Massachusetts (Skinner v. Railroad Corp., 1 Cush. 475); in Kentucky (Eden v. Railroad Co., 14 B. Monr. 165); in New York (Green v. Railroad Co., 28 Barb. 9; *41 N. Y. 294); in Michigan (Hyatt v. Adams, 16 Mich. 180); in Indiana (Long v. Morrison, 14 Ind. 595; Railroad Co. v. Keeley, 23 id. 133); in Connecticut (Insurance Co. v. Railroad Co., 25 Conn. 272); in the Supreme Court of the United States (Insurance Co. v. Brame, 95 U. S. 754); in California (Krumer v. Railroad Co., 25 Cal. 434); in Maine (Nickerson v. Harriman, 38 Me. 277); in Pennsylvania (Railroad Co. v. Adams, 55 Penn. St. 499); and in Georgia (Railroad Co. v. Lacey, 49 Ga. 106). The case of recent date above referred to is Sullivan v. Railroad Co., 3 Dill. 334. The action was by a parent for the loss of the services of his son, claimed to have been killed by the negligence of the defendant. It was admitted that there was no existing statute upon which the action could rest. After a review of the English cases, Dillon, J., reached the conclusion that the plaintiff might recover. The decision indicates the opinion of that able judge to be that the common law, as administered here, does not prohibit such actions. But I have found no other Federal court following the case, and the Supreme Court of the United States in Insurance C. v. Brame, supra, declares the proposition that by the common law no civil action lay for an injury which results in death to be one not open to question.

Lord Campbell's act, as we have seen, gave an action in favor of a husband and parent, as well as of a wife and child, for an injury occasioned by death. In the earliest period the common law had given to the widow and to the heir an action against the slayer of the husband and ancestor. Such actions, known as appeals of death, had fallen into disuse, and after the celebrated case of Ashford v. Thornton, 1 Barn. & Ald. 405, which exhibited to comparatively modern times two relics of ancient law, viz., pleadings ore tenus and wager of battle, were abolished by statute. As I have interpreted the common law, thenceforth an injury occasioned by death was absolutely without redress. Parliament thereupon, by Lord Campbell's act, provided for redress for such injuries, etc. It gave an action in favor of the widow and of the children of the deceased. It also gave an action in favor of the husband and the parent. When the Legislature of New Jersey passed the "Act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default," approved March 3, 1848, the lines of Lord Campbell's act were not followed. An action was thereby given in favor of the widow, but not in favor of the husband; and the action was not limited to the children, but extended for the benefit of the next of kin. The omission of the husband does not however, in my judgment, indicate a legislative declaration that he already had a right of action. As we have seen, no recognition of any such right has been discovered. The omission may rather be assumed to indicate a legislative intent to provide redress for those who, in general, had been dependent upon the deceased, and who for that reason might be presumed to be peculiarly injured by his death.

The conclusion I have reached is that the rule of the common law was that no action would lie to recover damages for the killing of a human being; that the rule has become so solidified that whatever its original reason was, and however such reason may have ceased to exist, it cannot be judicially disregarded or annulled, but if injurious, its further modification must be sought from legislative action. This result excludes the whole action disclosed in the declaration.

The demurrer was therefore properly sustained, and the judgment below should be affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

*

APPEAL-DECISION-PARTIAL AFFIRMANCE.-Under the Code of Civil Procedure of New York, § 1317, providing that on appeal the court "may reverse or affirm, wholly or partly, or may modify the judgment, * * * and may * * grant a new trial or hearing," on appeal from a judgment for a gross sum of money against a single defendant a new trial can be granted only as to the whole action, and the court cannot sustain a part of the judgment and order a new trial as to the residue. Story v. Railroad Co., 6 N. Y. 85; Wolstenholme v. Manufacturing Co., 64 id. 272. This section (1317) embodies and takes the place of sections 13, 330, Code Proc., and it in no way enlarges the powers or jurisdiction of appellate courts. The two authorities above referred to must therefore control our decision in this case. A new trial in a common-law action against a single defendant can be granted only as to the whole action, and so far the common-law rule is still in force. If however in such a case there is error affecting only part of the judgment, and the record be in such condition that by a reversal in part, or by a modification thereof, the error can be eliminated, and the judgment can thus be made right without a new trial, the Code confers power upon appellate courts to make the correction or modification. So too where there are several defendants, and there is error affecting only one, who has a separate defense, the judgment as to him may be reversed aud a new trial ordered, leaving final judgment to stand as to the others. Frank v. Insurance Co., 102 N. Y. 266. April 10, 1888. Goodsell v. Western Union Tel. Co. Opinion by Earl, J.

