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for which defendant gave him his promissory note. Thereafter testator cancelled the note, and surrendered it to the defendant. In an action on the note the court held that the transaction constituted a valid

guardian's control, so as to overcome her intention to return to her home, the abduction is accomplished, and he may be indicted in this State. N error to the Court of General Quarter Sessions


all liability thereon.

states the case. In conclusion, the case of Armitage v. Mace, 96 N. Y. 538, deserves some consideration.

It is a

border C. H. Winfield, for State. case, but it seems to the writer to have been

Puster, Daly & Ryerson, for defendant. correctly decided. The question involved was as to the validity of a gift from a husband to his wife. In

SCUDDER, J. The defendant was indicted under such case it is always difficult to prove an actual deliv

section 82 of the act for the punishment of crimes, for ery of the subject of the gift, because of the control

the abduction and seduction of a girl under the age of usually exercised over the property of the wife by the

fifteen years. IIe was found guilty and sentenced to husband. The property of either is always more or

the State prison for the term of five years. Many obless in the possession of both; and it frequently hap-jections were taken at the trial to the admission of pens that the thing which the busband has given to

testimony, and requests to charge were made to the his wife remains practically just as much under his

trial judge, some of which were granted and others control as it was before. If therefore the rigid rule

refused. Two exceptions only were argued on the rerequiring actual delivery were not somewhat modified

turn to the writ of error, the others having been abauin its application to cases of gifts between husband

doned. The first was an exception to the admission and wife, such gifts could rarely, if ever, be so made

of the witness A. B., the child in question, on the part as to be valid in law. In Armitage v. lace it appeared

of the State, against the defendant, because she was that the husband owned a certain mare which the wife

alleged to be the wife of the defendant, and therefore had often expressed a desire to own). On one occasion an incompetent witness. When this objection was they had just returned from the depot with the mare,

made by the defendant's counsel the court directed and while standing at the stable beside her, the wife

that the witness be examined on the voir dire as to the repeated her request for the mare, to which the hus

alleged marriage. She was questioned as to the form band replied: “Very well, you like her so much I will

of a marriage ceremony extracted in part from the give her to you; she shall be your property.”


marriage service used in the Protestant Episcopal called the man who was taking care of her, and told

Church, and said to have been repeated by the parties him of the gift, and informed him that thereafter the

when they were together, without any wituess, in previous orders that he had given him about the use

Brooklyn, Long Island, State of New York. She deof the mare were changed, and that he was thereafter

nied that there was any such ceremony. She was to deliver the maro to Mrs. Armitage as she wanted it.

shown a certificate in writing, signed by her and the Previous to this Mrs. A. had never driven the maro

defendant, dated November 2, 1883, which stated that alone, but had driven another horse, and Mr.

they had been married by repeating certain portions A. had always driven the mare. After this he

of the Episcopal marriage service. She testified that ceased to drive the

when she signed it he told her it was only a joke. Cerinare, and used another horse, and Mrs. A. used the mare exclusively. After

tain letters were shown her which she admitted had this Mr. A. always recognized his wife's ownership,

been written and signed by her after November 2, and the mare was known as hers in her husband's

1883, in which she addressed him as her husband and

called herself his wife. These she said were addressed family. The court said: “She thus had all the possession a wife living with her husband could have. She

and signed in that way because he told her to do so, controlled the mare, used her when she chose to do so,

and she had agreed and intended to marry him in the she was recognized as hers, and no one else, used her

following spring. without her consent. While these facts do not make

On December 3, 1883, she left her home in Astoria, a very clear case of gift, they were sufficient to carry

and went with him to the mayor's office in the city of the case to the jury and to authorize a finding by them

New York to be married, but the mayor declined to that the mare way delivered to and possessed by her

marry them because of her youthful appearance. Ou in pursuance and consummation of the gift. Subse the same day she went with him to Jersey City, where quently to the gift the mare was kept in the husband's

she was introduced as his wife by the defendant to

friends of his residing there. She was sileut before stable, cared for by a hostler paid by him, and he paid for her feed, shoeing and training, as Mrs. Armitage

them. They occupied the same bed-room at a hotel had no estato or income. These facts were proper

in that city for a night, a day and part of the second for the consideration of the jury, but did not nullify

night, when the defendant was arrested on pursuit or destroy the gift, or conclusively show that one valid and complaint of her adopted father, who had never in law had not been made."

given his consent to a marriage between them. Her Guy C. H. ('ORLISS. parents were both dead. It had also been testified by

her older sister that sho was born in October, 1869, and

was under the age of fifteen years when the alleged CRIMINAL EVIDENCE IVIFE AS WITVESS

abduction took place. The defendant's couusel of

fered section 1 of the New York Marriage Act (Rer. AGALVST HIUSBLVD.

