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ploded by any other means than by a fuse, and appreciated their dangerous character, were questions of fact to be determined from the evidence. They cannot on this evidence be determined by the court as a matter of law. Considering all of the evidence bearing upon the subject, it is capable of the inference that he knew that dynamite caps were dangerous, but did not know, or at least did not appreciate, the extent of their dangerous character. The evidence is capable of the reasonable inference that he did not know that they could be exploded by concussion or in an accidental manner without the aid of a fuse.

"It is equally clear that the act of appellant's mother was not an independent, intervening, efficient cause. In considering the motion for a nonsuit, we must assume that she told the truth. She testified in substance that when she took the playthings from the boy's pocket she noticed the cap, and at first thought it was a ferule from a pencil, but concluded it was too small; that she noticed the cap, because it was bright and new and something out of the ordinary; that she had never seen a dynamite cap prior to that time, and carelessly laid it on the desk with the other things, 'not dreaming of its being a dynamite cap.'

"The respondent's primary negligence, which we have seen was a question for the jury, consisted in abandoining this cap in such manner that it was likely to fall into irresponsible hands, thus setting in motion a chain of causation from which might have been reasonably anticipated just such an injury as actually resulted. To say that this chain was broken as a matter of law, by the unwitting failure of the mother to interrupt it, is to lose the logical perspective and take a distorted view of the relative importance of the incidents. It would be to eclipse the duty of one who knows of the dangerous character of an agency to control it, by magnifying the innocent failure of another to imagine a danger of which she had no knowledge into a positive duty to know and avoid it. It would be to miss entirely the basic principle of the exercise of reasonable care, which measures the duty by the magnitude of the danger reasonably to be anticipated by one possessed of the knowledge necessary to foresee it."

Authorities from other jurisdictions are cited which tend to support the present decision, and it is laid down that courts "should not look too narrowly for independent intervening causes where the negligence is in the use or care of extremely dangerous agencies and the disastrous results of such negligence might reasonably be anticipated. "'14

MISTAKE AS TO PERSON CONTRACTING.-The three cases where mistake prevents the formation of an agreement are said to be first where it is regarding the nature of the transaction, second where it is concerning the person with whom it is made, and third, where it is concerning the subject matter of the proposed agreement.15 A recent application of the second of these cases is found in the decision of the Court of Appeals of Maryland, that a buyer who in ordering goods from the agent of the seller, an individual trading in a company name in another State, is misled by such agent,

14 Mathis v. Granger Brick Co., 143 P. 3.

15 Lawson Contr. § 209 et seq.

on inquiry, to believe the seller is a company or corporation extensively engaged in manufacturing the goods which, however, the seller only bought and sold, must be held to have intended to contract with the alleged corporation, and hence is not bound.16 The Court says: "In the case at bar the Sisters who represented the defendant never knew or heard of Reuben R. Kusnitt, but thought they were contracting with and intended to contract with a company or corporation engaged in manufacturing goods of the kind. they ordered. They had in view a definite person with whom they intended to contract; and, as there was no such person or company, there was no contract. This is not the case of dealing with an agent, supposing him to be acting for himself. Holstein represented that he was acting for a company or corporation which in fact did not exist. ''17 The well-known English and American cases of Boulton v. Jones and Boston Ice Co. v. Potter1s are illustrations of the rule.

NEW TRIALS FOR NEWLY DISCOVERED EVIDENCE.-It has been well said that it is a matter of absolute necessity, that courts should not incline toward granting motions for new trials on the ground of newly discovered evidence, for if the issues could be fought out afresh whenever new evidence of an unimportant character or what is merely cumulative is discovered, there never would be an end of litigation. The authorities show that it is not sufficient that the new evidence, had it been offered on the trial, might have changed the verdict. According to the weight of authority, it must be sufficiently important to make it probable that a different verdict will be returned on another trial. According to some authorities, the evidence must be of a decisive or conclusive character, or such as to render a different result reasonably, certain.

In Allen v. Pearson,19 the Supreme Court of Errors of Connecticut illustrates the reluctance of the Court to grant a new trial if the newly discovered evidence is plainly or even substantially cumulative. A verdict had been recovered by a man against a woman for damages sustained by him while he was riding a motorcycle through collision with her automobile. It appeared that the plaintiff at the time of the collision had room to turn to the right and thus probably avoid it and that he was looking down at his engine while riding. A new trial was sought upon the ground of newly discovered evidence, the substance of which was that plaintiff shortly before the accident, was seen upon another street some distance from the place of the accident in an intoxicated condition, that he

16 School Sisters of Notre Dame, 93 A. 928.

17 2 H. & N. 564.

