tiff could not be entitled to recover; that, if the of ordinary care and caution, the misfortune negligence or default of the plaintiff was in any could not have happened, nor if the defendant degree the proximate cause of the damage, he might, by the exercise of care on his part, have could not recover, however great may have avoided the consequences of the neglect or carebeen the negligence of the defendant; but that, lessness of the plaintiff." A reasonable conif negligence of the plaintiff was only remotely struction of these paragraphs would apply the connected with the accident, then the question concluding member of the last sentence to the was whether the defendant might not, by the introductory words of the same sentence, and exercise of ordinary care, have avoided it." In not extend it so that it should qualify all that the common pleas, Lord Chief Justice Cockburn is contained in the preceding sentences, essaid: "I think the direction was right, and pecially in view of the prior decisions, and of that the true question in these cases is whether, the charge of the trial judge, which was apthe damage having been occasioned by the proved. But in Radley v. London & N. W. R. negligence of the defendant, the negligence of Co. L. R. 1 App. Cas. 754-759, Lord Penzance the plaintiff directly contributed to it. used the following language: The first The way in which it was put on the part of the proposition is a general one, to this effect: That defendant was this: That by his own negli- the plaintiff, in an action for negligence, cangence, in omitting to keep any lookout, the not succeed if it is found by the jury that he plaintiff contributed to the accident. If that has himself been guilty of any negligence or had been established to the satisfaction of the want of ordinary care which contributed to jury, the plaintiff's negligence would have been cause the accident. But there is another propdirectly contributory, and the defendant would osition equally well established, and it is a have been entitled to a verdict." Cresswell, qualification upon the first, namely, that though J., quoted with approbation the extract above the plaintiff may have been guilty of negli quoted from Lord Campbell's opinion, in Dowell gence, and although that negligence may in v. General Steam Nav. Co. Williams, J., after fact have contributed to the accident, yet if the citing the same case, said: "The law was there defendant could, in the result, by the exercise laid down, in conformity with several previous of ordinary care and diligence, have avoided decisions, that, if the negligence or default of the mischief which happened, the plaintiff's the plaintiff was in any degree the proximate negligence will not excuse him." The qualifi cause of the damage, he cannot recover, how- cation expressed in the latter opinion, as I have ever great may have been the negligence of the endeavored to show, cannot be considered as defendant, but that if the negligence of the supported by Davies v. Mann; for, as already plaintiff was only remotely connected with the said, the court, in that case, in approving the accident, then the question is whether the de- charge of the trial judge, assumed that the mere fendant might not, by the exercise of ordinary fact that the donkey was on the roadside was care, have avoided it. So far the doctrine of not the immediate cause of the injury. And it the cases is perfectly plain." He added: "I is indisputable that if this qualification be acdissent entirely from the proposition that the cepted literally, as applying in all cases in plaintiff is disentitled to recover if his negli- which the plaintiff's negligence "contributed gence is either proximately or remotely con- to cause the accident," the qualification overnected with the accident; but I feel great diffi- turns the general rule it purports to qualify, culty in dealing with the question whether the and lays upon the defendant liability for an innegligence was proximate or remote, and cer- jury which is the product of the co-operating tainly feel great difficulty in getting rid of that negligence of both parties. Indeed, in such a question of law by leaving it to the jury." In case, the person injured is the favored party; the exchequer chamber, as in the court below, for he may recover his damages of the other the contention of the defendant's counsel was party if the latter, by the exercise of ordinary that whether the plaintiff directly or indirectly care, could have avoided the consequences of contributed to the injury was immaterial; if he the former's negligence. Take the case of a contributed to it by his negligence at all, he collision between two persons driving on the could not recover. In the judgment of affirm- highway, occasioned by the want of ordinary ance this contention was repudiated, and the care by both parties, in which A's wagon is instruction of the trial judge was sustained. In broken, and B's horse killed, and cross suits for the judgment of affirmance in the exchequer damages are brought. In each case the trial chamber, Wrightman, J., laid down the rule judge would be required to charge that the to be that "the proper question for the jury in plaintiff's negligence, although it contributed this case, and, indeed, in all others of the like to