such that no one would be likely to walk into it, unless in the darkness of the night. It was over one hundred feet from the public highway, and about three hundred yards from the nearest house. There was evidence of a path or paths across the field, but not directly to the well, and that it was used to some extent as a place of resort by children and adults. About four o'clock on the afternoon of Friday, July 9, 1880, the plaintiff's son, a boy of seven years and ten months of age, was found drowned in this well. According to the testimony, his death must have occurred between one and four o'clock P. M. There was nothing to throw any light upon the circumstances connected with this sad fate beyond what I have thus briefly stated.

The father of the boy brought this action in the court below to recover damages or compensation for his death; the ground of the action being that the owners of the field were guilty of negligence in permitting the well to remain without a fence or guard of some kind to protect it. The jury rendered a verdict in favor of the plaintiff, upon which the court below entered a judgment against the defendants, who have brought the record into this court by writ of error for review.

Upon the trial in the court below the learned judge instructed the jury as follows (see first the second assignments): "I say to you that a child can not be treated as a trespesser or wrong-doer, and even trespassers may have rights when injuries are negligently inflicted upon them. The true principle which must be applied to a case of this kind is this, the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them as to protect those who stray upon them and are accidentally injured."

This ruling was based upon Hydraulic Works Co. v. Orr, 2 Norris, 332. The language used was not that of this court, yet it is only fair to the learned and able president of the court below to say that is substantially the ruling of the learned judge who tried the case in 2 Norris, and which was affirmed here. That case, however, was decided upon its own peculiar circumstances. The Hydraulic Works Company maintained upon its premises what this court designated as a dangerous and deadly trap, weighing over eight hundred pounds and liable to fall at any moment and "crush children beneath it like mice in a dead fall." It was in the heart of the city close to a public highway, and the access to it frequently left open; and it was, moreover, so constructed as not to give any indication of its danger. It was to such a structure, so situated, that the learned judge who tried that cause below applied the language referred to.

It is also to be noticed that the opinion in Hydraulic Works Co. v. Orr makes no reference to the assignments of error, and contains no authorities in support of it. What this court meant to decide in that case was, that a person who maintains such a dangerous trap, close to a public

highway, in the heart of a large city, might be liable to a person injured thereby, although such person were a child of six years of age, trespassing upon the premises, and the familiar principle was invoked that "one may not justifiably, or even excusably, place a dangerous pitfall, a wolf trap or a spring gun, purposely to catch even wilful trespassers poaching upon his grounds." Hydraulic Works Co. v. Orr is authority only for its own facts. It was not intended to assert the doctrine that "a child can not be treated as a trespasser or wrong-doer;" and so far as it appears to sanction such principle, it must be considered as overruled. To apply such a doctrine to a boy lacking but two months of eight years of age, would overturn the law as it has existed in En-. gland and in this country for two hundred years. It needs but to turn to as familiar an authority as Blackstone to see that a child of this age is liable for his torts, and may be punished for his crimes. It is true, the law properly holds that a child of tender years shall not be charged with contributory negligence. But this principle can not be applied as a rule of law in all cases to children nearly eight years of age. Much may depend upon the character of the injury, the circumstances under which occurred, and the size, intelligence and maturity of the child. In such cases a jury must be allowed to pass upon the question of contributory negligence; it is error to rule it as a question of law.

Nor do we assent to the broad proposition that "the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them to protect those who stray upon them and are accidentally injured." This doctrine rests chiefly upon the case above referred to, which was not intended to decide any such principle, and is in direct conflict with the recent well considered case of Gramlich v. Wurst, 5 Norris, 74, in which it was held that "where the owner of land, in the exercise of lawful dominion over it, makes an excavation thereon. which is such a distance from the public highway that the person falling into it would be a trespasser upon the land before reaching it. the owner is not liable for an injury thus sustained."

