defendant with negligence. The general rule doubtless is, that the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees or others who come upon them, not by invitation | either express or implied, but for their own convenience or pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be. 1 Thomp. on Neg. 303. To this rule however there are various exceptions, and one well recognized by the authorities is, where the owners of grounds are held liable for injuries to children, although trespassing at the time, where, from the peculiar nature and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such injury to flow therefrom as actually happened. In such cases it is held that the question of negligence is for the jury. See Union Stock Yards, etc. V. Rourke, 10 Bradw. 474, and the cases there cited. The distinguishing principle upon which all such cases rest is, that the persons injured were mere children, without judgment or discretion, and likely to be drawn by childish curiosity, or the instincts of childhood, into places of danger. In the present case, the jury should have been left to find from the evidence, whether the bridge in question was a dangerous structure, from which the defendant should reasonably have anticipated such injury to happen as the plaintiff actually suffered therefrom, and whether the servant of the defendant in charge of said bridge, under all the facts and circumstances appearing in evidence, used ordinary and reasonable care and precaution to prevent the happening of such injury. The case of City of Chicago v. Gavin, 1 Bradw. 302, decided by this court, and afterward by the Supreme Court (Gavin v. City of Chicago, 97 Ill. 66; S. C., 37 Am. Rep. 99), to which we are referred, does not, so far as we can see, conflict in the least with the view we have taken in this case. In that case there was no charge of negligence in operating the bridge, but merely in the manner in which it was constructed and maintained. The question was simply as to the measure of care required of a municipal corporation in the maintenance of its bridges, and it was held to be its duty to keep and maintain them in a reasonably safe condition, but not so as to render injuries to persons using them impossible. Here the defendant is a private corporation charged with negligence in operating a bridge erected by it either on its own grounds or in the public highway, for its own convenience and benefit, and the question is, whether there is any evidence for the jury to consider, tending to support the charge of negligence. The propositions now before us being so essentially different in all their features, from those involved in Gavin's case, we are unable to perceive the bearing of that decision as an authority here." The case bears a strong resemblance to the turntable cases. See Nagle v. Missouri Pacific Ry. Co., 75 Mo. 653; S. C., 42 Am. Rep. 418.

In a recent case in the Superior Court of the city of New York, Gilman v. McArdie, Judge Freedman

has held that a trust for saying masses for the repose of the soul of a deceased person is void. This is in harmony with the English decisions which hold such trusts void as being for a superstitious use. (See Rhymer's Appeal, 93 Penn. St. 142; S. C., 39 Am. Rep. 736, and note, 738.) But the judge discards this doctrine and puts his decision on other grounds. He says: "I do not hesitate to say that the doctrine of superstitious uses, as enforced by the courts of England, is against the spirit of our institutions and should not be adopted by our courts. It is a fundamental principle of our law that a man may do with his own as he pleases, provided he does not violate the law nor devote his property to an immoral use." (This was the view taken by the lower court in Rhymer's Appeal, where the judge said: "But a superstitious use can hardly be said to exist in this country, where in the absence of any State religion there can be no standard of orthodoxy." But this holding was reversed by the Supreme Court.) Judge Freedman after holding that the trust is not charitable nor for a pious use, continues: "The difficulty with the defendant's case is that the trust sought to be created by Mrs. Gilman is no trust at all known to law or equity, because there is no beneficiary or cestui que trust in existence or capable of coming into existence, under the trust, and that if for the reason stated the trust fails, the disposition made of the money cannot stand because it amounted neither to a gift nor to a disposition by last will or testament. Our statutes prescribe how the personal property of a person dying intestate shall be distributed. They disclose a well-defined policy upon that point. They apply to personal property and choses in action of every description not actually and finally disposed of by the intestate in his life-time in some mode recognized by the law, and they permit no other disposition. Consequently, as there was no will or a gift, unless a valid trust was created amounting to an actual and final disposition of the money in suit, the law steps in and directs where the money shall go. Now, as essential to the validity of every trust, there must be four things: (1) A subject matter; (2) a person competent to create it; (3) one capable of holding it as a trustee; and (4) one to whose benefit the trust is held. In the present case the first three exist, but the fourth does not. * * * The beneficiaries are both dead and beyond the reach of human law. Their souls are intended as the beneficiaries, and the money is to be expended for the repose of their souls. But the soul of one who has departed this life is incapable of taking an interest in the property left behind, nor is it in any sense subject to the jurisdiction of any legal tribunal. A court of equity protects the rights of the living. It cannot extend its jurisdiction to beings which cannot be apprehended within the boundaries of the realm. For the reason stated the trust sought to be created failed for want of a beneficiary. That being so, and there having been neither a gift nor a testamentary disposition, a resulting trust arises, by implication of law, under the circumstances of this

