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distributes them among those who may legally claim them."

On this subject of foreign administrators and executors see also, in addition to the cases already cited, Jennison v. Hapgood, 10 Pick. 77; Emery v. Batchelder, 132 Mass. 452; Fellows v. Lewis, 65 Ala. 343; Taylor v. Pennsylvania, etc., 78 Ky. 348; Terrill v. Crane, 55 Tex. 81; Johnson v. Jackson, 56 Ga. 326; Barton v. Higgins, 41 Md. 539.

POUGHKEEPSIE, N. Y.

GUY C. H. CORLISS.

NEGLIGENCE-CHILDREN IN PUBLIC STREET.

MASSACHUSETTS SUPREME JUDICIAL COURT.
JULY 3, 1886.

COLLINS V. SOUTH BOSTON R. Co.

The driver of a horse car is required to manage his car with reference to all the risks that may reasonably be expected including the risks arising from the heedlessness and indiscretion of children.

The degree of care which the law requires of a child old enough to be intrusted alone in a dangerous place, or as the custodian of a younger child, is that which may reasonably be expected of children of his age, or which children of his age ordinarily exercise.

ACTION of tort for personal injuries brought by

Patrick Collins, the father and next friend of Daniel Edward Collins, against the South Boston Railroad Company, a corporation operating lines of street railway from Boston proper to City Point, in South Boston. The plaintiff, Daniel E. Collins, a boy four years and twenty-three days old, lived with his parents on Athens street, in South Boston, and on the afternoon of July 29, 1882, the day of the accident, left home in company with his sister, Nellie Collins, a girl eleven years of age, lacking a month and five days, to buy candy at a store in C street, on the other side of Broadway, from that on which the plaintiff lived. And while on their way home, crossing Broadway, the boy was knocked or fell down and was run over on the inward track of the defendant road in Broadway by one of the defendant's cars, coming from City Point and on its way to Boston, causing injuries to the boy, which made it necessary to amputate one arm near the shoulder, and the great toe of one foot. At the trial in the Superior Court, after the evidence was all in the defendant requested the court to rule, that on all the evidence the plaintiff was not entitled to recover; that he had not shown due care on the part of the boy, Daniel E. Collins, or of his custodian, or negligence on the part of the defendant. The jury returned a verdict for the plaintiff, and at the request of the defendant the case was reported to this

court.

H. E. Bolles and G. A. Sawyer, for plaintiff.

R. D. Smith and P. West, for defendant. FIELD, J. We cannot say as matter of law that the parents of the plaintiff were negligent in permitting him to go upon the streets with his sister, who was then nearly eleven years old, or that the sister had not sufficient intelligence and discretion to be intrusted with the care of him. Mulligan v. Curtis, 100 Mass. 512; Lynch v.Smith, 104 id. 52; O'Connor v. Boston & Lowell R. Co., 135 id. 352.

Neither can we say that there was not evidence for the jury of negligence on the part of the driver of the Commonwealth v. Metropolitan R. Co., 107 Mass.

car. 236.

The driver of a horse car, in a street, where there

are children, may well be required to manage his car with reference to all the risks that may reasonably be arising from the heedlessness and indiscretion of chilexpected, and among them may be reckoned the risks dren. All the evidence in favor of the defendant may be disregarded in considering the questions of law before us, and the evidence of Nellie Collins is not necessarily to be taken as true against the plaintiff, if there is other evidence in his favor, which contradicts it.

It must be taken, on any view of the case, that the plaintiff ran across the track, in front of the horses, and was either hit by the off fore leg, or off hind leg of the off horse, or by the right-hand side of the dasher of the car, or of the body of the car, and thus thrown down and under the car, and that he fell upon, or near the right-hand rail and was drawn under the car. His sister left him just before they reached the track on which the car was crossing, and when the horses were dangerously near to them, and either ran across in front of the horses, or ran back, leaving him to run across alone, while she afterward followed him, going either in front or behind the car.

