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free pass.

evident that the rights and relations of the parties ter. But it is not true that the knowledge of any were changed by the sale to him of the ticket for servant that a dog may follow, or be with about the the drawing-room car. Ile became a passenger for premises where he is employed, as to the disposihire. Of that there can be no doubt, nor cau theretion of the dog, is to be imputed to the master. be any doubt that he was at the same time usirig a This is clear upon all the authorities.

The case As a passenger for hire, who, in bar- that goes as far upon this question as any other to gaining for transportation in the drawing-room be found in the reports, and which has been mainly car, had made no contract that relieved the com relied on by the appellants, is that of Gladman v. pany from its liability for damages if he were in- Johnson, 46 L. J. (C. P.) 153, where notice of the jured through its negligence, the plaintiff has all mischievous propensity of the doy, given to the the rights that the law gives to ordinary passen- wife of the defendant, who attended to the busigers; and having paid for a ticket he is not to be ness of her husband in his absence, for the purpose considered as one who, in consideration of a free of being communicated to the husband, was held passage, has agreed not to hold the company liable to be some evidence of a scienter to be considered for injuries. The defendant voluntarily maile aby the jury. But in delivering judgment in Inat new contract, and cannot now ignore it, and insist case, Bovill, C. J., says: 'I am not prepared to asthat the rights of the parties shall be measured by sent to the proposition that notice to an ordinary a contract that was intended to operate upon a conservant, or even to a wife, would in all cases be dition of affairs that it has seen fit to change. The sufficier.' to fix the defendant, in such an action is defendant has taken money from the plaintiff for this, with knowledge of the mischievous propensity carrying him, and it has no right to say that he of the dog. But here it appears that the wife atwas a free passenger, and to ask the court to incor- tended to the mik business, which was carried on porate into the drawing-room ticket the provisions upon the premises where the dog was kept, and of the free pass. Of course, we have heard the that a formal complaint as to that dog was made to objection that the defendant did not, but that the the wife when on the premises, and for the purpose Wagner Car Company did, make the contract to of being communicated to her husband. It may carry the plaintiff in the drawing-room car. We be that this is bilt slight evidence of the scientur', know nothing of the arrangement between the de- but the only question is, whether it is evidence of fendant and the Wagner Car ('ompany, but as no it. I think it is,' This case was referred to and one without leave of the defendant can run cars commented upon in Goole v. Jurtin, 57 MI. 610, upon its track, we must assume that the drawing-611; S. C., 40 Am. Rep. 448. And in the case of room cars are run for the benefit of the defendant.” Stiles v. Cardiff Steam Var. Co., 33 L. J. (Q. B.) Thorpe v. N. Y. C. R. Co., 70 N. Y. 409; S. C., 32 310, where a similar question arose, the lord chief Am. Rep. 325.

justice said that notice of the vicious propensity of

the dog given to porters or servants employed about In Trigg v. Rylanı), 62 Md. 380, it was held that the premises would not suffice, but that if brought the knowledge of the vicious character of a dog hy home to a person who had the general management a servant is not imputable to the master unless the of the yarıl, in which the defendants themselves dog is in the charge and keeping of the servant. could not be supposed to be acting, and who had The court said: “After giving evidence of the in-authority to say whether in clog should be kept jury inflicted by the clog, the plaintiffs gave evi- there or not, or whether it should be chained up or dence to prove that the defendant was a butcher in not, it woull be otherwise. The case of Buldwin v. Cumberland, and that he had about his premises a Cusello, L. R., 7 Exch. 325, proceeded upon the colored man as an assistant, who drove the meat ground that the defendant had deputed to his wagon and delivered meat to the customers of the coachman the care and control of the doy, and defendant, and that the dog was frequently with

therefore a notice to him of the vicious nature or him, and generally followed him. They then of propensity of the dog was notice to the master. fered to prove that this colored man knew that And there is nothing in the case of Applebee' v. l'erey, the dog was vicious and dangerous, and was dis L. R., 9 ('. P. 647, that in any wily contravenes the posed to attack and bite and injure persons; and principle of the previous cases, to which we have that such colored man, while in the employ of the

