the mode of sale-as to whether it shall be public or private, by the quantity or single article-and the various other details of such transactions. By this construction the instrument is sustained and its language satisfied." This rule was adhered to in Bound v. Railway Co., supra, notwithstanding the very able argument of the late learned chief justice to sustain the rule adopted in Keep v. Sanderson, in opposition thereto. Sup. Ct. Wis., Sept. 20, 1887. Cribben v. Ellis. Opinion by Taylor, J. ASSOCIATIONS MEMBERS.-The charter of the board of trade, city of Chicago (§ 6), provides that the corporation "shall have the right to admit or expel such persons as they may see fit, in manner to be prescribed by the rules, regulations and by-laws thereof;" under the authority of which, rule 4, § 9, was adopted, which provides that for certain causes "any member of the association may be censured, suspended or expelled by the board of directors, as they may determine." Held, that the board of directors, by virtue of the delegated authority given by these sections, has the power to expel members from the association. (1) The first point made by appellant is that the "Board of Trade of the City of Chicago" cannot delegate the power of expulsion to its board of directors, and that his expulsion is illegal as having been the act of the directors, when the power to bring it about rested with the body of the corporators. The main authority relied upon in support of this position is the case of State v. Chamber of Commerce, 20 Wis. 63, where an act provided that corporations organized under it should "have the right to admit as members such persons as they may see fit, and expel any members as they may see fit." The language of appellee's charter (vide Priv. Laws 1859, p. 13) is, however, much broader and more comprehensive than the Wisconsin law. Under the authority of the sixth section of the charter, the board adopted the ninth section of rule 4, which provides that, "when any member of the association * * * shall violate any of the rules, regulations or by-laws of the association, or * * * shall be guilty of making or reporting any false or fictitious purchases or sales, or * * * shall be guilty of any act of bad faith, or * * * of any dishonorable or dishonest conduct, he shall be censured, suspended or expelled by the board of directors, as they may determine from the nature and gravity of the offense committed. * * * An affirmative vote of at least twelve members of the board of directors shall be necessary to expel." We think that the ninth section of rule 4, as here quoted, comes fairly within the meaning of section 6 of the charter. The latter section gives the corporation the right to expel such persons as they may see fit, in such "manner as may be prescribed by the "rules," regulations, etc. Expul. sion by the action of the directors is one mode or manner of expulsion; expulsion by a majority vote of all the corporators is another mode or manner of expulsion. A rule prescribing the former mode is as much authorized and justified by the language of the charter as a rule prescribing the latter mode. State v. Chamber of Commerce, 47 Wis. 670. (2) When the appellant became a member of the board of trade, under and subject to the articles and conditions of its charter, and by signing an agreement to be governed by the rules, regulations and by-laws passed in pursuance of that charter, he, of course, became such member under and subject to the rule which imposed expulsion as a penalty for the offense with which he was charged, and under and subject to the rules which directed the mode of investigating and trying such offense. The proceedings against him appear to have been regular and in accordance with the rules and the -BOARD OF TRADE-EXPULSION OF provisions of the charter. The expulsion is therefore conclusive against him. "The sentence is like an award made by a tribunal of the party's own choosing. * * * The society being empowered by its charter to act judicially, its sentence is just as conclusive as that of any other judicial tribunal." Ang. & A. Corp. (11th ed.), § 418; High Extr. Leg. Rem. (2d ed.), § 292. Sup. Ct. Ill., Sept. 26, 1887. Pitcher v. Board of Trade of City of Chicago. Opinion by Magruder, J. CARRIER PASSENGER-DUE CARE-QUESTION FOR JURY.-In an action for injuries received by plaintiff in alighting from defendant's train, a charge that it is the duty of the conductor to assist passengers from the train is erroneous. Negligence, as we understand it, is in the main a question of fact, or rather whether it exists or not in a special case is 'a question of fact for the jury. All that the law has ever determined on the subject is that it consists in failing to bestow due care to the matter in hand; failing to do that which due care requires to be done, or doing that which said care forbids. This is about all that a judge can ordinarily say to the jury as to the law of negligence. Whether the facts proved show the absence of this care is for the jury, untrammelled by any expression of opinion from the