of the common carrier. The case of Jones vs. Voorhees, 10 O. R. 145, ex-
plained. Ibid.

9. Although the common carrier may by special contract restrict his
liability, so far as he is an insurer against losses by mistake or accident,
he cannot thus exempt himself from losses caused by any neglect of that
degree of diligence pertaining to his peculiar character as bailee. Ibid.
10. The burden of proof, that the loss occurred from one of the excepted
causes, rests on the defendant. Ibid.

CATTLE.

See Railroads.

CHARITABLE USES.

1. A testator devised as follows: "Forasmuch as there will be a sur-
plus income of my estate beyond what will be necessary to pay my said
wife's annuity and the other annuities, I do therefore direct my said execu-
tors to invest the said surplus income and all accumulation of interest
arising from that source yearly, for and during all the term of the natural
life of my said wife, * and from and immediately after the decease
of my said wife, then all the rest, residue and remainder of all my estate,
I authorize and empower my executors, or the survivor of them,
after the decease of my said wife, to dispose of the same for the use of such
charitable institutions in Pennsylvania and South Carolina as they or he
may deem most beneficial to mankind, and so that part of the colored popu-
lation in each of the said States of Pennsylvania and South Carolina shall
partake of the benefit thereof." All the executors of the will died before
the testator's widow, and without having attempted to make an appoint-
ment under the power conferred on them. Held, that the disposition of the
residuary estate of the testator, subject to the power of appointment of the
executors, failed, and that the heirs and next of kin of the testator were
entitled to it. Fontain vs. Ravenel.

264, 380

2. No Court of Chancery, either in South Carolina or Pennsylvania, can
administer the fund in question, and it remains unaffected by the bequest,
because the means through which it was to have been given and applied
have failed. Ibid.

3. In England, when the Chanceller directs the application of property
which has been the subject of an ineffectual charitable disposition, in ac-
cordance with the will of the sovereign, indicated under the sign-manual,
or when that officer himself executes the cy pres power in regard to such
property, he does not act in the discharge of his ordinary chancery powers.
Ibid.

4. No special trust is vested in the executors, by reason of this power of
appointment. It is separable and distinct from their ordinary duties
and trust as executors. It was to be exercised after the death of the
wife of the testator; but the executors died before her decease, and con-
sequently they had no power to make the appointment. The conditions
annexed by the testator to the power rendered the appointment impos-
sible. Ibid.

5. There must be some creative energy to give embodiment to an inten-
tion which was never perfected. Nothing short of the prerogative power,
it would seem, can reach this case. There is not only uncertainty in the
benficiaries of this charity, but there is a more formidable objection-there
is no expressed will of the testator. He intended to speak through his exe-
cutors, or the survivor of them, but by the acts of Providence this has be-
come impossible. It is then as though he had not spoken, and no power
can now speak for him except that of the parens patriæ. Ibid.

6. When there is nothing more than a power of appointment conferred
by the testator, there is nothing on which a trust, on general principles,
can be fastened. The power given is a mere agency of the will, which
may or may not be exercised at the discretion of the individual. And if

there be no act on his part, the property never having passed out of the
testator, it necessarily remains as a part of his estate. To meet such cases,
a prerogative power, such as that of the king, in England, must be in-
voked, which there, through the Chancellor, can give effect to the charity.
Ibid.

7. Some late decisions in England, involving charities, evince a disposi-
tion rather to restrict than enlarge the powers exercised on this subject.
An arbitrary rule in regard to property, whether by a king, or chancellor,
or both, leads to uncertainty and injustice. Ibid.

COLLISION.

See Ship. 1-3.

1. Duties of steamers in the navigation of the Mississippi. Shute vs.
Goslee; Goslee vs. Shute.

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2. A steamer leaving the ordinary and usual track of vessels under the
circumstances, is bound to show some palpable necessity for the devia-
tion. Ibid.

3. An ascending boat, running at great speed in a dark night, at a time
when a descending boat is visible, of whose course she is doubtful, takes
the risk of a collision: she ought to ease or stop her engines, till she is
assured of the course of the other. I bid.

4. A steamer is responsible for a collision which a better lookout than
she had might have prevented. Ibid.

5. Where a collision is produced by the fault of one boat, she cannot
complain that the other had not used extraordinary measures of precau-
tion before, or the clearest judgment in the selection of the method of ex-
trication, after the collision became imminent. I bid.

6. A libellant, claiming damages on the ground of a collision with
another boat, must make it appear that there was no want of ordinary
care and skill, in the management of his boat, and that the injury for
which he claims compensation, resulted from the sole fault of the other
boat. But the faulty management of one boat, will not excuse the want
of proper care and skill in the other. Lucas et al. vs. The Steamboat

Swann.

7. A case of damage resulting from inevitable accident, is defined to
be, "that which a party charged with an offence, could not possibly pre-
vent by the exercise of ordinary care, caution and skill." Ibid.

8. There is no ground for the conclusion in this case, that the injury
was unavoidable; but on the contrary, it is a case of mixed or mutual
fault. I bid.

