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the federal court to allow an amendment of a defective allegation, In a subsequent part of the petition, that the plaintiff is a "resident" of a State named.-JOHNSON V. F. C. AUSTIN MANUFG. CO., U. S. C. C., D. (Kan.), First Divison, 76 Fed. Rep. 616.

107. REMOVAL OF CAUSES - Time of Filing Petition.Where a cause is removed after the time prescribed, but plaintiff, being ignorant of the construction of the law, files an answer in the federal court, he may afterwards be permitted to withdraw it and file a motion to remand, where it appears that he had no purpose to speculate on his chances in the State court, and has not unreasonably delayed to assert his right after knowledge of the facts.-COLLINS V. STOTT, U. S. C. C., D. (Conn.), 76 Fed. Rep. 613.

108. REPLEVIN - Burden of Proof.-In replevin, proof of possession in the plaintiff, under a claim of purchase from the true owner, and of the forcible taking of the property without consent, is sufficient to place upon defendant the burden of justifying his taking by a right superior to plaintiff's. - CONELY v. DUDLEY, Mich., 69 N. W. Rep. 151.

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110. SALE Conditional Sale - Mortgages. Where property is sold and delivered under a contract that it is to remain the property of the vendor until fully paid for, which is not acknowledged and recorded, it is not subject, under Code Iowa, § 3093, to the lien of a prior mortgage of all the property then owned, or thereafter to be acquired, by the vendee, except in so far as the interest of the vendee extends.-MANHATTAN TRUST Co. v. SIOUX CITY CABLE RY. Co., U. S. C. C., N. D. (Iowa), 76 Fed. Rep. 659.

111. SALE-Delivery.-The general rule is that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control, and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser.VILLAGE OF BELLEFONTAINE V. VASSAUX, Ohio, 45 N. E. Rep. 321.

112. SALE Measure of Damages.-In an action to recover for the breach of a contract for the purchase of bark, where it appeared that the title to the property had never passed to the purchaser, the measure of plaintiff's damages is the difference between the contract price and the market price at the time and place of delivery.-RIDGLEY V. MOONEY, Ind., 45 N. E. Rep.. 348.

113. SALES - Waiver of Condition Precedent. The seller of a machine agreed to give the buyers a satisfactory "letter or bond" to indemnify them against interference by a certain company which claimed the machine was an infringement on its patents: Held, in an action for the price, that where it appeared that defendants had used the machine several months, it was too late for them to insist on such bond as a condition precedent to their liability, and they should be limited to the right to recoup such damages as they had sustained by reason of plaintiff's failure to give it.YOUNG BROS. MACH. Co. v. YOUNG, Mich., 69 N. W. Rep. 152.

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tract. An unaccepted tender of earnest money will not take the sale out of the statute.-HERSHEY LUMBER Co. v. ST. PAUL SASH, DOOR & LUMBER CO., Minn., 69 N. W. Rep. 215.

115. TAXATION-Judgments in Favor of Non-residents. -The statutes of this State do not provide for, nor authorize, the assessment and taxation of judgments rendered by the courts of this State in favor of, and owned by, citizens of other States.-BOARD OF COM'ES OF KINGMAN COUNTY V. LEONARD, Kan., 46 l'ac. Rep. 960.

116. TAXATION-School-Interest on Railroad Bonds. -Under Const. art. 11, § 3, declaring that any county incurring indebtedness shall provide for the collection of an annual tax to pay the interest thereon; and Rev. St. § 943, providing that no bonds shall be issued until an ordinance or resolution has been passed directing the levy of a tax sufficient to pay the interest, etc., and that such tax shall be after the issue of the bonds irrepealable; and section 948, providing, when bonds are issued in aid of any railroad, they shall not be de livered, or, if delivered, shall not be valid until the road is completed and in operation,-a tax levied to pay the interest on bonds deposited in escrow, to be delivered in aid of a railroad at its completion, but which has not yet been completed, is invalid. — KEYSTONE LUMBER CO. V. TOWN OF BAYFIELD, Wis., 69 N. W. Rep. 162.