case, in favor of the plaintiff, as the legal representative of the husband of the donor, against the defendant, and the defendant must account."

It is now held that chasing a woman is not evidence of an intent to commit a rape upon her or injure her. State v. Donovan, Iowa Supreme Court, June 14, 1883, 16 N. W. Rep. 206. This was a conviction of assault with intent to commit rape. The court observed: "In the sixth instruction the court directs the jury in the following language: 'If a man chase a woman, who is alone, in a private place, an inference arises that he designs some personal injury, and the design must appear, if at all, from the other facts and circumstances shown, and what injury is designed. If the woman were his wife, no inference would arise of intent to commit rape; if a daughter, sister, or mother, the inference would be very slight; if a stranger, the presumption would be stronger, but not conclusive.' The meaning of this instruction is that the law raises an inference of the defendant's intent to ravish the prosecutrix from his act in chasing her. From the act and other facts of the case the jury may have found such an intent; but the law raises no presumption of such an intent solely from the defendant's act in pursuing the prosecutrix. It surely does not follow, as a legal presumption, that any specific offense is intended by the simple act of a man chasing a woman. It may be done without the intention to injure her; but the act, with other circumstances, may be considered in order to find the intent." This is in harmony with State v. Massey, 86 N. C. 658; S. C., 41 Am. Rep. 478, overruling State v. Neeley, 74 N. C. 425; S. C., 21 Am. Rep. 496, which held that a negro's chasing a white woman was evidence of an intent to commit a rape. We are glad to see Iowa ranging herself on the right side of this momentous question. Chasing a woman may possibly be resorted to only to propose marriage.

The case of Leavitt v. Searle, lately argued in the Supreme Court in the city of New York, raises a novel point under the married woman's acts. The action was against a married woman for breach of contract of service as an opera singer. The defense was that the contract was made without the husband's consent and against his wishes, that he refused to consent to it, and that it is therefore void. The defendant contended that changes wrought by the acts concern property alone; that the acts have not changed the wife's common-law obligations in respect to personal service disconnected from property, and that she is incapable of entering into a contract tending to deprive her husband of her personal service and "society" without his consent. The case was decided on other grounds, but the question thus raised illustrates the ingenuity of counsel. We confess we cannot see how counsel can get away from the statute, which expressly authorizes the wife to "carry on any trade or business and perform any labor or services on her sole

Opera singing is a "labor and services,"

and separate account," etc. "business," or at least it is and it does not deprive the husband of the wife's society, etc., any more than many other vocations. The acts of 1848 and 1849" did not change the rule of the common law giving the husband the right to the services and earnings of the wife, in cases where she had no separate estate, and where her labor was not connected with the use of her separate property. The act of 1860 remedied this defect in the prior laws." Birkbeck v. Ackroyd, 74 N. Y. 356. The contention of counsel would have been unquestionably sound before the act of 1860 Burton v. Marshall, 4 Gill, 487; S. C., 45 Am. Dec. 171, and note, 175), but we think is no less clearly unsound under the statute.

* * *

THE ALABAMA STATE BAR ASSOCIATION.

