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to divide the profits after deducting a fixed sum for have such right in that case by virtue of the agreeexpenses; but A. was not to bear any losses. Held, ment betweeu himself and another, in the absence of that A. and B. were not partners as to third persous." any express provision couferring that right upon his This case is reported in 22 Am. Rep. 94, also.

associate in the business. If it appears that he would In Beecher v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. have had such right had it not been for his agreement 465, the plaintiff endeavored to hold the defendant lia- to the contrary, then he is a partner, and his agreeble, on the ground of participation in profits. The ment merely operates as a surrender to his associate of court decided that the defendaut was not liable, and a right which he would otherwise have enjoyed. We Cooley, J., at th close of his opinion in the case, submit that upon principle the question of partneradded the weight of his great name as a jurist to the ship is to be determined by the three following rules: authorities in favor of the only sound and logical doc- 1st. When the recipient of profits has, by virtue of trine, that there can be no partnership as to creditors an agreement with another, a right to participate as where there is no partnership in fact, provided the de principal trader in the management of the business fendant has not by acts or declarations estopped him- out of which the profits are to arise, then he is a partself from denying that he is a partner. He says: "We ner, and liable as such; and no secret intent not to bealso think there can be no such thing as a partnership come a partner, and no provision in the contract reas to third persons, when as between the parties them- stricting his liability or exempting him from all liaselves there is no partnership, and the third personbility will afford him immunity from the responsibilihas not been misled by concealment of factors or by ties of a partner. deceptive appearances."

20. When the recipient of profits would, in the ab-
It has sometimes been stated that participation in sence of any express provisions in the agreement to
profits ought to render the recipient liable on the the contrary, have by virtue of sucb agreement a right
ground that he has a right to bring an action in equity to participate as principal trader in the management
for an account of the profits in order to fix the amount of the business, then he is a partner, even though be
coming to him. Now the fallacy of this argument lies has expressly agreed that his associate in the business
in the assumption that no one other than a partner shall have the right to exercise exclusive control in
can maintain such an action. This is not the law. It conducting the business.
is well settled that any persou who has a right to a cer- 3d. In all other cases the recipient of profits is not
tain share of profits, though he be not a partner, may a partner, aud cannot be held liable to creditors unless
file a bill for au account of such profits. Bentley v. Har he has estopped himself from denying that he is a part-
ris, 10 R. I. 434; S. C., 14 Am. Rep. 695; Hargrave v.
Conroy, 4 C. E. Green, 280; Harrington v. Churchward,

29 L. J. 521; Sheppard v. Brown, 4 Giff. 208; Buel ST. PAUL, Minn.
V. Sely, 5 Ill. App. 116; Garr v. Redman, 6 Cal. 574;
Ferry v. Henry, 4 Pick. 75; Hallett v. Clemstone, 110 CONFISCATION PROCEEDINGS-RIGHTS OF AS.
Mass. 32; Eastman v. Clark, 16 Am. Rep. 192-249; Col-

lyer ou Part., $ 45, 11. ; Story on Part., $ 50, 1.; 2 Lind-
ley on Part. 946. The distinctions which some of the SUPREME COURT OF THE UNITED STATES,
courts have made between partnerships between the

MARCH 24, 1884. parties and partnerships as to creditors has necessitated the use in this article of an expression that is

PHOENIX BANK V. RISLEY,* tautological. We refer to the phrase “partnership Money in a bank in New York, held to the credit of an instituinter se.The word partnership implies the existence tion in South Carolina, is not of such specific quality that of an agreement between two or more, and there cau it is liable to seizure by a United States marshal in conbe no partnership even as to creditors unless there be fiscation proceedings. a partnership in fact. It is iucorrect to say that one In an action by defendant in error in the State court, on an not a partner is liable as such because he has held him- assignment of part of the amount standing to the credit of self out as such to the world. He is not a partner; but

the South Carolina institution, the plaintiff in error set

up that the money due said institution had been seized, is liable on the ground of estoppel. Haviug shown that

condemned, and paid over to a United States marshal upon principle and authority there can be no liability

by virtue of confiscation proceedings. Held no defense, as partuer in the absence of estoppel, unless the party and that the assignee's right to recover was unaffected by sought to be charged is in fact a partner, it remains to such proceedings. be determined what will constitute one the partner of

