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TABLE OF TITLES AND DEFINITIONS.

See Index for numerous sub-titles and definitions contained in the notes.

Fit, 40

FIRES CAUSED BY THE OPERATION FOREIGN WILLS, see WILLS.
OF RAILWAYS, I

Foreigner, 441
Fire-works, 20

FORESTALLING THE MARKET, 441 Firing, 20

FOREST8, 442 Firm, 20

Forever, 442 Firmly, 20

Forfeit, 443 First, 21

FORFEITURE, 443 First-class, 23

Forge, 452 Fiscal, 23

FORGERY, 452 FISH AND FISHERIES, 23

FORMA PAUPERIS, 542 Fishing-bill, 40

FORMER ACQUITTAL, see JEOPARDY.

FORMER ADJUDICATION, see RES ADFittings, 10

JUDICATA. FIXTURES, 41

FORMER CONVICTION, see JEOPARDY. Flange, 65

FORMER JEOPARDY, see JEOPARDY. Flat, 66

FORMER RECOVERY, see RES ADJUDIFlee, 66

CATA. FLOATING DEBT, 66

FORMER SUIT PENDING, 549 FLOODS, 67

FORNICATION, 555 Flaw, 71

FORSWEAR, 564 Floor-cloth, see Canvas.

Forth, 565 FLOTSAM, 72

FORTHCOMING BOND, 565 Flowing, 72

Forthwith, 571 Fluid, 72

FORWARDING MERCHANTS, 573 FLYING SWITCH, 73

Fractional, 584 Fodder, 73

FRANCHISE, 584 Fæmus, 74

Fraternity, 6341 Folio, 74

FRAUD, 999 Follow, 75

FRAUDS, STATUTE OF, 657 Food, 76

FRAUDULENT CONVEYANCES, 748 Fooi, 76

FRAUDULENT DEBTOR, 780 FOR, 79

FRAUDULENT SALES, 786 FORBEARANCE, 98

Free, 898

Freehold, 898
Forbearance as a consideration, 99
Force, 99

Freeman, 899
FORCIBLE ENTRY AND DETAINER,

FREIGHT, 900

Frequent, 980 FORECLOSURE OF MORTGAGES, 185

Fresh, 980 Foreign, 280

FRESHET, 980 FOREIGN ASSIGNMENTS, 281

From, 981 FOREIGN ATTACHMENT, 288

Front, 982 FOREIGN CONTRACT, 328

Fruit, 983 FOREIGN CORPORATIONS, 329

FUGITIVE FROM JUSTICE, see EXTRAFOREIGN EXECUTORS AND ADMINIS- DITION. TRATORS, 414

Full, 983 FOREIGN GUARDIAN, 434

Fund, 983 FOREIGN JUDGMENTS, 434

FUNERAL EXPENSES, see EXECUTORS FOREIGN LAWS, 435

AND ADMINISTRATORS. FOREIGN LIEN, see LIEN.

Furnace, see Forge.

IOI

Furnish, 984 Furniture, 985 Further, 986 Future, 986 FUTURE-ACQUIRED PROPERTY, 987 Gag, 992 Gain, 992 Gallon, 992 GAMBLING CONTRACTS, 992 GAME AND GAME LAWS, 1023 GAMING, 1033 GAMING HOUSES, 1065 GARNISHMENT, 1096 Gas, 1268 GAS COMPANIES, 1268 Gasoline, 1291 Gather, 1291 Gelding, 1292 Gem, 1292 General, 1292 General average, 1293 Gentle, 1308 Gentleman, 1308

Genuine, 1308 Getting out, 1308 GIFTS, 1305 Gin-house, 1355 Gist, 1355 Give, 1355 Glass, 1356 Go, 1357 Gold, 1357 Good, 1357 GOOD FAITH, 1361 Goods, 1362 GOOD WILL, 1366 Gorge, 1372 Gotten, 1375 GOVERNMENT, 1378 Governor, 1400 Grace, 1410 Grade, 1410 Grain, 1411 Granary, 1412 Grandchild, 1412

THE

AMERICAN AND ENGLISH

ENCYCLOPÆDIA OF LAW.

