maintain an action against defendants upon the check. It may be regarded as settled that the holder of a check cannot maintain an action in his own name against the drawees, though they have sufficient funds of the drawers, if they refuse to accept it. Bank of the Republic v. Millard, 10 Wall. 152; Carr v. Bank, 107 Mass. 45. Prior to acceptance, it is said, there is no privity between the holder and the bank, and therefore the holder cannot maintain an action. But if the bank expressly or impliedly promise the drawer to pay the check, the holder may sue if payment be refused. Thus where a check was drawn to C., and B. indorsed C.'s name without authority and received the money, the bank having deducted the check from the drawer's account and settled with him on that basis, it was held that the conduct of the bank was an acceptance, and that C. could recover from the bank. Seventh Nat. Bank v. Cook, 73 Penn. St. 483. When a depositor settles his account with the bank, and leaves the exact amount of an outstanding check expressly for its payment, and the bank tacitly retains the money and settles on that basis, it is liable to the holder on the implied acceptance. All parties to the check would naturally infer from such action that the bank retained the money for use of the holder. Pennsylvania Sup. Ct., April 17, 1882. Saylor v. Bushong. Opinion by Trunkey, J. PARTNERSHIP -WHEN LIABLE ON PARTNER'S NOTE INDORSED IN FIRM NAME.- When a member of a firm makes his individnal note payable to his own order, and indorses thereon his own name and the name of his firm, and receives and appropriates the proceeds thereof to his own use, the firm will be liable therefor, being duly notified, to an indorsee, who in good faith for an adequate consideration purchased the same before maturity, ignorant of all the circumstances affecting its validity. The form of the note is not notice that it was given for the maker's accommodation and in fraud of the firm. The purchase of the note of a broker furnishes no presumption that the broker was the agent of the maker. See Atlas Nat. Bank v. Savery, 127 Mass. 75; Wait v. Thayer, 118 id. 474; Parker v. Burgess, 5 R. I. 277; Waldo Bank v. Lumbert, 16 Me. 416; Waldo Bank v. Greeley, id. 419; Farrell v. Lovett, 68 id. 326; Kellogg v. Curtis, 69 id. 212; Hobart v. Penny, 70 id. 248; Smith v. Livingston, 111 Mass. 342; Freemans Nat. Bank v. Savery, 127 id. 79; Murray v. Lardner, 2 Wall. 110; Cromwell v. County of Sac, 96 U. S. 51. Maine Sup. Jud. Ct., January 10, 1882. Redlon v. Churchill. Opinion by Appleton, C. J. (73 Me. 146.) USURY PROCURING LOAN FROM ANOTHER FOR A THIRD AT UNLAWFUL INTEREST.- The defendants, having no money of their own to loan, solely at the request of the orator and for his benefit, borrowed money, and loaned it to him under an agreement that they were to receive the same rate of interest from him that they were compelled to pay; and also two per cent. for their expenses and credit, which the master found was reasonable. The orator paid according to the contract, and the defendants paid the same to their lender. Held, that the money so paid by the orator was not usury; as the defendants acted bona fide,and had no intention of contracting for usurious interest; and have not received to their own use, more than the legal rate. But that was usury, which was paid in excess of the legal rate, during that portion of the time when the defendants, by reasonable diligence, could have borrowed the money for six per cent. That which was paid in excess of the legal rate on the old debt due from the orator to the defendants was usury. In Farmers Bank v. Burchard, 33 Vt. 370, it was said: "There must be an intention knowingly to contract for, or to take usurious interest; for if neither party intend it, but act bona fide and innocently, the law will not infer a corrupt agreement. When indeed the contract upon its face imports usury, as by an express reservation of more than legal interest, there is no room for presumption, for the intent is apparent. But when the contract on its face is for legal interest only, then it must be proved that there was some corrupt agreement, or device, or shift to cover usury." The laws against usury were not designed to work out injustice. Jackson v. Jackson, 51 Vt. 253. In Auriol v. Thomas, 2 T. R. 52, it was held that extra charges made by the indorsers of a bill of exchange, in excess of the legal interest, where there had been an agreement for their payment, were not usurious, and might be allowed if they were fair and reasonable, and not a color for usury. See also Lloyd v. Williams, 3 Wils. 261; Hammett v. Zea, 1 B. & P. 153; Corstairs v. Stein, 4 M. & S. 192. The rule has been adopted by courts in this country. Beckwith v. Windsor Manuf. Co., 14 Conn. 594; Beadle v. Munson, 30 id. 175. Vermont Sup. Ct., October term, 1881. Ricker v. Clark. Opinion by Royce, C. J. (54 Vt. 289. Judgment affirmed with costs-Machen v. Lamar Insurance Company; Machen v. Manufacturers' Insurance Company of Newark, N. J.; The Trustees of Canandaigua Academy v. McKechnie; The Sheldon Hat Blocking Company v. The Eickemeyer Hat Blocking and Machine Company.- Judgment reversed and trial granted, costs to abide event-Conger v. Duryee; Stewart v. Brooklyn and Crosstown Railroad Company. -Judgment of General Term reversed, and case remitted to the Special Term-Thorp v. Thorp.― Appeal dismissed with costs-In re William Lane O'Neill, an attorney, etc.; Hawkins v. Boettcher; In re Receipership of Syracuse, Chenango and New York Railroad Comgany, on application of receiver for instructions relrtive to the sale of certain lands.Motion for reargument denied, with $10 costs-In re New York Central and Hudson River Railroad Company v. Cottle. The court then adjourned sine die. NOTES. Mrs. Lillie Devereux Blake objects to the erection of the Statue of Liberty in New York Harbor, alleging The that there is not a free woman in this country.London Law Journal says that the sooner the whipping of criminals is abolished, the better.