Mullin. This fact was not represented to the company: and the defendant claims that the policy was therefore void. This in our opinion depends upon the construction given to the words "entire, unconditional and sole ownership." This latter word means the right to own, legal or just claim, or title, proprietorship. If one holds the legal title to property, he is the owner, and he is no more so by adding the adjectives, entire, unconditional and sole; he is as much the owner in one case as in the other. The fact that an incumbrance exists upon the property is not inconsistent with the fact that the assured is the owner or holds the legal title. In the connection in which the word "interest" is used, we think it is synonymous with title, the right to the property, the ownership of it: and it is settled by numerous cases that it is unnecessary to mention incumbrances and liens in answer to inquiries as to title or ownership. Manhattan Ins. Co. v. Baker, 7 Heiskell (Tenn.), 503. And this view is confirmed by the fact that in the application for such contracts the inquiry as to the title is almost invariably followed by another as to the incumbrances upon the property, the plain inference being that information as to the latter inquiry is not expected in answer to the first. The question raised by the brief for the defendant is not the one made by the motion for the verdict, and not having been made below, will not be considered here. We think therefore that the policy was valid at its date; and this renders it unnecessary to pass upon the question of the effect of an assignment of a void policy. IV. In October, 1878, the plaintiff became the owner of the insured property, and the policy was transferred to him by consent of the defendant, but the defendant claims that the ownership of the plaintiff was not properly represented to the defendant; that it was not the entire, unconditional and sole ownership, for his use and benefit, which the policy required. If it was not, then the policy was void. We think that admitting all that the testimony in the case has any tendency to show as to the right of the Mullins to any reconveyance of the property to them, the facts thus proved would not divest the plaintiff of his legal title and ownership of the goods, and his complete control of them in every respect. Until they had complied with the conditions entitling them to a reconveyance they would have no more interest in the goods than a stranger. The property in the goods was in the plaintiff and properly insured in his name. The case is nearly similar to Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4, and should be governed by the same principle.

Judgment reversed and cause remanded.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS-ACCOUNTING — CONFLICT OF JURISDICTION-PROCEEDINGS PENDING BEFORE TWO COURTS-PRACTICE-NOTICE UNDER CODE OF CIVIL PROCEDURE, SECTION 786. — In April, 1878, a firm assigned for the benefit of creditors to defendant and he gave the bond required by statute, and the plaintiff, with one F., became sureties thereon. On the 24th July, 1879, plaintiff commenced this action in the Superior Court of Buffalo, in his own name, not stating that it was for the benefit or in behalf of others, against the assignee alone, for an accounting and settlement of the trust to the end that he as surety might "be protected in the premises." The defendant, by answer, averred his readiness to render an account. On the 24th of September, 1879, by consent of both parties to the action, a referee was appointed to take and state the account of the assignee, with authority, among other things, to take proofs and report as to what persons are entitled to share in the distribution of the assigned estate and in what order and propor

tion. Persons having claims were required to present them verified to the referee and he was required to publish notice to that effect, in pursuance of section 786 of the Code of Civil Procedure. It was ordered that the validity of creditors' claims be inquired into and passed upon by the referee. On the 16th of January thereafter the Erie county judge, upon the petition of certain creditors of the firm, issued a citation requiring the assignor to appear before him on the 2d of February following, and account. Thereafter, and before January 30, the referee issued a notice to creditors of the firm, in pursuance of the order of September 24, and was proceeding thereunder. Upon application of the assignee and upon notice to the petitioning creditors, the Superior Court, at Special Term, made an order restraining such creditors from proceeding under the citation of the county judge and requiring them to present and establish their claims under the order of September 24. The Superior Court and the county judge have in such matters concurrent jurisdiction. Held, that the last made order of the Superior Court was erroneous. The rule is that where two tribunals, when interference has been invoked, have concurrent jurisdiction, it should continue to be exercised by the one whose process was first issued. Rogers v. King, 8 Pai. 210; Groshon v. Lyon, 16 Barb. 461; Travis v. Myers, 67 N. Y. 542. See, also, Innes v. Lansing, 7 Pai. 583; Kerr v. Blodgett, 48 N. Y. 65. In these cases however the action was brought in behalf of others having an interest in the fund, or they were made parties or appeared by counsel in the proceedings. In such case they are bound by the judgment or other act of the court (Hallett v. Hallett, 2 Pai. 19; Egberts v. Wood, 3 id. 520), but not otherwise. In the case at bar plaintiff only brought the action for his own benefit, and the publication of the notice to bring in creditors required by Code of Civil Procedure, section 786, is authorized only when an action is brought for the collective benefit of the creditors of a person or an estate, or for the benefit of a person or persons other than the plaintiff. No creditor would be bound by the judgment rendered in this action. Order reversed. Schuehle v. Reimann. Opinion by Danforth, J. [Decided Oct. 11, 1881.]

