Shore, etc, Rd. Co. v. In other States a more reasonable rule has been adopted. In Fullman v. City of Mankato, 35 Minn. 522, the question presented was whether one who, by invitation or permission of another, rides in the private conveyance of the latter, and which is wholly under the management and control of the owner, is affected by the negligence of such owner so as to prevent a recovery against a third party for negligence? The court answered in the negative, citing and relying upon Robinson v. Rd. Co., 66 N. Y. 11; Dyer v. Rd. Co., 71 N. Y. 228; Masterson V. Rd. Co., 84 Id. 247; Little v. Hackett, 116 United States 366; Bennett v. Rd. Co., 36 N. J. L. 225; R. R. Co. v. Steinbrenner, 47 Id. 161; Cuddy v. Horne, 46 Mich. 596; Transfer Co. V. Kelly, 36 Ohio St. 86; Rd. Co. v. Shacklet, 105 Ill. 365. See Phila. etc.,, Rd. Co. v. Hogeland, 66 Md. 149, for an interesting recent case. The Pennsylvania doctrine is rather peculiar, and the reasons given by the Supreme Court of that State to support it are not easily comprehended. While the rule of Thorogood v. Bryan seems to have been adopted, yet, while adopting it, the reasons given by the English courts were expressly rejected. In the late case of Borough of Carlisle v. Brisbane, 113 Pa. St. 546; s. c. 57 Am. Rep. 483 (with note), the court holds that one who is injured by the joint negligence of a person with whom he is riding by invitation, and a third person, is not chargeable with the negligence of the driver. In course of the opinion, the court said: “Where a passenger is personally injured by the joint negligence of his carrier and another party, his remedy is against the carrier alone. The question was first raised in this court, and was very fully discussed in the case of Lockhart v. Lichtenthaler, 46 Pa. St. 151. The decision in that case was grounded upon the doctrine of the English cases: Bridge v. Grand Junction R. Co., 3 M. & W. 247, in the Court of Exchequer; Thorogood v. Bryan, 8 C. B. 115 (65 Eng. Co. Law), and Cattlin v. Hills, 65 Eng. Com. Law 123, in the Common Bench. These cases have since been followed and approved in the Exchequer by Armstrong v. Lancaster and York R. Co., L. R. 10 Exch. 47. The principle upon which all these English cases appear to have been determined is that the passenger is so far identified with the carriage in which he is traveling, that want of care on the part of the driver will be a defense of the owner of the other carriage that directly caused the injury. Our own case of Lockhart v. Lichtenthaler, supra, was followed by Rd. Co. v. Boyer, 97 Pa. St. 91, an action against a railroad company to recover damages for the death of a person caused by a collision of defendant's train with a street car, in which the deceased was a passenger. It was held that in order to recover, the plaintiff must show, not only that the death resulted directly from the defendant's negligence, but that the negligence of the carrier company did not contribute to the injury. Therefore, although there is certainly a wide difference of opinion between the courts of this and other States on the subject, it seems to be well settled as the law of Pennsylvania that the remedy of a passenger injured by the joint negligence of his carrier and another is against the common carrier only. The reasons for this rule are given in Lockhart v. Lichtenthaler, supra, by THOMPSON, J., as follows: "I would say the reason for it, that it better accords with the policy of the law to hold the carrier alone responsible in such circumstances as an incentive to care and diligence. As the law fixes the responsibility upon a different principle in case of carriers, as already noticed, from that of a party who does not stand in that relation to the injured party, the very philosophy of the requirement of greater care is that he shall be answerable for omitting any duty which the law has defined as his rule and guide, and will not permit him to escape by imputing negligence of a less culpable character to others, but sufficient to render them liable for the consequences of his own. It would be altogether more just to hold liable him who has engaged to observe the highest degree of diligence and care and has been compensated for doing it, rather than upon him upon whom no such obligation rests, and who, not being compensated for the observance of such a degree of care, acts only on the duty to observe ordinary care, and may not be aware even of the presence of a party who might be injured. This rule, it cannot be doubted, will be more likely to increase diligence than the opposite, which would enable a negligent and faithless party to escape the consequences of his want of care by swearing it on another, which he would assuredly do if the temptation and opportunity