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sense!" and how he drew his own will, and it "held water." The following of Kelly is too good to be cut short: "My good woman,' he would say to a witness, you must give an answer in the fewest possible words of which you are capable, to the plain and simple question, whether, when you were crossing the street with the baby on your arm, and the omnibus was coming down on the right side, and the cab on the left side, and the brougham was trying to pass the omnibus, you saw the plaintiff between the brougham and the omnibus, or between the brougham and the cab, or between the omnibus and the cab, or whether, and when you saw him at all, and whether or not near the brougham, cab or omnibus, or either or any two, and which of them, respectively.'" This reminds us of a college president, who, addressing a Sunday school, said, "children, I am about to give you an analysis of the character of Moses. By analysis you will understand the converse of synthesis." We are not informed of the name of the author of this very clever little book. The London Law Times does not approve the book, but we are just ignorant enough to like it.

Here is a case which we warn the lady readers of this journal to skip. We cite it only to show the liberality of the Michigan courts toward women in the matter of divorce, a subject on which we have commented more than once. In Hoyt v. Hoyt, 56 Mich. 50, a divorce was granted because the husband "treated his wife coldly and with extreme stinginess," and "brutally neglected her while in premature labor, and harshly upbraided her for the noise she made while suffering pain during her illness." The decree was refused below, but granted by the Supreme Court. As to "coldness" and "stinginess," they are too common to be characterized as "extreme cruelty," and we infer that there was but one instance of the other kind. We do not believe in granting divorce for a single act of cruelty, although the Michigan court have adopted the practice. They are much more patient with erring servants, for they have held in Shaver v. Ingham, 58 Mich. 649, that a servant is not to be discharged for a single act of disobedience, such as absenting himself for one day on his own business without leave. If a husband were in the habit of scolding his wife for screaming when in labor it might justify a divorce, but a single instance might better be pardoned than to dissolve the marriage. The husband was no doubt a hoggish fellow, and put him in his wife's place and he would probably make noise enough to dispense with a telephone for a long distance. But women must take their chances if they will marry, and it is better for the public to keep men married rather than single.

"The Animal Kingdom in Court" has had no additions in a long time. But an interesting case was tried in Ontario a few days ago, involving the

ner.

right to keep bees. ton, applied for an injunction to restrain his neighbor, Harrison, from keeping bees. Harrison had about eighty hives of bees, which flew promiscuously around the neighborhood, and annoyed the plaintiff, who is a blacksmith, humming around his shop and stinging his customers' horses. McIntosh objected to Harrison's bee-hiving in this manHe complained that while he would be shoeing horses he was kept busy in "shooing" the bees. The bees were also troublesome in McIntosh's kitchen, especially at "preserving" time. The jury found that the bees were a nuisance, but Judge O'Conner said it was a novel case, and he would reserve it for argument. If we had been retained for Harrison we should have insisted that it was the tintinnabulation of McIntosh's hammers on his anvils that seduced our bees from their wonted business, and should have set up a counter-claim for damages accordingly. Classic scholars know how bees are attracted by this sort of noise. (See Virgil's Fourth Georgic.)

One McIntosh, of South Hamp

How doth the lazy, idle bee

Neglect each shining hour,

And loaf about the blacksmith's shop
To chase the sparkling shower!

And we should have proffered in evidence an old Virgil of ours with a picture of the bees buzzing around the Cyclops while they are at work at their forge and anvil. This would have settled Mr. McIntosh's business, we have no doubt. But we cannot be everywhere at once. We want it distinctly understood, however, that if anybody has any case to be tried concerning the law of animals, they cannot do better than retain this journal. We know it all.

Harvard Law School has been taking her share in the celebration of the two hundred and fiftieth anniversary of the founding of the college. Judge Oliver Wendell Holmes, Jr., was fitly chosen to make the address, which we shall hope to see in full. Extracts in the Tribune promise well. The judge said: "Of course we love every limb of Harvard College," and of course this includes the "limbs of the law." The Tribune report is a little astray in making him say that "William Story had done more than any other English-speaking man to make the law luminous and easy to understand." William Story, poet, sculptor, and author of the work on Contracts, must not be given credit for what his father, Joseph, did, although we think Judge Holmes ranks the latter rather too high. We think Joseph was always diffuse, and often a little vague.

NOTES OF CASES.