FIRES CAUSED BY THE OPERATION OF RAILWAYS.-(See also EMINENT DOMAIN; FIRE INSURANCE.) I. Liability, 1.

VII. Where Fire Spreads, 11. II. What Care Required, 2.

VIII. Fire Communicated from One III. Construction of Engines, 3.

Building to Another, 13. IV. Negligence in Management of IX. Rubbish on Right of Way, 11. Engines, 5.

X. Contributory Negligence, 16. V. Proof of Origin of Fires, 7. XI. Credibility of Witnesses, 19. VI. Burden of Proof, 9.

I Liability.-The doctrine is now well settled, both in Eng. land and the United States, that when the legislature has authorized the use of fire for the purpose of propelling cars by steam, and every reasonable precaution is observed to prevent injury, the legislative sanction has this effect : that in case damage results from the use of such fire, the company will not be liable unless guilty of negligence.1

1. Piggot v. Eastern, etc., Ry. Co., 3 R. Co., 18 Barb. (N. Y.) 80; Vaughan C. B. 229; Aldridge v. Great Western R. v. Taffvale R. Co., 5 H. & N. 679. Co., 3 Man. & G. 517; Burlington, etc., Reading R. Co. v. Yeiser, 8 Penn. St. R. Co. v. Westover, 4 Neb. 268; Leaven- 366; Sheldon v. Hudson River R. Co., worth, etc., R. Co. v. Cook, 18 Kan. 261; 14 N. Y. 218; Balt., etc., R. Co. 7. Kansas, etc., R. Co. v. Butts, 7 Kan. Woodruff, 4 Md. 242; McCready v. Rail303; Atchison, etc., R. Co. v. Riggs, 31 road Co., 2 Strobh. Law, 356; Flynn v. Kan. 622; S. C., 15 Am. & Eng. R. R. Cas. Railroad Co., 40 Cal. 14; Jefferis v. Phila., 531; Jackson v. Chicago, etc., R. Co., 31 etc., R. Co., 3 Houst. (Del.) 447; Cracknell Iowa, 176; McHugh v. Chicago, etc., R. V. Mayor and Corporation of Thetford, Co., 41 Wis. 78; Woodson v. Milwaukee, L. R. 4 C. P., 629; Smith v. L. & S. W. etc., R. Co., 21 Minn. 60; Illinois, etc., R. R. Co., L. R. 5 C. P. 98, L. R. 6 C. P. Co. v. Mills, 42 Ill. 407; Frankford, etc., 1. Turnpike Co. v. Phila., etc., R. Co., 54 By the ancient common law as stated Pa. Si. 345; Phila., etc., R, Co. v. Yer- in Rolle's Abridgment, If any fire, by ger, 73 Pa. St. 121; s. C., 2 Am. & Eng. misfortune, burns the goods of another R. R. Cas. 271: Indianapolis, etc., R. Co.

man,

he shall have his action on the case v. Paramore, 31 Ind. 143; Morris, etc., R. against me. If a fire breaks out suddenCo. v. State, 36 N. J. 553; Borroughs v. ly in my house, I not knowing it, and it Housatonic R. Co., 15 Conn. 124; Home burns my goods, and also my neighbor's Ins. Co. v. Penna. R. Co., II Hun (N. house, he shall have his action on the Y.), 182; Brand v. Hammersmith R. Co., case against me. So if the fire is caused L. R. 4 H. L. 171; Rood v. N. Y. & E. by a servant or a guest, or any person 8 C. of L.-I

1

II. What Care Required.—As a railway company is intrusted by the legislature with an agent of an extremely dangerous character for the purpose of propelling its engines and cars, the law requires of such company that it shall exercise the rights and powers so conferred upon it with care, and adopt such precautions as may reasonably be expected to prevent damage to the property of third persons through or near which its railway passes. The measure

on

who enters the house with my consent. dealer as his stock in trade. Haseltine But otherwise if caused by a stranger v. Concord R. Co. (N. H.), 6 N. Eng. who enters the house against my will." Rep. 897. Action on the case B. Tit. Fire

