independent conclusion on the question. The judge found in the evidence that the plaintiff was the defendants' servant; he saw the witnesses, and had an opportunity of observing the mode in which they gave their evidence. I do not know how 1 should find if I had to decide the question, but I think we are not justified in overruling the finding of the learned judge. Therefore, we must start on the footing that the plaintiff was in the service of the defendants. Then it is said that, to exempt the defendants from liability, not only must he have been their servant, but he must have been in a common employment with the person through whose negligence he was injured. In the present case it is clear there was a common employment. Many cases may be put where the master might be liable, as where he carries on two distinct businesses, and a person employed in one of them is injured by the negligence of a person employed in the other. It is not necessary to answer that suggestion, for this is a different case; here the plaintiff was clearly acting for the browery, and that makes it a case of common employment; for what is there in the present case? The plaintiff is bringing in coals which are necessarily brought under the flap; he knew that other persons were employed above; the coals were necessary for the brewery, and there was an employment of the plaintiff in the business of the brewery, and the risk was one to which he naturally exposed himself. When once we have the fact that the plaintiff was a servant of the defendants, it comes within all the decisions to hold that he was in a common employment with the persons through whose negligence he was injured. To constitute a common employment the two persons need not be working at the same thing at the same time. Wilson v. Merry (where the negligence which caused the injury had occurred sometime before) shows that it is not necessary that the two persons should be working together; if there is a common employment, such that the servant must know that the master would employ other persons to the risk of whose negligence he would be exposed, that is enough to prevent his recovering. Another objection taken was that this was a danger which the plaintiff could not foresee. But the plaintiff must have known that other persons were employed, and I should say that the danger of the flap falling was a danger with reference to which he must be taken to have contracted. Whether the exception to the general rule as to liability for negligence which prevents him from recovering is a good one in point of policy, is a question with which we have nothing to do. If it is bad, it is for the legislature to remedy the evil; and we should do great harm, if we were to draw minute distinctions in order to avoid hardship in individual cases. THESIGER, L.J.: 1 am also of opinion that the judgment of Mr. Justice Lopes ought to be affirmed. The starting point is a question of fact whether the plaintiff was a servant of the defendants or not. If that question were answered in the negative, I should hesitate to apply the case of Woodley v. The Metropolitan District Railway Company, and say that the plaintiff undertook the risk; but it is unnecessary to consider this, because, in my opinion, Mr. Justice Lopes was justified in finding as he did, or at least there was sufficient evidence on which he could so find. The facts have been dealt with by Lord Justice Brett. Ansell said he was a servant to defendants. Ansell engaged other workmen, who were not the servants of Ansell, to be paid and discharged by him; they were paid a lump sum by the defendants, but that sum was divided among them. It was stated that Ansell could not discharge the plaintiff without asking the defendants; if so the case is undistinguishable from Morgan v. The Vale of Neath Railway Company. There it was argued that the rule as to common employment only applied where the employment as to its immediate object was common; but it was held that that argument was not well founded, and it was laid down clearly by Mr. Justice Blackburn in the Court of Queen's Bench, and upheld in Exchequer Chamber, that if there is one general object which brings the servants into contact so that they are exposed to risk, the master is free from liability. On the facts there it was held that the nature of the carpenter's duty was such as necessarily to bring him into contact with the traffic on the line. How is that distinguishable from the present case? There was a general object here, for the work was all being done for the purposes of the brewery. The coals were for the brewery; it was necessary for the plaintiff to go up the steps, and for the flap to be raised. Just as the man on the ladder in Morgan v. The Vail of Neath Railway Company was brought into contact with the traffic on the line, so here the plaintiff was necessarily brought into contact with the person who was moving the barrels. If so, the principle of that case applies. I do not think the particular risk which causes the injury must be known to the servant as a matter of fact in order to