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sense!” and how he drew his own will, and it "held right to keep bees. One McIntosh, of South Hampwater.” The following of Kelly is too good to be ton, applied for an injunction to restrain his neighcut short: “My good woman,' he would say to a bor, Harrison, from keeping bees. Harrison had witness, 'you must give an answer in the fewest about eighty hives of bees, which flew promiscupossible words of which you are capable, to the ously around the neighborhood, and annoyed the plain and simple question, whether, when you were plaintiff, who is a blacksmith, humming around crossing the street with the baby on your arm, and his shop and stinging his customers' horses. McInthe omnibus was coming down on the right side, tosh objected to Harrison's bee-hiving in this manand the cab on the left side, and the brougham He complained that while he would be shoewas trying to pass the omnibus, you saw the plaint- ing horses he was kept busy in “shooing" the iff between the brougham and the omnibus, or be- bees. The bees were also troublesome in McIntosh's tween the brougham and the cab, or between the kitchen, especially at “preserving” time. The omnibus and the cab, or whether, and when you jury found that the bees were a nuisance, but Judge saw him at all, and whether or not near the broug- O'Conner said it was a novel case, and he would ham, cab or omnibus, or either or any two, and reserve it for argument. If we had been retained which of them, respectively."" This reminds us of for Harrison we should have insisted that it was a college president, who, addressing & Sunday the tintinnabulation of McIntosh's hammers on his school, said, “ children, I am about to give you an anvils that seduced our bees from their wonted analysis of the character of Moses. By analysis business, and should have set up a counter-claim you will understand the converse of synthesis.” for damages accordingly. Classic scholars know We are not informed of the name of the author of how bees are attracted by this sort of noise. (See this very clever little book. The London Law Virgil's Fourth Georgic.) Times does not approve the book, but we are just

How doth the lazy, idle beo ignorant enough to like it.

Neglect each shining hour,
And loaf about the blacksmith's shop

To chase the sparkling shower! Here is a case which we warn the lady readers of And we should have proffered in evidence an old this journal to skip. We cite it only to show the Virgil of ours with a picture of the bees buzzing liberality of the Michigan courts toward women in around the Cyclops while they are at work at their the matter of divorce, a subject on which we have forge and anvil. This would have settled Mr. commented more than once.

Hoyt, 56 McIntosh's business, we have no doubt. But we Mich. 50, a divorce was granted because the hus- cannot be everywhere at once. We want it disband "treated his wife coldly and with extreme tinctly understood, however, that if anybody has stinginess," and "brutally neglected her while in

any case to be tried concerning the law of animals

, premature labor, and harshly upbraided her for the they cannot do better than retain this journal. We noise she made while suffering pain during her ill- know it all. ness." The decree was refused below, but granted by the Supreme Court. As to “coldness” and Harvard Law School has been taking her share "stinginess,” they are too common to be character in the celebration of the two hundred and fiftieth ized as

extreme cruelty," and we infer that there anniversary of the founding of the college. Judge was but one instance of the other kind. We do Oliver Wendell Holmes, Jr., was fitly chosen to not believe in granting divorce for a single act of make the address, which we shall hope to see in cruelty, although the Michigan court have adopted full

. Extracts in the Tribune promise well. The the practice. They are much more patient with judge said: “Of course we love every limb of Harerring servants, for they have held in Shaver v. vard College," and of course this includes the Ingham, 58 Mich. 649, that a servant is not to be

"limbs of the law.” The Tribune report is a little discharged for a single act of disobedience, such as astray in making him say that “ William Story had absenting himself for one day on his own business done more than any other English-speaking man to without leave. If a husband were in the habit of make the law luminous and easy to understand.” scolding his wife for screaming when in labor it William Story, poet, sculptor, and author of the might justify a divorce, but a single instance might work on Contracts, must not be given credit for better be pardoned than to dissolve the marriage. what his father, Joseph, did, although we think The husband was no doubt a hoggish fellow, and Judge Holmes ranks the latter rather too high. We put him in his wife's place and he would probably think Joseph was always diffuse, and often a little make noise enough to dispense with a telephone vague. for a long distance. But women must take their chances if they will marry, and it is better for the

NOTES OF CASES. public to keep men married rather than single.