1. Piggot v. Eastern, etc., Ry. Co., 3C. This harsh rule of the common law was B. 229; Lackawanna, etc., R. Co. v. Doak, modified by the statute 6 Ann. c. 3 1, 52 Pa. St. 379. Willis J., in Vaughan v. substantially re-enacted in 14 Geo. III. c. Taff Vale R. Co., 5 Hurl. & N. 679, said: 78. The common-law rule has not been “ Looking at the report of this case in 3 recognized in this country, Bachelder v. Hurl. & N. 743, I feel that we are obliged Heagan, 18 Me. 32, as it seems to have to reverse the judgment of the court bebeen founded a presumption of low, although we do not, in point of law, negligence not susceptible of proof. In differ in opinion from that court. There Vaughan v. Taff Vale R. Co., 5 Hurl. & was evidence that the defendants had N. 679, Cockburn, C.J., said: “ Although taken every precaution, and adopted it may be true that is a person keep an every means in their power, and which animal of known dangerous propensities, science could suggest, to prevent injury. or a dangerous instrument, he will be re- It would have been a question for the sponsible those who are thereby in- jury whether believed that evidence; jured, independently of any negligence in but the question submitted to them was the mode of dealing with the animal or not upon the whole evidence, but, taking using the instrument; yet when the legis- it as a fact that the defendants had used lature has sanctioned and authorized the every precaution which they could conuse of a particular thing, and it is used sistently with the working of the line, for the purpose for which it was author whether the jury did not think that they ized, and every precaution has been ob- were guilty of negligence. Now, the served to prevent injury, the sanction of definition of negligence is the absence of the legislature carries with it this conse- care, according to circumstances. But it is quence: that if damage results irom the found as a fact that the defendants took use of such thing, independently of neg. all the care which they could under the ligence, the party using it is not respon- circumstances. sible.” The decision in the case cited Therefore, upon that taken as a fact was rendered in the year 1860.

It was

and not merely as evidence of the fact, substantially concurred in by the other there is a finding that the defendants only members of the court, and is now re- did that which the act of Parliament algarded both in England and the United lowed them to do, and took all possible States as a correct statement of the law. care to prevent injury."

Statutes imposing Liability. -Some A railway company is required to exStates have enacted statutes imposing a ercise care, diligence, and skill to prevent liability on railroad companies for any fires from being communicated by its lodamage caused by fire communicated comotives, and it is liable in case of damfrom their locomotives. Such statutes age through its negligence. Burroughs v. are constitutional, even as applicable to Housatonic R. Co., 15 Conn. 124: Huyett pre-existing railways. Rodemacher v Mil- v. Phila., etc., R. Co., 23 Pa. St. 373. waukee & St. P. R. Co., 41 Iowa, 297; That is, the company must use ordinary Grissel v. Housatonic R. Co. (Connecti- or reasonable care, which is that degree cut, 1887), 32 Am. & Eng. R. R. Cas. of care which prudent men, skilled in the 3.19; Lyman v. Boston, etc., R. Co., 4 business, would probably exercise under Cush. (Mass.) 288: Pierce 2. Worcester, the circumstances. This care must be in etc., R. Co., 105 Mass. 199.

proportion to the danger. The company A railroad corporation is liable, under is required to use greater care to prevent the New Hampshire, statue for the de- fires in a very dry time than when the struction by fire from a locomotive of ground is covered with snow or in rainy wood, coal, etc., deposited on land ad- weather; so where property is very much joining their line, and there used by a exposed to fire greater precaution must

of prudence required on the part of a railroad company of course differs with the character of the country traversed, and the consequent increase or decrease of risk incident to the use of its en

gines. 1

III. Construction of Engines.- In the construction of its engines a railway company is bound not only to employ all due care and skill for the prevention of injury to the property of others by the emission of sparks or from any other cause, but it must avail itself of all discoveries which science has put within its reach for

