RAILROAD.

Passenger. Ejection of-Where all the seats in one of two passenger cars are already filled with passengers, another passenger has no right to demand a seat in that particular car, and to refuse to pay his fare or deliver his ticket unless furnished a seat in such car; and if he refuses, under such circumstances, to deliver his ticket or pay his fare, the persons in charge of the train may rightfully eject him therefrom: Pittsburgh, &c., Railroad Co. v. Van Houten, 48 Ind.

When a passenger, because not furnished a seat in a railroad car already filled with passengers, abused the conductor in a violent manner and with profane language, and struck said conductor in a violent and angry manner, without any excuse whatever, and on account of such misconduct, and his refusal to pay his fare or deliver his ticket, the passenger was ejected from the train: Held, that such ejection was justifiable: Id.

Contributory Negligence-Cattle killed in City-Fence. It is negligence in the owner of cattle to allow them to run at large in a city, where a railroad is not required to be fenced; and by reason of such contributory negligence, he cannot recover for cattle killed by trains of a railroad company at such place; when the company is guilty of negligence only; otherwise, where the cattle are wilfully killed: J., M. & I. Railroad Co. v. Underhill, 48 Ind.

Negligence-Injury by Fire.-In an action against a railroad company, where the complaint charges that the defendant, while running its locomotive and train of cars adjoining the plaintiff's premises, negligently set fire to said premises from sparks and coals of fire from said engine, and burned certain rails, &c., it is competent for the plaintiff to prove, as tending to show negligence, that the sides of the railroad track at the point of the fire had dry rubbish, logs and grass thereon: T., W. & W. Railway Co. v. Wand, 48 Ind.

Under such complaint it is not necessary for the plaintiff to show that his premises were first ignited; it is sufficient if combustible material on the railroad track was first ignited, the natural tendency of which was to conduct the fire to the adjoining premises of the plaintiff: Id.

A locomotive may be properly equipped with spark-arresters, and yet have other defects by which it may set fire to adjoining premises, or it may be operated with reasonable care and diligence in reference to the road itself, and yet run among combustible rubbish and thus communicate fire to the adjoining premises: Id.

Failure to ring the Bell.—In an action on the case against a railway company to recover for a personal injury, the court instructed the jury that if plaintiff was injured by one of defendant's engines at a street crossing, in the city of Peoria, and at the time there was no bell ringing or whistle sounding upon such engine, they should find for the plaintiff, unless he, by his own negligence, materially contributed to the injury: Held, that the instruction should have left it to the jury to find whether the plaintiff was injured by reason of such omission of duty, and without this it was fatally defective: C. B. & Q. Railroad Co. v. Notzki, 66 Ills.

STREAM. See Easement; Negligence.

STREET.

Agreement to dedicate.-Acceptance by Public-Where the proprietors of adjacent lands agreed that each would appropriate from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, whether the public authorities accept the street as dedicated to public use or not: Seegar v. Harrison, 25 Ohio.

The grantee in a deed, which describes the premises conveyed as bounded on a street named, is bound to take notice of the existence of such street; and he is chargeable with such knowledge as to the location of the street as he could have obtained by reasonable inquiry: Id. SUBROGATION. See Insurance.

TORT. See Assumpsit.