- - It is astonishing how polite a dissenting judge is to his associates. Thus, in a recent case, one said: "With all due respect for the opinion of my brethren in this case, I most respectfully dissent therefrom," etc.- A lawyer, explaining the meaning of a "contingent fee" to his client, said: “If a lawyer loses the case, he gets nothing. If he wins you get nothing." The Pacific Coast Law Journal says: "One by one the States are falling into line in regard to woman's admission to the bar. Connecticut is the last heard from. If she can plead, why not let her judge? If a woman should be promoted to the bench, how would she evade the democratic prejudice against the wearing of gowns by judges? Will some female brother in law please answer?" The American Law Review for December contains the following leading articles: Some disputed questions in the law of commercial paper, by Henry Wade Rogers; the English Judicature system, by M. D. Chalmers; Taxation for railroads by New England towns, by Edward Payson Payson. The Albany Law Journal. A ALBANY, JANUARY 13, 1883. CURRENT TOPICS. Ta meeting of the New York City Medico-Legal Society, held on the 3d inst., Mr. Clark Bell, the president, delivered an address, in the course of which he called special attention to the subjects of the committal, care, and legal protection of the insane, and the adoption of a new system of investigation and proceeding in cases of sudden death by supposed violence. The Senate of this State a year ago requested the attorney-general and the State commissioner in lunacy to report to the Legislature such amendments to the laws relating to the insane as may be necessary for the better perfecting (sic) of the same, and those officers have referred the matter to this society. President Bell says: "There is great public interest felt in the exciting questions of the proper methods of committing and protecting the insane, and the public mind is aroused to the importance of remedial legislation in the various States, which is by no means confined to this society. A national organization, entitled 'The National Association for the Protection of the Insane and the Prevention of Insanity,' has been organized, which embraces distinguished chemists in various States, and which meets in Philadelphia this month at its annual session. Last year valuable contributions were made by prominent gentlemen which were then read and discussed, and the proceedings published in a journal conducted under the auspices of that body." In regard to inquests and criminal trials, Mr. Bell recommends the "defining and settling the law as to who are experts and what is proper expert testimony in criminal trials, especially when the defense of insanity is interposed, and defining by appropriate legislation the proper course and limit of such a defense in criminal cases." He also recommends the passage of a law: "1. Creating an office to be known as the State chemist, with a salary of not less than $5,000, and not exceeding $10,000 per annum, sufficient to secure the best talent in the State for the office. 2. That he have charge of a laboratory to be furnished by the State, with suitable assistants, and provisions for operating the same under proper provisions. 3. That every case arising in the State in criminal cases, be sent to this officer for analysis, under proper regulations, and that his reports thereon be used in criminal cases for the people and the defense; and that this be placed upon such a basis, both as to the proper selection of an officer (who should be non-partisan and selected only for high attainments in his profession), and its administration, as would enable the people and the accused to have the most careful chemical analysis made, in every case requiring one, arising in the State, at the public expense." We have no definite means of judging, but it seems to us that the establishment of a State laboratory and the employment | VOL. 27- No, 2. of a State chemist would hardly be warranted by the probable amount of public investigation which would be required. We give place in another column to a letter from Mr. George Ticknor Curtis to Mr. Roger Foster, secretary of the Society of Law Reform of the city of New York. It will be seen that Mr. Curtis occupies a middle ground- tries to steer between Scylla and Charybdis- believing that some of the common law can and ought to be codified, and that other parts of it cannot. This is an idea that we never could understand. It seems to us that if any part of the common law is susceptible of codification it all is. We may be better fitted and able to codify some parts of it than other parts; some parts may be more easily codified than other parts; but to tell us that some parts can never be successfully codified, while other parts can be, is like telling us that it is possible to make a dictionary of the English language only in part. It is only a question of intelligence and industry. As to revision of the Code now proposed, revision simply means hanging it up for another quarter of a century. yer. A Connecticut correspondent, recalling our allusion to Judge Folger's eulogy on Chief Judge Church, published in 77 New York Reports, refers us to ex-Governor Hubbard's eulogy on William Hungerford, printed in 39 Connecticut Reports, remarking, "Many persons think this the best thing published in modern times." It certainly