CONTRIBU

RAILROAD -DUTIES TO PASSENGERS TORY NEGLIGENCE. The court trying the cause gave the jury a series of instructions, the fourth and eighth of which were as follows: "(4) A street-car company is a common carrier, and while it is not an insurer of the safety of its passengers, it is bound to exercise the highest degree of skill and foresight for the safe carriage of such passengers upon its cars, and this care and foresight must extend, not only to the ruuning of its cars, but also to the construction and repairs of its track. And for injuries caused to a passenger, by reason of failure to exercise such skill and foresight, it is liable to such passenger, provided such passenger was not guilty of any negligence directly and materially contributing to produce such injuries." "(8) Again it does not necessarily follow that a passenger is guilty of negligence in getting upon a car, even if it be proved that such passenger knew that the track was unsafe. For example, if the car upon which the plaintiff was riding at the time of the accident in controversy was standing upon the track, and she and others were permitted to get on and deposit their fares, this may be considered as sufficient evidence, in the absence of evidence to the contrary, of an invitation by the company to her to take passage; and if she availed herself of such invitation, she cannot be deemed guilty of negligence in so doing merely from the further fact, if such is the fact, that she knew the track was being replaced or repaired, and was in a dangerous condition; for she had a right to presume, in the absence of knowledge to the contrary, that the defendant had used or would use due care to avoid the danger to passengers incident to the dangerous condition of the track, that is, such care as a person of the highest degree of skill and foresight, with knowledge of all existing facts and circumstances, would probably have used, in view of such dangers, to guard against accidents to passengers by reason thereof. But if the plaintiff knew that there was a dangerous place in the track, and was warned by the employees of the defendant not to get in the car until after it had gotten over such place, but she persisted in spite of such warning, in getting in and taking the risk, and after so getting in she received the injuries of which she complains, then she must be deemed guilty of contributory negligence, and cannot recover. A railway company is a common carrier of passengers as well as of freight. A street-railway company is also a common carrier of passengers, with duties and responsibilities entirely analogous to and substantially the same as those of a railway company in the carriage of passengers. Both are railway companies within the usual meaning of that term, and the same general rules and degree of care in the transportation of passengers must be observed by each. Thomp. Carr. 26, 442; Railroad Co. v. Taffe, 37 Ind. 361; Hutch. Carr., §§ 500-504. Carriers of passengers are required to exercise the utmost skill and foresight in the performance of their duty as such carriers. See 1 Lac. R. Dig. 412, par. 99, and authorities cited. Also Railroad Co. v. Buck, 96 Ind. 346, and Railroad Co. v. Rainbolt, 99 id. 551. This is the equivalent of requiring that the highest degree of care and skill shall be used in the transportation of passengers, as the rule is stated by many of the decided cases. See also Lac. R. Dig., and the cases there cited.

