Penn Law: Legal Scholarship Repository

Editors,

RECENT FRENCIH DECISIONS.
there is an acceptance, signed by him, written across the bill; and
ii is perfectly clear, that, according to mercantile usage, these cir-
cumstances point it out to be a bill of exchange. It was proved
that this instrument bad never been out of the hands of the par-
ties by whom it was concocted, until it was in a perfect state. It
therefore never had any existence as a promissory note; and, from
what appeared at the trial, there is no injustice in saying that the
words "I promise to pay" were interlined for the purpose of tak-
ing the course which has now been pursued.
CROM2PTON, J.-I am of the same opinion. Those decisions
should not be impeached which say that a. party may treat such an
equivocal instrument as this either as a bill of exchange or as a
promissory note. But in my opinion this is most like a bill of
exchange.-Rule refused.'
RECENT FRENCH DECISIONS.
Tribunal de Commerce de la Seine. July, 1852.
MALGAIGNE V. DE SAINT PRIEST.
The 'editor of an Encyclopedia has no right to alter the manuscript of a contributor
whose article appears in his own name, in order to harmonize it with the general
doctrines of the work.
The circumstances under which the question arose are detailed
in the judgment of the Court.
2
TIlE TRIBUNAL, after due consideration of this case, deciding as
well on the claim of Malgaigne, as on the cross-demands of the de-
fendant, adjudges as follows:
Saint Priest, editor in chief of the Encyelop ide du dix neuvime
si~ele, employed Malgaigne to prepare for that work the article on
I See Story on Promissory Notes, 16, Gillespie v. Mather, 10 Barr, 31.
2 In this and the next case, the opinions of the court are divested of the technical
form with which a French judgment is clothed, but are otherwise substantially as
they appear in the work whence they are taken. The'decisions themselves, as the
law of copyright in France is based upon similar principles to our own, are of great
weight, if they be not actual authorities.
RECENT FRENCH DECISIONS.
medicine. Malgaigne having given in his manuscript, and corrected
the first proof, failed to receive afterwards any revise, and conse-
quently did not see it through the press. The article 'M2edicine'
nevertheless appeared in the Encyclopedia, under the signature of
Malgaigne, but with very important changes on the part of Saint
Priest. A comparison between the text as printed, and the manu-
script, proves that a great deal has been struck out, and many
modifications made, and that these mutilations are such as to alter
essentially, the character of the views presented by the author, and
the general tendencies of his essay.
Saint Priest alleges that as the editor of a collective work, he
had only exercised a legitimate right in making certain suppressions
and modifications in Malgaigne's article, indispensable with a view
to uniformity in the principles on which the Encyclopedia was
planned. He also adds that the curtailments made were requisite
in order to fit the article to the limit reserved for it.
This justification of Saint Priest cannot be supported. Without
stopping to consider the peculiar character of the Encyclopedia,
we cannot recognize as a principle the right in the editor of any
publication whatever, the right to introduce any essential alteration
in the opinions of an author who subscribes his name to his contri-
bution. Such a liberty, if granted, would lead to nothing less than
to place the reputation and credit of authors at the mercy of
editors. Malgaigne's manuscript, moreover, was received by the
defendant without limitation or reservation, and it is very obvious
that the retrenchments have been made not from want of room, but
under the influence of certain ideas and principles.
From what has been said, it follows that Malgaigne has suffered
an injury for which reparation is due to him. His demand, there-
fore, that the copies of the volume of the Encyclopedia containing
the article .edicine, in the possession of Saint Priest, should be
shown to him, and the altered article cut out, and that the stereo-
type plates should also be destroyed, is proper. He has moreover
the right to require that the article after correction, shall be re-
printed and sent in pamphlet form, at the expense of Saint Priest,
to all the subscribers who have received the first article.
RECENT FRENCH DECISIONS.
The reparation due to the plaintiff cannot, however, justly extend
to the reproduction in the Encyclopedia of the article corrected
according to the manuscript, as the doctrines held by Malgaigne are
not in complete harmony with the prospectus of the publication,
whose unity should be respected.
By a verbal agreement, the parties have fixed the rate of pay-
ment for the article, at 120 francs, the signature of sixteen pages,
or 7 fr. 20 c. the page. The manuscript having been given in by
Malgaigne, who has thus fulfilled his obligations, and the article
having received an unfortunate and injurious publicity through the
means of Saint Priest, the latter cannot refuse to pay the sum
demanded of him, that is 195 francs for twenty-six pages printed
matter.
The one hundred copies which ard claimed, bad been promised to
Malgaigne as a mere courtesy, beyond and subsequently to the
engagement verbally contracted, and such a promise from its nature,
cannot establish in the plaintiff any legal right against Saint Priest.