exempt the master, but the case is within the rule if the servant might have known of it, and he must be taken to have contemplated it. Though, in fact, he was not aware of the danger, this does not make the master liable. I think, therefore, that the judgment ought to be affirmed. COTTON, L.J.: I wish to add a word to avoid misapprehension. What I said was that, even if it were necessary that the plaintiff should know of the risk, the evidence here was that he did know of it, but I think it is not necessary that he should know. I should rather put it on the ground of contract. Having undertaken the risk of his acts of the fellow-servants, the servant can not say they were the acts of the master. Judgment affirmed. IN the United States Circuit Court for North Carolina, during the early part of last month several interesting questions in relation to arrest were passed upon. Some revenue officers met certain persons who were transporting in a wagon whisky without the proper revenue stamps on the barrels. The officers thereupon arrested these persons and hand-cuffed them. The 1 court held that an arrest without the issue of a war rant was right under the circumstances, and that the use of hand-cuffs to prevent escape was lawful. CONTRIBUTORY NEGLIGENCE IN THE LOSS OF A SHIP. The question as to what constitutes contributory negligence, with regard to the loss of a ship, has recently received a careful investigation in the Exchequer Division, in the case of Miller v. Nugent, 12 Ir. L. T. Rep. 112. The action was brought by the owner of a coasting vessel named the "Mary Anne," against the defendant, who was owner of the harbour at Portaferry, in the county of Down to recover damages sustained by the vessel, caused by her drifting away from the quay at Portaferry, owing to the post to which she was moored giving way. It appeared, from the evidence, that, on the night of the 19th of February, 1877, the vessel was lying in the harbor of Portaferry, moored to the quay by a double rope from her bows, which was attached to a wooden post or pawl on the quay, and she was also attached to another post to leeward, by a chain from her stern. In the course of the night a gale sprung up; and the master of the vessel, who was the only person on board, came ashore to procure assistance, having left a lighted candle on the cabin table. Upon his return, it was found that the vessel had drifted from the quay, owing to the post, to which her cable was attached, having broken across. The whole strain of the vessel having thus been thrown upon the chain from her stern, it became detached from the vessel. It was deposed to, by the plaintiff's witnesses, that the post, to which the vessel was attached on the quay, was rotton; and this was not denied by the defendant's witnesses; but one of these latter swore that if the chain had been fast on board, it would have held the vessel. The vessel drifted from the quay, stranded at the opposite side of the harbor, and took fire, admittedly from the candle that had been left on board. It was admitted by one of defendant's witnesses, that, if the vessel had not taken fire, there would have been no damage; but, as it was, more than one-third was burned. The form in which the action was brought was for breach of contract in not supplying proper mooring-posts, and for negligence; and the defendant, in his defence, traversed the several contracts alleged, and pleaded contributory negligence. The jury, in answer to questions put to them by the judge, found that the defendant did not use reasonable care to have a sufficient post for the mooring of the vessel; that the post was not reasonably sufficient for its purpose. They also found that, in their belief, the vessel was properly moor ed, but that she was not sufficiently watched and attended to, and that, had there been a greater number of hands on board, the accident would not have happened (this the jury explained as meaning that the plaintiff or his servants did not use due and proper skill and care in watching and attending to the vessel). They further found that the plaintiff did, by such want of care and negligence, directly contribute to the occurrence, and, but for snch want of care and negligence on the plaintiff's part, the accident would not have happened; and, lastly, that, under the circumstances, it was not negligent of the captain to leave the candle lighted as he did. The wreck had been sold, and the value of the vessel, after deducting the amount realised by the sale, was found to be £500. On these findings, BARRY, J., before whom the case was tried, directed a verdict to be entered for the defendant on the plea of contributory negligence, reserving leave to move. The court decided in favor of the plaintiff upon the plea of contributory negligence; but as by neither side was any measure of damages suggested other than the value of the ship, or nominal sum, the majority directed that there should be a new trial, in order to determine and assess the proper amount of damages to be awarded. The whole court, consisting of Palles, C. B., Fitzgerald