to the Chase National Bank for payment, and payment refused upon the ground that the assignee had notifiled the bank to pay no drafts. The bank had moneys belonging to Angell, at the date of the drafts, more than sufficient for their payment, and continued to have until the time of presentation. Hart, the assignee, failed to give bond as such, and under the statute the respondent, Carmer, was appointed receiver, to execute the trust in his stead. The Chase National Bank then paid over to the receiver the balance which was due to Angell when he assigned. On this state of facts the petitioner claimed to be entitled to payment of his drafts in full from the amount paid over to the receiver by the Chase National Bank, and he petitioned the Circuit Court for an order directing such payment to be made. The receiver contested his right, insisting that he must receive proportionate payment with other creditors; but the Circuit Court made the order prayed for. The receiver appeals.

It is contended on the part of petitioner that a banker's sight-draft is in legal effect a check, and that if there are in the hands of the drawee funds for its payment the payee is absolutely entitled to payment from such funds, and cannot be deprived of this right by any action of the drawer, or of the assignee or receiver of the drawer who would stand in his shoes. It is further contended that the holder of the draft may bring suit against the drawee for the amount if the latter refuses to make payment, and that in effect he has a lien upon the fund, and may follow it into the receiver's hands if it is paid over to him. And several cases are cited in support of these positions. The doctrine that a banker's draft, drawn and payable within the country, is in legal effect a check, is held by a divided court in Roberts v. Corbin, 26 Iowa, 315, in which case it was also held that the holder of a bank check drawn against funds sufficient for its payment may maintain suit for the amount against the bank if payment is refused.

The case of Munn v. Burch, 25 Ill. 35, is relied upon as authority. An examination of the facts in that case will show very clearly that the question supposed to have been decided by it did not arise at all, for the check which was in question had actually been received by the bank on which it was drawn, and actually charged up to him ou his pass-book. The court went beyond the case, and expressed an unnecessary opinion, which in Chicago, etc., Co. v. Stanford, 28 Ill. 168, and Union Bank v. Oceana Bank, 80 id. 212, has been followed as authorities. See also Fogarties v. State Bank, 12 Rich. 518; Lester v. Given, 8 Bush, 357. But the great weight of judicial authority is unquestionably to the contrary of this.

In Bank of Republic v. Millard, 10 Wall. 152, 156, Davis, J., speaking for the court, says. "It is no longer an open question in this court since the decision in the cases of the Marine Bank v. Fulton Bank, 2 Wall. 252, and of Thompson v. Riggs, 5 id. 663, that the relation of banker and customer in their pecuniary dealings is that of debtor and creditor." He adds that on principle there can be no foundation for an action on the part of the holder of a check against the bank, unless there is privity of contract between him and the bank. "How can there be such a privity when the bank owes no duty and is under no obligation to the holder? The holder takes a check on the credit of the drawer in the belief that he has funds to meet it; but in no sense can the bank be said to be connected with the transaction." See also First Nat. Bank v. Whitman, 94 U. S. 343. Many cases might be cited to the same effect if it were needful, but we think the case of Perley v. County of Muskegon, 32 Mich. 132, recognizes the same principle.

This case however is not the case of a check, but of bills of exchange. The bills were drawn by banker

upon banker, it is true, and against deposits made to meet them; and it might be difficult to say why any distinction should be taken between checks and such drafts as to the rules which should govern the rights of the parties. We have no occasion in this case to consider whether a distinction exists, because we think it clear that if it could be held, as some courts do hold, that the payee of a check drawn against actual deposits may sue the banker who refuses to pay it, it would be impossible to so hold in the case of a draft without disre. garding long-settled rules. The cases of Williams V. Everett, 14 East, 582, 597; Yates v. Bell, 3 Barn. & Ald. 643; Hopkinson v. Forster, L. R., 19 Eq. 74; and Citizens' Bank v. First Nat. Bank, L. R., 6 H. L. 352; S. C., 7 Moak, 56, are sufficient to show that the law in England is that the drawee of a bill of exchange is liable on it only after he has become acceptor. The same rule is recognized in Mandeville v. Welch, 5 Wheat. 277, 283, and Bank of Republic v. Millard, already cited.

