against usury, but whether it was within the terms of the prohibition, which forbade banks from charging on any discount a rate greater than seven per cent per

annum.

And in Atlantic State Bank of Brooklyn v. Savery, 82 N. Y. 291, it was decided that the purchase of a promissory note for a sum less than its face, is a discount thereof within the meaning of the provision of the Banking Act of that State (§ 18, ch. 260, Laws of 1838), which authorizes associations organized under it to discount bills and notes. And in support of that definition of the terms, the court cites the authority of MacLeod on Banking, 43, where the author says: "The difference between the price of the debt and the amount of the debt is called discount," and "to buy or purchase a debt is always in commerce termed to discount it."

In Fleckner v. Bank of United States, 8 Wheat. 350, Mr. Justice Story said: "Nothing can be clearer than that by the language of the commercial world and the settled practice of banks, a discount by a bank means, ex vi termini, a deduction or drawback made upon its advances or loans of money, upon negotiable paper or other evidences of debt, payable at a future day, which are transferred to the bank," and added, that if the transaction could properly be called a sale, "it is a purchase by way of discount."

Discount, as we have seen, is the difference between the price and the amount of the debt, the evidence of which is transferred, and that difference represents interest charged, being at some rate, according to which the price paid, if invested until the maturity of the debt, will just produce its amount. And the advance therefore upon every note discounted, without reference to its character as business or accommodation paper, is properly denominated a loan, for interest is predicable only of loans, being the price paid for the use of money.

The specific power given to National banks, R. S., § 5, 136, is "to carry on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt." So that the discount of negotiable paper is the form according to which they are authorized to make their loans, and the terms "loans" and "discounts" are synonyms. It was so said in Talmadge v. Pell, 3 Seld. 328; and in Niagara County Bank v. Baker, 15 O. S. 68, the very point decided was that "to discount paper, as understood in the business of banking, is only a mode of loaning money with the right to take the interest allowed by law in advance."

But whether loans and discounts are identical, in the sense of section 5197, or not, is quite immaterial, for both are expressly made subject to the same rate of interest. And unquestionably the transfer of the notes, which forms the basis of this controversy, if not a loan was a discount.

The contention of the plaintiff in error, that under this section whatever by the law of the State is lawful to natural persons in acquiring title to negotiable paper by discount is lawful for National banks, cannot be sustained, and derives no countenance, as is argued, from the decision in Tiffany v. National Bank, 18 Wall. 409. All that was said in that case related to loans and to the rate of interest that was allowed thereon; and it was held that where by the laws of a State in which a National bank was located one rate of interest was lawful for natural persons and a different one to State banks, the National bank was authorized to charge on its loans the higher of the two. The sole particular in which National banks are placed on an equality with natural persons is as to the rate of interest, and not as to the character of contracts they are authorized to make; and that rate thus ascertained is made applicable both to loans and discounts, if there be any difference between them. It is not intimated or implied

that if in any State a natural person may discount paper, without regard to any rate of interest fixed by law, the same privilege is given to National banks. The privilege only extends to charging some rate of interest allowed to natural persons, which is fixed by the State law.

If it be said that the rate is allowed by the law of the State, when it permits the parties to reserve and receive whatever they may agree upon, then the section furnishes the conclusive answer that "when no rate is fixed by the laws of the State, etc., the bank may take, receive, reserve or charge a rate not exceeding seven per centum." So that the transaction in question, in either aspect, is within the prohibition of the statute, and subjects the bank to the penalties sued for.