referred. We are clearly of opinion, therefore, defendant, had told one of the plaintiffs' witnesses upon the facts as stated in the bill of exception, that he had made known to the defendant, before that the knowledge, whatever it may have been, of the injury to the plaintits, that the dog was of a the negro man in regarul to the propensity of the vicious disposition, and had attacked and bitten dog was not legally imputable to the defendother persons. To this offer the defendant ob) ant; and especially were not the declarations of jected, and the objection was sustained by the the negro man evidence against the defendant. court, and as we think, rightly sustained. It is the man himself should have been called as a very true, as shown by the authorities, that is the witness." owner of a dog place it in the charge and keeping of a servant, the servant's knowledge of the dog's In Caldwell v. Snooh, 35 IIun, 7:3, it was held that ferocious disposition is the knowledge of the mass in an action for damages by the bite of a dog,

where it is shown that the owner knew that the dog ethics that to work for a contingent fee was dishad previously bitten another person, evidence of the honorable, destroying the relation of confidence good character of the dog is incompetent. The between attorney and client, and an attack on the court, Hardin, P. J., said: “To meet the case thus independence and integrity of the profession. made out by the plaintiff, the defendant took the All this bas gradually changed. Wbat was forstand as a witness, and called several other wit- merly a malum prohibitum, visited with severe pennesses, and gave evidence tending to show the alties, is now protected by positive enactments, quiet, peaceable and harmless habits and character These declare, in no uncertain tone, that the pubof the dog.

Among the witnesses was one Fagin, lic estimate put upon the morality of the legal prowho lived a quarter of a mile from the defendant,fession has so far risen that now the compensation and who had occasionally observed the dog and his of an attorney or counsellor for his services is govconduct. Against the plaintiff's objection that the erned by agreement, express or implied, and is not testimony was not competent or material, he was al restrained, but favored by law. lowed to testify there was nothing malicious in In view of the changes which have taken place his conduct, so far as I saw.

He never

it may not be uninteresting to trace briefly the deundertook to bite anybody, or do any thing wrong.' |velopment of this branch of the law. When Ballsby was testifying he said he had known Formerly it was both illegal and against public the dog “seven or eight years.' IIe was then asked policy for an attorney to agree with his client for å have you observed the dog's actions on these occa share in the judgment to be obtained. Benedict v. sions you have been there?' Plaintiff objected to Stuart, 23 Barb. 420; Satterlee v. Fraser, 2 Sandf. the question as immaterial, and the objection was 141. Yet the courts early recognized the principle overruled, and plaintiff excepted. Witness an that a party should not run away with the fruits of swered he had observed the dog on those occasions, a cause without satisfying the just demands of his and added 'he has always been friendly enough to attorney, by whose industry, and in many instances, me.' We think that it was error to receive the evi at whose expense those fruits had been obtained. dence quoted, and other of the same character, and Wilkins v. Carmichael, 1 Doug. 102; Turwin v. allowing it to be considered as defending the acts Gibson, 3 Atk. 720. They constantly interfered to of the dog in question. Buckley v. Leonard, 4 Den. protect their officers from dishonest or unfair settle500. By snch evidence the plaintiff may have been ments between the parties, and put their protection prejudiced indeed; probably that had a controlling sometimes on the ground of fraud and collusion beeffect with the jury, as they may have thought that tween the parties (Rasquin v. Knickerbocker Stage if they found the dog had a good character for Co., 21 How. Pr. 293; Carpenter v. Sixth Ave. R. peaceable conduct, the defendant was not liable Co., 1 Am. L. Reg. (N. S.] 410), and sometimes on though he received notice of his having bitten Miss the ground of an implied equitable lien of the atErwin, as she testified.”

