Imágenes de páginas

distributes them among those who may legally claim them."

On this subject of foreign administrators and executors see also, in addition to the cases already cited, Jennison v. Hapgood, 10 Pick. 77; Emery v. Batchelder, 13:2 Mass. 452; Fellows v. Lewis, 65 Ala. 343; Taylor v. Pennsylvania, etc., 178 Ky. 348; Terrill v. Crane, 55 Tex. 81; Johnson V. Jackson, 56 Ga. 3:26; Barton v. Higgins, 41 Md. 539.




JULY 3, 1886.


COLLINS V, SOUTH BOSTON R. Co. The driver of a horse car is required to manage his car with

reference to all the risks that may reasonably be expected including the risks arising from the heedlessness and in

discretion of children. The degree of care which the law requires of a child old

enough to be intrusted alone in a dangerous place, or as the custodian of a younger child, is that which may reasonably be expected of children of his age, or which children of his age ordinarily exercise. CTION of tort for personal injuries brought by

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

H. E. Bolles and G. A. Sawyer, for plaintiff.
R. D. Smith and P. West, for defendant.

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

Neither can we say that there was not evidence for the jury of negligence on the part of the driver of the

Commonwealth v. Metropolitan R. Co., 107 Mass. 236. The driver of a horse car, in a street, where there

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

It must be taken, on any view of the case, that the plaintiff ran across the track, in front of the horses, and was either hit by the off fore leg, or off hind leg of the off horse, or by the right-hand side of the dasher of the car,

or of the body of the car, and thus thrown down and under the car, and that he fell upon, or near the right-hand rail and was drawn under the car. His sister left him just before they reached the track on which the car was crossing, and when the horses were dangerously near to them, and either ran across in front of the horses, or ran back, leaving him to run across alone, while she afterward followed him, going either in front or behind the car.

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

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


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law, as far as is practicable, endeavors to establish with that coolness, prudence and self-control which
general rules of conduct, it is probable that the more might reasonably have been expected of an older per-
accurate statement of the law for children is the one gon. Her conduct up to the time the danger became
usually made, namely, that a child is to be held to the imminent, the rate of speed of the car, its distance off
exercise of that degree of care which may reasonably when she first saw it, and the other persons and objects
be expected of children of his age, or which children in the street which niight have influenced her conduct
of bis age ordinarily exercise. The court, with more are differently described by different witnesses. There
or less hesitation in what it deems plain cases, accord- is the same difficulty in this case which the court
ing to common experience, has declared that the acts found in Mattey v. Whittier Machine Co., ubi supra.
or conduct of an adult, under the circumstances, con- All the facts which ought to be considered are not
stituted, as matter of law, contributory negligence, made sufficiently certain by the testimony to enable
and the question arises whether the court can make us to decide that there was any error of law in sub-
the same declaration concerning the acts or conduct mitting the case to the jury. By the terms of the re-
of a child of tender age, who yet is so old that they port the verdict is to stand.
cannot say, as matter of law, that he has not sufficient
discretion to be permitted to act on his own judg-
ment. We think it has been in effect decided that the
same general principles govern courts in either ase,

CARRIER- DANAGE TO GOODS - BURDEN OF although the degrees of care required are differ

ent. See Mattey v. Whittier Machine Co., 140 Mass.

The plaintiff was six years and seven months old at

JUNE 21, 1886.
the time of the accident, and the opinion implies that
there might be cases in which the court would hold, as

matter of law, that a girl of that age was guilty of con-
tributory vegligence. See O'Connor v. Boston & Mow-Upon the owner's proof of delivery to the carrier, and subse-
ell R. Co., 135 Mass. 352.

quent loss, the carrier must show the act of God or the In Messenger v. Dennie, 137 Mass. 197; S. C., 141 id.

public enemy, and on showing this, the burden then

shifts again to the owner, to show, if he can, that the act 335, the plaintiff was eight years and nine months old, and the court held that there was no evidence of due

in question might, by the exercise of reasonable care,

have been foreseen and provided against. care on his part, and that he could not recover, saying

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

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careless act.