In Gibson v. Cooke, 20 Pick. 15, it appeared that a party had drawn a bill which was dishonored for want of funds. Afterward the drawer remitted funds expressly to meet that and another small bill which had previously been drawn. The drawee paid the small bill, but refused to pay the other. It was held that the payee could not maintain an action against the drawee for the amount, there being no privity of contract between them. If any case could be conceived whose facts would support such an action, this must be such a case, for here the funds were remitted for the express purpose of paying the bill sued upon. To the same effect are Bullard v. Randall, 1 Gray, 605; Hopkins v. Beebe, 26 Penn. St. 85; Jermyn v. Moffitt, 75 id. 399; Gibson v. Finley, 4 Md. Ch. 76; Poydras v. Delamare, 13 La. 98; Harris v. Clark, 3 N. Y. 118; Cowperthwaite v. Sheffield, id. 243; Winter v. Drury, 5 id. 525; Noe v. Christie, 51 id. 273; Duncan v. Berlin, 60 id. 151; Tyler v. Gould, 48 id. 682; Risley v. Phanix Bank, 83 id. 318; Bank of Commerce v. Russell, 2 Dill. 215; Bank of Commerce v. Bogy, 44 Mo. 13; Weinstock v. Bellwood, 12 Bush, 139; Caldwell v. Merchants' Bank, U. C., 26 C. P. 294.

The reason for these decisions is found in the funda. mental rules governing this class of paper. The drawer by drawing and delivering the paper to the payee, agrees that if duly presented it shall be accepted and paid by the drawee, and that in default thereof he will, if duly notified of the dishonor, pay it himself. The drawee enters into no contract relations with the payee in respect to it until it is presented to him, nor then unless he does so by acceptance. If he accepts he undertakes to pay according to the terms of the bill or of the acceptance; but up to the time of that act the payee looks exclusively to the drawer for his protection. If the drawee refuses to accept when he has funds for the purpose, he becomes liable to the drawer for the wrong done to his credit. Marzetti v. Williams, 1 Barn. & Adol. 415; Rollin v. Steward, 11 C. B. 595. But the payee can maintain no such action, for the plain reason that until acceptance the drawee owes to the payee no legal duty whatever. An action at law must be grounded on some failure in the per formance of legal duty.

It is said a draft should be considered an assignment of so much money in the payee's hands. If this were so then drafts would operate as assignments in the order in which they were given, and should be paid in that order. But to so hold would be to introduce a new and vicious rule into the law of commercial paper. The well-understood rule-and we may add the convenient rule-now is that the drawee, when a draft is presented, should pay it if he has funds, and is not concerned with the question whether drafts of prior issue do not remain unpaid. But if &

draft operates as an assigument, then either he would pay at his peril, or the payee receiving payment would be liable over to the holder of a prior uupaid draft for money received to his use. This rule would greatly and injuriously affect the value of this class of paper for commercial purposes. Something has been said in the case about this being an equitable proceeding, as if that should make a difference in the rules that should be applied to it. But in no proper sense is this an equitable proceeding at all. The receiver is appointed by an order made on the chancery side of the court, but this merely puts him in the place of the assignee who failed to give bond, aud in order that creditors may enforce through him their legal rights. When Angell failed, this petitioner had certain legal rights in respect to this paper, and these rights qualified the rights of all other creditors. The failure of Angell, and the appointment of this assignee could not increase this petitioner's rights at the expense of other oreditors. It leaves them as they were, to be enforced by such remedies as shall be appropriate. The statute which prescribes this particular remedy has no purpose to modify rights in any manner. But if this were strictly an equitable proceeding, it would make no difference. Courts of equity have no different rules in respect to the rights and obligations of parties to negotiable paper to those which are recognized in courts of law, but they recognize and enforce the same rules, and there would be gross injustice in their doing otherwise. Some of the cases above cited in support of these views were cases in equity.