and Dowse, BB., were unanimous in deciding that the contract implied by law was that the defendant should use reasonable care to provide sufficient posts, and that there was no absolute warranty as to their fitness, and that there was sufficient evidence of the breach of this contract. They also agreed that there was no implied contract by the plaintiff with the defendant to take due care of his ship, further than that he would take such care of it that, by the want of the same, the defendant's pier would not be injured. But this obligation was in no sense co-relative to the obligation the subject of the action, and there was no such implied contract by the plaintiff to take due care of the ship as was alleged by the plea. It is somewhat difficult, in such a case as the above, as was pointed out by Fitzgerald, B., to prevent confounding negligence or failure of duty on the plaintiff's part—which may affect his right of action— with negligence affecting the amount of damages recoverable by the plaintiff. The plea of contributory negligence amounts to nothing more than that there was no actionable negligence in the case; and, as the plaintiff's case was based on actionable negligence, which he succeeded in proving, the plea failed. At common law, a plaintiff, in other than cases of maritime collision cannot recover for damage suffered from negligence of another, if his own negligence directly contributed to the event, or if he might have avoided it by the exercise of ordinary care and skill. In Hawkins v. Cooper, 8 C. & P. 473, the plaintiff was crossing the Westminster road near the Marsh Gate, about five o'clock in the afternoon of a day at the end of April, when a cart and horse, driven by a lad in the service of the defendant, ran against her, knocked her down, and injured her. Tindal, C. J., laid it down to the jury, that before they could find for the plaintiff, they must be satisfied that the injury was attributable to the negligence of the driver, and to that alone. In Sills v. Brown, 9 C. & P. 601. the plaintiff, the owner of a barge sailing in the River Thames, brought an action against the owner of a brig for running down and sinking his barge. The brig was carrying her anchor in a position contrary to that provided by the bye-laws of the Thames at the time of the collision, and it was proved that, but for the improper position of the anchor, the accident would not have happened. It was ruled by Coleridge, J., that the improper carrying of the anchor would not, of itself, be sufficient to make the owner of the brig responsible in damages, if the barge, by departing from the known rule of the river, brought herself into the situation in which the brig struck her; though but for the position of the anchor, the collision would not have produced the injury complained of. In Davis v. Mann, 10 M. & W. 546, the rule of law was well put by Parke, B., when he stid: "The negligence, which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant's negligence." In Doward v. Lindsay, L. R. 5 C. P. 338, the "William Lindsay," the property of the defendant, was in the port of Valparaiso, moored to a buoy, the use of which was sanctioned by the harbor authorities for such purposes, and, a storm being expected, she had also her anchor ready to drop. The mooring buoy broke, and the vessel drifted. She attempted to cast anchor, but was prevented by inevitable accident; and came into collision with the Estrella," the ship of the plaintiff, which was properly noored. The Privy Council decided that the first vessel had not contributed by negligence to the collision; and that, where the master of a vessel takes all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger, his employers are not to be held responsible, because he may have omitted some possible precaution, which the event suggests that he might have resorted to. They further decided that it was no negligence on the part of the master to moor his vessel to a buoy placed there by the port authorities for that purpose, without first examining it to see that there were no latent defects. The above cases differ from Miller v. Nugent, in this, that they were all actions of tort, whereas the latter was an action for breach of contract. But Miller v. Nugent was for a tort founded on contract, and it seems that the rules of contributory neglegence apply with the same force to such an action as they do to an action of tort. The same might then be said of the master of the Mary Anne as was said of the master of the William Lindsay," in Doward v. Lindsay-that he was not bound to have examined the post in question to see if it contained any latent defect, but the mere fact that it was put upon the quay by the harbor authorities, to be used as a mooring-post, was sufficient to sanction him in using it as such. Moreover, as there was no obligation, upon him, of using reasonable care to provide against a breach of contract, it was no negligence on his part to have allowed his crew to leave the ship. It is to be regretted that the court was not unanimouus as to the amount of damages to