Take the case of boys in the street, suddenly and goods while in defendant's cars, resulting from an ex-
intentionally running across in front of trotting cessive flood. Judgment below for plaintiff.
horses, for the purpose of showing who dare run the

Noble & Orrick, for respondents.
nearest, or take the most risk. Supppose the driver's
testimony is true, that the plaintiff, after having

Wells H. Blodgett, for appellant.
crossed safely, turved round and ran under the side of RAY, J. This action was begun by plaintiffs to re-
the car, would not that be contributory negligence, if cover damages sustained by their goods, consisting of
the child were old enough to act alone? In instruct- silks and other valuable dry goods, while in defend-
ing juries that the question for them to decide is ant's possession as a common carrier. Upon a trial in
whether the plaintiff, or the plaintiff's custodian, ex- the Circuit Court, plaintiffs had a verdict and judg-
ercised that degree of care which might reasonably be ment in their favor for $6,184.29, from which defend-
expected of a child of his age, or which is ordinarily ant appealed to the St. Louis Court of Appeals, where
shown by children of the same age, is it intended that the same was affirmed, and defendant has appealed
they may make allowance for any spirit of reekless- therefrom to this court.
ness, or of mischief, which they may think is com. The goods, when damaged, were in course of trans-
monly found in such children, or must they consider portation from New York to East St. Louis, by the
ouly their intelligence and ability to understand the South Shore Line, which it appears did a “transporta-
danger and the consequences which may reasonably tion business" over several connected railroads, in-
be expected to follow from their conduct and their cluding that of the defendant. The merchandise ar-
capacity of self-control?

rived at Toledo on the eleventh day of February, 1881, It would seem that if children unreasonably, intel- and the car, being in a crippled condition, was seut to ligently and ivtentionally run into davger, they shall the transfer house, where the goods were unloaded take the risks, and that children, as well as adults, and placed on the platform at 2:30 o'clock P. M. of should use the prudence and discretion which persons said day, at which time the defendant gave its receipt of their years ordinarily have, aud that they cannot for the goods to the connecting road. This transfer be permitted with impunity to indulge in conduct house, it seems, is a place where freight going in both wbich they know, or ought to know, to be careless, directions-east and west-is exchanged by numerous because children are often reckless and mischievous. railroads connecting at Toledo; and as also appears,

If all this be true however, and certainly it is as fa- freight thus passing through said exchange depot is, vorable a view of the law for the defendant as our de- in the usual and ordinary course of business, subject cisions admit of, and if we assume that the plaintiff to some necessary and unavoidable delay, occasioned was too young to go upon the street alone, and that by the switching, unloading, and transfer of the same his conduct was such that if he had been alone, he from one railroad to another. By 8 o'clock P. M. of could not recover, yet we cannot say, as matter of law, said February 11, 1881, the defendant had reloaded the that there was no evidence for the jury that his sis- goods from the platform of the transfer house into one ter, who had charge of him, was exercising the care of its cars, preparatory to shipment of the same to over her brother which might reasonably be expected East St. Louis, which car containing plaintitfs' goods of a child of her age, although the weight of evidence was left, with other cars, standing at the platform is strongly against it.

waiting to be attached to defendant's train to St. The jury must have found that she did not willfully Louis; which it seems would, in the ordinary course and deliberately expose her brother to the risk, but only of business, leave Toledo about 10 or 11 o'clock that that when the danger became imminent she did not act night, or would be switched with others, in the usual

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course of business, out of the transfer house at or be- the result, immediately and proximately, of the act fore 11 o'clock, at which hour the men usually quit of God.' Proof by plaintiffs of the damage and loss of work for the night. The evidence indicates pretty goods while in the possession of defendant, as aforeclearly, we think, that in handling and taking the said, makes a prima facie case of negligence or misfreight in its turn (which was the duty of the carrier conduct on the part of defendant, which must be in the premises, in the absence of perishable qualities overcome by proof that the injury was the result of in the property, or other special circumstances, giving an inevitable accident, or in other words, an act of it preference), the car in question could not have been God, and not its own negligence or misconduct. If gotten out, in the usual course of business, in time for the preponderance of all the evidence does not estabthe earlier train for St. Louis that night. The testi-lish that the direct, immediate, and efficient cause of mony of Rich and Stowe, who were sworn in plaintiffs' the injury was an inevitable flood or inundation, the behalf, is we think, substantially to this effect.