” Boardman, J., concurred. torney. Taight v. Flolcomb, 16 How. Pr. 160; Follett, J., said: “I concur in the result, though kins v. Batterman, 4 Barb. 47; Ward v. Wordsworth, think the opinion states the rule rather strongly in 1 E. D. Smith, 598. And to protect his rights as respect to the non-admissibility of evidence show lienor he was obliged to give notice to the judging the peaceable disposition and conduct of the ment debtor that he had a lien thereon for his dog. The rule is undoubtedly correct as applica- costs. But even then he was without protection ble to the facts of this case. But if a question of in all cases where the cause of action was of such a fact had arisen as to whether the dog had bitten nature as not to be assignable; and frequent inthe plaintiff or others, or whether the defendant stances of this character occurred, when by settlehad notice of the ferocious disposition of the dog, ment between the ies before judgment he was then I think evidence of the peaceable disposition deprived of all compensation. and conduct of the dog would have been admissi This continued to be the law of New York until blz. Thus limited, I concur.”

the enactment of the Code of 1848. No change was made by this except to abolish the old fee bill,

and to allow an attorney to agree with his client ATTORNEY'S LIENS UPON TIIE CAUSE OF for his compensation. In other words, under secACTION.

tion 303 of that Code, the doctrine of an implied

equitable lien was stretched to cover the agreed THE question of contingent fees, and the rights compensation, whatever the amount, in all cases


arising therefrom, are matters of growing import- ment was obtained.

Rooney V. Second Ade. R. ance to the legal profession. In the time of Sir Co., 18 N. Y. 368. William Blackstone the laws against champerty Until 1879 no further change on this point was and maintenance were so stringent and far reach made in the law, for section 66 of Throop's Code ing (sce Bl. Comu., Bk. IV, ch. 10, $$ 12, 13), (1877), as originally enacted, was substantially the that a lawyer who entertained the thought of tak same in legal effect as section 303 of the Code of ing a case for a sum dependent upon his success 1848. Quincey v. Francis, 5 Abb. N. C. 286;

Mc was deterred on every side by penalties and punish- Cabe v. Fogy, 60 How. Pr. 488. Under section 66, ments, It was laid down as a principle of legal as it stood until the amendment of 1879, the par

ties might settle and discharge the cause of action without a careful examination of the amendment, before judgment without consulting the attorneys, decided that under section 66 the attorney must provided there was no bad faith or collusion for still give the opposite party notice of his lien in the purpose of depriving the attorney of his costs. order to protect his claim. On the other hand, For the attorney, as such, had no lien upon the the City Court of Brooklyn, in Custer v. Greenpoint cause of action; there being nothing, until judg- Ferry Co., 5 Civ. Pro. 146, decided that notice ment was obtained, to which his lien on a portion was not necessary. And all the other courts of the of the recovery could attach. Benedict v. IIarlov, 5 State before which the question has come the How. Pr. 347; Brown v. Comstock, 10 Barb. 67; City Court of New York in Kehoe v. Miller, supra; Shank v. Shoemaker, 18 N. Y. 489; McDowell v. Sec- the Court of Common Pleas in Tullis v. Bushnell, ond Ave. R. Co., 4 Bosw. 670.

supra (reversing the Special Term decisions on this Under section 66, as it stood before the amend point); the Superior Court of New York in Albert ment of 1879, the courts would set aside a settle- Palmer Co. v. Van Orden, supra; the General Term ment if collusive, or made in bad faith between of the Supreme Court, Fourth Department, in plaintiff and defendant before judginent, when | Dimick v. Cooley, supra — had decided the same such settlement had for its purpose to deprive the way as the City Court of Brooklyn. But in none attorney of his compensation. Rusquin v. Knicker- of these cases did the question come up so squarely bocker Stage Co., supra; Carpenter v. Sixth Ave. R. as in Custer v. Greenpoint Ferry Co., 5 Civ. Pro. Co., supra ; Coughlin v. N. Y. & II. R. R.Co., 71 N.Y. 146. The City Court of Brooklyn, following its 443; Walsh v. Flatbush, etc., R. Co., 11 Hun, 190; previous decision in Leris v. Duy, supra, held that Zogbaum v. Parker, 66 Barb. 341. But the burden notice of an attorney's lien for his compensation, of proving collusion or bad faith was on the at under section 66 of the Code of Civil Procedure, torney, and it was often difficult and sometimes since the amendment of 1879, need not be given to impossible to obtain the proof.