N error to the Court of Appeals of the State of New another. The question is not whether he has agreed to sustain a share of the losses; nor does it depend

York. Opinion states the case. upon his being interested in the partnership funds and Wm. M. Evarts and Flamen B. Candler, for plaintiff property. He may be a partner, even though he bas in error. stipulated that he shall not suffer auy loss; and even F. A. Wilcox, W. R. Beebe, and John E. Risley, for though he has no interest in the partnership assets. defendant in error. These and other circumstances are to be considered in determiuing the question of partnership, but they are

MILLER, J. This is a writ of error to the Court of not decisive of that question. The ultimate inquiry

Appeals of New York. in all cases is whether the party claimed to be a part

The defendant in error recovered against the plaintner has become by agreemeut a principal trader in the

iff in error the sum of $10,000 and interest by the verbusiness with another. In other words, has he a right dict of a jury, wbich found, as matter of fact, that the to participate as principal trader in the management

Bank of Georgetown, South Carolina, having a balance of the business? If he has, he is a partner. If he has

with the Phoenix Bauk of New York on the 20th day uot, he is not a partuer, with a single exception, which

of May, 1861, assigned to Risley, the plaintiff, in the however is rather apparent than real. The exception

State court, $10,000 of that sum, of which the Phenix is this: A person may be a partner, even though he

Bank bad due notice by demand made by Risley,Januhas by express agreement intrusted the control of the business exclusively to his associate in the business.

With the questions which arose out of this transacThe question, strictly speaking, is not whether the

tion in the State court we have nothing to do, except party has a right to control the business as principal as they concern the defense set up by the bank that trader in the particular case, but whether he would

*Afirming 83 N. Y. 318.


ary 4, 1865.

the money in its hands due to the Bank of George- estate aud effects are subject to lawful prize, capture town had been seized, condemned, and paid over to and seizure, and should be confiscated and conthe marshal of the Southern District of New York by demned. virtue of certain confiscation proceedings in the The monition, after reciting the libel against $15,000 District Court of the United States for that dis- belonging to the Georgetown Bauk, which said $15,000 trict.

is now in cash and on deposit with the Phønix Bank, The sufficiency of those proceedings as a defense to commands the marshal to attach the said $15,000, and the action raises a question of a claim asserted under to detain the same in his custody until the further an authority of the United States, and as the Court of order of the court. Appeals sustained the judgment of the inferior court The return of the marshal is that he attached $13,of that State rejecting the defense, the case, as to that 000, more or less, deposited in the Phænix Bank, bequestion, is cognizable in this court.

longing to the Bank of Georgetown, and gave notice to The record of the confiscation proceedings in the all persons claiming the same that the court would try District Court was rejected by the State court when the case on January 24 thereafter. offered in evidence by defendant, and our inquiry The decree of the court is, that he, the judge, dotlı must be directed to ascertain, whether if admitted, it hereby order,sentence,and decree that $12,117.38 belongwould have been a good defense.

ing to the Bank of Georgetown, of Georgetown, in the The judge, before whom the jury trial was had, re- State of South Carolina, and now on deposit in the fused to receive the record in evidence, because it Phonix Bank, in the city of New York, which said showed that the confiscation proceedings, being in rem, $12, 117.38 has been heretofore seized by the marshal in were directed against certain specific money, which this proceeding, be and the same is hereby coudemned was the property of the Georgetown Bank and which as forfeited to the United States. the Phænix Bank held as a special deposit in the na- On this sentence a venditione exponas was issued to ture of a bailment, and not against the debt which the the marshal, in which he is ordered to sell this $12,Phoenix Bank owed to the Georgetown Bank arising | 117.38, and to have the moneys arising from the sale at out of their relations as corresponding banks; that the District Court on a day mentioned. this debt being assigned to Risley, the plaintiff was It is not possible to understand that this case prounaffected by the confiscation proceedings, because ceeded on any other idea than the actual seizure of a it was not mentioned in them, and no attempt was specific lot of money, supposed at first to annount to made to subject that debt to oondemnation.

