DIVORCE- ADULTERY- PROOF.-Upon a bill for divorce, it appeared that there was great familiarity between the wife and S., the co-respondent, who boarded at her residence. She would go driving with him in her husband's carriage, and take him to a school where he taught, and bring him home again. He went with her and her children on a pleasure trip, and they made a trip alone to Philadelphia. The family moved to New York city, and he abandoned his wife and children, and for nine months boarded at her house, though it was more than fifteen miles distant from the school. She made S. a visit at his home, and even after her husband had sued for a divorce, continued her familiarity with him. Held, that there was sufficient evidence to establish her adultery with S. N. J. Ch., June 23, 1887. Osborn v. Osborn. Opinion by Bird, V. C.

MASTER AND SERVANT-NEGLIGENCE — RISK OF EMPLOYMENT-COUPLING CARS.- An employee of mature years and ordinary intelligence, who has been warned of the danger of coupling cars, takes upon himself the manifest risk of coupling a buffer engine with a car, the source of danger being as apparent to the employee as to the employer. If a servant of full age and ordinary intelligence, upon being required by his master to perform other duties more dangerous and complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwillingly and from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action against the master for such injury. The employer is not bound to furnish the safest machinery, instrumentalities, or appliances with which to carry on his business, nor to provide the best methods for their operation, in order to save himself from responsibility, resulting from their use. If they are of au ordinary character, and such as can with reasonable care be used without danger, except such as may be reasonably incident to the business, it is all that the law requires. Railroad Co. v. Sentmeyer, 92 Penn. St. 276. Thus it has been held that where an injury happens to a servant while using an instrumeut, an engine, or a machine in the course of his employment, the nature of which he is as much aware of as his master, and in the use of which he receives an injury, he cannot, at all events if the evidence is consistent with his own negligence in the use of it as the cause of the injury, recover against his master, there being no evidence that the injury arose through the personal negligence of the master; and that it was no evidence of such personal negligence of the master that he had in use in his business an engine or machine less safe than some other in general use. Dynen v. Leach, 26 L. J. Exch. 221. And in accordance with the same principle it was held in Indianapolis, B. & W. Ry. v. Flannigan, 77 Ill. 365, that a railroad company was not liable for an injury received by an employee while coupling cars having double buffers, simply because a higher degree of care is required in using them than in those differently constructed. So in Fort Wayne, etc., R. v. Gildersleeve, 33 Mich. 133, it was decided that a railroad company which used in one of its trains an old mail car, which was lower than others, was not liable to its servant, who knowingly incurred the risk, for an injury resulting from the coupling of such old car with another, though the danger was greater than with cars of equal height. Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs, and the servant having knowledge of the circumstances must judge for himself whether he will enter his service, or having entered, whether he will remain. Hayden v. Smithville, 29 Conn. 548; Buzzell v. Laconia

Manuf'g Co., 48 Me. 121; Shanny v. Androscoggin Mills, 66 id. 427; Coombs v. New Bedford Cordage Co., 102 Mass. 585; Ladd v. New Bedford R. Co., 119 id. 413. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work when there is danger. He must inform himself. This is the law everywhere. Beach Cont. Neg., § 138; Russell v. Tillotson, 140 Mass. 201. No man needs a printed placard to announce a yawns ing abyss when he stands before it in broad day-light. Yeaton v. Boston & L. R., 135 Mass. 418; Coolbroth v. Maine Cent. R. Co., 77 Me. 168; Railroad Co. v. Keenan, 103 Penn. St. 124; Osborne v. Knox & L. R., 68 Me. 51. And it was held in Wheeler v. Wason Manuf'g Co., 135 Mass. 298, that where the servant is as well acquainted as the master with the dangerous nature of the machinery or instrument used, or of the service in which he is engaged, he cannot recover. Beach Cont. Neg., § 140; Hathaway v. Railroad, 51 Mich. 253; 47 Am. Rep. 569. If the plaintiff, as is contended, was at the time of this unfortunate occurrence in the performance of duties outside of his regular employment, he will nevertheless be held to have assumed the risks incident to those duties. This principle is settled by numerous decisions. Woodley v. Metropolitan Dist. Ry. Co., 2 Exch. Div. 389; Railroad v. Fort, 17 Wall. 553; Rummell v. Dilworth, 111 Penn. St. 343; Buzzell v. Laconia Manuf'g Co., 48 Me. 121; Hayden v. Smithville Manuf'g Co., 29 Conn. 548; Wright v. New York Cent. R., 25 N. Y. 570; Leary v. Boston & A. R., 139 Mass. 587. In the last case cited, where the question is fully discussed, the court say: Where one has assumed an employment, if an additional or more dangerous duty is added to his original labor, he may accept or refuse it. If he has an existing contract for the original service, he may refuse the additional and more dangerous service; and if for that reason he is discharged, he may avail himself of his remedy on his contract. If he has no such contract, and knowingly, although unwillingly, accepts the additional and more dangerous employment, he accepts its incidental risks; and while he may require the employer to perform his duty, he cannot recover for an jujury which occurs only from his own inexperience. Sup. Jud. Ct. Me., June 4, 1887. Wormell v. Maine Cent. R. Co. Opinion by Foster, J.