cause the accident, would not disentitle him kind, is whether the damage was occasioned to a verdict if the defendant, by exercising orentirely by the negligence or improper conduct dinary care, could have avoided the conse of the defendant, or whether the plaintiff him- quences of the plaintiff's negligence; and the self so far contributed to the misfortune, by result would follow that B would be compelled his own negligence or want of ordinary and to pay the damages done to A's wagon, and common care and caution, that but for such would recover of A the value of his horse. negligence or want of ordinary care and Giving to Radley v. London & N. W. R. Co. caution on his part the misfortune would the construction the language used in the opinnot have happened. In the first case the plain-ion appears to justify, this case was with good tiff would be entitled to recover; in the latter, reason sharply criticised by Mr. Thompson. not, as but for his own fault the misfortune 2 Thomp. Neg. p. 1155, § 7. Mr. Pollock, after would not have happened. Mere negligence a review of Radley v. London & N. W. R. Co., or want of ordinary care or caution would not, in connection with Tuff v. Warman, says: however, disentitle him to recover, unless it "That the true ground of contributory negli were such that, but for that negligence or want | gence being a bar to recovery is that it is a proximate cause of the injury; and negligence | gence of the defendant. If the faulty act of on the plaintiff's part, which is only part of the inducing causes, or," (he adds in a note) "as Mr. Wharton puts it, is not a cause, but a condition, will not disable him." Pollock, Torts, 378, and note w. If this construction be admissible, the law on this subject, in effect, and except in matter of mere verbiage, is brought to the legal rule adopted by the queen's bench in Doncell v. General Steam Nav. Co., and by the common pleas in Tuff v. Warman. In New York, L. E. & W. R. Co. v. Ball, the suit was by a passenger to recover damages for injury received from a collision of another train with the train in which he was a passenger. The plaintiff at the time of the injury was riding in the baggage car. This court held that if the plaintiff's injuries had been received from the fall of trunks negligently placed, or from being struck by trunks negligently thrown in loading or unloading, or from any other causes incident to the use of that compartment as the place for the carriage of baggage, his negligence in taking a place exposed to such risks would have deprived him of any right to enforce liability on the company for its negligence producing injury from such causes, but that his conduct, even if it be considered as contributing to an injury received from extraneous causes, such as a collision, would not debar his recovery of damages for such an injury. 53 N. J. L. 283, 287, 290. This case is an illustration of the distinction between negligence on the part of the plaintiff so remote from the injury sustained as not to be a cause thereof, and negligence proximately contributing to the injury, and in that sense was approved and applied by the court of errors and appeals in Watson v. Camden & A. R. Co. (November term, 1892, N. J.) 26 Atl. Rep. 136. In this state the established rule is that if the plaintiff's negligence contributed to the injury, so that, if he had not been negligent, he would have received no injury from the defendant's negligence, the plaintiff's negligence being proximately a cause of the injury,-be is without redress, unless the defendant's act was a willful trespass, or amounted to an intentional wrong, and in such a case the comparative degree of the negligence of the parties will not be considered. New Jersey Exp. Co. v. Nichols, 33 N. J. L. 435; Pennsylvania R. Co. v. Righter, 42 N. J. L. 180. In the trial of cases of this kind, where it appears that both parties were in fault, the primary consideration is whether the faulty act of the plaintiff was so remote from the injury as not to be regarded, in a legal sense, as a cause of the accident, or whether the injury was proximately due to the plaintiff's negligence, as well as to the negli the plaintiff simply presents the condition under which the injury was received, and was not, in a legal sense, a contributory cause thereof, then the sole question will be whether, under the circumstances, and in the situation in which the injury was received, it was due to the defendant's negligence. But if the plaintiff's negligence proximately—that is, directly-contributed to the injury, it will disentitle him to a recovery, unless the defendant's wrongful act was willful, or amounted to an intentional wrong. A court of law cannot undertake to apportion the damages arising from an injury caused by the co operating negligence of both parties, or to determine the comparative degree of the negligence of each. In the case in band the plaintiffs' counsel put bis case on Davies v. Mann, and especially on Radley v. London & N. W. R. Co., and contended that no matter if there was negligence on the part of the plaintiff, in leaving the instrument on the highway, he was entitled to recover, if the defendant might have avoided the consequences of that negligence by exercising ordinary care. This contention cannot be