lading exempted the railroad company from liability for the loss. The owners of the goods contended that the exemption only began (in the language of the bill of lading) "upon arrival at Evansville, and delivery of the property above described and consigned," and that the cotton not having arrived at Evansville, but having been destroyed by fire before reaching that point, the common-law liability had not ceased. But Hunt, J., who delivered the opinion of the court, held that the fact that the contract was an entire one from Columbus to Boston, taken in connection with the clause in conspicuous type, “The Evansville and Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever," was sufficient to extend the exemption to the whole route and cover the present case.

EXPRESS COMPANY-LIMITATION OF LIABILITY.

SUPREME COURT OF THE UNITED STATES. SOUTHERN EXPRESS COMPANY, plaintiff in error, v. CALDWELL.

A provision in an express company's receipt, that it will not be responsible for loss unless notified of the claim within ninety days after the receipt of the goods by the company, held to be valid.

ACTION by Robert D. Caldwell against the Southern Express Company. The opinion states the case.

STRONG, J. The defendants in the court below, having been sued as common carriers for their failure to deliver at New Orleans a package received by them on the 23d day of April, 1862, at Jackson, Tennessee, pleaded that when the package was received "it was agreed between them and the plaintiff, and made one of the express conditions upon which the package was received, that they should not be held liable for any loss of, or damage to, the package whatever, unless claim should be made therefor within ninety days from its delivery to them." The plea further averred that no claim was made upon the defendants, or upon any of their agents, until the year 1868, more than ninety days after the delivery of the package to them, and not until the present suit was brought. To the plea thus made the plaintiff demurred generally, and the circuit court sustained the demurrer, giving judgment thereon against the defendants. Whether this judgment was correct is the only question presented by the record which we can consider.

Notwithstanding the great rigor with which courts of law have always enforced the obligations assumed by common carriers, and notwithstanding the reluctance with which modifications of that responsibility, imposed upon them by public policy, have been allowed, it is undoubtedly true that special contracts with their employers limiting their liability are recognized as valid, if in the judgment of the courts they are just and reasonable—if they are not in conflict with sound legal policy. The contract of a common carrier ordinarily is an assumption by him of the exact duty which the law affixes to the relation into which he enters when he undertakes to carry. That relation the law regards as substantially one of insurance against all loss or damage except such as results from what is denominated the act of God or of the public enemy. But the severe operation of such a rule in some cases has led to a relaxation of its stringency, when the consignor and the carrier agree to such a re

laxation. All the modern authorities concur in holding that, to a certain extent, the extreme liability exacted by the common law originally may be limited by express contract. The difficulty is in determining to what extent, and here the authorities differ. Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordinarily attends his occupation without a clear and express stipulation to that effect obtained by him from his employer. And even when such a stipulation has been obtained the court must be able to see that it is not unreasonable. Common carriers do not deal with their employers on equal terms. There is, in a very important sense, a necessity for their employment. In many cases they are corporations chartered for the promotion of the public convenience. They have possession of the railroads, canals, and means of transportation on the rivers. They can and they do carry at much cheaper rates than those which private carriers must of necessity demand. They have on all important routes supplanted private carriers. In fact they are without competition, except as between themselves, and that they are thus is in most cases a consequence of advantages obtained from the public. It is, therefore, just that they are not allowed to take advantage of their powers, and of the necessities of the public to exact exemptions from that measure of duty which public policy demands. But that which was public policy a hundred years ago has undergone changes in the progress of material and social civilization. There is less danger than there was of collusion with highwaymen. Intelligence is more rapidly diffused. It is more easy to trace a consignment than it was. It is more difficult to conceal a fraud. And, what is of equal importance, the business of common carriers has been immensely increased and sub-divided. The carrier who receives goods is very often not the one who is expected to deliver them to the ultimate consignees. He is but one link of a chain. Thus his hazard is greatly increased. His employers demand that he shall be held responsible, not merely for his own acts and omissions, and those of his agents, but for those of other carriers whom he necessarily employs for completing the transit of the goods. Hence, as we have said, it is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable and not inconsistent with sound public policy. This subject has been so fully considered of late in this court that it is needless to review the authorities at large. In York Company v. The Central Railroad Company, 3 Wall. 107, it is ruled that the common-law liability of a common carrier may be limited and qualified by special contract with the owner, provided such special contract do not attempt to cover losses by negligence or misconduct. And in a still later case, Railroad Company v. Lockwood, 17 Wall. 357, where the decisions are extensively reviewed, the same doctrine is asserted. The latter case, it is true, involved mainly an inquiry into the reasonableness of an exception stipulated for, but it unequivocally accepted the rule asserted in the first-mentioned case. The question, then, which is presented to us by this record is, whether the stipulation asserted in the defendant's plea is a reasonable one, not inconsistent with sound public policy.