It was said in Lynch v. Smith, supra, p. 57, that "it does not necessarily follow, because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot recover. If the child, without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence, which was directly contributory to the injury." But if the child does act in a manner which would be careless in a prudent person of mature years and ordinary intelligence, and the carelessness contributes to the injury, what is the test by which the conduct of the child is to be tried, in determining whether it has exercised due care? Courts have held that up to a certain age, not very accurately defined, it must be conclusively presumed that a child has not sufficient intelligence and discretion to exercise due care, under the circumstances and in the place in which he is found, and that it is negligence on the part of the persons who have charge of him to permit him to go there unattended. If such a child has not acted as reasonable care would dictate, judged by the ordinary standards for adult persons, and this has contributed to the injury, and if the persons having the charge of such child have negligently permitted him to go there alone, both these facts constitute negligence, which will prevent him from maintaining an action. There is also an age within which courts have held that one child is conclusively presumed not to have sufficient intelligence and discretion to take charge of another, who is younger, and that it is negligence on the part of the parents or guardians of such children to permit them to go together to places of danger, and if they do, and the children do not use reasonable care and this has contributed to the injury, they cannot recover. Beyond these ages, courts have left it to the jury to determine whether the parents or guardians were negligent in permitting a child to go alone to a place of danger, or in permitting him to go there in charge of another child, and if it is found that they were negligent, then it has been left to the jury to determine whether the child or children reasonably exercised that degree of care of which they were capable, and it has been said that it is only necessary for them "to exercise such capacity as they had."

The care which an adult person is bound to exercise is said to be the care which a person of ordinary intelligence and prudence must exercise, and it is determined by the amount of intelligence which he actually possesses, unless he is non compos mentis, and as the

law, as far as is practicable, endeavors to establish general rules of conduct, it is probable that the more accurate statement of the law for children is the one usually made, namely, that a child is to be held to the exercise of that degree of care which may reasonably be expected of children of his age, or which children of his age ordinarily exercise. The court, with more or less hesitation in what it deems plain cases, according to common experience, has declared that the acts or conduct of an adult, under the circumstances, constituted, as matter of law, contributory negligence, and the question arises whether the court can make the same declaration concerning the acts or conduct of a child of tender age, who yet is so old that they cannot say, as matter of law, that he has not sufficient discretion to be permitted to act on his own judgment. We think it has been in effect decided that the same general principles govern courts in either case, although the degrees of care required are different. See Mattey v. Whittier Machine Co., 140 Mass. 337.

The plaintiff was six years and seven months old at the time of the accident, and the opinion implies that there might be cases in which the court would hold, as matter of law, that a girl of that age was guilty of contributory negligence. See O'Connor v. Boston & Mowell R. Co., 135 Mass. 352.

In Messenger v. Dennie, 137 Mass. 197; S. C., 141 id. 335, the plaintiff was eight years and nine months old, and the court held that there was no evidence of due care on his part, and that he could not recover, saying

with that coolness, prudence and self-control which might reasonably have been expected of an older person. Her conduct up to the time the danger became imminent, the rate of speed of the car, its distance off when she first saw it,and the other persons and objects in the street which might have influenced her conduct are differently described by different witnesses. There is the same difficulty in this case which the court found in Mattey v. Whittier Machine Co., ubi supra. All the facts which ought to be considered are not made sufficiently certain by the testimony to enable us to decide that there was any error of law in submitting the case to the jury. By the terms of the report the verdict is to stand.

CARRIER- DAMAGE TO GOODS — BURDEN OF PROOF.

MISSOURI SUPREME COURT JUNE 21, 1886.

DAVIS V. WABASH, ST. L. & P. R. Co.

Upon the owner's proof of delivery to the carrier, and subsequent loss, the carrier must show the act of God or the public enemy, and on showing this, the burden then shifts again to the owner, to show, if he can, that the act in question might, by the exercise of reasonable care, have been foreseen and provided against.

that "his injury was the natural consequence of his APPEAL from St. Louis Court of Appeals. Action

careless act.

