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In an action against a railroad company, to recover damages for juries sustained by the paintiff in consequence of the defendant's gligence, the question of negligence or the want of ordinary care is one of fact for the consideration of the jury. The most that the court can do in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgmen* and discretion of the jury the work of comparing the acts and con dact of the parties concerned, with what would be the natural and ordinary course of prudent men under similar circumstances: Id.

In an action against a railroad company to recover damages for i juries sustained by the plaintiff in attempting to pass between tre cars of the defendant while the train was being made up on tae street, a prayer which asked the court to instruct the jury that the plaintiff could not recover, if they believed that the defendant left open spaces between the cars at all the regular crossings of the street, and that the accident did not happen at a regular crossing, was objectionable in that it ignored all the circumstances tending to prove negligence on the part of the defendant, and would have precluded the plaintiff's right of recovery, though his injuries had been occasioned by the grossest negligence of the defeldant, provided they were inflicted at a place other than a regular crossing of the street: Id.

There are cases where the question of negligence may be properly one of law for the court; but such cases always present some prominent and decisive act, not dependent upon surrounding circumstances for its quality, and in regard to the effect and character of which no room is left for ordinary minds to differ: Id.

Whether cars, which were being placed in procession on Howard street, between the hours of 5 and 9 P. M., with the purpose of being drawn away to their regular place of destination, were in actual service within the meaning of an ordinance of the city of Baltimore, and therefore not required to be fastened as cars were required to be by said ordinance, when left standing on the street for a longer period than an hour, could only be determined by observation us matter of fact, and was therefore a question for the jury and not for the court: Id.

Common Currier-Liablity of for Defective Platform.-A railroad corporation is liable to a hackman for an injury received while carrying a passenger to their depot for transportation, by stepping, without fault, into a cavity in their platform, and occasioned solely by the want of ordinary care on the part of the corporation in leaving their platform in an unsafe condition: Tobin v. Portland Railroad Co., 59 Me.

And under such circumstances the liability is not changed by the fact that their platform was erected and maintained by them within the limits of the highway: Id.


Duties and poncers of the Master of a Ship in a Port of neces sity-General average-Contribution-Agency-The master of

ship is the agent of the owners with power to bind them for repairs to the extent of the value of the ship and freight, but not further, unless expressly clothed with larger authority: there 13 no presumption from the law of agency to justify expenditure beyond that limit: Stirling, et al. v. Nevassa Phosphate Com pany. 35 Md.

The owner of the cargo, in a case where expenses had been thrown upon the cargo exclusively, would have the right to call upon the owner of the ship for contribution to the extent of the value of the ship and freight, but not further; the master under such circumstances being considered as acting for the benefit of all parties interested: Id.

Whenever exigencies require the master to act for the benefit of other parties, to that extent his authority as agent of the shipowner is abridged: Id.

The master cannot do what a prudent owner, if present, would not do, and the law will not assume that a prudent owner would make repairs beyond the value of his vessel, when repaired: Id.

Where vessel, freight and cargo are pledged toward the repairs of a ship by the master, and the entire proceeds of the vessel and freight are insufficient to pay them, it is a fair presumption, in the absence of proof to the contrary, that beyond that limit the master was acting in behalf of the owner of the cargo: Id.

Where the cargo alone is jeopardized from causes for which the owner of the vessel is not responsible, he is not personally ac countable: Id.

Where the master acts for all parties interested, the loss falls upon the owners of the ship and cargo in proportion of their respective interests: Id.

Under some circumstances, the master may act as the agent of the owner of the cargo, independent of his agency for the owner of the ship: Id.


Examination of Witnesses-Proof of uttering Slanderous words-Leading.-On the examination of a witness in an action of slander to prove the uttering of slanderous words, it is not proper to read to the witness the words as laid in the declaration, and then interrogate him concerning them; nor it is within the discretion of the circuit judge to permit such a mode of examination : Osborn v. Forshee, 22 Mich.

Evidence-Admissions—Privileged. The testimony given by a witness on the trial of an action, in which he acknowledged the uttering of certain words alleged to be slanderous, cannot be proved as an admission, in an action against him for the alleged Blander: Id.

Declaration ir slander-Colloquium.—No colloquium is neces

sary in a declaration setting forth slanderous words, that they were uttered of and concerning the plaintiff, when the declaration avers that they were uttered of, and to, the plaintiff: Id.


Chattel Mortgage with Sealed Writing on Back-Construction of. Unstamped Instrument-When not Invalid.-In January, 1869,. McNeill and Swett gave the plaintiff their note secured by a mortgage of all the stock in trade, in the store occupied by the mortgagors on Point street, in Calais; "also, any and all additions that may, from time to time, be made to said stock by" the mortgagors. In May, 1869, the unsold original stock, together with additions theretofore made and remaining unsold, was removed to another store by the mortgagors, who executed under their hands and seals on the back of the mortgage a writing duly recorded, therein agreeing that the "mortgage, with this indorsement thereon, shall cover the portion of said stock removed, the same as though it had remained in the former store, and that it shall hold and cover any and all additions that have been or may be made to the same, as though the stock had remained and been put into the former store." In trespass by the mortgagee, against an officer for attaching the goods in July, 1869, as the property of the mortgagors, Held, that the mortgage, with the indorsement thereon, gave to the plaintiff a title to the stock in the second store at the time of the indorsement: Brown v. Thompson, 59 Me.