UR lady readers whose husbands are in the habit of coming home drunk may derive a useful hint from Kennedy v. Saunders, 142 Mass. 9, an action under the Civil Damage Act, by a wife against a gentleman who persisted in putting the

flowing bowl to her husband's lips. Mrs. Kennedy addressed the following epistle to Mr. Saunders: "Dear Sir My husband has been in the habit of getting liquor here and coming home drunk. Now if you care any thing for a wife and three children, I don't want you to give him any more drink; and if you do, I shall take means to protect myself." She also testified that the defendant read the notice, and said, "all right; I wont give him any." But Saunders could not resist Kennedy's importunities, and still gave him to drink. On the trial Saunders insisted that the notice to stop was not sufficient under the statute, as not being a notice "requesting him not to sell or deliver spirituous or intoxicating liquor," etc. But the court held it sufficient. And now Saunders is a sadder, wiser and poorer man, and Kennedy is probably a drier one.

the proof, namely, that the horse was 'crazy;' that there was nothing to prevent him from leaving the track; that he remained on the track by reason of want of intelligence, running before the engine until he ran into a bridge, which caused the injury; and that the cars did not strike him. We are not prepared to hold that the law is not enacted as well for the protection of 'crazy' animals, horses wanting horse sense,' if there be such animals, as well as for animals of higher intelligence, possessing undisturbed the animal instinct to avoid danger. If there be 'crazy' horses we know of no rule of law which declares them to be without value, and subject to destruction without liability therefor; and it would seem that humanity, as well as the rules regulating the rights of property, should provide for their protection. We conclude that a railroad company is required to fence its track for the protection of 'crazy' horses as well as for the protection of animals possessing good horse sense.' If it be assumed that the horse was wanting in natural intelligence, it does not follow that the injury did not result from the want of a fence.' A 'crazy'

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well as an intelligent one. Injuries to either, where there is no fence, would result from the want of a fence."

In Massachusetts Society for the Prevention of Cruelty to Animals, etc., v. Boston, 142 Mass. 24, the society was held to be a charity. The court said: "Without discussing the question whether the word 'benevolent' is used as substantially synony-horse would be kept off of the track by a fence as mous with 'charitable,' or disjunctively, we are of opinion that the society also comes within the definition of a charity. There is no profit or pecuniary benefit in it for any of its members; its work, in the education of mankind in the proper treatment of domestic animals, is instruction in one of the duties incumbent on us as human beings. There are charitable societies whose objects are to bring mankind under the influences of humanity, education and religion. Jackson v. Phillips, 14 Allen, 539. The hospital founded by the institution would, if it were established by a bequest, or public or private gift, be treated as a charity. It has a humane, legal and public, or general purpose, and whether expressed or not in the statute of 43 Eliz. ch. 4, which is the foundation of our law on the subject of charities, comes within the equity of that statute. Cresson's Appeal, 30 Penn. St. 437; Townley v. Bedwell, 6 Ves. 194; Faversham v. Ryder, 5 DeG., M. & G. 350. In the case of University of London v. Yarrow, 23 Beav. 159, it was held that a bequest for founding and upholding an institution for investigating, studying and curing maladies of quadrupeds or birds useful to man, and for providing a superintendent or professor to give free lectures to the public, was good as a charitable legacy; and that the fact that the testator showed some interest in the animals themselves and their humane treatment in no way invalidated the gift."

In Liston v. Central Iowa R. Co., Iowa Supreme Court, an action for killing a horse on the defendant's track, the court said: "Counsel for defendant insist that plaintiff cannot recover for the reason that, as they claim, the horse of plaintiff was not killed by reason of the absence of a fence at the place of accident. They ground this proposition upon the facts which they insist are established by

In State v. Sterrenberg, Iowa Supreme Court, October 14, 1886, it was held that where a man had been acquitted on a charge of selling whisky and stomach bitters, the parties stipulating that the trial included all previous offenses for selling intoxicating liquors, the acquittal was a bar to a prosecution for selling dandelion bitters during that time, where the same contained such an amount of intoxicating liquors that the sale constituted an offense. The court said: "In allowing evidence of the sales of dandelion bitters during the time covered by the former information, and in giving the instruction above set out, the court evidently proceeded upon the theory that dandelion bitters were not stomach bitters within the meaning of the former information. But the evidence, we think, shows that the names 'stomach bitters' and 'dandelion bitters' do not have very precise meanings. With what propriety the name 'stomach bitters' could be applied to a mixture containing dandelion does not very clearly appear, nor is it necessary to determine. We regard the matter, so far as this case is concerned, controlled by the stipulation above set out. The former trial was understood as including all offenses for sales of intoxicating liguors. It must then have been understood as including all offenses for the sale of dandelion bitters where the same contained such an amount of intoxicating liquor that the sale constituted an offense, and must, we think, have been understood that evidence of such offenses was admissible under the charge of sales of stomach bitters. If the State, in the former trial, put so broad a construction upon the words 'stomach bitters,' and was allowed to proceed under such construction, it seems to us