protect him against a settlement between the parThe inadequacy of the protection asforded by the ties; that the defendant who chooses to settle with courts in the exercise of their sound discretion, the plaintiff without notifying the attorney does so particularly in cases of personal torts (which are at his own risk, the statute having already given not assignable, and so the doctrine of equitable as the party sufficient notice to put him on his guard. signment could not be applied), was so great that By permission this case was carried to the highthe Legislature in 1879, to remedy the evil, and to est court. It was submitted in February last, and the protect attorneys in their just rights, amended sec Court of Appeals has affirmed the decision of the tion 66, so as to put attorneys' liens upon an court below. tirely new basis. Section 66 now reads as follows: Judicial construction and sanction is thus given "The compensation of an attorney or counsellor by the court of last resort to a rule of law which for his services is governed by agreement, express changes radically the position of attorney and clior implied, which is not restrained by law. From ent as to agreed compensation. It prevents for the the cominencement of an action or the service of an an future unfair settlements between the parties; gives swer containing a counterclaim, the attorney who ap a protection to attorneys which was beyond the pears for a party nus a lien upon his client's cause of power of the courts until the Legislature came to action or counterclaim, which attaches to a verdict, their assistance. Before the enactment of section report, decision, or judgment in his client's favor, 66, as it now stands, the lien of an attorney was and the proceeds thereof in whosoever hands they given effect by the aid of equity, with the doctrine may come, and cannot be afferteil by any settlement of notice in full force. Now the attorney has a between the parties before or after juigment."

lien given him by a public statute, and the law in Since that amendment took effect (July 10, 1879) all cases gives the notice. The lien attaches to the this protection is perfect and complete. The attor cause of action, whatever it may be, as well as to ney no longer depends upon his rights as cquitable the judgment. Its amount is whatever is agreed assignce of the judgment. Ile now has a perfect upon as compensation between the attorney and his and complete lien given him by statute, to the ex client. tent of the amount agreed upon. Loris v. Duy, 10

EUGENE D. HAWKINS. Weekly Dig. 49; Jore v. Borren, 9 Rep. 588; Je Cabe v. Fogg, supra; libert, Palmer Co. v. Van () den, 64 How. Pr. 79; Tullis v. Bushnell, 65 id. 465;

A FEIDAL LUSTIT. Kehoe v. Viller, 10 Abb. N. C. 393; Jurray v. Jib8on, 22 Hun, 386; Lunsing v. Ensign, 62 How. Pr. T'hibishana micato reclesiasticaespokenuate walia 363; Vatter of Bailey, 66 id. 64; Dimick v. Cooley,

high and mighty ecclesiastical potentate in his

day, a temporal count, having amongst his vassals the 3 Civ. Pro. 141.

neighboring baron of ('essac. On the day of the inThe wording of the section is so clear, and its stallation of each bishop, the baron for the time beterms are so specific, that it does not seem to needing had to perform a part of conspicuous bumilation. judicial construction. But the General Term of It was his duty, and the tenure upon which he held the First Department in Jenkins v. udams, 22 IIun,

his fief, to meet his episcopal niaster without the city

walls, and bareheaded, barefooted, and minus his man. 600, from facts peculiar to that case, evidently tle to lead the bishop's mule to the cathedral. The


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day's proceedings closed with a banquet at the palace the rails, they spread, and a part of the train was thrown where the baron waited at table, receiving as his due from the track, and K., to protect himself and the propthe buffet or sideboard used at the feast, and the erty under his charge, reversed the lever to stop the train mule.