To authorize the court to declare an unstamped recorded indorsement on a chattel mortgage to be "invalid and of no effect," it must affirmatively appear that the omission of the stamp was the result of an attempt to evade the statute: Id.


Discharge of.-A procured for his own accommodation the accep tance of B, by giving the latter his promisory note, with the defendant as surety, as collateral security; a month before the acceptance became due, A procured another acceptance of B, which he had discounted, and with the avails thereof and other money paid the former acceptance. Held, That the surety was thereby discharged: Thomas v. Stetson, 29 Me.

It seems, that a renewal of the acceptance in such a case, without the consent of the surety, is such an extension of time of payment as releases the surety: Id.


Trespass quare clausum-Measure of damages-Certainty Experts-Pasturage-Cattle-Home or distant market.-A plaintiff in trespass will not be denied the right to recover the actual damages he has suffered because their nature is such that they cannot be accurately measured; and when from the nature of the case adequate damages cannot be measured with certainty

by a fixed rule, all facts and circumstances tending to show such damages as are claimed in the declaration, or their probable amount, should be submitted to the jury, to enable them to form, under proper instructions from the court, such reasonable and probable estimate as in the exercise of good sense and sound judgment they shall think will produce adequate compensation. Allison v. Chandler, 11 Mich. 542, cited and approved: Gilbert · v. Kennedy, 22 Mich.

Where the plaintiff was deprived of the profitable use of his own pasture for his own stock, by the tortious conduct of the defendant in turning in his cattle with the plaintiff's, and in conse quence of the overfeeding of the pasture the plaintiff's cattle suffered, the damages to which the plaintiff will be entitled will not be merely the value of pasturage in the vicinity, but the value of the growth and increase in weight which the cattle might reasonably have been expected to attain but for the overfeeding caused by the trespass; and to show this the testimony of farmers, graziers and drovers, having experience of cattle and that mode of feeding, is competent. It would also be competent to show the market value of the stock in the vicinity but for the overfeeding, and what was the reduced value in the same market in consequence of the overfeeding; and the difference in price, per head and per pound, in cattle of different weights and conditions. The value in a distant market could only be shown so far as it tended to control the home market; the measure of damages being what the cattle would have been worth but for the injury to the pasture by the trespass, and the reduced amount caused by the injury, to be estimated up to and at the time of bringing the action-unless the cattle had been sold prior to that day— then at the date of the sale: Id.

When a party, having been tortiously deprived of his pasturage for his cattle, is obliged to pasture them on his meadow, the measure of damages will be what the value of the use of the meadow land would have been to him as meadow, not what he could have obtained for it for pasturage: Id.

Damage to the plaintiff's cattle resulting from a loss of feed occasioned by the tortious occupation of plaintiff's pasture by defendant's cattle is not included in the damage to the pasture caused by such occupation; and the condition of the pasture, its value as such for future use, at the time of the commencement of the action, are proper subjects of inquiry in estimating damages which had then been sustained: Id.

The rule that a party aggrieved by a trespass will not be allowed to recover damages resulting from his neglect to employ the obvious and ordinary means of preventing or lessening them, is simply one of good faith and fair dealing; it will not prevent his recovering for such damages as he may have actually suffered, and which could not have been by reasonable diligence averted: Id.



OCTOBER, 1872.


In determining the question of priority between two competitors for a patent, there are two leading principles which should give direction to our inquiries. These were first propounded by the late Judge STORY, in Reed v. Cutler, 1 Story 590; and they were so clearly defined by him that we cannot do better than to quote his language. He was speaking of that clause in the 15th section of the Act of 1836, which provides that it may be shown in the defense to an action for infringing a patent, that the patentee "had surreptitiously or unjustly obtained the patent for that which was in fact invented or discovered by another, who was using reasonable diligence in adapting and perfecting the same." Upon this he made these remarks: "In a race of diligence between two independent inventors, he who first reduces his invention to a fixed, positive and practical form, would seem to be entitled to a priority of right to a patent therefor. The clause of the 15th section, now under consideration, seems to qualify that right, by providing that in such cases he who invents first shall have the prior right, if he is using reasonable diligence in adapting and perfecting the same, although the second inventor has, in fact, first perfected the same, and reduced the same to practice in a positive form." p. 599.

This language of the learned judge warrants us in laying down as a leading proposition what follows:

I. He who first conceives of an invention is entitled to the patent for it over all others, provided he uses reasonable diligence in adapting and perfecting it.

VOL. XX.-39


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