The conclusion is confirmed by the provision which declares that "the purchase, discount or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight-drafts in addition to the interest, shall not be considered as taking or receiving a greater rate of interest." Here the purchase, discount and sale of bills of exchange are classed as one, and subject to the same rule and rate of interest. In section 5198, the forbidden transaction for which the penalties are prescribed, is spoken of as usurious; but this reference is to the prohibitions of the preceding section, and not to the laws of the State. In the present case the paper was transferred by an indorsement, imposing the ordinary liability upon the indorser. It may perhaps be distinguished from cases where the title to the paper is transferred by an indorsement without recoursc, or by mere delivery. The advance in such cases, to the previous holder, of the agreed consideration, can hardly be considered a loan, for the relation of debtor and creditor as between them is not created by the transaction, if made, as supposed, in good faith and not as a cover for usury. Whether it be a discount, within the meaning of the sections we have considered, and therefore subject to the same rule as to the rate of interest at which it may be discounted, which we have decided to be applicable to the transaction described in the present case; and if not, but is to be treated as a purchase of the paper, lawful at any proportion which the price paid bears to the amount ultimately payable by the parties to it, whether in that case National banks are authorized by the law of their organization to acquire title to it in that way, are questions which do not arise in this case, and upon which we express no opinion.

We find no error in the judgment, and it is accordingly affirmed.

missal of the complainant's bill, because he has failed to obey an order requiring him to give security for costs. The complainant answers that the defendant has waived his right to security, and as it now appears that the order for security was obtained after such waiver had occurred, he should not be compelled to obey it in order to save his suit. The bill is filed to set aside a will for incapacity and fraud in its procurement. The property in controversy consists almost entirely of houses and lots occupied by tenants. Shortly after the bill was filed, the complainant applied by petition for the appointment of a receiver. The petition, as well as the bill, disclosed the fact that the complainant resided in England. A copy of the petition was served on the defendant. The order to show cause why a receiver should not be appointed was returnable July 5th. On that day the defendant asked for a continuance for two weeks, in order that he might submit affidavits in answer to those annexed to the petition. A continuance was granted. On July 12th the defendant obtained an order requiring the complainant to give security for costs, and served it soon afterward. On July 19th the application for a receiver was heard, without objection by the defendant, on affidavits submitted by both parties, aud resulted in a denial, with costs to the defendant.

The rule is perfectly well settled that if a defendant takes any step in a cause, after he has notice that the complainant is a non-resident, he waives his right to security for costs. 1 Dan. Ch. Pr. 30; Anonymous, 10 Ves. 287. Kinderley, V. C., in Atkins v. Cooke, 3 Jur. (N. S.) 283 (the case is also reported in 3 Drew. 694), said that the least step is a waiver. The following acts or steps have been held to amount to a waiver: Filing a demurrer; Long v. Majestre, 1 Johns. Ch. 202; taking an order for time to answer; Goodrich v. Pendleton, 3 id. 520; and obtaining an order extending the time within which the testimony should be closed; Newman v. Landrine, 1 McCart. 291. And it has even been held that where the defendant sent his answer to the clerk before he knew that the complainant was nonresident, but the clerk did not file it at once, and in the interval the defendant received notice of the complainant's non-residence, the filing of the answer after such notice, though the defendant believed it had been filed before, disentitled the defendant to security. Dyott v. Dyott, 1 Madd. 109. This ruling can only be defended on the ground that the clerk, in what he did or omitted to do, should be regarded, not as a public officer, but as the agent of the defendant.

A proper regard for the rights growing out of an enlightened comity requires the courts of this State to treat the citizens of other States or nations, who appeal to them for justice against our own citizens, with considerate liberality. A defendant, in case his adversary is non-resident, has an unquestionable right to security for costs, but inasmuch as it is a right which may be used to delay or obstruct justice, he should be required to insist upon it promptly, and to adhere to it persistently, or otherwise be held to have lost it.

In this case I think it is clear that the defendant has taken such steps in this cause as, according to the settled rules of practice, disentitle him to security. The motion to dismiss cannot therefore be denied.

NOTE.-Statutes authorizing courts to require security for costs from non-resident plaintiffs are only cumulative. Den v. Wilson, 2 South. 680; Newman v. Landrine, 1 McCart. 291; Kyle v. Stinson, 13 Sm. & Marsh. 301; Dyer v. Dunivan, 3 How. Pr. 135; People v. Oneida Common Pleas, 18 Wend. 652; Horn v. Thompson, Sau. & Sc. 622. See Moyers v. Moyers, 11 Heisk. 495; Kase v. Greenough, 88 Penn. St. 403; Pratt v. Fenner, 8 R. I. 40.

