utterly opposed to the settled law of all other | as a requisite to support the estate; but jurists jurisdictions. Instead of being manifest, it agree that it is not to be favored. Chancellor must be conceded to be very doubtful whether Kent says the extent of the law of curtesy may the court intended to go, or did go, beyond dis- be justly complained of. The obvious reason pensing with the necessity of seisin in fact, and is that it gives to the husband what would substituting a right to possession, or seisin in otherwise belong to the heir of the wife. It law. If not so in doubt how does it happen has no moral foundation to rest upon, and that on the one hand such able and accurate hence the spirit and tendency of the times is text-writers as Washburn, Bishop, Sharswood toward its abolition rather than its extension. and Williams, as well as others, restrict the de- The Legislature of this State twelve years ago cision to the above point; while on the other abolished it as to all subsequent marriages, hand Chancellor Kent and some others seem to and several other States have done the same give the decision larger scope. thing. Referring to our own text-writers, we find it stated in 1 Swift's Digest, top page 87, that "in this State it has been decided that a legal right to lands without actual seisin or possession is sufficient to entitle the husband to curtesy.' This fails to clear up the doubt, although it is consistent with the position that only actual and not constructive seisin is dispensed with. In Dutton's Digest, p. 52, it is said: "In this State the husband may be a tenant by the curtesy of land to which the wife had title, but of which she was not actually seised during coverture. Kline v. Beebe, 6 Conn. 499. The same principle was previously adopted in Bush v. Bradley, 4 Day, 298, although a seisin in law of the wife during coverture is requisite." It seems to us that this last sentence clearly shows that Judge Dutton construed these decisions precisely as we do. A mind so acute and well stored with legal definitions as was his must have understood that seisin in law in such connection is always used in contra-distinction to a seisin in fact or in deed, and imports a right to the possession. In Hawkins v. Shewen, 1 Sim. & Stu. 260, it is said that "seisin in deed is actual possession of the freehold, and seisin in law is a legal right to such possession." Blackstone, in the citation previously made, makes the same distinction and gives the same definition to the term "seisin in law," and adds that "therefore a man shall not be tenant by the curtesy of a remainder or reversion.' In 2 Bouvier's Law Dictionary, p. 509, it is said that "seisin in law is a right of immediate possession," and this we think is the precise idea that Judge Dutton intended by the same expression. Our conclusion is that there is nothing in the decisions referred to, properly construed, to compel us to occupy the isolated position of holding that there can be curtesy in a remainder expectant upon a prior undetermined freehold. It may be suggested that, if we discard actual seisin and still require seisin in law, we shall still be opposed to the great weight of judicial authority. This may be so; nevertheless, in holding a constructive seisin or seisin in law sufficient we are not without strong support. Merritt v. Horne, 5 Ohio St. 307; Watkins v. Thornton, 11 Ohio St. 367; Wass v. Bucknam, 38 Me. 356; Day v. Cochran, 24 Miss. 261; Stephens v. Horne, 25 Mo. 349; Stoolfoos v. Jenkins, 8 Serg. & R. 167. If curtesy was to be favored it would seem natural and reasonable perhaps, having abolished the common-law requirement of actual seisin, to do away with constructive seisin also We advise the Superior Court to render judgment for the plaintiffs. In this opinion Andrews, Ch. J., and Beardsley, J., concurred. Pardee, J., dissenting: The question is, Can there be a tenancy by the curtesy in a reversion expectant upon a prior estate for life, that estate having extended beyond the life of the wife owning the reversion? The answer in the negative, given by a majority of the court, is undoubtedly the law in most, if not in all, jurisdictions other than our own. In Bush v. Bradley, 4 Day, 298, Josiah Woodhouse died, seised of the premises in question, in 1766. His son Robert inherited and occupied, and died seised in 1775. His only child, Mary, born in 1774, inherited; she inter married with James Goldear in 1794, before she arrived at the age of twenty-one years. She continued a feme covert until her death in November, 1807, leaving her husband James Goldear living, having had children by him. These died before their mother. If they had survived her they could have inherited the premises. James Goldear had never been in actual possession of the premises. His wife had not been in possession since her intermarriage with him, for this reason, that the defendant, before 1788, more than twenty years prior to the commencement of the action, having purchased the premises for a valuable consideration, went