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used in the sense of “dead.” 1
is not absolutely necessary, but equiva- prison, and had acquired no other delent words will answer. And from the termined place of residence, there apauthorities cited by defendant's counsel, pearing to be no intention to mislead. the term 'late' would seem to be full as But LORD ELLENBOROUGH, C. J., obstrong as the words of the statute. In served that when a party had left one the connection in which it is found, the residence and resided in another at the evident meaning is that the deceased time of making the affidavit, his dewas 'last' a resident of San Francisco scribing himself as late of the place county." Beckett ?'. Selover, 7 Cal. where he had ceased to reside would be 215, 226, 233; see also i Chit. Cr. L. considered as an evasion, and would not 209; Stark Cr. Pl. 65; King v. Yandell, satisfy the rule. The rule to show 4 Term 521, 541.
cause was, therefore, discharged. SedA rule was obtained upon the plain- ley 7'. White, 11 East 528. tiff to show cause why the bail bond Where a bequest was made in a will, should not be delivered up to be can- “ to the children of R. H., late of Norcelled on the defendant's entering a wich, and now of London," it was obcommon appearance,
which was jected to as a mistake, R. H. having founded upon an objection to the affida- lett Norwich at the age of fourteen vit for holding the defendant to bail, sixteen, and
died in London wherein the plaintiff described himself several years before the will, while as “late in the counter prison of Gilt- G. H., formerly of Norwich, residspur street in the city of London.” ed in London at the testator's And it now appeared upon affidavit death. The court refused to reform the that the plaintiff, for some time prior to will and give the legacy to the children the 28th of January last, was a pris- of G. H., Sir WILLIAM GRANT, M. oner there, but had been discharged on R., saying: “First, as to the descripthat day, and having no particular tion, late of Norwich,' not answering place of residence in
to Robert, who had not resided there by the courtesy of the jailor for many years, every one knows the permitted to lodge night in sense of "late” is, not recently, but the prison, and had done formerly, of Norwich. Then, as to the up to the 31st, on which day the circumstances, that he was not living at aifidavit in question was made. It was the date of the will; he was at a disthereupon objected that “late of the tance; and the testator might not have counter prison" was not a proper addi- known of his death, or might have fortion of the place of residence of the de- gotten it.” Holmes v. Custance, 12 ponent as required in every affidavit Ves. 279. by the rule of court of M., 15 Car. 2, by 1. A slave was indicted for murder which it is ordered that the true place and the indictment charged him to be of abode and the true addition of every a slave, “the property of the late Willperson who shall make affidavit in iam Copeland.” 'It was moved in arcourt here shall be inserted in such rest of judgment that the ownership of affidavit. It was contended that the the accused was not sufficiently alleged. deponent stating himself to be late of The court reversed the judgment, such a place was not a compliance with DARGAN, C. J., saying: “It is necesthe rule which required him to state sary to prove the ownership of a slave his place of abode at the time of when indicted for a capital offence, and making the affidavit, for the word late being necessary to prove it, of course might be used at any time after the the ownership must be alleged, if the party has changed his abode to avoid
owner is known to the jurors. Is the being traced. The court, however, ownership of the accused sufficiently thought the description applied well averred ? The allegation is that Pleasenough to the peculiar situation of the ant, a slave, the property of the late deponent at the time, he having then William Copeland.' In the sense in recently been discharged out of the which the adjective late is here used, it custody of the keeper of the prison, means existing long ago, but now deand therefore having ceased to be a parted this life. This is the meaning prisoner, though by permission of the all would give it, and no doubt is the keeper, he had up to the day of making meaning intended to be attached to it the affidavit lodged at night within the by the pleader. The accused is there
LATENT—(See AMBIGUITY; PATENT).--Lying hid or concealed ; not upon the surface or apparent.
LATENT AMBIGUITY.-See AMBIGUITY, vol. 1, p. 525. LATENT DEFECTS. See also CARRIERS OF PASSENGERS; CONTRIBUTORY NEGLIGENCE; FELLOW SERVANTS; FRAUDULENT SALES; IMPLIED WARRANTY ; MASTER AND SERVANT ; MUNICIPAL CORPORATIONS; NEGLIGENCE; RAILROADS; SALES.
1. In Vehicles, 910.
(915. IV. Municipal Corporation's Liability II. Passenger Carrier's Liability for, III. Employee's Liability for, 923. V. In Goods Sold, 926.
