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Negotiability.-A

95. NEGOTIABLE INSTRUMENTS note is not rendered non-negotiable because of an in. dorsement thereon of a statement by the maker of the value of the property owned by him.-HUDSON V. EM MONS, Mich., 65 N. W. Rep. 542.

96. OFFICERS-Recovery of Salary Paid in Excess.— Where illegal payments of salary are made to a State officer on account of the act under which the payments were made being unconstitutional, money so paid, though paid under a mistake of law, may be recovered, as, the act of the officer in making the payment being beyond the scope of his duty, the State is not bound thereby.-ELLIS V. BOARD OF STATE AUDITORS, Mich., 65 N. W. Rep. 577.

97. PARENT AND CHILD-Services of Child-Compen. sation. Where the services of a child to a father and mother, who are infirm, are rendered and accepted with the understanding that they are to be paid for by the father, a claim for the services is enforceable against his estate.-SAMMON V. WOOD, Mich., 65 N. W. Rep. 529.

98. PARTITION-Chancery Court.-Under Code 1886, § 3262, giving the chancery court concurrent jurisdiction with the probate court of suits for the sale and partition of property held by tenants in common, the chancery court has no jurisdiction of a suit for sale of land for partition, when defendants are in possession under a deed from a grantor, who is claimed to have perfected title by adverse possession as against the complainants.-DAVIS V. BINGHAM, Ala., 18 South. Rep.

660.

99. PARTNERSHIP-Dissolution by Insolvency.-In the absence of fraud, a solvent partner could, on the dissolution of the partnership by the assignment of his insolvent copartners, mortgage the entire property of the partnership to a creditor of the firm, without rendering himself liable to the other partners for the dif ference between the actual value of the firm property and the amount for which it was sold under the mortgage.-THOMPSON V. NOBLE, Mich., 65 N. W. Rep.

563.

100. PARTNERSHIP-Settlement and Accounting.-On an issue as to whether there was such a settlement between partners as would sustain an action at law by one against the other for a share of firm money collected by the latter, it was error to charge that "where one makes out an itemized statement of his accounts with another, and mails or hands him a copy, and such person retains the same, making no objec tion thereto, then, in law, it constitutes a settlement of the accounts between them."-ROSE V. BRADLEY, Wis., 65 N. W. Rep. 509.

101. PARTNERSHIP CONTRACT.-A contract between V and G, trading as the S M Co., of the first part, and B, of the second part, recited that whereas the first par ties were desirous of securing additional capital, and the second party was willing to contribute the amount desired on the terms that V shall be the general manager at $15 per week, "and then, after the payment of all expenses in conducting the business of the company, the parties of the first part agree to pay to the party of the second part, for the use of the said $2,000, an amount equal to one-third of the net profits arising out of the business:" Held, that such contract did not make B, a partner.-THILLMAN V. BENTON, Md., 33 Atl. Rep. 485.

102. PAYMENT IN SPECIFIC PROPERTY - Money Demand. Where a party agrees to pay for services ren dered in some specific articles of property, and upon demand refuses to deliver the property, his obligation is thereby converted into one for the payment of money.-NEW YORK NEWS PUB. Co. v. NATIONAL STEAMSHIP CO., N. Y., 42 N. E. Rep. 514.

103. PLEDGE OF CORPORATE STOCK-Right to Divi dends. Where stock of an incorporated company is pledged by the owner as collateral security for the payment of a debt, the pledgee is, as a general rule, entitled to collect and receive the dividends thereon, unless this right is reserved by the pledgor at the time

the pledge is made.-GUARANTEE CO. OF NORTH AMERICA V. EAST ROME TOWN Co., Ga., 23 S. E. Rep. 503.

104. PROCESS-Abuse of-Pleading.-In an action for abuse of process in having plaintiff arrested in order to compel him to pay defendant's claim from property exempt from execution, an allegation in the com. plaint that defendant's affidavit for the warrant alleged that the plaintiff was about to "remove" himself from the State sufficiently shows that plaintiff was a resident of the State at the time defendant sued out the warrant for his arrest.-LOCKHART v. Bear, N. Car., 23 S. E. Rep. 484.