With regard to the cross-demands of Saint Priest, who asserts
that Malgaigne, by his delay in sending in his manuscript has
caused him a serious loss, he has not shown that he had given Mal-
gaigne any regular notice to fulfill the obligations which he had
contracted. It follows that he is not in a position to claim
satisfaction for the damages which he alleges himself to have
sustained.
For these reasons the tribunal ORDERS and DECREES, that Saint
Priest exhibit to Malgaigne, or to his attorney specially appointed,
the copies of the Encyclopedia containing the article Medicine in
his possession; that the altered article be cut out; that the stereo-
type plates be destroyed; that the article, when corrected by Mal-
gaigne, be reprinted and sent in pamphlet form, at the cost of Saint
Priest and under his supervision, to all the subscribers who have
received the first article, and within three months from notice in the
present judgment; that if this be not done in that period, Mal-
gaigne be authorized to demand the list of subscribers, to have the
said article reprinted and sent directly, at the cost of Saint Priest,
to all the subscribers.
RECENT FRENCH DECISIONS.
CONDEMNS Saint Priest in due course of law to pay to Malgaigne
the sum of 195 fr.; and DECLARES that his cross-demands are
unfounded.
CONDEMNS Saint Priest in costs.1
IA somewhat similar point to that involved in the foregoing case, was decided in
Archbold v. Sweet, (5 C. & P. 219.) The Plaintiff there, had sold the copyright of
his well known work on criminal pleading, to the defendant, who afterwards, on Mr.
Archbold's declining to do so, had a new edition prepared by another; but that was
not stated on the title page, and purchasers were likely to suppose that it was by
the author. The new edition contained a number of serious blunders. In an action
on the case, Lord Tenterden ruled that Mr. Archbold had received an injury to his
reputation for which he was entitled to damages.
Besides the remedy by action, an author in whose name a book has been published
without his authority, can claim the interference of equity by injunction, (Lord
Byron v. Johnson, 2 Meriv. 29.) This jurisdiction finds ample support in the anal-
ogous and frequent cases in which the unlawful use of trade marks and the like has
been restrained. (See these cases collected, 14 Jur. p. IL, 223; 2 Wood & Minot,
1; 2 Sandf. S. C. 591.) If the keeper of a hotel can prevent, as has been held,
(Howard v. Henrigues, 3 Sandf. S. C. 728,) another from employing the name which
he has adopted for his house, surely the reputation of an author cannot be without
protection. Indeed the publication of a spurious work is a fraud on the public, and
as such prevents a copyright therein, even as original matter, (Wright v. Tallis, 1
M. G. & S. 893. See Hogg v. Kirby, 8 Ves. 215; Pidding v. How, 3 Sim. 477.)
Frauds of this nature have been also frequently checked in France, (Renouard des
droits d'Autours, tom IL, pp. 128-130, cited Curtis Copyright, 229.) But theinter-
vention of chancery would seem, from Clark v. Freeman, (12 Jur. 150; 11 Beav.
112,) to be confined to cases of authors by profession; the injury in other cases, it
was thought, being merely of a libelous character, and therefore to be first esta-
blished at law.
The respective rights of an editor of, and contributors to an encyclopedia, or works
of that character, do not appear to be very clearly settled at common law. In Bar-
field v. Nicholson, (2 Sim. & S. 1,) it was the opinion of the Vice Chancellor, that
the statute of Anne vested the copyright of such works in the proprietor. To the
same effect also is the statute 5 & 6 Viet. c. 45, J 18. Under this act it has
been, however, held, that the articles or contributions must have been paid for, in
order to vest the title in the proprietor. (Richardson v. Gilbert, 3 Engl. L. & E.
268.) Nor does the act apply where there has been a paid editor employed.
(Brown v. Cooke, 11 Jur. 77.) In the Bishop of Hereford a. Griffin, (16 Sim. 190;
12 Jur. 255,) it appeared that in 1833, the plaintiff, then Dr. Hampden, had written
for the publishers of the Encyclopedia Metropolitana, an essay on the life of Thomas
Aquinas to be inserted therein, but there was no specific contract on the occasion
with regard to the copyright; the essay was paid for, and inserted in the encyclope-
RECENT FRENCH DECISIONS.
Tribunal de Commerce de la Seine-Audience of July 1st.
SAINT JULIEN V. DOUNIOL.
The editor of a periodical who has accepted, and begun the publication of a literary
work, cannot suspend that publication without the consent of the author.
The facts are sufficiently stated in the judgment of the Court,
which was substantially as follows:
Saint Julian had published in the Revue Francaise of St. Peters-
burg, a novel entitled l'Intendant ; Douinol, editor of the Corres-
pondant, a periodical published at Paris, got from Saint Julian per-
mission to print his novel therein, reserving the right to make
certain modifications and changes agreed upon. The manuscript
dia. V. Ch. Shadwell held, continuing an injunction, that the publishers had no
right to republish the article in a separate form without the consent of the author.