Stat., vol. III, 227"), by which marriage in that State

is a civil contract, to which the consent of parties NEW JERSEY SUPREME COURT.

capable in law of contracting shall be essential; and

also section 3 of the same act, making void a marriage STATE V. GORDON.

where either of the parties to a marriage shall be inDefendant was indicted for unlawfully conveying or taking capable for want of age and understanding of consent

away a woman child under the age of fifteen years, with ing to a marriage, etc., or when the consent of either intent to seduce, etc,, under section 82 of the Crimes Act. party shall have been obtained by force or fraud; also Held, that she was a compotent witness for the people. section 26 of the New York Crimes Act, making it If the defendant brought her within this State from criminal to take away any female under the age of another, and here, with the intent set out in the statute, fourteen years from her father, mother, guardian, or interposed his will or persuasion between her and her other person, without their consent, either for the


purpose of prostitution, concubinage or inarriage. tained her either by force or by persuasion, it was After the above examination the court allowed the such an unlawful conveying and taking away within witness to be sworn on the part of the State, and this State as is contemplated by the statute. This into this exception was prayed, allowed and stru on was correct. A girl, within the protection sealed.

of the statute, is in the possession, custody or governThere was no error in the admission of this witness ance of her parent or guardian though she be not in to testify. If she had, iu her examination, admitted the same house with them. If not in their actual posthat she was the wife of the defendant, and that his session when in the streets, in school or in some place allegations were true, a different question might of public resort, or visiting in the house of friends, have arisen under tho statutes of the State of New she is so coustructively. She is still in their custody York, where it was claimed the ceremony of marriage for care, keeping and security, and under their govtook place; but she denied them, and whether they ernance, for they may control her will by their comwere married or not was a disputed question in the mand. If she go upou a journey, they may follow her cause. The court did right, at that stage of the trial, and direct her return to them. The mere fact that in accepting her statements on the voir dire for the she entered another State does) not alter her relations purpose of allowing her to be sworn in behalf of the or obligations with her parent or guardian. WhenState against the defendant. It would be a petitio ever the defendant, with the intent set out in tho principii to assume, on a bare allegation, that she was statute, interposed his will or persuasion between her the wife of the defendant, and therefore disqualified and her guardiau's control, so as to overcome her purto be a witness agaiust him, when one of the questions pose and intention to return to her home, the abducat issue was whether there was ever a valid marriage tion is accomplished. Nor can her willingness to come between them. He was undoubtedly a competent to this State with him take away his offense, for by witness, by statute, to prove his defense, and there our statuto he can give no consent, and whenever she was therefore the greater reason why the State should intends to return to her guardian, be may not disuade not be deprived of her testimony. The contrary rule or oppose her. In this sense I understand the words would exclude the most important testimony on the used by the court in Reginu v. Mycock, 12 Cox C. C. part of the State, and leavo the defendant to prove 28, where it is said that a girl who is away from her his own

case without possibility of contradiction, home is still in the custody or possession of her father when they only were present, and artifice, constraint if she has the intention of returning to him. Baron or force was used to extort apparent cousont to mar Bramwell, in Regina v. Olifier, 10 ('ox C. C. 402, says: riage from a miere child by tho overpowering will of a “If finding she has left her home, he (the defendant) man so much older than she. He was forty-seven avails himself of that to induce her to continue away years old.