Courts will not of their own motion order security

from non-residents. Hauser v. Smith, 13 Ind. 532; Jones v. Cox, 1 Jones, 373. See Hickman v. Haines, 10 Ill. 20. Nor are they, in every case, bound to order such security. Robinson v. Sinclair, 1 Denio, 628; Whitsett v. Blumenthal, 63 Mo. 479; Florence v. Bulkley, 1 Duer, 705; Fearn v. Gelpcke, 13 Abb. Pr. 473; Woodward v. Stearns, 11 id. (N. S.) 445; Heeron v. Beckwith, 1 Wis. 17; Spalding v. Bainbridge, 12 R. I. 214; Fisher v. Bunbury, Sau. & Sc. 625.

The motion must be made at the first opportunity. Carpenter v. Aldrich, 3 Metc. 58; Whiting v. Hollister, 2 Mass. 102; Lovell v. Wardroper, 4 Prac. (Can.) 265; Samuelson v. Andrews, L. R. (3 Irish C.L.) 575; Kolbe v. People, 85 Ill. 336. And has been held too lateAfter a demand of particulars. Johnson v. Glasier (MS.), Stevens' N. B. Dig. 373.

After a plea in abatement. Randolph v. Emerick, 13 Ill. 344.

After a demurrer. People v. Cloud, 50 Ill. 439. After an appearance and plea. Lincoln v. Hancock, 5 Ark. 703; Kasten v. Plaw, 1 Moo. & P. 30; Clark v. Gibson, 2 Ark. 109; Fonville v. Richey, 2 Rich. 10; Duncan v. Stint, 5 B. & Ald. 702; Jacobson v. Carr, Cr. & Dix, 107; Watson v. Chadwick, 8 Irish C. L. 291; Clapp v. Beach, 3 Me. 216. See Fletcher v. Lew, 3 Ad. & El. 551; Kimbark v. Blundin, 6 Bradw. 539; Wood v. Bellisle, 1 Cham. (Can.) 130; Anderson v. Walsh, L. R. (2 Irish C. L.) 303.

Although the plea was filed under protest. Henry v. Hackett, Bl. D. & O. 248. See Bush v. Curran, 9 Irish C. L. App. xxx.

After obtaining time to plead. Eyre v. Dwyer, Sau. & Sc. 653. See further, Gurney v. Key, 3 Dowl. P. C. 559; Wilson v. Minchin, 2 Cr. & Jer. 87; Dowling v. Harman, 6 M. & W. 131; Swanzy v. Swanzy, 4 K. & J. 237.

After an answer. Trustees v. Walters, 12 Ill. 154; Mayer v. Tyson, 1 Bland. 559; Dunning v. Dunning, 37 Ill. 306; Hay v. Power, 2 Edw. 494; Schaefer v. Waldo, 7 Ohio St. 309. See Wyllie v. Ellice, 11 Beav. 99; Seidler's case, 12 Sim. 106; Craig v. Bolton, 2 Bro. C. C. 609; Meliorucchy v. Meliorucchy, 2 Ves. Sen. 24. After the expiration of the time for answering. Freel v. Trant, 11 Irish Eq. 278; Leckham v. Gresham, 2 Irish C. L. 139. See Alker v. Alker, 3 Irish Jur. (N. S.) 50; Beausang v. Condon, 13 Irish C. L. App. Xxxvii; Smith v. Dey, 2 Ch. Cham. 456; Ganson v. Finch, 3 id. 296.

After exceptions to an answer. Burgess v. Gregory, 1 Edw. 449.

After a replication. Long v. Tottenham, 1 Irish Ch. 127.

After the close of the pleadings and publication of the evidence. Foster v. Swasey, 2 Woodb. & M. 217. After notice to defendant to take a decree pro confesso. Nolan v. French, 10 Irish Eq. 211. See Tucker v. Horseman, Smythe, 90.

After a judgment by default. Day v. Wilcox, 2 McCord, 454.

After a writ of inquiry on an interlocutory judgment for plaintiff. Butler v. Wood, 10 How. Pr. 313.