be awarded. The Chief Baron decided that the plaintiff was entitiled to recover only nominal damages, because the effect of his want of care in watching and attending to the vessel was to sever from the negligent act of the defendant, in not using due care to provide a sufficient mooring-post, the damage which resulted to the vessel by reason of her leaving her moorings. He held that the act of the plaintiff intervening between the negligence of the defendant and the injury complained of, and so contributing to that injury that but for such an ininjury would not have happened, need not be the breach of a duty due by the plaintiff to the defendant; and that as the damage sued for would not have have happened but for the plaintiff's want of care, it could not be deemed the natural and necessary result of the defendant's breach of contract. In this view Dowse, B., concurred, and for nearly the same reasons-viz., because the plaintiff, by his own act, had caused the loss of the vessel, and thus severed the substantial damages from the breach of contracts, and the defendant would be entitled to claim in mitigation of damages, though not in answer to the action, that the master of the ship should have so taken care of her as to have kept on board a sufficient crew to have protected the vessel against the ordinary perils which a competent seaman would have provided against. The strain which forced the vessel from her moorings, in the opinion of the learned Baron, constituted such a peril. With all due deference to the above two learned judges, we think that their ruling on this point was erroneous, and that the judgment of Fitzgerald, B., was correct in holding the plaintiff entitled to the full value of the vessel, after deducting the amount realized by the sale of the wreck. There was no pretense for saying that if there had been no breach of contract in the defendant's part, the vessel would have got adrift, or that it would have taken fire unless it had got adrift; the getting adrift of the vessel was the direct consequence of the defendant's breach of contract, of which the plaintiff had notice only after the event. Moreover, there was no obligation upon the plaintiff to use reasonable care to provide against a breach of contract; all that he was bound to do he had done, in mooring his vessel in the usual way, and with the ordinary precautions used by seamen on such occasions. Finally the intervening act spoken of by the other members of the court had happened before the vessel had gone adrift; and there was not, subsequently to the notice to the master of her getting adrift, any want of reasonable care and skill on his part, whereby the loss of the vessel could have been to any extent prevented. The master had allowed the crew to go ashore before the gale arose, or the mooring-post had given way, though the result of his so doing did not produce effect until subsequently to these events. The plaintiff should, therefore, we think, have been held entitled to substantial damages.-Irish Law Times. ceededed to trial, it is too late to object in the appellate court that no issues are made by the pleadings. 2. Where the garnishee admits that he holds moneys of judgmeut-debtor, and sets up that these moneys are affected in his hands by a trust, the burden is on bim to show the trust. 3. And this is not done by introducing a deed of assignment made in a foreign state, which is not shown to have been legal where made, and the provisions of which are so contradictory and uncertain as to be ineffectual on their face to pass property in this state as against the garnishment. Reversed and remanded. Opinion by HAYDEN, J.Frank v, Frank. - SET-OFF TRIAL-UNTRUE ANSWERS BY JUROR,— 1. Where it was claimed on the trial that an item in a set-off was part of a continuous demand which had been split into two parcels, one of which had been pleaded in another suit, and no record evidence as to the other suit was introduced; the matter was not before the court, and an instruction in reference to it was properly refused as having no evidence to support it. 2. A new trial will not be granted on the ground of newly discovered evidence impeaching the credibility of witnesses. 3. The fact that a juror has untruly answered a question on his preliminary examination touching his personal acquaintance with appellant can not be used after verdict to affect the competency of the juror. 4. Where there are contradiatory affidavits as to the matters touching the competency of a juror, and a new trial has been refused, the appellate court will not review the finding of the trial court upon the facts embodied in the affidavits. Affirmed. Opinion by LEWIS, P. J.-Schmidt v. Rose. NOTICE OF PARA COVENANT OF WARRANTY MOUNT TITLE.-1, In an action upon a covenant of warranty, the petition alleged that the evictors of plaintiff's recovered judgment against plaintiff's "by heir paramount title in fee simple." Held, that as it sufficiently appeared on the trial that the adverse title was, at the time of the covenant, paramount to that derived by the plaintiffs from the covenantor, the general allegation in the petition was good enough after verdict. 