System (Act of March 6, 1894), is constitutional, though it contains a provision that the time within which the elector must prepare his ballot shall be limited to two minutes and

a half. Pearsons v. Board of Supervisors of Brunswick Co., 21 S. E. Rep. 483. In the same case it was also held that in a provision that a sworn special constable, therein provided for "may" render assistance in preparing the ballot to an elector physically or educationally unable to vote, the word "may" is mandatory.

CONTRACT CUSTOM - EVIDENCE. It is decided by the Supreme Court of Montana, in Fitzgerald v. Hanson, 41 Pac. Rep. 230, that where a physician employs another to assist him in a case, evidence is not admissible of a custom prevailing among the physicians of the city and vicinity that, in the absence of a special agreement to the contrary, the assistant is to look to the patient for his pay, it not being shown that it was known to the assistant, or was so general and well established that knowledge and adoption of it might be presumed. The court said:

It is said by Dixon, C. J., in Lamb v. Klaus, 30 Wis, 94, quoting and approving Foye v. Leighton, 2 Fost. (N. H.) 75, that: "A usage explains and ascertains the intent of the parties. It cannot be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties; for it incorporates itself into the terms of the agree. ment, and becomes a part of it. It must be known and established. It must appear to be so well settled, so uniformly acted upon, and of so long a continuance, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it and in conformity with it." The Supreme Court of Maryland uses the following language upon this subject: "The authorities all hold that a usage, to be admissible, must be proved to be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed; and it must be certain and uniform. Foley v. Mason, 6 Md. 51; Second Nat. Bank of Baltimore v. Western Nat. Bank of Baltimore, 51 Md. 128; Bank v. Graftlin, 31 Md. 520; Patterson v. Crowther, 70 Md. 125, 16 Atl. Rep. 581." Exhibition Co. v. Pickett (Md.), 28 Atl. Rep. 279. In the case of Park v. Insurance Co., 48 Ga. 601, the offer was to prove a certain usage or custom in the life insurance business. The question propounded to witness was: ""Do you know of any usage or custom in the life insurance business as to the commutation of renewals, etc.?" The proper question would have been, 'What is the general or universal usage and custom in the life insurance business as to the commutation of renewals, etc.?" The usage or custom, to be binding, must be a general one, and of universal practice, as applicable to that particular business." The court also said: "The contract of the parties in this case was that the defendants should receive for their services twenty per centum on all sums collected by them for first

year's premium insurance, and seven and onehalf per centum on all sums received by them for continued renewals of policies. This contract is plain and explicit. There is no doubt or ambiguity as to the meaning of it, or as to the intention of the parties; but it is contended the evidence was admissible to annex an incident to the contract by the proof of usage or custom. But in all cases of this sort the rule for admitting the evidence of usage or custom must be taken with this qualification that the evidence be not repugnant to or inconsistent with the contract." We find the following in 1 Rice, Ev. p. 278: "Custom and usage are resorted to only to ascertain and explain the meaning and intention of the parties to a contract when the same could not be ascertained without ex. trinsic evidence, but never to contravene the express stipulations; and, if there is no uncertainty as to the terms of a contract, usage cannot be proved to contradict or qualify its provisions. Barnard v. Kellogg, 10 Wall. 383; Bradley v. Wheeler, 44 N. Y. 495; Wheeler v. New Bould, 16 N. Y. 392; Walls v. Bailey, 49 Ν. Υ. 464. In matters as to which a contract is silent, custom and usage may be resorted to for the purpose of annexing incidents to it. Hutton v. Warren, 1 Mees. & W. 466; Wigglesworth v. Dallison, 1 Doug. 201. But the incident sought to be imported into the contract must not be inconsistent with its express terms, or any necessary implication from those terms. Note to Wigglesworth v. Dallison, Smith, Lead. Cas. (6th Am. Ed.) 677, and cases cited. Usage is sometimes admissible to add to or explain, but never to vary or contradict, either expressly or by implication, the terms of a written instrument, or the fair and legal import of a contract. Allen v. Dykers, 3 Hill, 593; Hinton v. Locke, 5 Hill, 487; Magee v. Atkinson, 2 Mees. & W. 442; Adams v. Wordley, 1 Mees. & W. 374, and other cases cited; 1 Smith, Lead. Cas. 680 et seq." "Usage must be uniform. To permit usage to govern and modify the law in relation to dealings of parties, it must be uniform, certain, and sufficiently notorious to warrant the legal presumption that the parties contracted with reference to it. Bank v. Grafflin, 31 Md. 507; Rapp v. Palmer, 3 Watts, 179; Barksdale v. Brown, 1 Nott & McC. 519; Harper v. Pound, 10 Ind. 32; Smith v. Gibbs, 44 N. H. 335; Shackelford v. Railroad Co., 37 Miss. 202. Evidence of particular usage to add to or in any manner affect the construction of a written contract is admitted only on the principle that the parties who made the contract were both cognizant of the usage, and are presumed to have made the contract in reference to it. See Kircher v. Venus, 12 Moore, P. C. 361; Meyer v. Dresser, 16 C. B. (N. S.) 646; Appleman v. Fisher, 34 Md. 540; Cotton-Press Co. v. Standard, 44 Mo. 71." We are of the opinion that under the circumstances of this case, where the contract between the parties seems to be plain, and not subject to be misunderstood, the offer of proof of the usage was not sufficient to admit it in testimony. The usage proposed to be proved would set aside what appears to be the contract made between the parties. It does not appear by the offer of proof that the alleged usage was either known to the plaintiff, or that it was "so well settled, so uniformly acted upon, and of so long a continuance as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it and in conformity with it." Lamb v. Klaus, 30 Wis. 97. Again using the words in Rice on Evidence, it did not appear that this alleged usage was "uniform, certain, and sufficiently notorious to warrant the legal presumption that the parties contracted with refer

