their negligence caused personal injury, the decision would have been different, and not only the immediate pain and expense caused by the accident, but any "con

s'quent incapacity to attend to business, would be a natural consequence of the breach of contract, and not too remote, or one that the defendants could say that they did not contemplate." Bradshaw v. London, etc. R. Co., L. R. 10, Q. B. 117; and see per Martin, B., Wilson v. Newport Dock Co., L. R. 1 Ex. 184. But, in cases of tort only, also, the later tendency seems to be towards allowing less latitude in this respect; and we have no doubt that, for instance, Mr. Mayne has correctly concluded, in his valuable work on Damages, that Everard v. Hopkins (2 Bulst. 332),. would not be similarly decided in the present day; nor do we think Mr. Underhill at all too venturesome in maintaining in his useful treatise on the Law of Torts, that even Ancaster v. Milling (2 D. & R. 714) would not now hold water. In one of those cases (Everard v. Hopkins), it was said that where a master sends his servant to pay money for him upon the penalty of a bond, and in his way a smith in shoeing doth prick his horse, and so by reason of this the money is not paid; this being the servant's horse, he shall have an action upon the case for pricking of his horse; and the master also shall have his action upon the case for the specific wrong which he has sustained by non-payment of his money occasioned by this. In an American case (19 Johns. 223), it was more correctly held that the careless shoeing of a horse by a blacksmith was not the proximate cause of an injury to the plaintiff, occasioned by the falling of a tree while he was riding the horse, rendered lame by the careless shoeing. Cf. 20 Pa. St. 171; and see a curious Scottish case,quoted 13 Ir. L. T. & S. J. 462. In Ancaster v. Milling, the other ease above questioned, where the defendant committed a trespass by entering the plaintiff's house through a window by a ladder, and some short time afterwards his example was followed by thieves, who besides committed a theft, the defendant was held liable for the loss of the things stolen, as being the consequence of his wrongful entry. But, where a prisoner, arrested by a sheriff on a charge of assaulting plaintiff with a deadly weapon, was negligently allowed by the sheriff to escape, whereupon he again assaulted the plaintiff, it was held, with more obvious correctness, by the Supreme Court of Illinois (1877), in Hullinger v. Worrell, that the assault was not a natural consequence of the escape for which the sheriff would be liable. As observed by M'Kinstrey, J., in Henry v. Southern Pacific R. Co. (50 Cal. 183), “"A long series of judicial decisions has defined proximate or immediate and direct damages to be the ordinary and natural results of the negligence, such as are usual, and as, therefore, might have been expected; and this includes in the category of remote damages such as are the result of an accidental or unusual combination of circumstances which could not be reasonably anticipated. and over which the negligent party has no control.”

As regards cases of contract, on the other hand, we do not think the rule has been any more satis