CONTRACT- DEFENSE IN ACTION FOR BREACH OFOMISSION OF PLAINTIFF AT DEFENDANT'S REQUEST -INTEREST-DAMAGES. (1) Where defendant refused to deliver during one year an amount of ice agreed to be delivered to plaintiff in a contract for several years, and action was brought for such breach of contract, held, that it was no justification to defendant that plaintiff omitted the year before to take the entire amount he agreed by the contract to take, it appearing that such omission was in consequence of a request of defendant. One cannot recover for a breach who is the cause or occasion of its occurrence. (2) Where a contract for several years contemplated yearly settlements, interest on damages for each year, for a breach of the contract, should be allowed from the close of that year. (3) Where a contract for the delivery of ice provided that the liquidated damages should be, in case of breach, one dollar per ton, held, that in case of failure to deliver, compelling the vendee to purchase elsewhere to supply his needs, at a higher price, one dollar per ton only is recoverable as damages, and not the difference between the agreed price and the market price at the time the ice was to be delivered. This measure would not be varied on the ground of coercion or compulsion. Judgment modified and affirmed. Winch v. Mutual Benefit Ice Co. Opinion by Finch, J. [Decided Oct. 4, 1881.]

capable of a construction that will uphold and make it valid. The complaint in this action set up that in 1874 plaintiff and the firm of W. & Co., defendants, were competitors in transportation by water between New York and Philadelphia; that each party owned vessels employed in the business; that it was agreed between them that the business and property should be consolidated under corporate management; that the parties should form a corporation under the laws of New York, with a capital of $300,000, to be represented by specified assets to be contributed by the parties respectively, at a valuation fixed, and amounting in the aggregate to the capital; that the agreement provided for equalizing the contribution of capital between the parties, and that each should have one-half of the capital stock; that it further provided that the firm should have the management of the corporation and business and receive the usual commission (which was specified) on the freights earned; that in consideration of having the management, the firm agreed to guarantee to plaintiff a dividend of not less than seveu per cent per annum for seven years, to be paid quarterly, etc. The complaint further alleged that in pursuance of the agreement a corporation was duly formed under the laws of this State; that plaintiff transferred to the corporation his steamer and business, and received his proportion of stock therefor; that the firm have had the exclusive control of the corporation and business. but that no dividends have been paid. The action was brought to recover a sum equal to seven per cent per anuum for two years from July 1, 1876. Held, that the complaint stated a good cause of action. It is not ground to declare the agreement illegal that only five persons made up the corporation, the statute requiring seven, it being alleged that the corporation was duly organized. That property was taken to represent the whole capital did not make the agreement illegal, nor did the stipulation vesting the control of the corporation in the firm. An agreement providing for the details of management in advance of the incorporation might not be binding on the trustees of the corporation, but it would not be illegal. Judgment reversed. Lorillard v. Clyde. Opinion by Andrews, J. [Decided Oct. 4, 1881.]