I. IN VEHICLES - Liability of Coach Proprietors.--Proprietors of coaches, who carry passengers for hire, are answerable to a passenger in this country for an injury which happens by reason of a defect in a coach which might have been discovered by the most careful and thorough examination. But such proprietors are not liable for an injury which happens by reason of a hidden defect which could not upon such examination have been discovered.2
Liability of Livery Stable Keepers.—The principle has been applied to livery stable keepers so as to hold them not responsible for defects in their carriages and harnesses, which they did not know, and could not have discovered by the most careful scrutiny 3
Liability of Passenger Carriers. But there has been considered to be a difference in the modes of examination requisite in the fore alleged to be the property of one some sixteen years. Upon these facts not in life. This cannot be, for the the court, KIRKPATRICK, C. J., charged dead can own no property. Death the jury, inter alia, as follows: “ It is a strips us of all rights and title to prop- clear principle of law that a laten: erty, and casts thein on the living, who deed, that is, a deed kept for twenty
one can own property. The owner- years or more in a man's scrutoire, or ship of the accused is, therefore, not strong box, accompanied with no actual alleged, and the indictment is conse- distinctive and adverse possession, is quently defective. The judgment must entitled to no consideration in a court he reversed and the cause remanded." of justice. It is no ground for recovPleasant v. State, 17 Ala. 190.
ery in an action of ejectment against 1. Latent Deed.-In an action of eject the actual possessor. This deed, even ment the plaintiff rested his title on a if it should be considered as a good and deed from his father dated more than valid deed at the time of its execution, forty years before the date of the ac- and notwithstanding the pretended tion. The defendant, who was the erasures, is dated forty years ago or wife of plaintiff's brother, claimed title more, and whether such possession as from her husband, who had purchased I have described has accompanied it, the property at an orphans court sale is a matter of fact for you to determine to pay the debts of his father. There upon the evidence, for, as to the fact, it was evidence that the plaintiff, who was does not belong to the court, so far as living on the land at the time of the to the title of the plaintiff.” Den v. deed and moved off it at his father's Wright, 2 Halst. (N. J.) 175. death, continued to use it for pasture 2. Ingalls v'. Bills, 9 Metc. (Mass.) 1; and fire wood. It also appeared that S. C., 43 Am. Dec. 346. the defendant's husband was in posses- 3. Hadley 7. Cross, 34 Vt. 586; s. C., sion of the land from the date of his So Am. Dec. 699. Compare as to liapurchase until his death, a period of bility of livery stable keeper for safety
case of a stage coach and a railroad car. Accordingly, it has been held, under the New York doctrine, that a railroad company is liable for an injury sustained by a passenger in consequence of the breaking of an axle attributable to a defect in the material of which it was made, notwithstanding the defect was latent, and could not have been discovered by ordinary inspection if it could have been ascertained by any tests known to manufacturers. According to this view, the company is not shielded from liability by the fact that it purchased the car from experienced and skilful manufacturers. 1
of coach house in which a carriage is material.
It was said that carplac d. Searle v. Laverick, L. R., 9 riers of passengers are not insurers. Q. B. 122; s. C., 8 Eng. Rep. 298.
This is true. That they were not re1. Hegeman v. Western R. Co., 13 N. quired to become smelters of iron or Y.13 Kern.) 9; S. C., 64 Am. Dec. 517, manufacturers of cars in the prosecuwith exhaustive note 521 on liability of tion of their business. This also must carriers of passengers for injuries re- be conceded. What the law does resulting from defects in their vehicles quire is that they shall furnish a sufand other appliances. In this ficient car to secure the safety of their GARDINER, C. J., speaking for the court, passengers by the exercise of the 'utsupported the charge of the court be- most care and skill in its preparation.' low, the substance of which was stated They may construct it themselves or to be “that although the defect was latent avail themselves of the services of and could not be discovered by the most others; but in either case they engage vigilant external examination, yet if it that all that well directed skill can do could be ascertained by a known test, has been done for the accomplishment applied either by the manufacturer or of this object. A good reputation upon the defendant, the latter was responsi- the part of the builder is very weil in ble.” Concerning the case of Ingalls v. itself, but ought not to be accepted by Bills, 9 Met. (Mass.) 1; s. C., 43 Am. the public or the law as a substitute for Dec. 346, the chief justice said that a good vehicle. What is demanded, "was the case of a stage coach in which and what is