It may be remarked, in the next place, that the stip

ulation is not a conventional limitation of the right of the carrier's employer to sue. He is left at liberty to sue at any time within the period fixed by the statute of limitations. He is only required to make his claim within ninety days, in season to enable the carrier to ascertain what the facts are, and having made his claim, he may delay his suit.

It may also be remarked that the contract is not a stipulation for exemption from responsibility for the defendants' negligence, or for that of their servants. It is freely conceded that had it been such, it would have been against the policy of the law, and inoperative. Such was our opinion in Railroad Company v. Lockwood. A common carrier is always responsible for his negligence, no matter what his stipulations may be. But an agreement that in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence, and of capacity which the strictest rules of the common law ever required. And it is intrinsically just, as applied to the present case. The defendants are an express company. We cannot close our eyes to the nature of their business. They carry small parcels, easily lost or mislaid, and not easily traced. They carry them in great numbers. Express companies are modern conveniences, and notoriously they are very largely employed. They may carry, they often do carry hundreds, even thousands of packages, daily. If one be lost, or alleged to be lost, the difficulty of tracing it is increased by the fact that so many are carried, and it becomes greater the longer the search is delayed. If a bailor may delay giving notice to them of a loss, or making a claim indefinitely, they may not be able to trace the parcels bailed, and to recover them, if accidentally missent, or if they have in fact been properly delivered. With the bailor the bailment is a single transaction, of which he has full knowledge; with the bailee, it is one of a multitude. There is no hardship in requiring the bailor to give notice of the loss if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible, to ascertain the actual facts. For these reasons such limitations have been valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers.

See Riddlesberger v. Hartford Ins. Co., 7 Wall. 386, and the numerous cases therein cited.

Telegraph companies, though not common carriers, are engaged in a business that is in its nature almost, if not quite, as important to the public as is that of carriers. Like common carriers they cannot contract with their employers for exemption from liability for the consequences of their own negligence. But they may be by such contracts, or by their rules and regulations brought to the knowledge of their employers, limit the measure of their responsibility to a reasonable extent. Whether their rules are reasonable or unreasonable must be determined with reference to public policy, precisely as in the case of a carrier. And in a case where one of the conditions of a telegraph company, printed in their blank forms, was that the company would not be liable for damages in any case where the claim was not presented in writing within sixty days after sending the message, it was ruled that the condition was binding on an employer of the company who sent his message on the printed form. Wolf v. The Western Union Telegraph Company, 62 Penn. St. 83. The condition printed in the form was considered a reasonable one, and it was held that the employer must make claim according to the condition, before he could maintain an action. Exactly the same doctrine was asserted in Young v. The Western Union Tel. Co., 34 N. Y. Sup. 390.

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In Lewis v. The Great Western Railway Company, 5 Hurl. & Norm., Exchequer, 867, which was an action against the company as common carriers, the court sustained as reasonable stipulations in a bill of lading, that no claim for deficiency, damage or detention would be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within seven days from the time they should have been delivered." Under the last clause of this condition the onus was imposed upon the shipper of ascertaining whether goods had been delivered at the time they should have been, and in case they had not, of making his claim within seven days thereafter. In the case we have now in hand the agreement allowed ninety days from the delivery of the parcel to the company, within which the claim might be made, and no claim was made until four years thereafter. Possibly such a condition might be regarded as unreasonable, if an insufficient time were allowed for the shipper to learn whether the carrier's contract had been performed. But that cannot be claimed here. The parcel was received at Jackson, Tennessee, for delivery at New Orleans. The transit required only about one day. We think, therefore, the limitation of the defendant's common-law liability to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sufficient defense to the action.