To an objection that the bill in the case should have expressly stated a reservation
of the right, the Vice Chancellor said that "it was not necessary to negative the
entire sale of the copyright; for in the absence of a contract for the whole it remains
in the author." He seemed however of opinion that the reservation, in the 10 sect.
of the Act of 5 & 6 Victoria, to an author, of separate publication after twenty-eight
years did not apply to an encyclopedia; the result of which would be that neither
party could reprint without the consent of the other.
A recent case in France, (Michaud v. Didotfreres. Trib. Correct. de la Seine, Aug.
12th, 1852,) is of very great interest on these questions. The plaintiffs were tho
original editor of the Biographic Univermelle, Michaud, and his assignees; the
defendants, the publishers of a new biographical dictionary, which it was alleged
was a piracy of the former. On comparison it appeared that there were only two or
three articles substantially similar in the book;. the authors of which in the earlier
work happened to have long been dead. The Biographic Universele professed to be
a combination of articles by various writers; whose initials were signed to their
respective productions, The court held, 1st, That the writers in the Biographie Uni-
versedle could transfer no greater right to the editor than they possessed themselves;
and that on that right expiring by their death, these articles fell into the publiq
domain; the principle that a joint copyright survives, being only applicable when
the parts of the different authors are undistinguishable. This is material with refe-
rence to the rights of the widow and children at the expiration of the twenty-eight
years, in our law. 2nd. It was ruled that there could be no copyright in the plan
of a biographical dictionary. (See on this point cases cited, Curtis on copyright,
179, 286.) The judgment was for the defendant, from which the plaintiff has
appealed.


English

Recent French Decisions

NOTES OF RECENT AMEIICAN CASES.
NOTES OF RECENT AMERICAN CASES.
Supreme Court of Pennsylvania at Pittsburg, 1852.
Arbitrament.-Where parties submit a matter in dispute to arbitration,
without any action, or any agreement to make the matter a rule of court,
and stipulate that each party shall have twenty days to appeal from the
award, this is equivalent to a reservation of time to elect to avoid the
award, and claim a regular common law trial. Tlie Corporation, of Eric,
v. Tracy. LEwis, J.
Assumpsit for Labor and Services-Master and Servant.-Where a
person is received into a family as a child, and not as -a servant, as an
object of charity, and not as a hireling, that relation is never changed by
legal implication into a relation, giving a right to wages; and that right
never arises as between those parties, except from an express contract, or
something equivalent thereto. Lang v. Frey. LowniE, J.
Thus, where one becomes a member of her step-father's family, she can-
not claim an implied contract for wages. The parties stand to each other
in a family relation, and until that relation is dissolved by some unequivo-
cal act, and the relation of master and servant substituted, the law cannot
interfere to compel the payment of wages. Such an interference of the
State with the family relation would be dangerous in the extreme. Ibid.
Bailment.-No bailee is bound, on giving a receipt for goods, to open
the packages to see if they correspond with the name given to them. If
he acts in good faith, he is not answerable to another who advanced goods
on the faith of the transaction: for the reliance was not properly on him,
but on the honesty of the man who procured the receipt. Grier v. Arir-
Hde. LowRi, J.
Bailment-Lien of ATechanics.-One employed to dig ore has no lien
upon the ore dug for his wages. Ritter v. Gates. BLAcK, 0. J.
Bailment-Oarrier.-Where goods are damaged in the hands of the
first carrier, and the second carrier, knowing this fact, and intending to
aid in concealing it, gives the first carrier a clean bill of lading, he will not
be allowed to show that they were damaged when he received them, in
order to evade the payment of the damages. Bowman v. Eennedg.
Luwis, J.
Bond-Alteration of Bond or Bill.-A material alteration of a
NOTES OF RECENT AMERICAN CASES.
bond by the holder of it, avoids the instrument, even though it appear
that it was honestly made, for the purpose of correcting a mistake. llIil-
h.r v. Gillclaniz. GIDSON, J. WVOODWARD and LOWvRIE, JJ., dissenting,
and a written opinion filed. S. P. Getty v. Shearer. LEWIS, J.
Canal Comnissioners-Presumptio;.-IWhere the Canal Commission-
ers have taken a lot for a lock-house, and have erected a house upon it,
the former owner may not resume the possession for the purpose of testing
the regularity of the appropriation to public use. Ligat v. The Common-
wealth. LEwIs, J.
There is a presumption in favor of the acts of public officers, that forbids
individuals from thus taking the law into their own hands, when it furnishes
them an ample remedy. bid.