ence to it." It appeared only that the usage prevailed. The usage, as proposed to be proven, falls far short in its nature of such a one as could be considered to be part of such a contract as the one proven and conceded to be the contract in this case. This seems to us to be the only legal conclusion of this case. We are not informed by the record what the ethics and courtesy of the medical profession are in such a matter. If plaintiff has trangressed professional amenities in enforcing this demand as against the defendant, the amount of the judgment and his loss of his brethren's esteem may offset each other.

NEGLIGENCE-DANGEROUS PREMISES-FALL

OF BUILDING.-The questions considered by the Supreme Court of Minnesota in Ryder v. Kinsey, 64 N. W. Rep. 94, are of general interest on the subject of the liability of an owner of a building for injury suffered through the falling of a wall. It is there held that the owner of a building is not an insurer against accident from its condition, but so far as the exercise of ordinary care will enable him to do so, he is bound to keep it in such condition that it will not, by any insecurity or insufficiency for the purpose to which it is put, injure any person rightfully in, around, or passing it, and that where a building falls without any apparent cause, in the absence of explanatory circumstances, negligence will be presumed, and the burden is upon the owner of showing that he exercised ordinary care to keep it in a safe condition; but where it appears from such explanatory circumstances that the cause of the fall of the building was a latent defect in its construction, and there is no evidence tending to connect such cause with the owner's negligence, the burden rests upon the party asserting such negligence to show that such cause might have been discovered and removed before the accident by the exercise of ordinary care on the part of the owner. Upon the law of the case, the court says:

Upon this evidence, was the question of the defendant's negligence in the premises one of law or fact or for the jury? If fair-minded men might reasonably draw different conclusions from the facts which the evidence tends to prove, the question was one for the jury; otherwise it was for the court. If there is a fair doubt as to the inferences to be so drawn, the question is one of fact. Abbett v. Railway Co., 30 Minn. 482, 16 N. W. Rep. 266. The law applicable to this branch of the case is well settled. While the owner of a building is not an insurer against accidents from its condition, yet, so far as the exercise of ordinary care will enable him to do so, he is bound to keep it in such condition that it will not by any insecurity or insufficiency for the purpose to which it is put injure any person rightfully in, around, or passing the premises. Nash v. Mill Co., 24 Minn. 501;