18 123 Mass. 28.
19 94 Atl. 277.

was then riding his motor cycle in an unsteady way, that he dismounted in the street, and walked with the motor cycle to the curb, and left it at the curb about halfway between two saloons. This, according to the witness now discovered was from one quarter to one-half hour before the injury. No want of diligence could be urged against the appellant as she did not know of the witness at the time of the trial. But the Court held that though operating a motorcycle in the highway while intoxicated was a statutory offense, and though the statute imposes a penalty for such violation, yet it does not provide that the violation shall prevent a recovery of damages for injuries inflicted upon the offender by a third person where the violation of the statute was not a cause of such injuries. A jury had already decided that the plaintiff was not guilty of contributory negligence. Evidence of his intoxication. would have been merely cumulative, that is corroborative of the defendant's contention that plaintiff was "bending forward or lying down on his machine." As the jury's finding might have been that notwithstanding such circumstances he was not negligent, a new trial was denied.

MAGNA CHARTA.-The 15th June last was the seventh centenary of the sealing of Magna Charta. Although the Great Charter bears that date, the exact date is, owing to alterations in the calendar, not quite accurately represented by our modern date of the 15th June, and, moreover, Magna Charta was the outcome of a conference which lasted from the 14th to the 19th June, and which resulted in articles from which the charter was subsequently settled.

It is the fashion in our days to treat Magna Charta with some flippancy, because the great changes which 700 years have produced in our politics, law and social conditions render it now of no direct value. Nevertheless, quite apart from its great interest, it is the root of many of our most cherished liberties and important institutions.

Before considering any of the provisions of Magna Charta in detail, it is as well first to get free from a few modern notions and note some of the events which led up to the grant of the charter.

There was at that time, strictly speaking, no Legislature to "introduce" changes in the law. There was a mass of customs by which right dealing as between subject and subject and subject and King was assured. The Legislature, the executive and the Courts of Justice were all, roughly speaking one body-the King and his Council. The various functions were as yet barely separated, and the power of this body was absolute except in so far as powerful subjects by rebellion, or the Church by excommunication, could make things unpleasant for them. Even the power to cut off supplies as a means of bringing pressure to bear did not yet exist. There is certainly a provision in Magna Charta to the effect that no scutage or aid (i. e., two feudal taxes) should be levied without the consent of the common council, but that is somewhat analogous to saying today that there shall be no super-tax imposed except by permission of a committee of the House of Lords. There was nothing approaching popular representation until 1246, when the rebel Simon de Montfort summoned his citizens from each city and two burgesses from each burrough to attend the national council, and it may be supposed that the citizens and burgesses summoned were men of considerable importance and wealth.

As regards the rest of the community, there were still villeins attached to the soil of a particular manor or to a particular lord-villeins "in gross" and villeins "regardant." Magna Charta says that a villein was only to be amerced (i. e., fined) “saving his wainage"-i. e., saving his cart or waggon-and a liberal interpretation of this provision might read that, however heavy a fine was imposed, the tools of the trade of the unfortunate man were not to be touched. Lord Coke, however, writing about 400 years later, says that the object of the provision was to insure that the lord might obtain his proper work from the villein, whose work, such as carting manure, could only properly be done with a waggon, and that if the waggon had been seized by the villein would have had to cart the manure on his back. It would seem that the villein's lot "was not a happy one." Magna Charta is, therefore, merely a statement of miscel laneous customs which are expressed in brief and elliptical language which it is not easy even for the legal historian to comprehend today. In the events which led up to the granting of the charter, John's sins had played a great part. They were many. Amongst other things, he had broken the laws and had inflicted private injuries upon his subjects (for instance, he is said to have had designs against the wife of one of the barons-Eustace de Vesci); he had angered the Church, a powerful body in those days, owning one-third of the possessions of the realm; and, above all, he had twice ceded the kingdom to the Pope. The first charter by which this last act was done is worth quoting: "Therefore, not by the violence of command, neither by the compulsion of fear, but of our voluntary act as conferred of in the common council of our barons (sic), we have freely given unto God and his Holy Apostles Peter and Paul and our Mother, the Holy Church of Rome, and our Lord Pope Innocent, with his catholic successors, the whole kingdom of England and the whole kingdom of Ireland, with all the rights and extents of them, for the remission of all our sins and all those of our ancestors, as well for the living as for the dead and therefore, henceforth, from him and the Church of Rome, we do, as it were secondarily, receive and hold them, in the presence of the learned Pandulphus, our Lord the Pope's sub-deacon and familiar friend." The was in 1212. In 1214 John, in order to sanctify his person and protect his property from attack, “took upon him the cross" and vowed an expedition to the Holy Land-i. e., declared a crusade. This noble act failing to appease his subjects. John sent letters to the Pope to ask his intercession, and the Pope sent back letters to the barons urging them to make their request with reverence. These letters, however, did not reach the barons until after Easter, at which date the King had promised an answer to their demands. No answer being forthcoming, the barons assembled at Stamford in Lincolnshire and marched to Brackley in Northamptonshire, the King being at that time at Oxford. On the 5th May the barons assembled at Wallingford, disclaimed all allegiance to the King, and were absolved from their oath of fealty by a canon of Durham. They then carried out their threat of attacking the King's castles, some of which they seized, and they took possession of London by private agreement with the citizens. The King was at Odiham in Hampshire with only seven lords supporting him. The result was a conference which ended in the signing of Magna Charta (or, rather, articles from which Magna Charta was subsequently drafted) on the 15th June at Runemede, near Staines.