SUIT-CONSIDERATION.-Defendant, pending a foreclosure suit in which judgment for a deficiency might be rendered against her, conveyed to her brother-inlaw lands conveyed to her through him by her husband, and he conveyed them back to her in trust for her daughter. Defendant alleged that at the time of her conveyance she was ignorant of the foreclosure suit, and it was not established that the transfer was voluntary and without consideration. Held, that there was no legal inference of fraudulent intent, and a finding for defendant should not be disturbed. April 10, 1888. Jackson v. Badger. Opinion by Finch, J.

MUNICIPAL CORPORATIONS — DEFECTIVE STREETS — EXPLOSION OF GAS.-In an action against a city for injuries caused by an explosion at a man-hole in a street, it appeared that steam-heating pipes had been laid so near gas-pipes that they had leaked, and a consequent accumulation of gas becoming ignited had probably caused the explosion. The steam-pipe enterprise was an entirely new one, but was properly authorized by charter and city ordinance. There was no positive proof of a lack of care in conducting the work or locating the pipes, or that such explosion could be anticipated. Held, that no negligence on the part of the city had been shown. Where the defect is known, rendering the street unsafe and dangerous, the municipality is bound to be prompt and vigilant in remedying it. It is at all times bound to exercise due care that the streets are safe and free from dangerous defects, and that they shall not become unsafe or dangerous. To this extent its duty is absolute. The language of the

cases expressing the measure of duty resting upon municipal corporations in respect to their streets, sewers, etc., has not always been carefully guarded; but the doctrine has been frequently reiterated in this court that there is no absolute guaranty of undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. McCarthy v. Syracuse, 46 N. Y. 194; Smith v. Mayor, etc., 66 id. 295; Ring v. Cohoes, 77 id. 83; Hubbell v. Yonkers, 104 id. 434. There must be willful misconduct or culpable neglect to create liability. Under such circumstances, the omission of the city to make a regulation prescribing the manner in which the steam-pipes should be laid furnishes no evidence of negligence. The experience furnished by the accident led to the changes in the forms of coverings for the man-holes, and to the substitution of a different method of joining the sections of the steam-pipes, which thereafter apparently prevented the occurrence of similar accidents. But 80 far as appears, all the precautions which at the time seemed to be necessary were taken to make the work safe and secure. April 10, 1888. Hunt v. City of New York. Opinion by Andrews, J.

PARTIES ESTOPPEL ΤΟ

DEED OF TRUST-PARTITION

-SALE

QUESTION VALIDITY. — (1) A deed imposing certain trusts upon the grantee of the property conveyed, provided that he might absolutely sell, lease or mortgage so much of the estate or any part thereof as might be necessary to defray the expenses of the same, and to invest the proceeds received and pay over the income to the grantor, and upon the latter's death, to transfer both principal and interest and the whole of the residue to his surviving children. Held, that as the deed did not command an absolute sale of the whole of the real estate, after the death of the grantor, the residue of the real estate, if any, vested in his children; and they should be made parties to a judgment for a partition and sale of the land, in order to give a purchaser at the sale a clear title. (2) After a judgment and sale of land in partition proceedings, the alleged heirs to the property admitted, in a sealed instrument, the validity of a claim against the estate, and consented that it should be paid out of the funds arising from such sale. It did not appear that the instrument was based upon any consideration or was ever acted upon. Held, that this was not such a recognition of the validity of the sale as will estop them from denying it. (3) A person made a party to partition proceedings, but who has no interest in the land sold, and is not a necessary party to the proceedings, will not be estopped from denying the validity of the sale. April 10, 1888. Miller v. Wright. Opinion by Earl, J.

CORPORATIONS-STOCK ACTION TO DETERMINE OWNERSHIP CONTRACT PUBLIC POLICYEQUITY-JURISDICTION ACCOUNTING -CONTRIBUTION DEFENSES FRAUD RIGHT TO JURY TRIAL.