105. PROCESS-Service by Publication-Decree in Divorce-Validity.-In divorce proceedings, where constructive notice is attempted, if there is a failure to pursue the essential requirements of the statute, the decree rendered upon such illegal constructive service is vold as to parties who have not appeared or pleaded in the case.-SHRADER V. SHRADER, Fla., 18 South. Rep. 672.

106. RAILROADS-Injuries to Employees-Assumption of Risk. A brakeman cannot recover for injuries to his hand in coupling cars while holding up the draw. bar, through defects in the coupling, where he had been in the employ of the defendant for some time, and had daily adjusted such drawbars, which were in common use on defendant's road.-SECORD V. CHICAGO & M. L. S. R. Co., Mich., 65 N. W. Rep. 550.

107. RAILROADS-Occupation of Private Land-Dam. ages.-A tenant in common, to whom his cotenants have assigned all their interest in demands against a railroad company for the occupation of land for rail. road purposes without purchase or condemnation, may recover of the railroad the entire demand for damages.-TUCKER V. CHICAGO, ST. P. M. & O. RY. Co., Wis., 65 N. W. Rep. 515.

108. RAILROAD COMPANIES -Street Railway-Fran chise. The franchise of a street-railway company to operate its road and use the streets of a city is derived from the legislature, through its charter, and not from the municipal corporation, though the con sent of the latter be required to the exercise of its authority. Such franchise, upon acceptance by the company, becomes a contract, inviolable and irrevocable; and the consent of the municipality, when once given, cannot, in the absence of a statute authorizing its withdrawal, be withdrawn, either as to streets actually occupied or as to streets included within the general plan of the company's routes, which it intends in good faith to complete.-AFRICA V. BOARD OF MAYOR AND ALDERMEN OF CITY OF KNOXVILLE, U. S. C. C. (Tenn.), 70 Fed. Rep. 729.

109. RAILROAD COMPANIES - Trespasser on Train.-A party who, on the invitation of the brakemen of a railway freight train, who have no authority to receive passengers or collect their fares, takes passage in an exclusively freight car, loaded with freight, paying to the brakemen less than the regular fare, is not a pas senger, and the railway company owes him no duty as such.-JANNEY V. GREAT NORTHERN RY. Co., Minn., 65 N. W. Rep. 450.

110. RAILROAD FORECLOSURE

Receivers-Payment of Unsecured Debts.-There is no fixed and inflexible rule in respect to the allowance, out of the earnings of a railroad in the hands of a receiver, of unsecured claims for current debts, but each case is largely gov. erned by its own circumstances. Such allowance does not depend on any fixed rule as to the time when the debts were contracted, nor upon the order appointing receivers. Where there has been a diversion of current income from the payment of current debts to the payment of interest on a mortgage, or the making of permanent improvements, there should be a restora tion, to the extent of such diversion; and independently of diversion, debts may be preferred which are incurred for labor and supplies necessary to keep the road a going concern, or which grow out of indispensa ble business relations.-WOOD V. NEW YORK & N. E. R. Co., U. S. C. C. (Mass.), 70 Fed. Rep. 741.

111. REFERENCE - Appointment of Referees.-Where the appointment of two referees is agreed upon by the parties, instead of one or three, as required by statute, and the parties appear before them, and submit all their matters, an objection cannot be raised, when a confirmation of their report is asked, that the appointment of two referees was improper.-SHEPHERD V. SHEPHERD'S ESTATE, Mich., 65 N. W. Rep. 580.

112. REFERENCE Report of Referee.-Under Code Civ. Proc. § 993, providing that, upon the trial of an issue of fact by a referee, a refusal to make any finding whatever upon a question of fact, where a request to find is made, or a finding without any evidence tending to sustain it, is a ruling upon a ques tion of law, it is not necessary that a party request a finding of fact, in order to have the finding as made, reviewed, as to the sufficiency of evidence to sustain it.-RAABE V. SQUIER, N. Y., 42 N. E. Rep. 516.

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114. RES JUDICATA - Divorce — Alimony-Parent and Child.-A father is not liable for necessary medical attendance furnished his infant child while in the custody of its mother, who had left the father's house without cause.-HYDE V. LEISENRING, Mich., 65 N. W. Rep. 536.