In that case the deceased, during a dark night, fell into an excavation made for the construction of a vault, upon a lot fronting on one of the publio streets of the City ot Philadelphia. The excavation was within eighty feet of this street and was unguarded; but the court held the owner was not liable.

The well established principle in such cases is that "where an excavation is made adjoining a public way, so that a person walking on it might, by making a false step or being affected with sudden giddiness fall into it, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case

seems to be different." Hardcastle v. South Yorkshire R. Co., 4 Hurl. & N. 67; Hunsell v. Smith, 7 C. B. (N. S.) 731.

The same doctrine was asserted with much force by Chief Justice Gibson, in Knight v. Aber, 6 Barr, 472, where he said: "A man must use his property so as not to incommode his neighbor; but the maxim extends only to neighbors who do not interfere with or enter upon it. He who suffers his cattle to go at large takes upon himself the risks incident to it. If it were not so, a proprietor could not sink a well or a saw pit, dig a ditch or mill race, or open a stone quarry or mine coal on his own land, except at the risk of being made liable for consequential damages from it, which would be a most reasonable restriction of his enjoyment." This principle is further sustained by Philadelphia, etc. R. Co. v. Hummell, 8 Wright, 378; Gillis v. Pennsylvania R. Co., 9 P. F. S. 129; Cauley v. R. Co., 37 Legal Int. 513; [s. C., 13 Cent. L. J. 281] Duff v. Alleghany Valley R. Co., 10 N. 458.

It is settled by abundant authority that to enable a trespasser to recover for an injury he must do more than show negligence. It must appear that there was a wanton or Intentional injury inflicted on him by the owner. It is sufficient to refer to Gillis v. Railroad Co., supra, where the subject is discussed by the present Chief Justice, and many of the authorities referred to. In Hydraulic Works v. Orr, there was a recklessness that may be said to partake of the nature of wantonness, and it is only upon this principle that judgment can be logically sustained.

We are unable to see anything in this case to charge the defendants with negligence in not enclosing their lot or guarding the well. There was no concealed trap or dead fall as in Hydraulic Co. v. Orr. The well was open and visible to the eye. No one was likely to walk into it by day, and this accident did not occur at night. A boy playing upon its edge might fall in, just as he might in any pond or stream of water. In this respect the well was no more dangerous han the river front on both sides of the city, where boys of all ages congregate in large numbers for fishing and other amusements. Vacant brick yards exist on all sides of the city. There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to enclose it or fill up their ponds and leave the surface so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim, and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy's nature to trespass, especially where there is tempting fruit; yet I never heard that it was the duty of the owner of a fruit tree to cut it down because

1. ATTORNEY AND CLIENT-ADMISSION TO THE BAR OBTAINED BY FRAUD.

The order of this court admitting the defendant to practice is in the nature of a judgment that he possessed the requisite qualifications when the order was made and entered. It follows that the judg ment, while it continues in force, is an adjudication determinative of the fact that defendant was of ''good moral character' when he was admitted by this court, and an attack upon his previous character can not be made the basis [of an order for his removal." Nevertheless this court will be justified, of its own motion, in setting aside the order admitting the defendant to practice, should it appear that the order was obtained by means of fraudulent artifices of concealment. In re Lowenthal, S. C. Cal., September 15, 1882, 10 Pac. C. L. J., 114.

2. ATTORNEY AND CLIENT-SUSPENSION-DISTRICT ATTORNEY.

In the year 1874, respondent, as District Attorney of Lassen County, drew up an indictment against one Harris, which was returned to the county court by the grand jury, indorsed a true bill." In 1881, Harris appeared in the Superior Court, and respondent as his counsel, moved to set aside the indictment. The motion was granted. In preparing for and making the motion-which was based upon the omission of certain forms-respondent was not assisted by information received by him in his capacity of district attorney; and when the motion was made, he had no unusual knowledge of the statutory provision which made his act a misdemeanor. Held, independent of the statute, there can be no doubt that the conduct of respondent was reprehensible. By appearing both for plaintiff and defendant in the same action, he was guilty of a violation of his duty as an attorney," for which it is the duty of this court to remove or suspend him. Neither his ig norance of the laws, nor the crudity of his notions of professional ethics, can excuse an offense against professional propriety by one whose duty it is to assist in the administration of justice. The degree of turpitude involved in the breach of his duty by an attorney, however, must appear in the