from her father's custody, in my judgment he is guilty It is only where there has been a valid marriage that if his persuasion operated on her mind so as to induce tho parties are excluded from giving evidence for or her to leave.” Nothing can be plainer in this caso against each other by the common law. Ros. ('rim. than that his persuasion induced her to leave her home Ev. 121; 1 Greenl. Ev., $ 339; Whart. (rim. Ev. 390. It in Astoria and come with him to Jersey City, and has therefore been held in indictments for bigamy, when there, after, as she testifies, he had read to her the after proof of the first marriage, that the second account in the papers of her elopement with him, she woman married is a competent witness against her wished to return to her home, he sought by persuahusband, for the second marriage is void and she is no sion to keep her, and opposed her expressed wishes to wife. To test this competency the woman may be ex go back. The mere fact of her leaving her guardian's amined on the roir dire as to this void marriage. home and coming to this State with the defendant Whart. ('rim. Er., $$ 395-397; 1 East P. C. 469; Seeley might not complete the crime with which he was v. Engell, 13 N. Y. 512.

charged, but when the intent was here mauifested to Courts have even gone further and held that on the seduce or contract matrimony with her by proclaimtrial of an indictment for the forcible abduction and ing her as his wife in the presence of his friends, and marriage of a woman, under the statute prohibiting keeping her a day and night in a sleeping-room at a such marriage, she may be a witness for the crown, hotel, and opposing her wish to returu home, he beand that this is not a case within the general law ex came amenable to the punishment affixed by our law cluding the testimony of a wife against her husband, to this statutory crime. These facts which appear in for she is not legally his wife, a contract of marriage, the case, if found by the jury, would constitute the like any other contract, obtained by force, having no crime of abduction within this State, and there was no obligation in law. Brown's case, Vent. 243; Fulwood's error in the direction of the court. case, ('ro. ('ar. 483; Rex v. Wakefielil, 2 Lewin C. ('.

The judgment is affirmed. 279; 1 Ilalo P. ('. 301; 2 IIawk. P. C., ch. 46, § 18; ? Russ. ('r. 984, (ur statute enacts that every such marriage, as

CONTRACT-RIGHIT OF OVE VOT PARTY TO. therein described, of any woman child within the age of fifteen years shall be void if the man contract mat

NEW JERSEY SUPREME COURT. rimony with her without the consent of her father,

FEBRUARY TERM, 1881. mother, or guardian. In any view that may be taken of the alleged contract of marriage and the acts at

MARVIN SAFE ('0. v. WARD. * tending and following it, it is evident that there are

The general rule is that one who is not a party to a contract some facts to which she must necessarily testify to

cannot sue in respect of a breach of duty arising out of prevent this statute, intended for the protection of

the contract. There is a class of cases in which a person parents and their young female children, from becom

performing services or doing work under a contract may ing useless. The court were right in admitting

be held in damages for injuries to third persons, occasthe girl's testimony, and leaving its credibility to the

ioned by negligence or misconduct in the execution of the jury.

contract; but these are cases where the duty or liability The second point of exception that was argued by

arises independent of the contract, and in such cases the counsel was that the court charged in effect, among

plaintiff must count upon a wrongful act or negliother things, that if the jury found that the de

gence fendant brought tho girl to Jersey (ity, and there de

*S. C., 46 N. J. Law, 19.


demurrer to plea. The opinion states the case. and they provided the meaus of securing the comple

tion of the work within the stipulated time by a per T. N. McCarter, for plaintiff.

diem deduction from the contract price.

The plaintiff's case, as it relates to each and all of the John Linn, for defendants.

defendants, is restricted to the cause of action arising DEPUE, J. The principal defendants, the boards of from the alleged unsafe condition of the temporary chosen freeholders of the counties of Essex and Hud- bridge. son, became entitled to the property and franchises of The declaration commences with an allegation of the “The Proprietors of the Bridges over the Rivers Pas-duty of the board of freeholders of the two counties saic and IIackensack,” under proceedings taken under to keep and maintain the bridge and draw in good an act of the Legislature passed March 14, 1871. repair, so that it would at all times be safe and in good Pamph. L., p. 500. The legislation in relation to those condition for the passage of horses and vehicles, with bridges prior to the act of 1871, is stated in Ripley v. | their loads, over and across said bridge. Chosen Freeholders, 11 Vroom, 45.