sustained. Set up in the roadway, the person in charge of the instrument knew that it was liable to injury from passing vehicles, driven with the utmost care. He left the instrument exposed to injury without anyone to look after its safety, or to warn persons of its presence. His negligence was an immediate, concurring, and co-operative cause of the injury, within the rule which debars a plaintiff from recovering damages for the injury sustained. Nor was there any evidence of negligence on the part of the defendant. In Davies v. Mann the defendant's team was being driven "at a smartish pace," without the driver in immediate charge of the team. As construed by Mr. Justice Blackburn in Radley v. London & N. W. R. Co., L. R. 10 Exch. 107, the defendant's negligence was "in driving furiously, and in a way which would have been negligent if there had been no donkey there, because he had every reason to expect that other people would have come there.' The only evidence tending to show carelessness by the defendant was that, at the time of the collision, he was looking at some houses on the side of the street, to see how the slaters in his employ were getting on with the work. He was driving slowly. The street was unobstructed, except by the plaintiff's instrument. The defendant did not see the instrument, and he had no reason to expect to encounter an obstacle of that, or any other, character. On both grounds the nonsuit was proper, and the judgment should be affirmed. REPORT by the Superior Court for Hamp- able to such member in a case of competition shire County, after directing a verdict in favor of plaintiff, for the opinion of the Supreme Judicial Court of an action brought by plaintiff as a stockholder in defendant company to recover his share of a dividend which had been voted by the directors but afterwards withdrawn. Judgment for defendant. The facts sufficiently appear in the opinion. Field, Ch. J., delivered the opinion of the court: between himself and any other creditor, not being a member of the company; but any such sum may be taken into account for the purposes of the final adjustment of the rights of the contributories amongst themselves." Upon these questions, however, we desire to express no opinion. It has been argued that there is no consideration for the promise of a corporation to pay & dividend to its stockholders, but we think that the doctrine of consideration applicable to a simple contract between persons having no fiduciary relations to each other is not applicable It seems to be settled that, when a dividend to such promise. It is the object of a private has been fully declared, the corporation there- business corporation to make money for its by manifests its intention that the amount of stockholders, and, under our laws, it is ordithe dividend should be considered as having narily the duty of the directors, from time to been separated from the other property of the time, to declare dividends out of the net earncorporation, and as having become the indi-ings, if there are any, and it must be left largely vidual property of the stockholders, and that, to the discretion of the directors to determine therefore, when the dividend becomes payable, when and for how much such dividends should according to the terms of the vote declaring it, be declared. The whole property of the coreach stockholder has a right to demand pay-poration is held on a sort of trust for the stockment of the proportional part of the dividend holders, and the directors are, in a general which belongs to his shares of stock, and to sense, the "managers;" and, when a dividend sue the corporation for it, if it is not paid on is declared by the directors, the declaration is demand. In some cases money or other prop- a determination by a body authorized to make it erty equal to the whole amount of the dividend that the amount of the dividend should be declared has been specifically set apart as a taken from the property of the corporation fund appropriated to the payment of the divi- and paid over to the stockholders. The cause dend, and the stockholders have been regarded of action of each stockholder against the coras the cestuis que trustent of this fund, each poration for nonpayment of the dividend does entitled to his share. In other cases the cor- not arise from any actual contract between the poration has credited the stockholders with the corporation and its stockholders, but from the amount of their shares of the dividend, and nature of the organization, and the relation of the stockholders have assented to this, and the the stockholders to the corporation and its amount so credited has been regarded as a debt property. Unless the rights of creditors interof the corporation to the stockholders; or the vene, or the corporation is enjoined from paycorporation has paid to some of the stockholding the dividend, on the ground that the diers their shares of the dividend, and has re-vidend has not been earned, or on some other fused to pay anything to the others, and it has ground, the amount of the dividend, after it been held that the corporation must pay all has been declared and has become payable, is alike. See Beers v. Bridgeport Spring Co. 42 considered as property held by the corporation Conn. 17; State v. Baltimore & O. R. Co. 6 for