circumstances of each case. The punishment which should follow an inadvertent or ignorant departure from professional propriety-no seri. ously evil consequences having resulted-should be less severe than where the offense is a deliberate or corrupt violation of official oath. People v. Spencer, S. C. Cal., September 21, 1882, 10 Pac. C. L. J., 127.

3. CONSTITUTIONAL LAW-SAN FRANCISCO LAUNDRY ORDINANCE-PROHIBITION OF OCCUPATION. An ordinance of the city of San Francisco regulated by a system of licenses the business of laundries within specified limits under penalties for misdemeanor. Held, that the ordinance was void; that where licenses are merely a means of prohibiting any of the vocations of life (not injurious to pub. lic morals, health, etc.), they can not be upheld. In re Quong Woo, U. S. C. C., D. Cal., July, 1882, 14 Rep., 417.

4. CORPORATIONS STOCKHOLDER'S LIABILITY REDUCTION OF CAPITAL STOCK. The holders of unpaid (or partially paid) stock of a corporation, being liable to the creditors of the corporation to the extent of their unpaid stock, are not relieved of liability by the action of the stockholders in reducing the capital stock of the corporation, cancelling outstanding certificates of stock, and issuing full paid certificates for the amount of the reduced capital. They continue to be liable as before to those who were creditors at the time the capital stock was reduced. In re State Ins. Co., U. S. C. C., N. D. Ill., June, 1882, 14 Rep., 420.

5. CRIMINAL LAW-MURDER — UNSKILFUL TREATMENT OF DECEASED.

Unskilful treatment of the deceased is not a ground for acquittal of the accused in a case of murder. State v. Barnes, S. C. La., March, 1982; 14 Rep., 433.

6. DIVORCE-ALIMONY--QUANTUM.

Where the wife brings no means to the marriage, and derives none by inheritance afterward, and whatever property there is was accumulated through the efforts of the husband, it is not prop. er, on granting the wife a divorce, to give to her part of the husband's real estate in fee. The alimony in such case should not exceed one-half of the husband's income. Wilson v. Wilson, S. C Ill., March, 1882; 14 Rep. 431.

7. EJECTMENT-PROPERTY IN POSSESSION OF THE UNITED STATES.

The remedy of a person claiming real property in the possession of the United States is by action of ejectment against the Federal officer in possession of the property, and the fact that the defendant is in possession as such officer is no defense to the action. King v. La Grange, S. C. Cal., Aug., 1882; 14 Rep., 428.

8. ESTOPPEL-CLAIM IN ACTION.

Where one party to a contract claims that it has been rescinded and judgment against the other party upon the quantum meruit, he is estopped, in a later litigation with the same party, from claiming the right to carry out the contract; and the record in the former action is admissible to establish the estoppel. Martin v. Boyce, S. C. Mich., Oct. 4, 1882: 13 N. W. Rep., 386.

9. EVIDENCE-COMPETENCY-DEATH OF PARTY. The deposition of an interested witness taken in a proceeding when both parties thereto are alive is admissible after the death of one of them, in an

other proceeding touching the same subject matter between the survivor and the representative of the deceased party. If, however, the deposition be insufficient to prove the fact for which it is of fered, the judgment will not be reversed, although there may have been error in rejecting it on the ground of competency. Galbraith . Zimmerman, S. C. Pa., May 1, 1882; 13 Pittsb. L. J. 83. 10. EVIDENCE-IMPEACHING WITNESS. A witness in a criminal case can not be impeached by showing that out of court he had expressed suspicions as to the respondent which on crossexamination he says he does not remember expressing. People v. Stackhouse, S. C. Mich., 4, 1882; 13 N. W. Rep., 364.