115. SALE-Delivery.-Under an agreement whereby the vendor of certain staves was to deliver the same at a railroad depot, where they were to be inspected and culled by the vendee, there was no delivery under the contract until the staves were culled and accepted at the place designated.-COLE V. BRYANT, Miss., 18 South. Rep. 655.

116. SALE-Implied Warranty of Title.-One who, on recovering judgment in an action in which he has attached a judgment held by the defendant against a third person, agrees with another to bid in, at his risk, the judgment at execution sale for the full amount of his own judgment, and transfer the title so obtained to such other for the amount of his judgment and costs of execution sale, impliedly warrants a valid title to the judgment so bid in.-FLANDROW V. HAMMOND, N. Y., 42 N. E. Rep. 511.

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118. TAXATION Excuse for Non-payment.-Where the landowner applies in good faith to the treasurer to pay his taxes, and receives a statement, and pays accordingly, and afterwards the land is returned and sold for taxes in arrear when such statements was furnished, the sale is invalid.-BRAX & CHOATE LAND CO. V. NEWMAN, Wis., 65 N. W. Rep. 494.

119. TAXATION-Municipal Corporations-Public Improvements.-Where the city charter requires assessments for public improvements to be made in proportion to the benefits secured thereby, an assessment of the cost of street grading in proportion to the frontage of the property on the improvement made, without an actual view of the property, is invalid.-HAYES V. DOUGLAS COUNTY, Wis., 65 N. W. Rep. 482.

120. TAXES-Irregularities in Assessment.-One cannot complain that the assessment of a tax was made in the name of the wrong person, or of any other irregularity which the board of review might have corrected, had application been måde to it at the proper time.HINDS V. TOWNSHIP OF BELVIDERE, Mich., 65 N. W. Rep. 544.

121. TRESPASS-By Whom Maintainable.-A vendee in a land contract, having neither the actual nor con

structive possession of the land, cannot sue for a trespass to the land.-GATES V. COMSTOCK, Mich., 65 N. W. Rep. 544.

122. TROVER BY PURCHASER-Superior Title in Third Person. In trover by a purchaser at execution sale, where it appeared that, as against defendant, plaintiff acquired title and right to possession by the sale, but had not obtained actual possession, which was in defendant, defendant may defeat recovery by showing that the execution debtor had an outstanding title to the property superior to plaintiff's, because of an irregularity in the sale.-MOREY V. HOYT, Conn., 33 Atl. Rep. 496.

123. VENDOR AND PURCHASER-Legal Title.-The con. veyance by a vendor in a contract for the purchase and sale of land of the legal title to a third party, subject to the contract, did not of itself operate as an assignment of the contract, so as to permit a recovery thereon by the grantee.-O'BRIEN V. EVANS, Mich., 65 N. W. Rep. 571.

124. VENDOR AND VENDEE-Agreement to Convey Land.-Defendant's intestate agreed that if plaintiff would pay a certain sum toward the building of a house on a lot belonging to the former, and superintend the erection of the house, she would convey to him a half interest in the house and lot. The intestate thereafter incumbered the property by a deed of trust to another person: Held, that plaintiff, having paid the agreed sum and superintended the erection of the house, could treat the property as subject to a lien in his favor, and by bill in equity have it sold to satisfy his claim for half its original value.-TOWNSEND V. VANDERWERKER, U. S. S. C., 16 S. C. Rep. 258.

125. VENDOR AND VENDEE-Sale of Land-Commissions. Where three joint owners of land agree that two of them may procure a sale thereof, but that neither of them shall charge any commission, and one of them employs attorneys who are his general legal advisors, and they bring about a sale, which the other owners ratify by joining in a conveyance, the other joint owner, authorized to sell, will not be liable for the attorneys' commissions for the sale, though he knew when he joined in the conveyance that they had procured it, where he did not know that in procuring It they were acting otherwise than as the attorneys of the other, or that they intended to make any charge.— BROWN V. SCOTT, Wis., 65 N. W. Rep. 499.

126. VENDOR'S LIEN-Burden of Proof.-The burden is on the grantee to show that a vendor's lien was not reserved as security for the unpaid purchase price.MCLEAN V. SMITH, Ala., 18 South. Rep. 662.