UR lady readers whose husbands are in the

In Hoyt v.

" The Animal Kingdom in Court” has had no useful hint from Kennedy v. Saunders, 142 Mass. 9, additions in a long time. But an interesting case an action under the Civil Damage Act, by a wife was tried in Ontario a few days ago, involving the against a gentleman who persisted in putting the

flowing bowl to her husband's lips. Mrs. Kennedy | the proof, namely, that the horse was 'crazy;' that addressed the following epistle to Mr. Saunders: there was nothing to prevent him from leaving the "Dear Sir — My husband has been in the habit of track; that he remained on the track by reason of getting liquor here and coming home drunk. Now want of intelligence, running before the engine unif you care any thing for a wife and three children, til he ran into a bridge, which caused the injury; I don't want you to give him any more drink; and and that the cars did not strike him. We are not if you do, I shall take means to protect myself." | prepared to hold that the law is not enacted as well She also testified that the defendant read the notice, for the protection of 'crazy' animals, horses wantand said, “all right; I wont give him any.” But | ing horse sense,' if there be such animals, as well Saunders could not resist Kennedy's importunities, as for animals of higher intelligence, possessing unand still gave him to drink. On the trial Saunders disturbed the animal instinct to avoid danger. If insisted that the notice to stop was not sufficient there be 'crazy' horses we know of no rule of law under the statute, as not being a notice “request- which declares them to be without value, and subing him not to sell or deliver spirituous or intoxi-ject to destruction without liability therefor; and cating liquor," etc. But the court held it sufficient. it would seem that humanity, as well as the rules And now Saunders is a sadder, wiser and poorer regulating the rights of property, should provide man, and Kennedy is probably a drier one.

for their protection. We conclude that a railroad company is required to fence its track for the pro

tection of 'crazy' horses as well as for the protecIn Massachusetts Society for the Prevention of tion of animals possessing good horse sense.' If Cruelty to Animals, etc., v. Boston, 142 Mass. 24, the it be assumed that the horse was wanting in natural society was held to be a charity. The court said: intelligence, it does not follow that the injury did “Without discussing the question whether the not result from the want of a fence.' A 'crazy' 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 well as an intelligent one. Injuries to either, where opinion that the society also comes within the defi- there is no fence, would result from the want of a nition of a charity. There is no profit or pecuniary fence." benefit in it for any of its members; its work, in the education of mankind in the proper treatment

In State v. Sterrenberg, Iowa Supreme Court, Ocof domestic animals, is instruction in one of the

tober 14, 1886, it was held that where a man had duties incumbent on us as human beings. There been acquitted on a charge of selling whisky and are charitable societies whose objects are to bring stomach bitters, the parties stipulating that the mankind under the influences of humanity, educa- trial included all previous offenses for selling intion and religion.

Jackson v. Phillips, 14 Allen, toxicating liquors, the acquittal was a bar to a 539. The hospital founded by the institution prosecution for selling dandelion bitters during would, if it were established by a bequest, or pub- | that time, where the same contained such an lic or private gift, be treated as a charity. It has a amount of intoxicating liquors that the sale constihumane, legal and public, or general purpose, and tuted an offense. The court said:

“In allowing whether expressed or not in the statute of 43 Eliz.

