used in the sense of "dead."1 In is not absolutely necessary, but equivalent words will answer. And from the authorities cited by defendant's counsel, the term 'late' would seem to be full as strong as the words of the statute. the connection in which it is found, the evident meaning is that the deceased was 'last' a resident of San Francisco county." Beckett v. Selover, 7 Cal. 215, 226, 233; see also Chit. Cr. L. 209; Stark Cr. Pl. 65; King v. Yandell, 4 Term 521, 541. A rule was obtained upon the plaintiff to show cause why the bail bond should not be delivered up to be cancelled on the defendant's entering a common appearance, which was founded upon an objection to the affidavit for holding the defendant to bail, wherein the plaintiff described himself as "late in the counter prison of Gilt spur street in the city of London." And it now appeared upon affidavit that the plaintiff, for some time prior to the 28th of January last, was a prisoner there, but had been discharged on that day, and having no particular place of residence in town was by the courtesy of the jailor permitted to lodge at night in the prison, and had done so up to the 31st, on which day the affidavit in question was made. It was thereupon objected that "late of the counter prison" was not a proper addition of the place of residence of the deponent as required in every affidavit by the rule of court of M., 15 Car. 2, by which it is ordered that the true place of abode and the true addition of every person who shall make affidavit in court here shall be inserted in such affidavit. It was contended that the deponent stating himself to be late of such a place was not a compliance with the rule which required him to state his place of abode at the time of making the affidavit, for the word late might be used at any time after the party has changed his abode to avoid being traced. The court, however, thought the description applied well enough to the peculiar situation of the deponent at the time, he having then recently been discharged out of the custody of the keeper of the prison, and therefore having ceased to be a prisoner, though by permission of the keeper, he had up to the day of making the affidavit lodged at night within the prison, and had acquired no other determined place of residence, there appearing to be no intention to mislead. But LORD ELLENBOROUGH, C. J., observed that when a party had left one residence and resided in another at the time of making the affidavit, his describing himself as late of the place where he had ceased to reside would be considered as an evasion, and would not satisfy the rule. The rule to show cause was, therefore, discharged. ley v. White, 11 East 528. Sed Where a bequest was made in a will, "to the children of R. H., late of Norwich, and now of London," it was objected to as a mistake, R. H. having left Norwich at the age of fourteen or sixteen, and died in London several years before the will, while G. H., formerly of Norwich, resided in London at the testator's death. The court refused to reform the will and give the legacy to the children of G. H., Sir WILLIAM GRANT, M. R., saying: "First, as to the description, 'late of Norwich,' not answering to Robert, who had not resided there for many years, every one knows the sense of late" is, not recently, but formerly, of Norwich. Then, as to the circumstances, that he was not living at the date of the will; he was at a distance; and the testator might not have known of his death, or might have forgotten it." Holmes v. Custance, 12 Ves. 279. 1. A slave was indicted for murder and the indictment charged him to be a slave, "the property of the late William Copeland." It was moved in arrest of judgment that the ownership of the accused was not sufficiently alleged. The court reversed the judgment, DARGAN, C. J., saying: "It is necessary to prove the ownership of a slave when indicted for a capital offence, and being necessary to prove it, of course the ownership must be alleged, if the owner is known to the jurors. Is the ownership of the accused sufficiently averred? The allegation is that Pleasant, a slave, the property of the late William Copeland.' In the sense in which the adjective late is here used, it means existing long ago, but now departed this life. This is the meaning all would give it, and no doubt is the meaning intended to be attached to it by the pleader. The accused is there LATENT (See AMBIGUITY; PATENT).