the use of the stockholders individually, Gill, 363; King v. Paterson & H. R. R. Co. 29 and the stockholders may recover their shares N. J. L. 504; Jermain v. Lake Shore & M. S. as money or property had and received to their R. Co. 91 N. Y. 483; Jackson v. Newark Pl. | use. We have been able to find little or no auRoad Co. 31 N. J. L. 277; Wheeler v. North- thority on the precise question involved in western Sleigh Co. 39 Fed. Rep. 347; Hopper this case, viz., whether, after a dividend has v. Sage, 112 N. Y. 530. When a dividend has been duly declared by a vote of the directors. been declared payable at a definite future time, but payable at a future time, the vote can be but no fund has been set apart for the pay ment rescinded at a subsequent meeting of the diof the dividend, and the corporation mean- rectors, held before the time at which the divwhile becomes insolvent, whether the stock-idend becomes payable according to the vote, holders, to the extent of their proportions of when the fact that a dividend has been dethe dividend, should share ratably with the clared has not been made public, or in any creditors of the corporation in its property, manner communicated to the stockholders, has not, so far as we know, been recently con- and when no fund has been set apart for sidered, but the decision in Lowene v. Ameri- the payment of the dividend. On principle, can Ins. Co., 6 Paige, 482, 3 L. ed. 1071, is we do not see why the directors may not rethat they should. The setting apart of a fund scind such a vote, under the circumstances to pay a dividend has been held to give a lien stated. By the vote no specific property passed upon it to the stockholders, which they can en- to the stockholders. If the vote be regarded force to the exclusion of the general creditors as a declaration of trust in favor of the stockof the corporation. Re La Blanc, 14 Hun, 8, holders, it could be revoked before it was com75 N. Y. 598; Le Roy v. Globe Ins. Co. 2 Edw.municated to them or any property was identiCh. 656, 6 L. ed. 540. The English Compa- fied and set aside for them. Indeed, cases nies' Act 1862 (25 and 26 Vict. 89, § 38, cl. 7) may easily be supposed of such a change in provides that "no sum due to any member of the affairs of a corporation, between the time a company in his character of a member, by when a dividend is declared and the time when way of dividends, profits, or otherwise, shall it becomes payable, as to make the exercise of be deemed to be a debt of the company, pay-such a power by the directors useful, if not necessary, for the successful continuance of the business of the corporation. It appears in the present case that the meeting of the new directors at which the vote was rescinded was held after the annual meeting of the stockholders, but on the same day as the meeting of the directors at which the vote was passed, which was held just before the meeting of the stockholders; and that at a meeting of the stockholders "the president did not, as had for many years been the custom, announce that any dividend had been declared, or promulgate the same to the stockholders;" and it does not appear that any of the stockholders, except the directors, knew of the original vote, or that any of the stockholders had made any contracts, incurred any liability, or done anything relying on the vote. It also appears that no FLORIDA B. G. LOCKETT et al., Appts., v. W. G. ROBINSON, Assignee, etc. (........Fla.........) fund was distinctly set apart for the payment SUPREME COURT. Statement by Young, Circuit Judge :* In this case a bill was filed on the 16th of May, 1885, by appellants against the appellee, and its material allegations are, in substance, as follows: That H. P. Robinson and Charles F. Robinson were copartners under the firm *1. Where a lien upon land for im- name of H. P. Robinson & Bro. That they were the owners of a certain lot in Ocala, and provements is claimed, under chapter 1632, as amended by chapter 3042, Laws of Florida, in May, 1884, commenced the erection, on said and the property on which the lien is claimed is lot, of a brick building for business purposes. conveyed to an assignee for the benefit of credit- That complainants were dealers in brick and ors, and then, under an agreement between the building material, and contracted with said H. assignee and the claimant of the lien, the prop- P. Robinson & Bro. to deliver, and did from erty is sold by the assignee and the funds de- time to time during the progress of the erecrived from the sale are, by the terms of the tion of said building furnish a large amount agreement, deposited in bank to await the ad- of brick which were used in the erection and judication of the rights of the claimant of the construction of said building, and were neceshen, a court of equity will entertain jurisdic-sary therefor. That when said building was tion of a bill to determine the validity of the lien and reach the funds. nearly finished, but before the entire completion thereof, the said Robinson & Bro. did, on the 22d day of July, 1884, make an assignment for the benefit of their creditors, to the defendant W. G. Robinson, by which assignment they conveyed the said lot and unfinished building to defendant. That on the 25th day of July, 1885, the complainants filed a notice of