แ

NEGLIGENCE-DANGEROUS PREMISES-OPEN HATCHWAY ON BOAT - CUSTOM.-It is not negligence for the owner of a boat laid up in winter quarters to leave her hatches off without guards to prevent persons falling into them. These hatchways are intended to be left open a large portion of the time when vessels are in port, and especially when they are laid up for the winter. At such seasons of the year the owner has the right to leave the hatchway open and unprotected, except by the usual coamings, and all persons walking upon the decks of such vessels are chargeable with notice of the probable presence of open hatchways on the deck. It would be preposterous to hold that the owner who places his vessel in charge of a ship-keeper during the time she is out of commission, and lying in winter quarters, is charged with the duty of building a railing around the open hatchways, or with maintaining a light to indicate danger, for the purpose of protecting persons from injury by falling into them. It is true, the plaintiff testified that it was the custom to leave the batches off for the purpose of ventilation, but he says that they put a railing round them so as not to make a trap for a man to fall into. I am satisfied that this testimony was intended more as an excuse for his own carelessness than to establish the fact that it was, usual to protect the open hatchways by a railing. On cross-examination he was unable to tell exactly when he saw a hatchway protected by such railing. He says

it was a passenger boat in the spring of the year, when they were getting her ready for navigation, and not in the winter time, when she was laid up. This was the only instance he ever knew of where such protection was provided. I do not think it establishes the duty contrary to what is known and recognized as the established custom. Dwyer v. National Steam-Ship Co., 4 Fed. Rep. 493. In the case cited, the court said: "Such a duty would be burdensome in the extreme, and is not required by law. The requirement would be unreasonable, has never been observed in practice, nor so far as I know, declared in any adjudicated case." That was a case of a vessel lying in port being laden for a voyage, and the injury occurred by falling through a hatchway that was defectively covered. a ship-owner owes no duty to a party injured under such circumstances, how much less does he owe a duty to keep the hatchways covered and safe when the vessel is laid up in the winter season, when navigation is suspended, when no one has business upon her, and when she is placed in charge of a ship-keeper whose duty is to keep the hatch ways open for ventilation, and to keep all persons off the boat without they have written permission to go on board from the manager or owner. Sup. Ct. Mich., July 7, 1887. Caniff v. Blanchard Nav. Co. Opinion by Champlin, J.

If

- If

by reason of defendant's building operations, plaintiff's adjoining property is injured, as for example, by the insertion of a girder into an old and weak party-wall, defendant, although he has intrusted the work to independent contractors, cannot escape liability if the injury was occasioned, not by poor workmanship or materials, but by the use of defective plans and specifications. Horner v. Nicholson, 56 Mo. 220; Morgan v. Bowman, 22 id. 538. It was the duty of the defendant to use all reasonable care and caution in providing plans and specifications to the end that a building, when constructed in accordance with them, would not be dangerous to the plaintiff's property. The instructions for plaintiff are in entire accord with what has been said; for they proceed upon the theory that the plaintiff could recover, though Barnes rison were independent contractors, provided the injury arose from and was occasioned by the use of defective plans. But it is contended on the other hand, and correctly too, that if the plans and specifications were in themselves sufficient to secure a safe construction of the work, and that the work was insufficiently done by independent contractors, then the defendant should not be held liable. Sup. Ct. Mo., June 20, 1887. Lancaster v. Connecticut Mut. Life Ins. Co. Opinion by Black, J.

Mor

NEGOTIABLE INSTRUMENTS MAILING NOTICE STREET LETTER-BOX.- It is objected that the notices were not properly mailed, because they were dropped into a street letter-box. We think this is not a valid objection. Street letter-boxes are authorized by an act of Congress (Rev. St. U. S., § 3868,) and are as completely and as exclusively under the care and control of the post-office department as boxes provided for the reception of letters within the post-office buildings themselves; and we think a letter deposited in a street letter-box, which has been put up by the post-office department, is as truly mailed, within the meaning of the law, as if it were deposited in a letter-box within the post-office building itself. It has been held that delivery to a letter carrier is sufficient. Pearce v. Langfit, 101 Penn. St. 507. Sup. Jud. Ct. Me., April 19, 1887. Casco Nat. Bank v. Shaw. Opinion by Walton, J.