117. TAX SALE-Purchase by Guarantor of Mortgage. -One who guaranties the payment of a note and mortgage cannot obtain a lien upon the mortgaged prem ises, as against the holder of the note and mortgage, by purchasing the real estate at tax sale.-HOWARD INVESTMENT Co. v. BENTON LAND Co., Kan., 46 Pac. Rep. 989.

118. TRESPASS ON GOVERNMENT LANDS - Remedy.The United States has the same right as a private owner to institute legal proceedings to protect its property from threatened injuries.-UNITED STATES V. TYGH VALLEY LAND & LIVE-STOCK CO., U. S. C. C., D. (Oreg.), 76 Fed. Rep. 693.

119. TRUST-Resulting Trust-Laches.-Where part of the heirs of a decedent quitclaimed their interest in land of deceased to another heir, on the representation that it was necessary in order to settle the estate with out litigation, and relying on his promise to convey it back when the estate was settled, or pay for the same, an express trust, void because not in writing, was created. MAYFIELD V. FORSYTH, Ill., 45 N. E. Rep.

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120. TRUST AND TRUSTEE-Perversion of Trust.-Where a trust deed provides that the trustees "will invest the same, and keep the same invested, in their discretion," and pay the income to certain beneficiaries named, the purchase by the trustees of lands, opening a coal mine thereon and mining operations, were a perversion of the trust.-BUTLER V. BUTLER, Ill., 45 N. E. Rep. 426.

121 VENDOR'S LIEN-Foreclosure Redemption.-Defendant executed to H a deed which reserved a lien to secure payment of purchase-money notes. H afterwards conveyed the land to plaintiff's grantors, the grantees in all the deeds assuming payment of the purchase money. Defendant, in an action against H alone, foreclosed for two of the six purchase-money notes, and the land was sold to him for less than the amount due thereon. H's interest was then conveyed to plaintiff: Held that, since plaintiff was not a party to the foreclosure, he could not redeem on paying the amount bid by defendant at the foreclosure sale, or the amount of the judgment in such suit, but he must pay the full price.-MASTERSON V. BURNETT, Tex., 87 S. W. Rep. 987.

122. WILL-Bequest of Income-Creditors. - Where a testator bequeathed all the net income of his estate to a trustee in trust for the education and support of a certain person for life, without other limitation: Held, that the bequest so made is an absolute one, and is subject to the claim of creditors. STANLEY, Ohio, 45 N. E. Rep. 318.

THORNTON V.

Central Law Journal.

ST. LOUIS, MO., JANUARY 29, 1897.

The doctrine that legal validity attaches to the acts of public officers, who, having an official semblance, are in fact destitute of all authentic title, is true only so far as there is public necessity for its assertion and no further. If in the ordinary affairs of business, all persons were bound to verify the titles of public officials before they could rely upon their acts, the burden would be intolerable. It is not too much to say that a considerable part of such business could not be transacted under the pressure of such a rule. It is always to be deprecated that the act of a usurper of office should have a legal sanction conferred upon it; but this result obtains by reason of the great public inconvenience that its rejection would introduce. To this extent, and on this ground, the law legalizes the act of the intruder. It is obvious, therefore, that public utility is the sole reason that can be assigned in favor of the prevalence of the doctrine; and it is thus manifest that such doctrine is a judicial creation, and, consequently, it is not to be applied in the regulation of any case that does not plainly fall within the principle in which it has originated. Applying this doctrine, the Supreme Court of New Jersey has recently held, in the case of Mayor, etc. v. Erwin, that a de facto board cannot create a de jure officer, and that where two persons acted as de facto city attorney of a city, whose charter provided for the appointment of a single person as such city attorney, while the acts of each were valid with respect to strangers, neither could maintain a suit for the official salary.

