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"Where the circumstances are of such a striking character as to give rise to a reasonable and honest apprehension of disorder and annoyances from he conduct and condition of a passenger, the conductor may exercise his authority and exclude the offender, in order to maintain the peace and order of the vehicle intact. It is evident that the police of horse railway cars, in order to be efficient, must be preventive as well as retroactive, and this can only be done by allowing the conductor to exercise a reasonable discretion in order to prevent acts of impropriety or violence, when they are likely to occur. A homicidal lunatic, or a notorious thief, may be ejected, although they have neither slain nor robbed a passenger, if there is reasonable fear of danger. * * * The safeguard against an unjust or unauthorized use of the power is to be found in the consideration that it can never be properly exercised, except in cases where it can be satisfactorily proved that the condition or conduct of a person was such as to render it reasonably certain that he would occasion discomfort or annoyance to other passengers, if admitted into a public vehicle or allowed to remain. * Thus we see that reasonable and probable cause will authorize the carrier or his agents in the business to exercise the right of exclusion in a proper case, where a breach of good order might reasonably be apprehended. * * Of course, for an abuse of this discretion or for any oppression in its exercise, the company would be responsible."

* *

In Conolly v. Crescent City R. R. Co. (1888), 41 La. An. 57; s. c. 28 AMER. LAW REG. 255, the passenger entered the car perfectly sober and well-behaved. While on the car, he was stricken with apoplexy, accompanied with severe vomiting, which occasioned serious discomfort and inconvenience to other passengers. He attempted to leave the

car, but fell upon the floor, where he remained helpless, speechless, and incapable of taking any care of himself. The driver, assisted by a passenger, then removed him from the car and laid him in the street between the cartrack and gutter. It was a bleak, drizzling December day, but the driver took no steps to secure the sick man any relief or assistance. He simply left him there, and went his way. The passenger remained exposed to the weather for more than four hours, when the police authorities removed him to the City Hospital, where he died the following morning. In affirming a judgment for damages against the railway company, the Court said: "When the condition of a sick passenger is such that his continued carriage is inconsistent with the safety, or even the reasonable comfort, of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. Thus if he had cholera, or small-pox, or delirium tremens, or even if, as in this case, he were subject, from any cause, to continuous vomiting, utterly inconsistent with the comfort of other passengers in a street car, the right of the carrier in protection of the latter's privileges to exclude him, would undoubtedly arise. Such is the reasonable doctrine of the cases cited. *** But none of these cases hold that this right of exclusion may be exercised arbitrarily and inhumanely, or without due care and provision for the safety and well-being of the ejected passenger. On the contrary, the duty of exercising such care and provision is universally recognized."

The same rule of care must be observed in the ejection of a passenger who is intoxicated: Converse v. Washington & G. R. R. Co. (1876), 2 Mac Ar. (D. C.) 504; or where the person is ejected for non-payment of fare: Healey v. City P. R. R. Co. (1875), 28

Ohio St. 23. In Murphy v. Union Ry. Co. (1875), 118 Mass. 228, the Court held that "it could not be said as matter of law that it would be a wrongful act to attempt to eject a person, who might otherwise be lawfully ejected, merely because the car was in motion. Whether it would be so or not, would be a question of fact, to be determined by the jury in view of the rate of speed at which the car was moving, as well as the other circumstances."

As already stated, questions as to what is or what is not reasonable in the rules or conduct of carriers of passengers, are sometimes determinable by the Court and sometimes by the jury. But the cases on this branch of the subject are not uniform and it is not possible to lay down an absolute rule. In Day v. Owen (1858), 5 Mich. 520, a case frequently cited and followed, the Court say:

"The reasonableness of a rule or regulation is a mixed question of law and fact, to be found by the jury on the trial, under the instructions of the Court. It may depend on a great variety of circumstances, and may not improperly be said to be in itself a fact to be deduced from other facts. It is not to be inferred from the rule or regulation itself, but must be shown positively." The question in that case was as to the reasonableness of a rule of a steamboat line, excluding colored persons from the cabins of its boats.