NUISANCE MUNICIPAL CORPORATIONS - TOWN LIABILITY FOR ULTRA VIRES.

Action

on the

case to recover damages for injuries to plaintiff's millpond, caused, as is alleged in the writ, by the highway surveyor of the defendant town digging a ditch which turned the drainage from Belknap's tripe factory into the pond, thereby rendering the water unfit for use or for cutting ice. A town is not liable for an act which results in creating a nuisance to the property of one of its citizens, when the act complained of, e. g., digging a drain, is not within the scope of its corporate powers. The authority and liability of our quasi public corporations known as towns, distinguished from municipal corporations, incorporated under special charters, are generally only such as are defined and prescribed by general statutory provisions. Some things they may lawfully do, and other things they have no authority for doing. To create a liability on the part of a town not connected with its private advantage, the act complained of must be within the scope of its corporate powers as defined by the statute. If the particular act relied on as the cause of action be wholly outside of the general powers conferred on towns, they can in no event be liable therefor, whether the performance of the act was expressly directed by a majority vote, or was subsequently ratified. Morrison v. Lawrence, 98 Mass. 219. So a town is not liable for the unauthorized and illegal acts of its officers, even when acting within the scope of their duties, (Brown v. Vinalhaven, 65 Me. 402; Small v. Danville, 51 id. 359); but it may become so when the acts complained of were illegal, but done under its direct authority, previously conferred or subsequently ratified. Woodcock v. Calais, 66 Me. 234, and cases there cited. Sup. Jud. Ct. Me., April 5, 1887. Seele v. Inhabitants of Deering. Opinion by Virgin, J.

RAILROAD

DISCRIMINATION IN FREIGHTS.-The act of the Illinois Legislature approved May 2, 1873 (2 Starr & C. 1962), to prevent extortion and unjust discrimination in railroad freights between different points, provides a penalty for the violation of the act, to be recovered in an action of debt. The evidence showed that a certain amount of freight was carried fifty-five miles to one point at sixteen cents per hundred, and that the same amount of the same kind of freight was carried on the same line of railroad at the same time, one hundred and seventeen miles, to another point, at ten cents per hundred. No evidence was presented that the parties at the first-named point were injured by the discrimination, and it appeared that there was no business competition between the two points, and that there was a competing railroad carrying to the more distant point. Held, that the railroad company was guilty of discrimination and liable for infringement of the statute. Sup. Ct. Ill., June 17, 1887. Illinois Cent. R. Co. v. People. Opinion by Scholfield, J.

STREET - ORDINANCE

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DUTY ΤΟ REPAIR STREET RIGHTS OF CITY. - The city of Columbus, by ordinance, granted the privilege to a company to construct and operate a street railroad on one of its streets for a specified period. The ordinance provided that the company should make, construct, and keep in order and repair all that part of the street included between the rails of its tracks and switches, in the same manner, and with like material, as the street is constructed and repaired, so long as it shall use the same for its railroad; and any failure to comply with the provisions of the ordinance, or with any general ordinance of the city regulating the use of its streets, or the police regulations thereof, should render such railroad company liable to the city in an action of damages for such failure; and the council, after giving the company twenty days' notice, should have the right to order any work to be done on the railroad necessary to keep it in repair, and charge the cost and

expense thereof upon the railroad company. Held, (1) that the ordinance did not divest the city of its control of the street, or abridge its right to improve the same, and it might during the period named cause to be made new improvements thereof, including the part occupied by the street railway, and determine the kind of improvements to be so made. (2) By constructing and operating its railway, the company accepted the burdens with the privileges of the ordinance, and thereby incurred the continuing obligation to make, construct, and keep in order and repair, as long as it enjoyed those privileges, the portion of the street between the rails of its track, including such new improvement thereof as the city may determine and direct.

(3) When after notice the company fails to do the work as required of it, and the city then causes it to be done, its reasonable cost may be recovered by action against the company; and it is not essential to the liability of the company therefor that the notice to make such improvement precede the letting of the contract by the city for the same. It is sufficient if such notice be given before the work is done, and while the company may still perform the same. (4) Where the company, after receiving such notice, without attempt to perform any part of the work required of it, permitted the city, without objection or complaint, to commence and complete it, adjusted the track of its railway to conform thereto, as it progressed, and with knowledge that the city expected it to pay for the same, and of all the circumstances, received all the benefits thereof as fully as if it had been performed by the company, the city may recover the reasonable cost of the work so done, although the notice does not strictly conform to the requirements of the ordinance. Sup. Ct. Ohio, April 26, 1886. City of Columbus v. Columbus Street R. Co. Opinion by Williams, J.