Railway companies are bound to provide suitable tracks, rolling stock and all other agencies required by the business which they assume to transact; and in this respect they must keep pace with science, art and modern improvements in their application to the transportation of passengers. Hutch. Carr., above cited, §§ 524, 529; Railroad Co. v. Newell, 104 Ind. 264; Railroad Co. v. Jones, 108 id. 551. Any neglect of these requirements, which results in an injury to a passenger, against which prudence and foresight might have guarded, renders a railway company liable. 1 Lac. R. Dig. 412, pars. 100-103, 110. There was consequently no error in giving the fourth instruction to the jury, so far as it related to the requisite degree of skill and foresight. To constitute a person a common carrier, he must hold himself out as such. This may be done either by advertising or by engaging in the business of a common carrier, and the general acceptance of employment incident to such business. Thomp. Carr., supra; Hutch. Carr., supra, § 48. Having thus held himself out, he incurs certain obligations of a public or general character, which can only be met by a proper discharge of the duties devolving upon him as quantity of goods or a passenger, by any of the usual a common carrier. As a consequence, whenever a methods, comes into the possession of a common carrier to be transported over his line, he in the absence of any agreement to the contrary, assumes all the responsibility which the law attaches to the particular class of business which he has thus undertaken to perform. If it be a passenger, he impliedly agrees to exercise the utmost or highest degree of skill and foresight usually employed in his line of business for the safe transportation of such passenger. When a dulyequipped passenger train of cars is placed upon a railway track, under circumstances indicating that it is ready to receive passengers, and that it is about to proceed on its way for the transportation of passengers, an invitation to all suitable persons to enter the cars, and to become passengers over its line, is thereby implied. This doctrine is in principle well sustained by the authorities. Thomp. Neg. 307; Nave v. Flack, 90 Ind. 205; Railroad Co., v. Buck, supra. When a person thus enters a railway car for the purpose of becoming a passenger, he has the right, in the absence of any stipulation or warning to the contrary, to presume that all the necessary precautions have been taken for his safe transportation, whatever the condition of the track may in fact be. In such a case the reasonable inference from the implied invitation to become a passenger is that all suitable precautions have been taken, and the acceptance of such an invitation cannot be held to be contributory negligence. See again Hutch. Carr., § 516. It is a matter of common observation that railway tracks are undergoing frequent, and in many cases constant repairs, and that travel over them is very seldom suspended on account of ordinary repairs; also that by an increased vigilance and care, passengers are usually carried safely over the places at which repairs are being made. A railway company is guilty of negligence when it attempts to run its train of cars over a torn-up or palpably defective place in its track, when by the use of such increased vigilgance and care as is practicably available, the safety of its passengers is not well assumed, and for the reasons already given, the same rule is applicable to the management of street-railway lines of cars. Our conclusion therefore is that the eighth instruction, as applicable to certain features of the evidence in this case, stated the law correctly. Ind. Sup. Ct., Sept. 27, 1887. Citizens' St. Ry. Co. v. Twiname. Opinion by Niblack, J.

TRADE-MARK-MISREPRESENTATION-DRESSING UP GOODS-CIGARS - REPRESENTATION AS TO FOREIGN

MANUFACTURE.-Plaintiffs, who were manufacturers of and dealers in cigars in England, imported from Germany cigars made of Havannah tobacco. There was no direct evidence as to the place where they were manufactured, but the court found as a fact that they were also manufactured in Germany. Plaintiffs sold these cigars in England in boxes on which was a label containing their trade-mark (registered under the Trade Marks Registration Act of 1875), which consisted of the words "La Pureza," and a pictorial representation of an Indian woman in a state of seminudity holding up a bundle of cigars, two winged boys each holding a shield, and a background representing a portion of some tropical country. On one shield was depicted the arms of Spain and on the other those of Havanna. In the trade-mark as registered the shields were blank. A. smaller label contained what was apparently the lithographed signature of "Ramon Romnedo." On each box were branded the words "La Pureza" and "Habana." It was proved that "La Pureza" was an old brand, long disused, of Havanna cigars, aud that there was no known existing person of the name of "Ramon Romnedo." Kekewich, J., held, that it having been a general custom in the tobacco trade for over twenty-five years to mark cigarboxes with the word 'Habana," though the cigars had not been imported from Havanna, such a marking did not disentitle the owner of a trade-mark for cigars from seeking to prevent infringement; and, that the defendants having used similar marks on their cigar-boxes, the plaintiffs were entitled to an injunction and an account. Held, on appeal, that as the trade-mark and other marks on the plaintiffs' boxes together amounted to a "dressing-up" of the plaintiffs' cigars, and a misrepresentation that they were cigars manufactured in the Havanna, the action must be dismissed, but without costs, the defendants being entitled only to the costs of the appeal, The decision of Kekewich, J., reversed. Eng. Ct. App., June 14, 1887. Newman v. Pinto. Opinions by Cotton, Bowen and Fry, L. JJ.