is a very beautiful production, and we take pleasure in reproducing the closing passages: "And now when I consider this long life closed-these many years ended of eminent labor in the highest ranks of the forum- and nothing left of it all but a tolling bell, a handful of earth and a passing tradition- a tradition already half past - I am reminded of the infelicity which attends the reputation of a great lawTo my thinking, the most vigorous brain work of the world is done in the ranks of our profession. And then our work concerns the highest of all temporal interests, property, reputation, the peace of families, liberty, life even, the foundations of society, the jurisprudence of the world, and as a recent event has shown, the arbitrations and peace of nations. The world accepts the work, but forgets the workers. The waste hours of Lord Bacon and Serjeant Talfourd were devoted to letters, and each is infinitely better remembered for his mere literary diversions than for his whole long and laborious professional life-work. The cheap caricatures of Dickens on the profession will outlive, I fear, in the popular memory, the judgments of Chief Justice Marshall, for the latter were not clownish burlesques, but only masterpieces of reason and jurisprudence. The victory gained by the counsel of the seven bishops was worth infinitely more to the people of England than all the triumphs of the Crimean war. But one Lord Cardigan led a foolishly brilliant charge against a Russian battery at Balaklava, and became immortal. Who led the great charge of the seven great confessors of the English church against the English crown at Westminster Hall? You must go to your books to answer. They were not on horseback. They wore gowns instead of epaulettes. The truth is, we are like the little insects that in the unseen depths of the ocean lay the coral foundations of uprising islands. In the end come the solid land, the olive and the vine, the habitations of man, the arts and industries of life, the havens of the sea and ships riding at anchor. But the busy toilers which laid the beams of a continent in a dreary waste are entombed in their work and forgotten in their tombs. Yet the infelicity to which I have alluded is not without its compensations. For what, after all, is posthumous fame to him who brought nothing into this world and may carry nothing out? The dead leave behind their reputations alike with their estates. A man may be libelled to-day as a fool, fanatic, and a knave, and to-morrow his libellers sneak into his funeral procession, and the chief magistrate of forty millions of freemen begs the honor of two feet of space at his obsequies. It is the old story - the tax which posthumous fame so often pays for its title a garret and a crust in life, a mausoleum and statue afterward. What avails it all? We may justly console ourselves with the reflection that we belong to a profession which above all others shapes and fashions the institutions in which we live, and which, in the language of a great statesman, 'is as ancient as the magistracy, as noble as virtue, as necessary as justice'a profession, I venture to add, which is generous and fraternal above all others, and in which living merit is appreciated in its day, according to its deserts, and by none so quickly and so ungrudgingly as by those who are its professional contemporaries and its competitors in the same field. We have our rivalries who else has more ?-but they seldom produce jealousies. We have our contentions - who else has so many? -but they seldom produce enmities. The old Saxons used to cover their fires on every hearth at the sound of the evening curfew. In like manner, but to a better purpose, we also cover at each nightfall the embers of each day's struggle and strife. We never defer our amnesties till after death, and have less occasion therefore than some others to deal in post mortem bronzes and marbles. So much we may say without arrogance of ourselves so much of our noble profession. No better proof and illustration can be found than in the life just closed - a life clear and clean in its aims- full of busy and useful labors void, I dare believe, of offense toward God and man, and crowned in its course with that three-fold scriptural blessing-length of days, and riches, and honor." IN - NOTES OF CASES. ́N Baltimore and Ohio R. Co. v. Schwindling, Pennsylvania Supreme Court, November 20, 1882, 12 W. N. C. 349, A., a boy of between five and six years of age, was standing near the edge of a rail * * * * * * way platform amusing himself by looking at a passing train. He was not there as a passenger, nor had he any business with the railroad company. While so standing he was struck by a step projecting from the side of a train which was moving slowly past the platform. The step had been so bent as to project several inches more than the other steps on the train. In a suit by A. against the railroad company to recover damages for the injury done him, held, that the plaintiff was not entitled to recover. The court said: "We held in the case of Gillis v. Pennsylvania R. Co., 9 P. F. S. on p. 141, that 'the platform of a railroad company at its station or stopping-place is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being uninclosed, persons are allowed the privilege of walking over it for other purposes, but they have no legal right to do so.' 'Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner.' Again, on page 143, 'the plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it; but he was where he had no legal right to be; his presence there was in no way connected with the purposes for which the platform was constructed.' 