(1) A corporation is not a necessary party to a suit between its stockholders as to the ownership of stock. (2) Persons purchasing property with their own money, but intending to turn it over to a railroad company with which they are connected, are the real parties in interest in an action to establish their rights as against an associate in the purchase who refuses to surrender the possession of certain shares of the stock of the corporation owning the property. (3) An agreement to organize a corporation, and that one of the persons furnishing the capital shall subscribe for the whole stock intended to be taken by the associates is not illegal. (4) An action to establish the rights of persons who have advanced money and incurred lia

bilities in reliance upon an agreement of others to contribute equally to such advances and share such liabilities, is one for the cognizance of a court of equity. (5) The fact that a mortgage was given by a corporation to secure an advance made by a member thereof upon its formation is no defense for his associates when called on to reimburse him according to their agreement. (6) The repayment by a third party of the amount expended by one who advanced funds under an agreement that his associates should contribute to the advance affords no defense to an action for contribution unless such was the intention of the parties. (7) The trial by a referee of the question of an overcharge of the cost of property purchased by defendant with the funds of his associates does not necessarily involve a question of fraud entitling defendant to a jury trial, as his liability results from his failure to expend the moneys intrusted to him by his associates in the purchase of such property. April 10, 1888. King v. Barnes. Opinion by Ruger, C. J.

PATENTS FOR INVENTIONS -TRANSFER PROMISSORY NOTES-CONSTITUTIONAL LAW.-A State law providing that when the consideration for a promissory note shall consist of the right to a patent invention, the words "given for a patent-right" shall be written or printed on the face of such note, which shall be subject to the same defenses in any purchaser's hands as in the hands of the original owner, and making it a misdemeanor to take or sell a note without those words inserted therein, with knowledge that the consideration was a patent-right, is not unconstitutional as being in restraint of a patentee's right of sale of his invention. This question has been considered by the highest conrts in the States of Pennsylvania and Ohio, under statutes substantially like the statute in this State, and in the opinions delivered the constitutionality of the legislation was maintained. Tod v. Wick, 36 Ohio St. 370; Haskell v. Jones, 86 Penn. Stat. 173. The plaintiff however, in opposition to this view, cites several cases: Ex parte Robinson, 2 Biss. 309; Woolen v. Banker, 17 Alb. Law J. 72; U. S. Cir. Ct., S. D. Ohio, Swayne, J.; In re Lake, U. S. Cir. Ct., N. D. Ohio, Matthews, J.; Cranson v. Smith, 37 Mich. 309; Wilch v. Phelps, 14 Neb. 134; State v. Lockwood, 43 Wis. 403. The leading case, Ex parte Robinson, arose under a statute of Indiana making it unlawful for a person to sell or offer to sell any patent-right within this State without first filing an authenticated copy of the letters-patent with the clerk of the court, and at the same time making an affidavit before the clerk that the letters-patent were genuine and had not been revoked or annulled, and that he had full authority to sell, etc. It was held by Mr. Justice Davis, sitting at circuit, that the law then in question was unconstitutional and void, as an infringement upon the right of sale secured to a patentee by the letters-patent. The other cases mentioned are founded mainly upon the authority of Ex parte Robinson. It will be observed that even if that case was well decided, it would not necessarily determine a case arising under our statute, which does not undertake to impose conditions upon the right to sell a patented invention, but simply prescribes that if a negotiable instrument is taken upon such sale the words "given for a patent-right" shall be inserted, and subjects the note to defenses existing against its original holder, notwithstanding its transfer. The Supreme Court of the United States in a recent case (Patterson v. State, 97 U. S. 501) had occasion to pass upon the validity of a statute of Kentucky which prohibited the sale in that State of illuminating oils not bearing a prescribed test. The plaintiff was the patentee of an oil, which if the statute was valid, could not be sold at all in Kentucky, as it could not be made