judge. Now it seems to us that his honor here went beyond this rule when he charged the jury, as matter of law, that it was the duty of the conductor to assist the passengers off. He ought to have left this to the jury. It was their province to say whether failing to assist the plaintiff, under the circumstances surrounding her and him, the conductor failed to bestow that care which the matter reasonably demanded at his hands. The appellant excepted, secondly: "Because his honor erred in charging the jury that it was the duty of the conductor to especially assist the passengers out who were aged and helpless and infirm,' without the necessary qualification that notice of such age, helplessness or infirmity must be brought home to the conductor by the passenger, or the conductor be proven to have had knowledge of the same." Negligence, as we have said, being defined in law to be the absence of due care, it is of course a relative matter, and therefore what would be negligence in one case might not be so in another. But the whole question, where the case escapes a demurrer or nonsuit, is for the jury upon all the testimony. And inasmuch as we think it was error for the judge to charge, as he did, that it was the duty of the conductor to personally assist the plaintiff in attempting to leave the car, this error would not have been cured, even if the qualification suggested had been made. What we desire to be understood as saying is this: That the fact that a conductor fails to assist a passenger in disembarking from the car cannot be laid down in law as constituting in itself negligence, but it is a fact which may go to the jury, with the other facts, including a want of knowledge on the part of the conductor of the age and infirmity of any passenger, as circumstances for them to consider in determining the question whether due care had been observed or not. And it is the province of the jury to decide the force and effect of such testimony, and not for the judge. S. C. Sup. Ct., Sept. 20, 1887. Simms v. South Carolina Ry. Co. Opinion by Simpson, C. J. CRIMINAL LAW- TRIAL-REMARKS OF COUNSEL.The defendaut, as appears from the record, had made a motion to continue this case for the absence of certain witnesses, by whom he expected to prove that he was not near the scene of the homicide at the time it took place. These persons were sent for. They appeared, but he failed to introduce them. This motion was made, it will be remarked, before the jury was impaneled, and was probably made in writing, or if : in the exercise of ordinary or reasonable care. (2) On a trial for nuisance in operating a rendering establishment, an instruction that the jury may take into con made orally, there was no evidence of it before that jury and it was certainly a very damaging circumstance to allow counsel to proceed and argue the guilt of the prisoner from his failure to produce these wit-sideration the fact that the parties nearest to such esnesses; and when the court's attention was called to this subject, he should have promptly reproved the proceedings, and admonished the jury that it was improper, and that they should give it no attention; but this he seems to have declined. Unless this was a case of circumstantial evidence, so strong as to imperatively demand the finding the jury made, we can easily see how injury, and a great injury, might have resulted to this defendant from such a course of proceeding. The defendant may be guilty, and may have been proven to be guilty, but his guilt could be established only by legal testimony properly introduced to the jury by witnesses with whom he was entitled to be confronted. Has the defendant had a fair trial with none but legal testimony before the jury? We think not; we cannot undertake to say what influence the circumstances improperly insisted upon in the argument may have had upon the jury; and a new trial is therefore granted, solely upon this ground. Ga. Sup. Ct., May 9, 1887. Blackman v. State. Opinion by Hall, J. NUISANCE - RENDERING FACTORY. - (1) An instruction to the effect that defendant, having located his rendering tanks as far from thickly settled communities as they reasonably could be, and made reasonable provision for rendering what might be brought there, would not be liable for having caused more to be brought than could be rendered, however offensive to the neighborhood it might become, if the jury believed that the business was not a nuisance when the carcasses were rendered as fast as collected. Held, properly refused. The first instruction is based upon the theory that defendant, having located his rendering tanks remote from thickly settled communities, as far as they reasonably could be, and that they were managed with the most approved appliauces, and he had made reasonable provision for rendering what might be brought to the tanks, or such provisions as in the judgment of a reasonably prudent man would be a sufficient provision therefor, he would not be liable if he should cause more to be brought to the tanks than could be rendered, however offensive to the