127. WILLS.-Testatrix devised to her two daughters and their heirs a portion of her estate; directing the executors to retain therefrom a fund, from the income of which certain annuities should be paid, the balance of the income to go to the daughters equally, and that the executors should hold the same until the death of the last annuitant, or if either daughter should die before the last annuitant, then her proportionate share of said income should be paid according to her last will, or in case of intestacy, to her heirs: Held, that both daughters and annuitants being dead, the fund, with its accumulations, should be paid to the estates of the daughters, in equal proportions.-JOHNSON V. WEBBER, Conn., 33 Atl. Rep. 506.

128. WITNESS-Transactions With Decedent-Officers of Corporation.-The testimony of officers or directors of a corporation, called as witnesses in its behalf in an action in which it is a party, is not testimony given by the corporation, and consequently is not rendered incompetent by the proviso of the supplement to the act concerning evidence, approved February 25, 1880, which declares that a party to an action, in cases where his adversary sues or is sued in a representative capacity, shall not be permitted to give testimony as to any transaction with or statement by any testator or intestate represented in said action.-NEW JERSEY TRUST & SAFE DEPOSIT Co. v. CAMDEN SAFE DEPOSIT & TRUST Co., N. J., 33 Atl. Rep.475.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 28, 1896.

The Supreme Court of the United States has not for a long time considered so important a question, at least so far as its results are concerned, as is involved in the case of Bradley v. Fallbrook Irrigation District, argument of which, before that court, has recently been had. This was a suit in equity, originally brought in the United States Circuit Court for California, to enjoin the execution of a deed of certain land of the complainant, given by the collector of the defendant irrigation district, under a sale to satisfy a delinquent assessment against the said property, levied under the provisions of the so-called Wright law of California, providing for the organization and existence of irrigation districts, and to obtain a decree adjudging the proceedings under that legislation void and of no effect. The regularity of the proceedings under the act was not questioned, but the ground of the suit was the alleged unconstitutionality of the act itself, it being contended that it conflicted with certain provisions of the constitution of the State of California, and also with that provision of the constitution of the United States which declares that no person shall be deprived of his property without due process of law, and moreover that the act provided for the taking of private property for private use. The defendant demurred on the ground that similar objections had been raised to this legislation in other cases, and that the validity of the Wright Act had been determined by the Supreme Court of California. Irri. Dist. v. Williams, 76 Cal. 360; Irri. Dist. v. DeLappe, 79 Cal. 352; In re Madera Irri. Dist., 92 Cal. 296. The lower court, however, held the act unconstitutional and overruled the demurrer, Judge Ross, who decided the case, saying that while the decisions of the Supreme Court of California in those cases are justly entitled to great respect, he was not at liberty to decline to exercise his own independent judgment in determining whether any State legislation violates a provision of the United States. The solution of these questions, he contended, must be sought, Vol. 42-No. 9.

not in the decisions of a single State tribunal, but in the general principles common to our courts. Olcott v. Supervisors, 16 Wall. 678. Nor does a legislative declaration that a use is a public use necessarily make it so. Cooley, Const. Lim. (5th ed.), p. 666, and cases cited. The character of a use is not to be tested by the number of persons who enjoy it, and no man's property can be taken from him without his consent and given to individuals for their own use, no matter how numerous they may be, nor can it be taken on the mere ground that the public good would be thereby advanced. A public use implies a possession, occupation, and enjoyment of the land by the public at large, and the same objection is valid in this case as in Cummings v. Peters, 56 Cal. 593, "that the use of the water is limited to specific individuals" (i. e., those holding land in the irrigation district), "and the interest of the public is nothing more than that indirect and collateral benefit that it derives for every improvement of a useful character that is made in the State."

A fatal objection to the maintenance of the legislation under the right of eminent domain, he asserted, is that if it is to be regarded as undertaken by the public primarily as a matter of public concern, the assessment upon the landowners must be limited to the benefits imparted, which is not the case with this statute. Wurtzv. Hoagland, 114 U. S. 613; Tide-water Co. v. Coster, 18 N. J. Eq. 527. If the act is to be maintained at all it must be under the power of assessment for local improvements, but there is no reason why this power more than any other can be exercised without "due process of law." And as the whole scheme of irrigation as to that district was experimental, he thought it arbitrary and unjust to take a man's property "without affording him any opportunity to show the insufliciency of that very thing which forms the basis of the proceedings under which the taking is to occur."