so as to conform it to the statute standard. It was claimed that the law was an invasion of the right secured to the patentee by his patent to sell his invention. The opinion of Mr. Justice Harlan in the case, upholding the statute, in which the court concurred, is an able and satisfactory exposition of the doctrine that the patent laws do not interfere with the power of a State to pass laws for the protection and security of its citizens in their persons and property, or in respect to matters of internal polity, although such laws may incidentally affect the profitable use or sale by a patentee of his invention. The Supreme Court of Indiana, after the decision in Patterson v. State, affirmed the constitutionality of the Indiana statute. reversing its previous decisions to the contrary, founded upon Ex parte Robinson. Breckbill v. Randall, 102 Ind. 528; New v. Walker, 108 Ind. 366. Under this state of the authorities we feel at liberty to declare our concurrence in the views expressed by the courts of Ohio and Pennsylvania upon the general question. The right of a discoverer to sell his invention is not derived from his patent. This right would exist although no patent laws had been enacted. What he obtains by his patent is the right to exclude others from selling or using his invention for the period specified; the right to sell or use which would, except for the protection of the patent laws, be open to all the world. The statute of New York now in question in no way interferes with this exclusive right. A State law directly infringing this law would unquestionably be void. The law of Congress and the State law are not in conflict. The object of one is to secure to the inventor an exclusive right to use or sell his invention, and the object of the other is to protect against fraud in sales. The State law operates upon the thing taken for the right sold when that is a negotiable instrument by requiring the consideration to be plainly expressed, and thus subjecting the instrument when transferred to the same defenses in the hands of the transferee as in the hands of the original holder. The statute does not make the note illegal, although the statutory words are omitted; nor does it take from a bona fide transferee for value before maturity, without notice of the consideration, the protection accorded to commercial paper by the law-merchant. This is the view taken in the case first cited, and is we think the true construction of the statute. It is impossible to say even that the statute operates to the disadvantage of the patentee. It may restrict the currency of the paper taken on sales of patent-rights, but on the other hand it may facilitate sales by inducing confidence on the part of purchasers that they will be protected in case of fraud or other defense. April 10, 1888. Herdic v. Roessler. Opinion by Andrews, J.

STATUTE OF LIMITATIONS -CONVERSION RUNNING OF THE STATUTE BY AGENT-WHAT CONSTITUTES RATIFICATION PLEADING AND PROOF.(1) Under the Code of Civil Procedure of New York, $410, providing that the time within which an action must be commenced shall be computed, where the right grows out of the receipt or detention of money by a person acting in a fiduciary capacity from the time when the person having the right to make the demand had actual knowledge of the facts upon which that right depends, where plaintiff, in an action for the conversion of funds in the hands of defendant for investment, relied entirely upon defendant and received interest money from him on a pretended investment for a long time, and it appeared that defendant never invested the money, but used it for his own purposes, the statute begins to run from the time plaintiff discovered the true state of facts and demanded a return of the money. (2) Where money is placed in the hands of an agent for investment upon

good bond and mortgage, and he retains such money in his own possession, and causes his wife to assign to plaintiff a bond not representing an investment of money, but obtained as a part of the consideration expressed on a trade of real estate by her and secured by a mortgage on property already fully incumbered, the agent is liable for conversion. (3) The bond was secured by a second mortgage on a lot covered by a first mortgage to its full value; the second mortgage included about twenty feet of land not covered by the first mortgage; plaintiff, in ignorance of her rights, accepted from defendant a deed to such twenty feet; in a very short time after being advised what her rights were, she returned such deed and claimed the money. Held, that the acceptance of the deed was not a ratification of defendant's acts. (4) Where a complaint in an action for the conversion of money fails to aver a demand by plaintiff of such money, but is not demurred to, evidence of such demand is competent in absence of objection. April 10, 1888. King v. MacKellar. Opinion by Gray, J.

TAXATION -TAX TITLES CANCELLATION -REFUNDING PURCHASE-MONEY.-Laws of New York, 1855, chap. 427, § 85, provides that when, after the conveyance has been made, a tax sale is found to have been invalid, the comptroller shall cancel the sale and refund the purchase-money to the purchaser or his assigns. Held, that where a purchaser has conveyed away the property by mortgage and warranty deed before sale was canceled, his grantee alone is entitled to the purchase-money. April 10, 1888. People ex rel. v. Chapin. Opinion by Andrews, J.

