their accommodation. The whole object of this arrangement would have been defeated by the obligee demanding the payment of this bond promptly.* * * Presumption of payment under such circumstances would be as unreasonable as the presumption that a bond was paid before it was due. Abating therefore such reasonable time after the bond was given before according to the understanding of the parties, it was to be paid, * ** and the time during which presumption of payment could arise in this case would be much less than twenty years."

A medical college is not embraced within the terms "literary or scientific college or university."

The act of 1848, chapter 319, and the acts amendatory thereof and supplementary thereto do not authorize the formation of medical colleges.

The act of 1882, chapter 367, has reference only to scientific and literary colleges organized under the act of 1848, in whose organization there has been some imperfection, and does not apply to "medical colleges," as no reference is made to them in the act of 1848. F. J. Fithian, for appellants.

Edward C. Ripley, for respondents.

APPEAL from judgment of General Term affirming

judgment of Special Term entered upon an order sustaining demurrer to answer.

The action was in the nature of a quo warranto brought under the Code of Civil Procedure, section 1948, subdivision 3, charging the "United States Medical College" of the City of New York with exercising franchises and privileges without authority of law.

EARL, J. The question to be determined in this case is whether the "United States Medical College" of the City of New York was legally incorporated at the time of the trial of this action. The defendants claim that it was legally incorporated under the act, chapter 319 of the Laws of 1848, and the several acts amending the same and supplementary thereto. That act was entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies," and the first section, as originally enacted, provided that "any five or more persons of full age, citizens of the United States, a majority of whom shall be citizens of this State, who shall desire to associate themselves for benevolent, charitable, scientific or missionary purposes, may make, sign and acknowledge a certificate" and become incorporated.

That act was amended by chapter 51 of the Laws of 1870, which provided that it should " be deemed to au

(30) Bowie v. Poor School Soc., 75 W. Va. 300 (1881): For other cases in which the circumstances of the case were held to rebut the presumption of payment from lapse of time, see Ross v. Ellsworth, 49 Me. 416 (1860); Hendrick v. Bannister, 12 La. Ann. 373 (1857); Wemet v. Missisquoi Lime Co., 46 Vt. 458 (1874); Tomlin v. How, 1 Gilmer (Va.), 8 (1820).

thorize the incorporation of any society for the purpose of establishing and maintaining any educational institution or chapel, or place of Christian worship, of any parsonage, rectory or official residence of any bishop, pastor or minister of any Christian church or association;" and section 3 of that act provided that

any university or college incorporated under the said act, or under this act, may take and hold by gift, grant, devise or bequest property or endowment not exceeding in value or amount one million of dollars." Section 1 of the act of 1848 was again amended by chapter 649 of the Laws of 1872 so as to read as follows: "Any five or more persons of full age, a majority of whom shall be citizens of and residents within the State who shall desire to associate themselves together for benevolent, charitable, literary, scientific, missionary or mission or other Sunday school purposes, or for the purpose of mutual improvement in religious knowledge or the furtherance of religious opinion, or for any two or more of such objects combined, may make, sign and acknowledge" a certificate and become incorporated.

We are of opinion that these acts did not authorize the formation of a medical college. According to the ordinary use of language a medical college would not be described as a scientific or literary institution. It would not be generally classified as such, and we do not think it was the purpose of the Legislature to authorize any five citizens at any time and place, and without any restriction to organize an institution which could in its own way, and upon such loose and liberal terms as it chose to prescribe, issue diplomas to its graduates and confer upon them the degree of doctor of medicine. Medical colleges had before been organized by special acts, or under the general act of April 5, 1813, which was not repealed by the act of 1848. Subsequently by the act, chapter 184 of the Laws of 1853, the Legislature dealt with the subject of medical colleges. Section 6 of that act provides that any citizens, not less than ten in number, who may desire to found and endow a medical or surgical college or school within this State, may make, sign and acknowledge a certificate and become a corporation, as therein provided. They are required to have an endowment of $50,000, and every college organized under that act has power to grant and confer upon its graduates the degree of doctor of medicine upon the recommendation of the board of professors of the college and of at least three curators of the medical profession appointed by the trustees. "But no person shall receive a diploma conferring such degree unless he be of good moral character and of the age of twenty-one years, and shall have received a good English education, and shall have pursued the study of medicine and the sciences connected therewith, for at least three years after the age of sixteen years, and have received instruction from some physician or surgeon fully qualified to practice his profession, until he is qualified to enter a medical college, and (except in cases hereafter provided) shall also after that age have attended two complete courses of lectures delivered in some incorporated medical college."