'As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others, they were liable only for wanton or intentional injury.' 'The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity, or to give vent to his patriotic feelings. The defendant had nothing to do with that.' Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery, although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers, or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff; but there was no such duty, because of the absence of the relation, and hence there was no right of action. * * * It is not denied that this would be true if the plaintiff were an adult; how then can it be otherwise than true as to a child? The absence of duty is precisely the same in either case, and the consequent absence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children cannot recover unless there is negligence, and there can be no negligence without a breach of duty. In Kay v. Pennsylvania R. Co., 15 P. F. S. on p. 276; S. C., 3 Am. Rep. 628, we said: 'If there be no negligence on the part of the company, then the incapacity of the child cre But ordinary care is incumbent upon the company. ates no liability, and its injury is its own misfortune, which it must bear.' In Philadelphia and Reading R. Co. v. Spearen, 11 Wr. 300, where a child five years old suddenly ran across the track in front of an approaching engine and was struck and injured, we said, on page 303: The engine in this case hav-burgh, etc., Ry. Co., 95 Penn. St. 398; S. C., 40 Am, ing safely passed the crossing appropriated to trav- Rep. 664, and note, 667; 25 Alb. Law Jour. 304. ellers, the engineer was under no duty to suppose any one would attempt to cross the track suddenly right in front of the engine. He had a right to suppose a clear track, and was not guilty in failing to use precaution where he had no reason to expect interruption.' In Hargreaves v. Deacon, 25 Mich. 1, the court said, the plaintiff being a child of tender years: We have found no support for any rule which would protect those (child or adult) who go where they are not invited, but merely with express or tacit permission, from curiosity, or motives of private convenience, in no way connected with business or other relations with the occupant.' In Morrisey v. Eastern Railroad Co., 126 Mass. 377; S. C., 30 Am. Rep. 686, the action was brought by a child four years of age, who was injured while playing upon the track of the defendant. The court said: 'The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger nor on his way to become one, but was there merely for his own amusement, and was using the track for a play-ground. The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him.' In Gillespie v. McGowan we held that the owners of uninclosed lots in Philadelphia owed no duty of protection even to children against the danger of falling into an open well on the premises, although the field in question was crossed by frequented paths and used as a place of resort by children and adults. In Moore v. Phialdelphia and Reading Railroad Co. we held there could be no recovery for the death of a boy ten years of age who was struck by an engine while walking on and along the track, on the ends of the cross-ties. We said: "The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult.' In the case of Philadelphia and Reading R. Co. v. Heil a child four years of age was struck, as it was claimed, by the projecting axle-box of a car, which extended one foot six inches beyond the outside of the rail, and three inches over the line of the street curb. He was on the public street-walk where he had a right to be, but he was so close to the car that he was struck, as was supposed, by the projecting axle. We held that there was not sufficient evidence of negligence in these circumstances to submit the case to the jury. The cases of injuries to persons while crossing the track at permissive crossings are not analogous and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of Another platform case is Dobiecki v. Sharp, 88 N. Y. 203. There the plaintiff's intestate, while standing on the platform, waiting for a train, was struck and killed by a passing train, the cars of which projected over the platform from three to five inches. The questions of negligence and contributory negligence were held to be for the jury. The court said on the latter point: "The claim of the appellant's counsel that the deceased was chargeable with knowledge of the draft of an express train while passing and was precluded from a recovery by not placing himself beyond the line of danger, is not well founded. While he had no right to expose himself to danger by making close calculations as to the speed of the train by taking any unusual risks, it by no means follows because he was upon the platform at this time that he was there without right and was chargeable with contributory negligence. We think he had a right to be upon the platform for the purpose of prosecuting the journey he had started to take. It was erected for the accommodation of travellers, and they have a right to assume that they may be there without being exposed to unnecessary hazard or danger. Brassell v. N. Y. C. and H. R. R. R. Co., 84 N. Y. 241; Weston v. N. Y. El. R. R. Co., 73 id. 595. They are invited to come there, and so far as is necessary to remain for the purpose of travelling in the cars. As a matter of course they are bound to be careful and cautious in not exposing themselves to needless danger, and they would not be free from negligence if while a train was passing they unnecessarily placed themselves in a position to be struck and injured by it. They must employ reasonable care and circumspection in their conduct while there, and if they fail to