into possession of the same, and from that time to the time of trial had held possession adversely to all others. The plaintiffs were the heirs at law of a sister of Josiah Woodhouse, the original owner. The defendant objected to a recovery on the ground that Goldear, being now living, was tenant by the curtesy of the premises, although neither he nor his wife had ever been in actual possession during coverture; and the court directed the jury to find a verdict for the defendant on that ground solely. The plaintiff's moved for a new trial. The court said substantially as follows: "As to the point respecting the curtesy, there is no question but what there must have been by the English law an actual seisin of the wife of the premises during the coverture, to entitle the husband to the curtesy. It is said that unnecessary departures from the common law of England are not to be favored; that by such means everything is rendered uncertain. Iam fully of opinion that few maxims of our law are more important than that of stare decisis; but it must be acknowledged by all that our system of law respecting real property is, in many instances, very different from the Eng lish system. We have in some instances, when | real property, there is of course a right of poswe have adopted the principles of the English session, and the Statute which takes away the law, extended them to cases which, by the ad- right of possession, takes away the right of judications of the English courts, have not property; and this is the reason that this Statbeen supposed to fall within the governing ute has received a construction altogether difprinciple; in others we have adopted entirely ferent from the construction given to the Engdifferent principles; and in all such cases where lish Statute; and this is perfectly analogous to this has been done, which are pari ratione with every other case of real property in this State. those already settled, if we reject our own and Wherever you find a right of property you find adopt theirs, we shall mar the symmetry of a right of possession, and all the consequences our law; and the preservation of symmetry in of ownership attending it that you find in Engour system I also view as a most important land where there is an actual seisin; and, on consideration. In England it is not sufficient the other hand, where there is no right of posthat a man is proprietor of real property, and session there is no ownership. So in this case, has a perfect right to it when he dies, to cause Mary Goldear had title to the land, and though it to descend to his heirs-at-law. No, he must not actually seised, her husband acquired the be actually seised thereof. The maxim is same rights on her death as if she had been seisina facit stipitem, and the person that is seised. Since seisin is not necessary in case of heir to that property will be heir to him that descent to the heirs, neither is necessary to pass was last seised. If A should die, who owns lands by a devise, why should it be thought Whiteacre, which descended to him from his necessary to the husband's title by the curtesy? father, but has not been actually seised, leaving a brother of the half blood, B, and a sister, C, of the whole blood, this estate cannot descend to C, his sister and heir; for B, being of the half blood, cannot by their law inherit to his brother; but yet the same will descend to B, who is heir to his father, who was the last seised. Had A been seised, the estate would have descended to C. The maxim of seisina, facit stipitem is an unyielding maxim of their law, and what governs the descent of property. But this is not our law. It is settled that it shall descend to the heirs of him who owns the property, whether he was seised or not. Seisin directs the descent with them; ownership with us. "By the English law a devise will not operate upon real property of which the devisor is disseised. Seisin is an indispensable requisite to give effect to the devise. A devise, by our law, is good although a man is disseised. Seisin is necessary in their law and nothing but ownership in our law. We have always considered ownership of real property sufficient to maintain an action of trespass against every intruder; but by the English law actual possession by entry is necessary. We have always considered ownership as giving a right to possession of real property, as much so as ownership of personal property. Ownership in the one case draws after it the possession as much as in the other case; and whenever a right of possession is lost, all title and ownership are lost. So the Statute of Limitations respecting lands has always been construed. The Statute, in the words of it, does not take from the original proprietor his title; it only tolls his right of entry; and yet this Statute has been always considered as barring all claims of title, whilst the same words in the English Statute have been considered, not as having any effect on the title, but only on the right of entry, and the lands may be recovered by a form of proceeding