$15,000, but which turned out to be less, and that that That the relation of the Phenix Bank and the lot of money was seized, was formally condemned aud Georgetown Bank was that of debtor and creditor and ordered by the court to be sold, and the proceeds of nothing more, has been the settled doctrine of this the sale brought into court for distribution under the court, as it is believed to be of all others, since the case confiscation law. The specific money is described by of the Marine Bank v. Fulton Bank, 2 Wall. 252. In apt words, as the property of the Bank of Georgetown, that case it was said, that “all deposits made with for whose misconduct it is seized, condemned aud forbankers may be divided into two classes, namely, feited. those in which the bank is bailee of the depositor, the The very language is used, and no other, that would title to the thing deposited remaining with the latter; be if it were twelve hundred horses instead of twelve and that other kind of deposit of money peculiar to thousaud dollars, of which the Georgetown Bank the banking business, in which the depositor, for his was owner, though iu the possession of the Phoenix own convenience, parts with the title to his money Bank. and loans it to the bapker; and the latter, in consider- There is not the slightest intimation in the libel, the ation of the loan of the money and the right to use it mouition, the return to that monition, or in the final for his own profit, agrees to refund the same amount, decree, that a debt due by the Phoenix Bauk to the or any part thereof, on demand.” “It would be a Georgetown Bank is attached, and no language apwaste of time," said the court, “to prove that this lat- propriate to such a purpose is found in the whole proter was a debtor and creditor relation.” This prop- ceeding from the beginning to the end. On the conosition has been reaffirmed in Thompson v, Riggs, 5 trary, the whole case presents the idea of tangible Wall. 572; Bank v. Millard, 10 id. 155; Oulton v. Sav- property, actual cash taken by manual seizure, in the ings Institution, 17 id. 503; Scammon v. Kimball, 92 hands of the Phoenix Bank, the ownership of which U.S. R. 370; and Newcomb y. Wood, 97 U. S. 583. was in the Georgetown Bank; that these dollars,

Mr. Parker, the cashier of the Phønix Bank, speak- whether of gold, silver, or bank bills, were to be placed ing of the time when the marshal served the monition in the hands of the marshal and sold, and the sum in the confiscation case on him, says that there were no bid for them brought into court under its order. specific funds, separate in kind, in the bank belonging In further illustration of this idea, the libel charges to the Georgetown Bank, and only a general indebted- that the Bank of Georgetown, the owner of the propness in account for money, or drafts remitted, which erty libelled, did purchase and acquire said property, has been collected. It was

a debt.

No specific and the same was sold and given to it by a persuu unmoney or bills, the property of the Georgetown known to the attorney, with intent to them to use and Bauk."

employ, and to suffer the same to be used and emThe libel of information in the District Court com- ployed, in aiding, abetting and promoting the insurmences by saying that it is “ against the estate, prop- rection, and resistance to the laws, and in aiding and erty, money, stocks, credits, and effects, to wit: abetting the persons engaged therein, and that the against $15,000 (fifteen thousand dollars), more or less, Georgetown Bank did knowingly use and consent to belonging to the Bank of Georgetown, & corporation such use of the property, contrary to the provisious of doing business at Georgetown, in the State of South an act to confiscate property used for insurrectionCarolina, which said $15,000 is now in cash, and is now ary purposes," approved August 6, 1861. on deposit in the Phoenix Bank, a corporation doing It is beyond question that this act was directed to business in tbe city of New York, all of which are the confiscation of specific property used with the owned by and belonging to and are the property of the consent of the owner to aid the insurrection, and said Bank of Georgetown.”

had no reference to the guilt of the owner, and could And it is alleged, that by reason of the use of this only apply to visible, tangible property which had property in aid of the rebellion, and the treasouable been so used. practices of the Georgetown Bank, the said property, If the thing seized and condemned in the District


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Court was the actual dollars, they were the property Phønix Bauk due to the Georgetowu Bank pointed
of the Phoenix Bauk, and the loss was its loss, and out by the very rule to which the act of Congress re-
that did not satisfy the debt which at that time it ferred as prescribing the mode of practice in such
owed to Risley; nor would it have been otherwise if the
debt had been then due to the Georgetown Bank, for Iu the first case, above referred to, the court, after
the debt was not seized, but the dollars of the Phønix referring to the practice in admiralty, said: “These

are, indeed, proceedings to compel appearance, but Counsel for plaintiff in error insists strenuously how they are nevertheless attachments or seizures bring. ever that it was the debt which was intended to being the subject seized within the jurisdiction of the seized and condemned, and which constitutes the res court, and what is of primary importauce, they show in the proceeding.