factorily expressed than by Fitzgibbon, L. J., in the recent case of Waller v. The Midland Great Western of Ireland Railway Co., as follows: "The general principle is, that the person breaking his contract must answer for the necessary, natural or probable consequences of his default, and for those which ought to have been within the reasonable contemplation of both parties when making their contract as likely to arise from its breach. These are not separate definitions; it is presumed that every necessary, natural and probable result was contemplated by the parties. But if the injured party wishes to go beyond presumption, he may prove that any specified result was, in fact, contemplated as likely to arise from a breach of the particular contract. To recover compensation, however, for extraordinary damage, he must show that the defendant ought to have contemplated, or did in fact contemplate it, as likely to arise, and undertook, expressly or by implication, in case of breach to answer for it." In that case the defendants having failed to provide horse-boxes, pursuant to contract, for the conveyance of horses for sale by auction in Dublin on the day but one following, the owner was compelled to send them by road, a distance of twenty-four miles, in order that they might arrive in due time for the sale, and for previous inspection by purchasers. The horses, which were valuable hunters, were in soft condition at the time of the delivery to the defendants. They were deteriorated in appearance by the fatigue of the road journey; one of them was lamed; and such as were sold realized prices below what would have been otherwise obtained, while the others were left on the owner's hands. It appeared that, if they had been in hard-fed condition previously, they would have borne the journey without injury. The company's station-master was, at the time of the contract, aware of the intended sale, and of the day on which it was to take place. The Queen's Bench Division held (12 Ir. L. T. R. 145), that the injury was attributable to the default of the defendants, and not to the condition in which the horses had been; and that damages awarded in consequence of the deterioration in their selling value,occasioned by the road journey, were not too remote. "The deterioration of the horses in the present case, directly caused by the fatigue of the journey, seems to me," said May, C. J., "to resemble the inconvenience which was allowed for in Hobbs v. L. & S. W. R. Co. (ubi supra), rather than the expenses occasioned by the illness;" and the court were unanimously of the opinion that the damages fell within both branches of the rule defined in Hadley v. Baxendale, 9 Ex. 341, 354, as being the natural and necessary result of the journey to which the horses were subjected, and as being such as might reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of its breach. On appeal, however (13 Ir L. T. Dig. 18: 4 L. R. Ir. 376), it was held (re

versing this decision) that the company were not liable in damages for the entire loss which the plaintiff sustained in consequence of the injuries occasioned by the road journey, but that the measure of damages was the deterioration which the horses, if in ordinary condition and fit to make the journey, would have suffered thereby, and the time and labor expended on the road, such alone coming within the rule laid down in Hobbs v. L. & S. W. R. Co.-Irish Law Times.

INSURABLE INTEREST-MECHANIC'S LIEN UPON AN EQUITY OF REDEMPTION.

ROYAL INSURANCE CO. v. STINSON.

Supreme Court of the United States, October Term, 1880.

1. Where a contrastor for a building is entitled to a lien, which lien is subject, however, to a prior mortgage, such interest in the equity of redemption is an insurable interest.

2. If, during the continuance of a policy upon such an interest, but before the steps for perfecting the lien have been completed, the property is destroyed by fire, the policy holder is not under any obligations to perfect and enforce his lien for the benefit of the insurer, unless the insurer comes forward, pays the insurance, gives notice of a desire to be subrogated to his rights, and make a tender of indemnity against

expenses.

In error to the Circuit Court of the United States for the District of Massachusetts.

Mr. Justice BRADLEY delivered the opinion of the court:

This was an action on a policy of insurance against loss or damage by fire. Stinson, the plaintiff below, had a contract to build a hotel to be called the Webster House, at Marshfield, Plymouth County, Massachusetts, for the sum of $25,000, and had nearly completed it; but, failing to get his payments from the owner, he stopped work and took the necessary steps for securing a mechanic's lien on the building. For this purpose he filed the required statement with the town clerk, and commenced an action to enforce his lien within the period prescribed by law. Whilst this action was pending, in July, 1875, he procured the policy in question from the plaintiffs in error, the defendants below, insuring him for three months against loss or damage by fire to the amount of $5,000, on the building-the policy stating his interest to be that of contractor and builder. The loss occurred during the continuance of the policy, and due notice was given. After the fire the plaintiff did not further prosecute his action to enforce the lien; but emmenced the present action for the amount of his insurance. When the building contract was entered into, and until the loss occurred, the property on which the building was erected was sub

ject to a mortgage for a debt of $17,000, being the purchase-money which the owner had agreed to pay to the former owner; and which is conceded to have been a lien on the whole property prior to that of the plaintiff. Two defenses were made by the insurance company to the action; first, the failure of the plaintiff to prosecute his suit for enforcing his lien; secondly, want of insurable interest, from the alleged fact that the property, at the time of the loss, was not worth more than the amount of the prior mortgage. The court overruled these defenses, and charged the jury substantially as follows, namely: That if the plaintiff had a valid builder's lien when the policy was effected, which could have been enforced by the decree of the appropriate court against the equity of redemption of the property, and if it was a valid and subsisting lien at the time of the loss, it was immaterial whether he did or did not subsequently perform those acus, the non-performance of which as conditions subsequent might have dissolved the lien.