It cannot be supposed that the Legislature intended to authorize the creation and operation of medical colleges under the act of 1848, without any checks or restrictions, while it requires that such colleges, organized under the act of 1853, should comply with the requirements, perform the duties and be subject to the restrictions carefully specified in that act. We think that before the passage of the act of 1853 the only way for the incorporation of a medical college was either by special charter granted by the Legislature or under the act of 1813 above referred to. After the act of 1853 the only general act for the formation of medical colleges was that act, and no medical college could there

tion will lie in the name of the wife against her husband on a promissory note, executed by him to her in consideration of moneys, her separate property, loaned by her, after marriage, to her husband.

It follows from this case, and it is there in substance so stated, that if the wife can maintain a suit as any other creditor can, then she must also be entitled to all such writs aud remedies against her husband that are allowed to other creditors.

So also it has been held in Alabama, that what any other creditor may do to enforce the collection of his debts, or to secure their final payment, the wife may also do as to her separate estate under the limitations of the law enacted for her protection. See Walker v. Ambercrombie, 3 Tex. Law Rev. 151; Rowland v. Plummer, 50 Ala. 193; Wells on Sep. Prop. of Married Women, § 374.

In Ohio it has been held that a wife may sue her husband on his note executed to her for money borrowed by him of her after marriage. Huber v. Huber, 10 Ohio Rep. 371 -2.

In Maine the husband, for value and bona fide indorsed and delivered a negotiable note to his wife; it was held she took the paper with the rights of any other indorsee. Motley v. Sawyer, 38 Me. 68; see herein post Tunks v. Grover, 57 id. 588.

In New York it has been held that the wife can maintain trover against her husband. Whitney v. Whitney, 3 Abb. Prac. Rep. (N. S.) 358; 49 Barb. (N. Y.) 319; also that she may bring an action of ejectment, Minier v. Minier, 4 Lans. (N. Y.) 422.

In Indiana it is held that the wife may sue her husband without a next friend to recover her separate property. Scott v. Scott, 13 Ind. 225.

In New Hampshire, in Clough v. Russell, 55 N. H. 281, it was said: "The logical result seems to be that the status of marriage interposes no obstacle in the way of either party maintaining against the other a suit at law in respect to those contracts which the wife is empowered to make."

In Iowa it has been held that the wife may bring replevin against her husband to recover her separate property. Kramer v. Conger, 16 Iowa, 434. It was also in the same State held that in a proper case she would be entitled to the benefit of a writ of injunction against her husband. Jones v. Jones, 19 Iowa, 242.

In Maine it has been held that the wife can garnish the husband as trustee for her debtor. In this connection, in this case, the court makes the following pertinent remarks: "We see no valid reason to debar her from it, even if it follows as a necessary result that she may array herself against her husband in an action at law to obtain it. Ubi jus ibi remedium; and when the Legislature has conferred rights of this description upon married women in such emphatic terms, it is not for us to delay the appropriate process to enforce them, although long-cherished and familiar doctrines of the common law are thereby overturned." Tunks v. Grover, 57 Me. 588.

Under the liberal provisions of our Constitution and laws for the protection and preservation of the separate property and rights of married women, we are of opinion that the wife can maintain in her own name her action in the case under consideration. We also believe that she would be entitled, in a proper case, to the benefit of writs of attachment, sequestration, injunction, or any like writ to which any other creditor would be entitled in order to protect and preserve his rights.