It is necessary for the public interest thai the Canal Commissioners should
keep a record of the land thus appropriated to public use, but where the
former owner wrongfully resumes the possession, he cannot claim such
record in evidence of the State's title, in an action brought by the State to
put him out. ibid.
The Canal Commissioners are the proper judges of the propriety of
selecting a new location for a lock house, and this Court cannot control
their discretion. And they are the final judges as to the value of the land
appropriated; and the law making them such is not inconsistent with the
constitutional guaranty of trial by jury, for this does not apply to cases
where the State is a party. Ibid.
Contract-lMistake of Law-Concealment -Where a party, bound in
conscience to do a certain act, executes a writing binding him in law, he
will not be excused from it on the ground that a decision of the Supreme
Court was known to the other party, and not to him, which declared his
first obligation invalid in law. Cornman v. Bowser. LEwIs, J.
Corporation-Compensaion for Property taken for Rail Road.-The
amount of damages in rail road cases cannot be assigned for error in this
Court, for it has, and can have, no proper means of judging of the find-
ing of the jury. Ohio and P. R. Road Co. v. Bradford's Heirs. BLAcK,
C. J.
Corloration-Sequestration.-Where a turnpike road is sequestered, it
is placed in the care of the Court, and the sequestration cannot be revoked
until all the expenses incurred in the care of the road are refunded. Beam
v. The Somerset and C. T. Road Co. LOWRIE, J.
NOTES OF RECENT AMERICAN CASES. 121
While this road was under sequestration, an act was past authorizing
creditors to seize and sell it under a fi fa., which was done. Held, that
the sequestrator was entitled, on the distribution, to a preference to the
amount of his confirmed account. Ibid.
C2poration- Compensation for Property taken for Rail Road-Er-
ror.-This Court cannot inquire into the amount of damages allowed by
the inquest in rail road cases. The evidence on which they proceed con-
sists partly of a view which we cannot have. The 0. and Pa. R. R. Co.
v. Vicarh/. WOODWARD, J.
Here there was an error that might have justified a reversal; but it was
not excepted to within the ten days provided by the Act of Assembly, and
therefore cannot be noticed here. Ibid.
-Debtor-Fraudulent Oonveyance-Resulting Trust.-Where a father
purchased land, and paid part of the purchase money, and then gave it to
his sons, which act was a fraud upon creditors on his part, but not so on
the part of the sons, and the creditors afterwards sold the land on execu-
tion as the property of the father, it was held:
1. That only so much of the title as the sons acquired by the gift could
be pursued by the creditors.
2. That when the sons paid the balance of the purchase money, and got
a deed for the land, they became substituted to the rights of the vendor,
which, before that, he had in the land.
3. That the sheriff's vendees, who were substituted for the creditors, had
no other right against the sons than they would have had against the ven-
dor, and could not claim the land without tendering the balance of the pur-
chase money and interest. Ogle v. Lichteberger. LOWRIE, J.
Decedent-Partition, in.Orphans' Court.-In a proceeding in partition,
land is not converted into money until the conditions of sale are complied
with, it least so far as to entitle the party to his deed. And where one of
the co-partners was a married woman, and died before the proceedings
were so far complete, her share decends as land, and not as money. The
Estate cf John Bigget. LEWIs, J.
Executor.-Settlement of Administration Account.-Where an adminis-
trator settled one account in 1818, and another in 1824, and both were
confirmed, and showed a balance in his favor, it is right for the Court, in
1850, to treat the estate as settled up, and to refuse to order a new account,
though there is evidence of some collections made after 1824, which were
NOTES OF RECENT AMERICAN CASES.
not equal to the balance due to the administrator by the account of that
year. Thte Estate of .Matthew Kaerns. LOWRIE, J.
BIusband and W,'fe-Divorce.-Where a husband sues his wife for a
divorce, and fails, it is proper for the Court to allow to the wife her neces-
sary ezpenses incurred while defending against the suit. Gardner v.
Gardner. LEWIS, J.
.usband and ife- Witness.-Where a married woman is called as a
witness, and objected to on the ground-of interest, she cannot remove the
objection by a release in which her husband does not join, notwithstand-
ing the act of 1848. Cjoi v. Campbell. BLACK, C. J.
Insurane-Partiig with Interest-3lutual Insurance Comp)anes.-
Interest in the property insured is an essential link in the relation of Insu-
rance, and therefore the insured may dissolve it by a sale of his interest.
Wilson, v. Trumbull .Mutual Ins. Co. LOWBiE, J.
In mutual insurance companies, membership and insurance are insepar-
able, and when membership ceases, all liability for future losses ceases ;
and therefore a deposit note, given by an insured as a means of securing
the payment of losses, cannot be used to compel payment for losses occur-
ring after he ceased to be a member, though he terminated his member-
ship by a sale of his property before the period of insurance had expired.
Ibid.