LARCENY -OBTAINING POSSESSION OF GOODS BY A TRICK -EVIDENCE- OTHER SIMILAR ACTS OF ACCUSED. (1) S. negotiated with H., who was a dealer in produce, for the purchase of certain goods, and concluded to buy. S. was asked, would he wait and have a bill made out and pay for them, and replied that he would send an expressman for the goods; that they could be sent "C. O. D." and he would pay the expressman. Soon after one R. came to the place of H. with a horse and wagon, stated that he was an expressman and called for the goods. They were given to him with a bill and instructions to collect the money on delivery. S. took the goods from R. and sent him with a check for their price to the place of business ef H. The check was worthless. Then H. sought out S. and demanded of him either the goods or the money for them and got neither. R. was in fact in the employ of S., and the horse and wagon were his. Held, sufficient to constitute a larceny of the goods by S. Regina v. Cohen, 2 Den. C. C. 249; Regina v. Webb, 5 Cox, 154; Regina v. Stowley, 12 id. 269; The Queen v. Prince, L. R., 1 Cr. C. R. 150; Hildebrand v. People, 56 N. Y. 394. (2) Evidence of a similar transaction by the prisoner with another person at about the same time, held proper as bearing on the question of intent. Meyer v. People, 80 N. Y. 364, and People v. Shulman, note thereto, p. 373. Judgment affirmed. Shipply v. People. Opinion by Danforth, J. [Decided Oct. 11, 1881.]

SAVINGS BANK - PAYMENT BY OF DEPOSIT TO ANOTHER UNDER VOID ORDER OF JUDGE IN SUP

PLEMENTARY PROCEEDINGS. - Plaintiff deposited in her own name money with defendant, a savings bank in New York city, and the same was credited to her on its books and on a pass book it gave her. Upon a judgment against plaintiff's husband, supplementary proceedings were instituted, and three orders made by a judge of the Marine Court of New York, one requiring the judgment debtor to appear before a referee and be examined as to his property, one requiring defendant's president or treasurer to appear and be examined before the same referee as to property in its possession belonging to the judgment debtor, and a similar order requiring plaintiff to appear and be examined before the same referee. In pursuance of these orders, which were served, plaintiff, her husband, and an officer of the defendant, appeared and were examined. Afterward, upon the report of the referee, an order was made by the judge of the Marine Court before whom the proceedings were pending, requiring the defendant to pay the judgment creditor the amount of plaintiff's deposit, and in pursuance of such order defendant made the payment required. It did not appear that plaintiff bad notice of the application for the order requiring the payment, or was heard in respect thereto. Plaintiff afterward demanded the deposit from defendant, and upon its refusal to pay brought this action to recover it. Held, that the payment under the judge's order was no defense, and that plaintiff was entitled to recover. The defendant should have resisted payment, or in some way have had plaintiff made a party to the proceeding. The decisions which hold that a common carrier or other bailee can show in defense of an action against him-for property 'intrusted to him by the bailor, that it has been taken from him by legal process are not in conflict with these views. Judgment affirmed. Schrauth v. Dry Dock Savings Bank. Opinion by Earl, J. [Decided Oct. 11, 1881.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

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DECLARATIONS

EVIDENCE OF FRAUDULENT GRANTOR OF LAND RETAINING POSSESSION. — In a controversy between the creditors of a grantor and his grantee as to whether a conveyance to the latter was fraudulent or not, the acts and declarations of the grantor made after the conveyance and inconsistent with it, but while in possession of the premises or exercising control over them, are admissible in evidence to show the true character and purpose of the conveyance. Trotter v. Watson, 6 Humph. 509; 1 Greenl. Ev., § 109; Williams v. Hart (Ga.), 10 Reporter, 74; Cahoon v. Marshall, 25 Cal. 202; Potter v. McDowell, 31 Mo. 74. U. S. Circ. Ct., Oregon, Aug. 12, 1881. United States v. Griswold. Opinion by Deady, D. J.

MARITIME LAW-RIGHTS AND REMEDIES OF JOINT OWNERS OF VESSEL.—(1) A part owner of a vessel is not entitled to her exclusive use without giving security to his co-owner. Where a part owner of a vessel employs her on his own account and risk, the other part owners are not entitled to a share of the profits arising from such employment. Willings v. Blight, 2 Pet. Adm. Dec. 288; The Marengo, 1 Sprague Dec. 506. (2) Where the equal part owners of a vessel cannot agree concerning her use and employment, a court of admiralty has jurisdiction, upon the application of either party, to compel a sale of the same and divide the proceeds between the owners; but where the disagreement arises between unequal owners, the jurisdiction is, though without good reason, doubted and denied. Story on Part., §§ 437-39; 2 Par. S. & A. 242; Ben. Ad., § 274; Skrine v. The Hope, Bee, 2; Orleans v. Phoebus,

* Appearing in 7 Federal Reporter.

