NOTE. Parol evidence is not available to establish trust in lands in Pennsylvania. Longdon v. Clouse, (Pa.) 1 Atl. Rep. 600. It seems that parol evidence is inadmissible to show that a conveyance absolute on its face was in fact executed upon an express trust for the benefit of the grantor. Pavey v. American Ins. Co., (Wis.) 13 N. W. Rep. 925. In the absence of fraud or mistake, parol evidence cannot be received to prove that a deed absolute on its face was given in trust for the benefit of the grantor. Rasdall's Adın'rs v. Rasdall, 9 Wis. 379. Where it is sought, through the establishment of a trust by parol evidence, to defeat the title of one holding a fee of real estate under a deed absolute, the essential facts relied on must be clearly established. Falsken v. Harkendorf, (Neb.) 7 N. W. Rep. 749. Under the statute of frauds in force in Iowa, a conveyance of real property cannot be shown to be made in trust for another except by an instrument in writing executed with all the formalities of a deed. Allen v. Withrow, 3 Sup. Ct. Rep. 517. (53 Conn. 561) ALEXANDER v. CHURCH. (Supreme Court of Errors of Connecticut. April 16, 1886.) 1. FRAUD-FALSE REPRESENTATIONS-ACTION-MECHANIC'S LIEN. Where a plaintiff has an inchoate mechanic's lien on premises for materials furnished and labor performed as subcontractor, and, while in the course of taking steps to perfect his lien, is induced not to do so by the false and fraudulent declarations of the owner of the buildings, he may maintain an action against the owner on the ground of such fraud. 2. SAME-PLEADING-INSOLVENCY OF CONTRACTOR-Demand. It is immaterial that the pleadings do not show that the contractor is unable to pay the plaintiff's claim, or that any demand to pay it has been made upon him. Appeal from judgment of common pleas, New Haven county. C. H. Fowler and D. W. Tuttle, for defendant. E. P. Arvine and E. C. Dow, for plaintiff. PARK, C. J. Very little need be said in this case to vindicate the judgment of the court below. The defendant demurred to the complaint in that court, but it was adjudged sufficient; and this action of the court is made the ground for the claim of error in this court. The principal allegations of the complaint are the following: First. That the plaintiff had an inchoate mechanic's lien on the premises of the defendant for materials furnished and labor performed as a subcontractor in the construction of a building on the premises. Second. That the premises were amply sufficient in value to secure the plaintiff's claim Third. That the plaintiff had taken some of the steps provided by the statute towards the perfecting of his lien. Fourth. That he was induced not to perfect the lien by the false and fraudulent declarations of the defendant that she had paid the contractor in full for the building, and did not owe him anything on account of it; such payment having been in part by accepting orders drawn by him in favor of other parties, and in part by the payment of money; both of them before the plaintiff had given notice of his lien. Fifth. That these declarations were made with the intent to deceive the plaintiff, and induce him to forego the perfecting of his lien. Sixth. That the representations had the desired effect in deceiving the plaintiff, and in causing him to desist from the perfecting of his lien. Seventh. That in consequence of these false and fraudulent representations the plaintiff lost his security upon the property, which he had in an inchoate condition when the representations were made, and lost the debt which was justly due him for labor performed and materials furnished in the construction of the building. These are the principal allegations of the complaint; and they seem to us amply sufficient to constitute a cause of action against the defendant. Cooley, Torts, 474, says: "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end desired." According to this definition it is manifest that here are all the elements of actionable fraud. False representations were made by the defendant with the intention to deceive the plaintiff, and thereby prevent his acquiring a lien upon her property, which he had then but partially accomplished; and the representations had their intended effect. The defendant likens this case to that of Austin v. Barrows, 41 Conn. 287; but the distinction between the cases is obvious. In that case no action whatever had been taken to acquire a lien by attachment of the debtor's property; and there was nothing to indicate with any degree of certainty that an attachment would ever have been made if the acts of the debtor and others assisting him in concealing his property had not been done. Here the plaintiff's inchoate lien had attached to the defendant's property, and he was engaged in perfecting it, but was stopped in doing it by the false and fraudulent declarations of the defendant. In Adams v. Paige, 7 