evidence of the sales of dandelion bitters during ch. 4, which is the foundation of our law on the the time covered by the former information, and in subject of charities, comes within the equity of that giving the instruction above set out, the court evistatute. Cresson's Appeal, 30 Penn. St. 437; Town- dently proceeded upon the theory that dandelion ley v. Bedwell, 6 Ves. 194; Faversham v. Ryder, 5 bitters were not stomach bitters within the meanDeG., M. & G. 350. In the case of University of | ing of the former information. But the evidence, London v. Yarrow, 23 Beav. 159, it was held that a we think, shows that the names 'stomach bitters' bequest for founding and upholding an institution and dandelion bitters' do not have very precise for investigating, studying and curing maladies of meanings. With what propriety the name *stomquadrupeds or birds useful to man, and for provid- ach bitters' could be applied to a mixture containing a superintendent or professor to give free lec- ing dandelion does not very clearly appear, nor is tures to the public, was good as a charitable legacy; it necessary to determine. We regard the matter, and that the fact that the testator showed some in- so far as this case is concerned, controlled by the terest in the animals themselves and their humane stipulation above set out. The former trial was untreatment in no way invalidated the gift.”

derstood as including all offenses for sales of intoxicating liguors. It must then have been understood

as including all offenses for the sale of dandelion In Liston v. Central Iowa R. Co., Iowa Supreme bitters where the same contained such an amount Court, an action for killing a horse on the defend- of intoxicating liquor that the sale constituted an ant's track, the court said: “Counsel for defendant offense, and must, we think, have been understood insist that plaintiff cannot recover for the reason that evidence of such offenses was admissible under that, as they claim, the horse of plaintiff was not the charge of sales of stomach bitters. If the State, killed by reason of the absence of a fence at the in the former trial, put so broad a construction place of accident. They ground this proposition upon the words 'stomach bitters,' and was allowed upon the facts which they insist are established by to proceed under such construction, it seems to us

that the State cannot now properly be allowed to Chapter 130, Laws 1854. Also repealed by Laws deny the correctness of its own construction, and 1880, ch. 245. proceed to try the defendant over again for offenses

Part of section 1, chapter 242, Laws 1854. All of for which there was an attempt to convict him, but chapter 242 was repealed by Laws 1882, ch. 402.

Section 4, chapter 412, Laws 1857. That entire chapof which he was acquitted.”

ter 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 enCARELESS REPEALS OF 1886,

tire chapter was repealed by Laws 1884, ch. 202, and

Laws 1885, ch. 183. THE 'THE Legislature of 1886, in account with the People Section 9, chapter 487, Laws 1862. That entire chap

of the State of New York, should be credited with ter was repealed by Laws 1883, ch. 357. much good work. On the other hand, it must be Sections 1 and 2, chapter 544, Laws 1864. That encharged with considerable hasty and careless legisla- tire chapter was repealed by Laws 1884, ch. 202, and tion. The following may be taken as specimens of the Laws 1885, ch. 183. debit side of the account:

Section 7, chapter 97, Laws 1865. That entire chapAll the sections of title 7, chapter 1, part 4, of the ter was repealed by Laws 1882, ch. 402. Revised Statutes are repealed by chapter 593 of the Chapter 222, Laws 1865. Also repealed by Laws 1877, Laws of 1886, except $ 18, which reads as follows: "Such ch. 451. convicts shall be removed by the sheriff of the county, Chapter 430, Laws 1868: Also repealed by Laws 1872, pursuant to such order, and he shall be allowed ch. 747. the same compensation therefor as

is provided

Chapter 415, Laws 1877. Also repealed by Laws 1884, by law for the transportation of convicts to the ch. 202, and Laws 1885, ch. 183. State prison, to be audited and paid as part of the Chapter 439, Laws 1880. Also repealed by Laws contingent expenses of the county.” It will be some- 1884, ch. 202, and Laws 1885, ch. 183. what difficult to construe this section, standing alone. Chapters 12 and 485 of the Laws of 1872, repealed by Who are "such" convicts, and what is “such" or- Laws 1886, ch. 653, were also repealed by Laws 1879, ch. der?