undertaken by the corporathe injury was occasioned by the break- tion, is, not merely that the manufacting of the axle; the fracture was in- urer had the requisite capacity, but ternal, and surrounded by sound iron one that it was skilfully exercised in the quarter of an inch thick. The court particular instance. If to this extent held that when the accident arises from they are not responsible, there is no a hidden and internal defect, and could security for individuals or the public. not be guarded against by the exercise It is perfectly understood that latent of a sound judgment and the most vig- defects may exist, undiscoverable by the ilant oversight, then the proprietor was most vigilant examination, when the not liable for the injury. I concur in fabric is completed, from which the most that decision in the particular case pre- serious accidents have and may occur. sented; but the learned judge did not It is also well known, as the evidence intimate that a sound judgment and the in this suit tended to prove, and the most vigilant oversight would be evi- jury have found, that a simple test (that denced by the adoption of the same of bending the iron after the axle was methods of examination in the case of a formed and before it was connected with stage coach and a car for the express the wheel) existed by which it could be train of a railroad. The mode of con- detected. This should have been known struction, the purposes to be subserved, and applied by men professing skill in and, above all, the probable conse- that particular business.' It was not quences of a hidden defect in the two known, or, it known, was not applied by cases, are altogether different. It might these manufacturers. It was not used as plausibly be urged that a chain for by the defendant, nor did the company agricultural purposes and a cable of a enquire whether it had been used by ship of the line should be subjected to the builders. The company relied upon the same tests, because both were chains, an external examination, which it was and each manufactured of the same bound to know would not, however
This position, so far as concerns the responsibility of the carrier of passengers for the negligence of the manufacturer, conforms to the view which is believed to be the prevalent one. 1. But a different view has been maintained by cases in Michigan and Tennessee.2 In several other States there appears to be an inclination towards the same position, while, on the other hand, a more rigid rule has been suggested than that embodied in the prevailing doctrine. Indeed, the diversity and uncertainty in the decisions is such as to necessitate the full review subsequently given of the doctrines developed in various States on the subject.3
Conclusions Concerning Passenger Carrier's Liability.- From this review it will be seen that it is quite universally agreed, though sometimes negatively stated, that a passenger carrier is liable for latent defects in his vehicles and appliances, such as could be discovered by the most careful inspection,4 and that according to the view which may be regarded as preponderating, such carrier appears to be further held responsible, presumably
faithfully prosecuted, guard its passen- Steinweg V. Erie R. Co., 43 N. gers against the danger arising from Y. 123; s. C., 3 Am. Rep. 673; Cald. concealed defects in the iron of the well z. New Jersey S.Co., 47 N. Y. 287, axles, or in the manufacture of them. all citing the principal case. HutchinFor this omission of duty, or want of in his work on Carriers, says: "The skill, the learned judge held, and ! better opinion and the decided weight think correctly, that they were liable." of authority is in favor of the position This case is cited in regard to what that, so far as the passenger is condoes or does not constitute negligence cerned, the carrier is responsible for the on the part of a railroad company in negligence of the manufacturer.' Steinweg r'. Erie R. Co., 43 N. Y. 123; Hutchinson on Carriers, § 512. And S. C., 3 Am. Rep. 673, 675. It is also Thompson says: “The negligence cited on various points in Johnson '. of the manufacturer of a railway coach Hudson River R. Co., 20 N. Y. 65, 76; is to be imputed to the passenger. It is Unger 1'. Forty Second Street etc. R. not sufficient that the carrier assures Co., 51 N. Y. 197, 502; Smith 7. New himself that the manufacturer is of York etc. R. Co., 6 Duer (N. Y.) 225, good repute in his business. If the 231; and in The City of Panama, 101 manufacturer has failed to supply a U. S. 453, 462.
reasonable test which would have asIt is discussed and stated in other certained the defect, the carrier is New York cases later considered; and answerable for the consequences of this its authority is acknowledged, though it negligence, as though it had been his is declared to have always been re
This doctrine is denied by the garded as carrying the doctrine of lia- supreme court of Michigan in á late bility of railroad corporations to the ex- case (Grand Rapids etc. R. Co. i'. tremest verge of the law, in Brehm 7'. Iluntley, 38 Mich. 537; s. C., 31 Am. Great Western R. Co., 34 Barb. iN. Y.) Rep. 321); but for reasons which are 256, 275.