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All the sections of title 7, chapter 1, part 4, of the Revised Statutes are repealed by chapter 593 of the Laws of 1886, except § 18, which reads as follows: "Such convicts shall be removed by the sheriff of the county, pursuant to such order, and he shall be allowed the same compensation therefor as is provided by law for the transportation of convicts to the State prison, to be audited and paid as part of the contingent expenses of the county." It will be somewhat difficult to construe this section, standing alone. Who are "such" convicts, and what is "such" order?

All of chapter 57, Laws 1843, except § 3, is repealed by Laws of 1886, ch. 593. Section 3 is as follows:Contracts in violation of the provisions of the first and second sections of this act may be declared void at the instance of the city, county, village or town interested, or of any other party interested in such contract, except the officers mentioned and prohibited in said sections from making or being interested in such contracts." Sections 1 and 2 having been killed, what is to be gained by keeping section 3 alive?

Section 1, chapter 243, Laws 1845, is repealed by Laws of 1886, ch. 593. The only other section is section 2, which provides that "The Legislature may, at any time, alter, modify or repeal this act, and the same shall take effect immediately."

Section 1, chapter 366, Laws 1870, is repealed by Laws of 1886, ch. 593. This leaves only one section in existence; and hereafter whoever examines chapter 366 of the Laws of 1870 will find that it consists of these words, and nothing more: "This act shall take effect immediately."

Chapter 593 of the Laws of 1886 repealed the following statutes and portions of statutes which had already been repealed:

Section 3, chapter 191, Laws 1831. That entire chapter was repealed by Laws of 1877, ch. 417.

Section 26, chapter 300, Laws 1831. That entire chapter was repealed by Laws 1880, ch. 245.

Section 4, chapter 355, Laws 1839. That entire chapter was repealed by Laws 1882, ch. 402.

Section 2 and 4, chapter 292, Laws 1841. That entire chapter is repealed by Laws of 1882, ch. 402.

Section 3, chapter 120, Laws 1846. That entire chapter was repealed by Laws 1877, ch. 417.

Chapter 150, Laws 1846. Also repealed by Laws

1877, ch. 417.

Section 9, chapter 69, Laws 1847. Also repealed by Laws 1868, ch. 227.

Part of section 40, chapter 280, Laws 1847. Section 40 was repealed by Laws 1883, ch. 111.

Section 39, chapter 140, Laws 1850. Also repealed by Laws 1854, ch. 282.

Section 3, chapter 223, Laws 1853. That entire chapter was repealed by Laws 1882, ch. 402.

Chapter 573. Laws 1853. Also repealed by Laws 1877, ch. 451.

Chapter 130, Laws 1854. Also repealed by Laws 1880, ch. 245.

Part of section 1, chapter 242, Laws 1854. All of

chapter 242 was repealed by Laws 1882, ch. 402.

Section 4, chapter 412, Laws 1857. That entire chapter was repealed by Laws 1865, ch. 592.

Chapter 97, Laws 1861. Also repealed by Laws 1867, ch. 604.

Sections 1 and 2, chapter 467, Laws 1862. That entire chapter was repealed by Laws 1884, ch. 202, and Laws 1885, ch. 183.

Section 9, chapter 487, Laws 1862. That entire chapter was repealed by Laws 1883, ch. 357.

Sections 1 and 2, chapter 544, Laws 1864. That entire chapter was repealed by Laws 1884, ch. 202, and Laws 1885, ch. 183.

Section 7, chapter 97, Laws 1865. That entire chapter was repealed by Laws 1882, ch. 402. Chapter 222, Laws 1865. Also repealed by Laws 1877,

ch. 451.

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ch. 202, and Laws 1885, ch. 183. Chapter 439, Laws 1880. Also repealed by Laws 1884, ch. 202, and Laws 1885, ch. 183.