their intention to hold a lien on said property, in accordance with the statute. That in November, 1884, the defendant brought a suit against the complainants and others to enjoin the enforcement of their lien upon said building and lot. That in said suit a consent dedefendant herein, was to sell the said lot and cree was made, by which the said assignee, building, and deposit the proceeds of such sale in the bank of Ocala; such proceeds to be in lieu of said lot and building, and to be held to abide the adjudication of defendants' lien. That said building and lot sold for $10,000, and the money was deposited as agreed. That the sum of $1,401.50 remains due and unpaid to complainants for said brick furnished, and for which they claim a lien. An itemized account of the brick furnished is attached to the bill as an exhibit, and also a certified copy of the notice of lien filed in the clerk's office. The prayer of the bill is, that complainants *Judge Young, of the fourth circuit, sat in the place of Mr. Justice Taylor, who was disqualified. may be decreed to have a lien upon the said funds so deposited in bank, and that the amount due them for material furnished, as stated, with interest thereon, may be decreed to be paid to them out of said fund. a bill to enjoin them from enforcing their lien on the building and lot on which it was claimed. Thereupon, by consent of all parties, the lot was sold under an agreement that the proceeds were to be in lieu of the lot, and were to be placed in bank to abide the adjudication of complainants' rights. Thus by the agreement of the parties under which the lot was sold, the defendant holding as assignee, the remedy given by the statute could not give adequate relief. By the agreement the complainants could no longer subject the lot to a satisfaction of their claim, and the proceeds derived from the sale could not be reached directly, except in equity. It is not sufficient that there is a remedy at law; it must be as complete and beneficial as the relief in equity. ren-Hodges v. Kowing, 58 Conn. 12, 7 L. R. A. 87. The demurrer for want of equity, and on the ground of adequate remedy at law, was not well taken. The defendant appeared and demurred to the bill upon the following grounds: (1) Want of equity; (2) that H. P. Robinson & Bro. were not made parties to the bill; (3) the bill does not allege that the assignee had notice of complainants' lien prior to the execution of the assignment; (4) the bill does not allege the invalidity of the assignment; (5) that complainants have an adequate remedy at law; (6) that notice of the lien was not filed till after the execution of the assignment and notice thereof to complainants. On February 19, 1886, the circuit court dered a decree sustaining the demurrer and dismissing the bill. Complainants appealed and assign as error the decree sustaining the demurrer and dismissing their bill. Mr. R. L. Anderson for appellants. The first question to be determined in this case is whether or not the demurrer for want of equity, and on the ground of adequate remedy at law, was well taken. Where a statute gives a lien and does not give an adequate remedy, or where, owing to the peculiar circumstances of the case, the remedy given by the statute cannot furnish relief, the party claiming the lien may go into equity for relief. Thrasher v. Doig, 18 Fla. 809; Davis v. Alvord, 94 U. S. 545, 24 L. ed. 283. In the case at bar the complainants claimed to have a lien under chapter 1632, as amended by chapter 3042, Laws of Florida, and defendant filed An assignee for the benefit of creditors bas no higher or better title than his grantor. He can have no greater rights in the property than his assignor. The assignee is bound where his assignor would be bound. Campbell Print. Press & Mfg. Co. v. Walker, 22 Fla. 412; Einstein v. Shouse, 24 Fla. 490. If the notice of the lien was filed within the time and in the manner prescribed by the statute, the lien is good as against the assignee, though he had no notice of complainants' rights until after the execution and delivery of the assignment. The fact that the assignment is valid does not alter the case. No relief being prayed against H. P. Robinson and Charles F. Robinson, they were not necessary parties to the bill. The decree of the Circuit Court is reversed, and the cause remanded for further proceedings in accordance with this opinion. court: 2. Damages to a building caused by the The appellant, as plaintiff in the superior sliding of the ground under it on removal court, brought this action against the city of the lateral support by grading a street may of Seattle to recover damages from the municbe included in the damages recoverable for slid-ipality for so negligently excavating certain streets abutting upon his premises as to cause the hillside, of which his premises formed a part, to bodily slide down into the streets, wrongfully removing such support, if the ings. (Hoyt, J., dissents.) court that we shall make no attempt to add any. thing to the subject by way of annotation. NOTE.-The highly important question as to the | in the prevailing and dissenting opinions of the liability of a municipality for removing the lateral support of an abutting lot by cutting down the grade of a street is discussed with such fullness |