Of course, suits of this kind between husband and wife ought not to be encouraged, and ought, in every instance, to be scrutinized very closely indeed by the courts, and every effort made to prevent fraud and

collusion between them to the prejudice of rights of creditors, or third parties.

Reference has been made above to the case of Price v. Cole, and its partial affirmance by this court in Hall v. Hall, above cited. It may be proper to say, in this connection, that in the head-notes of the case of Grace v. Wade, 45 Tex. 523, the case of Price v. Cole is said to be overruled by that case. The statement is not entirely accurate. The case was only overruled in Grace v. Wade, on the question raised in it under the regis tration laws, and as to an innocent purchaser without notice. In other respects it was not there questioned, and as we have seen in the later case of Hall v. Hall, above cited, it was expressly approved on the question as to whether a note aud mortgage, executed directly to the wife by her husband, without the intervention of a trustee, were valid instruments.

The judgment is reversed and the cause remanded.

NOTE.-See 43 Am. Rep. 589; 25 Alb. L. J. 302; 26 id. 361, 462; 27 id. 263.

In Schultz v. Schultz,27 Hun, 26, the Genl. Term First Dept., held, that under the act of 1860, ch. 90, § 7, the wife might maintain an action for assault and battery against the husband and procure an order of arrest therein. The Court of Appeals however on appeal from the order denying motion to vacate the order of arrest, with opinion, reversed the order and dismissed the complaint. 89 N. Y. 644.

In Fitch v. Rathbun, 61 N. Y. 579, it was held, that "Where household furniture belonging to a married woman is, with her consent taken to the house of her husband, mingled with his furniture and used therewith for the household purposes, it does not thereby become the property of her husband, but the title remains in her; and her assignee can maintain an action against the husband for a conversion thereof, or to recover the proceeds received by him on its sale." The court (p. 581), said: "The simple appropriation of any portion of her personal property to household use by the husband and wife, or the husband alone, by her consent, does not render it the property of the husband and liable for his debts; but her assignment of it carries with it a right of action against whoever converts it. Sherman v. Elder, 24 N. Y. 381, 384, 385."

Where a married woman living with her husband buys furniture with her own money and places it in the room occupied by them, in which the husband has also some furniture, a public cartman, who in her absence, under the employment and by the direction of her husband, takes the furniture from the room, including that belonging to the wife and delivers it to the husband, is liable to the wife for its conversion. Mead v. Jack, 16 N. Y. W. Dig. 402; Gen. T. N. Y. Com. Pleas.-[ED. ALB. L. J.]

RAILROADS—OBSTRUCTING STREET-INJURYPROXIMATE CAUSE-DAMAGES.

OHIO SUPREME COURT, JUNE 3, 1884.*

PITTSBURGH, CINCINNATI AND ST. LOUIS RY. Co. v. STALEY.

A railway company by its train unlawfully obstructed a village street. S. therefore walked around the rear of the train, entered another street, and there having selected one of the many routes to her home, slipped on some ice, fell, and sustained serious injury. The same railway com. pany had placed the ice there in the process of clearing its track, which occupied part of the street. The street was laid out after the railway was in use, and the rights of the

*S. C., 1 Am. L. J. 136, to appear in 41 Ohio State Reports.

On the 17th day of January, A. D. 1877, a freight train of the Pittsburgh, Cincinnati and St. Louis Ry. Co., bound east, went upon a side track at Morrow, Warren county, Ohio, at eight o'clock P. M., and remained there until five minutes after nine o'clock. Although the train crossed Center street in the village, no cars were uncoupled, and that street was completely plocked. The only reason for this was the expectation of the conductor that he would be ordered to move his train eastward at any moment. Mrs. Emily E. Staley and others, resident in the village at points north of the railway, were in church on Center street, one square south of the railway, when the train arrived. When the service ended they found the train blocking the street, and after waiting ten or fifteen minutes they went to the west end (the rear) of the train, passed around the rear car, walked eastward between the tracks the length of three or four cars, turned northward to cross another track of the railway, and as she was "just stepping off the last track" she slipped upon some ice piled there, fell and sustained serious injury to her limb from the "hip down." She suffered much pain, was confined to her bed for a time; to her room for a longer time, and claimed that her health was permanently impaired. A number of other women pursued the same route-some before, some behind, and some with Mrs. Staley. None of them fell. The evidence showed that it was unnecessary for her to step upon the pile of ice upon which she slipped and fell. The village of Morrow was laid out after the railway was in use, and one street, called Railroad street," included the railway tracks and ran in the same direction with them. Snow fell and formed on the tracks in the streets.