2 Shear. & R. Neg. § 702; 1 Wood, Nuis. § 109. Buildings properly constructed do not fall from slight causes, only from some adequate cause. Therefore, where a building falls without apparent cause, in the absence of explanatory circumstances, negligence will be presumed; and the burden is upon the owner of showing that he exercised ordinary care to keep it in a safe condition. Mullen v. St. John, 57 N. Y. 567; 1 Shear. & R. Neg. §§ 59, 60; 2 Thomp. Neg. 1231. In the case under consideration, the evidence as to what was done by the plaintiff and those with him in taking down the small, light sign from the building in question would certainly justify the jury in finding that such act was not an adequate cause for the falling of the wall. The presumption then would be, in the absence of explanatory circumstances, that the wall fell because it was in an unsafe condition, and that the defendant was negligent in not exercising ordinary care in properly inspecting and keeping it in repair. But it is only in the absence of explanatory circumstances as to the cause of the fall of a building that the presumption of negligence on the part of the owner is presumed prima facie. Therefore, where such explanatory circumstances are given in evidence, and the cause of the fall of the building is established, and there is nothing in the evidence tending to connect such cause with the owner's negligence, the burden rests upon the party asserting such negligence to give evidence tending to show that such cause might have been discovered and removed by the exercise of ordinary care on the part of the owner. The cause of the fall of the wall is clearly established in this case. It fell because of a defect in its construction, in that it was not supported in the usual manner. This was readily discovered after the accident, when the bricks were on the sidewalk, and the manner of constructing the wall was exposed. It is easy to be wise after the fact, but the question is, did the defendant know, or might he have known, by the exercise of ordinary care, before the accident, of the defect in the construction? If so, he would have been clearly negligent in the premises. But he did not build the wall, and there is no evidence in the case that there was anything in the external appearance of the building indicating its defective construction. On the contrary, it affirmatively appears by the uncontradicted evidence that the defect in the construction was a concealed one. Neither is there any evidence in the case tending to show that the defect could have been discovered by the exercise of ordinary care in inspecting the building. The prima facie presumption arising from the undisputed facts is that the defect could not have been discovered by the exercise of such care; for the sheeting on the inside of the studding and the brick wall on the outside of them concealed the defect, and the absence of sheeting next to the brick wall and the anchoring of it to the sheeting by the large nails could not have been discovered, by any means disclosed by the evidence, except by the exercise of extraordinary care in inspecting the building, by making openings in the sheeting or wall to discover whether or not the wall was properly supported. Ordinary, not extraordinary, care, was the measure of the defendant's duty in the premises. No importance can be attached to the fact that the large sign was fastened to the brick wall, for, assuming that the wall was properly constructed, it could not be negligence to fasten the sign to it, and there was nothing about the sign or the manner in which it was attached to the wall to indicate the latent defect in the wall. Upon the whole record, we are satisfied that the presumption of negligence arising from the mere fact that the wall fell was rebutted by the explanatory circumstances disclosed by the evidence, showing the cause of its fall, and that the defect was a latent one; and that, in the absence of any evidence disclosing any fact or circumstance from which it might be reasonably inferred that such defect could have been discovered by the exercise of ordinary care on the part of the defendant, the question of his negligence is not one admitting of a fair doubt, and that the jury were correctly instructed to return a verdict for him. Any other rule would practically make owners of buildings insurers of their safety.

MUNICIPAL CORPORATION ERECTION OF WATER DAM.- In City of Centralia v. Wright, 41 N. E. Rep. 217, decided by the Supreme Court of Illinois, it was held that where a city which is authorized by law to establish a system of waterworks and to maintain the same indefinitely, erects a dam for the purpose of procuring a water supply, a property owner, who is injured by the erection of such dam, may recover damages both past and prospective. The court said in part:

But to recur to the question in dispute-whether the recovery shall be confined to such damages as had been sustained at the time the action was brought, or shall a recovery be had for all past, present and future damages? The solution of this question, as we understand the law, depends upon another question, and that it is whether the injury is permanent in its nature, or merely of a temporary character. If the former, all damages may be recovered; if the latter, only such damages as had accrued up to the time the action was brought. Thus, in Railroad Co. v. Maher, 91 Ill. 312, where an action was brought to recover damages to a lot alleged to have been sustained by the erection of a pier for a bridge, it was held, where an injury to real estate is permanent in its nature, and not of a temporary character, the owner may recover, not only for the present, but also for future damages, and such a recovery will be a bar to any other action for damages growing out of the continuance of the cause of the injury. In Brewing Co. v. Compton, 142 Ill. 511, 32 N. E. Rep. 693, where a similar question arose, it was held: If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law will not regard it as permanent, no matter with what intention it was built, and damages can therefore be recovered only to the date of the action. But in the case of permanent injury caused by lawful public structures, properly constructed and permanent in their character, damages may be allowed for the whole injury, past and prospective. So in Railroad Co. v. Loeb, 118 Ill. 203, 8 N. E. Rep. 460, it was held: "In an action brought for a deterioration in value of real estate occasioned by a nuisance of a permanent character, or which is treated as permanent by the parties, all damages for the past and future injury of the property may be recovered, and one recovery in such case is a bar to all future actions for the same cause." In Railroad Co. v. McAuley, 121 III. 160, 11 N. E. Rep. 67, a similar question arose, and it was there held: "In case of an njury arising from a nuisance, where the original nuisance to land is of a permanent character, a recovery must be had for the entire damages in one action; but where the nuisance is transient, rather than

permanent, the continuance of the injurious acts is regarded as a new nuisance, for which a fresh action will lie." There are many other cases where the same doctrine has been laid down, but the law on this subject is so well settled that a reference to other cases is not deemed necessary.