The charter contains sixty-three short clauses, dealing with subjects of all kinds. The following are a few of its provisions: The Church shall be free; a debt to a Jew is to pay no interest while the heir is under age; the Court of Common Pleas is to be held at a fixed place; weirs are to be removed from the Thames and Medway (i. e., because they interfere with free fishing); no justiciaries shall be made except of such as know the

law of the land; weights and measures are to be standardized; all foreign knights, crossbowmen and stipendiary soldiers (i. e., foreign mercenary troops) are to be removed after the conclusion of peace; merchants are to have free entry and departure from the kingdom, and in time of war foreign merchants are to be detained and treated in accordance with the treatment given to our merchants. Some of the most important clauses deal with feudal rights. The principle of inheritance of land was by no means fully settled, and it was usual for the heir to pay a fine (called a relief) upon inheriting his ancestor's land; the lord had charge of infant heirs and their lands (which afforded an excellent means of profit to the lord); the lord could dispose of an infant heir in marriage; license from the lord to marry was necessary in the case of a female tenant; a widow was sometimes compelled to marry again in order that the lord might get the fine which he could claim upon the marriage of a female tenant. All these points and others were dealt with. Clauses 38, 39 and 40 may be summarized by saying that they insure to every free man the free course of justice by the legal judgment of his peers or the law of the land. "Peer" originally meant tenant to the same lord. There was no jury system as at present known, but if the accused swore to his own innocence and was able to get eleven neighbors to support him by their oaths, he was acquitted. There were clauses remitting the harshness of the Forest Laws against hunting. As security for keeping the charter, the barons were to elect twenty-five of their number, who were to cause it provisions to be kept, and, if any person should complain to any four of them, these four might petition the King for redress, and, if redress was not obtained, the twenty-five barons "with the whole community" might "distress and harass" the King "by all ways in which they are able, by taking our castles and any other means," saving harmless the person of the King and Queen and their children, until redress was obtained. In fact, as further security, the barons took possession of the Tower and the City of London.

The granting of the Great Charter was a sore blow to King John. Holinshed describes the effect upon the King in the following words: "The King was right sorrowful in his heart, cursed his mother that bare him, the house that he was borne, and the paps that gave him sucke, wishing that he had received death by violence of sword or knife instead of natural nourishment; he whetted his teeth, he did bite now on one staff and now on another as he walked and oft broke the same in pieces when he had done, and with such disordered behavior and furious gestures he uttered his grief." King John died not long after at Newark.20

SOME RECENT AUTOMOBILE LAW.-In Quackenbush v. Ford Motor Co..21 lately decided by the Supreme Court of New York, it was decided that an automobile manufacturer who constructs an automobile hand brake of inferior materials, and who improperly assembles the parts of the car, is liable to a purchaser of the car from one who had purchased it from the manufacturer, for injuries to the car caused by the defective equipment and negligent assembling. The decision confirms the ruling of the same court in an earlier case holding that "an automobile manufacturer owes a duty to all purchasers of its machines to make a reasonable inspection and

20 139 L. T. 361 (Eng).

21 153 N. Y. S. 131.

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