After a decree to account. Murphy v. Archdale, Sau. & Sc. 630; Paul v. Hill, 3 Tenn. Ch. 342. After an order for an injunction has been made absolute. Foster v. Eyres, 7 Irish Eq. 638.

After issue joined and notice of trial given. Swan v. Mathews, 3 Duer, 613; Florence v. Bulkley, 1 id. 705; Boyce v. Bates, 8 Hew. Pr. 495; Montellano v. Garcia, 1 Bing. 67; Michel v. Pareski, 2 H. Bl. 593; Muller v. Gernon, 3 Taunt. 273; O'Grady v. O'Connell, 2 Irish Jur. 94; Vance v. Campbell, 1 Kerr, 163; Du Belloix v. Waterpark, 1 Dowl. & Ryl. 348; Fogg v. Pypher, 3 Prac. (Can.) 309. See Shaw v. Wallace, 1 Yeates, 176, 2 Dall. 179; Long v. Long, 1 Irish Ch. 618; Bentley v. Robinson, 4 id. 37; West v. Cooke, 1 C. B. 312.

After a continuance. Harper v. Columbus Co., 35

5 Ark. 41; Frasure v. Zimmerly, 25 Ill. 202; Wheelin v. Kertley, Hardin, 540; Thomas v. Tanner, 6 Monr. 54; Adae v. Zangs, 41 Iowa, 536.

After the plaintiff has closed his testimony at the trial. Spencer v. Trafford, 42 Md. 1.

After the commencement of the argument. Edwards v. Helm, 5 Ill. 143.

After a trial. Jeffersonville R. R. v. Hendricks, 26 Ind. 228; 41 id. 48; Lindley v. Kindall, 4 Blackf. 189: Weeks v. Napier, 33 Ala. 568. See Boucher v. Pia, 14 Abb. Pr. 1.

After a verdict and judgment. Davies v. Graham, 2 A. K. Marsh 540; Grimball v. Mississippi R. R., 3 Sm. & Marsh. 38; Bohrs v. Sessions, 2 Dowl. P. C. 710; Paul v. Hill, 3 Tenn. Ch. 342; Furman v. Harman, 2 McCord, 436; Flint v. Von Deusen, 24 Hun, 440.

After a motion for a rehearing. Cator v. Collins, 2 Mo. App. 225.

After a prayer for an appeal. Hatton v. Weems, 12 Gill & Johns. 83.

After an appeal, unless moved for below. Adams v. Miller, 12 Ill. 27; Robertson v. Comrs., 10 Ill. 559; Coffey v. Collier, 12 Ind. 565; Cantelo v. Binns, 2 Miles, 86; Ruckman v. Allwood, 40 Ill. 128; Howard v. Union Bank, 7 Humph. 26; People v. Common Pleas, 1 Cow. 576; Livermore v. Bond, 19 Vt. 607; Heflin v. Rock Mills Co., 58 Ala. 613; Duncan v. Richardson, 34 id. 117: Ogg v. Leinart, 1 Heisk. 40; Comstock v. Clemens, 19 Cal. 77; Meyer v. Wiltshire, 92 Ill. 395. See McLean v. Isbell, 44 Mich. 129; Ripley v. Morris, 7 Ill. 381; Ranney v. Stringer, 4 Bosw. 663; Grant v. Banque, L. R. (1 C. P. Div.), 143; Smith v. Lockwood, 34 Wis. 72; Moore v. Great Western R. Co., 9 Irish C. L. App. vi.

In ejectment, applications after issue joined and before trial, have been deemed in time. Deu v. Wilson, 2 South. *680; Purvis v. Hill, 2 Hen. & M. 614; McDade v. Dafoe, 1 Cham. (Con.) 18. But not after trial and verdict. Jackson v. Bushnell, 13 Johns. 330. In some States, filing security at any time before trial is sufficient. Cabell v. Payne, 2 J. J. Marsh. 134; Vance v. Bird, 4 Munf. 364; Lyons v. Long, 6 Ala. 103; Culley v. Laybrook, 8 Ind. 285; Sharp v. Miller, 3 Sneed, 42; White v. Stafford, Breese, 67; Stillman v. Dunklin, 48 Ala. 175. Even after motion to dismiss for that cause. Snowden v. McDaniel, 7 Mo. 313; Parks v. Goodwin, 1 Doug. (Mich.) 56; Dowell v. Richardson, 10 Ind. 573; Robinson v. Meyer, 25 Ark. 79.

