real estate, the committee cannot lease his lunatio's real estate without an order of the court, nor is his power extended by section 27, declaring that a lunatic's real estate shall not be leased for more than five years, or mortgaged or aliened or disposed of otherwise than herein directed." A survey of the earlier authorities, oited quite fully upon the briefs of both parties, has led me to the conclusion that the committee of a lunatic has no title to or interest in the latter's real estate; that he becomes its mere custodian or bailiff, and is such solely as the agent or representative of the court, and has no independent power to dispose of the real estate in any manner whatever. In substance that at least is the doctrine of this court. In re Otis, 101 N. Y. 581, it was declared that the committee had no interest in the property; that his possession was the possession of the court, and his authority that of its agent acting under its direction. The provisions of the statute in force at the time fully accord with this doctrine. Laws 1874, chap. 446, p. 571. Section 1 of title 2 vests in the Supreme Court the care and custody of Junatics and their estates. The committee thus becomes merely the officer or agent of the court, and has no authority except such as comes from that source, or is vested in him by statute. If the real estate is to be sold, application must be made to the court and its order obtained. Section 6. If a lease is necessary to accomplish specified results the court is expressly authorized to order it (section 9); and all sales, leases, etc., made by the order of the court are declared to be as valid and effectual as if made by the lunatic himself. So far no authority is found for the lease of real estate except by direction of the court as custodian and trustee of the estate; and the statute not only reserves that authority to the court, but by a very plain implication denies its existence elsewhere. The committee is but the hand of the court, moving only as moved by the dominant will, unless by an implication derived from section 27, the hand is furnished with a brain or will of its own. That section reads: "The real estate of any idiot, lunatic or person of unsound mind, or person incapable of conducting his own affairs in consequence of habitual drunkenness, shall not be leased for more than five years, or mortgaged or aliened or disposed of otherwise than herein directed." The respondent claims that the phrase "otherwise than herein directed" relates as well to leases for more than five years as to mortgages and sales, and so the order of the court is needed only where a lease is proposed for a longer term than five years. I seriously doubt that construction. All authority to deal with the lunatic's estate had been previously vested in the court, and none outside of its direction given to the committee; and the final provision seems rather intended to prohibit absolutely leases for a longer period than five years, even by the order of the court, and not by a doubtful and uncertain implication to give to the committee an independent authority within that limit. It is apparent that under the form of a lease the committee of the lunatic assumed to put the latter's property in the complete control of a corporation, subject to its business success or failure, so far as compensation was concerned, reserving in the main no real rent, and even the nominal rent to be fixed by others, and contracting solely for speculative results. Whatever may be said as to an independent power of a committee to make an ordinary and customary lease for a short term, I have no doubt that a contract like the one before us, running for ten years, tying up the lunatic's estate to the fortune of an untried experiment, never was, either at common law or under the statute, within the authority of a committee acting independently of the court. It was a lease only, technically and in form. Substantially it was a transfer of the blocks for the period named upon a consideration speculative, contingent and doubtful, and making the estate a partner in a corporate enterprise, so far at least as its possible profits were concerned, and perilliug its rental value upon the fortunes of the enterprise. The court itself might well have hesitated had its authority been sought; but no technical argument founded upon the form of a lease can bring this most unusual and extraordinary contract within the independent authority of a committee. If by possibility the length of the term could be rejected, there would still remain the inherent character of the contract beyond the committee's authority. Oct. 2, 1888. Pharis v. Gere Opinion by Finch, J. MALICIOUS PROSECUTION-EVIDENCE-COMPETENCY. -(1) In an action for maliciously suing out a peacewarrant, it being shown that defendant took an offi cer to plaintiff's home, and threatened to dispossess her by a writ on a judgment of which defendant waassignee, against one not her privy in estate, whereupon she threatened that if the officer dispossessed ber there would be trouble, this being the ground for the warrant, evidence that the deed under which plaintiff claimed was without consideration, and intended to defeat the execution for possession, is irrelevant. (2) Nor is evidence admissible that defendant, at the time of the threats, knew of resistance to and the killing of officers shortly before in the vicinity in the execution or writs on similar judgments, viz., for the non-pay. ment of rent on the Van Rensselaer leases. Oct. 2, 1888. Wright v. Church. Opinion by Danforth, J. MORTGAGE-CHATTEL-VALIDITY-ASSIGNMENT FOR BENEFIT OF CREDITORS.