Judgment, what Interest Bound b.y-Power to Sellfor 1Maintenanee.-
Where a will directs executors to sell land and apply the proceeds to the
support and education of children, according to the judgment of the execu-
tors, and to divide the money among all the testator's children equally;
this breaks the decent, and the children have no such interest in the land
as is subject to execution. Cam2,bell v. King. LEwIs, J.
Justice-ecognzance on .Ap.peal.-Where the recognizance on appeal
from the judgment of a justice was taken with condition to "appear to
prosecute the appeal with effect," the plain intention is, that "to" should
be read "and;" and a recognizance under this form is sufficient, under the
Act of 20th MIarch, 1845. Murray v. Hazlett. LowBIE, J.
Landlord and Tenant-Ejetment.-When the lessee covenants to re-
store the possession at the end of the term, without notice, and the lessor
may then, or at any time thereafter, re-enter upon the premises; a
holding over for several years does not constitute such a tenancy from
year to year, as requires three months' notice to quit before bringing eject-
ment. iMeCanna v. Johnston. LEWis, J.
NOTES OF RECENT AMERICAN CASES.
A defendant in ejectment, may, under the plea of not, guilty, show
that his possession does not extend to any part of the land embraced in
the writ. Ibid.
Landlo;'d and Tenant-Riglt of Pre-emption.-Where a lessor stipu-
lated in the lease that when the land is offered for sale the first offer shall
be made to the lessee, upon terms as favorable as are offered to any other
person; this gives to the lessee no title to, or interest in the land, and
creates only a personal obligatioi. Elder v. Robinson. LowRE, J.
Linmitations-Adverse possessio.-Where one claims by adverse posses-
sion, and his title depends upon the extent of his actual occupancy, he
must present to the jury evidence of distinct lines and boundaries, up to
which his occupancy for the requisite time has extended, in such a way
that there can be no difficulty in framing a clear and definite verdict; other-
wise his claim must be rejected. Sheik v. Mc'lro~y. LmwIs, J.
Liimitations- Mutual Accounts New Promise. - Where there are
mutual and unsettled accounts barred by the statute of limitations, the bar
will not be removed, except by the aekndwlcdgment of a fixed sum, or at
least of a balance that admits of a ready ascertainment; else what new
promise can the law imply? Buff v. Richardson. WOODWARD, J.
Where the conduct of the defendant is such that shews that he does
not intend to pay, unless on a settlement satisfactory to himself, and
none such is had, the law will imply no new promise. Ibid.
illeclanics' Lien- Witness.-On a sci. fa. on a mechanic's lien, a terre-
tenant is a party to the suit, and interested in it only by reason of his
ownership of the land, and when that relation ceases, his connection -with
the suit and its result ceases, and he is a competent witness against the
plaintiff. Holden v. Winslow. LoWliE, J.
iTeciLanics' Lien.-Where bricks are furnished for the erection of a
house, under a contract to furnish all that may be needed in its erection,
the lien is in time if filed within six months after the last bricks are fur-
nished, in pursuance of the contract. Bartlett v. Kin gan BLACK, C. J.
Mob--County-Shri-ff-Under the Act of Assembly, making the
County liable for all property destroyed or injured by riots, if the sheriff
be warned'of the approaching danger, and fail to take proper legal means
to prevent it, he is not entitled to compensation for hiring military com-
panies to aid him in his duty. Curtis v. Allegleny County. BLAOK, C. J.
Practice-Depositions-Justice--Where notice was given to take de-
NOTES OF RECENT AMERICAN CASES.
position at Connellsburg, instead of IeConnelsburg, it is for the Court
below to judge whether the party was misled by the misnomer, and this
Court will not interfere with their discretion on such a point. Gibson v.
Gibson. BLACK, C. J.
Where a party "discontinues" his suit before a Justice, and confesses
judgment for costs, this is no bar to another action. Ibid.
Practice-oomnmission.-'Where there is an objection to the manner of
executing a commission to take testimony, the Court below will in a proper
case, suppress the depositions, if applied to in time, and award a new com-
mission. But such an objection ought not to be heard at the time of trial.
11Wallace v. McElroy. LEiws, J.
Rivers-NA'uisance-Act of 1803.-Where a mill dam is erected by a
riparian owner, so as to obstruct the navigation of a river, the remedy
prescribed by the Act of 1803 must be pursued, and an indictment cannot
be sustained without the preliminary proceedings required by the Act.
But these proceedings, if had, need not be set out in the indictment.
Commonwealth v. Plumer. LEwis, J.
Where a person convicted of such a nuisance, is afterwards authorized
by Act of Assembly to construct a lock in his dam, and take a toll at it,
this is no condonation of the offence, and does not arrest the judgment.
The legislature cannot in such case, be presumed to have intended to grant
any other special privilege, than that which is expressly mentioned. Ibid.