The other extreme is found in the views of the Court in South Florida R. R. Co. v. Rhoads, S. Ct. Fla., Jan 18, 1889, where it is said: "The reasonableness of rules prescribed by railroad companies, and like corporations with like powers, is a question of law to be decided by the courts, and not a question of fact to be decided by juries." The rule there sought to be enforced was a peculiar one, forbidding the

employes of a competing line of steamboats from wearing their uniform caps or badges upon the cars of the railroad company. The Court held such rule unreasonable, saying that "railroad companies have no right to prescribe the dress of any passenger."


In each of these cases, the rule is unquestionably stated too broadly. There can be no doubt that, in the majority of instances, the Court must pass upon the reasonableness of the rule or regulation in dispute. But this is not invariably the case. stances may be shown which render it eminently proper that the question of reasonableness should be submitted to the jury. It may, morever, be reasonable to enforce a rule at one time, and unreasonable at another. The manner in which the rule is applied, may also affect the question of reasonableness. And in the large number of controversies involving the conduct of a carrier's servants in their treatment of passengers, the aid of a jury must often be invoked, for the purpose of determining whether certain actions are, or are not, reasonable under the circumstances shown. How far the Court should go in particular cases in passing upon questions of reasonableness as matter of law, must be determined by the application of those general principles which mark out the dividing line between the respective provinces of the two great coadministrators of the law.

This annotation has been confined, so far as possible, to the narrow questions suggested by the principal case, in their relation to street railways only. A full discussion of the general subject of the right to eject for non-payment of fare will be found in the annotation to the case of Butler v. Manchester S. & L. Ry. Co. (1888), 28 AMER. LAW REG. 81. JAMES C. SELLERS,



Advances made by agent, for the purpose of aiding his principa in effecting a combination to raise the price of wheat by buying al the wheat in the market, and then making contracts for the pur chase of wheat for future delivery, cannot be recovered by the for mer; such combination is unlawful at common law. Samuel v Oliver, S. Ct. Ill., Oct. 31, 1889.

Real estate agent is entitled to his commission, if a sale is effecte through his agency as its procuring cause, although the sale may be actually made by the owners of the property, if by the agent': exertions the purchaser and owner are brought together, and the sale results therefrom; it makes no difference that the owner sol for a sum less than the price at which the agent was authorized to sell. Plant v. Thompson, S. Ct. Kan., Dec. 7, 1889.


Owner of dog, when he looses it for his own advantage, must set that it does not injure innocent passers on the public street, and to that end is held to the greatest possible care, and must repair any damage that is caused by his neglect to properly restrain his dog McGuire v. Ringrose, S. Ct. La., Dec. 2, 1889.


Act committed by an attorney, whether in the discharge of the duties of his office or not, which shows such a want of professional or personal honesty, as renders him unworthy of public confidence, makes it not only the province, but the duty, of the court, upon a proper representation of the case, to strike the name of the offender from its roll, but the bad character which will justify this action, must be such as to indicate that the attorney is an unsafe and unfit person to be intrusted with the powers of his profession. State v. McClaugherty, S. Ct. App. W. Va., Nov. 21, 1889.


Bank president is not such a trustee of the bank's funds as to give a court of equity jurisdiction of a suit against him for the alleged misappropriation of such funds. Mullin's Appeal, S. Ct. Pa., Jan. 6, 1890.

"Banker," as used in the United States statute, which imposes a tax on the capital employed by any person in the business of banking," includes one whose business is buying and selling stocks for his customers, and who employs capital in his business and has a regular place for transacting it. Richmond v. Blake, S. Ct. U. S., Jan. 6, 1890.


Blank for name of payee in a promissory note authorizes any bona fide holder to fill in his own name within a reasonable time after coming into possession of the note, but he must make himself a

*to such note by writing his name in the blank, before he can

recover upon it from the maker.

Dec. 3, 1889.

Thompson v. Rathbun, S. Ct. Or.,

Indorser, who voluntarily pays a note from which he has been discharged by the negligence of the bank which held it for collection, in not making presentment for payment until a month after its maturity, during which time the makers had become insolvent, cannot recover back from the bank the amount paid. OilWell Supply Co., Ltd. v. Exchange Nat. Bank, S. Ct. Pa., Jan. 6, 1890.

Note made in one State, and payable in another, receives its legal character and effect from the laws of the latter State. Stevens v. Gregg, Ct. App. Ky., Jan. 23, 1890.