WAREHOUSEMAN - FRAUDULENT RECEIPT - BONA FIDE PLEDGEE. A rice-mill company issued certain receipts acknowledging the rice therein specified to be in their store-house. Each receipt had also a printed entry on the margin, filled out in writing, with the name of the bank which held it. This entry was sigued as was the receipt itself, by the superintendent of the mill. The entry imported an acknowledgment of notice by the company that the bank was the holder of that receipt. Held, that the bank, as bona fide pledgee, was entitled to recover from the mill company money advanced upon the faith of these receipts, though no goods had been received for storage according to the recitals therein. These documents are not ordinary warehouse receipts, and they were not left to the mere incidents annexed to them by law; but contract, conduct, representation, on the part of the rice-mill company, intervened both in the issuing of these receipts and in their transfer, which clothed them with other and larger incidents than the general law would have annexed to them if they had been mere warehouse receipts in ordinary form. If warehouse receipts of a special form and character be adopted and issued in due course of business, for the express purpose of being pledged as security to obtain money, and if as a part of the regular system of using them the warehouseman acknowledge in writing on each receipt notice of assignment by the pledgeor to the pledgee, before the latter advances his money thereon, the pledgee, after advancing his money in good faith, is entitled to stand on the terms of the pledged receipt as importing a genuine business transaction of the nature described in the instrument. Thus, though in fact no goods had been received for

storage, the recital in the special receipt being utterly false, nevertheless the recital will have the same effect in protecting such bona fide pledgee as if the goods had been received and stored. It is in evidence in one of the cases we are dealing with directly, and in the other inferentially, that these special receipts were adopted and always issued for the express purpose of enabling the bailor, or the person acknowledged as the bailor, to pledge them as security for money. When such a purpose was not in contemplation, another and different form of receipt was used - one that did not purport on its face to be special, and one that did not have annexed to it this form of acknowledging notice of the assignment. The mill corporation adopted and and authorized the use of these special receipts for the very purpose of enabling its customers to obtain loans upon them, and in this instance they were so used, under circumstances that justified the banks in not making inquiry beyond the inquiry which they did make; and the jury were justified in reaching the conclusion that they fully discharged themselves of all diligence that was incumbent upon them. He who creates a symbol, and leaves it a symbol, is bound by it only in its symbolic character; but he who creates a symbol, and aids in raising it to a security, is bound by it both as a symbol and as a security. Why not? As a mere symbol each of these receipts is but colorable evidence of a bailment which never took place. It represents property which never existed, and is therefore worthless; but the corporation raised it from its rank as a mere symbol to its rank as a security for money. It would be a mere emblem, if they had not made it more; but having made it more, there is something of the nature of a real presence in it-a real presence of the thing it purports to represent. Ga. Sup. Ct., March 25, 1887. Planters' Rice-Mill Co. v. Merchants' Nat. Bank. Opinion by Bleckley, C. J.

WATER AND WATER-COURSES.-NUISANCE FLOW OF POLLUTED WATER - WHO LIABLE. - In an action brought to recover damages for the continuance of a nuisance, by suffering polluted water to flow upon plaintiff's premises, the testimony showed, that by reason of ditches and an embankment on the lands of third persons over which defendant had no control, an increased quantity of polluted water flowed through a culvert and ditches constructed and dug on defendant's land to a pond on the premises of plaintiff. Held, that defendant, having in no way contributed to increase the flow, was not liable for the resulting damages. Gould Waters, § 278; Brown v. McAllister, 39 Cal. 573; Morrill v. Hurley, 120 Mass. 99; Barring v. Com., 2 Duv. 95. In Smith v. City, 75 Ga. 110, the liability of the city, to account in damages to the plaintiff for a nuisance created and continued on his lot, was put expressly on the ground that the city had created and continued the nuisance, and that it had power, and consequently it was its duty, to abate or remove it. So also in Railroad v. English, 73 Ga. 366, the responsibility of the railroad company to the plaintiff, for damages resulting from a nuisance created by a pond, was placed on the power and duty of the company, which was a lessee of the road and had control over it, to remove or abate the nuisance. The defendant certainly had a right to open the culvert south of its depot, and carry the water running down the ditches constructed by the town from the west to the east side of the right of way, unless by s0 doing the volume of water would run into the plaintiff's pond would be thereby increased. This effect however according to the testimony did not follow, since the water now flowing through the culvert would otherwise have flowed over the track, and thus have found its way to the pond, or else it would have run into the ditch on the west side of the road, and in that