that in admiralty practice, rights in action, thiugs We are not able to see that this view of the matter intangible as stocks and credits, are attached by places the case in any more favorable coudition for the notice to the debtor or holder without the aid of any bank,

statute." While the manner of seizing ordinary personal prop- In the latter case the court said: “We are compelled erty or real estate, for the purposes of confiscation to jnquire whether the simple statement of the marproceedings, uuder the two acts of Congress on which shal, that he had given notice to R. Johnson, auditor this libel professes to be founded, namely, the act of of the city, was a sufficient seizure, iu face of the conApril 6, 1861, and the act of July 17, 1862, is easily un- ceded fact that he had made no actual or manual derstood and followed, namely, an actual seizure aud seizure of any thing to give jurisdiction to the court. actual possession by the officer under the monition, it And in determining what it was of which Johnson has not been so plain what proceeding should be had had notice, it is, perhaps, fair to infer that the maris the confiscation of debts due to one who bas incurred shal read to him the paper issued by the district atthe penalty of such confiscation, and who is not within torney." the jurisdiction of the court.

The court, after saying there is no doubt that the In this class of cases, where the debt is evidenced by stocks were credits and liable to confiscation within a note, bond, or other instrument in writing whose the meaning of the act, added : possession carries the right to receive the debt, it may “It is clear that there was a mode of reaching them be that the manual seizure of that instrument gives under the act of Congress, notwithstanding the evijurisdiction to the court to confiscate it and the debt dences of Fairfax's right to them were in his pocket which it represents.

and beyond the reach of the court. If the debt due And we are not prepared to say that the debt itself | him had been by an individual, there would have been may not be confiscated in the abseuce of the bond or no difficulty in serving such a process or notice on the note which represents it. But in this class of cases, and debtor as would have subjected him to the order of in the case of an indebtedness on a balance of accounts the court in regard to it." where no writing or other instrument represents the The record of the Distriot Court in the confiscation debt or ascertains its amount, or carries with it by proceedings gives no evidence of any service of notice transfer the right to receive it, it is obvious that on the Phoenix Bank, the debtor in this case, and as it sometbing more is necessary than the statement of the was an ex parte proceeding in the absence of the party marshal that he has attached or seized a certain sum whose property was condemned, the la:guage of the of mony.

court in Alexandria v. Fairfax is appropriate, that In the case of Miller v. United States, 11 Wall. 268, "where the seizure is a sine qua non to the jurisdicwhich was a case of confiscation of stock in a railroad tion of the court, and where, as in the present case, company, these difficulties are fully considered, and it actual manucaption is impossible, the evidence which is there held that the proper mode of seizure of such supports a constructive seizure should be scrutinized stock is by notice of the proceeding and attachment to closely, and be of a character as satisfactory as that the proper officer of the compauy, whose stock is the which would subject the party holding the fund subject of the proceeding. And the same matter is or owing the debt, which is the object of the proceedvery fully considered in the subsequent case of Alex-ings, to an ordinary civil suit in the same court." 95 andria v. Fairfax, 95 U. S. 774, where the sufficiency of U. S. 779. the seizure was brought up collaterally in another suit, Assuming that as argued by counsel, this was a proand the whole proceeding held void, because notice of ceeding to reach the debt of the Phønix Bank to the the seizure or attachment of the debt of the city of Georgetown Bank, then it could not be the subject of Alexandria was not made to the officer of the city | actual manucaption or seizure, and there should be named by the statute of the State, though it was given such evidence of service of the attachment or notice on to another officer of the city government.

the Phoenix Bank as would be sufficieut in an ordinary The statute authorizing these confiscation proceed.civil suit for that debt. ings requires that they be conducted according to pro- Nothing of the kind is shown here. No notice of ceedings in admiralty as near as may be, and hence any kind to the Phonix Bank is shown in that reclibels, monitions, publications, and sentences have ord. been the usual mode of enforcing confiscation. The But in the deposition of the cashier of the Phoenix thirty-seventh admiralty rule in force, long before this Bank in the present suit, he is shown the monition in statute was enacted, provides how such seizures shall the confiscation case, and says that paper was served on be made :

him on the 5th day of January, 1865, at 11:50 in the “ Iu cases of foreign attachment, the garnishee shall morning. be required to answer under oath or solemn atfirma- It admits of grave doubt whether the essential fact tion as to the debts, credits, or etfects of the defend- on which the jurisdiction of the court in the confiscaant in his hands, and to such interrogatories touching tion case depended, not being found in the record, can the same as may be propounded to him by the libel- be supplied in another suit where it is introduced in lant; and if he should refuse so to do, the court may evidence, by parol proof of that fact. award compulsory process against him. If he But if it could be done at all, the monition whiob admits any debts, credits, or effects, the same shall was served on the cashier gave no intimation of a probe held in his hands liable to the exigency of the ceeding to charge the Phænix Bank with a debt due suit."