In Illinois it may be filed without leave of the court. Baker v. Palmer, 83 Ill. 568. See Schaefer v. Waldo, 7 Ohio St. 309; Bullard v. Johns, 50 Ala. 382.

After a time for filing security has been fixed, the court cannot extend it. McCollum v. Massey, 2 Bail 606; Portsmouth Works v. Iron Hills Co., 11 Bush, 47; Alabama R. R. v. Harris, 25 Ala. 232; Burke v. Dillingham, 8 Rich. 256. See Wright v. Haddock, 7 Dana, 253; Haney v. Marshall, 9 Md. 194; Town v. Evans, 11 Ark. 9; Swainson v. Bishop, 52 Mo. 227; Wall v. Fairley, 66 N. C. 385; Irvins v. Mathis, 11 Humph. 603; Williams v. Connor, 14 S. C. 621. Nor order it filed within a shorter time than that limited by statute. Shaw v. Webster, 21 Wis. 129.

A continuance may be refused because the plaintiff filed his security so late that defendant was not ready to proceed. Cox v. Hunt, 1 Blackf. 146. But see Jacobs v. Sale, 1 Va. Cas. 123; Hawkins v. Millbank, 4 Wash. C. C. 285.

A court of error may reverse for an erroneous dismissal of a suit below, because security had or had not been filed. Adams v. Miller, 14 Ill. 71; Besancon v. Shirley, 9 Sm. & Marsh. 457; Vance v. Bird, 4 Mumf. 364; Crawford v. Kenley, 7 B. Monr. 253; Fogg v. Edwards, 57 How. Pr. 290; State, Fallon v. Layman, 46 Md. 190; Steamboat Empire v. Ala. Co., 29 Ala. 698; Moore v. Banner, 4 Ired. Eq. 293; Whitsett v. Blumenthal, 63 Mo. 479; Norton v. Bennett 22 Hun, 604; Eastman v. Godfrey, 15 Kan. 341. But not where the allowance of such application is discretionary. Papineau v. Belgarde, 81 Ill. 61; Campbell v. Garratt, 24 Ark. 279; Petitcler v. Willis, 99 Mass. 460; Adams v. Reeves, 76 N. C. 412; Clapp v. Balch, 3 Me. 216; Perkins v. Reagan, 14 Ark. 47; Swan v. Matthews, 3 Duer, 613; Modglin v. Slay, 11 Ark. 693; Davis v. You, 43 Ala. 691; Kelty v. Valle, 66 Mo. 601.

A mandamus may lie to compel the inferior court to proceed aright. Barnett v. Warren, Hardin, 172; Cole's case. 28 Ala. 50; Robbins' case, 29 id. 71. See State v. Howe, 64 Ind. 18.

The court should dismiss the rule, upon the defendant's application. Mississippi R. R. v. Ballard, 3 Sm. & Marsh, 606.

Plaintiff is entitled to the costs of the motion, if defendant move before demanding security. Baillie v. De Barnelles, 1 B. & Ald. 331; Fletcher v. Lew, 3 Ad. & El. 551.

The burden of showing that the motion is too late lies on the plaintiff. Jones v. Jones, 2 Cr. & Jer. 207. JOHN H. STEWART.

KLATT V. CITY OF MILWAUKEE.

In an action against a city for a personal injury arising from a defect in a street caused by a contractor who was repairing such street, it appeared that a proper barrier to prevent such accident had been erected and was up at four o'clock in the afternoon of the day of the accident; that the accident took place at about nine or ten o'clock in the evening, and that the barrier had previous to that time been removed, without the fault or knowledge of the city or the contractor. Held, that the city was not liable. CTION for injury caused by a defect in a street. The facts appear in the opinion. Defendant appealed from a judgment in favor of plaintiff. J. R. Brigham, for appellant.