way have increased the flow accumulated in the pond. Before the culvert was put in, whenever it rained, the track was covered with water which flowed from the higher ground on which the town is located. In the case of State v. Rankin, 3 S. C. 438; S. C., 16 Am. Rep. 737, it was held that a party was not guilty of a public nuisance unless the injurious consequences complained of were the natural and proximate result of his own acts. If such consequences were caused by the acts of others, so operating on his own acts as to produce the injurious consequences, then he would not be liable. According to our Code, § 3072, if the damages are only the imaginary or possible results of the tortious act, or other and contingent circumstances preponderating largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer. See also Brown v. Atlanta, 66 Ga. 72, head-notes 4 aud 6. Hence it is incumbent on the plaintiff, if he would maintain this action, to show that the injury complained of was caused by some act or omission of the defendant, or that the conduct of the defendant was the preponderating cause thereof. This we do not think has been done. The pond on the plaintiff's premises seems to have been the natural outlet of the water which accumulated thereon, both before and after the building of the railroad, and if more water, filth, etc., runs into the pond since the building of the railroad than did before, and which is not traceable to causes over which the defendant had control, the plaintiff cannot recover. See Peck v. Herrington, 109 Ill. 611; S. C., 50 Am. Rep. 627; and Waffle v. Railroad Co., 53 N. Y. 11; S. C., 13 Am. Rep. 467. In the first of these cases it was held that "the owner of the upper field in such a case has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements." In the other case (Waffle v. Railroad Co.), it was held that where the defendant dug ditches in its own land to drain the surface water therefrom, into a stream which was its natural outlet, thereby sometimes increasing and at other times decreasing the quantity of water in the stream, to the injury of plaintiff, who was an inferior heritor, the plaintiff had no cause of action. Ga. Sup. Ct., June 13, 1887. Brimberry v. Savannah, F. & W. Ry. Co. Opinion by Hall, J. WILL-ORAL CONTRACT TO MAKE-CONSIDERATION. -It is not contended on behalf of the defendant that a contract founded on a sufficient consideration to make a certain provision by will for a particular person is invalid in law. The contrary is well settled. Jenkins v. Stetson, 9 Allen, 128, 132; Parker v. Coburn, 10 id. 83; Canada v. Canada, 6 Cush. 15; Parsell v. Stryker, 41 N. Y. 480; Thompson v. Stevens, 71 Penu. St. 161; Updike v. Ten Broeck, 32 N. J. L. 105; Caviness v. Rushton, 101 Ind. 502. Nor is it contended that a contract to leave a certain amount of money by will to a particular person, though oral, is open to objection under the statute of frauds. It is not a contract for the sale of lands, or of goods, and it may be performed within a year. Peters v. Westborough, 19 Pick. 364; Fenton v. Emblers, 3 Burr. 1278; Ridley v. Ridley, 34 Beav. 478; Kent v. Kent, 62 N. Y. 560; Bell v. Hewitt, 24 Ind. 280; Wallace v. Long, 5 N. E. Rep. 666. Such a contract differs essentially from a contract to devise all one's property, real and personal, which comes within the statute of frauds. Gould v. Mansfield, 103 Mass. 408. The obligation of such a contract is not impaired, though the consideration is to arise wholly or in part in the future, and though the person to whom the promise is made is under no mutual, binding obligation on his part.

In Train v. Gold, 5 Pick. 380, 385, it was said by Mr. Justice Wilde, that "if A. promises to B. to pay him a sum of money if he will do a particular act, and B. does the act, the promise thereupon becomes binding, although B., at the time of the promise, does not engage to do the act." This doctrine was quoted with approval in Gardner v. Webber, 17 Pick. 407, 413, and in Bornstein v. Lans, 104 Mass. 214, 216; and it is also affirmed in Goward v. Waters, 98 id. 596. In Cottage Street Church v. Kendall, 121 Mass. 528, 530, it was held that "where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing upon the faith of the promise, the promise, which was before but a mere revocable offer, thereby becomes a completed contract, upon a consideration moving from the promisee to the promisor; as in the ordinary case of the offer of a reward." See also Paige v. Parker, 8 Gray, 211, 213; Hubbard v. Coolidge, 1 Metc. 84; Todd v. Weber, 95 N. Y. 181, 192; Miller v. McKenzie, id. 575, 579. It is therefore in law competent for a valid oral contract to be made, to leave a certain sum of money by will to a particular person, in consideration of services thereafter to be rendered by the promisee to the promisor, provided such services are in fact thereafter rendered and accepted in pursuance of such contract, although the promisee did not bind himself in advance to render them. The performance of the consideration renders the contract binding, and gives a right of action upon it. Mass. Sup. Jud. Ct., Sept. 24, 1887. Wellington v. Apthorp. Opinion by C. Allen, J.