and in so doing broke his arm. K. sued the company for Mgr. de Popian however, who became bishop of Ca damages, and the court directed a verdict for defendant. hors in 1604, not coutent with the accustomed humil Held, that it could not be said as matter of law that the iation, increased the indignity and compelled his re negligence of the railroad company was not the proxiluctant vassal to lay aside his sword and girdle. Fle mate cause of the injury, and that the case should have also-and this real mean on his part-added been submitted to the jury. injury to indult, and instead of the silver-gilt buffet

PPEAL from Pottawattamie District Court. usually decorating the episcopal feasts, and which was a substantial balm to the wounded feelings of his lordly vassal, tried to palm off on him a second-haud The plaintiff is a locomotive engineer, and was in the affair, picked up perhaps in some pawn-shop. This employ of the defendant, and the petition states that proved the proverbial “last straw.” De Cessac straight- while the plaintiff, as such engineer, was in charge of way brought suit, and on May 10th in the same year

a locomotive drawing a train of cars over defendant's got a judgment from the court of first instance sitting road, the “ locomotive and train were thrown from the at Toulouso by which the bishop was condemned to

track," and the plaintiff's right arm broken; that the deliver to him a buffet of the accustomed magnificence

“accident was caused by the negligence and faulty

* that the ties were or in default to pay its value. This was subsequently construction of the track; * fixed by experts at the sum of 3123 livres. For some

rotten, and insufficient to hold the sleepers and rails, reason not appearing in the records, the bishop backed

or weight of a passing train;" and that the accident down and accepted the judgment. Doubtless when

was not caused by the negligence of the plaintiff. The singing the Magnificat in after days, the “deposuit material allegations of the petition were denied. Trial potentes et cxaltavit humiles,” had a somewhat personal by jury, and judgment for the defendant. The plaintsound in his lordship's ears.

iff appeals. His successor however, Pierre de Habert, instituted

Sapp, Lyman & Puscy, for appellant. in 16:27, was in no mind to be amerced in 3,000 livres for the sake of an empty ceremony. He therefore Iright & Baldwin and Joy, Wright & Hudson, for dispensed with any formal entry into his see, and not appellee. having called upon De C'essac for any homage thought himself safe. But the baron was just as practical a

SEEVERS, J. 1. The material question presented in man as the bishop, and being poor, was quite willing

this record is whether the negligence of the defendant

was the proximate cause of the injury received by the to pat his pride in his pocket for a day, for the sake of plaintiff. The evidence tended to show that the rails a handsome addition to his revenues. lle sued the bishop, offering his homago and demanding his recom

spread, and a portion of the train left the track. The pense, and again was victorious, recovering a judg-train consisted of the engine and several freight cars.

locomotive remained at least partly on the track. The ment for the value of the buffet ascertained as above, subject to the liability to perform his homage when

When the plaintiff found the train was about to ruu off, or that a portion of it was off the track, he caught

the lerer, and in reversing it his arm was broken. His The Bishop now appealed, not only from the present object in reversing the lever was to check as soon as judgment but also from the previous decision of 1601, possible the speed of the train. At the conclusion of and a great wranglo of lawyers arose. It would be wearisome to go through all the arguments as reported

the plaintiff's evidence the defendant filed a motion in the trrets de Toulouse, but we cannot avoid notic- and moves this court to instruct the jury to return a

which is in these words: “Now comes the defendant ing not only the skill and ingenuity displayed on both

verdict for the defendant, and for grounds of said mosides, but the wealth of classical learning by which so

tion states (1) that the undisputed testimony discloses dry a subject was adorned and illuminated. Virgil,

that the injury for which the plaintiff seeks to recover Pliny, Seneca, Plutarch, Juvenal, are only some of the authorities quoted. The origin of the custom of un

in this case was received by plaintiff wbile reversing

his engine, and that the risk of accident in the operacovering the head in token of reverence is, as the