-Defeudant agreed with a debtor, who owed him $980.79, to take a chattel mortgage on property worth about $2,500, to secure the debt and $600 advanced, and to assume other debts amounting to $619.21, and to pay any surplus that might remain to the debtor. Defendant could sell the property on credit, but was to account for such sale as cash, and to have $200 for his services. Property worth about $600 was left in the debtor's hands. Held, a valid mortgage, and not a general assignment for the benefit of creditors. Oct. 2, 1888. Brown v. Guthrie. Opinion by Finch, J. MUNICIPAL CORPORATIONS-POLICE DEPARTMENTDECISION OF COMMISSIONERS-REVIEW-DISMISSALINTOXICATION.-(1) On trial of an officer before the police commissioners the proof showed conclusively that defendant was found asleep in a room on his beat, and was thoroughly intoxicated, so that he could not walk or stand, and that he afterward admitted it. This was uncontradicted, and the only evidence for defendant showed that a physician, who had prescribed for him, had told him that it would do him no harm to take a little brandy, and that at the time charged a friend had given him brandy and ginger. The commissioners dismissed defendant from the force. Held, that there was no conflict of evidence within the meaning of section 2140, subsection 5, of the New York Code of Civil Procedure, authorizing the General Term, on appeal, to set aside the commissioners' decision, where the preponderance of evidence is such that a jury verdict to the same effect would be set aside, as against the weight of evidence; and that the court could not review the decision. (2) Under a rule expressly providing that a member of the police force may be dismissed for intoxication, neglect of duty or conduct unbecoming an officer, the commissioners had a right to dismiss defendant. Oct. 2, 1888. People, ex rel. Masterson, v. Police Commissioners. Opinion by Ruger, C. J. PARTITION-PLEADING-ALLEGATION OF POSSESSION -PLEA OF PURCHASE-ADVERSE POSSESSION- IM OF PROVEMENTS- RENTS AND PROFITS- -STATUTE FRAUDS AGREEMENT RELATING TO LANDS-TRIALSUBMISSION TO COURT-STATEMENT OF FACTS.-(1) Under section 8, page 584 (6th ed.), 3 Revised Statutes of New York, providing that a petition for partition of land shall set forth the title of all persons interested therein, and section 9, providing that such persons may be made parties, an allegation that the ancestor and each of the parties owned in fee is a sufficient allegation of possession; the law drawing to the title such constructive possession as is necessary to maintain the action. (2) The defense of an executory agreement for the purchase by defendant of plaintiff's interest in the land forms an issue properly triable in partition. (3) Possession of land of an ancestor as administrator, or as one of the tenants in common, is not adverse, and does not prevent partition. (4) Allowance to defendant for improvements made by him on the land, not having been demanded in the answer, it may be assumed that the rents and profits of the lands were a substantial compensation therefor. (5) There had been some oral negotiations for the purchase of land. Nothing was paid on the agreement, and the conditions were not performed. Though defendant had taken possession, it was as tenant in common, and not under the agreement. He wrote several letters to plaintiff after the negotiations, recognizing her title, and referring to the transaction as unsettled. Held, that the agreement was not final, and was void under the statute of frauds. (6) Under section 1023 of the New York Code of Civil Procedure, providing that before a cause is finally submitted to the court attorneys shall submit in writing such a statement of facts as they deem established by the evidence, requests to the trial judge to find on questions of fact, presented subsequent to the submission and decision of the case are properly refused. Oct. 2, 1888. Wainman v. Hampton. Opinion by Earl, J. PARTNERSHIP-WHAT CONSTITUTES-EVIDENCE-ESTOPPEL. (1) In an action by a depositor against several as partners in a private bank, plaintiff's evidence as to one defendant was that he owned stock in a national bank formerly doing business in the same room, under the same management and directorship, discontinuing its business at the time the new bank commenced, the accounts of depositors in the former being transferred to the new bank; that defendant's position as director was advertised by cards in the window or on the desk of the bank, which defendant knew; that he acknowledged being a stockholder; that the assets of the old bank were never disturbed, but each stockholder retained the same interest in the new bank; and that defendant had indorsed notes to assist the bank to large sums in time of need. The other persons interested in the new bank did not testify, but defendant contradicted the material parts of this evidence. Held sufficient to justify the referee's finding that defendant was a partner. (2) Declarations of the managing officers of the bank at the time plaintiff deposited, to the effect that two of the defendants were copartners, made in their absence, are admissible to show that plaintiff relied on that fact, on the theory of equitable estoppel, although unless supplemented by proof that defendants authorized or acquiesced in the statements, they would fail to establish such estoppel. (3) Although a witness who testified to a conversation with defendant was permitted to state that immediately after it occurred he called the attention of another person to it, such evidence being of little importance, the error of its admission, if any, is insufficient to reverse the judgment. Oct. 2, 1888. Rogers v. Murray. Opinion by Andrews, J. TELEGRAPHS--CONTRACT TO DELIVER MESSAGEWITH AGENT.