Chapters 12 and 485 of the Laws of 1872, repealed by Laws 1886, ch. 653, were also repealed by Laws 1879, ch. 379.

Section 7, chapter 252, Laws 1884, was repealed by both chs. 65 and 642, Laws 1886.

Now perhaps it does no harm to repeal laws and parts of laws, which have already been repealed, but it certainly does no good. While so many statutes remain in pressing need of repeal, there is no use in wasting ammunition upon defunct statutes.

In spite of what I have written however, I dislike to criticise any efforts in the line of repeal. Almost all repeals should be welcomed. Let Legislatures continue to swing the axe with their eyes shut. They may hit a few good laws; but they can scarcely fail to kill many bad ones. A revision of the statutes would bring order out of chaos. But a revision seems to be like the millennium-something to be prayed for, but whose immediate coming cannot be counted on confidently.

J. H. HOPKINS.

JURISDICTION — ACTIONS FOR PERSONAL INJURY-FOREIGN LAW-PLEADING.

VERMONT SUPREME COURT, SEPT. 14, 1886.

MCLEOD V. CONN. & PASS. R. Co. Actions, whether allowed by statute or common law, brought to recover for personal injuries, are transitory: thus on demurrer it appeared that the defendant company existed under the laws of this State, and was operating a certain railroad in the Province of Quebec, and it was held that the plaintiff could sustain an action against the defendant for personal injuries alleged to have been sustained by him in said Province, through the neglect of the defendant to comply with the statute law of that Province.

Edwards, Dickerman & Young, for defendant.
Crane & Alfred, for plaintiff.

WALKER, J. By this action the plaintiff seeks to recover for personal injuries alleged to have been sustained by him in the Province of Quebec, through the defendant's neglect to construct and maintain its railway, and at the point where it crosses a public highway in Stanstead, in said Province of Quebec, in accordance with the provisions of a certain statute law of said Province.

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The defendants demur to the plaintiff's declaration, and insist, as one cause of demurrer, that the action is local, and cannot be maintained in this State, but should have been brought in the Province of Quebec, where the alleged negligence occurred and injuries were received.

The rules of distinction between local and transitory actions are well settled. Local actions are such as require the venue to be laid in the county in which the cause of action arose, for the reason that the cause of action could only have arisen in ;a particular county. These include, as a general proposition, all actions in which the subject or thing in controversy, or thing sought to be recovered, is in its nature local: such as actions of ejectment, and other actions brought to recover the seisin or possession of lands and tenements; also actious which do not directly seek the recovery of lands or tenements, but which arise out of a local subject or the violation of some local right, such as trespass quare clausum fregit, trespass on the case for nuisances to real property; disturbance of right of way, obstruction or diversion of water-course, and so forth. The action of replevin is also usually held to be local, because of the necessity of giving a local description to the thing taken.

Actions on penal statutes for penalties are also held to be local, but actions on a statute by the party aggrieved for injuries sustained are held to be transitory. Sanud. Pl. & Ev. *412; Comyn Dig., Action No. 1; Bacon Abr. & Actions Local, A. a.

the fact that it was a statutory right can vary the principle. If the defendant was legally liable in New Jersey, he could not escape that liability by going to New York. If the liability to pay money was fixed by the law of the State where the transaction occurred, is it to be said it can be enforced nowhere else, because it depended upon statute law, and not upon common law? It would be a very dangerous doctrine to establish, that in all cases where the several States have substituted the statute for the common law, the liability can be enforced in no other State but that where the statute was enacted and the transaction occurred."

The Supreme Court of this State, in Cady v. Sanford, 53 Vt. 632, approved the doctrine that the nature of the remedy and jurisdiction of the courts to enforce it is not, under the rule of international comity, dependent upon the question whether it is a statutory right or a common-law right.

In this case the action is not brought to recover a penalty for a forfeiture imposed for transgressing the provisions of the statute declared upon, nor to recover any thing local in its nature; but for a personal injury alleged to have been sustained in the Province of Quebec by the party aggrieved, through the neglect of the defendant to comply with the provisions of the statute of the Province; and upon general principles and the authority of the foregoing cases the action must be held to be transitory, and as property brought in this State.