Take the case of boys in the street, suddenly and intentionally running across in front of trotting horses, for the purpose of showing who dare run the nearest, or take the most risk. Supppose the driver's testimony is true, that the plaintiff, after having crossed safely, turned round and ran under the side of the car, would not that be contributory negligence, if the child were old enough to act alone? In instructing juries that the question for them to decide is whether the plaintiff, or the plaintiff's custodian, exercised that degree of care which might reasonably be expected of a child of his age, or which is ordinarily shown by children of the same age, is it intended that they may make allowance for any spirit of recklessness, or of mischief, which they may think is com. monly found in such children, or must they consider ouly their intelligence and ability to understand the danger and the consequences which may reasonably be expected to follow from their conduct and their capacity of self-control?

It would seem that if children unreasonably, intelligently and intentionally run into danger, they shall take the risks, and that children, as well as adults, should use the prudence and discretion which persons of their years ordinarily have, aud that they cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be careless, because children are often reckless and mischievous. If all this be true however, and certainly it is as favorable a view of the law for the defendant as our decisions admit of, and if we assume that the plaintiff was too young to go upon the street alone, and that his conduct was such that if he had been alone, he could not recover, yet we cannot say, as matter of law, that there was no evidence for the jury that his sister, who had charge of him, was exercising the care over her brother which might reasonably be expected of a child of her age, although the weight of evidence is strongly against it.

The jury must have found that she did not willfully and deliberately expose her brother to the risk, but only that when the danger became imminent she did not act

to recover damages for injuries to plaintiffs' dry goods while in defendant's cars, resulting from an excessive flood. Judgment below for plaintiff.

Noble & Orrick, for respondents.
Wells H. Blodgett, for appellant.

RAY, J. This action was begun by plaintiffs to recover damages sustained by their goods, consisting of silks and other valuable dry goods, while in defendant's possession as a common carrier. Upon a trial in the Circuit Court, plaintiffs had a verdict and judgment in their favor for $6,184.29, from which defendant appealed to the St. Louis Court of Appeals, where the same was affirmed, and defendant has appealed therefrom to this court.

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The goods, when damaged, were in course of transportation from New York to East St. Louis, by the South Shore Line, which it appears did a "transportation business over several connected railroads, including that of the defendant. The merchandise arrived at Toledo on the eleventh day of February, 1881, and the car, being in a crippled condition, was sent to the transfer house, where the goods were unloaded and placed on the platform at 2:30 o'clock P. M. of said day, at which time the defendant gave its receipt for the goods to the connecting road. This transfer house, it seems, is a place where freight going in both directions-east and west-is exchanged by numerous railroads connecting at Toledo; and as also appears, freight thus passing through said exchange depot is, in the usual and ordinary course of business, subject to some necessary and unavoidable delay, occasioned by the switching, unloading, and transfer of the same from one railroad to another. By 8 o'clock P. M. of said February 11, 1881, the defendant had reloaded the goods from the platform of the transfer house into one of its cars, preparatory to shipment of the same to East St. Louis, which car containing plaintiffs' goods was left, with other cars, standing at the platform waiting to be attached to defendant's train to St. Louis; which it seems would, in the ordinary course of business, leave Toledo about 10 or 11 o'clock that night, or would be switched with others, in the usual

course of business, out of the transfer house at or before 11 o'clock, at which hour the men usually quit work for the night. The evidence indicates pretty clearly, we think, that in handling and taking the freight in its turn (which was the duty of the carrier in the premises, in the absence of perishable qualities in the property, or other special circumstances, giving it preference), the car in question could not have been gotten out, in the usual course of business, in time for the earlier train for St. Louis that night. The testimony of Rich and Stowe, who were sworn in plaintiffs' behalf, is we think, substantially to this effect.

About midnight on said February 11th the waters from a flood in the Maumee river reached the railroad tracks at the transfer house, and soon rose high enough to submerge and damage plaintiffs' dry goods while in said car at the platform awaiting shipment. The evidence offered in plaintiffs' behalf, as well as that for defendant, shows that the waters in which said goods were submerged, as charged in the petition, were the waters of an extraordinary flood occurring in the Maumee river. The character and magnitude of this flood is not called in question, but on the contrary, is conceded to have been unprecedented, and such as is denominated an "act of God," properly so called. There is further evidence also offered by plaintiffs, tending at least in some degree, to support the allegation in the petition that defendant negligently permitted the goods to be submerged. The evidence for plaintiffs in this behalf is not, perhaps, harmonious; indeed it is, we think, conflicting and contradictory; but it is sufficient, we think, to meet the objection urged upon us with great earnestness, that there is no substautial evidence of negligence to go to the jury. A summary of this evidence, prepared by the Court of Appeals with special reference to this objection, will be found in the opinion of that court. 13 Mo. App. 449, 454.