be taken when there is danger of commu- plaintiff's premises to extinguish the fire. nicating fire to such structure than when Bass v. Chicago, etc., R. Co., 28 Ill. 9. there is not such danger. In Milwaukee, The plaintiff may prove that after the etc., R. Co. v. Kellogg, 94 U. S. 469, the fire the company employed more men to court say: “Yet it is obvious the imme- walk and watch the track than were emdiate and inseparable consequences of ployed when the damages occurred. negligently firing the elevator would have Westfall v. Erie R. Co., 5 Hun (N. Y.), been very different if the wind had been 75. But the company is not bound to less, if the elevator had been a low build- keep a patrol along its track for that puring constructed of stone, if the season pose. Baltimore, etc., R. Co. v. Shipley, had been wet, or if the lumber and the 39 Ind. 251; Indianapolis, etc., R. Co. v. mill had been less combustible. And the Paramore, 31 Ind. 143. defendants might well have anticipated 1. Fero v. Buffalo R. Co., 22 N. Y. or regarded the probable consequences 209; Great Western R. Co. v. Haworth, of their negligence as much more far- 39 Ill. 346; Pierce v. Worcester, etc., R. reaching than would have been natural Co., 105 Mass. 199; Smith v. Old Color probable in other circumstances.” ony R. Co., 10 R. I. 22; Michigan, etc.,

In Diamond v. Northern Pac. R. Co., R. Co. v. Anderson, 20 Mich. 244; Webb 6 Mont. 580; s. C., 29 Am. & Eng. R. R. v. Rome, etc., R. Co., 49 N. Y. 420; Cas. 117, it was held that it is misleading Frankford, etc., Turnpike Co. v. Philato charge the jury simply that the railroad delphia, etc., R. Co., 54 Pa. St. 315; company was bound to use the reasonable Chicago, etc., R. Co. v. Quaintance, 58 care and diligence of an ordinarily pru. III. 389; Phila. & Reading R. Co. v. dent man in preventing the escape of Schultz, 2 Am. & Eng. R. R. Cas. 271. fire, and in keeping its right of way clear It is well established that the degree of of combustible material, unless accom- care must be proportionate to the danger. panied by an explanation that the care re- What is ordinary care in a case of extraorquired is the ordinary care of an expert dinary danger, would be extraordinary engineer or railroad servant.

But see

care in a case of ordinary danger, and Texas, etc., R. Co. v. Medaris, 64 Tex. what would be ordindary care in a case 92; s. C., 29 Am. & Eng. R. R. Cos. of little danger would fall much below 159.

this in a case of great danger. F. & Failure of Company's Employees to B. Turnpike Co. v. Phil., etc., R.Co., Watch for and Extinguish Fires.- Where 54 Pa. St. 345; Smith v. Old Colony through no neglect of the company the R. Co., 10 R. I. 22; Ferov. Buffalo, fire started on its own right of way by etc., R. Co., 22 N. Y. 209; Chicago, reason of sparks emitted from the loco- etc., R. Co. v. Quaintenance, 58 Ill. motive, and the employees of the com- 289; Pierce

Worcester, etc., R. pany saw it in time to extinguish it be. Co., 105 Mass. 199. If a high wind is fore it had travelled further, but they per- blowing from the locomotive toward the mitted it to burn, whereby it spread to combustible material, greater caution and consumed the premises of the plain. must be used. Kellogg v. Milwaukee, tiff, the company was held liable. Ken- etc., R. Co., I Cent. L. J. 278; s. c. ney W. Hannibal, etc., R. Co., 62 Mo. on appeal, 94 U. S. 469. But see Michi476. So likewise where the hands of a gan Cent. R. Co. v. Anderson, construction company with notice of a Mich. 244. If a certain season is unlike fire failed to stop the train and extin- usually dry, a railroad company is bound guish the fire. Rolke v. Chicago, etc., to take extra precautions against fire. R. Co., 26 Wis. 537. And it is no de- Pittsburg, etc., R. Co. v. Noel, 77 Ind. fence that the hands of the company had 110; S. C., 7 Am. & Eng. R. R. Cas. no license or authority to enter upon the

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