proper for such a case. The English law distinguishes betwixt a right of possession and a right of property; but our law does not. Wherever there is a right to 7 L. R. A. "The decision of the court in this case is no departure from fixed rules and precedents. The departure from the English rule respecting the efficacy of seisin has long since been departed from; and to adhere to it in this case would mar the symmetry of our law." In Kline v. Beebe, 6 Conn. 494, it is said in the marginal note that "in this State the husband may be tenant by the curtesy of land to which the wife had title, but of which she was not actually seised, during the coverture,' ing Bush v. Bradley, 4 Day, 298. cit In 4 Kent's Commentaries, 5th ed. 30, it is said as follows: "The rule has been carried still further in this country; and in one State, where the title by curtesy is in other respects as in England, it is decided that it was sufficient for the claim of curtesy that the wife had title to the land, though she was not actually seised nor deemed to be so. The law of curtesy in Connecticut is made to symmetrize with other parts of their system, and in that State ownership without seisin is sufficient to govern the descent or devise of real estate,"-citing Bush v. Bradley, 4 Day, 298, and Kline v. Beebe, 6 Coun. 494. A vested remainder expectant upon a life estate is a fixed present right of property, alienable, devisable, descendible; indeed it has all of the incidents of any other kind of present interest in real property. Ownership of, that is, the present right of property in, the reversion expectant upon a life estate, stands upon a plane with ownership of the fee. And upon the cited precedents in this court, ownership is perfect in utter disregard of the question as to possession. Ownership has displaced and stands for the actual seisin, the investiture by turf and twig of the common law. It matters not that the rightful owner in fee is kept from possession by a tort feasor, or by rightful possession by the life tenant. In each case alike there is a valuable vested present right of property, susceptible of ownership in the highest sense. To such ownership, in both cases, tenancy by the curtesy is legally incident equally. In this opinion Carpenter, J., concurred. OHIO SUPREME COURT. OHIO SOUTHERN R. CO. v. George A. MOREY. (47 Ohio St.....) *1. Sec. 5027, Rev. Stat., prescribing the counties within which a railroad company may be sued, relates solely to the jurisdiction of the person, and it is not necessary that the petition should state that its road passes into or through the county where the action is brought; a railroad company, like a natural person, submits itself to the jurisdiction of the court by appearing for any other purpose than to object to such jurisdiction. 2. Where a written proposition is made by one party, which, after a parol modification of some of its terms has been made, is accepted by the other party in parol, such written proposi tion is the best evidence of so much of the resulting contract as it contains. 3. One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employés of an independent contractor to whom he has let the work, without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employé alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employé of an independent contractor. (March 25, 1890.) RROR the Circuit Fayette curred, for the purpose of laying tiling for a drain from the depot above mentioned; that the ditch was dug entirely across that part of said street which was, or could be, used for travel; that it was from four to six or seven feet deep, about two and one half feet wide at the top, and about two feet wide at its bottom, and the earth from it thrown out two or three feet high on both sides; that the night was very dark, and the ditch left wholly unguarded; that the defendant in error, having no knowledge that the ditch had been dug, and without fault on his part, fell into it, together with his horse, and thereby received the injuries of which he complained, and that the ditch was, in fact, dug by a man employed by the firm of R. P. Willis & Son, who did the plumbing work for the depot. The main contention between the parties at the trial was whether this plumbing was done under such an independent contract as would exonerate the Railroad Company from liability for the negligence of the contractor and his immediate servants. The defendant in error recovered a judgment in the court of common pleas, which the circuit affirmed, and this proceeding was brought to reverse both judgments. Any further statement of the facts requisite to a decision of the case will be found in the opinion. Messrs. W. O. Henderson, C. W. Fairbanks and Pavey & Pavey for plaintiff in error. Messrs. Van Deman & Chaffin for defendant in error. Bradbury, J., delivered the opinion of the court: 1. E county to review a judgment affirming & Rev. Sintiff in error contends that § 5027, judgment of the Court of Common Pleas in which a railroad company may be sued, renfavor