The allegations on this head, so far as they relate to The bridge over the Passaic having become unsafe | Ward, are that by his contracts with his co-defendand unfit for use, the boards of chosen freeholders of

ants, he agreed that he would, on or before the 15th the two counties, on the 21st of August, 1881, con day of September, 1881, erect a good, substantial tomtracted with Ward, the other defendant, for the erec porary roadway over said river and the approaches to tion of a new bridge. This contract is under seal, and

the same, according to the specifications to the said in two parts-each board having made a separate con contract annexed-such temporary roadway to remain tract for the same work, identical in terms, and each until the completion of the bridge, and that he, the covenanting to pay a sum which is one-half of the con

said Ward, should be liable for all damages sustained tract price. Each contract provides for a temporary by reason of any defective or improper construction of roadway or bridge, to accommodate the travel whilst said work. It is also averred that by the specifications the permanent bridge was being constructed.

annexed to the contracts and referred to therein and Ward entered upon the performance of the work, made part thereof, it was provided that the said conand constructed a temporary bridge. This tempor tractor should execute the whole work provided for, ary bridge, on the 15th of November, 1881, gave way and that the travel should be accommodated by means wbilst a team of the plaintiff was being driven over it, of a temporary roadway at least twenty feet wide, whereby the plaintiff's team and truck and its load and a draw forty feet opening, that could be easily were precipitated into the river. For the damages worked by one man, and that if more than one man sustained the plaintiff's sued the boards of freehold was required, said Ward, was to furnish another. ers of the two counties, and Ward, the contractor, in The declaration then avers fthat by reason of the one suit in the form of an action on the case. The caso premises it became and was the duty of all the deis bofore the court at this timo on a demurrer to one fendants to construct and cause to be constructed the of the pleas filed by Ward.

said temporary roadway and draw in a good and sufThe contracts between Ward and his co-defendants ficient manner, so as to make it sufficiently strong and stipulato that the work should be commenced on or safe for the passage of horses, wagons, and their loads, before the 15th of September, 1881, and that the per over and across the same. manent bridge should be completed and ready for The breach assigned is, that the defendants did not travel within twenty-nine working days from that construct or cause to be constructed across said river date, with an agreement that $50 shoulıl be deducted the temporary roadway and draw in a good and suffifrom the contract prico for each day the work should cient manner, etc., but did construct said temporary be delayed beyond the specified time; and there are roadway and draw in such a weak, unsafe, improper allegations in the declaration of negligence in the fail- and insecure mamner as to render the same wholly unure to complete the bridge within the time fixed by fit for the accommodation of the public travel. the contract. The stipulation on this subject must be To this declaration Ward filed several pleas, in one laid out of the case in every phase of this litigation; of which he pleaded that he constructed the said temfor the duty to provide bridges suitable and proper for porary roadway and draw in the manner and accordtravel is a public duty, and the general rule is that, ing to the plans and specifications mentioned aud reindependent of a statute, no suit will lie against the ferred to in his said contracts, and according to the public authorities for the recovery of damages occas directions of the said boards of freeholders, and that ioned by the mere non-performance of such a duty- he did not omit any thing required of him by the the remedy being by indictment or mandamus. Rrock terms of the said contracts; so that if the said tomporv. Mayor, etc., of Newark, 4 Vroom, 1:29; Pray v. Jer ary roadway and draw were not sufficient for the pursey City, 3 id. 394, Stew. Dig., tit. “ Bridges,” p. 112, $ pose intended, and for the accommodation of the pub14. The statute (Rev., p. 1017, $ 121) which was before | lic travel, it was not his neglect or default. the court in Lirermore y. Freeholder's, 5 Dutcher, 245; To the latter plea this demurrer was filed. S. (., 2 Vroom, 507, does not apply to the mere omis The declaration sets out in detail the terms of the sion or delay in the completion of the work. It re contract between Ward and his co-defendants. His lates to injuries sustained by travellers, arising from undertakings with them under his contracts are min. the insufficiency or want of repair of a bridge in actual utely and with particularity spread upon the face of use, and leaves intact, in other respects, the general the declaration in the form of avermeuts, which make doctrine of the law that a suit cannot bo maintained his contractual duties the gravamen of the plaintiff's for the omission by public authorities to perform a cause of action against him. Ilis undertakings with public duty. Nor will the act of 1860 (Rev., p. 86, $ 9), his co-defendants are prominently made a premise which was before the court in Ripley v. Freeholders, from which is deduced the duty on his part on the aid the plaintiff in this respect. The engagement of non-performance of which the plaintiffs place their Ward to complote the work within a designated time right to recover of him, in common with the other dewas wholly a matter of contract between him and the fendants, damages for the injury sustained, and his boards of freeholders. If the freeholders saw fit, covenant to make good to his co-defendants damages they might give the contractor further time, or sustained by reason of defective or improper conindulge him in delays in the progress on the struction of the work appears among the averments work, without subjecting him to liability for which load to the duty counted upon. The allegation the inconvenience suffered by individuals, and of a duty will not sustaiu or aid a pleading. It is an

