writes so well as our absent Chief Judge Folger or present Judge Finch. The Alabama judges have generally been admirable writers. The English judges may well study and follow the decisions of the highest court of New York, Massachusetts, Rhode Island, Maine, Connecticut, Vermont, Pennsylvania, New Jersey, Michigan, Alabama, and other States of our Union.

NOTES OF CASES.

IN Marseilles Manufacturing € 12, 1931, 101 N. Marseilles Manufacturing Co. v. Morgan, Ne

Rep. 462, in December, 1878, one M., a livery-stable keeper, received a span of horses belonging to C. to feed and care for, C. retaining the possession, and using them daily. M. continued to feed the horses until March, 1878. On the first day of January, 1879, C. executed a mortgage on the horses to the Marseilles Manufacturing Company. Held, that M., not having retained possession of the horses, the lien of the mortgage was superior to his. But in Case v. Allen, 21 Kans. 217; S. C., 30 Am. Rep. 425, it was held that an agister's statutory lien upon cattle is paramount to that of a prior chattel mortgage.

A correspondent, writing of our note, ante, 423, on a promise by a bankrupt, pending the proceed ings, to pay a debt, asks if the opposite rule does not prevail in this State, citing Stillwell v. Coope, 4 Denio, 225. That case undoubtedly settles the opposite doctrine. The opinion, very short and unconsidered, relies on the following authorities: Roberts v. Morgan, 2 Esp. 736, held that a creditor under a former commission of bankruptcy, to whom the bankrupt made a promise to pay, after the issuing of the former commission and before the bankrupt obtained his certificate, is an incompetent witness to prove the petitioning creditor's debt under a second commision. Eyre, C. J., said: "There was no doubt that a bankrupt might bind himself by a new promise to pay a debt which would otherwise be barred by a certificate under a former commission. That by the new promise it became a new debt." "As to the time when the promise was made, that makes no difference, for the certificate will not avoid any act, or bar any claim, arising between the issuing of the commission and the certificate." This doctrine was also held in Brix v. Braham, 1 Bing. 281, in a brief opinion, and the case of Roberts v. Morgan was recognized briefly in Tooker v. Doane, 2 Hall, 538.

aside the great weight of judicial opinions by which Sunday laws have been sustained and enforced. But I feel no such inclination. My views are fully in accord with those expressed by other judges, and regarding the matter from a purely secular standpoint, the law is a proper and salutary one. It imposes no restraint upon the conscience of any member of the community; it exacts from no person the performance of any religious rights or ceremonies; it prescribes no religious faith or belief; a man may be an Episcopalian, a Methodist, a Catholic, a Hebrew, or, if he sees fit, even an Infidel. He may worship one God, or a plurality of Gods. He may be a Trinitarian or a Unitarian, or he may reject all belief in the superintending care of a Divine Providence. Sunday laws leave his religious belief and practices as free as the air he breathes. It only forbids the carrying on of certain kinds of business on a certain day of the week, and the day selected in deference to the feelings and wishes of a large majority of the community is that day commonly denominated the Christian Sabbath or Sunday."

* *

In Spaulding v. Wakefield's Estate, 53 Vt. 660, it was held it is negligence on the part of an executor to deliver a $1,000 U. S. 5-20 bond, worth at the time in all the markets of the country $1,200, to each of three legatees in payment of a $1,000 legacy to each; and he is liable for the loss. And this is so although the executor obtained the value placed upon the bonds by the appraisers, and was told by the Probate Court that he could so deliver them to the legatees for what they were appraised. The court said: "It is well settled that the measure of care and diligence which an executor or administrator is bound to bring to the management and closing of the estate, is that which a prudent man would exercise under like circumstances. However much of good faith and honest intention he may exercise in the discharge of his trust duties, unless he also exercises this degree of care and diligence, and the estate suffers from the lack of it, he is bound to make the loss good to the estate. * We cannot yield to the claim of the plaintiff's counsel, that his duty was discharged when he obtained the value placed upon the bonds by the appraisers, or the amount which the government promised to pay the holder. The very fact which he urges, to wit: that such obligations were fluctuating in the market, bound him to keep informed in regard to their market value, and to use the diligence of a prudent man to take advantage of the market, and realize the most possible for the estate. He was bound to know the law, and if he had doubts about his knowledge, or ability, to obtain accurate knowledge of the degree of care and diligence which he was bound to exercise, he should have declined the trust. What the Probate Court told him would have an important bearing upon his good faith in the transaction, if that were the only element entering into the determination of his liability. As these bonds were interest-bearing securities, the plaintiff was properly charged with interest on the

* * *

amount of the over-payment of the legacies. Besides, it would have been his duty to have exercised this same degree of care and diligence to have kept the overplus at interest. His act which occasioned the loss, put it out of his power to exercise this degree of care and diligence in placing the overplus at interest."