from it to the Georgetown Bank, and require it to pay Here was a plain mode of attaching the debt of the said debt to the marshal or into the court. Nothing

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bound at its peril to have disclosed the assignment of INN

in that monition required the bank to answer in re- a fence was the cause of the mishap. It is not necessary, gard to such a debt, and the bank made no answer. If in order to charge the company with the responsibility, it had been called on by that notice to answer, as it

that its negligence should be the efficient cause of the incertainly would if a debt was claimed of it as being

jury ; if the injury would not have occurred but for such

negligence, that is enough. due to the Georgetown Bank, it would have been

N error to the Circuit Court of the United States for that debt to Risley by the Georgetown Bank, and the

the Northern District of Illinois. The opinion

states the case.
demand and notice of Risley to the Phønix Bank
before the commencement of the confiscation proceed- d. D. Rich, for plaintiff in error.
iugs. Indeed it is quite remarkable that no answer or Ashley Pond, for defendant in error.
appearance for the Phoenix Bank is made in that pro-
ceeding. If the money, the actual cash in the bank

MATTHEWS, J. This action was brought by the vaults, was attached, the bank must have known that

plaintiff in error to recover damages for personal inthe dollars were its dollars, and it should have de

juries alleged to have been caused by the negligence fended. If it was the debt which was attached,

of the defendant in error. After the evidence in the its legal duty to its creditor, whether that was Risley

cause bad been closed, the court directed the jury to or the Georgetown Bank, was to have stated the facts

return a verdict for the defendant. A bill of excepto the court.

tions to that ruling embodies all the circumstances It does not appear to us tha any seizure or attach

material to the case, and presents the question, upon ment of the debt due by the Phoenix Bank to the

this writ of error, whether there was sufficient evi. Georgetown Bank was made, by which the District

dence to entitle the plaintiff below to have the issues Court, if it iutended to do so, obtained jurisdiction to

submitted to the determination of the jury. confiscate it.

The defendant, in running its trains into Chicago, On the whole case, we are of opinion

used the tracks of the Illinois Central Railroad Com18t. That the specific money in the Phoenix Bank,

pany, under an arrangement between them; and no against which the confiscation proceedings seem to

question is made but that the defendant is to be have been directed, and which was condemned, was

treated, for the purposes of this case, as the owner as the money of that Bank, and not of the Georgetown

as well as occupier of the tracks. Bank, and the loss, if any, is the loss of the Phønix

The tracks in question are situated for a considerBank.

able distance in Chicago, including the place where the 2d. That no such seizure or attachment was made of

injury complained of was received, on the lake shore. the debt due by the Phoenix Bank to the Georgetown

They were built in fact, at first, in the water on piles; Bank, if any such debt existed, when the proceed

a breakwater, constructed in the lake, protecting them ings were commenced, as would give the District

from winds and waves, and on the west or land side, Court jurisdiction of that debt, and no actual condem

the space being filled in with earth, a width of about nation of that debt, or order on the Phænix Bank to

280 feet, to Michigan avenue, running parallel with the pay it, was made, which can constitute a defense to the

railroad. This space between Michigan avenue and present action.

the railroad tracks is public ground, called Lake Park, 3d. That the right of Risley to recover the debt as

on the south end of which is Park Row, a street perassignee of the Georgetown Bank remains unaffected

pendicular to Michigan avenue and leading to and by those proceedings.

across the railroad tracks to the water's edge. NumerThe judgment of the Court of Appeals of New York

ous streets, from 12th street north to Randolph street, is therefore

intersect Michigan avenue at right angles, about 400 Afirmed.

feet apart, and open upon the park, but do not cross it. Nothing divides Michigan avenue from the park,

and the two together form one open space to the railPROXIMATE CAUSE UNFENCED RAILWAY - road. INJURY TO CHILD.