neighborhood such carcasses might become, if the jury believed that the business was not a nuisance when the carcasses were rendered as fast as they were collected. In determining whether establishments of this kind, which belong to the class denominated prima facie nuisances, are nuisances in fact, the location, whether convenient or otherwise, as well as the management and the effect produced on the neighborhood, must be considered. If it be conceded, as contended, that the tanks were not of themselves, or the business of operating them was not a nuisance, or liable to become so, when operated with proper care, yet the fallacy of the instruction is apparent, in that it assumes that the defendant was justified in collecting more carcasses than could be rendered before they became offensive to the neighborhood. It may have been convenient for farmers to sell their dead hogs, and defendant may have been bound to care for the dead animals on the trains of the railroad, but he was not bound to buy or collect more than he could dispose of. What excuse can it be to him for permitting, for a number of days, large quantities of putrid carcasses to lie exposed at his establishment, that more hogs died than his tanks had capacity to render? It is true, the defendant says he did not think it would be treating his neighbors right not to take their dead cholera hogs, but when he took them in quantities larger than he had the ability to care for, and prevent becoming a nuisance to the neighborhood, he was not 66 tablishment, and claiming to be injured thereby, or some of them, were at or during the same time keeping on their own premises dead carcasses and offensive matter, held, properly refused, as such fact would be no justification for the defendant. The third instruction is faulty in that it would, if given, authorize the jury to consider other distinct nuisances not connected with the one in question; and also, if they found from the evidence that the persons named in the indictment as having been prejudiced by the nuisance, or some of them, have from time to time voluntarily contributed to the support and increase of the business, etc., of the tanks, such facts might be considered in determining the question of nuisance. If it was shown that there were other nuisances at the same time (which is not here established), their presence would be no justification to the defendant. The question was, is the business of defendant productive of odors which are offensive to those within their range, so that it produces physical discomfort? Rex v. Neil, 2 Car. & P. 485; Russ. Crimes, 437. It cannot be said, either, that because one of the persons named in the indictment, or all of them, may have voluntarily contributed to the increase or support of the "business," it would justify or excuse the defendant in so conducting his business that it would become a nuisance. Wood, Nuis. 553; Smith v. Phillips, 8 Phila. 10; Tipping v. Smelting Works Co., 1 Ch. App. 66; Rosc. Crim. Ev. 795. (3) The fact that the business of rendering dead animals is one of great public convenience is no defense to an indictment for nuisance in permitting to be collected and deposited, at the rendering tanks, such animals, offal and filth to the prejudice of others. It is said the proof shows the existence of three things: (1) Necessity for the business; (2) suitableness of location of defendant's tank; and (3) proper care and management; and these concurring, it is said, establish the non-liability of the defendant. It is also insisted with great apparent earnestness that the acts of defendant are justified by the immediate urgency for the disposition of the dead animals, out of regard for the public health and convenience. In respect to the suitableness of location, it may be said that in respect of trades and business, which generally produce ill effects upon the adjacent owners of property, such as tanneries, smelting works, rendering and soap factories, and the like, and denominated therefore prima facie uuisances, the weight of authority in this country and Great Britain probably is that no place can be held to be convenient for the exercise of a noxious trade where injurious results therefrom ensue to others. In respect however of businesses or trades which produce merely annoyance, thereby producing physical discomfort, but which are not hurtful in character, that is, injurious to health or life, the rule is not of the same strictness. See Tipping v. Smelting Co., supra; Rex v. Dixon, 10 Mod. 339; 1 Hawk. P. C., ch. 75, § 10; opinion by Blackburn, J., in Fletcher v. Rylands, L. R., 1 Exch. 289; McKeon v. See, 51 N. Y. 300; Rylands v. Fletcher, L. R., 3 H. L. 330; Peck v. Elder, 3 Sandf, 126; Catlin v. Valentine, 9 Paige, 575; Water-Works Co. v. Potter, 7 Hurl. & N. 167; Pinckney v. Ewens, 4 Law T. (N. S.) 741; Attorney-General v. Leeds, 39 Law J. 254; Cahill v. Eastman, 18 Minn. 324 (Gil. 292); Beardmore v. Tredwell, 3 Giff. 683; Bamford v. Turnlly, 31 Law. J. 286, cited in full, 3 Giff. 690, et seq. However, it will not be necessary to determine this