other obstructions in a public highway, without lawful authority, is a nuisance at common law and indictable as such: Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. King, 13 Met. 115.

In the recent case of Loberg v. Amherst (Wis.), 58 N. W. 1048, it was decided that the deposit of mortar boxes, necessarily in use in plastering a house, upon a public highway, by one having the rights of an abutting owner, is not an unlawful use of the highway where it is not unreasonably prolonged, although they might have been placed in the owner's yard.

In the two cases of Mallory v. Griffey, 85 Pa. 275, and Piollett v. Simmons, we sec how injuries result by horses taking fright at obstructions in the highway. In such instances the negligence of the plaintiff in contributing to the injury is a matter of defence, and ordinarily the burthen of proving it is on the defendant.

The doctrine laid down in the earlier cases that the obstruction of the highway, to be lawful, must result from a necessary, and reasonable use thereof, was somewhat extended in the case of City of Allegheny v. Zimmerman, 95 Pa. 293. Prior to the election of 1876, a Liberty Pole was erected in the street, and a piece of it subsequently fell upon, and injured the plaintiff. Justice Mercur said, in delivering the opinion: Any unreasonable obstruction of a highway is a public nuisance, for which an indictment will lie. It is not, however, every obstruction in a highway that constitutes a nuisance per se. When it is not, and whether a particular use, is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury. . . . But the right to partially obstruct a street does not appear to be limited to a case of strict necessity; it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel. Thus public hacks, by authority of the municipality, may stand in particular parts of the streets awaiting passengers, although the public are thereby excluded from using that part of the street most of the time. So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se. They may become a nuisance by

disease or decay, yet the mere partial obstruction of a part of the street, when in fact such obstruction does not interfere with the public use, does not create a nuisance. It does not work that hurt, inconvenience, or damage to the public, necessary to constitute the offence: See also Walter v. McCormick, 52 N. J. L. 470.

From recent decisions it would seem that the obstruction, to be a nuisance, must be continuous. In Davis v. Curry, 154 Pa. 598, it was left for the jury to determine whether the constant repetition of the act of placing machinery and castings upon the sidewalk was such as to amount to substantial continuity of obstruction as distinguished from the lawful, temporary use of the sidewalk: Commonwealth v. Finley, 15 Ky. L. Rep. 60.

The right of property owners to leave objects on or along a highway, in front of their premises, temporarily and for special purposes, is of equal grade, before the law, with the right of travellers to journey on the highway. Moreover it is an absolute right and may be exercised in derogation of the right of the travelling public: Piollett v. Summers, 106 Pa. 95.

What is a reasonable manner must always depend upon the circumstances. In Vallo v. U. S. Express Co., 147 Pa. 404 (1892), the court said: "It might and doubtless would be unsafe to leave such an obstruction (a small dark green safe) as was described in this case, unguarded for a single moment upon a sidewalk near a railway station, thronged by people rushing to and from trains, while no inconvenience might be apprehended from leaving the same obstruction several hours upon a less frequented strect. Hence, it is impossible to lay down any precise rule as to the length of time a person may allow his property to remain upon a highway without incurring the charge of negligence."

In the later case of Davis v. Corry, supra, it was said: Manufacturers, merchants, traders and carriers have their warehouses, stores and factories on the streets of cities and towns. It is to the interest of the public that these should be carried on in cities and towns; to successfully do this, necessarily the sidewalks and streets will be temporarily

obstructed with bales and boxes of goods and the products of the factory; they must ship and must move them; they cannot reach the dray, wagon or cart without moving them across the sidewalk.

In so far as this is a temporary and necessary obstruction of the walk, and an inconvenience to the public passing over it, the public in the common interest of trade and commerce must submit to it. But while this is the case, it must not be forgotten by municipal authorities that the sidewalks and streets are primarily for the use of the passing public. The merchants or manufacturer's right to the temporary, necessary use of them is permissive only, and subordinate to that of the public. See, also, Hindman v. Timme (Ind.), 35 N. E. Rep. 1046; Illinois C. Ry. Co. v. State (Miss.), 14 So. Rep. 459; Taylor v. Bay City St. Ry. Co. (Mich.). 59 N. W. Rep. 447.