tion of the engine is one incident to the employment, French say, “ approfondi,and we are shown that the “cap of liberty” derives its significance from this plaintiff has not shown that the defective ties and

for which plaintiff has no right of action; (2) that very custom. The incident of the conspirators who

track occasioned the injury complained of, but that after the death of Caesar ran into the forum with

the same occurred and was sustained while reversing caps on their pikes is appositely cited in this conneo

the engine.” The motion was sustained and the jury tion. A great deal of curious information about hom

instructed accordingly. age, and many interesting historical points can also be

It will be observed the petition states that the accifound scattered through the yellow pages of the old

dent which caused the injury was caused by the locobook, but we must pass these over and content our motive and train being thrown from the track, and solves with recording the final result, which was in

counsel for the appellee insist that the evidence shows favor of the baron, the principle of the decision being that the engine did not leave the track, and that it that the duties of baron and vassal woro reciprocally affirmatively appears the injury was the result of the binding, and the lord could no more dispenso with

act of the plaintiff in reversing the lever, and therefore homage and its incidental recompense, than tho vassal

there is a material variance between the allegations of could refuso service.

A. B. M.

the potition and the proof. For this reason it is in:

sisted the court rightly directed the jury to find for the NEGLIGENCE PROXIMATE CAISE.

defendant. It must be presumed that the court gave

the direction asked on the grounds stated in the moSUPREME COURT OF IOWA, OCT. 24, 1881.

tion. It does not appear therefrom that the defend

ant claimed in the District Court there was a variance, KNAPP V. Sioux City & P. R. Co.*

and that for this reasou tho jury should be directed to K., a locomotive engineer, was running a train on defond find for tho defendant. Such question cannot be raised ant's road, when by reason of the defective condition of

for the first time in this court. Had the motion been *S. C., 21 N. W. Rep. 198.

based on such ground the right to amend would have

called upon.

existed. It would be manifestly unjust to deprive plaintiff's employment; yet if the negligence of the dethe plaintiff of such right. This however would be the fendant required such act to be done at that particueffect if we should affirm the judgment of the District lar time, and the plaintiff was not guilty of negligence, Court.

but on the contrary acted prudently, with due regard 2. The plaintiff was injured while he was reversing for his own safety and the safety of others, then the the lever. There is no evidence tending to show that defendant is liable, because the negligence of the dethis was rendered more difficult because the train, or a fendant is the proximate cause of the injury. portion of it, was off the track. If the lever had not We are unable to distinguish this from the Squib been reversed, it cannot be said the plaintiff would case, which was decided years ago, and has been frehave been in any respect injured. It must however be quently referred to. In that caso a squib was thrown assumed that when a train leaves the track, the lives from place to place, until finally a person was injured of the employees are endangered. The lever is moved by it. The first person who so threw tho squib was forward, as wo understand, for the purpose of starting held liable for the injury. Scott v. Shepherd, 2 W. Bl. the train or increasing its speed, and is reversed when 892. Each person subsequent to the first threw the it is desired to stop the train as speedily as possible. squib to protect himself and his property from injury. This forward and backward movement of the lover, So here the plaintiff reversed the lever to protect himno doubt, frequently occurs in a day's run.