In Potts v. N. Y. & N. E. R. Co., Massachusetts Supreme Court, October, 1881, Mass. L. Rep., it was held that the second of two connecting carriers of goods has a lien for the first carrier's charges as well as his own (Briggs v. B. & L. R. Co., 6 Allen, 246); and that delivery of part of the goods, without exacting the charges, does not waive his lien upon the rest, unless a contrary intent is shown. N. H. & N. R. Co. v. Campbell, 128 Mass. 104; S. C., 36 Am. Rep. 360. (The like doctrine was held as to a lien for labor, by the Pennsylvania Supreme Court, October, 1880, in Hensel v. Noble.) The court also held that this lien was as against the right of stoppage in transitu. On this point the court said: right of stoppage in transitu is an equitable extension, recognized by the courts of common law, of the seller's lien for the price of goods of which the buyer has acquired the property, but not the possession. Bloxam v. Sanders, 5 B. & C. 941; Rowley v. Bigelow, 12 Pick. 307. This right is indeed paramount to any lien, created by usages or by agreement between the carrier and the consignee, for a general balance of account. Oppenheim v. Russell,

'The

3 B. & P. 42. But the common-law lien of a car

rier upon a particular consignment of goods arises from the act of the consignor himself in delivering the goods to be carried; and no authority has been cited, and no reason offered, to support the position that this lien of the carrier upon the whole of the same consignment is not as valid against the consignor as against the consignee."

be no reasonable foundation for a belief that one may seize upon the property of another and appropriate it to his own use, even though that other be the public." He draws a distinction between the temporary occupancy of streets for commercial or building purposes and their permanent obstruction, but observes that even such temporary use may go to the extent of becoming a public nuisance.

There can be no doubt that the public have a right to a clear highway throughout its whole width. Thus, in Davis v. Mayor, 14 N. Y. 524, it is said: "Any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass." So of stones, etc., placed on the untravelled part of the highway, Com. v. King, 13 Metc. 115. So of steps projecting into and obstructing the highway, Com. v. Blaisdell, 107 Mass. 234.

In Reg. v. United Kingdom Telegraph Company, 31 L. J. 167, where telegraph poles on the outer edge of a highway were held nuisances, the court said: "It is enough that the posts stand in the way of those who may choose to go there." In King v. Wright, 3 B. & Ad. 681, it is said: "I am strongly of opinion, when I see a space of fifty or sixty feet through which a road passes between inclosures set out under act of Parliament, that unless the contrary be shown, the public are entitled to the whole of that space, although from motives of economy perhaps the whole of it has not been kept in repair." See, also, Rex v. Lord Grosvenor, 2 Stark. 448; Queen v. Betts, 16 Q. B. 1022, where it is held that "any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass."

The street or sidewalk cannot be habitually used for business purposes, such as the delivery of distillery slops through pipes, People v. Cunningham, 1 Den. 524; or for wagons continually standing to receive goods, King v. Russell, 6 East, 427; or for

IN

WALKS.

N State v. Berdetta, 73 Ind. 185, it was held that a fruit stand, a permanent structure, materially encroaching upon the sidewalk of a public street in a thickly inhabited part of a city, is an indictable nuisance, whether it essentially interferes with the comfortable enjoyment of the sidewalk or not. Judge Elliott makes a learned review of the authorities on this topic, and fully substantiates the holding, in an opinion upon a petition for a rehearing as well as upon the first argument. The cases exactly in point are very few, but in Com. v. Wentworth, 1 Brightly N. P. 318, the court declared the act of placing a fruit stand upon the sidewalk of a city to be a public nuisance. Judge Elliott observes: "We are told that numerous encroachments have been made upon public sidewalks by stairways, basement railings, and the like, under the belief that such encroachments are not nuisances, per se. We cannot say what belief persons act upon in appropriating public property, but we can say that there can