Payment of note, by its terms made payable at the convenience of the maker, of which he is to be the sole judge, must be made within a reasonable time; the language used does not contemplate that the money shall be due only at the pleasure of the maker, without regard to lapse of time or the rights of the payee. Smithers v. Junker, U. S. C. Ct., N. D. Ill., Dec., 1889.

Request by indorser that the holder of a promissory note will extend it for another year, made before the maturity of the note and coupled with an agreement to let his name remain upon it, constitutes a waiver of demand and notice on the part of the holder. Cady v. Bradshaw, Ct. App. N. Y., 2d Div., Oct. 8, 1889.


Agreement between rival steamboat owners to cease competition and share their net profits in a certain specified proportion, or, if either should sell his boat with a view to going out of the business, to give notice thereof to the other and not come back into the business either directly or indirectly, within one year after such sale, is void, as against public policy, and will not be enforced. Anderson v. Jett, Ct. App. Ky., Dec. 12, 1889.

Destruction by mob of rioters of goods in the custody of an interstate carrier, renders such carrier liable to the consignor, in the absence of any contract limiting the liability. Gulf C. & S. H. Ry. Co. v. Levi, S. Ct. Tex., Dec. 17, 1889.

Release by shipper of a common carrier from all liability on account of loss or damage to goods in course of transportation, is void, as against public policy, and recovery may be had for the full value of the goods lost. Woodburn v. Cincinnati, N. O. & T. P. Ry. Co., U. S. C. Ct., E. D. Tenn., Dec. 20, 1889.


Telegraph companies, which have accepted the provisions of the United State statutes in regard to the use of the public domain, cannot be taxed by a State on messages, and the receipts therefrom, between points within and points without the State, as this is interstate commerce, but they may be so taxed on messages carried wholly within the State. Western Union Tel. Co. v. Seay, S. Ct. U. S., Dec. 16, 1889.


Agreement with the United States Government to furnish it with a number of articles at stipulated prices, among which are shucks at sixty cents per pound is not enforceable as to that article, where the evidence shows that shucks were worth from twelve to thirtyfive dollars per ton, that it was the custom to buy them by the hundred weight, and that the error occurred by failing to strike out the word "pounds" in the printed form on which the proposal was made, and insert "hundred weight" instead, and the contractor can only recover the market value. Hume v. U. S., S. Ct. U. S., Dec. 16, 1889.


After expiration of charter, while a corporation exists solely for the purpose of winding up its affairs, a majority in interest of its stockholders cannot sell its property to a new corporation, of which also they are directors and stockholders, at a valuation estimated by themselves, against the will of the minority, and compel the dissenting stockholders either to receive shares of stock in the new corporation in return for their old shares, or to be paid therefor on a basis of the estimated valuation of the property, but the minority may require that the property be publicly sold. Mason v. Pewabic Mining Co., S. Ct. U. S., Jan. 13, 1890.

Forfeiture of franchises of a corporation, by reason of a breach of the condition on which it was created, can be taken advantage of only by the sovereign power which created the corporation. Elizabethtown Gas-Light Co. v. Green, Ct. Ch. N. J., Dec. 10, 1889.

Savings bank managers are bound to such circumspection of the actions of officers and committees appointed by them as a reasonably prudent man would exercise in his own business, and are personally liable for losses occasioned by the omission of such circumspection. Williams v. McKay, Ct. Ch. N. J., Dec. 12, 1889.


Pardon of convict upon conditions which are afterwards broken, will authorize his being remanded to the penitentiary to serve out the balance of his sentence, although the time for which he was originally sentenced has expired. State v. Barnes, S. Ct. S. C., Jan. 7, 1890.

DEBTOR AND Creditor.

Payment by check of a pre-existing indebtedness is conditional merely and defeasible on the dishonor of the check; and when the check is drawn by a third party, the burden is upon the debtor to show that it was given and accepted as absolute payment. Holmes v. Briggs, S. Ct. Pa., Jan. 6, 1890.


Insanity of the original grantor does not affect the title of a purchaser for value of real estate, who buys from the grantee of the lunatic, without notice, and the heirs of the latter cannot take

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