A

J. V. V. Platto, for respondent.

ORTON, J. The accident which caused the injury complained of is alleged to have happened by reason of the city not keeping barriers and lights in the street where it occurred (which was then being paved, and thereby rendered unsafe for travel), which would have prevented it. The duty of the city to protect the travelling public from injury liable to happen in consequence of street improvements of this character is the vital principle of this case, and before applying it to the facts and findings it is necessary to determine the nature of this duty of the city, and the extent and measure of the responsibility involved. When this duty is not directly and specifically imposed by law, it arises by necessary implication from the primary duty which is so imposed upon the city, to keep its streets which have been opened to public use all the time fit and safe for such use. The right and duty to make improvement of streets by grading, paving, etc., in order to make and keep then in such fit and safe condition, do not constitute an exception to such primary duty, but are necessary to its best performance, and arise from it, and are consistent with it, and subsid

iary to it, although for the time being and while such improvement is being made such streets are rendered less or wholly unfit or unsafe for such public use. The duty in question to protect the public by suitable precautions against danger and damage while so improving the streets, arises from and is connected with the right and duty to improve, and are both included in the first or primary duty imposed by law to keep the streets in repair and all the time in a condition safe to the travelling public, as well during the progress of improvements as at all other times. This must be so, else there is no liability for neglect of the duty in question, at least in this State, where the liability and right of action exist by statute, or not at all. The duty to repair and to keep in repair is coupled with the duty to protect the public against accidents while the streets are out of repair or while they are being repaired, and they must be kept in a safe condition, or the public must be protected from accident, in some proper way, while they are unsafe. This view is sanctioned by many cases in this court and elsewhere.

In the leading case of City of Milwaukee v. Davis, 6 Wis. 377, it is said: "The leaving of the street in that impassable condition on the night in question, without lights, fence or guard, or other token, * * * is in fact the gravamen of the complaint."

In Seward v. Town of Milford, 21 Wis. 485, an instruction was approved, "that if the town had not had time to repair the road it should have put up and kept up proper guards at that place to notify and prevent travellers from going on the dangerous track." In Ward v. Town of Jefferson, 24 Wis. 342, the two duties are coupled together in the language: "And to have put the road in repair, or by other means to have guarded against and prevented the injury."

In Hammond v. Town of Mukwa, 45 Wis. 35, the present chief justice said: "And we are clear that the town is primarily liable when it fails to keep such highway safe for public travel, or does not use proper precautions to warn travellers of the dangerous condition of the highway."

It is said in Sherman & Redfield on Negligence, $399, citing several authorities, "pending the work of rebuilding, if the public is put upon its guard, the town will be excused for the defective condition of the highway." These references are quite sufficient to show by authority what is apparent in reason, that in the very nature of the duty to keep highways in repair and safe for travel is included the duty to use proper precautions against accident while they are unsafe and out of repair, and that the two duties, if they may be nominally separated, are of the same nature and obligation, and liability for their non-performance rests upon the same degree of negligence. It follows therefore that if the city could not be held to a strict and absolute, but only to a reasonable performance of the duty to keep its streets in repair and safe for travel, and in respect thereto only to the exercise of ordinary care and prudence, and would not be held liable for an injury occasioned by their being out of repair and unsafe, without actual or presumptive notice that they are in such condition, it should be held to no stricter performance of the duty to protect the public by suitable precautions from injury while the streets are out of repair and unsafe for travel, and in respect thereto should be held to the exercise of the same degree of care and prudence. It is too well established to require the citation of authorities that if a street should suddenly and without warning to or fault of the city, come by any means into a condition dangerous to travel, the city would not be liable for damages occasioned thereby, without actual notice, or notice implied or presumed by lapse of time, of its condition, and until after a reasonable time for repairing it. By the same rule, when a street being improved is made safe, so far as the public is concerned,

by barriers or other proper precautions, suddenly, and without warning to or fault of the city, it becomes unsafe by the removal of such barriers or other precautions, by any means, the city should have the same notice.