We have been referred to one case which seems to intimate, and perhaps should be regarded as deciding that a stipulation somewhat like that pleaded here is insufficient to protect the carrier. It is the Southern Express Company v. Caperton, 44 Ala. 101. There the

should be no liability for any loss unless the claim therefor should be made in writing, at the office of the company at Stevenson, within thirty days from the date of the receipt, in a statement to which the receipt should be annexed. The receipt was signed by the agent of the company alone. It will be observed that it was a much more onerous requirement of the shipper than that made in the present case, and more than

was necessary to give notice of the loss to the carrier. The court, after remarking that a carrier cannot avoid his responsibility by any mere general notice, nor contract for exemption from liability for his negligence or that of his servants, added that he could not be allowed to make a statute of limitations so short as to be capable of becoming a means of fraud; that it was the duty of the "defendant to deliver the package to the consignee, and that it was more than unreasonable to allow it to appropriate the property of another by a failure to perform a duty, and that too under the protection of a writing signed only by its agent, the assent to which by the other party was only proven by his acceptance of the paper." This case is a very unsatisfactory one. It appears to have regarded the stipulation as a statute of limitations, which it clearly was not, and it leaves us in doubt whether the decision was not rested on the ground that there was no sufficient evidence of a contract. The case cited from 36 Ga. 532, has no relation to the question before us. It has reference to the inquiry, what is sufficient proof of an agreement between the shipper and the carrier, an inquiry that does not arise in the present case, for the demurrer admits an express agreement.

Our conclusion then, founded upon the analogous decisions of courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity and care as they would have been required to exercise if no such agreement had been made. All that the stipulation required was that the shipper, in case the package was lost or damaged, should assert his claim in season to enable the defendants to ascertain the facts; in other words, that he should assert it within ninety days. It follows that the circuit court erred in sustaining the plaintiff's demurrer to the plea.

The second assignment of error we need not consider. If it is one that can properly be made, which is at least doubtful, it is unimportant in view of our judgment upon the first.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in conformity with this opinion.

Reversed and remanded.

COURT OF APPEALS ABSTRACT.

BANKRUPTCY.

Evidence of assignee's title.- Plaintiff, who was the assignee in bankruptcy of K., brought this action to recover money alleged to be due upon a lease of certain premises by K. to the defendant. Plaintiff offered in evidence on the trial a certified copy of the adjudication in bankruptcy, his appointment as assignee, and the assigument by the register to him. This evidence was objected to on the ground that jurisdiction in the United States district court of the proceedings and of the bankrupt's person was not shown. The objection was overruled. Held, no error; that the evidence was sufficient, and it was not necessary for plaintiff to prove the petition on which the proceedings were based.

That under section 14 of the bankrupt act, which provides that by virtue of the adjudication of bankruptcy and the appointment of an assignee, the bank

rupt's property shall vest at once in the assignee, and that a certified copy of the assignment "shall be conclusive evidence of his title," in an action brought by the assignee as such, it is not necessary for him to establish the jurisdiction of the court in the bankruptcy proceedings. Cone, assignee, etc., v. Purcell. Opinion by Andrews, J.

CONDITIONAL SALE.

Possession: waiver.-This action was brought to recover damages for an alleged unlawful taking and conversion of a quantity of household furniture, which was delivered to plaintiff by defendant under a contract by which plaintiff was to purchase and pay for in installments as specified, the property to be his on full payment; the property was to be kept insured for the defendant's benefit, and the latter was authorized to retake the property in case of failure to perform. The property was not kept insured. No evidence was given of waiver, or that defendant knew of the noninsurance. The court charged that plaintiff was bound to keep the property insured, and if he failed to do so defendant could take possession, unless the jury found some evidence that he had waived this right. The defendant's counsel asked the court to charge that plaintiff having failed to insure, defendant was entitled to take possession. The court refused to charge otherwise than as had been charged already. Held, error; that the court was not warranted in submitting the question of waiver to the jury. Palmer v. Kelly. Opinion by Johnson, J.