WITNESS-ORDER OF SEPARATION-DISOBEDIENCE OF ORDER.-A party who is free from fault cannot be deprived of the testimony of a witness who has remained in the court-room while other witnesses were testifying, in violation of an order directing a separation of the witnesses. It has been expressly decided in two recent cases that where the party is entirely free from fault, the testimony of a witness who disobeys an order of the court cannot be excluded. Davis v. Byrd, 94 Ind. 525; Burk v. Andis, 98 id. 59. In the first of these cases the question was closely examined and many authorities cited. We there said: "We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility." We quoted from eminent text-writers like expressions of the rule, and cited the decisions of many courts. Our conclusion, on a second examination of the question, is that the English author there referred to was right in saying: "But it seems to be now settled that the judge has no right to reject the witness on this ground, however much his willful disobedience of the order may lessen the value of his evidence." 2 Tayl. Ev., § 1210. In another text-book a very thorough review of the authorities was made, and it was said: "But it may now be considered as settled that the circumstance of a witness having remained in court in disobedience to an order of withdrawal, is not a ground for rejecting his evidence, and that it merely affords matter of observation." 2 Phil. Ev. (5th Am. ed.) 744. Mr. Bishop, with his usual vigor, thus states the doctrine: "On the other hand, if the party was without fault, the judge has no right to punish his innocence by depriving him of his evidence, and ruin him at the will of a witness. The testimony should be admitted subject to observation. Such is the law in principle." 1 Bish. Crim. Proc., § 1191. Ind. Sup. Ct., Sept. 20, 1887. State, ex rel. Steigerwald, v. Thomas. Opinion by Elliott, J.

EMPLOYER'S NEGLIGENCE IN FENCING WORKS.

THE

recent case of Thomas v. Quartermaine, in which the Court of Appeal has been engaged in deciding how far an employer becomes liable to his servant, or rather how far a servant undertakes all risks of the works, seems to bring out a point which has long been very obscure. The obscurity has been much increased by the passing of the Employers' Liability Act, which professed to shift to the master the responsibility for accidents for which, before that act, he could not be made liable. The maxim has long been familiar that a servant undertakes the risks of the internal structure and arrangement of the master's premises, because by using his eyes he comes to know all the weak points, and can avoid them as easily as the master. But nobody has ever very clearly drawn the line, and told us how far that maxim is to lead us, and whether indeed there is any limit to it. This becomes very important, since statutes have in some cases directed dangerous machinery to be properly fenced, and in all cases it requires great care in both master and servant to avoid risk in working under such circumstances.

The leading case on the subject of a servant with his eyes open working amid dangers of machinery may be said to be Clarke v. Holmes, 7 H. & N. 937, where the Exchequer Chamber, consisting of five experienced judges, had to consider the liability of the master. In that case the plaintiff was an overlooker employed in a cotton mill at Manchester, and his duty was to oil the machinery. When the plaintiff entered on the service there was an iron guard round the mill gearing, but it had become broken. The plaintiff had called the manager's attention to it, and the latter promised to repair it, and the master also had looked at it and spoken of having it mended. But it was not mended, and one day, in oiling the machinery, the plaintiff's arm was caught by the machinery and torn off. He sued his master for damages caused by negligence and neglect of the statutory duty to fence. The jury negatived any negligence in the plaintiff, and found a verdict for him, holding that the accident was due to the want of caution in the master. The master claimed notwithstanding to have a nonsuit entered or a new trial. After time taken to consider, the court held that the employer was liable. In that case there was an obligation by statute on the master to fence his machinery, and he had neglected to fence. But Cockburn, C. J., held, that independently of any statute, there was at common law a duty in the master to fence. He said it was true that when a servant enters on an employment from its nature necessarily hazardous, he accepts the service subject to the risks incidental to it, or if he thinks proper to accept an employment in machinery defective from its construction or from want of proper repair, and with knowledge of the facts, enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment. This rule however went only to this, that the danger contemplated on entering into the contract shall not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from the terms of the contract or the nature of the employment, the servant had a right to expect that it would be kept. The court said that there was a sound distinction between the case of a servant who knowingly enters into a contract to work on defective machinery and that of one, who on a temporary defect arising, is induced by the master, after the defect had been brought to the knowledge of the master, to continue to perform his service un