11. INSURANCE - DEFAULT IN PAYMENT OF PRE

MIUM.

Upon a policy of insurance in which one of the conditions was that in case of default of payment of any note given for premiums the company should not be liable for any loss happening during the continuance of such default, held, there being a breach of such condition, the company may waive the forfeiture, either by express language, or by acts from which an intention to waive may be inferred. If, in any negotiations or transactions based upon the policy, and relating thereto, after forfeiture under circumstances indicating to the company or its authorized agent that the insured makes a claim under the policy notwithstanding such default, and no reply is made to such claim indicating the intention of the company to take advantage of the forfeiture, and the insured afterwards incurs the trouble and expense of making proofs of loss, held, that the forfeiture is thereby waived. Held, further, that the acceptance of the cash premium by the general agent of an insurance company after default and notice of the loss operates as a waiver of the forfeiture, and renders the company continuously liable on the policy, as though the note given for cash premiums has been paid at maturity. Smith v. St. Paul Fire & Marine Ins. Co., S. C. Dak., July 20, 1882; 13 N. W. Rep., 355.

12. INSUARANCE-HAZARDOUS ARTICLES - SPECIAL

PERMIT.

A policy of insurance containing a clause prohibiting the keeping of gunpowder, saltpeter and other hazardous articles, but also giving consent to keep articles usual in the trade of a wholesale grocer, and special permit to keep gunpowder, is not avoided by keeping saltpeter in such quantity as was usual in the business of wholesale grocer. The special permit to keep gunpowder did not by implication exclude all other hazardous articles. Stout v. Commercial Union Ins. Co., U. S. C.C., D. Ind., 15 Chi. Leg. N., 39.

13. JURY TRIAL-COMPETENCY OF JUROR IN CRIMINAL CASE-VOIR DIRE.

The judge is not absolutely bound by the answer of a juror on his voir dire that he has or has not formed an opinion, when the answer is contradicted by the facts or circumstances of the case. State v. Barnes, S. C. La., March, 1882, 14 Rep., 33.

14. LANDLORD AND TENANT-EVICTION. When a landlord enters wrongfully upon the demised premises and does such acts as make the occupancy of the building unsafe, it is an eviction. The intention with which the acts were done is not a question for the jury. Skalley . Shute, S. Jud. Ct. Mass., 14 Lanc. Bar, 75.

15. MUNICIPAL CORPORATION

MAINTAINING A WHARF. A city has a right to build a wharf for public purposes where any street, which has been duly dedicated to the public, abuts upon a navigable stream. Backus v. Detroit, S. C. Mich., Oct. 4, 1882; 13 N. W. R., 380.

16. NEGLIGENCE-IMPUTED Negligence.

The rule which makes a traveler on a public highway guilty of contributory negligence if he does not exercise a certain degree of care, caution and judgment before crossing a railway track, was held inapplicable in a case where a woman who had just been landed from a steamboat upon a long pier on which there were about 200 persons, was run over by a train of freight cars, loaded with iron and running down a heavy grade upon the wharf, without any locomotive. Held, moreover, that the facts were sufficient to show gross negligence in the railway company, and that the negligence of the steamboat company, if any, did not relieve it from responsibility. A passenger who has just landed from a steamboat is not so identified with the steamboat company as to make the company solely liable for an injury suffered by the passenger from another quarter immediately afterwards. Malmsten v. M, etc. R. Co., S. C. Mich., October 4, 1882, 13 N. W. Rep., 373.