Although a civil right of action acquired or liability incurred in one State or country for a personal injury may be enforced in another, to which the party in

Transitory actions are personal actions brought for
the recovery of money or personal chattels, whether
they sound in tort or contract. 1 Chit. Pl. 273. All
actions ex delicto to the person or to personal prop-fault may have removed, or where he may be found,

erty in which a mere personalty is recoverable, are, as a general rule, by the common law, transitory in their nature, and the venue may be laid in the county where the cause of action arose, or where the plaintiff or defendant resides at the time of instituting the action, or in the county where service may be made upon the defendant if he does not reside in the State. Gould Pl., ch. 3, § 112; Bull. N. P. 196.

The test as to whether an action is transitory or local is not, as a general proposition, the subject causing the injury, but the object suffering the injury.

Transitory actions have foundation in the supposed violation of rights, which in the contemplation of law have no locality, and for which the right to compensation is recognized by the laws of all countries, and rest upon the rule of international comity that every nation may rightfully exercise jurisdiction over all persons within its limits in respect to matters purely personal. Story Confl. Laws, § 542; Herrick v. Minneapolis & St. L. R. Co., 11 Am. & Eng. R. Cases.

From the decision in the case of Rafael v. Verelst, 2 Wm. Bl. 1055, the doctrine that personal injuries are transitory in their nature has never been questioned.

It is now well settled that the nature of the remedy and the jurisdiction of courts to enforce, it is not dependent upon the question whether it is a statutory or common-law right.

yet the right of action must exist under the laws of the place where the act was done or neglect accrued. If no cause or right of action for which redress may be had exists in the country where the personal injury was received, then there is no cause of action to travel with the person claimed to be in fault which may be enforced in the State where he may be found. So the vital question upon the demurrer to the declaration in this case is whether it shows a right of action which became fixed and a legal liability incurred by the defendant in the Province of Quebec under the statute declared upon.

The gist of the action is the alleged negligence of the defendant in its failure to construct and maintain the railway crossing across the highway in question, in accordance with the provisions of the statute law of the Province of Quebec. To uphold the action upon demurrer it is essential that the declaration should set forth the foreign law relied upon as establishing the liability of the defendant to construct and maintain the crossing in a safe condition for persons and teams to pass over, and that it should allege in connection with the foreign law such a statement of facts as will show to the court that the defendant owed a duty to the plaintiff in respect to the safety of the crossing, and that the defendant had fallen short of its duty in that respect, and also that the plaintiff's injury resulted from such shortage of duty.

The first count of the declaration alleges that the defendant was operating the Massawippi Valley railway, chartered under the Province of Quebec, and recites a certain statute law of the Province which provides that "no part of the railway which crosses any,

The question as to whether a person may be held
liable in a personal action in any court to whose ju-
risdiction he can be subjected by personal process,
where the right of action against him is dependent
solely upon the statute of another State, was before
the United States Supreme Court in the case of Den-
nick v. Central R. of N. J., 103 U. S. 11, in which Jus-highway in said Province of Quebec, without being
tice Miller, in delivering the opinion of the court, says:
"Wherever, by either the common law or the statute
law of a State, a right of action has become fixed, and
a legal liability incurred, that liability may be en-
forced and the right of action pursued in any court
which has jurisdiction of such matters, and can ob-
tain jurisdictiou of the parties. We do not see how

carried over said railway by a bridge or under said railway by a tunnel, shall rise above or sink below the level of the highway more than one inch." It further alleges that this railway crossed a highway in Stanstead, in the Province of Quebec, without being carried over the same by a bridge or under the same by a tunnel, and rose more than one inch above the level

of said highway, to-wit: two and a half inches, and that the plaintiff, in driving along the highway over the railway crossing, was thrown from his sleigh and injured by reason of the railway rising at that point more than one inch above the level of the highway. We think this count is wanting in material allegations, and therefore bad.

A declaration in negligence under a foreign law for personal injuries occasioned through a breach of duty imposed by it is not analogous to a declaration under the old highway law making towns liable for injuries sustained through the insufficiency and want of repair of their highways. That law was a local one, imposing a duty and declaring a liability for a breach of the duty, of which the courts of the State took judicial notice; and in declaring upon a right of action accrued under it, the pleader was not required to allege the law imposing the duty and liability. It was necessary to allege only generally the duty the town owed to the public in respect to the highway, and the facts that established the breach of duty under the law. Courts do not take judicial notice of foreign laws or laws of other States; and when a foreign law is relied upon as establishing a duty or right of action, it must be set forth in the declaration and proved as a fact. 1 Chit. Pl. 215; 2 East, 273; Homes v. Broughton, 10 Wend. 75; Peck v. Hibbard, 26 Vt. 698; Hampstead v. Reed, 6 Conn. 480.