Election of Remedy-Suit in Contract is Waiver of Tort.-Subsequent Suit for same Cause of Action.-This was an action of case for enticing away and harboring plaintiff's minor son nineteen years old. The evidence went to show that the parties having been near neighbors in Cooper, Kalamazoo county, defendant moved to Missouri, and without plaintiff's knowledge or consent and against his wishes persuaded and induced the young man to leave his father and go to defendant's place in Missouri and there work for the latter on his promise of wages. In defence it was shown that the plaintiff had before sued defendant in assumpsit before a justice to recover on the basis of contract for the minor's services; that the cause was brought to trial before a jury and a hearing had upon the merits: that the jury disagreed and the cause was discontinued and this suit brought, and this was claimed to be a decisive election by the plaintiff to treat the transaction as one of contract and not tort, which precluded him from afterward counting upon it as a tortious act. The court below charged the jury in effect that it was competent for the plaintiff to ignore the tort and to treat the transaction as one of contract between the parties to be enforced agreeably to its nature; and that if the plaintiff, with full knowledge of all the facts, had elected to place his right on that basis, and had prosecuted a suit on that theory and foundation down to the submission of the case to a jury, he could not afterwards turn round and repudiate such election and maintain a suit in tort. The jury found for defendant and plaintiff brings error. Held, That a man may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one with knowledge, or the means of knowledge, of such facts as would authorize a resort to either, will preclude him thereafter from going back and electing again Thompson v. Howard, S. C. Mich.

Held, further, That as there was no evidence or claim that the parties ever actually agreed together at all in regard to the minor's services, it was not possible to refer the assumpsit to any real agreement of a date later than that of the alleged wrongful enticement, and not possible to infer that the assumpsit rested ou a distinct arrangement

which left the original wrong as a ground for a separate suit; that the first action extended to the minor's services from the beginning; that the plaintiff, by bringing it, affirmed virtually that his son was with defendant in virtue of a contract between defendant and plaintiff, and not by means of conduct which was tortious against plaintiff; and that the charge was correct: Id.

VENDOR AND PURCHASER.

Covenant-Breach of-Highway-Railroad.-A tract of land was conveyed with covenants of title and against encumbrances. At the time of the execution of the deed, the land was subject to the right of way of a railroad and of a public street. Held, that these were easements on the land, and their existence was a breach of the warranty against encumbrances: Burk et al. v. Hill et ux., 48 Ind.

A grantee can recover upon a covenant against encumbrances, although he had full knowledge of the existence of the encumbrance at the time he accepted the covenant: Id.

Covenant against Encumbrances-Damages.-A breach of covenant against encumbrances in a deed of conveyance of real estate entitles the covenantee to nominal damages only, until the latter has removed the encumbrance, or has been in some way injured thereby: Black v. Coan, 48 Ind.

event

Where a grantor of real estate had, prior to the making of a deed of warranty, executed to another person a mining lease covering the premises sold, which lease was contingent upon the happening of an which had not occurred when suit was bought on the covenant of warranty: Held, that there was no criterion by which substantial damages could be estimated. Until there has been a substantial injury, there can be no ground on which to award substantial damages: Id.

NEW LAW BOOKS.

DESTY.-Manual of Practice in the Courts of the United States. By ROBERT DESTY. 18mo. pp. 420. San Francisco: S. Whitney. Flexible calf, $4. DICKSON.-An Analysis of Kent's Commentaries. By FREDERICK S. DICK8vo. pp. 400. Philadelphia: Rees Welsh. Sheep, $5.

SON.

FREEMAN.-Treatise on the Law of Executions in Civil Cases. By A. C. FREEMAN. San Francisco: S. Whitney.

GEORGIA. Reports of Cases in the Supreme Court. Vol. 50. By HENRY JACKSON. Macon: J. W. Burke & Co.

GOVERNMENT CLAIMS.-The Law of Claims against Governments, including the mode of adjusting them, and the Procedure adopted in their Investigation. House of Representatives Reports, 43d Congress, 2d Session, No. 134. 8vo. pp. 432. Washington, Government Printing Office.

ILLINOIS.-Reports of Cases in the Supreme Court. Vol. 64. By N. L. FREEMAN. Springfield: The Reporter.

INDIANA. Reports of Cases in the Supreme Court. Vol. 47. By JAMES B. BLACK. Indianapolis: Journal Co., Prs.

Iowa.-Reports of Cases in the Supreme Court. Vol. 37. By E. H. Ottumwa: The Reporter.

STILES.