question here, for it clearly appears that the defendant was guilty of collecting the carcasses of dead animals at his tanks, and other locality, however opulent. It cannot be said, nor is there reason or authority for the position, that for the public convenience of the city of Galesburg or other towns or stations, or of the railroad or of adjacent farmers, or because it may be profitable to shippers or others that the business be carried on, that those persons named in the indictment or this neigh lives made physically uncomfortable and their homes made unenjoyable by noisome or noxious odors and gases. Private property cannot be taken for public use without just compensation, and it can make little difference whether it is taken or is destroyed for the uses of civilized life. It can make no difference that the convenience or even the preservation of the health of a large population required the speedy disposition of the dead animals, or that the number actually injured by the nuisance is comparatively small. There is no error in this record for which the judgment should be reversed, and it will be affirmed accordingly. Sup. Ct. Ill., Sept. 26, 1887. Seacord v. People. depositing and permitting to remain noisome sub-tainly assured to them by the law, as to citizens of any stances, contrary to the provision of the statute, independently of the business of carrying on his rendering establishment. In respect of the third proposition-that is, proper care and management by the defendant of his business-it has already been shown that whatever the care exercised to prevent the mere rendering of the carcasses in defendant's tanks from being prejudicial to others, he permitted to be col-borhood shall be compelled to submit to having their lected and deposited there dead animals, offal and filth, in direct violation of the statute, unless the public necessity or convenience will justify his acts. The law does not however balance conveniences, and it makes no difference if the work is really in the interest of society, or necessary for the preservation of the public health. It is now well settled "that the circumstance that the thing complained of furnishes, upon the whole, a greater convenience to the public than it takes away, is no answer to an indictment for nuisance." Rosc. Crim. Ev. 794-798, M. IV. In Attorney-General v. Leeds, 39 Law J. 254, the town of Leeds was indicted for a public nuisance created by the discharge of sewerage of the town into a river, and thereby polluting the stream. The defense was that there was no other practicable way to drain the town, and the health of the inhabitants thereof depended upon maintaining this outlet for its sewerage. It was held to be no defense, the court holding that, in prosecutions or actions for nuisance, the court would not balance conveniences, but when the violation of the public or private right was clear, there could be no excuse heard of public convenience that would protect the person or corporation committing the nuisance from civil or criminal prosecution. In Rex v. Russell, 6 Barn. & C. 566, it was held at nisi prius that where a great public benefit accrues, arising from the abridgment of the right of passage, such abridgment is not a nuisance. But in Rex v. Ward, 4 Adol. & E. 384, Russell's case was expressly overruled, and it was there held that there can be no balancing of benefits, and a defendant will not be permitted to show that the public benefit resulting from the alleged nuisance was equal to the public inconvenience occasioned thereby. In State v. Kaster, 35 Iowa, 221, on indictment for nuisance in maintaining shipping yards it was held to be no defense that the shipping yards were a great and essential accommodation to the public; that owing to their locality, character of surface, etc., they were less offensive than any other answering the same public demand, and were reasonably well kept. See also Hart v. Mayor, 9 Wend. 571; 3 Greenl. Ev., 187; Attorney-General v. Lunatic Asylum, 4 Ch. App. 146; Holsman v. Boiling Springs Co., 14 N. J. Eq. 335; Chute v. State, 19 Minn. 271; Gil. 230. This position is not only abundantly sustained by authority, but is sound in principle. To hold otherwise would be to compel the citizen to abandon his property at the demand of the public convenience, without the forms of law and without compensation. To live in the comfortable and free enjoyment of the air, free from unnecessary pollution, is the right of all, and any act which takes this away from an individual is actionable as a private injury; that which deprives the community of the right is indictable as a public wrong. If it was necessary for the public health or convenience that dead animals should be summarily disposed of, means could be readily found, without accumulating them, from the adjacent towns and cities and stations of a great railway, and from the surrounding country, in one locality. This particular neighborhood, comprising only perhaps a score of families, owed no servitude to these towns and cities, or to the railway or surrounding country. Its right to enjoyment of pure air and of its homes in physical comfort was, as valuable to its inhabitants, and as cer EVIDENCE-DECLARATIONS OF AGENT-RES GESTÆ— NEGLIGENCE.