379. All of chapter 57, Laws 1843, except $ 3, is repeuled Section 7, chapter 252, Laws 1884, was repealed by by Laws of 1886, ch. 593. Sectiou 3 is as follows: "Con- both chs. 65 and 642, Laws 1886. tracts in violation of the provisions of the first and Now perhaps it does no harm to repeal laws and second sections of this act may be declared void at the parts of laws, which have already been repealed, but it instance of the city, county, village or town interested, certainly does no good. While so many statutes reor of any other party interested in such contract, ex- main in pressing need of repeal, there is no use in cept the officers mentioned and prohibited in said sec- wasting ammunition upon defunct statutes. tions from making or being interested in such con- In spite of what I have written however, I dislike to tracts.” Sections 1 and 2 having been killed, what is criticise any efforts in the line of repeal. Almost all to be gained by keeping section 3 alive?

repeals should be welcomed. Let Legislatures conSection 1, chapter 243, Laws 1845, is repealed by Laws tinue to swing the axe with their eyes shut. They of 1886, ch. 593. The only other section is section 2, may hit a few good laws; but they can scarcely fail to which provides that “The Legislature may, at any kill many bad ones. A revision of the statutes would time, alter, modify or repeal this act, and the same bring order out of chaos. But a revision seems to be shall take effect immediately."

like the millennium--something to be prayed for, but Section 1, chapter 366, Laws 1870, is repealed by whose immediate coming cannot be counted on confiLaws of 1886, ch. 593. This leaves only one section in dently. existence; and hereafter whoever examines chapter

J. H. HOPKINS. 366 of the Laws of 1870 will find that it consists of these words, and nothing more: “This act shall take JURISDICTION ACTIONS FOR PERSONAL INeffect immediately."

JURY-FOREIGN LAW-PLEADING. Chapter 593 of the Laws of 1886 repealed the following statutes and portions of statutes which had VERMONT SUPREME COURT, SEPT. 14, 1886. already been repealed : Section 3, chapter 191, Laws 1831. That entire chap

MCLEOD V. Conx. & Pass. R. Co. ter was repealed by Laws of 1877. ch. 417.

Actions, whether allowed by statute or common law, brought Section 26, chapter 300, Laws 1831. That entire chap- to recover for personal injuries, are transitory: thus on ter was repealed by Laws 1880, ch. 245.

demurrer it appeared that the defendart company exSection 4, chapter 355, Laws 1839. Tbat entire chap- isted under the laws of this state, and was operating a ter was repealed by Laws 1882, ch. 402.

certain railroad in the Province of Quebec, and it was Section 2 and 4, chapter 292, Laws 1811. That entire held that the plaintiff could sustain an action aga inst the chapter is repealed by Laws of 1882, ch. 402.

defendant for personal injuries alleged to have been susSection 3, chapter 120, Laws 1846. That entire chap- tained by him in said Province, through the neglect of the ter was repealed by Laws 1877, ch. 417.

defendant to comply with the statute law of that ProvChapter 150, Law8 1846. Also repealed by Laws ince. 1877, ch. 417.

Edwards, Dickerman & Young, for defendant. Section 9, chapter 69, Laws 1847. Also repealed by Laws 1868, ch. 227.

Crane & Alfred, for plaintiff. Part of section 40, chapter 280, Laws 1847. Section WALKER, J. By this action the plaintiff seeks to re40 was repealed by Laws 1883, ch. 111.

cover for personal injuries alleged to have been susSection 39, chapter 140, Laws 1850. Also repealed by tained by him in the Province of Quebec, through the Laws 1854, ch. 282.

defendant's neglect to construct and maintain its Section 3, chapter 223, Laws 1853. That entire chap- railway, and at the point where it crosses a public ter was repealed by Laws 1882, ch. 402.

highway in Stanstead, in said Province of Quebec, in Chapter 573. Laws 1853.

Also repealed by Laws | accordance with the provisions of a certain statuto 1877, ch. 451.

law of said Province.