of plaintiff in an action to recover dam-ders the action local, and to give the court juages for injuries to plaintiff and his horse by reason of their falling into an unguarded ditch for which defendant was alleged to be responsible. Affirmed. Statement by Bradbury, J.: The defendant in error, George A. Morey, brought in the Court of Common Pleas of Fayette County an action against the Southern Ohio Railroad Company, plaintiff in error, to recover damages claimed to have been sustained by him on account of himself and horse falling into a ditch that the plaintiff in error had caused to be dug, and left unguarded across Water Street, in the Town of Washing ton, in said county, on the night of November 9, 1885. The record discloses that the plaintiff in error, at the time of the accident, owned and operated a railroad which ran through said Town of Washington, and occupied part of said Water Street, with its tracks, and owned and occupied a depot situate on lots owned by it that were adjacent to said street. That the ditch causing the injury had been dug during the day, the night of which the accident oc *Head notes by the COURT. risdiction of it, the petition must show that the railroad runs through or into the county where the action is brought, and that if it does not so appear, the defect can be reached by a general demurrer. In this view we do not concur. "The division of personal actions into local and transitory is not known in Ohio." Genin v. Grier, 10 Ŏhio, 209. This doctrine is as applicable to our present method of procedure as it was to that in use in 1840, when it was announced by this court. Section 5027 provides that "an action against a railroad company may be brought in any county through or into which such road .. passes.' This section, like the other sections of chapter 5 of the Code of Civil Procedure, that merely prescribe the county in which a defendant may be sued, relate only to the jurisdiction over the person. Neither a railroad company nor other corporation, nor even a natural person, is bound to appear in an action in obedience to a summons served out of the prescribed county. It is a privilege, however, that is personal, and may be waived; and this court has uniformly held that a defendant by appearing in court, and, without objecting to its jurisdiction over his person, invoking any action in the cause, waives this privilege, and submits his person to the jurisdiction of the court. Harrington v. Heath, 15 Ohio, 483, 487, 488; Gilliland v. Sellers, 2 Ohio St. 223; Wood v. O' Ferrall, 19 Ohio St. 427; Thomas v. Pennrich, 28 Ohio St. 55; Fitzgerald v. Cross, 30 Ohio St. 450; O'Neal v. Blessing, 34 Ohio St. 33; Handy v. Ins. Co. 37 Ohio St. 366; Elliott v. Lawhead, 43 Ohio St. 171, 1 West. Rep. 162. while the part resting in parol must of necessity be proved by parol, nevertheless the writing itself is the best evidence of the part thereof which it contains. This proposition rests not only upon principle, but is supported by numerous authorities, only a limited number of which need to be cited. 2 Parsons, Cont. 553; Domestic Sewing Mach. Co. v. Anderson, 23 Minn. 57; Thurston v. Ludwig, 6 Ohio St. 1-8. 4. The record discloses a number of other questions that counsel for the Railroad Company propounded to its witnesses, but except in two instances the testimony the witness was expected to give does not appear at all, and in the other two only inferentially as follows: "The defendant, proposing to prove that R. P. Willis & Son had never done any work for defendant as its agent or servant, asked the fol The plaintiff in error not only appeared without objecting to the jurisdiction of the court of common pleas over its person, but moved to strike from the petition certain averments deemed by it to be objectionable, and on that motion being overruled, filed a general demurrer to the petition, which being in turn overruled, it filed an answer, and went to trial upon the merits. It thus, in the most ample manner, submitted its person to the jurisdic-lowing question of John S. Willis: Did you tion of the court. 2. After the plaintiff below had introduced his evidence, counsel for the Railroad Company moved the court to arrest it from the jury, and to direct a verdict in its favor on the ground that it did not tend to prove the facts in issue. This motion was overruled and this ruling is now before us for review. The only controverted averment of the petition which it is contended the evidence did not tend to prove, is that which states that the plaintiff in error, defendant below, caused the ditch to be dug. That the plaintiff in error owned the lots upon which the depot stood, and used and occupied the depot was averred in the petition and not denied by the answer; the evidence of the plaintiff below showed that the ditch was dug for the purpose of draining the depot, and that the agent of the Railroad Company was present and knew that it was being done. This we think not only tended to prove that the Railroad Company caused the ditch to be dug, but was