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-LEGISLATIVE POWERS-TAXATION-PUBLIC IMPROVEMENTS.-After an assessment for improving a street was partly paid, it was declared void for want of any provision for notice and hearing, and the unpaid portion was cancelled. Subsequently the Legislature directed an assessment of the amount so cancelled, with interest, upon the lands upon which the former assessment was not paid, and provided for an apportionment, with notice and hearing thereof. Held, valid. The power to tax belongs exclusively to the legislative branch of the government. United States v. New Orleans, 98 U. S. 381, 392; Meriwether v. Garrett, 102 id. 472. In the words of Chief Justice Chase, condensing what had been said long before by Chief Justice Marshall: "The judicial department cannot prescribe to the legislative department limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons; but the responsibility of the Legislature is not to the courts, but to the people, by whom its members are elected." Bank v. Fenno, 8 Wall. 533, 548; McCulloch v. Maryland, 4 Wheat. 316, 428; Bank v. Billings, 4 Pet. 514, 563. See also Kirtland v. Hocthkiss, 100 U. S. 491, 497. Whether the estimate of the value of land for the purpose of taxation exceeds its true value, this court on writ of error to a State court cannot inquire. Kelly v. Pittsburgh, 104 U. S. 78, 80. The Legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. Willard v. Presbury, 14 Wall. 676; Davidson v. New Orleans, 96 U. S. 97; Mobile Co. v. Kimball, 102 id. 691, 703, 704; Hagar v. Reclamation Dist., 111 id. 701.

If the Legislature provides for notice to and hearing of each proprietor at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law. McMillen v. Anderson, 95 U. S. 37; Davidson v. New Orleans and Hagar v. Reclamation Dist., above cited. In Davidson v. New Orleans it was held that if the work was one which the State had the authority to do, and to pay for by assessments on the property benefited, objections that the sum raised was exorbitant, and that part of the property assessed was not benefited, presented no question under the fourteenth amendment to the Constitution upon which this court could review the decision of the State court. 96 U. S. 100, 106. In the absence of any more specific constitutional restriction than the general prohibition against taking property without due process of law, the Legislature of the State, having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it to be assessed, either like other taxes, upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax and the class of lands which will receive the benefit, and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of commissioners. When the determination of the lands to be benefited is intrusted to commissioners, the owners may be entitled to notice and hearing upon the question whether their lands are benefited, and how much. But the Legislature has the power to determine, by the statute imposing the tax, what lands, which might be benefited by the improvement, are in fact benefited; and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment, and its apportionment among the different parcels of the class which the Legislature has conclusively determined to be benefited. In determining what lands are benefited by the improvement, the Legislature may avail itself of such information as it deems sufficient, either through investigations by its committees or by adopting as its own the estimates or conclusions of others, whether those estimates or conclusions previously had or had not any legal sanction. April 2, 1888. Spencer v. Merchant. Opinion by Gray, J.; Matthews and Harlan, JJ., dissenting.

EVIDENCE ANCIENT DOCUMENT-USE FOR COMPARISON OF HANDWRITING.-Where a paper, dated in 1828, properly authenticated, from the public archives of Coahuila, purporting to be signed in person by an applicant for concession of land by the government, is properly in evidence for other purposes, the jury may, if they believe from all the evidence that the paper is genuine, and as old as its date imports, treat the signature as genuine, and use it as a standard of comparison in determining the genuineness of an alleged signature. It is well settled that a witness who only knows a person's handwriting from seeing it in papers produced on the trial, and proved or admitted to be his, will not be allowed from such knowledge to testify to that person's handwriting, unless the witness be an expert, and the writing in question is of such antiquity that witnesses acquainted with the person's handwriting cannot be had. 1 Greenl. Ev., § 578. It is also the result of the weight of authority that papers cannot be introduced in a cause for the mere purpose of enabling the jury to institute a comparison of handwriting, said papers not being competent for any other purpose. Id., §§ 579, 581. But where other writings, admitted or proved to be genuine, are properly in evidence for other purposes, the handwriting