der the promise that the defect shall be remedied. The end of the case was, that the court held that the knowledge of the servant of danger might or might not amount to a defense. But the utmost that could be said about it was, that it was an element to be taken into consideration, and not conclusive either way. All the judges in that case agree that mere knowledge of the danger was no bar to the servant suing the master. As Crompton, J., said: "The knowledge of the danger is only a part of the ques tion of negligence-one part perhaps out of a hundred that must be considered."

Other cases have some bearing on this point, but it is only necessary to refer to the case of Weblin v. Ballard, 17 Q. B. Div. 122, where the court held that the mere knowledge of the workman that his work is dangerous is not in itself contributory negligence, but that to prove such it must be shown that he used that which was dangerous in a negligent manner. In that case the workman had been found dead in the engineroom. He had been desired by the foreman to stop the large steam engine which was then working.and he went into the engine-room for the purpose. Before doing the work he had to reach a valve, and he did so by ascending a ladder resting upon a pipe which conveyed steam to the other pipe, and on which the ladder could not safely rest. The deceased man was found lying dead at the foot of the ladder. It seemed that the valve could only be reached by a ladder in this way. An action being brought against the employer, the court considered the state of the law before the Employers' Liability Act, and the change produced by that act, and came to the conclusion that the defeuse that the servant had contracted to take upon himself the known risks attending upon the engagement was taken away when the workmen now sued the master. Here there was no contributory negli gence in the deceased workman. There was a defect in the condition of the ways and plant. The workman was excused from informing the master of this defect, because the master knew of it. The court, consisting of Matthew, J., and Smith, J., said that the mere fact that the deceased had used that which was dangerous in a negligent manner was not proved, and the mere fact that the deceased knew that the work was manifestly dangerous does not constitute contributory negligence. The judgment was therefore given for the workman.

The recent case of Thomas v. Quartermaine involves a very elaborate review of this doctrine as to the workman's knowledge of the risk be runs, and the majority of the court have said, at least one has said, that Weblin v. Ballard was wrongly decided, and ought to be overruled. The two judges of this majority were Bowen, L. J., and Fry, L. J., while Lord Esher, M. R., held to the contrary. So that unless there is an appeal to the House of Lords and a unanimous judgment on one side or the other, the doctrine involved, which is of supreme importance, must now remain in a very unsatisfactory state owing to this conflict of the judges.

In this last case the plaintiff was employed in the brewery of the defendants, and sought to recover damages under the Employers' Liability Act for injuries received from a fall into a cooling vat, by which he was severely scalded. In the brewery the boiling vat and the cooling vat were both in the same room A passage which was in one part only three feet wide, ran between those two vats. The rim of the cooling vat rose sixteen inches above the level of the passage, but was not otherwise fenced. The plaintiff was employed in this room, and his duty led him to go along this passage and get a board which was used as a lid from under the boiling vat. The lid stuck, and the plaintiffin giving a strong pull, found the lid come away sud

denly, and he fell back into the cooling vat. An action being brought, the County Court judge held that there was evidence of a defect in the condition of the works at the brewery, inasmuch as there was no fence to the cooling vat, and though the condition of the vat was known both to the employer and the workman, there was no contributory negligence in the plaintiff; and judgment was given for the workman. The Queen's Bench Division, consisting of Wills, J., and Grantham. J., reversed that judgment and entered the judgment for the employer. The case was argued before the Court of Appeal, and after time taken to consider the judgment, the master of the rolls was for reversing the judgment, but Bowen, L. J., and Fry, L.J., affirmed it.