--Lying hid or cealed; not upon the surface or apparent.1 LATENT AMBIGUITY. See AMBIGUITY, vol. 1, p. 525. con LATENT DEFECTS.-See also CARRIERS OF PASSENGERS; CONTRIBUTORY NEGLIGENCE; FELLOW SERVANTS; FRAUDULENT SALES; IMPLIED WARRANTY; MASTER AND SERVANT; MUNICI PAL CORPORATIONS; NEGLIGENCE; RAILROADS; SALES. I. In Vehicles, 910. [915. IV. Municipal Corporation's Liability for, 925. 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 not in life. This cannot be, for the dead can own no property. Death strips us of all rights and title to property, and casts them on the living, who alone can own property. The ownership of the accused is, therefore, not alleged, and the indictment is consequently defective. The judgment must be reversed and the cause remanded." Pleasant v. State, 17 Ala. 190. 1. Latent Deed.-In an action of ejectment the plaintiff rested his title on a deed from his father dated more than forty years before the date of the action. The defendant, who was the wife of plaintiff's brother, claimed title from her husband, who had purchased the property at an orphans court sale to pay the debts of his father. There was evidence that the plaintiff, who was living on the land at the time of the deed and moved off it at his father's death, continued to use it for pasture and fire wood. It also appeared that the defendant's husband was in possession of the land from the date of his purchase until his death, a period of some sixteen years. Upon these facts the court, KIRKPATRICK, C. J., charged the jury, inter alia, as follows: It is a clear principle of law that a latent deed, that is, a deed kept for twenty years or more in a man's scrutoire, or strong box, accompanied with no actual distinctive and adverse possession, is entitled to no consideration in a court of justice. It is no ground for recovery in an action of ejectment against the actual possessor. This deed, even if it should be considered as a good and valid deed at the time of its execution, and notwithstanding the pretended erasures, is dated forty years ago or more, and whether such possession as I have described has accompanied it, is a matter of fact for you to determine upon the evidence, for, as to the fact, it does not belong to the court, so far as to the title of the plaintiff." Den v. Wright, 2 Halst. (N. J.) 175. 2. Ingalls v. Bills, 9 Metc. (Mass.) 1; s. c., 43 Am. Dec. 346. 3. Hadley v. Cross, 34 Vt. 586; s. c., So Am. Dec. 699. Compare as to liability 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 placed. Searle v. Laverick, L. R., 9 Q. B. 122; s. c., 8 Eng. Rep. 298. 1. Hegeman v. Western R. Co., 13 N. Y. (3 Kern.) 9; s. c., 64 Am. Dec. 517, with exhaustive note 521 on liability of carriers of passengers for injuries resulting from defects in their vehicles and other appliances. In this case GARDINER, C. J., speaking for the court, supported the charge of the court below, the substance of which was stated to be "that although the defect was latent and could not be discovered by the most vigilant external examination, yet if it could be ascertained by a known test, applied either by the manufacturer or the defendant, the latter was responsible." Concerning the case of Ingalls v. Bills, 9 Met. (Mass.) 1; s. c., 43 Am. Dec. 346, the chief justice said that "was the case of a stage coach in which the injury was occasioned by the breaking of the axle; the fracture was internal, and surrounded by sound iron one quarter of an inch thick. The court held that when the accident arises from a hidden and internal defect, and could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor was not liable for the injury. I concur in that decision in the particular case presented; but the learned judge did not intimate that a sound judgment and the most vigilant oversight' would be evidenced by the adoption of the same methods of examination in the case of a stage coach and a car for the express train of a railroad. The mode of construction, the purposes to be subserved, and, above all, the probable conse quences of a hidden defect in the two cases, are altogether different. It might as plausibly be urged that a chain for agricultural purposes and a cable of a ship of the line should be subjected to the same tests, because both were chains, and each manufactured