receiving barrels from a cider press, Dennis v. Cipperly, 17 Hun, 69. These cases speak of a continuous and unreasonably obstructive use. A temporary and necessary use, such as the delivery of barrels from wagons on skidds across the sidewalk, is permissible, provided a sufficient space is left on the other side of the roadway, Matthews v. Kelsey, 58 Me. 56. In Goldsmith v. Jones, 43 How. Pr. 415, the plaintiffs, who occupied a store adjoining the defendant's, built a box around a telegraph pole, projecting two and a half feet on the sidewalk, using it as a sign; the defendant obliterated the names on the box; held, a malicious trespass. The court say the only allowable act of abating would be the removal of the box, and this could not be justified unless it specially incommoded the defendant's use of the street or sidewalk. A man has no right to stand on the sidewalk in front of a house five minutes and use abusive language toward the owner, Adams v. Rivers, 11 Barb. 390; nor warn the public away from another's shop, as with a placard inscribed, "beware of mock auctions." Gilbert v.

Mickle, 4 Sandf. Ch. 357. Nor has he any right to display such goods or signs in his shop or its windows, as to collect a constant crowd on the sidewalk, obstructing public travel, as, for example, satirical effigies, Rex v. Carlile, 6 C. & P. 627; but in Barling v. West, 29 Wis. 307; S. C., 9 Am. Rep. 576, where the municipal law required fourteen feet in width of sidewalk, with the outer ten feet clear of obstructions, and a man put a lemonade stand within the four feet, and crowds gathered outside, obstructing the public travel, he was held justifiable. And in Matthews v. Kelsey, 58 Me. 56; S. C., 4 Am. Rep. 248, it was held that the owner of a warehouse located on a street through which a railroad runs, has the right to unload goods from cars standing on the track, by means of skidds extending from the car to the warehouse, provided there is ample room to accommodate travel on the other side of the street, and the time occupied in unloading is reasonably short.

In Turner v. Holtzman, 54 Md. 148, it was held that a stage-coach, stopping for an unreasonable time on a public highway, in front of and obstructing the entrance of a camp-meeting ground, might lawfully be "moved on" by the persons in charge of the ground. The court said: "Persons have a right to travel over public streets and roads, stopping only for necessary purposes, and then only for a reasonable time. Stage coaches may stop to set down and take up passengers, as this is necessary for the public convenience; but this must be done in a reasonable time. A person travelling on the highway must do so in such a way as not unnecessarily or unreasonably to impede the exercise of the same right by others; and if he does not exercise this right in a reasonable manner, he is guilty of a nuisance. Rex v. Cross, 3 Camp. 226; Rex v. Jones, id. 230; People v. Cunningham, 1 Den. 524; Wood on Nuis., § 529. The proof in this case clearly shows that the coach of the appellee, by remaining in the highway, under the circumstances as testified to by nearly all the witnesses on both sides, obstructed the travel over it for an unreasonable time, and was a public nuisance. Without stopping to inquire whether any one whose rights are not injured or interfered with by a public nuisance may abate it, about which there is some conflict in the decisions, there can be no doubt whatever that any person whose rights are injured or interfered with may abate it, provided its abatement does not involve a breach of the peace."

As to action for obstruction to highway, see Milaskey v. Foster, 6 Or. 378; S. C., 25 Am. Rep. 531, and note, 533.

In Hawkins v. Sanders, Michigan Supreme Court, January 28, 1881, the court said: "Hawkins, who owns a hotel building in Ypsilanti, filed his bill to restrain defendant, who owns a neighboring store building, from maintaining a wooden awning in front of his premises. The complainant's theory seems to be that this is a public nuisance, which injuriously affects him specially. The awning is so far as we can see no more of a nuisance than it would have been if made of any other material, and

it was not as shown from the evidence such a structure as any court would regard as a public injury or grievance. It was such as was used habitually in other parts of Ypsilanti as well as elsewhere, and was recognized by the city ordinances as not objectionable. It was therefore no more than a lawful use of defendant's own property. The special grievance complained of is simply that it obstructs the view of the sidewalk and a portion of the street. The testimony does not indicate that there was any very well-founded objection in fact to the awning, and there is no legal objection to it."

See Cushing v. City of Boston, 128 Mass. 330; S. C., 35 Am. Rep. 383, and note, 386.