9. But to constitute a proper basis for a decree, apportioning the damages
equally to each boat, as in a case of mixed or mutual fault, the evidence
must enable the Court to find the specific faults of each, from which the
injury resulted. Ibid.

10. If the Court is satisfied, that both boats were in fault, and yet from
the conflict in the evidence, cannot find, with reasonable certainty, the spe-
cific faults of each, it constitutes a case of inscrutable fault; and, in such
case, in accordance with the law as settled in the United States, a decree
for the equal apportionment of the damages as resulting from the injury,
may be entered. I bid.

11. The present is adjudged to be such a case, and a decree is entered in
accordance with the principle stated. Ibid.

COMMITMENT.

See Habeas Corpus. 3.

COMMON CARRIER.

See Carrier. Railroads. Steamboat.

COMMON SCOLD.

See Criminal Law.

465

659

CONSTITUTIONAL LAW.

See Judgment. 1-6.

1. In 1760, the Legislature of New Jersey authorized certain owners of
meadow lands along Little Timber Creek to dam the said creek. Such
act is constitutional, and vests an interest; it is more than a mere license,
and cannot be revoked by the State. Glover vs. Powell.
2. The Legislature must be the sole judge and arbiter in determining
what streams shall be navigable, and when they may be obstructed and
their navigation destroyed for public necessity or convenience. Ibid.

3. An individual cannot question the legislation of the State as to the
rights of navigation, unless he can call to his aid the paramount authority
of the general government. Ibid.

4. What constitutes a navigable stream.

Ibid.

5. In 1854, the Legislature passed an act for the removal of the dam
erected and continued under the act of 1760; the act of 1854 violates the
Constitution of the State, and an injunction will be granted by this Court
to restrain any action under it. Ibid.

6. A forfeiture cannot be declared by the Legislature, it can only be
done by the Courts in due process of law. Ibid.

7. A Court of the United States has the power to prevent by injunction,
the present or future erection of any bridge under the authority of one of
the States, that by its construction will interfere with the navigation of a
public stream upon which there is a commerce to any considerable extent
with other States, though such stream lies wholly within the limits of the
State.
The question in such case is relative, whether the bridge be or be
not a greater obstruction to commerce than benefit to the public. Devoe
vs. Penrose Ferry Bridge Co.

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8. In such case, unless irreparable damage would be done to the de-
fendants thereby, and though an answer be put in denying both the fact
and the law, an interlocutory injunction may be granted upon affidavits,
at once, until further order; and an issue may be then directed to deter-
mine whether the bridge under its present form, &c., is a nuisance to the
navigation of the river, and if so, whether any bridge can be constructed
at the particular spot which will not be a nuisance. Ibid.

9. An action by the Federal Government is subject to the forms of plead-
ing and the rules of practice applicable to suits between individuals. The
United States vs. The Railroad Bridge Company, et al.,

10. The commercial power of the Federal Government under the consti-
tution, discussed. Ibid.

11. Land purchased for military purposes cannot be sold without special
authority from Congress; otherwise as to land reserved out of the public
domain and then abandoned. Ibid.

12. Construction of the Act of Congress of Aug. 4, 1852, granting the right
of way through public lands. Ibid.

13. The power of a State to grant the right of eminent domain to a private
corporation. Ibid.

14. The right of eminent domain is in the State, and the exercise of this
right by a State is nowhere inhibited in the Federal Constitution, or in the
powers exercised over the public lands. Ibid.

15. A State has power to authorize a railroad through the public lands of
the United States. Ibid.

16. Irreparable injury to the public lands will alone justify an injune-
tion. Ibid.

17. It is provided by the Constitution of Wisconsin, Art 8, 21, that "the
rate of taxation shall be uniform, and taxes shall be levied upon such pro-
perty as the Legislature shall direct." In 1854, the Legislature of that
State passed an act requiring "all Railroad Companies which were or
should be organized within the State," to pay to the State Treasurer
annually, for the use of the State, "a sum equal to one per cent. of the
gross earnings of their respective roads." The Act further declared, that
"this amount of tax shall take the place and be in full of all of the taxes

367

79

603

of every name and kind upon said road, and the property belonging to
the said companies or the stock held by individuals therein; and it shall
not be lawful to assess thereupon any other or further assessment or tax
for any purpose whatever."

Held, that this act was not unconstitutional, though the annual assess-
ment on Railroad Companies, was to be on income, instead of on property,
as in other cases; and though the companies were exempted thereby from
town, county, and district taxes. The Milwaukie and Mississippi Railroad
Co. vs. The Supervisors of Waukesha County,

18. Under the grant of power to Congress, to regulate commerce among
the several States, as given by the Constitution of the United States, the
general government has jurisdiction over navigable streams, so far as may
be necessary for commercial purposes. Jolly et al. vs. Terre Haute Draw-
Bridge Co.,

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19. A steamboat, enrolled and licensed pursuant to the Act of Congress,
is entitled to the protection of the general government, while engaged in
carrying on commerce between different States; and her owners have a
right to use the navigable streams of the country, free from all material
obstructions to navigation. Ibid.

20. In relation to the States carved out of the N. W. Territory, the guar-
anty in the ordinance of '87, as to navigable streams, is still in force.
Ibid.