The com

pany, to clear its tracks for the passage of trains, removed the ice and snow, and cast it in the street on either side of the tracks. Mrs. Staley sued the company. Evidence as to the manner in which the ice had been placed there was before the jury at the trial. The charge to the jury contained the following instruction:

"But suppose the jury should find that there was negligence in the blocking of the street by the company, not in the placing of the piles of dirt, ice or snow on or over which it is claimed the plaintiff fell, without fault on her part in going that way, or in the mode of going what then is the law?

"Here comes the difficulty in the application of the rule as to proximate or remote consequences.

"Undoubtedly injuries might have been received by her as she passed around the train, for which the company would not be liable. For instance, suppose as she passed along, attempting to cross the road, she had been struck by a stone thrown by some ruffian. Clearly she would not thus have been injured if she had not gone by that route, but it is equally clear that this injury would not be one for which the company was liable.

"But suppose the injury results while so prudently and carefully passing around by some other instrumentality placed or maintained there by the defendant. I confess that I have great difficulty in arriving at a conclusion on this point.

"The law seems to me to be this: "That if the original act (in this case the blocking of the street) was wrongful and would naturally, according to the ordinary course of events, prove injurious to some other

person or persons, and does actually result in injury through the intervention of other causes which were not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent.' And an illustration of this doctrine given in the law books is the wrongful throwing of the lighted squib, which being innocently warded off by several persons, at last struck and put out the eye of another person. The original thrower was held liable.

Now it seems to me that the question whether the injury in this case to Mrs. Staley was the proximate result of the original blocking of the street is one not to be settled by the court, but by the jury under appropriate instructions from the court. And I say to you that if the evidence shows that prior to the time in question the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable. But if there was no such reason to apprehend the result, I say to you that it would not be the proximate result of the original act.”

The verdict was for the sum of $1,625 in favor of the plaintiff. A motion for a new trial was overruled, and a bill of exceptions, containing-all the evidence, duly made part of the record.

ral and usual result would be injury to some one other than the person at whom it was first thrown. So long as the act of the second thrower is the result of mere impulse to avert danger to himself by removing the dangerous thing to a distance, the first thrower's act is in progress. But if the second thrower deliberates, even for a mere instant, and with intent to injure a third person, casts the squib at him, such deliberation and intent puts an end to the act of the first thrower, and the thing done by the second throw is not his fault.

So also if a wholesale druggist prepares a jar of belladonna, labels it "extract of dandelion," and sells it as such to a retail dealer, who uses it as "extract of dandelion" in filling a prescription. The great suffering of the patient who takes the medicine so prepared is plainly the natural and usual result of the act of the wholesale dealer. In the case referred to the defendant prepared the jar to be sold to a retailer, whose regular business it was to incorporate it in prescriptions to be swallowed by patients. The "concatenation" of Cooley, J., is particularly complete in the case of Thomas v. Winchester, 6 N. Y. 397.