As to obstructions suspended in the air by hoisting them from the street, see Fuhrmeister v. Wilson et al., 30 Atl. Rep. 150, decided October 1, 1894.

From a review of the cases here discussed, then, we deduce these principles:

I. The primary purpose of a street or sidewalk is for the passage and travel of the public.

II. Any obstruction of the public highway, to be lawful, must be necessary, temporary, and reasonable. To this rule, there is this qualification: The use of the street is not limited to cases of strict necessity, but it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with the public rights.

H. GRAHAM BLEAKLY.

PROGRESS OF THE LAW.

AS MARKED BY DECISIONS SELECTED FROM THE ADVANCE REPORTS FOR OCTOBER.

Edited by ARDemus Stewart.

Attachment

The Supreme Court of Ohio has recently decided that in a civil action for the recovery of money the plaintiff may, on the ground that the defendant is a non-resident of the state, have an attachment against the property of a defendant partnership, all the members of which reside out of the state, though it was formed for the purpose of carrying on business in the state, and has a usual place of doing business therein: Byers v. Schlupe, 38 N. E. Rep. 117.

Bills of Exchange

The Court of Appeals of England has lately held that, inasmuch as the acceptor of a bill of exchange has the full three days of grace in which to pay it, when payment is refused by the acceptor at any time of the last day of grace, the holder, though at once entitled to give notice of dishonor to the drawer and indorser, has no cause of action against either the acceptor or the other parties to the bill until the expiration of that day, because the acceptor may repent before it expires; and that an action brought by the holder against the acceptor on the last day of grace must be dismissed as premature: Kennedy v. Thomas, [1894] 2 Q. B. 759. This seems at variance with the decision of the Supreme Court of Idaho in Sabin v. Burke, 37 Pac. Rep. 352, noticed in 1 A. L. REG. & REV. (N. S.) 758.

The courts are now full of the echoes of the great railroad insurrection, and never, perhaps, has the strike question been legally reviewed in so many of its protean aspects. Boycotts The Circuit Court for the Southern District of California in So. Cal. Ry. v. Rutherford, 62 Fed. Rep. 796, had occasion, to pass upon one very interesting phase of the problem; and held that, when employés of a railroad, though staying in its service, refuse to operate trains hauling certain cars (in this case Pullmans), though the company is bound by contract to carry them, thus interrupting interstate commerce and the transmission of the mails, and subjecting the company to suits and great and irreparable damage, an injunction will issue to compel them to perform their duties while they remain in the service of the company. This is in full harmony with the case of the Toledo A. A. & N. M. Ry. Co. v. Penna. Co., 54 Fed. Rep. 746; but such an interference with the putative right of every one to do as he pleases, irrespective of the legal rights of others, will assuredly rouse the ire of our congressional demagogues.

Carriers, Delivery of Goods

The constantly varying circumstances which affect the relations of common carriers to the public and to each other, never fail to give new aspects to those relations. The Supreme Court of Tennessee has just decided a case which seems to be one of first impression: Stewart v. Gracey, 27 3. W. Rep. 664, in which it ruled, that the mere delivery of warehouse receipts to a common carrier, with an order for delivery of the goods, but without a bill of lading, is not a constructive delivery of the goods, so as to render the carrier liable in case the goods are burned in the warehouse before it can remove them, though it entered the receipt on its books, and has commenced to remove the goods. LEA and CALDWELL, JJ., dissented, however, and the opposite doctrine would seem to have much to recommend it. Granting that the mere delivery of the warehouse receipts to the carrier would impose no duty on it, if it remained passive, its acts in this case would seem to amount to an acceptance of the goods