of the same material. It was said that car riers of passengers are not insurers. This is true. That they were not required to become smelters of iron or manufacturers of cars in the prosecution of their business. This also must be conceded. What the law does require is that they shall furnish a sufficient car to secure the safety of their passengers by the exercise of the 'utmost care and skill in its preparation.' They may construct it themselves or avail themselves of the services of others; but in either case they engage that all that well directed skill can do has been done for the accomplishment of this object. A good reputation upon the part of the builder is very weil in itself, but ought not to be accepted by the public or the law as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is, not merely that the manufacturer had the requisite capacity, but that it was skilfully exercised in the particular instance. If to this extent they are not responsible, there is no security for individuals or the public. It is perfectly understood that latent defects may exist, undiscoverable by the most vigilant examination, when the fabric is completed, from which the most serious accidents have and may occur. It is also well known, as the evidence in this suit tended to prove, and the jury have found, that a simple test (that of bending the iron after the axle was formed and before it was connected with the wheel) existed by which it could be detected. This should have been known and applied by men 'professing skill in that particular business.' It was not known, or, if known, was not applied by these manufacturers. It was not used by the defendant, nor did the company enquire whether it had been used by the builders. The company relied upon an external examination, which it was 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. 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, 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 passengers against the danger arising from concealed defects in the iron of the axles, or in the manufacture of them. For this omission of duty, or want of skill, the learned judge held, and I think correctly, that they were liable." This case is cited in regard to what does or does not constitute negligence on the part of a railroad company in Steinweg v. Erie R. Co., 43 N. Y. 123; s. c., 3 Am. Rep. 673, 675. It is also cited on various points in Johnson v. Hudson River R. Co., 20 N. Y. 65, 76; Unger v. Forty Second Street etc. R. Co., 51 N. Y. 497, 502; Smith v. New York etc. R. Co., 6 Duer (N. Y.) 225, 231; and in The City of Panama, 101 U. S. 453, 462. It is discussed and stated in other New York cases later considered; and its authority is acknowledged, though it is declared to have always been regarded as carrying the doctrine of liability of railroad corporations to the extremest verge of the law, in Brehm v. Great Western R. Co., 34 Barb. (N. Y.) 256, 275. 1. See note to the Hegeman case in 64 Am. Dec. 525, where it is said: 'The doctrine of the principal case on this point is firmly established in the courts of New York. Curtis v. Rochester etc. R. Co., 18 N. Y. 538; Perkins v. New York Cent. R. Co., 24 N. Y. 219; Bissell v. New York Cent. R. Co.. 25 N. Y. 445; Brown で。 New York Cent. R. Co., 34 N. Y. 408; Steinweg 2'. Erie R. Co.. 43 N. Y. 123; s. c., 3 Am. Rep. 673; Caldwell v. New Jersey S. Co., 47 N. Y. 287, all citing the principal case. Hutchinson, in his work on Carriers, says: "The better opinion and the decided weight of authority is in favor of the position that, so far as the passenger is concerned, the carrier is responsible for the negligence of the manufacturer. Hutchinson on Carriers, § 512. And Thompson says: 'The negligence of the manufacturer of a railway coach is to be imputed to the passenger. It is not sufficient that the carrier assures himself that the manufacturer is of good repute in his business. If the manufacturer has failed to supply a reasonable test which would have ascertained the defect, the carrier is answerable for the consequences of this negligence, as though it had been his own. This doctrine is denied by the supreme court of Michigan in a late case [Grand Rapids etc. R. Co. v. Huntley, 38 Mich. 537; s. c., 31 Am. Rep. 321]; but for reasons which are believed to be unsound.' Thompson on Carriers of Passengers 221." 