Pick. 541, it was held that an action would lie for fraud in defeating an attachment by means of a collusive prior attachment; and clearly such would be the case if the same end was accomplished by fraudulent representations. See, also, Marshall v. Buchanan, 35 Cal. 264. We think the complaint is sufficient, and the court below committed no error in so deciding. The remainder of the case requires but little comment. The court has found all the material allegations of the complaint true, except the one that the contractor for the construction of the building was irresponsible at the time that notice of the plaintiff's intent to claim a lien on the property was served upon the defendant, and continued to remain irresponsible. The court finds that no evidence was offered to show that the contractor was unable to pay the plaintiff's claim, or that any demand to pay it had been made upon him. We think the finding of the court in this respect makes no material difference in the case. The plaintiff was entitled to his lien as security for his claim, however it may have been in regard to the ability of the contractor to pay it. There is no error in the judgment appealed from. (The other judges concurred.) (54 Conn. 9) . FIELDS v. HARTFORD & W. H. R. Co. (Supreme Court of Errors of Connecticut. April 16, 1886.) RAILROAD COMPANIES-DEFECTIVE CROSSING STATUTORY LIABILITY-NOTICE. Appeal from judgment of the superior court. Henry C. Robinson, for defendant. GRANGER, J. This is a complaint in a civil action for negligence. The defendant demurred. The superior court sustained the demurrer, and the plaintiff appeals. The demurrer presents but a single point, which is that the complaint does not aver that written notice of the injury, and of the nature and cause thereof, and of the time and place of its occurrence, was given to the defendants, as required by law. If the injury complained of resulted from a defective highway, which it was the duty of the defendant to keep in repair, then the defendant was entitled to have the notice prescribed by the statute, as follows: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city, corporation, or borough unless written notice of such injury, and of the nature and cause thereof, and of the time and place of its oecurrence, shall, within sixty days thereafter, or, if such defect consist of snow or ice, or both, within fifteen days thereafter, be given to a selectman of such town, or to the clerk of such city, corporation, or borough; and when the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor." Laws 1883, p. 283. By the General Statutes, and by the charter of the defendant, (Gen. St. 329; 5 Priv. Laws, 3,) it is made the duty of the defendant to grade. and keep in repair the surface of the street adjoining the rails of its railroad, for a space not less than two feet in width on each side of each rail, and construct all cross-walks so that all vehicles can conveniently cross or turn off from such track. The plaintiff alleges that "the defendant so improperly and negligently maintained and operated its railway in said highways as to render the use of said highways, by the public, dangerous; and that the plaintiff, while passing in his sleigh along said highways, and near the intersection thereof, by reason of the negligence and carelessness of the defendant, was overturned and thrown from his sleigh, and received many and severe bodily injuries." This is the substance of the plaintiff's complaint. What the pleader intended to prove under this statement we can only conjecture. We think the only fair import of the language is that the defendant had so negligently constructed and kept or maintained its railroad track, in relation to the highway on each side, as to render the cross ing unsafe at the place where the plaintiff's sleigh was overturned; that the railroad track was raised above or depressed below the adjoining grade of the street so as to constitute a defect in the highway, for which the statute referred to makes the defendant alone responsible. The complaint we conclude, therefore, is a complaint founded upon the statutory liability of the defendant, and before the plaintiff can enforce its provisions against the defendant he must perform his own duty under it; he must give the written notice prescribed; and the giving of such notice is a condition precedent to his right to maintain the action. This has been so often and so recently decided that it needs no further consideration. Hoyle v. Putnam, 46 Conn. 61; Shaw v. Waterbury, Id. 266; Cloughessey v. Waterbury, 51 Conn. 405; Wall v. Toomey, 52 Conn. 35. There is no error. (The other judges concurred.) (53 Conn. 461) WILLIAM NOLAN v. NEW YORK & N. H. R. Co. JOHN NOLAN, Adm'r, v. SAME. Supreme Court of Errors of Connecticut. January 25, 1886.) 