In Everett v. City of Council Bluffs, 46 Iowa, 66, it was held that shade trees in a street are not a public nuisance. (The court remark: "That an obstruction, whether it be a tree or something else, in a highway or street, is or may be a nuisance, there is no doubt the statute so declares. But it must amount to an obstruction to the travelling public.") To same effect, Clark v. Dasso, 34 Mich. 86.

TAXATION DUE PROCESS OF LAW.

UNITED STATES SUPREME COURT, NOVEMBER 7, 1881.

KELLY V. CITY OF PITTSBURGH.

In this country and in England, the necessities of government, the nature of the duties to be performed, and custom and usage, have established a procedure in regard to the levy and collection of taxes which differs from proceedings in courts of justice, but which is still due process of law, within the meaning of the Constitution. What parts of a State shall, for local purposes, be governed by a county, a town, or a city government, and the charter of the land included in each, are matters of detail within the legislative discretion.

When the taxes levied by a city are clearly for a proper public purpose, and are authorized by the State law, though some of the property assessed be farm land within the city, this court cannot say that such a statute deprives the owner of his property without due process of law.

IN

N error to the Supreme Court of the State of Pennsylvania. The opinion states the case. MILLER, J. This case is brought before us by a writ of error to the Supreme Court of Pennsylvania.

The plaintiff in error, James Kelly, is the owner of eighty acres of land which prior to the year 1867, was a part of the township of Collins, in the county of Alleghany, in that State. In that year the Legislature of Pennsylvania passed an act by virtue of which, and the subsequent proceedings under it, this township became a part of the city of Pittsburgh. The authorities of that city assessed the land in question for the taxes of the year 1874, at a sum which the plaintiff asserts to be enormously beyond its value, and which he alleges is almost destructive of his interest in the property. The taxes thus assessed are divisible into two classes, namely, those assessed for State and county purposes by the county of Alleghany, within which Pittsburgh is situated, and those assessed by the city for city purposes.

The laws of Pennsylvania allow an appeal from the original assessment of taxes to a board of revision, and Mr. Kelly took auch appeal, with what success does uot distinctly appear. The result however was unsatisfactory to him and he brought a suit in equity in the Court of Common Pleas of the State to restrain the collection of the tax by the city authorities. There was an answer to this bill, a replication and a reference

to a master, on whose report that court dismissed the bill, and the decree was affirmed on appeal by the Supreme Court of the State.

To that judgment of affirmance this writ of error is prosecuted, and the transcript of the record, as the act of Congress requires, is accompanied by assignments of error, seven in number. All of these except two have reference to exceptions to the report of the master in regard to matters of which this court has no jurisdiction. Those two however assail the decree of the State court on the ground that it violates rights of the plaintiff guaranteed to him by the Constitution of the United States, and as the same points were relied on in the Supreme Court of the State, it becomes our duty to inquire whether these allegations of error are well founded. They are as follows:

First. The Supreme Court of Pennsylvania erred in sustaining the authority of the city of Pittsburgh to assess and collect taxes from complainant's farm lands for municipal or city purposes, such exercise of the taxing power being a violation of the rights of complainant as guaranteed to him by article V of amendments to the Constitution of the United States.

Second. The Supreme Court of Pennsylvania erred in sustaining the authority of the city of Pittsburgh to assess and collect taxes from complainant's farm lands for municipal or city purposes, such exercise of the taxing power being a violation of the rights of complainant as guaranteed to him by article XIV, section 1, of the amendments to the Constitution of the United States.

As regards the effect of the fifth amendment of the Constitution, it has always been held to be a restriction upon the powers of the Federal government and to have no reference to the exercise of such powers by the State governments. See Withers v. Buckley, 20 How. 8; Davidson v. New Orleans, 6 Otto, 97 We need therefore give this assignment of error no further consideration. But this is not material as the provision of section 1, article XIV, of the amendments relied on in the second assignment of errors contains a prohibition on the power of the States in language almost identical with that of the fifth amendment above referred to. That language is that "no State shall * * * deprive any person of life, liberty or property without due process of law."

The main argument of counsel for plaintiff in error, the only one to which we can listen, is that the proceeding in regard to the taxes assessed on plaintiff's land does deprive him of his property without due process of law.