believed to be unsound.' Thompson on 1. See note to the Hegeman case in Carriers of Passengers 221." 64 Am. Dec. 525, where it is said: “The 2. Grand Rapids etc. R. Co. 7'. Huntdoctrine of the principal case on this ley, 38 Mich. 537; s. C., 31 Am. Rep. point is firmly established in the courts 321; Nashville etc. R. Co. v. Jones, 9 of New York. Curtis 7'. Rochester Heisk. (Tenn.) 27. etc. R. Co., 18 N. Y. 538; Perkins v. 3. In addition to the cases later reNew York Cent. R. Co., 24 N. Y. 219; viewed, consult also Yorkes z'. Keokuk Bissell v. New York Cent. R. Có.. etc. Packet Co., 7 Mo. App. 265. 25 N. Y. 445; Broun
New 4. Ladd v'. New Bedford R, Co., 119 York Cent. R. Co., 34 N. Y. 408; Mass. 412, 413; s. C., 20 Am. Rep. 331;
upon the ground of imputed negligence, for latent defects which could have been ascertained by any tests known to the manufacturers m whom the articles were procured, and is not exempted from liability by the fact that he purchased the articles from reputable manufacturers ;? but that there has been a general repudiation of the attempt 2 to hold the carrier responsible irrespective of his negligence upon the ground that he is absolutely bound to furnish a roadworthy vehicle or appliance.3
Meier v. Pennsylvania R. Co., 64 Pa. der it, and the evidence was not such as St. 225; s. C., 3 Am. Rep. 581, 583. to show that the breakage of the bolt Consult and compare also Illinois Cent. was, in the proper sense of the word, an R. Co. v. Phillips, 49 Ill. 234, 238. accident not preventable by care or
1. Hegeman 2. Western R. Co., 13 skill, or to warrant the finding of the N. Y. (3 Kern.) 9; s. C., 64 Am. Dec. jury that the carriage was reasonably 517. But see contra Grand Rapids etc. fit for the purpose for which it was R. Co. v. Huntley, 38 Mich. 537; s. C., hired. LINDLEY, J., regarded the ques31 Am. Rep. 321; Nashville etc. R. Co. tion as of considerable difficulty and v. Jones, 9 Heisk. (Tenn.) 27, 42. importance, and cited the following as
2. Made in Alden v. New York Cent. the most important of the authorities R. Co., 26 N. Y. 102.
examined: Christie v. Griggs, 2 Camp. 3. McPadden v. New York Cent. R. So; Brenmer v. Williams, i Car. & P. Co., 44 N. Y. 478; s. C., 4 Am. Rep. 414; Sharp v. Grey, 9 Bing. 457; Read705; Meier v. Pennsylvania R. Co., 64 head v. Midland Ř. Co., Law R., 2 Q. Pa St. 225; s. C., 3 Am. Rep. 581. B. 412; Francis v. Cockrell, Law R., 3
English Views as to Person Letting Out Q. B. 184 501; Fowler v. Lock, Law R., Carriages.-In England the doctrine is 7 C. P. 272; s. C., 2 Eng. Rep. 586; s. c., maintained that a person who lets out L. R., 10 C. P.go; or 11 Eng. Rep. 268; carriages is not an insurer against all Searle v. Lanerick, Law R., 9 Q. B. detects, whether discoverable or not, 122; S. C., 8 Eng. Rep. 298; Kopitoff v. but that, like coach proprietors or rail- Wilson, L. R., 1 Q. B. D. 377; s. C., 16 way companies, he is an insurer against Eng. Rep. 411; Randall v. Newson, L. all defects which care and skill can R., 2 Q. B. D. 102; s. c., 19 Eng. Rep. guard against. Hyman v. Nye, L. R., 243. Story on Bailments, $$ 498. 502. 6 Q. B. D. 685, 687; s. C., 29 Éng. Rep. "A careful study of these authorities," 769, 771. In this case a party hired he said, "leads me to the conclusion that from a jobmaster, who let out carriages the learned judge at the trial put the and horses for hire, a carriage, a pair of duty of the defendant too low. horses and a driver. During the jour son who lets cut carriages is not, in my ney a bolt in the under part of the opinion, responsible for all defects discarriage broke, the splinter bar became coverable or not; he is not an insurer displaced, the horses started off, the against all defects, nor is he bound to carriage was upset, and the hirer was take more care than coach proprietors injured. In an action by the hirer or railway companies, who provide against the jobmaster for negligence, carriages for the public to travel in; but the jury was directed that if, in its in my opinion he is bound to take as opinion, the defendant took all reason- much care as they; and although not able care to provide a fit and proper an insurer against all defects, he is an carriage, their verdict ought to be for insurer against all defects which care him. The jury found a verdict for the and skill can guard against. His duty defendant, and in particular that the appears to me to be to supply a carriage carriage, was reasonably fit for the pur- as fit for the purpose for which it was pose for which it was hired, and that hired as skill and care can render it; the defect in the bolt could not have and it, whilst the carriage is being propbeen discovered by the defendant byerly used for such purpose, it breaks ordinary care and attention.
down. it becomes incumbent on the held that the verdict was wrong, as it was person who has let it out to show that the duty of the defendant to supply a the break down was, in the proper sense carriage as fit for the purpose for which of the word, an accident not preventable it was hired as care and skill could ren- by any care or skill. If he can prore 12 C. of L.-58