The evidence we deem of the most importance, and upon which, as the same is now preserved in the record, the liability of defendant, if any, mainly depends, we think, is that tending somewhat to show that defendant was informed and aware of the impending and approaching flood in time to have removed the goods of plaintiff to higher ground or place of safety, and that tending, in like manner, to show that it omitted, on the night of February 11th, after it was manifest that there would be an unusual flood and danger therefrom, to employ the force and means employed by other railroads and persons similarly situated at the time, to move or switch the car containing plaintiffs' goods to the higher ground, a half mile west of the transfer house, where they would have been safe from the flood, and which there is evidence tending to show, could have been done as late as 11 o'clock that night. It is not necessary to set out the substance of the testimony in defendant's behalf to the contrary. Reference will be made to its general scope in the further progress of this opinion. In this connection we may say, as is well said by that court: "We are not concerned with the weight of evidence. If there is substantial evidence of negligence on the part of defendant directly contributing to the injury, it is quite immaterial that there is a great deal of testimony to the effect that by no diligence could defendant have foreseen or avoided the mischief." But while this is so, such a state of the evidence makes, we

think, the burden of proof a question of great import

ance in the case.

The second instruction given at plaintiffs' instance is as follows: "(2) If the jury believe that plaintiffs'

goods were injured while in the possession of defendant as a common carrier for transportation, it is incumbent on the defendant to establish, by a fair preponderance of evidence, that the damage or loss was

the result, immediately and proximately, of the 'act of God.' Proof by plaintiffs of the damage and loss of goods while in the possession of defendant, as aforesaid, makes a prima facie case of negligence or misconduct on the part of defendant, which must be overcome by proof that the injury was the result of an inevitable accident, or in other words, an act of God, and not its own negligence or misconduct. If the preponderance of all the evidence does not estabthe injury was an inevitable flood or inundation, the lish that the direct, immediate, and efficient cause of defendant is liable; and although the cause of the loss may have been an act of God-such as a great flood in exposed the goods of plaintiffs to such peril by any the Maumee river-yet if the defendant unnecessarily culpable or negligent act or omission of its own, it is not excused."

ject, as to the burden of proof, presents, we think, a The doctrine this instruction announces on this subserious difficulty in the case, and its propriety, in view tions given in the cause, is the question we now proof the evidence, and in connection with other instrucpose to discuss briefly.

It is familiar doctrine that the law imposes upon the common carrier the obligation of safety as to goods bility by the act of God, or the public enemy, he is while in his possession, and unless relieved from liaresponsible in damages although there may be no actual negligence on his part. Whenever the loss oc

curs from other causes, the law raises a presumption against him upon grounds of public policy. If therefore plaintiff shows delivery of his goods to the carrier, and a subsequent loss thereof, he need do no more. This is a sufficient statement, ordinarily, of his cause of action, and a showing to that effect is sufficient to make out a prima facie case. The onus probandi is then on the carrier to bring the case within ing his said defense, facts and circumstances also apone or the other of said exemptions. If in establishpear tending to show that his negligence co-operated to produce the damages, he must, we think, bear the directly contribute to the damage, and he is not reburden of satisfying the jury that they did not when the burden is cast on him he must make a case lieved of liability unless he so shows. In other words, in which no negligence of his own appears from the evidence. In that event he is excused prima facie, unless plaintiff then shows, or it appears from the facts in the case, that his negligence causes or co-operates not the burden is cast upon the defendant to establish to produce the damage complained of. Whether or law, relieves him, may depend, we think, upon the one or the other of said exemptions, which under the state of plaintiff's evidence; "or" in the language of a text writer of acknowledged authority, 64 on the naNeg., §§ 128, 129, 661. ture of the case the plaintiff makes out." See Whart.