11 Pet. 183; 3 Kent, 153, 154, note a; The Ocean Belle, 6 Ben. 253; Davis v. Brig Seneca, 18 Am. Jurist, 486; The Marengo, 1 Sprague Dec. 506; Fox v. The Lodemeia, Crabbe, 271. U. S. Circ. Ct., Oregon, Aug. 25, 1881. Coyne v. Caples. Opinion by Deady, J.

REMOVAL OF CAUSE UNDER ACT OF 1875- PROVISION AS TO FILING TRANSCRIPT DIRECTORY · FILING NUNC PRO TUNC RIGHTS OF INFANTS - DOMICILE - WHAT PETITION MUST CONTAIN.--(1) The provision of the act of March 3, 1875, section 3, requiring the transcript of the record of the State court to be filed on the first day of the next succeeding term of the Federal court is not mandatory, as a condition precedent to the jurisdiction of the Federal court, but is directory only, as a mode of practice. See 2 Inst. 84; People v. Supervisors of Ulster, 34 N. Y. 268; Rex v. Loxdale, 1 Burr. 445; United States v. Kirby, 7 Wall. 482; French v. Edwards, 13 id. 506; Galpin v. Page, 18 id. 350; Kidder v. Featteau, 2 Fed. Rep. 616; Brewer v. Blougher, 14 Pet. 178: Oates v. National Bank, 100 U. S. 239; Whitney v. Emmett, Bald. 305; Russell v. Wheeler, Hempst. 3; Heydon's case, 3 Rep. 7: Bladen v. Philadelphia, 60 Penn. St. 464; Hugg v. Camden, 39 N. J. Law. 620; Colt v. Eves, 12 Conn. 243; Pond v. Negus, 3 Mass. 230; Lowell v. Hadley, 8 Metc. 180; Fanning v. Commonwealth, 120 Mass. 388; People v. Allen, 6 Wend. 486; Re Empire City Bank, 18 N. Y. 200; Corbett v. Bradley, 7 Nev. 106; People v. Holley, 12 Wend. 481; Ex parte Heath, 3 Hill, 42; Holland v. Osgood, 8 Vt. 276; Parks v. Goodwin, 1 Doug. (Mich.) 56; Pearson v. Lovejoy, 53 Barb. 407; Hurford v. Omaha, 4 Neb. 336; Speake v. United States, 9 Cranch. 28; United States v. Van Zant, 11 Wheat. 184; U. S. Bank v. Dandridge, 12 id. 81; Mount v. Kesterson, 6 Cold. 452, 459; Foster v. Blount, 1 Tenn. 342; Atkinson v. Rhea, 7 Humph. 59; Sellars v. Fite, 3 Bax. 125, 131; Gregory v. Burnett, 1 Humph. 60; Jackson v. Wiseburn, 5 Wend. 136; Kelly v. Moody, 7 Hill, 156. Consult, also, Henderson v. United States, 4 Ct. Cl. 75, 83; Limestone Co. v. Rather, 48 Ala. 440; McKune v. Weller, 11 Cal. 49; Wheeler v. Chicago, 24 Ill. 105; State v. Baltimore Co., 29 Md. 517, 522; Stayton v. Hulings, 7 Ind. 144; Hooker v. Young, 5 Cow. 269; Dutton v. Kelsey, 2 Wend. 615; Caldwell v. Albany, 9 Paige, 574; Seymour v. Judd, 2 N. Y. 464; Hill v. Draper, 10 Barb. 454, 480; People v. Schermerhorn, 19 id. 540; Barnes v. Badger, 41 id. 98; Potter's Dwarris St. 222, and notes; id. 184; Sedgw. St. & Const. L. 322, and notes; id. 368; 2 Am. Law Reg. (N. S.) 409, and note; Cooley on Const. Lim. 77; 1 Smith's Lead. Cas. 687; 2 Ky. Law Rep. (March, 1881) 166. The statute should be strictly obeyed, but the court, under the Revised Statutes, sections 948, 954, may, and on good cause shown should, enlarge the time for filing, or cure the defect by allowing the transcript to be filed nunc pro tunc. Semmes v. United States, 91 U. S. 21; Fourth Nat. Bank v. Neyhardt, 13 Blatchf. 393; Shook v. Rankin, 2 Cent. L. J. 731; Fork v. Railroad Co., 6 Blatchf. 392; Villabolos v. United States, 6 How. 81; United States v. Curry, id. 106; Massena v. Cavazos, 6 Wall. 355; Edmonson v. Bloomshire, 7 id. 306; Insurance Co. v. Mordecai, 21 How. 195; Removal Cases, 100 U. S. 457; National Bank v. Wheeler, 13 Blatchf. 218; Bright v. Railroad Co., 14 id. 214; Cobb v. Insurance Co., 3 Hughes, 452; McBratney v. Usher, 1 Dill. 367; Hyde v. Insurance Co., 2 id. 525; Jackson v. Insurance Co., 3 Wards, 413; Dennis v. Alachua Co., id. 683; Osgood v. Railroad Co., 6 Biss. 830. (2) Where the necessary jurisdictional facts exist, an infant defendant may remove his suit into the Federal Court as any other defendant may, and the petition for removal and bond may be filed in his behalf by his regular guardian, the guardian ad litem, or a next friend, as the case may be. The citizenship of the infant determines the jurisdiction, and not the citizenship of the