The recent case of Mitchell v. Rochester Ry. Co., 45 N. E. Rep. 354, decided by the Court of Appeals of New York, involves, to some extent, what is known as the Texas doctrine, i. e., the recovery of damages for mere mental suffering or shock. But it goes further, holding that damages are not recoverable for physical injuries resulting from mental shock. It appeared that while plaintiff was standing upon the crosswalk of a city street, awaiting an opportunity to enter one of the defendant's cars which had stopped upon the

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street at that place, another of defendant's cars came down the street at such speed that its driver was unable to stop it before it reached the car which plaintiff was about to take. The horses attached to the approaching car turned to the side where plaintiff was standing, and before they were checked had come to her so that their heads were on either side of her and she was almost run down by them. The fright and excitement made plaintiff unconscious, and she suffered a miscarriage and was ill for a long time. The court held that no recovery can be had for injuries resulting from fright caused by the negligence of another where no immediate personal injury is received, saying, that "while the authorities are not harmonious upon this question, we think the most reliable and better considered cases, as well as public policy, fully justify us in holding that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury. *If it be admitted that no recovery can be had for fright occasioned by the negligence of another, it is somewhat difficult to understand how a defendant would be liable for its consequences. Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of fright, or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury. If not, then there can be no recovery, no matter how grave or serious the consequences. Therefore, the logical result of the respondent's concession would seem to be, not only that no recovery can be had for mere fright, but also that none can be had for injuries which are the direct consequences of it. If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and, if so,

whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy." The New York Law Journal in a review of this case makes the following pertinent criticism: "With the utmost respect for the opinion of our court of last resort, we believe that a sound theoretical distinction may be drawn between permitting recovery for fright and for the physical consequences of fright. The damages sustained through mental shock itself are not estimable or susceptible of compensation pecuniarily. Permitting recovery therefor involves the theoretical vice of the "Texas doctrine'-the granting of damages in a civil action which are purely punitive, without any basis of actual damage to sustain them. On the other hand, physical injury, resulting from mental shock or suffering, may entail expense for medical attendance, incapacity for work and the usual train of evils for which recovery is allowed in cases of direct physical calamity. On the score of practical public policy, however, it is not improbable that the present decision is a wise

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INSURANCE POLICY CONSTRUCTION-TIME COMPUTATION.-In Walker v. John Hancock Mut. Life Ins. Co., 45 N. E. Rep. 89, before the Supreme Judicial Court of Massachusetts, it appeared that a life insurance policy provided that the full amount of the policy should be paid only in the event that insured died "after one year from the date of the policy." The policy took effect on the day of its date. It was held that, in computing the year, the day of the date of the policy should be excluded. The question was whether the insured died "after one year from the date of the policy," and the answer depends on whether the day of the date of the policy is to be included in the year or excluded. In the absence of anything tending to show a contrary intention, the words

"from the date," exclude the day of date, See Seward v. Hayden, 150 Mass. 158, 22 N. E. Rep. 629; Kendall v. Kingsley, 120 Mass. 94; Bemis v. Leonard, 118 Mass. 502; Fuller v. Russell, 6 Gray, 128; Buttrick v. Holden, 8 Cush. 233; Inhabitants of Seekonk v. Inhabitants of Rehoboth, Id. 371; Bigelow v. Wilson, 1 Peck. 485; Isaacs v. Insurance Co., L. R. 5 Exch. 296. The plaintiff contended in substance, that the policy took effect on the day of its date, and that, therefore, the words "from the date" are to be construed inclusively, rather than exclusively, and that such must have been the intention of the parties. But the court said that "the fact that the policy took effect on one date and not on another has of itself no tendency to show that it is to be paid on one date and not on another. The operative words are those which relate to the payment of the insurance, and not to its attachment. Those provide that the full amount is not to be paid till after one year from the date of the policy. The time of payment is fixed by providing not only that it shall be one year from the date of the policy, but also that it shall be one year after that date, excluding, as it seems to us, the date of the policy."