In Clark v. Chambers, 7 C. L. J. 11, the defendant wrongfully placed a dangerous spiked hurdle in a private way, along which the plaintiff had a right to pass, Some person, without the defendant's knowledge, moved it a short distance, but left it still in the same private way. The plaintiff passing on a dark night, with knowledge of the original position of the hurdle, thinking to avoid it,came into collision with it and was injured. Having unlawfully placed the dangerous movable thing in a passage way, so long as it remained in that way, it was there by the defendant's act. That such a movable thing in such a place would be moved by a passer-by is, it seems to us, natural and not unusual; and he who originally placed it there should be held to contemplate such a possibility and be responsible for results so long as he suffers it to remain in that way. And we see Judge Cooley's "concatenation in Griggs v. Fechenstein, 14 Minn. 81, and Weick v. Lander, 75 Ill. 93. The injury complained of in each of these cases, by a plain, clear and simple chain of cause and effect, was conjoined" to the wrongful act of the defendant, and was the result of its continuing force. In the Minnesota case the action of the defendant's team frightened other horses, and we may well say forced them against the horse and sleigh of the plaintiff. In the Illinois case the stoppage of the foremost wagon by defendant's fault forced the stoppage of the second wagon, ex necessitate passed into the second wagon and did the injury complained of. The like continuing force of the wrongful act is apparent in Brown v. Railway, 54 Wis. 342; S. C., 41 Am. Rep. 41; and Drake v. Kiely, 93 Penn. St. 492.

In the Wisconsin case the wrongful act caused a pregnant woman to leave the train three miles short of her destination on a cloudy night. This act forced her to walk to the station. This effort caused the injury.

In the Pennsylvania case the lad of tender age was wrongfully and forcibly put upon a train, carried five miles and then put off. This act forced him to go over the five miles. The doing this caused the injury. In each case the precise thing that did the harm was forced upon the injured person by the wrongful act of the defendant.

But the fact that she walked around the train was not the cause of Mrs. Staley's injury. Other persons that night walked around the same train without harm. In the full possession of her faculties she passed safely around the obstruction and beyond its influence; she was walking in a street in which others were then safely walking; she stepped upon a small

pile of ice without necessity. She could at will have gone to the other side of it; she might have walked between the rails of the unoccupied track, from which the snow and ice had been removed, until she arrived at the usual crossing of Center street, from which the train (before she had passed around it) had excluded her. The turning to cross the track in order to there cross the street was a voluntary act on her part. It was a selection of one of several convenient routes to her home. We are unable to see any chain of cause and effect leading back from it to the obstructing train. True, if the train had not blocked the way, she would not probably have been at the time in Railroad street at the point where she decided to cross that street. But so long as the obstructing train did not compel her to take that precise route and step on that pile of ice in order to reach her home without undue delay, her decision to attempt to cross that street was in no sense-in no particular-forced by that train; hence it did not cause her fall.

The charge attempted to trace a possible "concatenation" of cause and effect by stating "that if the evidence shows that prior to the time in question the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might and there was no fault on the part of the plaintiff, the company in that would be liable."

As no evidence tended to show that prior to that night any one fell while passing there, we do not perceive how knowledge by the company that people were in the habit of following the route taken by her, without any fault or injury, would make her fall a "usual and natural" result of the obstruction of Center street by a train; or that such fall “might reasonably be anticipated by the company."

It seems to us that unless the company was at fault in placing the ice where she trod upon it and fell no verdict ought to have assessed upon the defendant any damages for that fall.

While we thus hold that the pile of ice was the proximate cause of Mr. Staley's fall, we agree with the cases cited by her counsel, that in such cases "the question as to whether the cause was remote or proximate is for the jury under the instruction of the court." But we think that the charge as given misled the jury, and that the evidence, as set out in the bill of exceptions, clearly proves that the act of stepping on the ice where she fell was not forced by the train, but was the result of her own choice of route after the train had ceased to be an obstruction to her. The court should apply the law to those facts; and, as we understand it, such application determines that the position of the train was not the proximate cause of

the fall.

A demurrer to the petition raised the question whether the latter charged the company with any fault in the matter of the ice. Perhaps it may be construed as averring in substance that the blocking of the street compelled her to step upon the ice placed by the defendant, and that while so stepping, under such compulsion, she, without her own fault, fell. If this be so the demurred was rightly overruled.