guardian or next friend. Williams v. Ritchey, 3 Dill. 406; Wormley v. Wormley, 8 Wheat. 451; Ruckman v. Palisade Co., 1 Fed. Rep. 367. (3) There is no mode known to the practice of the Federal courts in removed causes by which an absent infant defendant can be served with process, or brought into court by substituted process, by publication or otherwise; and as an infant cannot voluntarily appear or waive process, nor can any one until process served voluntarily appear for him, it is premature for a guardian or next frind to remove the cause until the infant defendant has been, by proper service of process directly, or by substitution, brought into the State court, or until by the State laws some one authorized to enter his appearance has appeared for him in that court. He cannot, nor can any one for him, under the authority of the State laws, appear in the Federal court, and his representative must defer the removal until the infant has been properly bound to defend in the State court. Held, therefore, where the father of an absent infant defendant appeared in the State court, and as next friend filed a petition and bond for a removal before there had been any service of process or publication according to the State laws to bring in the infant, that the cause must be remanded for want of jurisdiction over the person of the infant. Bank of the United States v. Ritchie, 8 Pet. 128; O'Hara v. MacConnell, 93 U. S. 150; New York Life Ins. Co. v. Bangs, 13 Cent. L. J. 88; S. C., 103 U. S.; Carrington v. Brents, 1 McL. 174. Where the father and next friend of an infant defendant, who had attempted, before service of process, to remove the infant's suit to the Federal court upon a petition and bond undertaking to enter his and the infant's appearance in that court, subsequently to the proceedings procured an appointment as guardian from the proper State court, and thereupon as such guardian entered his and the infant's appearance in the Federal court, held, that such appearance was ineffectual to give the court jurisdiction of the person of the infant, or to cure by ratification the defective petition and bond for removal, although in the State court the service of process on the guardian would bind the infant, and the guardian might voluntarily appear there for him. (4) While the court will look to the transcript of the record of the State court in aid of the allegations of the petition for removal, the petition itself must contain the necessary jurisdictional averments; and if it alleges that the parties are citizens of different States as the basis of removal, the petitioner cannot prove by the transcript or otherwise, in the support of the jurisdiction, that it is a case for removal on account of subject-matter. The allegata and probata must correspond as in other pleadings. But the petition may be amended, either by curing defective averments or by substituting additional or new allegations; and such amendments may be made in the Federal court without remanding to the State court for that purpose. Michaelon v. Denison, 3 Day, 294; Fisher v. Rutherford, Bald. 188, 193; Re McKibben, 12 N. B. R. 97, 102; Kelsey v. Railroad Co., 14 Blatchf. 89; Bump on Fed. Proc. 148, notes; id. 655, and notes; Connelly v. Taylor, 2 Pet. 556, 564; Jackson v. Ashton, 10 Pet. 480. (5) It seems that a minor child may, at least for the purposes of jurisdiction in the Federal courts, acquire a separate domicile and citizenship from that of the father during his life-time; but that result can only be accomplished by the emancipation of the child, and a complete surrender of the parental control, either to the child itself or some one standing in loco parentis as to the choice of domicile. Any mere consent of the father that the child may reside in another State, however permanently, cannot shift the domicile; but there must be in the father no longer any right to regulate the subject, and the right of choice must have been transferred to the child or some one else by the father's consent