The court further instructed the jury, in substance, that if the plaintiff had such builder's lien when the policy was effected, which could have been enforced by the decree of the appropriate court, and by virtue of which he could have recovered the equity of redemption on that property, that then he was entitled to recover, without regard to the question what his equity of redemption might or might not have realized at an auction sale; that if a party has a valid and subsisting second security for a given amount, and he enters into a contract of indemnity against the destruction of that security, and a loss by fire occurs, both parties having full knowledge of the state of the property and the title when the contract is entered into, that such insurance would cover that second security, although by the subsequent course of events, the older and prior security might have swept away the value of the second; and that if the jury found in this case that this plaintiff had a valid claim for a given amount subsisting at the time of the loss, and which he had done everything that was required of him to enforce up to the time of the loss, and that it was such a claim, for instance, as he could have recovered a judgment for $5,000 or $6,000 or $8,000, and a judgment against that equity of redemption on that property, that that was, for the purposes of this trial, an insurable interest, and an interest which he had on that property, whether by any course of events that property might have been by subsequent events more or less affected, and for the purposes of this trial the court instructed the jury to so consider it.

To this charge, and to the refusal to give instructions to the contrary, the defendants took a bill of exceptions.

We think that the instructions were correct. As to the first point, based on the abandonment by the plaintiff, after the destruction of the buildang, of the proceedings to enforce his len, it is apparent from the evidence adduced by the de

fendants themselves, that it could not have injured them. But, aside from this consideration, if the plaintiff had an insurable interest at the time of issuing the policy and at the time of the loss, equal to the amount insured, he had a complete and absolute cause of action against the defendants, and it was no concern of theirs whether he farther prosecuted his lien or not, unless they desired to be subrogated to his rights and gave him notice to that effect. Whether, if they had done this, and had offered to indemnify him against all costs and expenses, a refusal on his part to continue the proceedings would have been a defense to this action, it is unnecesary to inquire. No such course was taken by the defendants. We may remark, however, that where a creditor effects insurance on property mortgaged or pledged to him as security for the payment of his debt, the insurers do not become sureties of the debt, nor do they acquire all the rights of such sureties. They are insurers of the particular property only; and so long as that property is liable for the debt, so long its destruction by fire would be a loss to the creditor, within the terms of the policy. A surety of the debt might complain if the creditor would surrender to the debtor collateral securities; but an insurer of property for the benefit of the mortgagee would have no just ground of complaint. True, after a loss has occurred and the insurance has been paid, sufficient to discharge the debt, the insurers may be entitled to be subrogated to the rights of the creditor against the debtor, and to any collateral securities which the creditor may then hold, and which are primarily liable for the debt before the insurers. But even then we do not think that the creditor is bound to take any active steps to realize the fruits of a collateral, or to keep it from expiring, unless the insurance be first paid and notice be given to him of a desire on the part of the insurers to be subrogated to his rights, with a tender of indemnity against expenses. We are aware that views somewhat differing from these have been held by respectable authority, but we think without any sound reaSee May on Insurance, § 457; Sussex Co. v. Woodruff, 2 Dutch. 541. To impose such restrictions and obligations upon the creditor, would be to add to the contract of insurance conditions never contemplated by the parties, making of it a mere shadow of security, and increasing the avenues of escape from obligation to pay, already too numerous and oppressive. When a building is insured in the interest of a mortgagee, the insurance company does not inquire what other collaterals he holds, and never reduces its premium on any such consideration.

son.

As to the other question, relating to the insurable interest of the plaintiff. we think that the charge given was equally free from exception. There is no doubt that the owner of the property had an insurable interest to the extent of the value of the building, notwithstanding the existence of a mortgage on the property of sufficient