defendant is liable; and although the cause of the loss About midnight on said February 11th the waters may have been an act of God-such as a great flood in from a flood in the Maumee river reached the railroad the Maumee river-yet if the defendant unnecessarily tracks at the transfer house, and soon rose high exposed the goods of plaintiffs to such peril by any enough to submerge and damage plaintiffs' dry goods culpable or negligent act or omission of its own, it is while in said car at the platform awaiting shipment. not excused." The evidence offered in plaintiffs' behalf, as well as The doctrine this instruction announces on this subthat for defendant, shows that the waters in which ject, as to the burden of proof, presents, we think, a said goods were submerged, as charged in the petition, serious difficulty in the case, and its propriety, in view were the waters of an extraordinary flood occurring of the evidence, and in connection with other instrucin the Maumee river. The character and magnitude tious given in the cause, is the question we now proof this flood is not called in question, but on the con- pose to discuss briefly. trary, is conceded to have been unprecedented, and It is familiar doctrine that the law imposes upon the such as is denominated an “act of God," properly so common carrier the obligation of safety as to goods called. There is further evidence also offered by while in his possession, and unless relieved from liaplaintiffs, tending at least in some degree, to support bility by the act of God, or the public enemy, he is the allegation in the petition that defendant segli. responsible in damages although there may be no gently permitted the goods to be submerged. The actual negligence on his part. Whenever the loss ocevidence for plaintiffs in this behalt is not, perhaps, ours from other causes, the law raises a presumption harmonious; indeed it is, we think, conflicting and against him upon grounds of public policy. If therecontradictory; but it is sufficient, we think, to meet fore plaintiff shows delivery of his goods to the carthe objection urged upon us with great earvestuess, rier, and a subsequent loss thereof, he need do 10 that there is no substautial evidence of negligence to more. This is a sufficient statement, ordinarily, of his go to the jury. A summary of this evidence, prepared cause of action, and a showing to that effect is suffiby the Court of Appeals with special reference to this cient to make out a prima facie case. The onus proobjection, will be found in the opinion of that court. bandi is then on the carrier to bring the case within 13 Mo. App. 449, 454.

one or the other of said exemptions. If in establishThe evidence we deem of the most importance, and ing his said defense, facts and circumstances also apupon which, as the same is now preserved in the re- pear tending to show that his negligenco co-operated cord, the liability of defendant, if any, mainly de- to produce the damages, he must, we think, bear the pends, we think, is that tending somewhat to show burden of satisfying the jury that they did not that defendant was informed and aware of the im- directly contribute to the damage, and he is not repending and approaching flood in time to bave re- lieved of liability unless he so shows. In other words, moved the goods of plaintiff to higher ground or place when the burden is cast on him he must make a case of safety, and that tending, in like manner, to show in which no negligence of his own appears from the that it omitted, on the night of February 11th, after evidence. In that event he is excused prima facie, une it was manifest that there would be an unusual flood less plaintiff then shows, or it appears from the facts and danger therefrom, to employ the force and means in the case, that his negligence causes or co-operates employed by other railroads and persons similarly sit- to produce the damage complained of. Whether or uated at the time, to move or switch the car contain- not the burden is cast upon the defendant to establish ing plaintiffs' goods to the bigher ground, a half mile one or the other of said exemptions, which under the west of the transfer house, where they would have law, relieves him, may depend, we think, upon the been safe from the flood, and which there is evidence state of plaintiff's evidence: "or" in the language of teuding to show, could have been done as late ås 11 a text writer of acknowledged authority,“ on the nao'clock that night. It is not necessary to set out the ture of the case the plaintiff makes out." See Whart. substance of the testimony in defendant's behalf to | Neg., SS 128, 129, 661. the contrary. Referer!ce will be made to its general Where as in the case before us the act of God apscope in the further progress of this opinion. In this pears in the testimony in plaintiffs' behalf as a cause connection we may say, as is well said by that court: of the damage, is the onus, in that event, on the de“We are not concerned with the weight of evidence. fendant, and does the presumption of law thus deIf there is substantial evidence of negligence on the clared in the instruction then exist? May the plainpart of defendant directly contributing to the injury, tiff, under this state of facts, ignore such exception it is quite immaterial that there is a great deal of tes- appearing in the evidence in his behalf, and insist on timony to the effect that by no diligence could defend. this legal presumption, while proving, at the same ant have foreseen or avoided the mischief.” But | time, the existence in the case of one of the exemp. while this is so, such a state of the evidence makes, we tions which releases the defendant. The right of rethink, the burden of proof a question of great import-covery must, in this event, depend, we think, upon the anice in the case.