17. PARTNERSHIP-MONEY BORROWED ON INDIVID UAL CREDIT-PARTNERSHIP REAL ESTATE. 1. Money borrowed by one partner, on his individal credit, will not become a debt of the firm by being used in its business; and the rule is not different where the money was loaned for the purpose of enabling such partner to pay to the firm his portion of a specified sum which each partner had agreed to contribute in order to increase the firm's capital. 2. Land purchased with partnership funds and occupied and used by the firm in conducting its business, is partnership property, although the conveyance is made to the individual members of the firm; and a third per. son having knowledge of such facts, who takes from one of the partners a mortgage on his individual interest in such land to secure the individual debt of such partner, will be postponed to to the lien of a firm creditor whose debt accrued subsequently to the execution of such mortgage. Norwark National Bank v. Sawyer, S. C. Ohio, Oct. 3, 1882; 3 Ohio L. J., 133.

18. SPECIFIC PERFORMANCE-DAMAGES IN LIEU. In an action to recover compensation in lieu of the specific performance of an agreement for the conveyance of land, on the ground that specific performance has become impracticable, the real representatives of the deceased selling party are necessary parties; and if they have disabled themselves from performing the agreement, they are the parties chargeable with making compensation. Crabill v. Marsh, S. C. Ohio, October 3, 1882; 3 Ohio L. J., 135.

19. STATUTE OF FRAUDS-VERBAL AGREEMENT FOR THE SALE OF LANDS.

On a verbal agreement for the conveyance of land, the payment of the purchase money, whether made in money or services, will not take the agree ment out of the operation of the Statute of Frauds. Crabill v. Marsh, S. C. Ohio, October 3, 1882; 3 Ohio L. J., 135.

20. WILL-DEVISE OF CONTINGENT INTEREST IN PERSONALTY-ASSIGNABILITY.

Where personal estate is devised to a person in being, his right to depend upon his surviving another, his interest is something more than a mere naked possibility, and may be transferred or assigned in equity. Grayson v. Tyler, Ky. Ct. App., Sept. 14, 1882; 2 Ky. L. J., 163.

QUERIES AND ANSWERS.

[*** The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.

QUERIES.

40. For the purpose of forestalling competition a railroad company acquires, by private contract from A, "the exclusive right of way" through his tract of land, two miles square. A subsequently grants to a second railroad company a right of way over the same territory. The second company had full knowledge of the claim of the first, and now begins to lay its track upon portions of the land neither occupied by nor necessary to be used by the first. Has the first company any remedy? Can its rival be enjoined? Parkersburg, W. Va.

A.

41. A married woman obtains a divorce from her husband, and the custody of her child, a little girl three years old, is awarded her. Afterwards a petition is filed in the county court in the State of Illinois, where the mother resides, by A and B, his wife, for the adoption of the child. She filed her consent for the adoption by A and B. A decree is rendered in accordance with the petition. There is no provision in the statute for a re-adoption. A and B afterwards desire to surrender the child and the mother desires to reclaim it. Query: What legal steps, if any, can be taken to legally restore the parties to their original positions? E. H. A.

RECENT LEGAL LITERATURE.

ROBINSON'S ELEMENTARY LAW. Elementary Law. By William C. Robinson, LL.D. Boston, 1882: Little, Brown & Co.

This volume, which is intended for the student, will be found to be of real and practical value as an introduction to his severer studies. Being intended to give him a comprehensive view of the whole field of jurisprudence as a preparation to more elaborate examination of details, the method of stating details is very properly brief and didactic, discussing no mooted questions and advancing no opinions or theories. Instead of citing authorities for the statements contained in each paragraph, the author has adopted, what seems to us, to be the very practical and useful plan of directing the student, at the

some The ben

close of each paragraph, to a sort of parallel reading, on the subject treated, in standard text-book or leading case. efit of such parallel readings, if faithfully pursued, can hardly be over estimated. The effect would be to familiarize the reader with the most practical means of discovering the law in its original sources. Another commendable feature of the book is that the author has thoughtfully prefixed a table of references indicating the meaning of the abbreviations used, which, to the callow student, are so frequently mere snares and stumbling blocks, making every reference a sort of Chinese puzzle, the solution of which requires the expenditure of much time and patience, and in not a few cases, forms an insuperable barrier to the more verdant investigator.