afforded. As this view accords best with the policy of the law, it is proof of the existence of the rule itself." St. Louis, Mo. B. E. BLACK. Examiner of National Bank cannot bind by acts in its behalf: Witters v. Sowles, C. Ct. U. S., Dist. Vt., Oct. 5, 1887. BILLS AND NOTES. Accepted draft not returned until insolvency of acceptor raises a question for a jury whether the failure to return damaged the payee: Fox v. Davenport Nat. Bank, S. Ct. Iowa, Dec. 21, 1887. Collection jee stipulated for, in case of suit, is to be considered part of the matter in controversy in determining what court has jurisdiction: Blakenship v. Wartelsky, S. Ct. Texas, Dec. 2, 1887. Consideration is sufficient where the note is given to plaintiff on surrender of his certificate of homestead entry to enable defendant to acquire plaintiff's interest. Fraud and bad faith of plaintiff in originally making his entry does not affect the note: McCabe v. Caner, S. Ct. Mich., Jan. 12, 1888. 1 To appear in 123 or 124 U.S. Rep. * To appear in 33 Fed. Rep. To appear in 1 I. S. Com. Rep. ♦ To appear in 76 or 77 Ga. Rep. To appear in 111 or 112 Ind. Rep. To appear in 71 or 72 Ia. Rep. 'To appear in 37 or 38 Kan. Rep. 8 To appear in 83 or 84 Ky. Rep. 9 To appear in 80 or 81 Me. Rep. 10 To appear in 67 or 68 Md. Rep. Payment presumed when new note given to take up; and this presumption becomes conclusive when new note is indorsed to third person who brings suit: Snow v. Foster, S. Jud. Ct. Me., Dec. 22, 1887. Parol evidence admissible to show that other persons were to sign as makers: Merchants' Exchange Bank v. Luckow, S. Ct. Minu., Dec. 13, 1887. CHECKS. Defined to include an order on a bank to pay to a named person a specified sum on deposit without designating a future day of payment: Bull v. First Natl. Bank, U. S. S. Ct., Oct. 31, 1887. Negotiability not affected by being payable" in current funds:" Id Partnership, drawn by one partner for his own use, with the knowledge of the bank, is paid by the bank at the risk of the other partner not assenting: Graham v. Taggart, S. Ct. Pa., Nov. 11, 1887. CRIMINAL Law. Removal to district where the offense was committed, under §1014, Rev. Stat. U. S., should be preceded by preliminary examination to establish identity of person and probable guilt: Re Burkhardt, D. Ct. U. S., E. Dist. Wis., Oct. 27, 1887. COMMON CARRIERS. See Interstate Commerce Law-Railroads. CONSTITUTIONAL LAW. See Liquor Laws-Railroads-Removal Cases-U.S. Constitution. CONSIDERATION. See Bills and Notes-Contracts. CONTRACTS. See Railroads. Construction aided only in case of uncertainty, by resort to the condition of the parties, the subject-matter and circumstances surrounding the transaction: Plano Mfg. Co. v. Ellis, S. Ct. Mich., Jan. 5, 1888. Continuing offer to sell land does not need a formal withdrawal, and is effectually terminated at once by a sale to a third person: Coleman v. Applegarth, Ct. App. Md., Nov. 18, 1887. Interlineation cannot be explained or shown by whom written, when there is no allegation of fraud or mistake and the contract is unambiguous: Bowe v. Dotterer, S. Ct. Ga., Oct. 8, 1887. Nudum Pactum.-Verbal promise, without consideration, for extension of a written option to purchase land, where time is of the essence of the contract: Coleman v. Applegarth, Ct. App. Md., Nov. 18, 1887. Time stipulated in a written option to purchase land, is of the essence of the contract: Id. DAMAGES. See Railroads. Deductions in case of death, not simply for personal food and clothing, but also expenses of his manner of living: Augusta, etc., R. R. Co. v. Killain, S. Ct. Ga, Nov. 22, 1887. DEED. See Land-Married Women. DURESS. See Married Women. EMINENT DOMAIN. Drains cannot be authorized to be laid on land for the benefit of an adjoining owner, because a taking for private use: Fleming v. Hall, S. Ct. Iowa, Dec. 20, 1887. EXPRESS COMPANIES. See Interstate Commerce Law. EXECUTOR. De son tort, when sued by creditor of decedent, not allowed for his own debt, at law or in equity: Baumgartner v. Haas, Ct. App. Md., Dec. 9, 1887. Receiver appointed on prayer of legatee, where executrix, who is the life tenant, and is directed to manage for best interests of legatees, mismanages: Solomon v. Tarver, S. Ct. Ga., Oct. 28, 1887. FRAUD. See Married Women. INTERSTATE COMMERCE LAW. See also Railroads. Application of the act to a common carrier is not defeated by reason of some of the carrier's transactions being outside of the act: Re Express Companies. The Commission, Dec. 28, 1887. Common carriers, such as stage coaches, independent steamboat lines, etc., by the implication of the first section of the act, are not subject to its provisions: Id. Definition of the first section ("the provisions of this act shall VOL. XXXVI.-18 |