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The defendants demur to the plaintiff's declaration, the fact that it was a statutory right can vary the and insist, as one cause of demurrer, that the action principle. If the defendant was legally liable in New is local, and cannot be maintained in this State, but Jersey, he could not escape that liability by going to should have been brought in the Province of Quebeo, New York. If the liability to pay money was fixed by where the alleged negligence occurred and injuries the law of the State where the transaction occurred, were received.

is it to be said it can be enforced nowhere else, beThe rules of distinction between local and transi- cause it depended upon statute law, and not upon tory actions are well settled. Local actions are such common law? It would be a very dangerous doctrine as require the venue to be laid in the county in which to establish, that in all cases where the several States the cause of action arose, for the reason that the cause have substituted the statute for the common law, the of action could only have arisen in ja particular liability can be enforced in no other State but that county. These include, as a general proposition, all where the statute was enacted and the transaction ocactions in which the subject or thing in controversy, curred." or thing sought to be recovered, is in its nature local: The Supreme Court of this State, in Cady v. Sansuch as actions of ejeotment, and other actions ford, 53 Vt. 632, approved the dootrine that the nature brought to recover the seisin or possession of lands of the remedy and jurisdiction of the courts to enand tenements; also actions which do not directly force it is not, under the rule of international comity, seek the recovery of lands or tenements, but which dependent upon the question whether it is a statutory arise out of a local subject or the violation of some right or a common-law right. local right, such as trespass quare clausum fregit, tres- In this case the action is not brought to recover a pass on the case for puisances to real property; dis- penalty for a forfeiture imposed for transgressing the turbance of right of way, obstruction or diversion of provisions of the statute declared upon, nor to recover water-course, and so forth. The action of replevin is any thing local in its nature; but for a personal inalso usually held to be local, because of the necessity jury alleged to have been sustained in the Province of giving a local description to the thing taken. of Quebeo by the party aggrieved, through the neglect

Actions on peval statutes for penalties are also held of the defendant to comply with the provisions of the to be local, but actions on a statute by the party ag- statute of the Province; and upon general principles grieved for injuries sustained are held to be transi- and the authority of the foregoing cases the action must tory. Sarud. Pl. & Ev. *412; Comyn Dig., Action No. be held to be transitory, and as property brought in 1; Bacon Ibr. & Actions Local, A. 8.

this State. Transitory actions are personal actions brought for Although a civil right of action acquired or liability the recovery of money or personal chattels, whether incurred in one State or country for a personal injury they sound in 'tort or contract. 1 Chit. Pl. 273. All may be enforced in another, to which the party in 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 yet the right of action must exist under the laws of a general rule, by the common law, transitory in their the place where the act was done or neglect acnature, and the venue may be laid in the county crued. If no cause or right of action for which rewhere the cause of action arose, or where the plaintiff | dress may be had exists in the country where the peror defendant resides at the time of instituting the ac- sonal injury was received, then there is no cause of tion, or in the county where service may be made upon actiou to travel with the person claimed to be in fault the defendant if he does not reside in the State. which may be enforced in the State where he may be Gould Pl., ch. 3, & 112; Bull. N. P. 196.

found. So the vital question upon the demurrer to The test as to whether an action is transitory or the declaration in this case is whether it shows a right local is not, as a general proposition, the subject caus- of action which became fixed and a legal liability ining the injury, but the object suffering the injury. curred by the defendant in the Province of Quebec

Transitory actions bave foundation in the supposed under the statute declared upon.
violation of rights, which in the contemplation of law The gist of the action is the alleged negligence of the
have no locality, and for which the right to compen- defendant in its failure to construct and maintain the
sation is recognized by the laws of all countries, and railway crossing across the highway in question, in
rest upon the rule of international comity that every accordance with the provisions of the statute law of
nation may rightfully exercise jurisdiction over all the Province of Quebec. To uphold the action upon
persons within its limits in respect to matters purely demurrer it is essential that the declaration should
personal. Story Confl. Laws, $ 542; Herrick v. Minne- set forth the foreign law relied upon as establishing
Kipolis & St. L. R. Co., 11 Am. & Eng. R. Cases. the liability of the defendant to construct and main.