-In an action caused by the collision of one of defendant's railroad trains with the train which the plaintiff was upon, declarations of the conductor of defendant's train, made just before the collision, showing the situation of the train, and that plaintiff's train had not been flagged, are admissible as part of the res gesta. The plaintiff had a right to show the situation of appellant's train, and what precaution, if any, the conductor in charge of the train had taken to guard against danger. Ill. Sup. Ct., Sept. 26, 1887. Chicago & E. I. R. Co. v. Holland. Opinion by Craig, J. GIFT-PROMISSORY NOTE-INTENDED TRANSFER.— R. signed a promissory note for 200l., payable on demand to E. H., who was in her service, and handed the note to her solicitor, with verbal directions to keep it till R.'s death, and pay the amount to E. H. if she was still in R.'s service. The fact that the note had been given was communicated to E. H., who was engaged to be married, and she was induced to postpone her marriage and remain in R.'s service. R. died, leaving E. H. surviving, still in her service, and unmarried. Held, that there was a valid declaration of trust in favor of E. H., and the note must be paid out of R.'s estate. It was not disputed, and could not be disputed, that if the testatrix had placed 2001. in cash in the hands of her solicitor for the purpose mentioned, with the direction mentioned, it would have been a good trust. It is not necessary for the completion of a voluntary gift that the 2001. should actually be paid over in cash into the hands of the person who was intended to receive it, but there must be either a complete transfer or a declaration of trust. The testatrix might have made a declaration of trust, making herself trustee. It was equally competent to her to make somebody else a trustee for the purpose. It seems to me, that in this case the note was hauded to her solicitor for the purpose and with the intention expressed when it was given, and which intention was never altered down to the time of the death of the testatrix. If the note had been made payable to her solicitor, it is admitted that he could have sued upon it, for the purpose of handing over the money. It seems to me precisely the same thing if it is not made payable to him, but made payable to some person in whose favor it is intended to take effect. It seems to me that the placing of the note in his hands was placing it in his hands as trustee, to hand it over to the present claimant in the event of a particular occurrence taking place. I do not think it necessary to consider what the power of the testatrix might have been in the meantime, if she which the application now before me belongs. The INJUNCTION-DUTY OF FEDERAL COURT TO ISSUE IN REMOVED CAUSE-IRREPARABLE INJURY.-A preliminary injunction will not be granted by a United States court to prevent a State court from enforcing its decree restraining plaintiff from selling wine and beer, and abating his saloon as a nuisance, under the State law, after the case has been removed to the United States court; as in such a case the injury to plaintiff would not be irreparable, but one capable of being fully compensated by damages recoverable in an action at law, in the event of the removed case being decided in his favor. The decisions leave no doubt whatever of the power of this court to grant in junctions in cases which have been regularly removed from the State courts. But the power to grant injunctions, and the duty of the court to grant them, are wholly different propositions. What is a preliminary injunction? It is an order or decree without regular evidence; indeed without proof-since affidavits are not in any proper sense legal proofs. Such evidence, given ex parte without cross-examination, is notoriously misleading and delusive. A preliminary injunction is in fact the result of an interlocutory decree in advance of a regular hearing and plenary proofs. Hence a court always, in making orders upon such irregular proofs, runs a great risk of falling into grave error. A preliminary injunction should never be granted except in cases where irreparable injury is threatened, and the court, in granting such a remedy, should be certain that in attempting to prevent irreparable injury to one party it shall not do irreparable injury to the adverse party. See High Inj., §§ 7-10, and the cases there cited. I do not doubt that in those removal cases, where rights of property are the direct subject of litigation, if any party were proceeding under the authority of the State court after the removal to sell, destroy, confiscate or otherwise meddle with the property, so as to seriously impair its value, it would be the duty of the Federal court to restrain and prevent such injurious acts, for otherwise the final decree of the court establishing the right of any clamant to the property would be useless and nugatory. The injury