The manner in which Lord Esher, M. R., viewed the point was in substance as follows: Before the Employers' Liability Act it used to be held that a man who went into any employment undertook all the ordinary risks incident thereto unless they were concealed, or were known to the master and not to the servant. It seemed clear that the act has taken away that defense from the master. There is no difference between contracting to take a risk upon oneself and undertaking an employment to which risk attaches. It is said you cannot have liability for negligence except it is founded on a duty. The duty however is that you are bound not to do any thing negligently so so as to hurt a person near you, and the whole duty arises from the knowledge of that proximity. Besides the act recognizes, if it does not impose, a duty on the part of the master not to have his ways, machinery or plant in such a defective condition as to cause injury to the servant, and if he fails in that, the master is not at liberty to set up that the injury arose by the negligence of a fellow servant of the plaintiff, nor that the plaintiff, whether he knew or did not know of the defect, had contracted that he would take the risk on himself. Here there was a defect, and the master knew of it. There was no evidence that when the workman entered into this contract he knew of the state of the works, and therefore he cannot be said to have either expressly or impliedly contracted to run the risk. And according to Clarke v. Holmes, which has never been overruled, the mere knowledge of danger is not conclusive, but is only a fact to be taken into consideration. The defendant therefore was not excused from liability to this workman.

The way, on the other hand, in which the majority of the Court of Appeal viewed the facts and applied the law was in substance this: The Employers' Liability Act merely took away from the master the old defense that he was not liable for injury caused by the fellow servant's negligence, but nothing more. It did not say that the workman was to have the same right as if he were not a workman, and other rights in addition. The true view of the act is, that with certain exceptions it has placed the workman in a position as advantagous as, but no better than, that of the rest of the world who use the master's premises at his invitation on business. Here the workman knew the danger and risk of this vat as well as the master. The common law imposes on the occupier of premises no abstract obligation at all as to the state in which he is to keep them, provided that he carries on no unlawful business and is guilty of no nuisance. There is here no neglect of duty toward a person, who knowing and appreciating the danger and risk, elects voluntarily to encounter them. The maxim applies, volenti non fit injuria. Where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor to common law, where the danger is visible and the risk appreciated, and

where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defense in itself. But when it is acknowledged under circumstances that leave no inference open but one, namely, that the risk has been voluntarily encountered, the defense is complete. Carelessness is not the same thing as intelligent choice. For many months the plaintiff, a man of full intelligence, had seen this vat, known all about it, appreciated its danger, elected to continue working near it. It seems that legal language has no meaning unless it were held that knowledge such as this amounts to a voluntarily encountering of the risks.

It seems no easy matter to balance these conflicting judgments and predict which of the two views will be approved by the House of Lords after another more elaborate discussion. The importance of the subject calls for further examination. That there are foolhardy servants may be true; but there are also employers who put off to the last every thing like expenditure in order to lessen a workman's risks. It rather appears that Lord Esher's judgment is the more reasonable, for all he says is, that according to Clarke v. Holmes the workman's knowledge of the risk is not conclusive as a bar to his action; it is nothing more than an element to be taken into consideration with other circumstances. It is to be hoped this will be found in the end the correct view of this puzzling question. Fortunately a few days ago, in a similar case, Lindley, L. J., has said that he took the side of the master of the rolls, so that an appeal is imminent.-Justice of the Peace.

Editor of the Albany Law Journal:

If it is a fact that on the trial of the celebrated case of People v. Jacob Sharp jurors were excused on challenges for the particular cause of actual bias, on the ground that their answers to the preliminary questions of the district attorney disclosed that they had a prejudice against informers, such as were Fullgraff and Duffy, or did not regard such testimony as theirs as worthy of belief, it has been suggested that a serious, if not fatal, error exists in the conviction of the defendant, and that he is consequently entitled to a new trial. The point is one which the record may not permit of being urged in the Court of Appeals, and yet it seems to be of sufficient worth to merit the attention of lawyers and the public, if not of the defense. So far as we are informed it is new. It is this: Fullgraff, Duffy and Waite were accomplices of Sharp in the criminal conspiracy which resulted in the bribery of which Sharp was convicted. If this be true, then it may be said that the prejudice which the excused jurors expressed themselves as having against their testimony, or more strictly, against the testimony of informers, and on the ground of which they were excused, was a prejudice which the law itself justifies and entertains.

Section 399 of the Code of Criminal Procedure reads: "A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime."

Is it a correct ruling of the trial judge then which sets aside proposed jurors who entertain a prejudice