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NEGOTIABLE INSTRUMENT NOTE PAYABLE TO TRUSTEE. The question as to whether a note payable to one as trustee is negotiable is a subject of dispute in the authorities or adjudged cases. In Maryland it seems to have been held that such a note is not commercial paper, and that an indorsement of it by the trustee transfers it, subject to the trust, and that, after such transfer, it is open to the equitable defenses between the original parties. Bank v. Lange, 51 Md. 139. But it is holden in other jurisdictions that a note to and indorsed by one as trustee of a named person does not carry to an innocent purchaser any notice of a restriction upon the payee's right to transfer it. Downer v. Read, 17 Minn. 493 (Gil. 470); Bush v. Peckard, 3 Har. (Del.) 385; citing Rand. Com. Paper, § 158, p. 242; Davis v. Garr, 6 N. Y. 124, 55 Am. Dec. 387, and note; Pierce v. Robie, 63 Am. Dec. 614; Conner v. Clark, 73 Am. Dec. 529. As a general thing, the addition of the words "trustee" and the like will be treated as descriptio per· sonce. Authorities supra; 2 Am. & Eng. Enc. Law, p. 358, notes on pages 358 and

359. The Supreme Court of Chancery Appeals of Tennessee has recently considered this question in the case of Fox v. Citizens' Bank & Trust Co., 37 S. W. Rep. 1102, holding that the addition of the word "trustee" to the name of the payee of a note does not of itself destroy its negotiability. They say that "the decided weight of authority and, it seems to us, of sound reason, supports the position that the addition of the word "trustee" to the name of the payee of a note of itself does not destroy its negotiability. Under the rules of the common law, all conveyances by a trustee, whether to innocent purchaser or not, even if made in contravention of the trust, operated upon the legal title, and vested it in the grantee. The beneficiary had to go into equity, and there he could compel the grantee to respect the trust, as the original trustee should have done. Gale v. Mensing, 20 Mo. 461, 64 Am. Dec. 197, and notes. See, also, Tyler v. Herring, 67 Miss. 169, 6 South. Rep. 840, 19 Am. St. Rep. 263, and extended note, where the subject, with the authorities, is fully presented."

CRIMINAL LAW-INTERSTATE EXTRADITION -WARRANTS PROCURED BY FALSE AFFIDAVIT. -When a prisoner is committed for trial on a criminal charge, under State process which is in itself regular and valid, his imprisonment is not rendered illegal by the fact that he was brought back from another State as a fugitive from justice, by means of extradition warrants procured by false affidavits; and the federal courts will not release him on habeas corpus on that ground alone. This proposition of law was applied by the United States District Court of Oregon in In re Moore, 75 Fed. Rep. 821, and is the necessary result of the doctrine that a fugitive who has been kidnapped and brought back into the State where his offense was committed is not entitled to release on habeas corpus. See American Law Register & Review for December, 1896, p. 782, containing note on the subject, citing the following cases, viz: Ex parte Scott, 9 B. & C. 446, 1829; Ex parte Ker, 18 Fed. Rep. 167, 1883; Ker v. Illinois, 119 U. S. 436, 1886, affirming Ker v. People, 110 Ill. 627, 1884; Mahon v. Justice, 127 U. S. 700, 1888, affirming 34 Fed. Rep. 525, 1888; State v. Ross, 21 Iowa, 467, 1866; Dows' Case, 18 Pa. 37, 1851; State v.