-(1) A complaint which alleges that plaintiff stated to the defendant telegraph company that he was expecting a message, addressed " Mentor, New York," and was the person intended by such address, and requested defendant to deliver it to him on arrival; that he then offered to pay for the service in advance, which defendant declined to accept, but entered his name on its register as that of a person entitled to receive a message addressed to Mentor," and promised to deliver it as soon as it arrived-shows a contract based on sufficient consideration, and which it was competent for defendant to make. (2) In Leonard v. Telegraph Co. an action was sustained on account of a change made in the language of a telegram passing between two of the plaintiff's agents, by which a loss was inflicted upon their common principal. In Playford v. Telegraph Co., L. R., 4 Q. B. Div. 706, in an action brought by the person receiving a message against the telegraph company for having negligently changed the terms of the dispatch in course of transmission, whereby the plaintiff suffered damage by acting upon it as received, it was held that the company was under no contract obligation to the plaintiff to deliver the message correctly, but it was conceded, if the senders had been the agents of the plaintiff in the business to which the message related, that a recovery could have been had. Some of the authorities in this country go still further, and hold that a telegraph company rests under a legal duty to the person to whom a message is addressed, when he is the party solely interested, to transmit it correctly, and deliver it to him; but it is unnecessary in this case to pass upon that question, and we therefore express no opinion upon it. De Rutte v. Telegraph Co., supra; Wadsworth v. Telegraph Co., 8 S. W. Rep. 574. We are therefore of the opinion that the plaintiff could avail himself of the obligation of the original contract for the transmission of the message, and recover for a breach thereof such damages as he might be able to show he had suffered from the alleged breach. We are also of the opinion, that aside from the contract referred to, the complaint states a valid contract between the plaintiff and defendant made at New York, in anticipation of the arrival of the message at that place. (3) The message having been sent by plaintiff's agent, and plaintiff being the only person interested in it, defendant is also liable to him for its uon-delivery, on the contract of transmission made by it with his agent. (4) The rule that a principal is entitled to maintain an action upon a contract made by his agent with a third person, although the agency is not disclosed at the time of making the contract, has many illustrations in the reported cases, and is elementary law. Coleman v. Bank, 53 N. Y. 388; Briggs v. Partridge, 64 id. 357: Ford v. Williams, 21 How. 288; Dykers v. Townsend, 24 N. Y. 57. This principle has been frequently applied in actions against telegraph companies, and is now the settled law of this country in respect to such corporations. De Rutte v. Telegraph Co., 1 Daly, 547; Leonard v. Telegraph Co., 41 N. Y. 544; Telegraph Co. v. Dryburg, 35 Penn. St. 300; Baldwin v. Telegraph Co. 1 Lans. 128. Oct. 2, 1888. Milliken v. Western Union Tel. Co. Opinion by Ruger, C. J. WATER AND WATER-COURSES-MILL PRIVILEGEEXTENT-EQUITY-JURISDICTION-DECREE.- (1) The owner of a "grist-mill privilege, being the first on the stream, for two run of stone, with the necessary apparatus for the same," is not limited in his enjoyment of the privilege to the particular mill standing at the time the grant was made, nor to any particular spot on the stream, but only to the use of "two run of stone and the necessary apparatus for the same." Cromwell v. Selden, 3 N. Y. 353. (2) Equity has jurisdiction on the ground of avoidance of a multiplicity of actions, and of the inadequacy of legal remedies to enjoin persons from conducting water away from the WILLS-UNDUE INFLUENCE-COSTS.