Here the city of Centralia procured the plant where it could establish a system of water-works to supply the inhabitants of the city and the railroad company with water, not for a day, a week, or a year, but continuously. A dam was constructed, which seemed to be of a permanent character. Pipes were laid and other improvements made, which all seemed to be of a permanent character. It is true the plant was leased, as is provided in the lease, only for twenty years, but that is unimportant. It may be renewed, as its terms indicate the parties intend shall be done; but, if it is not renewed, it is apparent from the lease itself that the water-works plant will remain and be continued after the lease expires, as a permanent "plant." The lease provides: "(10) Should the parties hereto elect not to renew this contract at the expiration of said term, then the said party of the first part shall purchase the permanent improvements, other than machinery, etc., which it is herein provided that said party of the second part shall have a right to remove, provided, however, that such permanent improvements shall be of a kind and quality as are reasonably fit and suitable for such a system of waterworks as the party of the first part may require at that time; and, if said parties shall be unable to agree upon the value thereof, then said parties shall each select an appraiser, who shall determine amount," etc. Whether the lease is renewed or not, it is apparent that the dam which caused the injury, and the waterworks plant, will continue as a permanent structure. But, aside from these considerations, it is not necessary to establish the fact that the structure erected by the city shall continue forever in order to determine that the structure is permanent. It is enough that the city had the legal right to erect and maintain the system of water-works perpetually. When the lease expires it is not bound to surrender the plant to the railroad company; but it may condemn the lands, and thus aequire the absolute title, and continue for all time, if it so desires. What was said in Railroad Co. v. Horan, 131 Ill. 30, 23 N. E. Rep. 621, applies here. In the discussion of what structures may be regarded as permanent, it is said: "It cannot be doubted that the road-bed, embankments, bridges, culverts, and other appurtenances of a railroad constructed and maintained in pursuance of lawful authority are to be regarded in law as permanent structures. This is not so because it is certain that they will in fact continue to subsist in their present condition forever, ог that they are not liable to be changed in many respects by the proprietors of the railroad company whenever they see fit, or by natural causes, but it is so because the railroad company has a legal right to maintain them perpetually." Here the city of Centralia was authorized by law to establish and maintain a system of water-works, and has the power to continue them perpetually. We think, therefore, the erection of the dam which caused the damages was a permanent structure; and the circuit and appellate courts properly held that damages, past, present and prospective, were recoverable.

CARRIERS OF PASSENGERS FAILURE TO WAKE PASSENGER. -In Missouri, etc. R. Co. v. Kendrick, 32 S. W. Rep. 42, decided by the Court of Civil Appeals of Texas, it was held that a railway company is not liable for failure of a conductor to awaken a passenger at a station, where she was to change cars, though he had promised to do so. The following is from the opinion of the court:

As a rule, it has been held by our courts that it is the duty of railway companies to establish needful and proper rules and regulations for announcing the stations along their lines of railway; and, on the other hand, that it is the duty of passengers to be ready to disembark with reasonable dispatch, so as not to delay the movement of trains, or unnecessarily impede travel or commerce. Mr. Hutchinson, in his work on Carriers (section 617b), thus lays down the doctrine: "Awaking Sleeping Passengers. So it is said that it is ordinarily no part of the carrier's duty to see that passengers are awake when the train reaches their destinations, and that the company is not bound by the conductor's promise to so awaken a passenger. Exceptional circumstances might, however, impose the duty. But in the case of sleeping cars the rule is different. There the passenger is invited to go to sleep, and pays extra for the conveniences therefor, and, as will be seen, it is the duty of the company's servants to awaken him in time to dress and alight in safety." In support of this proposition, Mr. Hutchinson cites the cases of Sevier v. Railroad Co., 61 Miss. 8, and Nunn v. Railroad Co., 71 Ga. 710. We have not access to the last-named case. In the case of Sevier v. Railroad Co., supra, the conductor had promised to awaken a passenger at Jackson, which he failed to do, but put him off four miles beyond. The court said: "It was not the duty of the conductor to arouse the appellant on the arrival of the train at Jackson by any special means applicable to his condition as being sick and drowsy. The business of the conductor was to manage the train according to the established regulations, and not to vary them for an individual. Regulations are made for the traveling public, and should be reasonable as adapted to the convenience of the public. If persons sick or under any disability which renders them unable to conform to the reasonable regulations for the community generally are inconvenienced by this inability, they have no legal cause of complaint against a carrier who undertakes to carry the public generally, according to a plan adopted to suit persons generally in a condition to travel, and not designed to meet the wants of those not in such condition. The obligation of the carrier was to carry the appellant safely to Jackson, and on arrival there to announce the fact, and afford an opportunity for him to leave the car. That he was asleep, and that his sleep was induced by sickness, did not entitle him to special attention. The agreement of the conductor to arouse the appellant at Jackson did not impose any obligation on the railroad company. The appellant was bound to know that the conductor had no authority to incur an obligation to that effect for the company, and that his duty was to the passengers generally, and not to him particularly. He must be held to have known the established usage of calling out the name of the station, and for the passengers to leave the car on its arrival at his destination, and that the promise of the conductor was his personal obligation, and was not the promise of the company, which he had no right to bind by an undertaking in behalf of one of many passengers to all of whom, respectively, the company owed the same duties. Whether sudden illness occurring to one on board a train after go