Where as in the case before us the act of God appears in the testimony in plaintiffs' behalf as a cause fendant, and does the presumption of law thus deof the damage, is the onus, in that event, on the declared in the instruction then exist? May the plaintiff, under this state of facts, ignore such exception appearing in the evidence in his behalf, and insist on this legal presumption, while proving, at the same time, the existence in the case of one of the exemptions which releases the defendant. The right of re

covery must, in this event, depend, we think, upon the words, upon the facts and circumstances, and inferalternatives presented by the evidence; or in other itself. This presumption of law does not, in this ences of fact, properly deducible from the evidence event, co-exist with proof by plaintiff of said excep

tions, which under the law excuse the defendant. This state of the case, which we have been con

sidering upon plaintiffs' evidence, was not changed, we think, at the close of all the evidence, so far at least as the question we are considering is involved. That for defendant only confirmed the remarkable character of the flood in question, and tended to show that defendant could not have foreseen the danger or avoided the damage to the goods by the exercise of reasonable and practicable diligence; while that for plaintiffs, in rebuttal, was as to this conflicting, except as to the character of the flood in said river.

It may be well to observe in this connection, that under the ruling of this court in the case of Ellet v. R. Co., 76 Mo. 518, this defense is available to the defendant under the general issue, and need not be especially and affirmatively set up. But it is said, that upon authority the rule is otherwise, and that the contrary has been declared in several cases in this State. We will examine those cases briefly.

In the case of Wolf v. Express Co., 43 Mo. 423, the wine, which was the subject of the controversy, arrived at East St. Louis the 31st of December, and was taken in severe weather from the cars, and stored and exposed on a platform for a number of days, and thereby became frozen and damaged. The jury were told that the burden of proving that the injury complained of was caused by the act of God rested upon the defendant in the first instance; and then they were further told, that if the defendant permitted said wine to lay carelessly exposed, and become damaged thereby, they would find for plaintiff. The instructions were approved, and they are, we think, correct in that sort of a case. Wagner, J., speaking for this court, says: "After the damages to the goods have been established, the burden lies upon the carrier to show they were occasioned by the act or peril which the law recognizes as constituting an exemption, and then "it is still competent for the owner to show that the injury might have been avoided by reasonable skill and attention."

Again, in the case of Read v. R. Co., 60 Mo. 206, the same judge says, for the court, that "when the loss of the goods is established, the burden of the proof devolves upon the carrier to show that it was occasioned by some act which is recognized as an exception. This shown, it is prima facie au exoneration, and he is not required to go further, and prove affirmatively he was guilty of no negligence. The proof of such negligence, if asserted to exist, rests on the other party." Page 206.

God is the case of loss by flood and storm. Now when it is shown that the damage resulted from this cause immediately, he is excused. What is to make him liable after this? No question of his negligence arises unless it is made by the other party. It is not necessary for him to prove that the cause was such as released him, and then to prove affirmatively that he did not contribute to it. If after he has excused himself by showing the presence of the overpowering cause, it is charged that his negligence contributed to the loss, the proof of this must come from those who assert or rely on it."

Upon the question before us the case of Railroad Co. v. Reeves is cited in support of the text in the case of Reed v. R. Co., 60 Mo. 206, and the language of Wagner, J., in the Read case, and in that of Wolf v. Express Co., is almost identical with that employed by Judge Miller in Railroad Co. v. Reeves. The Court of Appeals in its opinion in this case uses the following language upon this subject: "It is true that when the evidence for plaintiff shows damage, and at the same time vis major sufficient in itself to account for the damage, there is no presumption that the negligence of the carrier, rather than the vis major, was the sufficient cause of the damage. The general rule laid down in instruction No. 2 might perhaps, by amplification, have been made more fully and exactly applicable to the case presented by the evidence. But the whole instruction, taken together, was not, we think, misleading."

In this view we are unable, upon the ground indicated, to concur. We think it erroneous, under the authorities of this court which we have cited. [Omitting minor considerations.]

Reversed.

INSANITY-DEAF MUTE - EVIDENCE OF WANT
OF CAPACITY.