allegation of a mere matter of law, and is not tra No injustice can arise from the application of the versable; the sufficiency of the pleading must be deter principle adjudged in Winterbottom v. Iright; for if mined upon the facts from which the legal duty is de the work contracted for be such as that a duty exists duced. Seymour v. Muddox, 16 Q. B. 3:26. It is plain toward third persons with respect to it, the party who upon the face of the declaration that the obligations contracts to bave the work done will be liable for of this defendant to his co-defendants, arising from damages arising from a breach of the duty, although the terms of his contract with them, are made the the injury arose from the fault of the person with foundation of the plaintiff's cause of action against whom ho contracted. Hole v. S. & S. R. Co., 6 H. & him.

N. 488. And he will have remedy over against tho The general rule of law is, that one who is not a wrong-doer, either under his express contract to pay party to a contract, cannot sue in respect of a breach damages, or under a contract to that effect which the of duty arising out of the contract. Alton v. Ilidland law will imply. Inhabitants of Woburn v. llenshaw, R. Co, 19 C. B. (N. S.) 213. The leading case on this 101 Mass. 193; Chicago v. Robbins, 2 Black, 418; S. ('., 4 subject is Langridge v. Levy, 2 M. & W. 519;S. C., 4 id. Wall. 657; ('ity of Brooklyn v. Brooklyn City R. Co., 47 337. There a stranger to the contract was allowed to N. Y. 475, 481. sue, but the decision was expressly placed upon the

There is a class of cases in which a person performground of fraud. This case was succeeded in point of ing service or doing work under a contract may be time by Winterbottom v. Wright, 10 M. & W. 109. In held in damages for injuries to third persons, occasthat case A. contracted with the postmaster-general to sioned by negligence or misconduct comected with provide a mail-coach to convey the mail-bags along a the execution of the contract; but these are casos certain line; and B. contracted to horse the coach where the duty or liability arises independent of the along the same line. B. hired C. to drive the coach. contract. Thus a servant carried as a passenger under It was held that C. could not maintain an action a contract to carry, made with his master who puragainst A. for an injury sustained by him while driv chased the ticket, may sue the carrier for personal ining the coach, by its breaking down froin a defect in juries, or for the loss of his luggage through the negliits construction. The ground of decision was that the gence of the carrier. Here the carrier's liability does defendant's duty with respect to the sufficiency of the not depend upon the contract; the fact that the sercoach arose from his contract; and there being no vant is a passenger casts a duty on the carrier to carry privity of contract between him and the plaintiff, he him and his luggage safely. The may sue in case for he was under no obligation to the plaintiff on which a breach of that duty, but he could not suo upon the the latter could sue. Winterbottom v. Wright has been contract. Marshall v. Work R. Co.,11 C. B. 655 ; 1918followed with constant approval in a series of decis tin v. G. I. P. R. Co., L. R., 3 Exch. 9; Whart. Veg., ions in the English courts. Longmeil v. Ilolliday, (; $ 139; Dicey Parties 18. Dulyell v. Tyror, E., B. & E. Exch. 761; Blulemore v. B. & E. R. Co., & E. & B. 899, which is sometimes cited as being in conflict with 10:35, 1049; Reedie v. Railroad Company, 4 Exch. 24-4; Winterbottom v. Wright, belongs to the class of cases Allen v. Midland R. Co., supra; Collis v. Selden, L. R., just mentioned. So also to quote the language of 3 C. P. 495; Whart. Neg., $$ 430, 440. Its stauding as Parke, B., "if a mason contracts to erect a bridge or an authority was not impaired by the decision of the other work in a public road, which he construcis, but ('ourt of Appeals in Heaven v. Pender, 9 Q. B. Div. not according to contract, and the defects of which 503. This court and the Court of Errors, substanti are a nuisance to the highway, he may be responsible ally adopted the doctrine of Winterbottom v. Il right, for it to a third person who is injured by the defectivo by holding that no duty to a third person could arise construction, and he cannot be saved from the conout of of a contract to which he was a stranger. (uf sequences of his illegal act by showing that he was v. N. & N. Y. R. Co., 6 Vroom, 17, 574.

also guilty of a breach of contract and responsible for Tho reason on which this doctrine rests is obvious.