Roads.-It is not necessary, under the Act of 6 April, 1843, that it
should appear on the face of the proceedings, that the owner of land when
called upon to release the damages expected to be caused in laying out a
road. Road from G-reensburg to 314i'hrayjsville. LEWIs, J.
Where the report and draft of a road contain no reference to improve-
ments, it will in this Court, in the absence of evidence, and in support of
the order below, be presumed that there were none. Ibid.
-Rqads- Township.-One supervisor of roads has power to employ men
to do the ordinary repairs or work upon the roads, but he cannot bind the
township by a special contract for the opening of a new road. Mlfcieal v.
the township of Allegheny. WOODWARD, J.
Schools-Taxes.-The revised school law of 7 April, 1849, does not
repeal the law of 12 April, 1838, s. 7, imposing a penalty of $20 on col-
lectors of school taxes, who fail to perform this duty. Haslet v. Smith.
LEwis, 3.
NOTES OF RECENT AMERICAN CASES.
Shipping-Collision.-It is an established rule of navigation, that
steam vessels meeting with each other in a clear river, or on the open sea,
shall each pass to the right, in case of danger of collision. Lockwood v.
Lashell. LEwIs, J.
Taxes.-The payment of taxes can be enforced only by a warrant to
the collector, and not by suit at law, except where the collector has paid
them or became responsible for them, when he may sue in his own name.
Bouck v. the Supervisors of Kittanning. LEwIs, J.
23espass-Dogs.-Trespass is a proper form of action against the owner
of a dog, which has killed the plaintiff's sheep; but it is necessary to prove
that the defendant knew of his dog's vicious propensities, whether the ac-
tion be at common law, or under the statute. Campbell v. Brown.
WOODWARD, J.
Trespass-Sheriff.-Where a trespass is committed on real estate, the
sheriff may go beyond his bailiwick, into another county to serve the pro-
cess; and in such action, the defendant will be answerable, not only for the
injury to the real estate, but also for injury done to personal property in
the same trespass. Guffy v. Free. LEWis, J.
Vendor- arranty of Chattels.-Where a party, desirous of purchas-
ing a lot of "lard grease," inspects it himself, and then makes the pur-
chase and gets a bill of parcels, in which the article is called "lard grease"
there is no warranty that the article corresponds in specie with the name
given to it in the bill. Carson v. .Baillie. Lowly, J.
Wills-Execution of.-Where a testatrix was in a weak state, and de-
clared that she could not sign her will without assistance, and requested
one of the witnesses to guide her hand in making her signature, which he
did; this is a good signing under the statute of wills. Perchment v.
Dietrich. WOODWAnD, J.
Wills-Devise-Condition against Alienation.-A devise to one and
her heirs, with a condition that she shall not alie4 during her natural life,
is essentially a fee simple, and the condition against alienation is void and
the law will not enforce it however clear may be the intention of the tes-
tator. It is an intention which would unduly shackle estates, and which
the law frustrates. Walker v. Vincent. LownIE, J.
Wills- Revocation of Devise- Satisfaction- Specifieo Legacy. -A
sale by testator of part of the land devised, is a revocation only pro tanto.
Andrew Brown's Estate. LEwIs., J.


Notes of Recent American Cases

114 RECENT ENGLISH DECISIONS.
sponsibility on account thereof, he clearly had a right to sue in his
own name, upon a policy which he had taken in his own name and
for his own benefit."
Decree affirmed.
Nor.-Upon the points decided in this case, ths following authorities may be
referred to.
(1) With regard to the jurisdiction of equity to reform a mistake in a policy of
insurance, even after a loss has occurred; see Delaware Insurance Co. v. Hogan,
2 W. C. C. R. 5; Lyman v. United Ins. Co., 2 Johns. Ch. 630; Andrews v. Ins.
Co., 3 Mason, 10; Henkle v. Royal Ass. Co., 1 Ves. 317; Head v. Ins. Co., 2
Cranch, 417, 2 Phill. Ins. 683; Dela Vigne v. Ins. Co., 2 Caines, 243, Ewen v.
Ins. Co., 16 Pick, 502.
(2) In a recent case in England, Knight v. Faith, 15 Q. B., 649, the same point as
to the effect of damage after the expiration of a time policy, where the proximate
cause, as stranding, was before, arose, and after a thorough discussion of the au-
thorities, English and American, was determined in the same manner as in the
principal case; see also on this point, Peters v. Phoenix Ins. Co. 3 S. & R. 26;
Coit v. Smith, 3 John, Cas., 16; 1 Arnould, Ins. 410, &c. ; Howell v. Ins. Co., 7
Ohio, 284.