—(1) A will made when testator was in full possession of his mental faculties, giving his entire property to a stranger in blood, revoking a will made some time previously, wherein his wife was sole legatee, testator and his wife being on bad terms, and the legatee under the will having cared for him for years before his death, will not be set aside, there being no direct evidence of undue influence, although there was some evidence of improper relations between testator and the legatee. Even if his relations with Mrs. Schaumburg were meretricious; the law does not on that account condemu a will made in her favor. Where such relations exist, all the circumstances attending the execution of a will, which may be shown to have been induced thereby, will be carefully scrutinized; but the right of a competent testator to make any disposition of his property which pleases him, although it may be unjust and unnatural, will not be curtailed. Sequine v. Sequine, 4 Abb. Dec. 191; Horn v. Pullman, 72 N. Y. 269; Marx v. McGlynn, 88 id. 357; In re Martin, 98 id. 193. (2) While under section 2558 of the New York Code of Civil Procedure, a surrogate may, on the unsuccessful contest of a will, allow the contestant costs, to be paid out of the estate, if he finds the contest to have been in good faith, such allowance is discretionary. Oct. 2, 1888. In re Mondorf's]Will. Opinion by Earl, J. ABSTRACTS OF VARIOUS RECENT DE- TURNPIKES CONTRACT RESCISSION ESTOPPEL AND TOLL-ROADS - FAMILY PASS.-Under a parol contract with a turnpike company, by which plaintiff sold land in consideration of the right for himself and family to pass perpetually through certain toll-gates free of charge, plaintiff exercised his right for more than fifteen years, and the corporation held the undisputed use and possession of the land for the same time. Held, that the corporation was estopped from denying plaintiff's rights, and rescinding the contract as parol. It is now too late to surrender a title thus acquired by rescinding the contract, and tendering back to the appellant the possession and use of what is now the property of the turupike company. If the appellaut had instituted his action against the company for the possession of this land on the idea that the contract was by parol, or there was no written order from the board authorizing the purchase, it is manifest that no recovery could have been had by him. While there is proof conducing to show that some of the stockholders or parties in interest were not aware of the extent of the contract, the decided weight of the testimony shows that the corporation, and those having the immediate supervision of the road, knew all about it, and with the additional fact that the right of passage free of toll was exercised for so long a time, there can be no doubt as to the existence of such a contract, and the rights of appellant under it. The contract was evidently made with D. B. Williams, and the appellee, when he purchased Williams' interest, knew the na ture of Park's claim, and purchased subject to it. The question of notice however is not material in this case. The appellee purchased the stock in the corporation. He now owns the stock, and when he purchased he acquired all the property of the corporation, and this included the land obtained from the appellant for the use of the company. He had no more right to sur render the land, and repudiate the contract, than the company had. The corporation is still the owner, and the appellee the sole stockholder, and both are now estopped to deny appellant's right. No other claim is asserted than the right of the appellant to the passage free for his own family purposes. The fact that his family may have increased in numbers can make no difference. While he would have no right to claim that others living with him, and not depending upon him for a support, had the right to [the benefit of the contract, his own family had, and with it the right to pass stock and haul his produce to and from his farm free of charge. If the land had increased in value, it would have afforded the appellant no excuse for rescinding the contract. There is nothing in this record showing that the appellant has made an improper use of the contract, and no equitable reason for rescinding it. The contract is reasonable, and the exercise of rights under it for so long a time is conclusive as against testimony merely negative in its character, and that in no wise contradicts even the statements made by appellant as to the making of the contract. Ky. Ct. App., Sept. 25, 1888. Park v. Richmond & I. Turnpike Co. Opinion by Pryor, J. CORPORATIONS STOCKHOLDERS INDIVIDUAL LIABILITY TO EMPLOYEES - ESTOPPEL.-Under act of Tennessee, 1875, which gives servants and employees of certain corporations a claim for wages against individual stockholders, in addition to the liability of the corporation, an employee does not, by taking a note of the corporation for such wages, and attemping to collect from the corporate assets, waive his rights against the individual stockholders. (1) Each wage-earner of the Chronicle Company had two sources for the pay. ment of his debt-First, the corporate assets; and second, the individual stockholders. The current of adjudged cases in other States seems to hold that each stockholder, upon becoming such in a company with this individual liability provision, does so with the understanding that he will not be held to pay individually until the corporate assets have been found to be insufficient. We assent to the soundness of this proposition. 