SALE-VESTING TITLE-SELECTION.- Where a certain number of articles are sold from an ascertained lot which are identical in kind and value, a selection is unnecessary, and a separation is not essential to transfer title to the vendee. In such a case, the price being paid in full, the title will pass if it appears that the parties so intended. We think the sale of Holmquist was complete, although the twenty-five thousaud plants sold were not separated from the whole number delivered, and that the action for conversion can be maintained. It will be observed that the controversy is not with the vendor. He had received full payment, had tied the plants up in bundles, and had delivered them at the place agreed upon. By this action he intended to transfer the title to Holmquist, and he has ever since regarded and treated it as a complete sale. Nothing remains to be done by him to ascertain the quantity, quality, or price of the plants sold. It is argued, that because the bundles intended for Holmquist were not set apart or designated by some mark, the title did not pass. But separation could not make more certain the quantity, quality, or price of the plants purchased by Holmquist. They were a part of a specific and ascertained quantity. There were three hundred and twenty-eight bundles of plants which were uniform in the number contained in each, as well as in the quality and value. It was therefore immaterial from what part of the whole the one hundred bundles of Holmquist were taken. No possible advantage could have been gained by either party if the privilege of selection had been conferred upon him, and it is idle to dispute about the identity of articles that are equal in kind and value. Each had a right to a certain number of the whole, and either had a right to take possession of the number that bebelonged to him; and indeed the circumstances under which Kingman received the plants are such that he might properly be regarded as the bailee of Holmquist.

He held for Holmquist a specified number of bundles, which were a portion of a quantity that was ascertained and certain, and with which the seller had nothing further to do. While the English and some of the American courts hold that in all cases the goods sold must be separated and specifically identified before the title will pass, the weight of authority in this country is, that where the property sold is a part of an ascertained mass of uniform quality and value, separation is not essential, and the title to the part sold will pass to the vendee, if such appears to be the intention of the parties. This principle has been recognized by this court in a recent decision, and the authorities sustaining that view were there approved. Piazzek v. White, 23 Kan. 621. The Supreme Court of Connecticut, in an action involving the title to three hundred and eighty bags of meal which had been purchased from a larger number of similar bags, considered this question, and while holding that where the articles sold from a larger number differed in quality, quantity, or value, a separation was essential to transfer the title, stated, that "where the subject-matter of a sale is part of an ascertained mass of uniform qual ity and value, no selection is required; and in this class of cases it is affirmed by authorities of the highest character that severance is not, as a matter of law, necessary in order to vest the legal title in the vendee to the part sold. The title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title." Chapman v. Shepard, 39 Conn. 413; Kimberly v. Patchin, 19 N. Y. 330; Pleasants v. Pendleton, 6 Rand. 473; Hurff v. Hires, 40 N. J. Law, 581; Carpenter v. Gaaham, 42 Mich. 191; Waldron v. Chase, 37 Me. 414; Horr v. Barker, 8 Cal. 603; 11 id. 393; Phillips v. Ocmulgee Mills, 55 Ga. 633; Young v. Miles, 20 Wis. 646; Clark v. Griffith, 24 N. Y. 595; Lobdell v. Stowell, 51 id. 70; Groat v. Gile, id. 431; Gardner v. Dutch, 9 Mass. 426. A further citation of cases, or an extended examination of the conflicting decisions upon this question is unnecessary here. A very elaborate and careful review of the authorities is made by Mr. Benjamin in his treatise on Sales, in which he reaches the conclusion, that when the property sold is part of a mass made up of units of unequal quality, such as cattle out of a herd, their selection being material, the decisions all hold that the title will not pass until a selection has been made, but that the weight of recent American authority sustains the proposition that when property is sold, to be taken out of a specific mass of uniform quality, the title will pass at once upon the making of the contract, if that appears to be the intention of the parties. 1 Benj. Sales, §§ 469-487. The present case falls within this authority, which we deem to be controlling, and hence there must be an affirmance of the judgment of the District Court. Sup. Ct. Kan., June 11, 1887. Kingman v. Holmquist. Opinion by Johnston, J.

SPECIFIC PERFORMANCE - WHEN NOT ENFORCEABle. - Complainant entered into a written contract with four persons engaged in conducting hotels in a city, to run impartially, for the benefit of all four, a hack line to convey guests to and from the depot and hotels for the period of five years, in consideration of their refraining from running free hacks or omnibuses. One of the persons, who was the only one who owned his hotel, or had a tenure that necessarily extended through the period of five years, assigned his business to his sons; and they, claiming that complainant had discriminated against their hotel, started a line of free omnibuses; whereupon complainant sought to enjoin them from running the free line, and to compel a specific performance of the contract. It appeared that another one of the hotels had also changed hands.