The order of the Circuit Court is erroneous, aud should be set aside.

Campbell and Champlin, JJ., concurred.

[See Dickinson v. Coates, 79 Mo. 251; S. C., 49 Am. Rep. 228.]

NEGLIGENCE- CROSSING RAILROAD TRACKCONTRIBUTORY NEGLIGENCE.

MAINE SUPREME JUDICIAL COURT.

STATE V. MAINE CENTRAL RAILROAD Co.* One in the full possession of his faculties, who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be, but is in fact, struck by it, is prima facie guilty of negligence; and in the absence of a satisfactory excuse, his negligence must be regarded as established.

N exceptions and motion to set aside the verdict. In

dictment against the Maine Central Railroad Company for negligently causing the death of Adoniram Judson Pickard at a railroad crossing in Carmel, on the 26th day of December, 1882, prosecuted for the benefit of his widow and children. The opinion states the material facts.

J. Hutchings and F. H. Appleton, for State.
Wilson & Woodward, for defendant.

WALTON, J. This is an indictment against the Maine Central Railroad Company for negligently causing the death of a person. It appears that on December 26, 1882, at about half past six o'clock in the evening, Dr. Pickard of Carmel, in an attempt to cross the railroad with a horse and sleigh, was struck by a passing train and instantly killed. A trial has been had and a verdict of guilty returned against the railroad. The question is whether the evidence justified this verdict. We think it did not.

It is settled law in this State, that in prosecutions of this kind, whether in form civil or criminal, the burden is upon the party prosecuting to show that the *S. C., 76 Me. 357.

person injured or killed did not by his own want of ordinary care contribute to produce the accident. Gleason v. Bremen, 50 Me. 222; State v. Grand Trunk Ry., 58 id. 176.

In the case first cited it was held that the law is clear and unquestioned that the plaintiff must satisfy the jury, as an affirmative fact to be established by him, as a necessary part of his case, that at the time of the accident he was in the exercise of due care. And in the second case cited it was held, after a full and careful examination of the question, that in the trial of indictments against railroads to recover the forfeiture created by our statute for negligently causing the death of a person, "the same rules of evidence and the same principles of law should be applied, as in like cases when redress is sought by a civil action for damages."

We must therefore regard it as settled law in this State, that in this class of cases, whether in form civil or criminal, the burden of proof is upon the party prosecuting to show due care on the part of the person injured or killed, at the time of the accident; or in other words, that his want of due care did not contribute to produce the injury complained of.

In this case there is not only a total want of such evidence, but the proof, as far as it goes, tends strongly to establish the contrary. No one witnessed the accident except the engineer and fireman on the train. The engineer's account of the transaction is, that as he approached the crossing, and when the engine was not over fifteen feet from it, the horse came right up into the head-light, and the pilot of the engine took right under the sleigh, and threw the deceased right up on to the head-board; then he stopped the train as soon as he could, and went forward and found the man dead upon the front of the engine. The fireman says he saw nothing till they went on to the crossing; that he then got a glimpse of a horse and saw a man come up on to the pilot. These are the only accounts we get of the transaction. How it happened that the deceased drove on to this crossing directly in front of an approaching train is left to conjecture alone.

It is claimed that no bell was rung or whistle sounded; and that in consequence of this failure the deceased was not apprised of the approach of the train. The evidence seems to us to preponderate most overwhelmingly in favor of the fact that the bell was rung and the whistle sounded. But suppose they were not, still it seems to us impossible to believe that the deceased undertook to cross the track in ignorance of the approach of the train. He was a man of mature years, and in the full possession of his faculties. His sight and hearing were good. He lived in the immediate neighborhood of this crossing, and must have been acquainted with the time and speed of the trains. The evening was still, and the ground frozen, and the rumbling of the train could be heard at a great distance. The head-light was on, and the cars all lighted, and the deceased's view of an approaching train for a considerable portion of the way as he drove from his house to the crossing unobstructed. If under these circumstances the deceased undertook to cross the track in ignorance of the approach of the train, the inference is irresistible that he did not exercise that degree of vigilance which the law requires. He could not have used his eyes nor his ears as the law required him to use them. The fact must not be overlooked that the train was very near, as otherwise he would not have been struck by it. One in the full possession of bis faculties, who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be, but is in fact, struck by it, is prima facie guilty of negligence; and in the absence of a satisfactory ex