The use

self and the property under his charge from consetherefore of the lerer must be regarded as one of the quences which would probably follow the negligent incidents and hazards of the plaintiff's ein ployment, act of the defendant. See also Palmer v. Andover, ? and for an accident happening by such use, by which Cush. 600; Allen v. IIancock, 16 Vt. 230; Woodward v. the engineer is injured, it will be conceded the defend Aborn, 35 Mo. 271. It may possibly be true, as sugant cannot ordinarily be held liable. The immediate gested by counsel for the defendant, that if the plaintcause of the injury received by the plaintiff was the iff had been injured as he was while reversing the reversal of the lever. The lever was reversed because lever for the purpose of stopping the train to prevent the train left the track, and this was caused by the it from running over cattle on the track, the despreading of the rails caused by the defective con fendant would not be liable, although the cattle got dition of the track. There was therefore a combina on the track because it was not fenced. It is sometion of immediate causes remotely preceded by others. times exceedingly difficult to determine to which class No event can occur, it is believed, which is entirely a case belongs. But there is, and must of necessity independent. “The links in the chain of causation be, a dividing line. It may apparently, in sonie cases, are endless." The law has adopted a practical rule have the appearance of being arbitrary. This cannot that the proximato cause of an injury only can be re. be avoided. But we think the failure to fence would cognized. When it is ascertained, further inquiry is be more remote from the immediate cause of the acclosed. The real difficulty lies in the application of cident than in the case at bar. Besides this to reverso the rule. An eminent judge has said : “The general the lever for such a cause might well be regarded as rule of law, we understand, is that where two or more one of the ordinary hazards. causes concur to produce an effect, and it cannot be

Reversed. determined which contributed most largely, or whether without the concurrence of both it would not NEGOTLABLE INSTRUMENT-BLITER"S DRAFT hare happened at all, and a particular party is respon

-INSOLVENCY OF DRAWER. sible only for the consequences of one of these causes, a recovery cannot be bad because it cannot be judicially determined that the damage would have been

MICHIGAN SUPREME COURT, NOV. 19, 1884. done without such concurrence, so that it cannot be attributed to that cause for which he is answerable."

GRAMMEL V. CARMER.* Shaw, C. J., iu Marble v. City of Worcester, 4 Gray, 395. A banker's draft, drawn and payable within this country, is The same rule has been more briefly stated by Beck, not in legal effect a check, and where before presentation J., in Dubuque IVood & Coal Ass'n v. City and County to the bank on which it is drawn, that has funds to ineet of Dubuque, 30 Iowa, 176. Conceding this to be a cor its payment, the drawer sails and payment is refused on rect statement of the law, wo have to inquire whether that account by the drawee, and the funds paid over to the District Court correctly applied it to the facts of the receiver of the drawer, the payee is not entitled to this case, and we feel constrained to say that in our payment in full out of such funds, but must share with opinion it did not.

the other creditors. Ordinarily trains remain on the track. If they do

PPEAL from Ingham. not, it must ordinarily bo assume, it was caused by A the negligence of some one, unless the accident appears to have been inevitable. In this case it must be as Olds & Robson, for petitioner sumed that the negligence of the defendant caused the Chas. F. Ilammond and Cahill, Ostrander { Baird, train to leave the track. The plaintiff was called on for, appellant. in a sudden emergency to act. It cannot be expected

COOLEY, C. J. The facts in this case are the followthat he would remain passive. He was justified in so

ing: On May 15, 1883, Eugene Angell was doing busiacting as to best protect himself and preserve the property uuder his charge. If he had sprung from the en

ness as a private banker in Lansing, Michigan. His

New York correspoudent was the Chase National gine to the ground and been injured, he undoubtedly

Bank. On the day naned, Grammel, the petitioner in could have recovered, provided he acted prudently in so doing. Buel v. N. 1'. C. R. Co., 31 N. Y, 314; Coul

this case, purchased o: Angell two small drafts on the ter v. american Exp. Co., 5 Lans. 67. Instead of do

(hase National Bank, amounting together to $174.50, ing this he concluded to reverse the lever. Now

and paid for them. They were ordinary bankers' whether this was the proper thing to do, and whether

drafts, payable at sight. Angell at this time was inthe plaintiff was negligent in so doing, it was for the

solrent, though it was not publicly known, and two jury to say. Conceding the plaintiff was not negligent,

days thereafter he made a general assignment of his and that the injury was not received because of ineri: property for the benefit of all his creclitors. Arthur Y. table accident, then it must follow the negligence of

Ilart was named assignee. Two days subsequent to the defendent caused the injury. True it is that re

the assignment the drafts of petitioner were presented rersing the lever is one of ordinary hazards of the

* S. C., 21 S.W. Rep. 115.

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