1. ERROR-REVIEW OF FINDINGS OF FACT-NEGLIGENCE. Findings as to negligence, so far as it is a question of fact, cannot be reviewed by this court; so far as it is a question of law, it can be. 2. NEGLIGENCE-WHAT 18. So far as the defendant is concerned, negligence may be defined as the failure to perform some act required by law, or doing the act in an improper manner. 8. SAME QUESTION OF LAW OR FACT. The law determines the duty; the evidence shows whether the duty was performed. What duty rested upon the defendant? is a question of law. Was that duty properly performed? is a question of fact. 4. ERROR-NEGLIGENCE-ERROR IN MATTER of Law. If the court required of the defendant some act which the law did not require, it erred in a matter of law, and the question may be reviewed. If the court simply found that the defendant failed to do some required act, that is a finding of fact, and cannot be reviewed. 5. RAILROAD COMPANIES-TRESPASSERS-DUTY. A railroad company is under no obligation to locate its tracks, and adjust the running of its trains, so as to make it safe for persons unlawfully to trespass on its right of way.1 6. SAME-FENCES. Fences along the line of railways are required, not to protect rational, intelligent beings, but animals incapable of protecting themselves. 7. NEGLIGENCE-PERSONS OF Tender Age. The tender age of a person cannot have the effect to raise a duty when none existed; but in cases where certain duties exist, infants may require greater care than adults, or a different kind of care. 8. PLEADING NEGLIGENCE-ADMISSION OF DEMURRER Where the dumurrer to a complaint admits a cause of action, in the absence. of proof the plaintiff can recover nominal damages only; but when the proof 1See note at end of case. is in, and the facts are found, the admission of the demurrer has no effect,; except to carry nominal damages and costs, if the facts, independent of the pleadings, show that the defendant is not liable. BEARDSLEY, J., dissents. Robert E. De Forest, for John Nolan. G. H. Watrous, H. S. Sanford, and M. W. Seymour, for defendant. CARPENTER, J. The facts common to both cases are briefly these:: Daniel and Willie Nolan were children of John and Mary Nolan, and, lived with their parents at Bridgeport. They were ordinarily intelligent, and had the use of all their faculties. East Main street, in said Bridgeport, crosses the defendant's double-track railroad at nearly right angles. East Washington street, on the north of said tracks, for about 200 feet west of said crossing, lies along-side of said tracks, while Crescent avenue, on the south of said tracks, lies along-side for a much greater, distance westward. West of said crossing said tracks lie nearly level with the surface of said Crescent avenue for the entire distance. On the north, towards East Washington street, there rises a bank, which, at the place of the accident, was about five and one-half feet high above the railroad gutter. The slope of said bank is wholly within the limits of the right of way of the railroad company; that right extending some six feet further north than the crest of said bank. The crest is level with the surface of East Washington street. This locality is a thickly-populated district of said city, and all parts of said right of way lying contiguously to said: streets were, at the time of the accident, and for many years prior thereto had been, very largely and generally used by the public for passing and repassing on foot at pleasure and in all directions. The defendant was at all times familiar with such use. The two children who were injured, had lived in this vicinity for some time, and were familiar with said: public use of said right of way. There was and had been no fence or other barrier or obstruction, except said bank and the ordinary railroad gutter between said railroad tracks and said street and avenue. The place of the accident is about 150 feet west of East Main street crossing. On the fifteenth day of October, 1880, the mother sent the two children to a drug-store to make a small purchase, directing them to hurry home. They went directly to the store, crossing said railroad at East Main street crossing, made the purchase, and started to return home, when their attention was drawn to some other children a little: west of the drug-store at or near the crest of said bank, and on or near the right of way of the defendant. Thereupon they crossed the street, and joined said other children, and remained standing there a minute or two, doing nothing except to speak to the other children. At this time the express train from New York was due, and came from the west on the south track, giving the usual signals. The train from New Havenwas due, and came from the east on the north track. The rear car of the east-bound train crossed East Main street as the engine of the westbound train came to said crossing. The attention of these two children was attracted and fixed upon the train from the west; and just after it |