alternatives presented by the evidence; or in other The second instruction given at plaintiffs' instance words, upon the facts and circumstances, and inferis as follows: “(2) If the jury believe that plaintiffs' enves of fact, properly deducible from the evidence goods were injured while in the possession of defend itself. This presumption of law does not, in this aut as a common carrier for transportation, it is inderent, co-exist with proof by plaintiff of said excepcumbent on the defendant to establish, by a fair pre- tions, which under the law excuse the defendant. ponderance of evidence, that the damage or loss was This state of the case, which we have been con

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sidering upon plaintiffs' evider'ce, was not changed, God is the case of loss by flood and storm. Now when
we think, at the close of all the evidence, so far at it is shown that the damage resulted from this cause
least as the question we are considering is involved. immediately, he is excused. What is to make him lia-
That for defendant only confirmed the remarkable ble after this? No question of his negligence arises
character of the flood in question, and tended to show unless it is made by the other party. It is not neces-
that defendant could not have foreseen the danger or sary for bim to prove that the cause was such as ro-
avoided the damage to the goods by the exercise of leased him, and then to prove affirmatively that he
reasonable and practicable diligence; while that for did not contribute to it. If after he has excused him-
plaintiffs, in rebuttal, was as to this conflicting, ex- self by showing the presence of the overpowering
cept as to the character of the flood in said river. cause, it is charged that his negligence contributed to

It may be well to observe in this connection, that the loss, the proof of this must come from those who
under the ruling of this court in the case of Ellet v. assert or rely on it."
R. Co., 76 Mo. 518, this defense is available to the de- Upon the question before us the case of Railroad
fendant under the general issue, and need not be es- Co. v. Reeves is cited in support of the text in the
pecially and affirmatively set up. But it is said, that case of Reed v. R. Co., 60 Mo. 206, and the language of
upon authority the rule is otherwise, and that the con- Wagner, J., in the Reud case, aud in that of Wolf v.
trary has been declared in several cases in this State. | Express Co., is almost identical with that employed
We will examine these cases briefly.

by Judge Miller in Railroad Co. v. Reeves. The Court
In the case of Wolf v. Express Co., 43 Mo. 423, the of Appeals in its opinion in this case uses the follow-
wine, which was the subject of the controversy, ing language upon this subject: “It is true that
arrived at East St. Louis the 31st of December, and when the evidence for plaintiff shows damage, and at
was taken in severe weather from the cars, and stored the same time vis major sufficient in itself to account
and exposed on a platform for a number of days, and for the damage, there is no presumption that the neg-
thereby became frozen and damaged. The jury were ligence of the carrier, rather than the vis major, was
told that the burden of proving that the injury com• the sufficient cause of the damage. The general rule
plained of was caused by the act of God rested upon laid down in instruction No. 2 might perhaps, by am-
the defendant in the first instance; and then they plification, have been made more fully and exactly
were further told, that if the defendant permitted applicable to the case presented by the evidence. But
said wine to lay carelessly exposed, and become dam- the whole instruction, taken together, was not, we
aged thereby, they would find for plaintiff. The in-think, misleading."
structions were approved, and they are, we think, cor- In this view we are unable, upon the ground indi-
rect in that sort of a case. Wagner, J., speaking for cated, to concur. We think it erroneous, under the
this court, says: “After the damages to the goods authorities of this court which we have cited.
have been established, the burden lies upon the car- [Omitting minor considerations.]
rier to show they were occasioned by the act or peril

which the law recoguizes as constituting an exemp-
tion, and then'it is still competent for the owner to INSANITY- DEAF MUTE EVIDENCE OF WANT
show that the injury might have been avoided by rea-

sonable skill and attention."
Again, in the case of Read v. R. Co., 60 Mo. 206, the

same judge says, for tbe court, that “when the loss of

AUGUST 24, 1886,
the goods is established, the burden of the proof de-
volves upon the carrier to show that it was occasioned
by some act which is recognized as an exception. This

shown, it is prima fucie au exoneration, and he is not A deaf mute who does not understand any matter of business,
required to go further, and prove affirmatively he and cannot be made to understand it, except that of the
was guilty of no negligence. The proof of such neg- most simple character, cannot manage his own affairs,
ligence, if asserted to exist, rests on the other party." and is incapable of selecting an agent to transact them.
Page 206.