(3) In addition to the cases cited in the text upon the question of negligence or
barratry, see Ins. Co. v. Insley, 7 Barr, 233; Lawton v. Sun Ins. Co., 2 Cush. 500,
accord.
(4) Upon the subject of deviation in a river, see Keeler v. Firemans' Co., 3 Hill,
250, accord; but contra Gazzam v. Ohio Ins. Co., Wright, 261; Jollyv. Ohio Ins. Co.,
Wright, 539.
(5) That risks are insurable, see 1 Arnould, 229; Hanlo v. Fishing Ins. Co. 3
Sumn. 132; Stainboule v. Fearing, 6 Eng. L. & E. 412; Venattav. the Mutual Ins.
Co., 2 Sandf., Sup. 490; Holbrook v. Ins. Co., ante, page 18.
RECENT ENGLISH DECISIONS.
Court of Commou rleas.-Baster Term, May, 1852.
AUSTIN V. THE MANCHESTER RAILWAY.1
In an Action on the Case the Declaration alleged that the Defendants were
Proprietors of certain Railways, and possessed of certain Carriages for the
'Abridged from 16 Jur. 764.
RECENT ENGLISH DECISIONS.
Conveyance of Horses, &c., for Hire: that, according to the known Course of
Business by the Defendants, it was the Duty of the Defendants to cause due care to
be taken in order to guard against Friction arising during the Journey from the
Wheels and Axles of the said Carriages, &e. ; and that, in order to preserve such
Carriages, &c., from being injured by such Friction, the Persons employing the
Defendants had no Power over the Management of the said Carriages, nor were
they permitted to do any such Things as were necessary to guard against such
Friction: that the Plaintiffs delivered to, and the Defendants received divers Horses
from the Plaintiffs to be carried by the Defendants in their Carriages for Reward,
according to the known Course of Business so practised as aforesaid, except so far
as the same was altered by certain Terms expressed in a certain Ticket then by the
Defendants prepared and produced to the Plaintiffs, and which Ticket expressed
that it was issued "subject to the Plaintiffs undertaking to bear all the Risks of
Injury by Conveyance and other Contingencies ;" and that the Plaintiffs were to see
to the Efficiency of the Carriages, and that the Defendants were not to be respon-
sible "for any Damages, however caused, to Horses," &c. travelling upon the said
Railways: that the Defendants did not take due and proper Care to provide against
Friction of the Wheels and Axles, but altogether grossly and culpably neglected so
to do; by Reason whereof, and of the gross and culpable Negligence of the Defend-
ants, the Wheels of the Carriage in which the Horses were, took Fire, and that after
such Fire had been produced, and the Carriage had become dangerous, &c., and
after the Defendants had Notice thereof, &a., they recklessly, culpably, and with
gross Negligence, and against the Will of the Plaintiffs, continued to carry the said
Horses, &c., in the said Carriage until the Axle became further heated, and broke,
whereby the Carriage was thrown off the Rails, and the Horses were injured :-It
was Held, that the Negligence imputed, whether called "gross Negligence" or
"culpable Negligence," was within the Exemption from Responsibility provided by
the Contract, and that the Declaration therefore disclosed no Cause of Action,
and was bad in Arrest of Judgment.
The facts of the case sufficiently appear from the reporter's
syllabus, and in the opinion of the Court.
The question was argued by Macaulay, Q. C., Bew and West,
who'shewed cause upon a* rule nisi or to arrest judgment. There
had been a finding by a jury, and a verdict for plaintiff for X60.
The argument was that the charge against the carrier was one of
wilful nonfeasance, or rather of misfeasance, that the terms of the
ticket did not except the defendant from the consequences of such
conduct; that the ticket did not contain the whole of the contract,
but that their general duties as carriers remained for an injury
arising from misfeasance or negligence, and that any sitipulation to
RECENT ENGLISH DECISIONS.
the contrary would be repugnant to a carrier's ordinary duty, and
hence void.
tatson Q. C., and Hawkins supported the rule, and maintained
the broad docrine that the carrier might stipulate against any lia-
bility, although the result of negligence, and that such was the con-
tract in question by its very terms. The opinion was delivered
by
COESSWELL, J.-We are of opinion that the rule for arresting
the judgment must be made absolute. The declaration appears to
have been drawn with care, in order to avoid the objection upon
which the demurrer in Slkaw v. The York and .North Midland
Railway Company proceeded, and to lead to the supposition that
there was some duty cast upon the defendants beyond that which
arose out of the special contract made between them and the plain-
tiffs; but after all the allegations as to the usual and known course
of business practised and observed by the defendants, the plaintiffs
found themselves obliged to aver that their horses were delivered
to the defendants to be carried according to the usual and well-
known course of business so practised and observed, except so far
as the same was altered or qualified by certain terms expressed in
a certain note or ticket then by the defendants prepared and pro-
duced to the plaintiffs. [His Lordship here read the ticket.]