In Sherman & Redfield, § 376, it is said: "During the progress of the work of altering or repairing a highway, ordinary care must be used to prevent injuries to passengers therefrom." In Koester v. City of Ottumwa, 34 Iowa, 41, an excavation in the sidewalk, into which the plaintiff fell, had been made and guarded in a certain manner by a builder, and on the trial a witness was asked substantially whether this excavation was not guarded in the customary manner among builders. This evidence was held improper, and the Supreme Court in affirming the ruling say: "The point in issue was as to whether the defendant had been negligent in fact. If the custom in that city had been to do more in the way of barricading than ordinary care and prudence required, the defendants nevertheless would not have been liable if it had done only what ordinary care and prudence required. * * It must exercise ordinary care. Custom will not require it to do more, nor excuse it for doing less." We think that we have sufficiently shown that the liability of the city for not properly guarding a street made dangerous to travellers by works of improvement, so as to prevent accidents thereon, as an implied liability arising from its liability imposed by the statute for not keeping it in a condition of repair and safety, is not an absolute liability, but depending upon the want of ordinary care and prudence. But in this case it is claimed by the learned counsel of the respondent that the charter (§ 11, ch. 5, of ch. 184, Laws of 1874), requiring the city to have inserted in contracts for street improvements a stipulation in substance that the contractor "shall put up and maintain such barriers and lights as will effectually prevent the happening of any accident," imposes upon the city the absolute duty of having such barriers and lights put up and maintained, which must be strictly performed. Whether this is so or not it is unnecessary in this case to decide, for one of the findings of the jury is that a barrier of a certain kind had been put up across the dangerous street on Saturday night before the accident occurred, and there is no finding that it was insufficient to have prevented the accident if it had remained until the time of its occurrence. When this duty has been performed and a sufficient barrier has been put up, as required by law, the absolute liability, if there is any in such a case, ceases, and the city is only bound to use common care and diligence in maintaining it. If such sufficient barrier is afterward removed or thrown down by a stranger, or from any cause, without the knowledge or fault of the city authorities, and they have no actual notice that it is so removed or thrown down, and a sufficient time has not elapsed under the circumstances to raise a presumption that they had notice thereof before the accident, the city is not liable. In Seward v. Town of Milford, supra, the following instruction to the jury was approved by this court: "If the town put up proper guards to notify and keep travellers from going on the dangerous track, and kept them up until the night of the accident, and such guards were removed by some person in the dark, it is not liable."

The case of Doherty v. Inhabitants of Waltham, 4 Gray, 596, is closely analogous to this case in its facts relating to the putting up and the removal of the barriers. The workmen, before they left the work at sundown, put up barriers around the well which they were digging in the street. Between nine and ten o'clock the same night the obstruction had been removed, either by accident or design, but at what time there was no evidence, and the plaintiff fell into the well and was injured. The jury were instructed that

the town would not be liable "unless it had reasonable notice of the removal of the barriers, and that the road had by such removal become again dangerous, and the instruction was approved. In Aylesworth v. Chigago, R. I. & P. R. Co., 30 Iowa, 459, the court said: "It is the duty of railroad companies under our statute to fence their roads. It is also their duty to maintain and keep up the fences after they are made. But before the liability would attach in the latter case, in the absence of wrong on their part, they must have knowledge that the fence is out of repair and a reasonable time thereafter to put it in repair." In Daniels v. Potter, 4 Car. & P. 262, it is held that a tradesman who has a cellar opening upon the public street is bound, when he uses it, to take reasonable care that the flap of it is so placed and secured as that, under ordinary circumstances, it shall not fall down; but if the tradesman has so placed and secured it, and a wrong-doer throws it over, the tradesman will not be liable in damages for any injury occasioned by it. Authorities to the same effect might be multiplied indefinitely, but a principle so clearly founded in reason needs no further support.