cuse, his negligence must be regarded as established. The excuse offered in this case is not satisfactory. The evidence so overwhelmingly preponderates in favor of the fact that the bell was rung and the whistle sounded that we cannot regard the alleged negligence of the railroad company in these particulars as proved. But if we concede that this was a question of fact for the jury, and that the court has no right to interfere with their finding, still the inference is irresistible that the deceased did not exercise that degree of vigilance which the law requires, or he would have known of the approach of the train without these signals. And if not ignorant of its approach (which we believe to be the fact) then the relation of cause and effect between the alleged negligence and the accident is wanting; and the verdict must be regarded as wrong upon that ground. It is not enough to establish negligence and an accident. It must also be shown that the negli gence was the cause of the accident. An omission to ring the bell or sound the whistle could not have been the cause of the accident if the deceased had notice of the approach of the train by other means. Our belief is that the deceased did have such notice; that he could not have been so unobservant as to neither see nor hear the approach of that train; and consequently that the alleged negligence in omitting to ring the bell or sound the whistle could not have been the cause of the accident. But if he did not have such notice; if he drove on to that crossing in total ignorance of the approach of a train; then the conclusion seems to us inevitable that he must have been exceedingly negligent in the use of his eyes and his ears. So that whichever view we take, the verdict is clearly wrong. In the one case the want of the relation of cause and effect invalidates it; in the other, contributory negligence.

Similar views are expressed and similar conclusions sustained, even to those States in which it is held that the burden of proof to show contributory negligence is on the defendant. A fortiori they ought to prevail, where, as in this State, the burden of proof is not upon the defendent to show contributory negligence, but upon the party prosecuting to show the absence of it.

In Railroad v. Heileman, 49 Penn. St. 60, the court held that the omission of a traveller when approaching a railroad crossing to look and listen for approaching trains is negligence per se; not merely evidence of negligence, but negligence itself, and should be so declared by the court, and not submitted to the jury; that while it is true that what constitutes negligence is generally a question of fact for the jury, it is not always so; that when the law fixes the standard of duty, an entire omission to perform it is not merely evidence of negligence to be submitted to a jury, it is negligence itself, and should be so declared by the court; that even on a common road, travellers must look out for the approach of other vehicles passing; that this is more necessary at railroad crossings, because movements upon a railroad are more rapid, and because the consequences of a collision are likely to be more disastrous; that precaution, looking out for danger, is a duty imposed by law, and that to rush heedlessly on to a crossing over which the law allows engines of fearful power to be propelled, without looking and listening for a coming train, is not merely an imperfect performance of duty, it is an entire failure of performance.

And in Railroad v. Beale, 73 Penn. St. 504, Mr. Justice Sharswood, in delivering the opinion of the court, says that there never was a more important principle settled than that which declares that the omission to look and listen for the approach of trains before attempting to cross a railroad track, is not merely evidence of negligence to be submitted to a jury, but

negligence per se, and to be so declared by the court; that it is not so important to the railroad companies as to the travelling public; that the omission of this duty often results in collisions by which the lives of hundreds of passengers are lost; and that travellers should be taught that the performance of this duty is due, not only to themselves, but to others also.

In Railroad v. Crawford, 24 Ohio St. 631, the law upon this subject seems to us to be stated accurately. It is there said that unquestionably ordinary prudence requires a person in the full enjoyment of his faculties, before attempting to pass over a known railroad crossing, to use his faculties of hearing and seeing for the purpose of discovering and avoiding danger from an approaching train; and that the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action to recover for an injury to which such negligence contributed.