2 Mor. Priv. Corp., § 869 et seq.; Thomp. Liab. Stockh., § 334. It follows therefrom that the plaintiff, Jackson, in seeking to collect his debt for wages in the first instance from the assets of the Chronicle Company, was in the line of duty, and cer tainly not thereby estopping himself from afterward availing himself of the benefit secured him by the individual liability clause of the charter, and that the trial judge is in error, and his judgment should be reversed. (2) But it is insisted that the defendant, Meek, having parted with his stock in November, 1885, some two years before the suit against him before the justice was commenced, his individual liability for the plaintiff's debt for wages ceased to rest on him, and passed over to his transferee, to whom the plaintiff must now look. Is this correct? When the wageearners who were in the employ of the Chronicle Company, and continued with it, contracted upon the faith of this individual liability clause, the offer of the shareholder contained in the clause in question being accepted by the "servants and employees" of the company, ripens into a binding contract. This binding contract was upon the shareholders who were such at the time the service was rendered. This individual liability, when ripened into a binding contract, is beyoud the control of the company or its officers. None but those for whose benefit the provision was made can release them from the contract. To hold differently would practically destroy this provision for the wage-earner's benefit. When the shareholder sees the approaching insolvency of the corporation, he has only to make a transfer of his stock to a straw man, fold his arms, and let the crash come. We hold that the Legislature did not intend to place the life of this security in the hands of the shareholder, but designed it to be a security, the burden of which cannot be shifted by the shareholder to another, to the prejudice of the wage-earner, without his concurrence. If material, it is not shown to whom the defendant Meek's stock was transferred-whether to one able to discharge the liability for wages nor whether transferred in good faith. Under the facts of this case the defendant Meek had not relieved himself of liability, under this clause, to the plaintiff. The judgment of the court below is reversed, and the plaintiff will have judgment here against the defendant, Meek, for the amount of the justice of the peace's judgment, with interest, and for all of the costs of the cause. Tenn. Sup. Ct., Oct. 4, 1888. Jackson v. Meek. Opinion by Farrer, J. RAILROAD-NEGLIGENCE-INJURIES TO PERSONS ON TRACK- CONTRIBUTORY NEGLIGENCE. The trackwalker of a railroad company discovered a man about 10 o'clock at night lying on the track, in such a position that a passing train would kill him, and when he aroused him, and told him the train was coming presently, and he had better get off the track, the man raised his head, leaned on his elbow, and by an exclamation assented to the suggestion, showing no signs of intoxication; thereupon the track-walker passed on, and the man was killed two hours afterward by an express train. Held, that the track-walker was guilty of no negligence which rendered the railroad company liable. It is argued that the failure of the trackwalker to signal and stop the train was the proximate cause of the injury, and negligence on the part of the company's agent for which the company is liable in damages. After a careful consideration of the whole case however we have come to the opposite conclusion. The deceased was not only a trespasser, but a trespasser who was guilty of the grossest negligence. There is no evidence to justify the inference that he was sick. His conduct therefore in lying on the track was either the result of intoxication, as the argument of plaintiff seems to assume that it was, or of mere recklessness. In either event his conduct was equally culpable. In cases of intoxication or gross recklessness, such as this was, the better opinion in this country is that the company is not liable for any thing short of a willful and wanton injury. In Herring v. Railroad Co., 10 Ired. 402, where two of the plaintiff's slaves, who were allowed to go about on Sunday, became intoxicated and went upon the defendant's track, and laid down and fell asleep, at a point on the road where they could have been seen by the engineer if he had been looking out for a distance variously estimated by the witnesses at from 200 yards to a halfmile, and were killed by a passing train, it was held by the court that their being upon the track, in a condition of helpless intoxication, was such contributory negligence as will prevent a recovery unless the company was guilty of wanton injury. See also Railroad Co. v. Hutchinson's Adm'x, 47 Ill. 409; Beach Contrib. Neg. 294, note 1, and cases cited; id. 205, note 3. But it is insisted on behalf of the plaintiff that an intoxicated, or even desperate, reckless person, is not beyond the pale of the law, and that this case falls within the well-established qualification of the general rule, which allows a plaintiff to recover although he has been guilty of negligence or want of ordinary care, which has contributed to cause the accident, if the defendant could by the exercise of proper care and caution, after having knowledge of the plaintiff's negligence, have avoided the mischief which happened. Railroad Co. v. Anderson's Adm'r, 31 Grat. 815; Dun v. Railroad Co., 78 Va. 645; Rudd's Adm'r v. Railroad Co., 80 id. 546. The question therefore is narrowed down to the inquiry whether the track-walker was derelict in the discharge of any duty to