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That remaining case cited by plaintiffs in this beball ON motion to set aside inquisition.


is that of Pruitt v. R. Co., 62 Mo. 529. In that case
two certain lots of hogs,the subject of the action, were

A. S. Appelget, for motion.
delivered to the carrier for shipment. There was a Runyon, Ch. The inquisition in this case is signed
very unreasonable delay of a month or more in ship-by nineteen of the twenty-four jurors. They find
ping the hogs, and the snow-storm and cold weather that the alleged lunatic “is of sound mind, and is
occurred in which the hogs were frozen to death or capable of controlling her property by her own selec-
damaged. The case comments on the difference be- tiou of a proper person to act for her." The other five
tween the rulings of the New York courts and those certify that she is “not of sufficient understanding to
of Massachusetts and other courts upon the subject of enable her to manage her property." She is about
proximate and remote damages, or daniages which the sixty-five years old, and has never been married. The
negligence of the carrier concurs with the act of God commissioners have made a report concerning her
to produce; and the court say it is well to observe that condition. They say that she is not an idiot or luna-
the latest decisions of this court (referring to Wolf v. tic, in the popular sense of the words; that she bas
Express Co., and Read v. R.) incline to the position of been a deaf mute ever since she was two or three years
the New York courts, which hold that where the neg- old; that she is ignorant, having never been taught
ligence of the carrier concurs in and contributes to any language, whether spoken or of signs; that she
the injury, the defendant is not exempt from liability can neither read nor write, and cannot express to
on the ground that the immediate damage is occa- others her understanding, if any she have, of any bus-
sioned by the act of God, or inevitable accident; but iness transaction; that she cannot be made to compre-
there is no discussion as to the burden of proof in the hend a business transaction, except perhaps a very

ordinary one, in volving no more money than a dollar In Railroad Co. v. Reeves, 10 Wall. 189, 190, Miller, or two; that she has learned to fetch and carry, and J., speaking for the Supreme Court of the United to do common, every-day housework, that is, she can

“ One of the instances always men- sweep, wash, cook an ordinary meal, etc.; that it is tioned by the elementary writers of loss by the act of possible, by rude gestures, to communicate to her a


States, says:

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desire that she should do such work; that she has business, or even of receiving any communication never managed her property, nor any part thereof, upon the subject, and therefore does not understand, and that the acting trustee of her estate has nerer in- and cannot be made to understand, what the necesformed her of the amount, character, or income of sities of the management of her estate demand, or her property, and that it is doubtful whether she can what an agent is, or what his duties are, or in other be so informed; that she has always been cared for by | words, if the proof was, as they certify, that she does her near relatives, with whom she has lived, by her not understand, and cannot be made to understand, mother for about fifty years, and until her mother's any matters of business, except it may be such as are death; after her mother's death by her unmarried sis- of the most simple character; if she has no compreter, so long as that sister lived, and since that sister's hension of business matters, it is obvious that she is death by her married sister, with whom she now not capable of managing her affairs, and the inquisilives. Application is made to set aside the inquisi- tion cannot be sustained, The jury does not fiud that tion on the ground that the finding is contrary to the she is herself competent to manage her business, but evidence.

that she is capable of controlling it by an agent of her Lord Hale says that a man deaf and dumb from his own selection. But if she cannot be made to underbirth is, in presumption of law, an idiot; and the stand what the business is, how can she select an agent rather because he has no possibility to uuderstand to manage it? what is forbidden by law to be done, or under what The inquisition will be set aside. penalties. He also says that if it can appear that the man has the use of understanding, which he adds, many of that condition discover by signs to a very great nieasure, then he may be tried, and suffer judg

ABSTRACTS OF VARIOUS RECENT DEment and execution, though great caution is to be

CISIONS used therein. Hale 1 P. C. 34.