TH

HERE is a good deal of interesting matter in the "Report of the Fourth Annual Meeting of the Alabama State Bar Association, November 20 and 21, 1882." Mr. David Buell read a paper recommending the abolition of the Court of Chancery. He said: "As a court of exclusive equity jurisdiction, it maintains a lingering existence in this country in the States of Alabama, New Jersey and Delaware. In Mississippi it has been given jurisdiction of probate business, and in Tennessee and Vermont of nearly all civil business. It still exists in one county in Arkansas, seven counties in Kentucky, and in the city of Richmond, Virginia. Thus in thirty-eight States, three hold fast to the Chancery Court as it was of old, and is now in Alabama. Three States have yoked it with other jurisdictions. In three others it is local and special only, while in the remaining twenty-nine States it either has never had an existence as a separate jurisdiction, or it has been merged in courts of common-law procedure. The fact that the people of so many States, homogeneous with our own in every material respect, have discarded separate equity tribunals as superfluous and unnecessary, furnishes strong presumptive evidence that we could profitably dispense with this cumbrous and expensive adjunct to our judicial system. That many would regret its departure cannot be doubted, especially among the older practitioners at the bar, who have become so habituated to its peculiar methods that the creak of its ponderous machinery is music in their ears. * * * It is true that the moderate, easy, go-as-you-please gait of the Chancery Court is more agreeable to the average lawyer than the roughand-tumble contests before the court and jury. To sit down quietly, and think up what to say, and how to say it, and write it down carefully; to scan critically at leisure, what an opponent has written, and to carefully fortify every position with well chosen authorities, is, as the saying goes, a very pretty practice,' which is made still more attractive by the liberal recompense of reward which all feebills provide for services in chancery cases.

But

1. D. imported into New York a quantity of spelter, which under the name of tutenague was exempt from duty. The collector however claimed and received a duty of 20 per cent thereon, and subsequently D. sold the spelter to M. at long price, which by custom gave a purchaser the right to any drawback on duty which might be made. Afterward the collector decided that spelter was not dutiable, and paid back to D. the 20 per cent. In an action by M. claiming this duty, held, that M. could not recover, as the presumption was that both M. and D. knew at the time of the sale that the article was not dutiable. (2) "It is a reasonable presumption," it was said in case 1, "that those who are dealing in articles of commerce, especially those who purchase by wholesale from the importers, are acquainted with the different names by which such articles are known to the commercial world. And if spelter was actually exempted from duty by the names used in the section of the statute relative to exempt articles, probably both parties to this sale had reason for believing that the claim made by the collector was unfounded and that it would probably be reversed, and the duties be refunded to the importer. If so the purchaser should have made his contract with reference to that event, so as to secure to himself the benefit of the refunded duty in case it should turn out that the collector was wrong."

(C.)

1. A. employs B., a broker, to trade for him on the stock exchange. The general rules of the exchange are presumed to be known to A., and B. has an implied authority to contract in accordance therewith. (3) 2. It is the general custom in a certain trade to charge interest on accounts after a fixed time. Parties (1) Hinckley v. Kersting, 21 Ill. 247 (1859).

(2) Moore v. Des Arts, 2 Bark. ch 636 (1848.)

(3) Sutton v. Tatham, 10 Ad. & Ell. 27; Bayliffe v. Butterworth, 1 Ex. 25.

dealing therein are presumed to be cognizant of this custom, and are bound by it.(4)

3. It is the general custom of a bank to demand payment of notes and give notice on the fourth instead of the third day after they are due. Persons negotiating notes at this bank, or making commercial paper for the purpose of having it negotiated there, are presumed to know this custom.(5)

4. A dry goods salesman sues B., his employer, for wrongful dismissal. There is a general custom in the dry goods trade, that wheu a clerk or salesman begins a season without a special contract, he cannot be dismissed until the end of it. Both A. and B. are presumed to know this custom.(6)

All trades have their usages, and when a contract is made with a man about the business of his craft, it is framed on the basis of such usage which becomes a part of it unless there is an express stipulation to the contrary. (7) In case 1 it was said: "A person who deals in a particular market must be taken to deal according to the custom of that market, and he who di rects another to make a contract at a particular place must be taken as intending that the contract may be made according to the usage of that trade." In case 2 it was said: "The uniform custom of a merchant or

manufacturer is presumed to be known to those in the habit of dealing with him, and in their dealings they are supposed to act in reference to that custom." In case 3 it was said: "The parties are bound by such usage whether they have a personal knowledge of it or not. In the case of such a note the parties are presumed by implication to agree to be bound by the usage of the bank at which they have chosen to make the security itself negotiable." It must be borne in mind however that this knowledge is presumed only where the custom is a general and notorious one. A local, special custom in a particular trade is not presumed to be known even to persons doing business therein.(8)

RULE IV. The contents of a writing signed by a party himself, or by another at his request, are presumed to be known to him (a), and so of a paper drawn up by one for another (b), and the matters referred to in such writing.(c)

ILLUSTRATIONS. (A.)