the deceased for which the company should be held liable. Upon this point we have no difficulty in saying that under the circumstances of this case the track-walker did all that could be required of him. There was nothing in the conduct of Boswell which could lead Harrison to suspect that he was drunk or physically disabled. When accosted by Harrison, and told that he must get up and get off the track-that the train was coming presently-he, Boswell, got partly up, leaned on his elbow, and assented to the suggestion in such a manner as to convince Harrison that he understood him; and under the circumstances Harrison had the right to presume that Boswell would take such measures to protect himself from danger as reasonable persons would be sure to take under such circumstances. Va. Sup. Ct. App., Feb. 17, 1887. Virginia M. Ry. Co. v. Boswell's Adm'r. Opinion by Hinton, J. INJURY TO TRESPASSER-CHILDREN.-A. boy of the age of nearly ten and one-half years, and of average intelligence, who had been frequently in the vicinity of a railway turn-table, and had a general knowledge of its structure and operation, and had been repeatedly warned by his father that it was dangerous to play upon it, and told not to do so, and knew that the railway company prohibited children from playing on the table, and also knew that he had no right to play upon it, and that it was dangerous to do so, engaged with other boys in swinging upon it while in motion, and was injured by his foot being caught between the arm of the table and the stationary abutments. Held, that the conduct of the boy amounted to contributory negligence, although he might not have been of sufficient age and discretion to understand and comprehend the full extent of the danger to which his conduct exposed him. The rule invoked by plaintiff is that laid down by this court in Keffe v. Railroad Co., 21 Minn. 207, and by the Supreme Court of the United States in what may be termed the Pioneer "Turn-Table Case" (Railroad Co. v. Stout, 17 Wall. 657), in which it is held that the owner of dangerous machinery, who leaves it in an open place, though on his own land, where he has reason to believe that young children will be attracted to play with it, and be injured, is bound to use reasonable care to protect such children from the danger to which they are thus exposed. The line of argument adopted in the Keffe Case, in support of this rule, is that such machinery, being attractive to young children, presents to them a strong temptation to play with it, and thus allures them into a danger whose nature and extent they, being without judgment and discretion, can neither apprehend nor appreciate, and against which they cannot protect themselves; that such children may be said to be induced by the owner's own conduct to come upon the premises; that what an express invitation is to an adult, an attractive plaything is to a child of tender years; that as to them such machinery is a hidden danger-a trap. Much of the briefs of counsel, especially of that of defendant, is devoted to the consideration of the doctrine of these so-called "turn-table" cases, and of the question of the duty, if any, which the owner of dangerous machinery or other articles situate on his own premises owes to intermeddling or trespassing children. The doctrine of these cases has been ques tioned by some courts, and repudiated by others, who hold that a land-owner is not bound to take active measures to insure the safety of intruders, even children, nor is he liable for any injury resulting from the lawful use of his premises to one entering without right; that to intruders or trespassers the land-owner owes no duty; and where there is no duty to perform there can be no negligence. Frost v. Railway Co., 9 Atl. Rep. 790. Applied to one of sufficient mental capacity to be a conscious trespasser, this is undoubtedly a sound rule; but if applied to children of tender years, strictly non sui furis, it would seem harsh and inhuman. Properly qualified and limited in its application, the doctrine of the Keffe Case is, in our judgment, in accordance with both reason and the dictates of humanity. But some of the cases have undoubtedly gone too far. By adopting an extreme or extraordinary standard of duty on the part of the laud-owner on the one side, and on the other side by attributing the conduct of all children to their childish instincts so as to exempt them from the charge of contributory negligence, regardless of age or mental capacity, it is obvious that the rule of the Keffe and similar cases is capable of indefinite and unbounded applicability. To the irrepressible spirit of curiosity and intermeddling of the average boy there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity, he can make a plaything out of almost any thing, and then so use it as to expose himself himself to danger. If all this is to be charged to natural childish instincts, and the owners of property are to be required to anticipate and guard against it, the result would be that it would be unsafe for a man to own property, and the duty of the protection of children would be charged upon every member of the community except the parents of the children themselves. This court itself, if it has not modified the Keffe Case, has at least indicated that the doctrine which it