to be prevented would in such case be simply irreparable. Such was the view which this court took of the so-called Brewery cases when they were transferred from the State courts upon the authority of the decision of the Circuit judge in State v. Walruff, 26 Fed. Rep. 178. In these Brewery cases the properties involved were of very great value. No bond of indemnity was required of parties who sued out injunctions in the State courts, aiming at their abatement and virtual destruction as nuisances. The consequences to the owners of such properties would have been simply ruinous, and the injury irreparable. These were clear cases therefore calling for the equitable discretion of this court in the granting of preliminary injunctions. Unless the court wholly abandoned its jurisdiction of causes thus removed here, and remanded them to the State courts, there seemed to be an imperative necessity for the granting of orders staying proceedings in the State courts, which threatened the utter destruction of the brewery prop-ing notes. Thereupon the company reissued the policy erty, the very subject of litigation. It was manifest that actions at law for damages by the owners of brewery properties injured to the extent of sums amounting to twenty, thirty, forty and fifty thousand dollars would have proved wholly futile and nugatory, and therefore that the injury impending in such cases was irreparable; and it is only in cases of irreparable injury that the extraordinary remedy of preliminary injunctions ought to be applied. But I am not able to view in this light the so-called Saloon cases, to FORFEITURE. a recent case against the defendant company, decided by the Supreme Court of Connecticut, to-wit, Holman v. Insurance Co., 6 Atl. Rep. 405, the sum insured was $1,000, the period of time ten years, the annual premium $108,72, payable partly in cash and partly by note, the conditions the same as here. After the payment of two annual premiums, partly in cash and partly in notes, which remained outstanding, the insured applied for a paid-up policy for $200, agreeing to pay annually in advance, interest on all outstand indorsed as in the case at bar. The insured after paying the interest twice more stopped, and at the expiration of the term of the policy, brought suit thereon. The court held that "the paid-up policy was in effect a new policy on the conditions of the old, except in so far as the conditions of the old were inapplicable for the reasons that no further premiums were to be paid, and that therefore it was forfeited by non-payment of the interest annually in advance on the outstanding premium notes. The court in render ing judgment, delivered an elaborate opinion, citing numerous cases in its support. We think its conclusion correct. There can be no doubt that the original policy was liable to forfeiture by such non-payment, unless its clear provisions are to be overruled because of a misleading phrase in its margin, as of course they cannot be without proof of fraud, and in our opinion the "paid-up" policy, both as issued and as provided for, is only the original policy reduced to an amount corresponding to the premiums paid, so that no further premiums are required. The expression "paid-up," as used in the provision for the conversion of the original policy into a "paid-up" policy, is put in quotation marks, as if the expression were used to designate, instead of characterize it, and if the expres sion be so regarded, there is little reason for supposing that the paid-up" policy was intended to be. any thing other than the original policy converted by reducing it as stated, the conditions so far as applicable continuing unchanged. That the female plaintiff so understood appears from the terms of her application, and from her receiving back the policy as indorsed. It seems to us that it is by laying undue stress on the expression "paid-up" that a contrary view has obtained. The use of an expression so likely to mislead cannot be too severely reprehended, but courts should not, on that account, give an effect to it which it is not entitled to. R. I. Sup. Ct. M'Quilty v. Continental Life Ins. Co. Opinion by Durfee, C. J. SHIP AND SHIPPING --STOWAGE--NEGLIGENCE--MACARONI AND GREEN FRUIT.-Under the existing state of knowledge it is a want of due care of cargo for a vessel to stow macaroni and green fruit in the same compartment of the hold. There is now no such general custom of stowing macaroni and green fruit together as to constitute a usage exempting the ship from the consequences of damage arising therefrom in the existing state of knowledge. The steamship B. delivered in the port of New York certain macaroni which had been damaged during the voyage by the fumes of heated and decaying green fruit, which had been stowed in the same compartment. The bills of lading excepted "damage from other goods by sweating or otherwise." Held, that though the exception covered this damage, the vessel was liable for her negligence in stowing the two articles in the same compartment. Clark v. Barnwell, 12 How. 272; Mainwaring