In Dascomb v. Ratlroad, 27 Barb. 221, it is said in a case very similar to the one we are now considering, that when negligence is the issue, it must be a case of unmixed negligence; that this rule is important, salutary in its effects, and should be maintained in its purity; that the careless are thereby taught that if they sustain an injury to which their own negligence has contributed, the law will afford them no redress.

In Wilcox v. Railroad, 39 N. Y. 358 (a case in every essential particular like the one now under consideration), the court held that when one is killed in attempting to cross a railroad track within the limits of a public highway, and at a public crossing, if it appear that the deceased would have seen the approaching cars, in season to have avoided them, had he first looked before attempting to cross, it is to be presumed that he did not look; and that by omitting so plain and imperative a duty, he will be deemed to have been guilty of negligence, which precludes a recovery; that in crossing a railroad track ordinary sense, prudence, and capacity require a traveller to use his ears and eyes so far as he has an opportunity to do so, and a failure to do so is negligence sufficient to preclude a recovery for any injury he may receive, in case of accident; and that the negligence of the company in not ringing the bell or sounding the whistle is no excuse for the traveller's neglect. After citing many authorities, Mr. Justice Miller said: The effect of the cases cited is to sustain the principle, that where the negligence of the party injured or killed contributes to produce the result, he cannot recover; and that the omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person who is about to pass over the high way from the obligation of employing his sense of hearing and seeing, to ascertain whether a train is approaching.

In Railroad Co 7. Houston, 95 U. S. 697, it was held that the omission of the engineer in charge of a railroad train to sound its whistle or ring its bell does not relieve a traveller from the necessity of ascertaining by other means whether or not a train is approaching; that negligence of the employees of the company is no excuse for negligence of the traveller; that the traveller upon the highway is bound to listen and to look, before attempting to cross a railroad track, in order to avoid an approaching train, and not to go carelessly into a place of possible danger; that if he omits to look and listen, and walks thoughtlessly upon the track, or if looking and listening, he ascertains that a train is approaching, and instead of waiting for it to pass, undertakes to cross the track, and in either case receives an injury, he so far contributes to it as to deprive him of all remedy against the railroad company; that if one chooses to take risks he must suffer the

consequences; that they cannot be visited upon the railroad company; that in such cases it would not be error to instruct the jury peremptorily to return a verdiot for the defendants.

The cases in which similar views are expressed are very numerous. But the soundness of the views expressed in the cases already cited is so self-evident, that we deem it unecessary to cite other cases to support them. It will be seen that it is not important to determine whether Dr. Pickard's negligence consisted in not ascertaining that a train was approaching, or in knowingly attempting to cross in front of it. In either case it defeats a recovery. And in the latter case, for the further reason that it destroys the relation of cause and effect between the alleged negligence of the defendants and the accident.

[Omitting minor point.]

Motion sustained and the verdict set aside. Peters, C. J., Danforth, Virgin and Libbey, JJ., concurred.

MISTAKE - REFORMATION OF DEED. WISCONSIN SUPREME COURT, OCTOBER 14, 1884.

GREEN BAY, ETC., CANAL Co. v. HEWITT.* The absolute owner of land conveyed it by deed, which after granting all his estate in the land, declared in a subsequent clause that the interest and title intended to be conveyed was only that acquired by virtue of a certain sheriff's deed, which was in fact an undivided one-half only. All parties to the conveyance intended that it should embrace such undivided one-half only,and supposed that the deed was so drawn as to effectuate such intention. Held, that although the limitation of the grant was ineffectual because inserted after and not in the granting clause, it was nevertheless conclusive as to the intention of the parties, and whether the mistake was one of law or of fact, the deed might be reformed to accord with such intention.

A

PPEAL from Circuit Court, Outagamie county. The opinion states the facts.

Moses Hooper, for respondent.