1. An action is brought against F. on a written contract. S. testifies that he signed it at F.'s request for

(4) McAlister v. Reab, 4 Wend. 483, 8 id. 109; Meech v. Smith, 7 id. 315.

(5) Mills v. Bank of U. S., 11 Wheat. 431; Renner v. Bank of Columbia, 9 id. 582; Bank of Washington v. Triplett, 1 Pet. 25; Yeaton v. Bank of Alexandria, 5 Cranch, 49; Smith v. Whiting, 12 Mass. 6; Dorchester, etc., Bank v. New England Bank, 1 Cush. 177.

(6) Gisen v. Charron, 15 Md. 502, and see Lyon v. George, 44 Md. 295.

(7) Pittsburgh v. O'Neil, 1 Penn. St. 343; Rindskoff v. Barrett, 14 Iowa, 101; Beatty v. Gregory, 17 id. 109; Toledo, etc., Insurance Co. v. Speares, 16 Ind. 52; Grant v. Lexington Fire Insurance Co, 5 id. 23; Barrett v. Williamson, 4 McLean, 589; Graves v. Legg, 11 Ex. 642; 2 H. & N. 210.

In a New York case Folger, J., said. " There are cases of principal and agent where one has been sent by another to do acts in a particlar business to be done at a particular locality -as on Stock Exchange-where the power to deal is a privilege obtained by the payment of a fee, and is restricted to a body which has for its regulation and government come under certain prescribed rules or established usages; and as the agent could not do the will of his principal nor could the principal himself, save in conformity with those rules or usages, it is held that the principal must be bound thereby, whether cognizant of them or not, and that ignorance will not excuse him." Walls v. Bailey, 49 N. Y. 464.

(8) Miller v. Burke, 68 N. Y. 625; Flynn v. Murphy, 2 E. D. Smith, 378; Farmers, etc., Bank v. Sprague, 52 N. Y. 605; Pierpont v. Fowle, 2 Wood. & M. 23; Smith v. Gibbs, 44 N. H. 335.

him as F. could not write, but he does not remember whether or not the contents were read over or explained to F. The presumption is that F. knew the contents.(9)

2. A.signs an agreement to take shares in a projected railroad, thinking that he would not be called on to pay until the road was completed. Afterward he finds out that the agreement calls for payment at once. In an action against him A. is presumed to have been acquainted with the contents of the paper.(10)

3. A. signs a promissory note which has no date, the payee afterward filling in a date prior to the time of A.'s siguing. The presumption is that A. knew that the note was not dated.(11)

1. An assignment is made of a patent for an "horo. logical cradle," the date of the patent being recited in the deed. In an action on a note given for purchasemoney, it turns out that the patent is not for an "horological cradle," but only for an ornament for such a machine. The presumption is that purchaser examined the patent and knew this. (14) In case 1 it was said: The assignments refer specifically to the patent by date, and it may not be a very violent presumption to suppose that the purchasers examined it to see what they were buying Should I buy a piece of land of a party by some general description, which without some reference to something else would be unintelligible, but in my deed reference is made to the original patent by which it was conveyed by the government to my grantor, the description would become as certain, definite and satisfactory as if that description were copied into my deed, and nothing short of positive proof of a fraud, or clear mistake, would remove the presumption that I had examined or understood the contents of the patent."

RULE V. The burden of proof is on the party to show a material fact of which he is best cognizant.

ILLUSTRATIONS.