The decision of Judge Ross has met with considerable adverse criticism, which seems to be well founded. The American Law Review in a recent issue (29 Amer. Law Review, p. 915) contains a vigorous denunciation of the opinion, though it is fair to say that much of it bears on the question of expediency rather than of law. It is shown, however, that the decision is opposed by many respectable

cases, and that it is directly in the teeth of some adjudications of the United States Supreme Court, so far as federal questions are involved in it. Wurtz v. Hoagland, 114 U. S. 606; Hager v. Reclamation District, 111 U. S. 701; Barbier v. Connelly, 113 U. S. 31. The Harvard Law Review for December also attacks the decision upon the ground that the turning of large tracts from deserts into gardens, which was the object of the act, was not purely a private enterprise, and was a suitable field for legislative consideration, citing by way of illustration Paxton Irrigation Co. v. Farmers Irrigation Co. (Neb.), 64 N. W. Rep. 343. A review of the decisions on the subject will certainly justify the assertion, applicable to cases of this character, that what constitutes a public use is a legislative question, with the decision of which the judiciary will not interfere, unless an abuse of legislative discretion be very obvious. It is quite probable that the United States Supreme Court will reverse the case and upthe great importance of the measure to the people of some of the western States, is very desirable.

hold the statute, a result which, considering

NOTES OF RECENT DECISIONS.

CONSTITUTIONAL LAW-RIGHTS OF MEMBERS OF THE LEGISLATURE TO HOLD OFFICE.-A constitutional question of more than ordinary interest arose in State v. Sutton, 65 N. W. Rep. 262, decided by the Supreme Court of Minnesota. Article 4, § 9, of the constitution of that State, provides as follows: "No senator or representative shall, during the time for which he is elected, hold any office under the authority of the United States or the State of Minnesota, except that of postmaster." It was held that, under this constitutional provision, the disability of a member of the legislature to hold office does not cease until the expiration of the full period

of time for which he was elected.

CRIMINAL LAW BURGLARY CONSTRUCTION OF STATUTES.-The doctrine of ejusdem generis in the construction of statutes was applied by the Supreme Court of Missouri in the case of State v. Schuchmann, 33 S. W. Rep. 35, to the phrase "other building," as

used in Rev. St. 1889, § 3526, making it burglary for any person to break and enter any "shop, store, booth, tent, warehouse or other building," etc. The court held that this means a building of like kind with those enumerated, and does not, therefore, embrace

"chicken house building." The court cited Rex v. Inhabitants, 7 Bam. & C. B. 596; Ex parte Hill, 3 Car. & P. 225; City of St. Louis v. Laughlin, 49 Mo. 559; City of St. Louis v. Bowler, 94 Mo. 633; Chegaray v. Mayor, 13 N. Y. 220; In re Swigert, 119 Ill. 83; Bocher v. Com., 103 Pa. St. 528; Brooks v. Cook, 44 Mich. 617; People v. Richards, 108 N. Y. 137; State v. Staller, 38 Iowa, 324; State v. McCrum, 38 Minn. 154. The case of State v. Hecox, 83 Mo. 532, was in terms repudiated. Gantt, P. J., dissented from the conclusion of the court in a vigorous opinion.

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CONSTITUTIONAL LAW - TAXATION FOREIGN BUILDING AND LOAN ASSOCIATION.-A imposing a tax upon foreign building and late legislature of Kentucky passed an act

loan associations. It required such companies doing business in the State to pay to the State two per cent. of their gross receipts. The act was assailed upon the ground that it was in contravention of the constitution, but the Supreme Court of Kentucky has recently declared the act constitutional. Southern Building & Loan Association v. Norman, 32 S. W. Rep. 952. They hold that such tax is in the nature of a tax on the franchise of doing business in the State, and, therefore, does not violate Const. § 174, providing that all property shall be taxed in proportion to its value, but authorizing the imposition of taxes on franchises. Nor, they say, is such act unconstitutional as impairing the obligation of previous subscription contracts between the corporation and its stockholders, and it is not unconstitutional as an interference with interstate commerce. The burdens

imposed on foreign associations being substantially the same as

stantially the same as those imposed on domestic associations, they also hold the act is not unconstitutianal as denying to the association the equal protection of the laws.