64

of such instruments may be compared by the jury with that of the instrument or signature in question, and its genuineness inferred from such comparison. Griffith v. Williams, 1 Cromp. & J. 48; Doe v. Newton, 5 Adol. & E. 514; Van Wyck v. McIntosh, 14 N. Y. 439; Miles v. Loomis, 75 id. 288; Medway v. United States, 6 Ct. Cl. 421; McAllister v. McAllister, 7 B. Mour. 269; 1 Phil. Ev. (4th Am. ed.) 615; 1 Greenl. Ev., § 578. The history of this rule is well stated in Medway v. United States, qua supra. In Griffith v. Williams it was stated by the court that "where two documents are in evidence it is competent for the court or jury to compare them. The rule as to the comparison of handwriting applies to witnesses who can only compare a writing to which they are examined with the character of the handwriting impressed upon their own minds; but that rule does not apply to the court or jury, who may compare the two documents when they are properly in evidence." In Doe v. Newton Lord Denman said: There being two documents in question in the cause, one of which is known to be in the handwriting of a party, the other alleged, but denied, to be so, no human power can prevent the jury from comparing them with a view to the question of genuineness; and therefore it is best for the court to enter with the jury into that inquiry, and to do the best it can under circumstances which cannot be helped." The other judges expressed substantially the same view. "The true rule on this subject," said Justice Johnson, in Van Wyck v. McIntosh, 14 N. Y. 439, 442, is that laid down in Doe v. Newton, that where different instruments are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from such comparison. But other instruments or signatures cannot be introduced for that purpose." See American note to Griffith v. Williams, 1 Cromp. & J. (Phil. ed.) 47. This rule is not contravened by the decisions of the Supreme Court of Texas or of this court. The leading case in Texas on comparison of handwriting is Hanley v. Gandy, 28 Tex. 211, which only decides that other papers, not connected with the cause, cannot be introduced for the mere purpose of instituting a comparison of handwriting. No case decides that a signature to be proven cannot be compared by the jury with other papers or signatures of the party, properly in evidence in the cause. Strother v. Lucas, 6 Pet. 763, the leading case in this court, relates to the competency of a witness to testify as to the genuineness of a signature without having any knowledge of the party's handwriting; and the court held that such evidence was not admissible. The case of Moore v. United States, 91 U. S. 270, affirms the rule in question in cases where the paper used as a standard of comparison is admitted to be in the handwriting of the party, or where he is estopped from denying it to be so. It does not disaffirm the rule as applied to cases where the standard is clearly proved to be in such handwriting. In that case the paper referred to as the standard of comparison was the claimant's power of attorney given to his attorney in fact, by virtue of which the latter presented his case to the Court of Claims. It was held that he was estopped from denying that the signature to the power was in his handwriting. The present case is quite similar to that. April 2, 1888. Williams v. Conger. Opinion by Bradley, J.

RIES.(1) It is not within the scope of the employment of a baggage master connected with a railway train, but not shown to have been put in charge of the same, to invite or permit any person or persons to enter and ride on a coach of such train. Permission given under such circumstances cannot create the relation of carrier and passenger between the company and the person thus riding on such cars. (2) The company is not liable to such persous for injuries which they may receive, unless for negligence or tortious acts on the part of the company. The baggage master has no duty or authority with the train, whether running or at the depot; and his permission to the girls to ride on that train caunot bind or affect the rights or obligations of the company. Pierce Railroads, 277; Suyder v. Railroad Co., 60 Mo. 413; Gillet v. Raiiroad Co., 55 id. 315; Hanson v. Railway Co., 38 La. Ann. 111. La. Sup. Ct., Jan. 9, 1888. Reary v. Louisville, N. O. & T. Ry. Co. Opinion by Roché, J.