It is not asserted that in the methods by which the value of plaintiff's land is ascertained for the purpose of this taxation there is any departure from the usual modes of assessment. Nor that the manner of apportioning and collecting the tax is unusual or materially different from those in force in all communities where land is subject to taxation. In these respects there is no charge that the method pursued is not due process of law. Taxes have not as a general rule in this country since its independence, nor in England before that time, been collected by regular judicial proceedings in a court of justice. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which in regard to that matter is and always has been due process of law.

The tax in question was assessed and the proper officers were proceeding to collect it in this way.

The distinct ground on which this provision of the Constitution of the United States is invoked is that the eighty acres of land of the defendant is and always has been used as farm land, for agricultural use only. and cannot for that reason be subjected to taxation for ordinary city purposes. That to do this is to deprive him of his property without due process of law.

It is alleged, and probably with truth, that the estimate of the value of his land for taxation is very greatly in excess of its true value. Whether this be true or not we cannot here inquire. We have so often decided that we cannot review and correct, in this court, the errors and mistakes of the State tribunals on that subject, that we can only refer to those decisions without a restatement of the argument. State Railroad Tax cases, 92 U. S. 575; Kennard v. Morgan, id. 481; National Bank v. Kimball, 103 id. 732; Davidson v. New Orleans, 96 id. 97; Kirtland v. Hotchkiss, 100 id. 491; Missouri v. Lewis, 101 id. 22.

But passing from the question of the administration of the law of Pennsylvania by her authorities, the argument is that the law itself is in conflict with the Constitution in the matter already mentioned.

It is not denied that the Legislature could rightfully enlarge the boundary of the city of Pittsburgh so as to include the defendant's land. If this power were denied, we are unable to 'see how such denial could be sustained. What portion of a State shall be within the limits of a city and governed by its authorities and its laws has always been considered to be a proper subject of legislation. How thickly or how sparsely the territory must be settled so organized into a city must be one of the matters within the discretion of the legislative Lody. Whether its territory shall be gov. erned for local purposes by a county, city or township organization, is one of the most usual and ordinary subjects of State legislation.

It is urged however with much force that though land of this character, land which its owner has not laid off into town lots, but which he insists on using as agricultural land, through which no streets are run or used, cannot be, even by the Legislature, subjected to the taxes of a city, the water tax, the gas tax, the street tax, and others of similar character. The reason for this is said to be that such taxes are for the benefit of those in a city who own property within the limits of such improvements and who use or might use them if they choose, while the owner of this land reaps no such benefit. Cases are cited from the higher courts of Kentucky and Iowa where this principle is asserted, and where those courts have held that farm lands in a city are not subject to the ordinary city taxes.

It is no part of our duty to inquire into the grounds on which those courts have so decided. They are questions which arise between the citizens of those States and their own city authorities, and afford no rule for construing the Constitution of the United States.

We are also referred to the case of the Loan Association v. Topeka, 20 Wall. 662, and the assertion there of the doctrine that taxation which is not for a public use is an unauthorized taking of private property though sanctioned by a State statute.

We are unable to see that the taxes levied on plaintiff's property were not for a public use. Taxes for schools, for the support of the poor, for protection against fire, for water-works-these are the specific taxes found in the list complained of. We think it will not be denied by any one that these are public purposes; purposes in which the whole community have an interest, for which by common consent property-owners everywhere in this country are taxed.

There are items styled city tax and city buildings, which, in the absence of any explanation, we must suppose to be for the good government of the city, and for the construction of such buildings as are necessary for municipal purposes. Surely these are all public purposes; and the money so to be raised is for public use. No item of the tax assessed against plaintiff is pointed out as intended for any other than a public

use.

It may be true that plaintiff does not receive the

same amount of benefit from some of these taxes, or from any of them, as do citizens living in the heart of the city. It probably is true, from the evidence found in this record, that his tax bears a very unjust relation to the benefits received as compared with its amount. But who can undertake to adjust with precise accuracy the amount which each individual in an organized civil community shall contribute to sustain the organization? Or to insure in this respect absolute equality of burden, and fairness in its distribution among those who must bear it?

We cannot say judicially that Mr. Kelly received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The waterworks will probably reach him some day, and may be near enough to him now to serve him on some occasion. The schools may receive his children, and in this regard he can be in no worse condition than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city, a State, is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity are largely dependent upon the intelligence and moral training which it is the object of public schools to supply to the children of his neighbors and associates, if he has none himself.