Longmeid v. Holliday, 6 Excl. 767. In cases of Tho object of the parties in inserting in their contract this description the wrong done and the liability for specific undertakings with respect to the work to be it are independent of the contract, and that liability done is to create obligations and duties inter sese. is not taken away by the mere fact of the existence of These engagements and undertakings must necessa a contract between the wrong-doer and some third parrily be subject to modifications and waiver by the con

But it is unnecessary to pursue this subject tracting parties. If third persons can acquire a right further, or at this time to examine into the bounds or in the contract in the nature of a duty to have it per applicability of this doctrine to the situation of these formed as contracted for, the parties will be deprived parties. That question is not now before the court. of control over their own contract—the employer will The plaintiff's declaration sets out the terms of the hare taken from him the power to direct how the work contract between the contractor and his co-defendants shall be done, and the employoe may find himself and relies upon it, and the plea demurred to is subunder responsibilities to third parties which do 100 stantially an averment of performance of the contract exist between him and his employer. Tho inconten as between the contracting parties. ience which would arise from allowing a third person Vor will the fact that the defendant's contract reto have such an interest in a contract to which he was lated to a structure for public use alter the position not a party is referred to by Lord Abinger in Winter of this case. Two New York cases were cited on this boltom v. Wright. IIo said: “The plaintiff in this head- Robinson r. (hamberlain,:31 N. 1.399, and John. caso could not have brought an action on the contract; son v. Belden, 17 id. 130. In those cases the court held if he could have done so, what would have been his that individuals who in pursuance of a statute consituation supposing the postmaster-general had re tracted with the State to keep the canals in repair leased the defendant? tbat would at all events have were liable in damages for injuries to a canal boat defeated his claim altogether. By permitting this ac caused by the want of repair of a lock. The liability tion (which was an action on the case for negligence), was put upon the ground that the contractors were we should be working this injustice, that after the de public oflicers, and that the contract to repair created fendant had done very thing to the satisfaction of a duty analogous to that which might arise from an bis employer, and after all matters between them had obligation to repair by prescription ratione tenure, or been adjusted, and all accounts settled on the footing by act of Parliament. The reasoning of these cases of their contract, we should subject them to bo ripped does not apply to the case in hand. The statute on open by this action of tort being brought against this subject is explicit. It lays the duty of making him."

and repairing bridges upon the boards of chosen froe



agents are informed, is not liable in an action of deceit to the purchaser in a case where there have been untrue representations made by its agent as to the quality of the article and its fitness for the particular purpose to which it is to be applied, unless such representations are made by said agent knowing them to be false. Where there is no such knowledge there may be an action on an implied warranty, but there can be no action of deceit.

ERROR to the Common Pleas No. 1 of Philadelphia

holders, and imposes upon them liability for the insufficiency or want of repair. The power to plan the structure of a bridge, to contract for building it, and specify the materials and workmanship is implied. Such a contract creates the ordinary relation of employer and employee. It does not put off from the board of chosen freeholders the duty and responsibility which the statute fixes upon them; nor does it create any duty or liability on the part of the other contracting party, except such as arises inter sese from the terms of the contract.

The defendant, by his plea, exonerates himself from all blame. IIe repels the imputation of personal neg. ligence on his part, and avers that if the temporary roadway and draw were not adequate for the purpose intended, the inadequacy was not due to any neglect or fault on his part. The criticism on this plea is that it does not aver that the temporary bridge was a good and substantial roadway. If this criticism be well founded, then the contractor for a railroad bridge will be responsible to passengers injured, for defects in the bridge due to imperfections in the architect's plans; and the coutractor for the Brooklyn bridge woulu be under a responsibility for the insecurity of the structure occasioned by defects in the plans of the engineer. The answer to this criticism is that the defendant was under no obligation to make the temporary roadway a good and substantial structure, except under the terms of his contract, and that if he was in no personal default, he cannot be held for the injuries sustained.