The right of way for these tracks was granted to the

company by the city of Chicago over public grounds SUPREME COURT OF THE UNITED STATES,

by an ordinance of the common council, dated APRIL 7, 1884.

June 14, 1852, the 6th section of which is as fol


· Section 6. The said company shall erect and main

tain on the western or inner line of the ground pointed Where a municipal ordinance, granting to a railroad the

out for its main track on the lake shore, as the same is right of way through the city, requires it to maintain

hereinbefore defined, such suitable walls, fences, or suitable fences, and provides that upon the acceptance by the company of the benefit of the ordinance covenants

other sufficient works as will prevent animals from shall be executed by both parties, embodying its terms, straying upon or obstructing its tracks and secure perthe enactment is not merely a contract between the pub- sons and property from danger, said structure to be of lic corporation and the railroad, but a positive mandate suitable materials and sightly appearance, and of such for the benefit of the individual citizens, any one of whom

height as the common council may direct, and no is entitled to recover damages suffered by him through

change therein shall be made except by mutual conthe neglect of the company to discharge the duties thus imposed

sent; provided however that the company shall conThe ordinance requiring such sufficient walls and ences to be

struct such suitable gates at proper places, at the ends maintained as would secure persons and property froin

of the streets which are now or may hereafter be laid danger, said structure to be of such height as the city

out, as may be required by the common council, to council may direct," held, that the obligation to build suf- afford safe access to the lake; and provided also that ficient fences was absolute. The right of the council was in case of the construction of an outside harbor, streets to give specific directions if it saw proper, and to super- may be laid out to approach the same, in the manner vise the work when done, if necessary; but it was matter provided by law, in which case the common council of discretion, and they were not required to act in the

may regulate the speed of locomotives and trains first instance, nor at all, if they were satisfied with the

across them."
work as executed by the railroad company.
The plaintiff, a child, who was playing in a public park

It was also provided in the ordinance, that it should

be accepted by the railroad company within ninety strayed upon the railway and was injured ; held, that it was a question of fact for the jury whether the absence of

days from its passage, and that thereupon a contract

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under seal should be formally executed on both parts, einbodying the provisions of the ordinance and stipulating that the permission, rights, and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853.

The work of filling in the open space between the railroad tracks and the natural shore line was done gradually, more rapidly after the great fire of October 9th, 1871, when the space was used for the deposit of the debris and ruins of buildings, and the work was completed substantially in the winter of 1877--8.

In the meantime several railroad tracks had been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly.

The railroad company had also partially filled with stones and earth the space east of its tracks, to the breakwater, sufficiently so in some places to enable people to get out to it. This they were accustomed to do, for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great nuinbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the park to ferry. boats.

From Park Row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order.

The park was publio ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts.

The plaintiff was a boy between eight and nine years of age, bright and well-grown, but deaf and dumb. His parents were laborig people, living, at the time of the accident, about four blocks west of Lake Park, Across the street from where they lived was a vacant lot where children in the neighborhood frequently played.

On Sunday afternoon, March 17, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play ; while playing there a procession celebrating the day passed by, and the plaintitf, with other boys, but without the observation of bis brother, followed the procession to Michigan avenue at 12th street, just south of Lake Park; he and his companions then returned korth to the park, in which they stopped to play: a witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round toward it he saw the plaintiff on the tracks south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train motioning as if he wanted the plaintiff to come along; the plaintiff started to run north beside the train, and as he did so,turned and fell, one or more wheels of the car passing over his arm. There were four tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out toward

the car, as he ran, as if he was reaching after it. and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.

The question of contributory negligevce does not appear to us to arise upon this record. It is not conta tended by the counsel for the defendant in error, that if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question therefore for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury.

The particular negligence charged in the declaration and relied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14, 1852, a breach of which, resulting in his injury, confers on the plaintiff a right of action for damages.

It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that at common law the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, ag is required by the maxim, sic ulere tuo, ut non alienum ladas; that consequently in circumstances where the public safety requires such a precaution, as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty.

This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. “These cases," said the Supreme Court of Massachusetts in Eaton v. Fitchburg R. Co., 1.29 Mass. 364, "all rest on the commonlaw rule that when there are different public easements to be enjoyed by two parties, at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the Legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to gire certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary." It was accordingly held in that case, that the jury might properly consider, whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations.

And the same principle has been applied in other cases, than those of the actual coincidence, at crossings, of public highways.

In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in

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