From the decision in the case of Rafuel v. Verelst, 2tain the crossing in a safe condition for persons and
Wm. Bl. 1055, the doctrine that personal injuries are teams to pass over, and that it should allege in con-
transitory in their nature has never been questioned. nection with the foreign law such a statement of facts

It is now well settled that the nature of the remedy as will show to the court that the defendant owed a and the jurisdiction of courts to enforce, it is not duty to the plaintiff in respect to the safety of the dependent upon the question whether it is a statutory crossing, and that the defendant had fallen short of its or common-law right.

duty in that respect, and also that the plaintiff's inThe question as to whether a person may be held jury resulted from such shortage of duty. liable in a personal action in any court to whose ju- The first count of the declaration alleges that the risdiction he can be subjected by personal process, defendant was operating the Massawippi Valley railwhere the right of action against him is dependent way, chartered under the Province of Quebec, and resolely upon the statute of another State, was before cites a certain statute law of the Province which prothe United States Supreme Court in the case of Den- vides that " no part of the railway which crosses any, 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:

carried over said railway by a bridge or under said “Wherever, by either the common law or the statute railway by a tunnel, shall rise above or sink below the law of a State, a right of action has become fixed, and level of the highway more than one inch." It further il legal liability incurred, that liability may be en

alleges that this railway crossed a highway in Stanforced and the right of action pursued in any court stead, in the Province of Quebec, without being carwhich has jurisdiction of such matters, and can ob- ried over the same by a bridge or under the same by a tain jurisdictiou of the parties. We do not see how tunnel, and rose more than one inch above the level

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of said highway, to-wit: two and a half inches, and and that by virtue of the laws of the Province of Quethat the plaiutiff, in driving along the highway over beo an action hath accrued to him, and so forth. the railway crossing, was thrown from his sleigh and We think this count attempts to declare upon the injured by reason of the railway rising at that point laws of the Province of Quebec. It alleges that it was more than one inch above the level of the highway. the duty of the defendant, under the laws of that We think this count is wanting in material allegations, Province, to maintain the railway crossing in question, aud therefore bad.

which was not carried over the highway by a bridge A declaration in negligence under a foreign law for nor under it by a tunnel in a sufficient condition for personal injuries occasioned through a breach of duty the safe passage of persons and teams, and after averimposed by it is not analogous to a declaration under ring a breach, concludes with the allegation that by the old highway law making towns liable for injuries virtue of the premises an action has accrued to the sustained through the insufficiency and want of repair plaintiff under the laws of the Province of Quebec. It of their highways. That law was a local one, impos- | is apparent that the plaintiff relies upon the laws of ing a duty and declaring a liability for a breach of the the Province of Quebec as creating and establishing duty, of which the courts of the State took judicial the duty; but the foreign law relied upon is not alnotice; and in declaring upon a right of action accrued leged and specially set forth in the count, so that the under it, the pleader was not required to allege the law court can see what duty, if any, is imposed by it upon imposing the duty and liability. It was necessary to the defendant in respect to the construction and allege only geuerally the duty the town owed to the safety of the railway crossing. Without setting forth publio in respect to the highway, and the facts that es- the foreign law, or any facts which raise the duty, the tablished the breach of duty under the law. Courts pleader alleges generally that it was the duty of the do not take judicial notice of foreign laws or laws of defendant to keep this crossing safe for the passage of other States; and when a foreign law is relied upon persons aud teams. This is simply the pleader's conas establishing a duty or right of action, it must be clusion of the foreign law. The facts set forth in the 83t forth in the declaration and proved as a fact. 1 count do not show it. It is not enough to state what Chit. Pl. 215; 2 East, 273; Homes V. Broughton, 10 the pleader deems to be the conclusion of the law as Wend. 75; Peck v. Hibbard, 26 Vt. 698; Hampstead v. to the duty of the defendant. It is essential that the Reed, 6 Conn. 480.