KENTUCKY.-Reports of Cases in the Court of Appeals. By W. P. D. BUSH. Vol. 9. Louisville: J. P. Morton & Co.

MARYLAND.-Reports of Cases in the Court of Appeals. Vol. 40. By J. SHAAF STOCKETT. Baltimore: W. K. Boyle & Son.

MASSACHUSETTS.-Reports of Cases in the Supreme Judicial Court. Vol. 111. By A. G. BROWNE, Jr., and J. C. GRAY, Jr. Cambridge: H. O. Houghton & Co.

MASSACHUSETTS.-Reports of Cases in the Supreme Judicial Court. Vol. 116. By JOHN LATHROP. Cambridge: Houghton & Co.

MINOR.-Institutes of the Common and Statute Law. By JOHN B. MINOR, Prof. in the University of Virginia, Vol. 1. Rights which relate to persons. Richmond: Whittet & Shepperson.

MISSOURI.-Reports of Cases in the Supreme Court. Vol. 58. By TRUMAN A. POST. St. Louis: W. J. Gilbert.

MITCHELL.-Separate use in Pennsylvania, considered with respect to the Restraint on Alienation. An address before the Law Academy of Philadelphia. By E. COPPÉE MITCHELL. Pamph. pp. 45. Philadelphia: T. & J.

W. Johnson & Co.

NEW HAMPSHIRE. Reports of Cases in the Supreme Judicial Court. Vol. 53. By JOHN M. SHIRLEY. Concord: B. W. Sanborn & Co.

NEW YORK.-Reports of Cases in the Commission of Appeals. Vol. 57 of the series. By H. E. SICKELS. N. Y. : Banks.

NOTT & HOPKINS.-Reports of Cases in the Court of Claims. Vol. 9. By C. C. Norr and ARCH. HOPKINS. Washington: W. H. & O. H. Morri

son.

OHIO.-Reports of Cases in the Supreme Court. Vol. 24. By E. L. DEWITT. Cincinnati: R. Clarke & Co.

PENNSYLVANIA.-Reports of Cases in the Supreme Court. Vol. 75. By P. F. SMITH. Philadelphia: Kay & Bro.

WEST VIRGINIA.-Code, comprising the Legislation of the State to the year 1870. Wheeling: John Frew, Public Printer.

WISCONSIN.-Reports of Cases in the Supreme Court. Vol. 34. By 0. M. CONOVER. Chicago: Callaghan & Co.

WOOD.-The Law of Nuisances, including Remedies therefor at Law and in Equity. By H. G. WOOD, JR. 8vo. pp. 937. Albany: J. D. Parsons, Jr. Sheep, $7.50.

THE

AMERICAN LAW REGISTER.

OCTOBER 1875.

MARITIME LIENS.

THE recent decision of the Supreme Court of the United States in the case of The Lotawanna, ante, p. 483, settled a question in admiralty law which had been in doubt and in controversy among a whole generation of American lawyers. The principal point decided was, that no lien is given, by the maritime law of the United States, for repairs or supplies furnished to a vessel in her home port. This was the substance of the previous decision by the same court in 1819, in the case of The General Smith, 4 Wheaton 438, but the changes in the opinions of admiralty lawyers and judges even of the highest courts since that date, (see Taylor v. Steamboat Commonwealth, ante, p. 86), the vast and increasing importance of the question since the development of the commerce upon the great lakes of this country, and the fact that the rule laid down differed from the rule well established among many of the principal commercial nations of the world, had led to the impression in many quarters that when the question again arose the Supreme Court would overrule The General Smith and establish the contrary rule. Under this impression some of the District Courts, more or less elaborately distinguishing The General Smith from the cases in hand, had decided that a lien existed. by the maritime law for supplies furnished on the credit of a vessel, even in her home port. In The Lotawanna, however, the Supreme Court, referring to The General Smith as a case in point which had never been departed from, formally reaffirmed it, and authoritatively declared that by the maritime law of the United States no such lien exists.

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