or by operation of law. Held, therefore, where the father, a citizen of Tennessee, having lost by death the mother and all but one of his children, a girl five or six years of age, removed her to Kentucky and placed her to reside permanently with her aunt, that there had been no change of domicile to constitute the child a citizen of Kentucky, but that she was still a citizen of Tennessee, and the court had no jurisdiction where the plaintiff is also a citizen of Tennessee. Held, also, that the fourteenth amendment of the Constitution has not changed the test of citizenship in its relation to the jurisdiction of the Federal courts over the controversies of citizens of different States. Robertson v. Cease, 97 U. S. 646, 649; National Bank v. Teal, 5 Fed. Rep. 503, 505. These views will find support in the following authorities, and the cases cited by them: 2 Kent (12th ed.), 233, note c, 225, 226, note 1 (d), 430, note 1, 431, 49, 71, 72; Schoul. Dom. Rel. part 3, passim, pp. 312, 412, 452, 442, 393, 394, 314, 367, 372, 591, 598; Story on Confi. L. (5th ed.) passim, §§ 39, 49, 46, and note 4, §§ 531, 543, 480 et seq., 492 et seq.; Phil. Dom. passim, c. 3, c. 7; Westl. Priv. Int. L., §§ 35, 36, 37, 34, 316; Whart. Conf. L. (2d ed.) passim, §§ 8, 10, 10a, c. 2, passim, §§ 24, 29, 41-43, 55-66, 67-77, 81, 82, 396, 704, 720; Bump on Fed. Proc. 130, 185, 217; Dill. Rem. (2d ed.) 67, and notes; Somerville v. Somerville, 5 Ves. 750 (Perkin's ed.), and notes; Allen v. Thomason, 11 Humph. 535; Cloud v. Hamilton, id. 104; Ross v. Ross, 129 Mass. 243; Tirrell v. Bacon, 3 Fed. Rep. 62; Collinson v. Teal, 4 Sawy. 241; Holmes v. Railway Co., 5 Fed. Rep. 523, 526. U. S. Circ. Ct., W. D. Tennessee, Aug. 22, 1881. Woolridge v. McKenna. Opinion by Hammond, D. J.

KENTUCKY COURT OF APPEALS ABSTRACT.

FRAUDULENT CONVEYANCE-VOLUNTARY CONVEYANCE FROM HUSBAND TO WIFE OF LANDS PURCHASED

WITH HER MONEY. - A wife agreed with her husband to sell her land and invest the proceeds in another tract of land, upon condition that the deed should be made to her, and united with him in a deed for the sale of such land. The deed of the land purchased was made to the husband without the knowledge or consent of the wife. Held, that a couveyance by the husband through a third person, of the purchased land to his wife, could not be attacked by creditors of the husband. It was held in Miller v. Edwards, 7 Bush, 397, the facts of which are analogous to this case, that "such a contract as that made with her husband before her land was sold is valid and enforceable as between the parties to it, as a prudent mode of preserving her estate against his improvidence or capricious power." See Lady Arundell v. Phipps, 10 Vesey, 146; Livingston v. Livingston, 2 Johns. Ch. 539. principle of law seemed to be so well established that the court said in that case, it now requires no citation of authorities in its support." The case of Wickes v. Clarke, 8 Paige, 161, is in accord with the doctrine above quoted. The husband would not be entitled to claim the property, and his creditors stand in no better place than he. As was said in Latimer v. Glenn, 2 Bush, 544," she having the legal title, with an equity untainted with illegality or fraud, cannot be disturbed." Agnesworth v. Haldeman, 2 Duvall, 566. Campbell v. Campbell's Trustee. Opinion by Harges, J. [Decided May 28, 1881.]