Altogether the work is valuable, more especially as it does not seek to supplant any standard treatise, but forms a much needed introduction to more advanced works.

of the principles which were applied in court, to the foundations of society, and to master the learning of cognate principles of ethics; though the statement of the proposition suggests a doubt. If so, that time has long since passed, it may be safely said, never to return. Such investigations must now be left to professed doctrinaires and some text writers of the more laborious and ambitious type. The modern lawyer is a busy man of affairs, whose days hardly suffice for the multitude of intricate and diverse matters which are presented for his consideration. And the ends to which his efforts are directed, and the solutions which he must reach, are. after all, practical ones. We do not say that it is best that this should be so, but merely that it is so. Such of our readers, however, as are interested in the speculative view of legal doctrines, will find these essays pleasant and suggestive reading. Mr. Pollock's style is clear and pointed, and his choice of topics usually very happy. The paper upon Partnership will, we fancy, be found particularly interesting.

NEW JERSEY EQUITY REPORTS. Reports of Cases decided in the Court of Chancery, the Prerogative Court and, on appeal, in the Court of Errors and Appeals, of State of New Jersey. John H. Stewart, Reporter. Vol. 8. Trenton, 1882: W. S. Sharp Printing Co.

There are few States blessed with such a reporter as Mr. Stewart. We have recently given our readers a "touch of his quality" in the very elaborate notes to the cases of Cornell v. Andrews, 15 Cent. L. J. 8, and Cutter v. Kline, 15 Cent. I. J. 289. Such notes as these scattered through his volumes, are no inconsiderable addition to their practical value. As precedents increase in multitude, so grows the demand for increased facilities for searching them out and arranging them.

POLLOCK'S JURISPRUDENCE AND ETHICS. Essays in Jurisprudence and Ethics. By Frederick Pollock, M. A., LL.D. London, 1882: Macmillan & Co.

This volume is a bundle of republished essays, upon legal and ethical subjects, which have from time to time within the last seven years appeared in various journals and reviews. Only a portion of them are of professional interest to our readers; and, as to that portion, the interest is rather speculative than practical. We do not desire to underestimate or belittle the value of speculative learning and investigation in the field of jurisprudence, and our partiality to the utilitarian and practical is due rather to an appreciation of the wants of our readers than depreciation of the scientific value of investigations into the abstract principles of the law. There may have been a time in the history of the English law, when the practitioner found it practical and desirable to trace the roots

to a

NOTES.

-Some years ago a distinguished member of the New York bar was retained on one occasion by a friend, also a New Yorker, to attend to a complaint made against him before a New Jersey justice for an alleged assault and battery upon one of the residents of the "old Jersey State." "I appear for the prisoner," said the counselor to the modern Dogberry "You abbears for de bris'ner, do you? --and who den be you?" interrupted the justice, eyeing him from head to foot with marked curiosity. "I don't know you. Vair be's you come from and vot's yer name?" The counselor modestly gave his name, and said : "I am a member of the New York bar." "Vell, den." replied the justice, "you gan't bractis in dis here gort." "I am a counselor of the Supreme Court of the State of New York," reiterated the attorney. "Dat makes not ing tifferent," said the inveterate justice. "Well, then," said the baffled lawyer, "suppose I show to your Honor that I am a counselor of the Supreme Court of the United States?" "It ton't make it a bit petter," replied he of the ermine, "you ain't a gounselor von de State of New Jarsey, and you gan't bractis in dish gort." On another occasion the same dignitary said to a jury, who had been listening to a "trial" before him of an unfortunate fellow for some offense against the State. "Shentlemens of der shoory, shtand up; dis here vellow, der bris'ner at de par, says he ish von New York. Now, I dinks he pes a putcher-poy, und if he ish a putcher-poy he trives der pigs troo de shreet, und ven he trives der pigs, he kits oder peebles pigs mit dem vot he haf before. Dat's wot I call vig shtealin' Now