2. Mere knowledge by the covenantor of the pending of a suit against his covenantee will not bind him to its results. He must have distinct and unequivonal notice from the covenantee that he is looked to to appear and aid in the defense. Where the testimony shows that the covenantor did so appear at the trial and aid in the defense, and the cause was tried before the court, the judgment will not be disturbed, merely because the language used in an instruction on this subject is not so explicit as it might have been, where it is apparent from the whole record that the case was tried on a correct theory of the law. Affirmed. Opinion by LEWIS, P. J.-Collins v. Baker. LESSOR AND LESSEE IMPROVEMENTS-ASSESSMENT OF VALUE OF, BY ARBITRATORS.-The lessor agreed with the lessee that if the latter would, during the term, errect on the demised premises a substantial brick warehouse and finish the same in the usual manner, the lessor would, on the determination of the term, pay to the lessee the value of the improvements, to be fixed by appraisers chosen by the parties. The building erected by the lessee had no cellar and no south wall erected on the lot, the rafters being run into the north wall of the adjoining warehouse. It was shown that this manner of constructing warehouses, as to the cellar and one wall, is common in the town where the premises were situated, and that the building was otherwise substantial, and that the appraisers examined the building and knew all these facts. In an action against the lesssor by the lessee for the appraised value, in which these facts appeared, the les sor was not permitted to show the actual value of the building independently of the report of the appraisers, nor to introduce evidence of damages sustained by failure to build a south wall: Held, that this ruling was correct. Whether there was a substantial compliance with the terms of the lease by the lessee or not, the lessor having named his appraiser and made no objection as to the absence of the wall and cellar until after the award was made, will be taken to have waived such objection. And the fact that he had no personal knowledge of the fact as to the wall until after the appraisement is immaterial. There being no fraud or concealment in the matter, and the facts being explained to the appraisers, the ignorance of the lessor was his own laches. He was not entitled to two chances one to accept the appraisement, if low enough, and the other to interpose the present objec.. tion if dissatisfied with the valuation. He is bound by the express terms of his contract. Affirmed Opinion by HAYDEN, J.-Yeatman v. Clemens. RAILROADS-CONTRACT TO PAY GRATUITY FOR LOCATION TO CERTAIN POINT PUBLIC POLICY.A contract for the payment of a certain sum of money in consideration of the locatien of a railroad to a certain point, or of a change in the route already adopted by the company, is not void as against public policy, it not being shown that the public interest suffered thereby. Opinion by BECK, J.-First Nat. Bank of Cedar Rapids v. Hendrie.] EVIDENCE-HEARSAY.-In the trial of defendant for abducting a child and imprisoning her in a house where the identity of the house became material, the testimony of another to the effect that the prosecuting witness, when taken to a particular house, pointed out a certain room and closet as the place where she was confined, was held hearsay and inadmissible. Opinion by SEEVERS, J.-State v. Stubbs. PROMISSORY NOTES-CONSIDERATION— LOCATION OF PUBLIC INSTITUTION.-Action by the endorsee to enforce the collection of promissory notes given in consideration of the location of the state reform school in its present site. Defendant pleaded want of consideration; that the location was made by the REAL ESTATE - LAW OF DESCENT.-William Corn purchased from the auditor of Pike county certain swamp land, and received a certificate therefor from the treasurer of said county October 18, 1854. Corn took possession of the land, made improvements thereon and died in 1857, leaving a widow, Nancy Corn, and several children. After his death, said Nancy Intermarried with one James Beedles, and afterwards, in 1858, said Nancy and her husband attempted to convey said real estate to one Cook, executing to said Cook a deed therefor. In 1874, said Nancy died, leaving the appellees as her only heirs at law. This suit was brought by the appellees (children of said William and Nancy Corn) to recover the real estate from the appellants, who were in possession and claimed title through mesne conveyances from said Cook. BIDDLE, J.: "At the death of William Corn two-thirds of the land described to the appellees, and the other third to the widow, Nancy Corn. The deed of Nancy Beedles and her husband to Cook was void, and at Nancy's death the undivided third part of the land which she inherited as the widow of William Corn, descended to the appellees, as her heirs at law. Thus the death of both their ancestors cast the title to the whole of the land upon the appellees. 