In lIyums v. Webster, L. R., 2 Q. B. 261, the defendant, under a contract with the metropolitan board, opened a public highway for the purpose of constructing a sewer. Three or four months after the work way finished, damago ensued from plaintiff's horse stumbling in a hole in the road. The filling in of the road had been properly done by the defendant, and the hole was owing to the natural subsidence of the materials, which sometimes takes place sooner or later after such an excavation. The jury negatived negligence in the filling in. The court held that tho obligation of the defendant as between him and the public ceased as soon as he had properly reinstated the road. and that it was the duty of the authorities to look after the subsequent repairs, whether rendered necessary by subsidence or ordinary wear and tear; and that there being no personal negligence in the defendant, he was not liable. This judgment was atfirmed on appeal. L. R., 4 Q. B. 138.

Tho plea demurred to is a completo answer to the gravamen of the plaintiff's cause of action as set out in his declaration; and we also think that the declaration being founded on the contracts between the defendants, is not in proper forin as against the defendant.

If he is liable for the injury complained of, it must be upon the ground of some wrongful act or vegligence--a tort as distinguished from a mere breach of contract; and the declaration does not contain the necessary averments to charge a tortions act. Precedents appropriate to such a case will be found in Ilyums v. Webster, supra, and in Gray v. Pullen, 5 B. & S. 970.

On either ground there must be judgment against the plaintiffs on this demurrer.

. Case by P. M. Barber & Co. against the Erie City Iron Works to recover damages for the destruction of the plaintiffs' mill by the explosion of a boiler, which was alleged to have been defectively constructed by defendants. Plea, not guilty.

Richard C. McAfurtrie and Nathan Sharpless, for plaintiffs in error.

Richard P. Thite and George H. Earle, Jr., for defendant in error.

TRUNKEY, J. In case of finding for the plaintiffs the jury were instructed to assess the damages in two parts: (1) All damages exclusive of the rental value of the mill during the necessary time for making repairs, and (2) the rental value for such time; the court reserving the point whether the plaintiffs were entitled to recover rental value for the time required to repair the injury. Hlad the mill been entirely destroyed its value would have been compensation. If worth repairing, how can compensation be made without allowance for the time it was necessarily idle? In determining the difference between the market value of the mill just before and just after the injury, it would be as proper to consider the time required to make the repairs as the other things in the expense of making them. The witness who testified respecting the rent may not have been well qualified to estimate its value, but he had some knowledge of the subject, and the testimony was sufficient for submission. The first and second assignments of error, treated as good in form under the rules, cannot be sustained.

Nor are the last six assignments well taken. The judgment is on the verdict, not for the defendant, notwithstanding the verdict. Hence if the jury were rightly instructed relative to the damages, it is inimaterial whether the points of law were properly served. None of the instructions respecting damages is assigned as erroneous. It is clear that the jury found damages, exclusive of rent, $7,038, and for rent, $1,000; in all, $8,038. If not strictly correct in form, the act of March 11, 1872 (P. L. 25), provides tbat a verdict shall not bo set aside for “defectiveness or indefiniteness in form.” Following the instruction, the jury found one itom of the damages separately, and the result is the same as if they had merely found the total sum for which judgment was rendered. The court charged that as only $500 was paid by the plaintiffs on the purchase-money of the boiler, damage for the boiler must be limited to that sum; and reserved the point of law whether the sum paid on the boiler should be included in the damages. There was no direction to find separately as to this, and the instruction was right. IIad the court struck off $500 from the verdict, the plaintiff could raise the question whether the point was well reserved.

The president of the company testified that Shearman was their sales agent under a verbal arrangement except what might have been embraced in correspond. ence; that with their knowledge he held himself out as their agent; that he received the goods at a fixed price, and mado what he ovuld above that for his remuneration, and that the goods belonged to the company until sold. This is the pith of the abundant testimony of Shearmau's agency; and if there was some




ERIE (ITY IRON WORKS V. BARBER. A corporation manufacturing and selling an article to be ap

plied to a particular purpose, of which its officers and

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