Smith, 1 Bailey (S. Car.), 283, 1829; State v. Brewster, 7 Vt. 118, 1835. Contra: State v. Simmons, 39 Kan. 262, 1888; In re Robinson, 29 Neb. 135, 1890; and that when once he is within the jurisdiction he can be tried for any offense other than the one for which he was surrendered by a sister State. In re Noyes (U. S.), 17 Alb. L. J. 407, 1878; Lascelles v. Georgia, 148 U. S. 537, 36 Cent. L. J. 367, 1893, affirming 90 Ga. 347, 1892; Carr v. State, 104 Ala. 4, 1893; Williams v. Weber, 1 Colo. App. 191, 1891, 34 Cent. L. J. 71; People v. Sennett (Ill.), 20 Alb. L. J. 230, 1879; Hackney v. Welsh, 107 Ind. 253, 1886; Waterman v. State, 116 Ind. 51, 1888; State v. Kealy, 89 Iowa, 94, 1893; Com. v. Wright, 158 Mass. 149, 1893; State v. Patterson, 116 Mo. 505, 1893; State v. Walker, 119 Mo. 467, 1894; In re Petry (Neb.), 66 N. W. Rep. 308, 1896; People v. Cross, 135 N. Y. 536, 36 Cent. L. J. 91, 1892, affirming 64 Hun, 348, 1892; State v. Glover, 112 N. C. 896, 1893; In re Brophy, 2 Ohio N. P. 230, 1895; Com. v. Johnston, 12 Pa. C. C. 263, 1892; Ham v. State, 4 Tex. App. 645, 1878; Harland v. Territory, 3 Wash. Ty. 131, 1887; State v. Stewart, 60 Wis. 587, 1884. Contra: In re Hope, 40 Alb. L. J. 441, 1889; In re Baruch, 41 Fed. Rep. 472, 1890; In re Fitton, 45 Fed. Rep. 471, 1891; State v. Hall, 40 Kan. 338, 1888; In re Cannon, 47 Mich. 481, 1882; though not when surrendered by a foreign country, even for a less offense included in the greater: U. S. v. Watts, 14 Fed. Rep. 130, 1882; Ex parte Hibbs, 26 Fed. Rep. 421, 1886; U. S. v. Rauscher, 119 U. S. 407, 1886; Ex parte Koy, 32 Fed. Rep. 911, 1887; Com. v. Hawes, 13 Bush (Ky.), 697, 1878; State v. Vanderpool, 39 Ohio St. 273, 1883; Blandford v. State, 10 Tex. App. 627, 1881. Contra: U. S. v. Caldwell, 8 Blatchf. (U. S.) 131, 1871; U. S. v. Lawrence, 13 Blatchf. (U. S.) 295, 1876; In re Miller (U. S.), 6 Crim. L. Mag. 511, 1885; In re Reinitz, 39 Fed. Rep. 204, 1889; People v. Harman, 9 Misc. Rep. (N. Y.) 600, 1894; People v. Stout, 81 Hun (N. Y.), 336, 1894. See 28 Am. L. Rev. 568; 32 Am. L. Reg. (N. S.)

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The courts of Nebraska and Ohio have yielded on the former points to the decision of the Supreme Court of the United States, and surrendered their former opinions (In re

Petry [Neb.], 66 N. W. Rep. 308, 1896, overruling In re Robinson, 29 Neb. 135, 1890; In re Brophy, 2 Ohio N. P. 230, 1895, overruling Ex parte McKnight, 48 Ohio St. 588, 34 Cent. L. J. 71, 1891); but the courts of Kansas apparently cling to their old views. See State v. Meade, 56 Kan. 690, 1896.

In accord with the doctrines above enumerated, it has been held that a prisoner cannot set up as a ground for discharge that he has "been enticed into the State by fraudulent representations (In re Brown, 4 N. Y. Crim. Rep. 576, 1886); nor that the extradition proceedings in the other State were irregular. Hall v. Patterson, 45 Fed. Rep. 352, 1891; In re Miles, 52 Vt. 609, 1880. See on this general subject article on "Interstate Extradition," 35 Cent. L. J. 301.

CARRIERS OF PASSENGERS-STEAMBOATS— LIABILITY AS INNKEEPERS.-The Court of Appeals of New York decide, in Adams v. New Jersey Steamboat Co., that where money for traveling expense carried by a passenger on a steamboat, is stolen from his stateroom at night, without negligence on his part, the carrier is liable therefor, without proof of negligence, his liability being analogous to that of an innkeeper. The court says:

The defendant has, therefore, been held liable as an insurer against the loss which one of its passengers sustained under the circumstances stated. The principle upon which innkeepers are charged by the common law as insurers of the money or personal effects of their guests originated in public policy. It was deemed to be a sound and necessary rule that this class of persons should be subjected to a high degree of responsibility in cases where an extraordinary confidence is necessarily reposed in them, and where great temptation to fraud and danger of plunder exists by reason of the peculiar relations of the parties. Story, Bailm. § 464; 2 Kent, Comm. 592; Hulett v. Swift, 33 N. Y. 571. The relations that exist between a steamboat company and its passengers, who have procured staterooms for their comfort during the journey, differ in no essential respect from those that exist between the innkeeper and his guests. The passenger procures and pays for his room for the same reasons that a guest at an inn does. There are the same opportunities for fraud and plunder on the part of the carrier that was originally supposed to furnish a temptation to the landlord to violate his duty to the guest. A steamer carrying passengers upon the water, and furnishing them with rooms and entertainment, is, for all practical purposes, a floating inn, and hence the duties which the proprietors owe to the passengers in their charge ought to be the same. No good reason is apparent for relaxing the rigid rule of the common law which applies as between innkeeper and guest, since the same considerations of public policy apply to both relations. The defendant, as a common carrier, would have been

liable for the personal baggage of the plaintiff, unless the loss was caused by the act of God or the public enemies; and a reasonable sum of money for the payment of his expense, if carried by the passenger in his trunk, would be included in the liability for loss of baggage. Merrill v. Grinnell, 30 N. Y. 594; Merritt v. Grinnell, 30 N. Y. 694; Merrit v. Earle, 29 N. Y. 115; Elliott v. Rossell, 10 Johns. 7; Brown, Carr., § 41; Redf. Carr., § 24; Ang. Carr., § 80. Since all questions of negligence on the part of the plaintiff, as well as those growing out of the claim that some notice was posted in the room regarding the carrier's liabil ity for the money, have been disposed of by the ver dict, it is difficult to give any good reason why the measure of liability should be less for the loss of the money, under the circumstances, than for the loss of what might be strictly called baggage. The question involved in this case was very fully and ably discussed in the case of Crozier v. Steamboat Co., 43 How. Prac. 466, and in Macklin v. Steamboat Co., 7 Abb. Prac. (N. S.) 229. The liability of the carrier in such cases as an insurer seems to have been very clearly demonstrated in the opinion of the court in both actions, upon reason, public policy, and judicial authority. It appears from a copy of the remittitur attached to the brief of plaintiff's counsel that the judgment in the latter case was affirmed in this court, though it seems that the case was not reported.

It was held in Carpenter v. Railroad Co., 124 N. Y. 53, 26 N. E. Rep. 277, that a railroad running sleeping coaches on its road was not liable for the loss of money taken from a passenger while in his berth, during the night, without some proof of negligence on its part. That case does not, we think, control the question now under consideration. Sleeping-car companies are neither innkeepers nor carriers. A berth in a sleeping car is a convenience of modern origin, and the rules of the common law in regard to carriers or innkeepers have not been extended to this new relation. This class of conveyances are attached to the regular trains upon railroads for the purpose of furnishing extra accommodations, not to the public at large, nor to all the passengers, but to that limited number who wish to pay for them. The contract for transportation, and liability for loss of baggage, is with the railroad, the real carrier. All the relations of passenger and carrier are established by the contract implied in the purchase of the regular railroad ticket, and the sleeping car is but an adjunct to it only for such of the passengers as wish to pay an additional charge for the comfort and luxury of a special apartment in a special car. The relations of the carrier to a passenger occupying one of these berths are quite different, with respect to his personal effects, from those which exist at common law between the innkeeper and his guest, or a steamboat company that has taken entire charge of the traveler by assigning to him a stateroom. While the company running sleeping cars is held to a high degree of care in such cases, it is not liable for a loss of this character, without some proof of negligence. The liability as insurers which the common law imposed upon carriers and innkeepers has not been extended to these modern appliances for personal comfort, for reasons that are stated quite fully in the adjudged cases, and that do not apply in the case at bar. Ulrich v. Railroad Co., 108 N. Y. 80, 15 N. E. Rep. 60; Car Co. v. Smith, 73 Ill. 360; Woodruff Co. v. Diehl, 84 Ind. 474; Lewis v. Car Co., 143 Mass. 267, 9 N. E. Rep. 615.

But, aside from authority, it is quite obvious that the passenger has no right to expect, and in fact does

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