announces is not to be given any such extreme and unlimited application. Kolsti v. Railroad Co., 32 Minn. 133; Emerson v. Peteler, 35 id. 481. It is unnecessary however to determine whether, upon the facts in the present case, the finding of negligence on part of the defendant can be sustained, inasmuch as it is clearly established by both the evidence and the special findings of fact that the boy himself was guilty of contributory negligence. The law very properly holds that a child of such tender years as to be incapable of exercising judgment and discretion cannot be charged with contributory negligence; but this principle cannot be applied as a rule of law to all children without regard to their age or mental capacity. Children may be liable for their torts or punished for their crimes, and they may be guilty of negligence as well as adults. The law very humanely does not require the same degree of care on the part of a child as of a person of mature years, but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have the mature judgment of an adult will not excuse a child from exercising the degree of judgment and discretion which he possesses, or for disregarding the warnings and orders of his seniors, and heedlessly rushing into known danger. In the Stout Case, the defendant made an express disclaimer of any contributory negligence on part of the plaintiff. In the Keffe Case, which was disposed of on the pleadings, this court said: "It was not urged upon the argument that plaintiff was guilty of contributory negligence, and we have assumed that he exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using." And as was re marked in the Keffe Case, in the cases cited in support of these "turn-table" cases, the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty by reason of the fact that the plaintiff was a trespasser, who by his own act contributed to the injury; and the distinction is not sharply drawn between the effect of plaintiff's trespass as a bar to his right to require care, and the plaintiff's contributory negligence as a bar to his right to recover for the defendant's failure to exercise such care as it was his duty to use. But the authorities are all one way, and to the effect that even a child is bound to use such reasonable care as one of his age and mental capacity is capable of using; and his failure to do so is negligence. Wendell v. Railroad Co., 91 N. Y. 420; Messenger v. Dennie, 141 Mass. 335; Railway Co. v. Eininger, 114 Ill. 79; Brown v. Railroad Co., 58 Me. 384; Achtenhagen v. City of Watertown, 18 Wis. 331; Masser v. Railroad Co., 68 Iowa, 602; Murray v. Railroad Co., 93 N. C. 92; Ludwig v. Pillsbury, 35 Minn. 256; Railroad Co. v. Gladmou, 15 Wall. 401; Gillespie v. McGowan, 100 Penn. St. 144. Minn. Sup. Ct., Aug. 30, 1888. Twist v. Winona & St. P. R. Co. Opinion by Mitchell, J. SALE-DELIVERY OF GRAIN TO ELEVATOR.-Plaintiff delivered grain to au elevator owner under au alleged contract that the latter could retain the grain on paying the highest market price therefor, and if he refused to do so plaintiff might withdraw the grain, and should pay for the weighing, but not for the stor age. No writing was delivered, except a memorandum of the amount delivered, and date of delivery, and plaintiff knew that the grain was indiscriminately mixed with other grain, from which the warehouseman was from time to time shipping in differeut quantities. Held, that the contract was a sale and not a bailment. These facts bring the case within the rule announced in Johnston v. Browne, 37 Iowa, 200, But it is said that the decision in that case is in conflict with the later one in Sexton v. Graham, 53 Iowa, 181. In the last-named case it was said that “where a warehouseman merely receives grain from several depositors with the understanding that it may be mixed in a common mass, and it is so mixed, the transaction is a bailment, and the depositors are tenants in common." And that doctrine seems to be sustained by the authorities. The majority opinion goes further, and holds, in effect, that the common mess from which each owner is entitled to draw need not contain any of the grain which constituted the original mess. This seems to have been based, in part at least, upon the thought that the warehouse receipt attaches to each new deposit, and that the receipt holder becomes and remains at all times a tenant in common of the mess which is being increased or diminished. The opinion was the result of the conclusion of the majority that the original transaction between Sexton & Abbott and Graham was one of bailment, and that while the entire contents of the warehouse were changed several times, yet that the amount of grain in store, at any given time, was neither greater nor less by reason of the change; and further, that by reason of the plan of handling the grain, all which the warehouse contained at any time was to be considered the common mess from which each depositor was entitled to draw. In other words, the majority opinion rests upon the conclusion of those who concurred in it that the grain in question was deposited under a contract of bailment, and that nothing afterward transpired to change the contract, nor to change the relation of the depositors to the contents of the warehouse. If the conclusions are correct, the decision |