This

NEGLIGENCE-PRESUMPTION OF CARE-RIGHTS AND DUTIES OF RAILROAD COMPANY AND TRAVELLER ON HIGHWAY AT CROSSING. In an action against a railroad company for the death of one killed at a highway crossing, held, that while those on the highway, when about crossing a railroad track, must exercise proper

diligence and care with reference to their own safety, where there is an absence of evidence as to the care exercised by the party injured, it is not to be presumed that the deceased recklessly or carelessly imperiled his own life, or entered upon the track of the road knowing of the train's approach. If the presumption of negligence arises from the mere fact that the deceased was killed on the track, at a place where he had the right to be, it must necessarily defeat a recovery in all such cases unless it should appear that those in charge of the train, after discovering the dangerous condition of the party injured, could by the exercise of ordinary care have avoided the impending injury. The same degree of care is required of both those in charge of the train and those travelling over the public highway crossing the track. In Continental Improvement Co. v. Stead, 5 Otto, 163, it is said: "Both parties must exercise such care as men of common prudence and intelligence would ordinarily use under such circumstances. Where the view is obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides. Those in charge of the train should approach the crossing at a less rate of speed and use increased diligence to give warning of its approach. The train has a preference over the traveller on the highway. Its great speed, the necessities and safety of those on it, as well as the safety of the traveller on the ordinary highway, all require that this preference should be given; but it is the duty of those in charge of the train to give due and proper warning of its approach, that those crossing its track may know and avoid the danger; aud when passing great thoroughfares thronged with travel the speed of the train should be checked or other means devised to insure the safety of those on the highway; and a failure to give such warning or to use such precaution must be regarded as neglect. Paducah & Memphis R. Co. v. Hoehl, 12 Bush, 45; Claxton's Adm'r v. Lexington & Big Sandy R. Co., 13 id. 642. Louisville, Cincinnati & Lexington Railroad Co. v. Goetz's Administratrix. Opinion by Prior, J. [Decided June 25, 1881.]

MICHIGAN SUPREME COURT ABSTRACT.

OCTOBER, 1881.

CARRIER OF PASSENGERS-PASSENGER TAKING UNSAFE SEAT AT INVITATION OF SERVANT OF CARRIER — CONTRIBUTORY NEGLIGENCE. A street car passenger was invited by the driver to sit on the driving bar, though there was room inside, and on a sudden jerk fell off and was run over. He sued the carrier for the injury. Held, (1) that as he was perfectly able to take care of himself and as there was opportunity for him to take a safe seat, he was guilty of contributory negligence, and that the driver's invitation did not estop the carrier from relying on such negligence in defense to the action; (2) that as the evidence for the defendant clearly showed that the driver made every effort to rescue the passenger, and the testimony for the plaintiff was not inconsistent with this showing, it was proper for the trial judge to take the case from the jury upon the question of negligence in running over the passenger. (3) Courts must take judicial notice of what everybody knows of the incidents of railway travel. Siner v. Great Western Ry. Co., L. R., 4 Ex. 123; Dublin, Wicklow & Wexford Ry. Co. v. Slattery, 3 App. Cas. 1155; 24 Eng. 713; Lake Shore & Michigan Southern Ry. v. Miller, 25 Mich. 274. Downie v. Hendrie. Opinion by Graves, J.

MUNICIPAL CORPORATION - LIABILITY FOR DEFECTIVE HIGHWAYS. -The Legislature can impose a statu

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