The police government, the officers whose duty it is to punish and prevent crime, are paid out of the taxes. Has he no interest in their protection, because he lives further from the court-house and police station than some others?

Clearly however these are matters of detail within the legislative discretion, and therefore of power in the law-making body within whose jurisdiction the parties live. This court cannot say in such cases, however great the hardship or unequal the burden, that the tax collected for such purposes is taking the property of the tax payer without due process of law.

These views have heretofore been announced by this court in the cases of Kennard v. Morgan, 92 U. S. 481; State Railroad Tax cases, id. 575; Kirtland v. Hotchkiss, 100 id. 491; McMillan v. Anderson, 95 id. 37.

In the case of Davidson v. New Orleans, 96 id. 97, the whole of this subject was very fully considered, and we think it is decisive of the one before us.

The decree of the Supreme Court of Pennsylvania is affirmed.

Low v. GRAND TRUNK RAILWAY Co. The owners of a wharf where foreign laden vessels discharge, are liable to customs officers who are required to visit the premises in the performance of their duties, for personal injuries received while in the exercise of due care, because of the unsafe or unsuitable condition of the wharf.

A customs officer whose duty is to watch for smugglers and prevent smuggling, may be in the exercise of due care, when in the course of his duty he passes over a wharf, where a foreign laden vessel is lying, in the night time and without a lantern.

Where duty requires one to be concealed, as when watching for smugglers and evil-doers in the night time, the fact that he does not carry a light is not contributory negligence in an action for damages sustained by the negligence of one whose business imposed the duty upon the plaintiff.

smuggled goods from the English steamer Brooklyn, lying at the defendant's wharf. While passing over that wharf in the performance of that duty he fell into a slip about eight feet deep and received the injury for which damages were sought to be recovered. The wharf was used at the time as a coal wharf, and the slip was for the purpose of wheeling coal on board steamers. It was admitted that there was no light nor railing around the slip at the time of the accident.

At the trial the court instructed the jury: "If you find upon the evidence that the presence of an English steamer at that point offered facilities for smuggling, and that this was a danger against which it was proper for customs officers and for plaintiff, in regular discharge of their duty, to be present to watch, and if you find that plaintiff was there in discharge of that duty with reference to that steamer, then I instruct you for the purposes of this trial, that an implied invitation on the part of defendant to the plaintiff might fairly arise from the character of the business conducted there, and from the character of plaintiff's duties."

The defendant requested the court to instruct the jury: That if the plaintiff, at the time of his injury, was not upon the wharf upon any business connected with the unloading of the coal, or with any business for which the premises could be or were legally used, he is not entitled to recover. Which instruction the court declined to give. Defendant excepted to the instruction and refusal.

The jury returned a verdict for plaintiff for $3,500. Plaintiff moves to set aside the verdict.

D. W. Fessenden and Webb & Haskell, for plaintiff. J. E. and E. M. Rand, for defendant.

BARROWS, J. The counsel for defendants, while recognizing as sound law the general principle that "an owner is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation express or implied, by which they have been led to enter therein," stoutly content that this custom house officer, who on the night of the accident was upon the defendants' wharf, in the regular course of his duty to watch for smugglers and prevent smuggling from the steamer which was just hauling into the dock there from a foreign port, had no such invitation, but was a mere licensee. We cannot so regard him. His presence there was made necessary by the business to which the defendants had devoted their wharf, the reception of cargoes from foreign going vessels.

Plaintiff contends (and we think rightly both upon fact and law) that "the true statement of their (defendants') use and maintenance of the wharf is, that it was a wharf for the mooring of ships or vessels coming into port with cargoes from foreign lands, and subject to the regulations prescribed by law for such vessels. By putting their wharf to that use they assumed the responsibility of keeping it in a proper and suitable condition for the safe access of all persons whom that use required to come upon it. The business to which they devoted their property, under the laws of the United States, called for the presence of the plaintiff (a night inspector at the custom house) there." His business was with a vessel which had arrived from a foreign port within the jurisdiction of the United States, and was not fully unladen, and his duty was to attend to every kind of commodity which might be on board. His right to visit the premises while that vessel was there was not merely the right of visiting in reference to the business for which the premises could lawfully be used. One of the most important portions of his duty was to go there to