JUDGMENT OF REVERSAL.

Restitution.-The languge of section 369 of the Code, which requires an appellate court to order restitution of moneys paid or collected on a judgment upon a reversal of the judgment, is imperative, yet, whether in all cases restitution will be ordered as a matter of right, where the judgment of reversal is not final, but directs a new trial, and for reasons which do not preclude the respondent from further maintaining the action, quere.

It seems, that on a motion for restitution the Supreme Court has power where the judgment of reversal grants a new trial, in order to guard the respondent from loss on account of the insolvency of the appellant, to make such order as it shall deem proper for the withholding, disposition and safe-keeping of the moneys collected, pending the litigation. Marvin v. Brewster Iron M. Co. Opinion by Folger, J.

WILL.

1. Accounting by executor: widow's rights: street assessment: insurance.-This is an appeal from a judgment of the general term, affirming a decree of a surrogate which fixed the amount plaintiff was to pay as executor of P. to defendant, a legatee. Defendant presented to the surrogate a petition praying that the executor be ordered to appear and render an account, and that such further or other proceedings be had as might be necessary to enforce the payment of her claim. The surrogate upon this petition ordered the executor to " render a settlement," and a citation was issued thereon requiring him to appear and "render an account." Held, that the petition was sufficient, under the statute (2 R. S. 116, § 18), to give the surrogate jurisdiction over the subject-matter, and having obtained jurisdiction of the person of the executor by the order and citation, he had power to proceed and examine into the account and to settle and adjust the

same, so far as to determine how much should be paid to the petitioner.

Plaintiff's testator, P., devised to his wife a life estate in his real property and in his personal property, save a certain legacy coming to him from the estate of a deceased relative. The widow remained in P.'s house after his death, enjoyed the use of the personal property and received $188 from the moneys of the estate. Held, that she was not entitled to forty days' sustenance, or to $150 for household furniture.

The executor's accounts contained an item for a municipal assessment for flagging the sidewalk in front of the dwelling-house, and also items for insurance of the buildings and for putting lightning-rods thereon. Held, that the expense for these items should be apportioned between the tenant for life and the remainder-man.

That it is proper under a devise of a life estate, remainder to an executor in trust, for the executor to join with the tenant for life in insuring the buildings on the devised premises, and in protecting them with lightning-rods, and he is entitled to be allowed the proportion properly chargeable to the trust estate.

A surrogate can inquire into and scrutinize an executor's account under a general objection to any and all the items, and is not bound by the executor's oath to the account or the vouchers produced by him. Peck, ex'r, etc., v. Sherwood. Opinion by Folger, J.

2. Proof of.-This case came up on an appeal from a judgment of the general term, affirming a decree of the surrogate of the county of New York admitting to probate the will of B. It was proved that the will was subscribed by the testator in the presence of both the attesting witnesses, that an attestation clause in due form, stating all the requisites to make a full and formal compliance with the requirements of the statute, was then and there written by the attorney who drew the will. Only one of the subscribing witnesses was called, the other residing out of the State, his signature was proved. The witness produced testified substantially, that the attorney read the will to the testator, who declared it to be his will; that the testator either asked the witnesses to sign, or, upon the attorney asking him if they should do so, either by nodding his head or in words expressed such a desire, and that the witnesses signed in the presence of the testator. Held, that this evidence was sufficient to justify the finding that the statute had been complied with. Belding v. Liechardt. Opinion by Grover, J.

JUDGMENT IN AN ACTION FOR THE RECOVERY OF PERSONAL PROPERTY.