Notices of various kinds have from time to time been published by
common carriers, with a view to limit the responsibility cast upon
them by common law. At one period there was a disposition in
our Courts to hold that common carriers could not, by their notices,
shake off that responsibility; but Mr. Story, in his work of Bail-
ments, 549, observes, "The right of making such qualified accept-
ances by common carriers seems to have been asserted in early
times. Lord Coke declared it in a note to South cote's case, (4
Rep. 83;) and it was admitted in Morse v. Shee, (1 Vent. 238.)
It is now fully recognized and settled beyond any reasonable doubt
in England." For this assertion he cites a number of authorities,
and we think that he has drawn a correct conclusion from them. The
question to be considered then, is, what was the true nature of the
RECENT ENGLISH DECISIONS. 117
contract entered into between the parties in this case ? The ticket,
which contains the terms of the contract, was issued subject to the
owners undertaking to bear all the risk of injury by conveyance or
other contingencies. If this had been the only passage applicable
to the risks to be borne by the owners, it might have been con-
tended on their behalf that it did not extend beyond injuries sustained
by reason of a journey by railway simply, or by means of some
accident, and that it would not protect the carriers from the con-
sequences of negligence on the part of themselves or their servants.
But the ticket further states, that the company will not be respon-
sible "for any damage, however caused, to horses, cattle, or live
stock of any description, upon their railway or in their vehicles."
The framer of the declaration appears to have felt that this latter
part of the ticket (or contract, for so it was) protected the company
from liability if injury was sustained by the want of what is usually
called due care; and therefore, after alleging that the defendants
did not take due and proper care to provide against friction of the
wheels and axles, he charges them with grossly and culpably
neglecting to do so, by reason whereof, and of the gross and culpa-
ble negligence of the defendants, the wheels of the carriage, in
which the horses were, took fire, and the injury complained of was
sustained. And if the terms of the contract are not sufficient to
exonerate the company from responsibility for damages resulting
from such negligence as is imputed, the judgment cannot be
arrested. The term "gross negligence" is found in many of the
cases reported on this subject, and it is manifest that no uniform
meaning has been ascribed to those words, which are more correctly
used in describing the sort of negligence for which a gratuitous
bailee is held responsible, and have been somewhat loosely used
with reference to carriers for hire; and in Hinton v. Diben, a
case depending on the Carriers Act, the 11 Geo. 4 & 1 Will. 4 c.
68, Lord Denman, C. J., in giving judgment, observed, with much
truth, "It may well be doubted, whether between gross negligence
and negligence merely, any intelligible distinction exists." In
Owen v. .Burnett, Bayley, B., said, "As for the cases of what is
called gross negligence, which throws upon the carrier the respon-
118 RECENT ENGLISH DECISIONS.
sibility from which but for that he would have been exempt, I
believe that, in the greater number of them, it will be found that
the carrier was guilty of misfeasance." Such certainly were the
cases of delivery to a wrong person, sending by a wrong coach, or
carrying beyond the place to which the goods were consigned. But
this observation will not explain all the decisions on the subject.
There are others in which the carrier has been held liable for such
negligence as warranted the Court in holding that he had put off
that character. But there is nothing in this declaration amounting
to a charge of misfeasance or renunciation of the character in which
the defendants received the goods. The charge is, that they ought
to ]lave taken precautions to guard against the consequences of fric-
tion of wheels and axles, and that they did not do so, and were
guilty of gross negligence in not doing so. The terms "gross
negligence" and "culpable negligence" cannot alter the nature of
the thing omitted, nor can they exaggerate such omission 'into an
act of misfeasance or renunciation of the character i whichathey
received the horses to be carried. The question, therefore, still
turns upon the contract, which, in express terms, exempts the com-
pany from responsibility for damage, hwwever caused, to horses,
&c. In the largest sense, those words might exonerate the com-
pany from responsibility, even ior damage done wilfully-a sense
in which it was not contended that they were used in this contract;
but giving .them the most limited meaning, they must apply to all
risks, of whatever kind, and however arising, to be encountered in
the course of the journey, one of which is, undoubtedly, the risk of
a wheel taking fire owing to neglect to grease it. Whether that is
called "negligence" merely, or "gross negligence," or "culpable
negligence," or whatever other epithet may be applied to it, we
think it is within the exemption from responsibility provided by the
contract; and that such exemption appearing on the face of the
declaration, no cause of action is disclosed, and that judgment must
be arrested.-Rule absolute to arrest the judgment.'
I This case also fully reported in 21 Law Jour. Rep. 179, C. P. See also same
case in Queen's Bench, 20 Law Jour. Rep. (V. s.) 440; 15 Jur. 670; 5 English
Rep. 329.


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