In Brown V. Fisher, 4 Johns. Ch. 441, Chancellor ARBITRATION - ENFORCING AWARDS -- DEGREE OF Kent said, speaking of such persons: Perhaps, after CERTAINTY REQUIRED--JUDGMENT.-Judgment canall, the presumption, in the first instance, is that every not be rendered on an award which does not fix with buch person is incompetent. It is a reasonable pre- certainty the amount to be paid, or give precise data sumption in order to insure protection and prevent from which the amount can be ascertained from the fraud, and is founded on the notorious fact that the award the exact amount that should be paid. Acwant of hearing and speech exceedingly cramps the cording to the award the cargo consisted, not of powers and limits the range of the mind. The failure “5,000 of 500 tb. each," but “about 5,000." On "the of the organs requisite for general intercourse and sound portion of the cargo," without saying how communion with mankind oppresses the understand- much it is, the arbitrators award 2 p. p. 500 Bb.;" 01 ing, affligat homo divine particulam aura. A special “abont 88 tons country damaged wheat 157 per 500 examivation, to repel the inference of mental imbe- b.;” on “about 27 tons 14 cwt. 12/6 per 500 fb.;" on cility, seems always to have been required."

about 42 tons 10 p. per 500 tb.; and on about 81 tons A persou born deaf and dumb, but not blind, is not 57 per 500 tb. About 5,000 units or quarter is not the an idiot. Collin. Lun. 4, $ 5; Shelf. Lun. 4; Brown v. same as 5,000 units or quarters; and “about 88 tons" Fisher, supra. But in order to warrant this court in is not necessarily 88 tons. It may be more or less interfering in behalf of a person to protect him against than 88 tons, and we do not know whether more or the consequences of his own mental incompetency, it less, or how much more or less. Add the several pumis not necessary that he should be an idiot or a luna- bers representing the damaged wheat together, and tic. It is enough, if from any cause, whether by age, we only get “about" 238 tons, which subtracted from disease, affliction, or intemperance, he has become in- “about 5,000 units or quarters” we do not get the capable of managing his own affairs. 2 Madd. 73:2; 1 amount of the sound portion of the cargo, but only Bi. Coin. 304; Ridgeway v. Darwin, 8 Ves. 65; Conov- the proximate amount of the aggregate of several er's case, 28 N. J. Eq. 330; Lawrence's case, id. 331. “abouts.” I apprehend that a Liverpool corn mer

In Gibson v. Jeyes, 6 Ves. 267, 273, Lord Eldon says, chant, buying a cargo of wheat afloat, would pay conthat upon a commission in the nature of a writ de

siderably more for one to be of a specified certain lunatico inquirendo, it is not necessary to establish grade in quality No. 1 standard than for a cargo lunacy, but it is sufficient that the party is incapable * about” No. 1. The use of the word “about,” ordiof managing his owu affairs.

narily, in these transactions is for the express purpose It was so held by Chancellor Kent In re Barker, 2 of giving some margin for excess or deficiency. In Johns. Ch. 232, where the person who was the subject this instauce of making an award it may have been an of the inquiry had become incapacitated by old age. oversight in the arbitrators not to fix the specific Whether persons boru deaf and dumb are to be treated amount; but if so, we cannot presume the proper judicially as persons mentally incompetent to manage amount, but must take the award as we find it, and their affairs must depend upon the evidence they are the language used renders the award no less uncertain. able to give of the possession of capacity.

An award is in the nature of a judgment, and must fix In Dickenson v. Blisset, 1 Dick, 268, a person who the precise amount, so that the judgment may follow was born deaf and dumb, and who had attained to her the award. Who ever saw a judgment for “about five majority, applied for possessiou of her real estate, and thousand dollars?" How could such a judgment be for an assignment to her of her personal property. executed? Who would or could determine how much Lord Chancellor Hardwicke, having put questions to money must be collected upon an exeoution, and when her in writing to which she gave sensible answers in

enough is collected to satisfy the judgment? It is imwriting, thereupon granted the application.

possible to ascertain from this award, upon which the In Brower v. Fisher, 4 Johns. Ch. 441, above cited, a action is brought, the precise sum for which judgcommission was issued to inquire as to the mental ment should be rendered. The exact amount of the competency of such a person.

sound part of the cargo is not known; neither is the In the case in band the jury found tbat Miss Per

exact amount of the several parts damaged in differrine was of sound mind, and capable of controlling her ent degrees, and upon which different amounts of property by her own selection of a proper person to damages are awarded, known. We do not find in the act for her. But if the proof was, as the commission- award the element for an accurate calculation or estiers certify, that she is incapable of understanding the mate of the precise amount for which judgment ought

te ti

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