In actions for negligence all the facts creating the duty must be set forth in the declaration, unless the duty is one imposed in a local law when a general allegation of duty is doubtless sufficient. 2 Add. Torts, 1147; Kennedy v. Morgan, 57 Vt. 48. When a foreign aw creates the duty it becomes a traversible fact like any other fact creating a duty upon which the defendant has a right to go to the jury, and it must be alleged in the allegation.

The law of the Province of Quebec upon which the plaintiff relies as establishing his right of action in this count, so far as it is set forth therein, does not show a duty resting upon the defendant to construct and maintain the railway crossing in accordance with the provisions of the law. It does not appear from it upon whom the duty is placed.

There is no allegation in this count that the defendant owed any duty to the public or the plaintiff in respect to the construction and maintenance of the crossing; nor does it contain any allegation of the facts which raise any such duty on the part of the defendant to the plaintiff or the public, nor does it allege any breach or shortage of duty on the part of the defendant in respect to the construction and safety of the crossing. The allegations of the count do not show a right of action that became fixed or any liability incurred under the statute in the Province of Quebec, and the count must be held to be fatally defective.

The second count alleges that it was the duty of the defendant under the laws of the Province of Quebec to keep the Massawippi Valley railway where the same crossed public highways and was not carried over the same by a bridge nor under the same by a tunnel, in the town of Stanstead, in good and sufficient condition for the safe passage of persons and teams and travel over and across the highway at such crossings, and that the railway crossing in Stanstead complained of was not carried over the highway by a bridge nor under the same by a tunnel, and that the defendant suffered the railway where it crossed the highway mentioned to be in an unsafe and bad condition and state of repair, and that the plaintiff, while driving along and over the highway where it is crossed by the railway, was by reason of the faulty and improper construction of the railway and its unsafe condition and want of repair, thrown from his sleigh and injured,

and that by virtue of the laws of the Province of Quebec an action hath accrued to him, and so forth. We think this count attempts to declare upon the laws of the Province of Quebec. It alleges that it was the duty of the defendant, under the laws of that Province, to maintain the railway crossing in question, which was not carried over the highway by a bridge nor under it by a tunnel in a sufficient condition for the safe passage of persons and teams, and after averring a breach, concludes with the allegation that by virtue of the premises an action has accrued to the plaintiff under the laws of the Province of Quebec. It is apparent that the plaintiff relies upon the laws of the Province of Quebec as creating and establishing the duty; but the foreign law relied upon is not alleged and specially set forth in the count, so that the court can see what duty, if any, is imposed by it upon the defendant in respect to the construction and safety of the railway crossing. Without setting forth the foreign law, or any facts which raise the duty, the pleader alleges generally that it was the duty of the defendant to keep this crossing safe for the passage of persons and teams. This is simply the pleader's conclusion of the foreign law. The facts set forth in the count do not show it. It is not enough to state what the pleader deems to be the conclusion of the law as to the duty of the defendant. It is essential that the foreign law from which the alleged duty springs should be so fully set forth that the court may see that the duty is established. Kennedy v. Morgan, 57 Vt. 48; Fay v. Kent, 55 id. 557.

The facts alleged in this count, we think, do not show to the court that the defendant owed any duty to the plaintiff in respect to the railway crossing under the laws of the Province; and as there can be no neglect of duty unless duty is established, the count must be held to be defective. It does not show a right of action accrued or a liability incurred in the Province of Quebec.

The judgment of the County Court is reversed, and judgment rendered that the demurrer is sustained and the declaration adjudged insufficient and cause remanded to the County Court to be proceeded with, and with leave to the plaintiff to amend his declaration.

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for injuries received by the plaintiff in alighting from the defendants' passenger car at Newton Junction. Trial by jury. The defendants' counsel, in his argument to the jury, commented on the fact that one of the physicians consulted by the plaintiff had not been called to testify. The plaintiff's counsel said the reason was because he found, from conversation with him, that he had not examined the plaintiff, and could give no testimony as to her condition. To this the defendants excepted. The court sustained the exception, and told the jury to disregard statement of plaintiff's counsel; and thereupon counsel said he would take it all back. Verdict for the plaintiff, which defendants moved to set aside. Motion denied, and defendants excepted.

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