2. Grand Rapids etc. R. Co. v. Huntley, 38 Mich. 537; s. c., 31 Am. Rep. 321; Nashville etc. R. Co. v. Jones, 9 Heisk. (Tenn.) 27. 3. In addition to the cases later reviewed, consult also Yorkes v. Keokuk etc. Packet Co., 7 Mo. App. 265. 4. Ladd v. New Bedford R. Co., 119 Mass. 412, 413; s. c., 20 Am. Rep. 3315 upon the ground of imputed negligence, for latent defects which could have been ascertained by any tests known to the manufacturers from 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. St. 225; s. C., 3 Am. Rep. 581, 583. Consult and compare also Illinois Cent. R. Co. v. Phillips, 49 Ill. 234. 238. 1. Hegeman v. Western R. Co., 13 N. Y. (3 Kern.) 9; s. c., 64 Am. Dec. 517. But see contra Grand Rapids etc. R. Co. v. Huntley, 38 Mich. 537; s. c., 31 Am. Rep. 321; Nashville etc. R. Co. v. Jones, 9 Heisk. (Tenn.) 27. 42. 2. Made in Alden v. New York Cent. R. Co., 26 N. Y. 102. 3. McPadden v. New York Cent. R. Co., 44 N. Y. 478; s. c., 4 Am. Rep. 705; Meier v. Pennsylvania R. Co., 64 Pa St. 225; s. c., 3 Am. Rep. 581. English Views as to Person Letting Out Carriages. In England the doctrine is maintained that a person who lets out carriages is not an insurer against all defects, whether discoverable or not, but that, like coach proprietors or railway companies, he is an insurer against all defects which care and skill can guard against. Hyman v. Nye, L. R., 6 Q. B. D. 685, 687; s. c., 29 Eng. Rep. 769, 771. In this case a party hired from a jobmaster, who let out carriages and horses for hire, a carriage, a pair of horses and a driver. During the journey a bolt in the under part of the carriage broke, the splinter bar became displaced, the horses started off, the carriage was upset, and the hirer was injured. In an action by the hirer against the jobmaster for negligence, the jury was directed that if, in its opinion, the defendant took all reasonable care to provide a fit and proper carriage, their verdict ought to be for him. The jury found a verdict for the defendant, and in particular that the carriage, was reasonably fit for the purpose for which it was hired, and that the defect in the bolt could not have been discovered by the defendant by ordinary care and attention. It was held that the verdict was wrong, as it was the duty of the defendant to supply a carriage as fit for the purpose for which it was hired as care and skill could ren12 C. of L.-58 der it, and the evidence was not such as to show that the breakage of the bolt was, in the proper sense of the word, an accident not preventable by care or skill, or to warrant the finding of the jury that the carriage was reasonably fit for the purpose for which it was hired. LINDLEY, J., regarded the question as of considerable difficulty and importance, and cited the following as the most important of the authorities examined: Christie v. Griggs, 2 Camp. So; Brenmer v. Williams, 1 Car. & P. 414; Sharp v. Grey, 9 Bing. 457: Readhead v. Midland R. Co., Law R., 2 Q. B. 412; Francis v. Cockrell, Law R., 5 Q. B. 184 501; Fowler v. Lock, Law R., 7 C. P. 272; s. c., 2 Eng. Rep. 586; s. c., L. R., 10 C. P. 90; or 11 Eng. Rep. 268; Searle v. Lanerick, Law R., 9 Q. B. 122; s. c., 8 Eng. Rep. 298; Kopitoff v. Wilson, L. R., 1 Q. B. D. 377; s. c., 16 Eng. Rep. 411; Randall v. Newson, L. R., 2 Q. B. D. 102; s. c., 19 Eng. Rep. 243. Story on Bailments, §§ 498, 502. "A careful study of these authorities," he said, "leads me to the conclusion that the learned judge at the trial put the duty of the defendant too low. son who lets cut carriages is not, in my opinion, responsible for all defects discoverable or not; he is not an insurer against all defects, nor is he bound to take more care than coach proprietors or railway companies, who provide carriages for the public to travel in; but in my opinion he is bound to take as much care as they; and although not an insurer against all defects, he is an insurer against all defects which care and skill can guard against. His duty appears to me to be to supply a carriage as fit for the purpose for which it was hired as skill and care can render it; and if, whilst the carriage is being properly used for such purpose, it breaks down, it becomes incumbent on the person who has let it out to show that the break down was, in the proper sense of the word, an accident not preventable by any care or skill. If he can prove 913 A per |