ing upon it, and made known to the conductor, would create such an emergency as to impose the duty on him to give such passenger needed attention, and vary the course of dealing with passengers, is purposely left an open question, to be decided when it arises." See, also, Railroad Co. v. Kendrick, 40 Miss. 386; Redf. R. R. 330. This is in harmony with the rule heretofore announced by this court and supported by an unbroken line of decisions in this State. Railway Co. v. Alexander (Tex. Civ. App.), 30 S. W. Rep. 1113, and authorities there cited; Railway Co. v. James, 82 Tex. 306, 18 S. W. Rep. 589; Railway Co. v. Perry (Tex. Civ. App.), 27 S. W. Rep. 496. In this case, although there is a conflict in the evidence as to whether the conductor actually agreed to awake Mrs. Kendrick at Whitesboro, and whether she was actually asleep when the train arrived at that place, it is not controverted that the usual announcement of the station was made by appellant's servants when the train reached Whitesboro, and that the train remained there long enough for passengers to disembark, and that, after Mrs. Kendrick and her children were found on the train after it had passed Whitesboro several miles, they were put off at the next station, and given a return check to Whitesboro, free of charge. Under such circumstances, it certainly cannot be said that the company was liable for the failure of the conductor to awaken the lady at Whitesboro.

THE ORIGIN AND USES OF THE COMMON SEAL.

Sealing is one of the most ancient customs which have been handed down as hereditaments to modern civilization. We read of it first among the Jews and Persians in the earliest and most sacred records of history;1 and from this ancient law, an instrument under seal has derived a dignity superior to any private writing. And, in conclusiveness, it occupies a middle ground between the simple contract and a judicial record. Affixing a seal expressed an intention to be bound by it, derived from the times when few people could sign their own names. It was an evidence of truth among the Saxons, expressed by affixing to the instrument the sign of the cross; and so, whether the party could write or not, which custom is still kept up by the the illiterate of the present day. At the conquest the Norman lords introduced into England some of their own fashions and among them the waxen seals. So conclusive was this seal, that for a long time sealing without signing was sufficient to authenticate

5

11 Kings ch. 21; Daniel, ch. 6; Esther, ch. 8. 2 Bishop on Con. § 139.

6

a deed. But it has since been decided that a wafer is as good, or any other tenacious material on which an impression is made,? and by still better authority, merely embossing it on the paper itself. But by modern legislation or decisions, a scroll or the word seal written or printed, if employed as a seal, is adequate. Owing to the ancient origin of the use of the seal, and also the fact that by the common law a sealed instrument could not be assigned or transferred, it has been held, and is now the law, in the absence of contrary legislation, that bills of exchange10 and promissory notes11 must be "open letters," that is, unsealed. If a note or a bill is executed by two or more persons, some with and others without seals, it will be treated as a sealed instrument, or specialty contract, as to those who signed with seals.12 But the mere attaching to the signature the word "seal," no reference being made to it in the body of the instrument, does not constitute it a sealed instrument.13 A bill or note under seal, not being commercial paper in the legal sense of the term, is not exempted in the hands of a transferee, though he may have acquired it before maturity, without notice, from defenses of the maker against the payee, growing out of the original contract.14 Affixing a seal has the effect of changing the character of an instrument from a parol agreement to a specialty. One member of a firm, is the agent of that firm, authorized to do certain