sufficient to establish that fact prima facie at least. One observing a ditch freshly dug and extending from a valuable building to a lower level, on being informed that it was to be used for the purpose of draining the building, would be fully justified in inferring from those facts that the owner of the building caused the ditch to be dug. ever do any work for the Ohio Southern Railroad Company as the agent or servant of said Company ?" This question was objected to by counsel for plaintiff below, and ruled out by the court, to which exception was taken. Conceding that the introduction to the question sufficiently states what counsel expected to prove by the witness, yet there was no error in the ruling of the court for the question was leading in form; but had it been free from fault in this respect yet the evidence to be given in response to it as indicated by the introduction was not competent. It was not the province of the witness to state whether or not the firm of R. P. Willis & Son was the agent or servant of the Railroad Company in what they did; that depended upon the contract under which they operated. It was competent for the witness to state the terms of the contract in so far as they could be established by parol, but the relation which they bore to their employers was a question for the jury under proper instructions from the court. 5. The only serious question in the case is presented by charges given or refused by the court. The court among other things charged the jury as follows: "If the necessary or probable effect of the performance of the work would be to injure third persons, or create a nuisance, then the defendant is not relieved from liability, because the work was done by a contractor over which it had no control in the mode and manner of doing it." 3. The plaintiff in error in attempting to show that the ditch was dug by an independent contractor, for whose negligence it was not responsible, offered evidence tending to prove that it was dug by R. P. Willis & Son, gas fitters and plumbers of Springfield, O., in To this the plaintiff in error excepted. putting the water-closets, urinals, etc., in the The question is here presented whether the depot. It was shown that this firm had sub- owner of real estate who causes work to be mitted to the Railroad Company a written prop-done in relation to it the probable consequences osition, containing the terms on which they of the performance of which will be to endanwould perform the work, and that, with two ger others or to create a nuisance, can shift parol modifications, it was accepted in parol by from himself all responsibility for these probathe Railroad Company, and the work awarded ble consequences by letting the work to an into them. Counsel for the Railroad Company dependent contractor over whom he reserves then attempted to prove by parol this entire no control? Will a sound public policy percontract. To this objection was made by mit this to be done? If so, then we may excounsel for plaintiff below on the ground that pect the prudent proprietor, when he has work the written proposition in so far as it contained to be done which involves these probable conthe terms of the contract was the best evidence sequences, to provide for its performance by a thereof; this view was adopted by the court carefully guarded contract by which he retains and the parol evidence excluded. In this there no control over it whatever. was no error. A contract may rest partly in writing and partly in parol, and in that case The case of Clark v. Fry, 8 Ohio St. 358, is relied upon by counsel for plaintiff in error. In that case the owner of a lot in the City of Toledo, being about to construct a building on it, let the contract for its construction to a builder and yielded to him during the entire period covered by the construction the exclusive possession and control of the premises. The plan of the building and the contract for its construction contemplated an excavation for an area extending six feet into the street, which was about eighty feet wide, and the record leaves it in doubt whether the excavation extended out to the traveled sidewalk or not, and it nowhere appears that it caused any material interruption of or inconvenience to transit along the street by the public. The excavation was made by a sub-contractor, and Fry without fault fell into it, receiving injuries therefrom, for which he brought suit. Clark set up the contract in defense of the action, under that state of facts. The trial court charged the jury that the excavation was unlawful and created a nuisance, for which Clark was liable. This was held to be error. The question involved in that part of the charge in this case now under consideration was not discussed by the court in Clark v. Fry, supra. The court there, indeed, laid down the rule, that where the thing to be done under the contract was unlawful or necessarily injurious to third persons, the employer as well as the employé would be liable for an injury resulting therefrom, but there was