PRINCIPAL AND AGENT AUTHORITY OF AGENT NOTICE.-The Supreme Court of Nebraska decides, in Johnson v. Milwaukee and W. Inv. Co., 64 N. W. Rep. 1100, that

one dealing with the agent of a business corporation in a matter relating to its business operations, and not involving its corporate functions, is not charged with notice of its by-laws. Therefore the apparent authority of such agent cannot be extended or restricted by such by-laws, in the absence of actual notice thereof; that where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped, as against such third persons, from denying the agent's authority. Whether or not an act is within

the scope of an agent's apparent authority is to be determined under the foregoing rule as a question of fact from all the circumstances of the transaction and the business, and that evidence of such apparent authority is not restricted to proof of general custom, or to proof that the agent had previously performed similar acts to the knowledge of the principal. The nature of the business, usage not amounting to a general custom, and the fact, if it exists, that the principal is at a great distance, and the agent apparently entirely in charge of the business, may, in proper cases, be, among other things, elements for consideration.

NEGLIGENCE PRESUMPTION.-In Sheridan v. Foley it is held by the Supreme Court of New Jersey that where one engaged in laying a sewer in a building is injured by a falling brick, in the absence of explanation by the contractor doing the brickwork, it will be presumed that it occurred from want of reasonable care on his part, and he is liable for the injuries received. The court says:

While it is true, as a general principle, that mere proof of the occurrence of an accident raises no presumption of negligence, yet there is a class of cases where this principle does not govern,-cases where the accident is such as, in the ordinary course of things, would not have happened if proper care had been used. In such cases the maxim, "Res ipsa loquitur," is held to apply, and it is presumed, in the absence of explanation by the defendant, that the accident arose from want of reasonable care. A leading case on this subject is Kearney v. Railway Co., L. R. 5 Q. B. 411; Id. (on appeal) L. R. 6 Q. B. 759. The facts were that the plaintiff was passing along a highway under a railway bridge when a brick fell from one of the piers on which the girders of the bridge

rested, and injured him. A train had passed over the bridge shortly before the accident, but the evidence failed to disclose whether it was a train of the defendant company, or of another railway company which also used the bridge. The bridge had been built and in use for three years. The court of queen's bench held that the maxim, "Res ipsa loquitur," applied; that, as the defendants were bound to use due care in keeping the bridge in proper repair, so as not to injure persons passing along the highway, so unusual an occurrence as the falling of a brick was prima facie evidence from which the jury might infer negligence in the defendants; and the principle was unanimously affirmed by the court of exchequer chamber on the argument of the appeal. Another case, quite similar in its facts to the one now before us, where this principle was applied, is that of Byrne v. Boadle, 2 Hurl. & C. 722. In that case the plaintiff was injured by the falling of a barrel from the window of the defendant's shop. There was no evidence to show what caused the barrel to fall, nor was there any direct evidence to connect the defendant or his servants with the occurrence. Pollock, C. B., in discussing the question of the defendant's liability, said: "There are certain cases in which it may be said, 'res ipsa loquitur,' and this seems one of them. · It

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is true that there are many accidents from which no presumption of negligence can arise, but this is not so in all cases. Suppose, in this case, the barrel had rolled out of the warehouse and fallen on the plaintiff. How could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out; and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence, A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff, who is injured by it, must call witnesses from the warehouse to prove negligence, seems to me preposterous. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence." In our own State, in the case of Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. Rep. 190, and 23 Atl. Rep. 167, this maxim was fully commented upon and applied. The facts in the present case bring it within the application of this principle. The bricks were in the custody of the defendant's servants at the time when this one fell, and it was their duty to so handle them as not to endanger other persons, who were engaged in other work upon the same premises. This brick could not have fallen of itself, and the fact that it fell, in the absence of explanation by the defendant, raises a presumption of negligence. If there are any facts inconsistent with negligence it is for the defendant to prove them.

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