The Supreme Court of the United States, in Boley et al. v. Griswold, has decided a question relative to the form of the judgment in an action for the recovery of possession of personal property. The case arose under the Practice Act of Montana Territory, and serves to illustrate section 277 of the New York Code of Procedure. The Montana law provides, that the judgment in such an action may be for the possession of the property, or the value thereof, in case a delivery cannot be had, and damages for the detention. The judgment, as entered, recites a verdict in favor of the plaintiff for $3,800 damages, and the recovery was in accordance therewith. The claim now is, that a judgment for the value is erroneous, except as an alternative upon the non-delivery of the property. Waite, Ch. J., who delivered the opinion of the court, said: "It is true that

there can be no judgment for the value if there can be a delivery of the property, but it is not true that a judgment is necessarily erroneous if the alternative is not expressed upon its face. The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to such a finding.

"In one part of this record, it appears that the verdict was for the return of the property; or, in case that could not be made, for $3,000, the value, and $800 damages for the detention. The judgment was for the money, and the presumption is, in the absence of any thing in the record to the contrary, that before it was rendered the court had become judicially satisfied that the property could not be returned. In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must appear affirmatively before there can be a reversal. The judgment of the Supreme Court is affirmed."

LIABILITY OF SURETY ON BOND.

In United States v. Boecker et al., the Supreme Court of the United States adjudicated an important question relative to the liability of sureties on a distiller's bond. The bond was conditioned that whereas Boecker" now, intends *** to be a distiller * * * at the corner of Hudson street and East avenue ✶✶✶ town of Canton, county of Baltimore," Maryland; "now, if the said Boecker shall in all respects faithfully comply with all the provisions of law," etc., etc. It appeared that Boecker became largely indebted to the United States for taxes in the distillery business carried on by him at the corner of Hudson and Third streets in the town of Canton; but that no distillery was carried on "at the corner of Hudson street and East avenue," as mentioned in the bond. The sureties were thereupon discharged. On appeal to this court it was argued that the locality where the distillery was intended to be placed, described in the bond, was immaterial, and that the sureties were liable for the defaults of their principal occurring where the distillery was in fact situated. But Swayne, J., who delivered the opinion of the court, said: "No distillery having been carried on at the place named, the contract never took effect. The event to which it referred did not occur. There could consequently be no liability within the letter or meaning of the contract. It was as if the agreement had been for the good conduct of a clerk while in the service of B., and the clerk never entered his service, but entered into the service of another. Distilling begun and carried on elsewhere was no more within the obligation of the sureties than if it had been begun and carried on there or elsewhere by a person other than Boecker. No other place than that named is, under the circumstances of this case, within the letter, spirit, or meaning of the bond. The specification has no elasticity. It cannot be made to extend to the locality where the distillery here in question was placed. In Miller v. Stewart, 9 Wheat. 703, this court said: 'Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyoud the terms of his contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. *It is not sufficient that he may

* *

sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it and a variation is made, it is fatal.'

"To the same effect is Ludlow v. Simond, 2 Caines' Cases, 1. There is no more learned and elaborate case upon the subject. The leading English case is Lord Arlington v. Merrick, 3 Saund. 400. These authorities are conclusive of the case before us. It is needless to analyze and discuss them. Others, without number, maintaining the same principle, might be referred to. Many of those most apposite to this case are cited in the argument of the counsel for the defendants in

error.

The rules of the common law upon this subject are as old as the Year Books. These rules were doubtless borrowed from the earlier Roman jurisprudence, known as the civil law. They obtain throughout the States of our Union. The adjudications everywhere are in substantial harmony."

Bradley, J., delivered a dissenting opinion, holding that the precise locality was not of the substance of the bond. Clifford, Davis and Strong, JJ., also dissented.