1. A suit is brought by R. and R. as partners in the firm of R. B. & Co. The defendant alleges that all the partners in the firm have not been joined. The burden is on the plaintiff to show that they have. (15) 2. A. after coming of age settles with his guardian and receives money in the hands of his guardian derived from the sale of real estate. The presumption is that he received this money with knowledge of whence it came.(16) "It is the opinion of the court," it was said in case 1, "that the onus probandi was on the plaintiffs to establish the fact that they alone composed the firm of Rugely, Blair & Co., because the name of Blair used in the style of the firm implied that he was a real person and a partner in interest in the concern; and if

(9) Harris v. Story, 2 E. D. Smith, 363 (1854).
(10) Clem v. Newcastle & C. R. Co., 9 Ind. 489 (1857).
(11) Androscoggin Bank v. Kimball, 10 Cush. 374 (1852).
(12) Barrett v. Dickson, 8 Cal. 113 (1857).

(13) Ward v. Stout, 32 Ill. 399 (1863).

(14) Myers v. Turner, 17 Ill. 179 (1855).

(15) Rugely v. Gill, 15 La. Ann. 509 (1860), and see Bowman

v. McElroy, 15 id. 663 (1860)

(16) Corwin v. Shoup, 76 Ill. 246 (1875).

so he should have been joined as a party plaintiff in the action. But if the name of Blair in the style of the firm were a mere fiction, then the fact should have been proved by the plaintiffs, because they were not only more cognizant of the fact, but the evidence of it perhaps was in their exclusive possession. The burden of proof is on the party who has to support his case by proof of a fact of which he is supposed to be most cog nizant." Where a party asks equitable relief on certain facts, and the defendant answers that he has no knowledge of such facts the complainant must prove them.(17); and where a party seeks to avoid the effect of a promise made by him on the ground that he was ignorant of material facts the burden is on him to show this.(18)

RULE VI. The burden of proof of notice to a bona fide purchaser is on the person alleging such notice. ILLUSTRATIONS.

P. employs V. as agent to build a vessel for him, furnishes him with funds therefor, but instructs him to conceal his, P.'s, ownership. V. makes the contracts in his own name, and registers the vessel as his own. When it is completed he sells it to C. and pockets the purchase-money. In an action by P. against C. the burden of proving that C. had notice of P.'s rights is upon P.(19)

RULE VII. There is no presumption that a person no called as a witness has any knowledge of facts.

ILLUSTRATIONS.

In an action at law, one B., whose name is mentioned by witnesses in the cause of the trial is not produced as a witness. The jury have no right to presume any thing as to his knowledge of any facts important to the case.(20) In case 1 it was said: "The circumstance that a particular person who is equally within the control of both parties is not called as a witness is too often made the subject of comment before the jury. Such a fact lays no ground for any presumption against either party. If the witness would aid either party, such party would probably produce him. is not produced the jury have no right to presume any thing in respect to his knowledge of any facts in the case, because they are to try the case upon the facts shown in evidence, and upon them alone, without attempting to guess at what might be shown, if particular persons were produced by the parties." JOHN D. LAWSON. ST. LOUIS, Mo.

As he

ACTION BY STOCKHOLDER AGAINST BANK OFFICER FOR MISMANAGEMENT.

NEW JERSEY SUPREME COURT, NOVEMBER TERM 1882.

CONWAY V. HALSEY.*

An action will not lie by a stockholder in a National bank against the president and directors for their neglect and mismanagement of the affairs of the bank, whereby insolvency ensued and the stock became worthless.

THE

HE substance of the declaration was to the effect following, viz.: That for a long time prior to and on the 31st of October, 1881, the defeudants had been and were the directors of the Mechanics' National Bank of Newark, and had taken the oath of their office as prescribed in section 5147 of the Revised Statutes of the United States, that they severally would,

(17) Haley v. Lacey, 1 Snow, 498 (1852).

(18) Burton v. Blow, 23 Vt. 152 (1851).

(19) Calais Steamboat Co. Van Pelt, 2 Black. 272 (1862). (20) Scovill v. Baldwin, 27 Conn. 317 (1858).

* Appearing in 15 Vroom's (44 N. J. Law) Reports.