CONTRACT -ASSUMPSIT- INABILITY TO PERFORM - RECOVERY FOR LABOR DONE.-Plaintiff having contracted to furnish certain machinery and appliances for a hotel, and having nearly completed his contract, was rendered unable to do so by reason of defendant's delay in doing some carpenter work which under the contract he was obliged to do. Before any thing further was done, the hotel was destroyed by fire, and performance of the contract rendered impossible. Held, that plaintiff could recover upon general assumpsit for his labor and materials furnished under the contract, although the completion of the work had been further delayed by the consent of both parties, and without the immediate fault of either. The destruction of the building without the fault of either party absolved both parties from the obligation of the contract and rendered further performance of it by the plaintiff impossible; it worked a virtual dissolution of the contract. It is hardly necessary to cite authorities or to adduce arguments to sustain the proposition, that if the plaintiff had furnished labor and materials under an entire contract, which it had not fully performed at the time the contract was dissolved, and if such non-performance was owing to the fault of the defendant, the plaintiff can maintain an action for the labor and materials. Rawson v. Clark, 70 Ill. 656, and Garretty v. Brazell, 34 Iowa, 100, are in point. There is no question that the fault of the defendant prevented the completion of the plaintiff's work at some time before the fire, and it must be taken to have been the cause of the incompletion of the work at the time of the fire, unless some fault of the plaintiff intervened as a contributing cause. The plaintiff could not be in fault unless he was under obligation to perform the contract, and had an opportunity to complete the work. If the breach of contract by the defendant was such as to give the plaintiff a right to rescind the contract, and he exercised that right, he would be under no obligation to further perform the contract, and could not be in fault in not doing so. If the circumstances were such that he could not, or if he did not, rescind the contract, but continued under its obligation, the fact would remain that he would have fully performed the contract but for the fault of the defendant; and that fault would remain the cause of the non-performance until the plaintiff should be in fault. The plaintiff could be in no fault in not completing the work until it had notice that the defendant had finished the frame. Although the frame was in fact ready two months before the hotel was burned, the plaintiff had no notice of it. It had no reason to suppose that the defendant had rendered it possible to finish the work; and we need not consider what would have been the effect of notice before that time from the defendant that he had performed the condi

tion precedent, with a request to the plaintiff to complete the work. The plaintiff was not in fault in not insisting upon a speedy performance of the contract by the defendant, and in agreeing to a postponement. The defendant had already broken his contract, and prevented the plaintiff from completing Its part, and obliged it to suspend its work; and it could not perform the little that remained until the defendant had performed his part. At what time that should be done was immaterial. It might be more desirable and convenient for both parties that it should not be done until the building was finished, so that the machine could be put in use. The defendant's work was a condition precedent to the plaintiff's; and if they mutually agreed that both should be postponed for a time, their relations were not changed, nor the fact altered that the failure of the defendant to furnish his work prevented the plaintiff from performing his contract. Without deciding that, if there had been no fault in either party, the destruction of the building before the plaintiff had fully performed its contract would under it (see Lord v. Wheeler, 1 Gray, 282; Cleary v. give it a right to recover for what it had furnished Sohier, 120 Mass. 210; Wells v. Colnan, 107 id. 514; Applebee v. Percy, L. R., 9 C. P. 657), we decide that as the plaintiff had been prevented from performing its contract by the fault of the defendant, and without the default of the plaintiff, the contract remained unperformed at the time it was dissolved by the burning of the building. The plaintiff can recover for the labor and materials furnished under the contract,

although the completion of the work had been further delayed by the consent of both parties and without the immediate fault of either. Mass. Sup. Jud. Ct., Jan. 10, 1888. Gilbert & Barker Manfg. Co. v. Butler. Opinion by W. Allen, J.

DAMAGES-PROSPECTIVE HOW RECOVERABLE.—A lot-owner injured by a change in the grade of a street or alley, cannot split his cause of action so as to maintain successive suits, but may recover in one action present, past and prospective damages. Damages to land arising from one permanent wrong, committed under color of legal right, cannot be collected in shreds and patches as each new loss arises, but must be recovered in a single action. It is not the damages alone that constitute the cause of action, for a cause of action is composed of both injury and damages. If there is a single injury, and there can be only a single injury, where the thing that causes it is permanent, there can be only one action; for a single injury cannot be dissected into many parts, and thus made to yield a progeny of actions, limited only by the possibility that a time may come when no new inconvenience or loss can be suffered. It is not because a wrongdoer persists in doing wrong that one action must cover all damages, but because the permanency of the work done under color of legal authority makes one indivisible injury. Where the thing done is permanent, the injury is not repeated; and where there is no repetition of an injury there cannot be successive actions. In City v. Voegler, 103 Ind. 314, we exhibited the difference between a thing constituting a nuisance and abatable as such, and a thing wrongfully done under color of authority, which cannot be regarded as a nuisance. We do not care to repeat what was there said, nor to enlarge upon it, further than to say that the grade of a street cannot be abated as a nuisance, and therefore cannot be regarded as governed by the rules which prevail in cases where the wrong constitutes a nuisance. It is true that there are some plausible objections to the rule that prospective damages may be recovered, but as Dr. Johnson long since said, there are objections to all propositions; so the question is not whether there are objec