nothing in the issues made by the pleadings or in the charge of the court that presented the questions which are raised by the charge of the court now under review. That one upon whom the law devolves a duty cannot shift it over upon another so as to exonerate himself from the consequence of its nonperformance is, we think, quite clear (Shearm. & Redf. Neg. §§ 174-176; Railroad v., Van Dorn, 1 Circuit Ct. Rep. 292; Wood, Mast. and S. § 316; Wharton, Neg. 185); and we think it equally clear that the law devolves upon everyone about to cause something to be done which will probably be injurious to third persons the duty of providing that reasonable care shall be taken to obviate those probable consequences. In this class of cases the doctrine of respondeat superior has no application; his liability is based upon the principle that he cannot set in operation causes dangerous to the person or property of others without taking all reasonable precautions to anticipate, obviate and prevent these probable consequences. This doctrine was recognized by Judge McIlvaine in Hughes v. Cincinnati & Š. R. Co., 39 Ohio St. 476, in the following language: "The employer cannot relieve himself from liability by contracting with others for the performance of work, where the necessary or probable effect of the performance of the work will be to injure third perCarman v. Steubenville & 1. R. Co. 4 Ohio St. 399; Circleville v. Neuding, 41 Ohio St. 465; Bower v. Peate, L. R. 1 Q. B. Div. 321. The court also charged the jury as follows: "The making of an excavation across a public highway, which materially interferes with public travel, is an unlawful act, unless author ized by proper authority, and this because such excavation creates a nuisance. If the defendant caused such an excavation to be made, it cannot shield itself from liability if injury re sons. sulted to persons traveling upon such highway because it had the excavation made by independent contractors over whom it had no control, unless it caused all reasonable precautions to be taken to prevent such injury.' This proposition also is claimed to be in conflict with the rule laid down by the court in Clark v. Fry, supra. This may be true if it is so regarded as the enunciation of a general proposition applicable to all excavations made in a public highway, or even to all ditches dug across them; but the doctrine of Clark v. Fry is not to be extended beyond the facts upon which it rests. Since that case (Clark v. Fry, supra) arose, the Legislature has declared it to be an offense to obstruct a highway, street or alley. $6921, Rev. Stat. Notwithstanding this Statute, however, we do not want to be understood as holding that in all cases where an excavation is made in a highway, street or alley it necessarily constitutes a nuisance. The issues in the case before us, however, were widely different from those in Clark v. Fry, supra, as was the extent and character of the excavation. In the case before us the only question, except as to the amount of damages, submitted to the jury, was whether or not the Railroad Company caused the excavation to be made. The record discloses that no contention was in fact had over any other material fact. That the ditch causing the accident extended entirely across the highway was not disputed, and from its depth and width it could not be otherwise than highly dangerous to everyone who might in the night-time pass along the street across which it was dug, and the language of the court must be construed in connection with the undisputed facts, the issue being tried and the evidence material to it. There was evidence tending to show that the plan of the work prepared by the engineer of the railroad contemplated that the drain would cross the street at this particular point. The ditch was dug in the usual way and the agent of the defendant at Washington had full knowledge of the place where and the manner in which it was being dug. The chief engineer who let the contract testified that he did not at the time know of the existence of the street. This was no excuse; he was bound to take notice of public highways, but it is a strong circumstance tending to show that the Railroad Company caused the ditch to be dug and left exposed in the manner in which it was in fact done; it was supposed by them to be on their own premises, and that no duty rested on them toward travelers who might intrude themselves there. On no other theory can the indifference of all who were concerned in digging the ditch and leaving it exposed be explained. It would have been criminally careless in them to have left over night in a highway, known by them to be such, a pitfall so dangerous as this was shown to be. There was evidence, therefore, from which the jury could find that the railroad caused this ditch to be dug in the particular manner that the work was done, and if the jury so found it was liable for the consequences whether it did so by its own servants, or by the hand of an independent contractor. "A ditch cannot be dug in a public street |