foreign law from which the alleged duty springs In actions for negligence all the facts creating the should be so fully set forth that the court may see duty must be set forth in the declaration, unless the that the duty is established. Kennedy v. Morgan, 57 duty is ove imposed in a local law when a general alle- Vt. 48; Fay v. Kent, 55 id. 557. gation of duty is doubtless sufficient. 2 Add. Torts, The facts alleged in this count, we think, do not 1147; Kennedy v. Morgun, 57 Vt. 48. When a foreign show to the court that the defendant owed any daty jaw creates the duty it becomes a traversible fact like to the plaintiff in respect to the railway crossing under any other fact creating a duty upon which the defend- the laws of the Province; and as there can be no negant has a right to go to the jury, and it must be al- | leot of duty unless duty is established, the count must leged in the allegation.

be held to be defective. It does not show a right of The law of the Province of Quebec upon which the action accrued or a liability incurred in the Province plaintiff relies as establishing his right of action in of Quebec. this count, so far as it is set forth therein, does not The judgment of the County Court is reversed, and show a duty resting upon the defendant to construct judgment rendered that the demurrer is sustained and maintain the railway crossing in accordance with and the declaration adjudged insufficient and cause the provisions of the law. It does not appear from it remanded to the County Court to be proceeded with, upon whom the duty is placed.

and with leave to the plaintiff to amend his declaraThere is no allegation in this count that the defend. tion. ant owed any duty to the public or the plaintiff in respeot to the construction aud maintenance of the crossing; nor does it contain any allegation of the TRIAL - STATEMENTS BY COUNSEL NOT IN facts which raise any such duty on the part of the de

EVIDENCE. fendant to the plaintiff or the public, nor does it allege any breach or shortage of duty on the part of the NEW HAMPSHIRE SUPREME COURT, JULY 30, 1886. defendant in respect to the construction and safety of the crossing. The allegations of the count do not BULLARD V. Boston & MAINE RAILROAD. show a right of action that became fixed or any liability incurred under the statute in the Province of

When counsel in argument makes a statement of a material Quebec, and the count must be held to be fatally de

fact not in evidence, against the objection of the other fective.

party, he violates the right of a fair trial, and his client The second count alleges that it was the duty of the

assumes the burden of presenting and proving his claim defeudant under the laws of the Province of Quebec

that the decision was not affected thereby. to keep the Massawippi Valley railway where the same crossed public highways and was not carried over the for injuries received by the plaintiff in alighting same by a bridge nor under the same by a tunnel, in from the defendants' passenger car at Newton Juncthe town of Stanstead, in good and sufficient condition. Trial by jury. The defendants' counsel, in his tion for the safe passage of persons and teams and argument to the jury, commented on the fact that ono travel over and across the bighway at such crossings, of the physicians consulted by the plaintiff had not and that the railway crossing in Stanstead complained been called to testify. The plaintiff's counsel said the of was not carried over the highway by a bridge nor reason was because he found, from conversation with under the same by a tunnel, and that the defendant him, that he had not examined the plaintiff, and could suffered the railway where it crossed the highway give no testimony as to her condition.

To this mentioned to be in an unsafe and bad condition and the defendants excepted. The court sustained the ex. state of repair, and that the plaintiff, while driving ception, and told the jury to disregard statement of along and over the highway where it is crossed by the plaintiff's counsel; and thereupon counsel said he railway, was by reason of the faulty and improper would take it all back. Verdict for the plaintiff, construction of the railway and its unsafe condition which defendants moved to set aside. Motion denied, aud want of repair, thrown from his sleigh and injured, and defendants excepted.

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