NEW JERSEY COURT OF CHANCERY.
AUGUST 24, 1886.

In re ALLEGED LUNACY OF PERRINE.

A deaf mute who does not understand any matter of business, and cannot be made to understand it, except that of the most simple character, cannot manage his own affairs, and is incapable of selecting an agent to transact them.

The remaining case cited by plaintiffs in this behalf ON motion to set aside inquisition.

is that of Pruitt v. R. Co., 62 Mo. 529. In that case two certain lots of hogs, the subject of the action, were delivered to the carrier for shipment. There was a very unreasonable delay of a month or more in shipping the hogs, and the snow-storm and cold weather occurred in which the hogs were frozen to death or damaged. The case comments on the difference between the rulings of the New York courts and those of Massachusetts and other courts upon the subject of proximate and remote damages, or damages which the negligence of the carrier concurs with the act of God to produce; and the court say it is well to observe that the latest decisions of this court (referring to Wolf v. Express Co., and Read v. R.) incline to the position of the New York courts, which hold that where the negligence of the carrier concurs in and contributes to the injury, the defendant is not exempt from liability on the ground that the immediate damage is occasioned by the act of God, or inevitable accident; but there is no discussion as to the burden of proof in the

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A. S. Appelget, for motion.

RUNYON, Ch. The inquisition in this case is signed by nineteen of the twenty-four jurors. They find that the alleged lunatic "is of sound mind, and is capable of controlling her property by her own selection of a proper person to act for her." The other five certify that she is "not of sufficient understanding to enable her to manage her property." She is about sixty-five years old, and has never been married. The commissioners have made a report concerning her condition. They say that she is not an idiot or lunatic, in the popular sense of the words; that she has been a deaf mute ever since she was two or three years old; that she is ignorant, having never been taught any language, whether spoken or of signs; that she can neither read nor write, and cannot express to others her understanding, if any she have, of any business transaction; that she cannot be made to comprehend a business transaction, except perhaps a very ordinary one, involving no more money than a dollar or two; that she has learned to fetch and carry, and to do common, every-day housework, that is, she can sweep, wash, cook an ordinary meal, etc.; that it is possible, by rude gestures, to communicate to her a

desire that she should do such work; that she has never managed her property, nor any part thereof, and that the acting trustee of her estate has never informed her of the amount, character, or income of her property, and that it is doubtful whether she can be so informed; that she has always been cared for by her near relatives, with whom she has lived, by her mother for about fifty years, and until her mother's death; after her mother's death by her unmarried sister, so long as that sister lived, and since that sister's death by her married sister, with whom she now lives. Application is made to set aside the inquisition on the ground that the finding is contrary to the evidence.

Lord Hale says that a man deaf and dumb from his birth is, in presumption of law, an idiot; and the rather because he has no possibility to understand what is forbidden by law to be done, or under what penalties. He also says that if it can appear that the man has the use of understanding, which he adds, many of that condition discover by signs to a very great measure, then he may be tried, and suffer judgment and execution, though great caution is to be used therein. Hale 1 P. C. 34.

In Brown v. Fisher, 4 Johns. Ch. 441, Chancellor Kent said, speaking of such persons: "Perhaps, after all, the presumption, in the first instance, is that every such person is incompetent. It is a reasonable presumption in order to insure protection and prevent fraud, and is founded on the notorious fact that the want of hearing and speech exceedingly cramps the powers and limits the range of the mind. The failure of the organs requisite for general intercourse and communion with mankind oppresses the understanding, affligat homo divinæ particulam aura. A special examination, to repel the inference of mental imbecility, seems always to have been required."

A person born deaf and dumb, but not blind, is not an idiot. Collin. Lun. 4, §5; Shelf. Lun. 4; Brown v. Fisher, supra. But in order to warrant this court in interfering in behalf of a person to protect him against the consequences of his own mental incompetency, it is not necessary that he should be an idiot or a lunatic. It is enough, if from any cause, whether by age, disease, affliction, or intemperance, he has become incapable of managing his own affairs. 2 Madd. 732; 1 Bl. Com. 304; Ridgeway v. Darwin, 8 Ves. 65; Conover's case, 28 N. J. Eq. 330; Lawrence's case, id. 331.