v. The Carrie Delap, 1 Fed. Rep. 874; The T. A. Goddard, 12 id. 174, 177; The Titania, 19 id. 101. U. S. Dist. Ct., S. D. N. Y., June 8, 1887. Paturzo v. Compagnie Francaise. Opinion by Brown, J. SERVANTS' WAGES DURING ILLNESS. A RECENT decision of the courts reversing a decis ion of a magistrate, where an apprentice, who had been disqualified by illness from work, was held, nevertheless, entitled to claim the usual wages during this disability, shows that justices are apt to go wrong on this point. And as the subject is of great practical interest and the circumstances must be of frequent occurrence, it will be useful to notice some of the authorities, so that justices may be able more accurately to discriminate the important elements of the question. In the case of domestic servants, the difficulty caused by illness is mitigated by this circumstance, that owing to the ready way of determining the contract by a month's notice the loss can seldom be very serious if deemed irksome; but as a rule the master requires to determine the contract altogether, in order to escape the duty of paying the usual wages while the servant is disabled, for as an old case expresses it, "the master takes his servant for better and for worse, for sickness and for health." Common charity has seldom allowed this point to be often contested in the case of domestic servants, but in the case of workmen and apprentices and skilled artists there have been occasional litigations, and some of them attended with nicety. Again there are peculiar contracts where it is necessary for a court to consider whether the good health of the contracting party was not necessarily assumed as a condition of the contract or a basis on which the whole contract was founded. The simplest of the cases may however first be looked at. In Harmer v. Cornelius, 5 C. B. (N. S.) 236, the question arose whethor an artisan who has been engaged for a term to work in his art and proved incompetent, could be discharged on that account, and the right to dismiss servants for illness, and the relations between master and servant were carefully considered by judges of great insight. A scene painter had been employed at wages of £2 10s. per week, to work at Manchester. An advertisement had been put in a theatrical newspaper asking for two first-rate panorama and scene painters, and the plaintiff was engaged and was set to paint some scenes, but in a short time was dismissed as incompetent. He then sued the employer for damages. After time taken to consider, Willes, J., delivered the judgment of the court to the effect, that when a skilled laborer, artisan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes. If there is no general and no particular representation of ability and skill, the workman undertakes no responsibility. Here the correspondence showed that there was an express representation that the plaintiff did possess the requisite skill. So the plaintiff lost his cause. This decision paved the way to another more closely bearing on the subject of a servant's illness, namely, Cuckson v. Stone, 1 E. & E. 248. In that case the plaintiff had entered into an agreement to serve the defendant for ten years in the capacity of a brewer, at weekly wages of 50s. with dwelling-house and coals in addition. During the service he was taken ill at Christmas, 1857, was confined to his bed until March following, and was unable to attend to work till June nineteenth following, when he tendered his services and was again employed as before; but the employer refused to pay the wages during his illness, and for this sum the servant sued. It was admitted that the contract had never been rescinded. Lord Campbell, C. J., said the court agreed with what Willes, J., said in Harmer v. Cornelius, and if the plaintiff from unskilfulness had been wholly incompetent to brew, or by the visitation of God he had become, from paralysis or any other bodily illness, permanently incompetent to act as brewer, the employer might have determined the contract. He could not be considered incompetent by illness of a temporary nature. But if he had been struck with disease so that he could never be expected to return to his work, the employer might have dismissed him, and employed another brewer in his stead. Instead of being dismissed the servant returned to the service, and was employed as before. The contract accordingly being in force, aud never rescinded, there was no suspension of the weekly payments by reason of the plaintiff's illness and inability to work. It is allowed that under this contract there could be no deduction from the weekly sum in respect of his having been disabled by illuess from working for one day of the week; and while the contract remained in force there was no difference between his being so disabled for a day, or a week, or a month. Hence the servant succeeded in recovering his wages. In the case of an apprentice becoming disabled something obviously turns on the language of the indenture. In one remarkable case of Boast v. Firth, L. R., 4 C. P. 1, the father of the apprentice had |