39 Ind. 95. The acts of Congress upon the subject of the swamp lands, by their own force, conveyed the title to the state, and it was not necessary to prove title in the state by evidence of a patent from the United States. The appellees were entitled to recover the land." Judgment affirmed.-Edmondson v. Corn. PRINCIPAL AND SURETY-DELAY IN ISSUING ExECUTION. BIDDLE, J.: "The question involved in this case was fully considered in the case of Hogshead v. Williams, 55 Ind. 145. It was there held that a voluntary delay by a judgment-creditor in issuing execution upon a judement against principal and surety did not discharge the surety, though the delay was contrary to the request of the surety, and during its continuance the principal becomes insolvent, though he was solvent long enough after the rendition of the judgment for the same to have been made by execution. The English and American authorities generally support this decision. In this case there was no agreement to extend the time of levy of the execution, but a mere indulgence that could have been countermanded at any moment. It was not founded upon any consideration, did not change the obligation, and was not binding upon any person. The rights of appellant to protect himself as surety were open to him continually from the time the judgment was rendered until he commenced this action. He could at any time have paid the debt and thus have controlled the judgment for his own use." Judgment affirmed.-Jerauld v. Trippet. CONTESTED ELECTION - LEGISLATIVE AND CONSTITUTIONAL OFFICES.-Proceedings to contest the election of township trustees. The contest was made on the ground that the person who had been declared elected at the April election in 1878 was ineligible for the reason that he had held the office during two consecutive terms before the first of April, 1878. The contestor was the opposing candidate, and received a less number of votes than the contestee. The court below rendered judgment against the contestor. BID. DLE, J.: "The statute declares 'that any person who has held the office of trustee of any township in this state for two terms consecutively, at the date of the next general election in October, 1878, shall not be eligible to said office for the next ensuing term, and that hereafter no person shall be eligible to the office of township trustee more than four years in any term of six years.' Township offices are not created by the con stitution. They are the creatures of the law Offices created by the legislature may be abolished by the legislature. The term of any such office may be shortened, the duties of the office increased, and the compensation less ened by the legislative will. The plain meaning of the statute is that any person who had, at the date of the general election in October, 1878, held the office of township trustee two consecutive terms immediately before, should not be eligible to hold the office the next ensuing term. The fact that the time of holding the elections for township trustees had been changed from the month of October to the month of April can make no difference; and the fact that the contestee was eligible to hold the office at the time he was elected will not authorize him to hold it after he became ineligible, although it shortened his official term. Offices are neither grants, nor contracts nor obligations which can not be changed or impaired, They are subject to the legislative will at all times, except so far as the constitution may protect them from Interferances. In this case the contestee had no right to hold the office of township trustee after the general elections in October, 1878, any longer than until his successor was elected and qualified. The contestator is entitled to the office." Judgment reversed.-Jeffries v. Rowe. - DEBTOR AND CREDITOR APPLICATION OF PAY MENTS.-This was an action by the appellant to recover the possession of a horse. Answer that, in 1872, the appellee, George W. Black, was engaged in the business of boarding horses, etc. In 1873 he and his brother and coappellee, Robert M. Black, became partners in the same business. For som e time in 1872 the horse in controversy was boarded by the said Ge o. W. Black. The board bill of 1872 were all paid by appellant. When the board bill of 1873 became due, and after the appellee, George W., had demanded it, the agent of appellant sent the amount of said bill, $15.00, to said George W. Before that time appeilant's agent had made an account with said George W. of $9.50 which had no connection with the boarding of the said horse. On the trial of the case appellant's agent testified that this account was his own individual debt, but the appellee, George W., testified that this account was made by the agent for the use and benefit of appellant, and that he had charged appellant therewith. When the $15 was paid, without special direction as to the application thereof, appellee applied the sum of $9.50 to the payment of said first account and credited the balance on the said February bill. In its harge to the jury the court said that, in the absence of |