A somewhat similar question was considered in this court in Clinkenbeard v. United States, which was an action against principal and sureties on a distiller's bond to recover the amount of a deficiency tax assessed upon a distillery in the month of October, 1868. The defendants offered to prove that for four days of the period for which the deficiency tax was assessed the distillery could not be operated because no store-keeper had been assigned by the government; and that for four other days the distillery could not be operated by reason of an unavoidable accident. This evidence was overruled. The question in this court is whether the defense thus offered was available. Bradley, J., who delivered the opinion of the court, said, that "to charge him (the distiller) with the capacity-tax during these eight days was unjust and oppressive." * * * "So far as appeared the facts set up in defense rendered the assessment clearly illegal." The learned judge further held, that the legality of the assessment could be properly attacked in this collateral proceeding. In this case, also, four judges, viz.: Clifford, Swayne, Davis and Strong, dissented.

RECENT AMERICAN DECISIONS.

ACTION.

Legacy.-One to whom a bequest of $200 had been made in his father's will-the fund to be placed in the hands of the executor for the use and benefit of the legatee as he may need it, he not to receive any more than was necessary for his benefit at the time-died before any part of his legacy had been paid him, and his administrator brought this action at law to recover the amount and interest of the estate of the executor, who had also given bond as testamentary trustee, and had commingled this money with his own personalty, instead of keeping it separately invested as a trust fund. Held, that the plaintiff was entitled to recover, and need not resort to proceedings in equity. Prescott v. Morse, 62 Me. 447.

CONSTITUTIONAL LAW.

Powers delegated to towns.-The statutes, assuming to delegate to towns the power of determining whether or not certain manufacturing corporations therein shall be exempted from taxation, are unconstitutional and

void. Farnsworth Company v. Inhabitants of Lisbon, 62 Me. 451.

COURT-ROOM.

Rental: municipal corporation.-The legislature, by Private Laws of 1869, ch. 230, established a court in Auburn, to be held "at such place as the city shall provide." Upon the failure of the city to provide any place, the judge hired a room in which to hold the court. Held, that there was no implied promise, upon the part of the city, resulting by implication of law from these facts, to pay the rent of such room. Nor can a ratification of the hiring, or a promise to pay the rent, be inferred from a knowledge on the part of the citizens and officials of the city, of the court being held in the room so hired, nor from the fact that the bills therefor were presented to and referred in concurrence by both branches of the city council, and no further action taken thereon. French v. City of Auburn, 62 Me. 452.

EVIDENCE.

Ancient records.-The plaintiff offered in evidence ancient books, purporting to be the records of the original proprietors of Pejepscot (now Topsham) for more than a century, now produced from the archives of the Maine Historical Society, and they were received against the defendants' objection. Held, that they proved themselves, and were admissible without extraneous evidence of their authenticity, or of the organization and meetings of the proprietors, inasmuch as no suspicion was cast upon them, but their contents bore internal evidence of verity, the organization had long ago ceased to exist, and there is no person to represent it, or interested in it, and no authorized custodian of its records. Goodwin v. Jack, 62 Me. 414.

EXECUTION.

Levy, when void.-Upon a libel for divorce, a specific sum in lieu of alimony was decreed, to be paid in twenty days from the final adjournment of court; if not so paid, execution was then to issue "for said sum." The execution that issued required the officer to collect the amount, with interest from the day of final adjournment, and not from the expiration of the twenty days. Interest was so computed, and made part of the amount satisfied by a levy upon real estate. Held, that the levy was wholly void. Prescott v. Prescott, 62 Me. 428.

HIGHWAY.

1. Traveler: negligence.— A ditch was dug along by the side of a house, and extended out into the street as located. There was no way to go from the house to the privy used therewith, without either crossing the ditch or passing around that end of it which was in the street. The plaintiff, a minor, living in the house as a member of her father's family, having occasion to visit the water-closet in the evening, attempted, while upon her return to the house, and having no other purpose than to reach it in the safest way, to go around the end of the ditch. After crossing the line of the street, but before reaching the wrought portion of it, or the end of the ditch (the night being very dark), she turned, stumbled, fell into the ditch, and was injured. Held, that she was not in the use of the street as a traveler within the meaning of the statute providing for the making and repair of highways. Leslie v. Lewiston, 62 Me. 468.

2. The ditch was dug by the father's landlord for the purpose of drainage, and was suffered to remain open for several weeks before the accident. Held, that there was such negligence in the father in permitting the