In Gibson v. Jeyes, 6 Ves. 267, 273, Lord Eldon says, that upon a commission in the nature of a writ de lunatico inquirendo, it is not necessary to establish lunacy, but it is sufficient that the party is incapable of managing his own affairs.

It was so held by Chancellor Kent In re Barker, 2 Johns. Ch. 232, where the person who was the subject of the inquiry had become incapacitated by old age. Whether persons born deaf and dumb are to be treated judicially as persons mentally incompetent to manage their affairs must depend upon the evidence they are able to give of the possession of capacity.

In Dickenson v. Blisset, 1 Dick. 268, a person who was born deaf and dumb, and who had attained to her majority, applied for possession of her real estate, and for an assignment to her of her personal property. Lord Chancellor Hardwicke, having put questions to her in writing to which she gave sensible answers in writing, thereupon granted the application.

In Brower v. Fisher, 4 Johns. Ch. 441, above cited, a commission was issued to inquire as to the mental competency of such a person.

In the case in hand the jury found that Miss Perrine was of sound mind, and capable of controlling her property by her own selection of a proper person to act for her. But if the proof was, as the commissioners certify, that she is incapable of understanding the

business, or even of receiving any communication upon the subject, and therefore does not understand, and cannot be made to understand, what the necessities of the management of her estate demand, or what an agent is, or what his duties are, or in other words, if the proof was, as they certify, that she does not understand, and cannot be made to understand, any matters of business, except it may be such as are of the most simple character; if she has no comprehension of business matters, it is obvious that she is not capable of managing her affairs, and the inquisition cannot be sustained, The jury does not find that she is herself competent to manage her business, but that she is capable of controlling it by an agent of her own selection. But if she cannot be made to understand what the business is, how can she select an agent to manage it?

The inquisition will be set aside.

ABSTRACTS OF VARIOUS RECENT DECISIONS

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ARBITRATION ENFORCING AWARDS DEGREE OF CERTAINTY REQUIRED--JUDGMENT.-Judgment cannot be rendered on an award which does not fix with certainty the amount to be paid, or give precise data from which the amount can be ascertained from the award the exact amount that should be paid. According to the award the cargo consisted, not of "5,000 of 500 b. each," but "about 5,000." On "the sound portion of the cargo," without saying how much it is, the arbitrators award 2 p. p. 500 b.;" on "abont 88 tons country damaged wheat 15/ per 500 Ib.: "on

about 27 tons 14 cwt. 12/6 per 500 b.;" on about 42 tons 10 p. per 500 b.; and on about 81 tons 5/ per 500 b. About 5,000 units or quarter is not the same as 5,000 units or quarters; and "about 88 tons" is not necessarily 88 tous. It may be more or less than 88 tons, and we do not know whether more or less, or how much more or less. Add the several num. bers representing the damaged wheat together, and we only get "about" 238 tons, which subtracted from "about 5,000 units or quarters we do not get the amount of the sound portion of the cargo, but only the proximate amount of the aggregate of several "abouts." I apprehend that a Liverpool corn merchant, buying a cargo of wheat afloat, would pay considerably more for one to be of a specified certain grade in quality No. 1 standard than for a cargo "about" No. 1. The use of the word "about," ordinarily, in these transactions is for the express purpose of giving some margin for excess or deficiency. In this instance of making an award it may have been an oversight in the arbitrators not to fix the specific amount; but if so, we cannot presume the proper amount, but must take the award as we find it, and the language used renders the award no less uncertain. An award is in the nature of a judgment, and must fix the precise amount, so that the judgment may follow the award. Who ever saw a judgment for "about five thousand dollars?" How could such a judgment be executed? Who would or could determine how much money must be collected upon an execution, and when enough is collected to satisfy the judgment? It is impossible to ascertain from this award, upon which the action is brought, the precise sum for which judgment should be rendered. The exact amount of the sound part of the cargo is not known; neither is the exact amount of the several parts damaged in different degrees, and upon which different amounts of damages are awarded, known. We do not find in the award the element for an accurate calculation or estimate of the precise amount for which judgment ought

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