do this they have no redress if injuries occur. The cases cited by the defendant's counsel to sustain the position that the company is not liable under circumstances like those here presented are not analogous, as will be seen by an examination of the same. In Rigg v. M. S. and L. R. Co., Part 1, 12 Jurist (N. S.), 525, the injury was caused by the deceased while under a temporary infliction caused by himself. He was running arm and arm with a companion in a footway by the side of the railroad to catch the train, and caught his foot in the interstices between the planks of which the footway was made and both himself and his companion fell over on the rails as the train came in. The deceased was killed, and his companion saved himself with great difficulty. The platform was too narrow for two to walk abreast and the condition of the parties, who had been drinking freely, prevented the exercise of due care and caution. It was held that negligence of defendant. It is no answer to the position to say that the intestate had the opportunity to acquire the knowledge, for the reason that he had but to direct his eyes to the track in order to discover the absence of the blocks. He could see that the blocks were not used, but he may not have known that there was danger without them; and knowledge of this fact, we have seen, is what the law requires. If the intestate was inexperienced in the operation of railroads, he ought not to be charged with knowledge which only an experienced man could be presumed to possess. If the defendant employed him as an inexperienced man, it the railroad company was not negligent and no recovery could be had. The question was different from the one now considered, and the case cited is not in point. In Watkins v. Great Western R. Co., 37 L. T. (N. S.) 193, a railway porter was standing on a plank in broad daylight thrown across from parapet to parapet of a foot-bridge connecting the two platforms of a station, cleaning a lamp, when the plaintiff, accompanying her daughter to a train, in crossing the bridge struck her head against the plank and was injured, and it was held that the plaintiff could not recover. It was said by Denman, J., that the obstruction was one which the plaintiff could have seen if she had not been walk-ought not to claim that he had, or could have had, ing with her eyes toward the ground. That the accident did not happen owing to any breach of duty on the part of the defendant, but solely owing to the unfortunate circumstance that the plaintiff walked with her eyes on the ground instead of looking before her. The contributory negligence of the plaintiff was very obvious in the last case cited, and the case has no bearing upon the question now considered." Finch and Tracy, JJ., dissenting. On the subject of patent dangers in a servant's duty, see Mayes v. Chicago, Rock Island and Pacific Ry. Co., Iowa Supreme Court, December 15, 1882, 14 N. W. Rep. 340. There a switchman was killed by the neglect of the company to place blocks between the guard rails and the track rails at the switch, and it was held that the deceased was not necessarily negligent in continuing in the employment although the absence of the blocks was evident. The court said: "The intestate, if he knew, or by ordinary diligence could have known, of the defects in the track negligently permitted by defendant, and remained in defendant's employment without objection, he thereby waived the right of plaintiff to recover. This accords with the rules of many prior decisions of this court. See Wells v. B., C. R. and N. Ry. Co., 9 N. W. Rep. 364; Perigo v. C., R. I. and P. Ry. Co., 52 Iowa, 276, and cases therein cited. The knowledge of the defects possessed by intestate, and his ability, in the exercise of ordinary diligence, to acquire knowledge thereof, are questions of fact to be determined upon the testimony submitted in the case. They are not questions of law. The fact that the want of blocks was apparent to all observers does not charge him with a knowledge or a want of knowledge of the defects in the track. He must have known, or possessed the means of knowing, that the absence of the blocks was a defect causing danger to him and to others. It is very plain that to bring the case within the rule above stated the intestate must have known, or in the exercise of reasonable diligence could have known, the dangers and perils resulting from the absence of the blocks. Now, if it should appear that the intestate, by reason of his lack of experience, did not know, or in the exercise of ordinary diligence could not know, of these perils and dangers, the law will not hold that he waived the knowledge possessed by men familiar with railroads. It was the province of the jury to determine whether the intestate, in view of his experience and the time he had been employed as a switchman, and of other facts of the case, knew, or in the exercise of reaSonable diligence could have known, of the perils and dangers resulting from an absence of the blocks between the guard rail and the rail of the track. These are questions of fact, not of law." On the other hand, DeForest v. Jewett, 88 N. Y. 264, is a case of an obvious danger. There the plaintiff's intestate was employed by defendant as switchman and car coupler, working in a freight yard drained by a system of small open ditches, running across the tracks between the ties, which were in existence when he entered the employment, remained without any change or alteration, and were all well known to him, and while engaged in coupling cars he stepped into one of these sluices, fell under the cars and was killed; held, that defendant was not liable. He did to sell milk in a certain town is not broken |