D. S. Ordway and W. P. Lynde, for appellants.

ORTON, J. This is an action of ejectment, in which both parties claimed to hold the premises in dispute under and from Morgan L. Martin, the plaintiff and respondent, by his deed of May, 1873, and the defendants and appellants by his deed of January, 1880. In the deed to the respondent the grant was of the whole tract, but thereinafter there was a clause which limited the grant to the interest and title acquired by said Martin, by virtue of a deed executed to him by one Evarts, as sheriff of Outagamie county, dated December 23, 1871, which clearly conveyed only an undivided half of said tract. In this case, reported in 55 Wis. 96; S. C., 12 N. W. Rep. 382, it was held by this court that such limiting clause is inconsistent with the grant, and is nugatory, and that the grant must prevail. In the case as it thus stood the respondent rested upon that deed, in its terms, effect and construction, insisting that it conveyed the whole tract, and therefore the undivided half in dispute. The judgment of the Circuit Court against the appellants was affirmed. Within the proper time the appellants made application for the vacation of said judgment, and for a new trial under section 3092, Rev. Stat., and the judgment was vacated and a new trial was granted. The appellants thereupon amended their answer, setting up an equitable counter-claim for the reformation of said deed, so as to make it convey only *S. C., 21 Northwestern Reporter, 216.

the undivided half of said premises, according to the intention expressed in said limiting clause, alleging a mistake in the granting clause of said deed in that respect. The respondent replied to said answer, deuying the allegations of said counter-claim, and alleging the estoppel of said appellants from setting up such counter-claim by the former trial and judgment, aud that if there was such mistake in said deed, still the same should not be corrected, because Martin should be adjudged to have held the half of the estate so conveyed by mistake to use of the plaintiff.

To these issues the evidence was addressed. The findings of the court are mainly the history of the title to this tract of land, and only three findings of fact are necessary to be noticed in passing upon the questions raised and so ably argued on this appeal: First, that it was the opinion of Martin that he only acquired, by the said sheriff's deed, the undivided onehalf of said premises conveyed to the respondent before, and held by it at the time of, said sale, and that it was not his intention to convey any other interest or estate to the respondent; second, that the mistake of Martin in conveying to the respondent the whole of said tract, instead of only an undivided half thereof, was a mistake of law, and not a mistake of fact; and third, that if it was a mistake of fact, the deed ought not to be corrected in that respect, because it placed the legal title of the whole tract where it belonged in equity. The counterclaim was therefore dismissed on its merits.

The various exceptions to evidence and to the findings need not be specially noticed any further than to say that they sufficiently raised the questions presented by counsel. These questions will be disposed of in their natural order: First, is the plaintiff estopped by the former trial and judgment from settlug up a mistake in the deed and from asking its reformation? Second. Was there any mistake shown by the evidence, and if so, was it such a mistake as can be corrected in equity? Third. If so, had the respondent such an equitable interest in the undivided half of the premises not intended to be conveyed by said deed, but which nevertheless was so conveyed thereby that the deed ought in equity to stand uncorrected, as conveying the legal title to the respondent as the party entitled in equity thereto, ex æquo et bono.

1. As to the estoppel it may be well to see whether there is any thing in the counter-claim inconsistent with the defense relied upon on the former trial. The answer was a general denial, and the appellants relied upon the deed, as by its terms and effect, and its true construction in reference to the subject-matter and circumstances of its execution, conveying only an undivided one-half of the premises, and insisted that the limitation clause therein had so modified the grant, and that the deed should be so construed, but by force of a technical rule of law that clause could not have such effect, and the deed could not be so construed. In the counter-claim the appellant still insists that such limitation clause shall have effect in equity as expressing the intention of the parties, and that the grant should be so limited by a correction and reformation of the deed, and that both parties believed, and were mistaken in believing, that the deed itself had the legal effect of conveying only one-half of the premises, and they, the appellants, now ask that such mutual mistake may be corrected. When the deed is reformed as prayed, then it will have the precise effect which the appellants insisted that it did have standing uncorrected on the former trial. Precisely the same object was sought on both trials, which was that the deed should have the effect to convey only the onehalf on the first trial by the deed as it was, and ou the last trial by the deed reformed. The maxim allegans