21. The Courts of the Union, having jurisdiction of the parties in a civil
suit, are competent to administer the common law remedy for an injury
sustained by reason of an unlawful obstruction in a navigable stream,
without any express legislation by Congress, giving the remedy, and pre-
scribing the mode of its enforcement. Ibid.

22. The national jurisdiction over navigable streams does not deprive the
States of the exercise of such rights over them, as they may deem expedient,
subordinate to the power granted by the Constitution of the United States.
Ibid.

23. A bridge of sufficient elevation, or with a proper draw, is not necessa-
rily an impediment to navigation; neither is any structure or fixture such
impediment, which facilitates commerce instead of being a hindrance.
Ibid.

24. The inquiry in this case is, whether the bridge with the draw erected
by the defendant at Terre Haute, is a material obstruction to the navigation
of the Wabash river. Ibid.

25. If it occasions merely slight stoppages and loss of time, unattended
with danger of accident to life or property, it is not such obstruction.
Ibid.

26. The Terre Haute bridge was built under a charter from the State of
Indiana, which required a "convenient draw" in the bridge. This imports
a draw which can be passed without vexatious delay, or risk; and, if not
such a one, the charter is violated; but if it meets the requirement of the
act of incorporation, and is yet a material obstruction, it is a nullity for the
want of power in the legislature to pass such an act. Ibid.

27. If the jury find the bridge is a material obstruction, but that the
injury sustained by the plaintiffs' boat was the result of recklessness, or
want of skill in those having charge of her, the Bridge Company are not
liable, and evidence of the good professional reputation of the pilot will
avail nothing, if in this particular case, he was reckless and unskilful.
Ibid.

28. Depositions taken under the Act of Congress, without notice to the
opposite party, are admissible in evidence; but it is for the jury to deter-
mine the weight and credibility to which they are entitled. Ibid.

29. The evidence of experts, if uncontradicted and unimpeached, is
entitled to great weight. Ibid.

30. If the jury find for the plaintiffs, they may include in the damages
given, the probable earnings of their boat, for the time she was delayed in
repairing the damages sustained. Ibid.

CONSTRUCTION.

See Will.

CONTEMPT.

See Habeas Corpus. 3.

CONTRACT.

1. One to whom a slave is hired for a year, is entitled to no abatement of
the price because of the death of the slave after the commencement of the
term. Lennard vs. Boynton,

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2. A receipt containing an agreement, stipulation, or condition between
the parties, is in the nature of a contract. Wilson vs. Bailey,

3. Parties who appear on the face of a contract, to be the only parties
bound, cannot introduce parol proof to show that they are not the parties
bound, but the third persons are in reality the contracting parties. Ibid.

4. It is admissible, to show that the act of the party signing the contract,
is also the act of his principal, so as to render the latter also liable. Ibid.
5. Where the defendant answers that he executed the contract upon which
he is sued, as a broker or agent, and after the testimony is before the Court,
claims to amend his answer so as to show he executed the contract under
a mistake of his legal responsibility thereon, the Court will not grant leave
to amend unless the facts proved, show at least a reasonable probability
that this can be established. Ibid.

6. A master cannot absolve himself from the legal and equitable obli-
gation to take care of his slave; and if he refuse to do so, he is liable for
medical and other relief furnished by others. Thompson vs. Alexander,

7. If a slave be hired to an insolvent, or be out of the possession of the
hirer, and be placed in a situation to require instant and indispensable
medical aid or other assistance; in such a case the owner, as well as the
hirer, would probably be liable for necessary medical and other services. Ib.

8. The hirer of the slave, and not the general owner, is liable in an action
for medicine and medical services rendered the slave while the term of hiring
continued the services and medicine not being rendered at the request of
the owner, but at the request of the hirer. Ibid.

9. A particular custom in a country, that the general owner shall pay
the expenses, does not supersede or control the legal principle. Ibid.

10. The hirer of a negro is not entitled to an abatement from the price on
account of the sickness of the negro, unless the sickness originated in causes
existing at the time of hiring, and which were unknown to the hirer. Ibtd.

11. The hirer of a slave is bound to use ordinary diligence, in regard to
the health of the slave; that is, such diligence as a prudent man commonly
takes of his own slave; and this ordinary diligence is to be employed, not
only in protecting the slave from danger and disease, but likewise in dis-
covering the disease if it exists, and in its treatment also. Ibid.

12. If the hirer of a slave fail to perform his duty in supplying the slave
with medical and other necessary assistance, the owner may do it, and look
to the hirer for reimbursement. Ibid.

13. Under special circumstances, the hirer, although preliminarily liable
to the physician, might, nevertheless, be entitled to relief, as between the
owner and himself, especially in a Court of Equity. Ibid.

14. If a slave hired for general and common service, be employed at any
hazardous business, without the consent of the owner, and death, or any
other damage ensue, the hirer would make himself liable for the injury. Ib.

15. Notwithstanding the hirer be answerable, in the absence of any
agreement to the contrary, for expenses attendant on the sickness of a
slave, it is competent to protect himself by contract. Ibid.
COPYRIGHT.

1. The copying of a statuette by means of the daguerreotype or other

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