It appears by the evidence that this accident occurred about nine or ten o'clock in the evening, and the jury found that the barrier was up at four o'clock that afternoon, and they found further that it was not removed by the contractor or any one in his employ, and there was no finding or proof when the barrier was removed or by whom. The jury found that neither the contractor nor the city, nor any of its officers, had notice before the accident that the barrier had been removed. If we were to construe this finding that the city had no actual or implied or presumptive notice of the removal, then by the above principle and authorities the plaintiff was not entitled to recover. But we do not feel at liberty so to construe it, for the jury probably meant actual notice, as the matter of implied notice from lapse of time or from circumstances was not alluded to in the charge of the court as a principle that had any application to the case, and there was no finding on the question. The learned counsel of the respondent now insists that this court should hold that from the mere lapse of time of about five hours, from four o'clock to the time of the accident, the city, through its officers or agents, is presumed, as a question of law, to have had notice. This might be a question of law for the court if the jury had found all of the facts and circumstances, from which a clear legal conclusion could be drawn, of notice or want of notice. But here there is an entire absence of facts pertinent to such an inquiry. We do not even know when the barrier was removed, and we know nothing of the relative situation of the street or the part of the street in which the barrier had been placed; whether near to or distant from the centers of trade or business; whether much or little used for travel; how near to it were the residences or places of business of the officers or agents of the city, or how near to it they were likely to pass in going from place to place; or any other material fact to be considered in forming such a legal conclusion. This presumption of notice must have some foundation of fact, and the facts must be such as to clearly raise the presumption, or neither the court nor jury would be justified in assuming that the city had such notice. The special findings of the jury in these respects are defective, and they are also defective in not finding that the barriers that were put up were reasonably sufficient to prevent such an accident. For these reasons the judgment must be reversed and a new trial had. This opinion has been extended perhaps to a needless length, but the main question is an important one, and likely to arise in many kindred cases.

The judgment of the County Court is reversed, and a new trial ordered.

INFANT HOLDING OFFICE OF NOTARY

PUBLIC.

U. S. DISTRICT COURT, INDIANA, NOV. 3, 1881.

UNITED STATES V. BIXBY.

At common law an infant is capable of holding a mere ministerial office. The office of notary public is ministerial. Accordingly, held, that in the absence of a statute forbidding it, an infant could hold such office.

NDICTMENT for perjury. The defendant set up that the notary who administered the oath was an infant, to which plea a demurrer was interposed. The opinion states the facts.

Chas. L. Holstein and Chas. H. McCarer, for the United States.

McDonald & Butler and Gordon, Lamb & Sheppard, for defendant.

GRESHAM, J. The indictment charges that the defendant committed perjury in swearing to the truth of a quarterly report as assignee in bankruptcy, before Auretus W. Hatch, a notary public. The defendant pleads specially that at the time the alleged oath was administered to him by the said A. W. Hatch, as notary public, the latter was a citizen of Marion county, Indiana, and a minor, under twenty-one years of age. A demurrer to this plea presents the following questions, viz.:

(1.) Are minors ineligible to the office of notary public under the Constitution or statutes of the State of Indiana? (2) If not, are they ineligible at common law?

Article 6, section 2, of the Constitution, declares that there shall be elected in each county, by the voters thereof, a clerk of the Circuit Court, auditor, recorder, treasurer, sheriff, coroner and surveyor.

Section 3 declares that such other county and township officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law. Section 4 declares that no person shall be elected or appointed as a county officer who shall not be an elector of the county. Article 2, section 2, declares that only males twenty-one years of age, are electors. The first section of the act providing for the appointment of notaries public, and defining their powers and duties (1 Ind. R. S. 634), provides that such officers shall be appointed and commissioned by the governor, upon a certificate of qualifications and moral character from the judge of the Circuit or Common Pleas Court of their counties, respectively, and shall, before they enter upon their duties as such, take an oath of office before the clerk of the Circuit Court of their counties respectively, and file in his office, to be approved of by said clerk, an official bond. Section 5 of the same act confers power upon notaries to take and certify acknowledgments of deeds and other instruments of writing, to administer oaths generally, to take and certify depositions, and to do such acts as by common law and the customs of merchants they are authorized to do. Section 7 provides that no person holding a lucrative office, or being an officer in any bank or corporation possessed of any banking powers, shall be a notary public. Section 4 of a later act (1 Ind. R. S. 635) declares that the jurisdiction of a notary public shall be coextensive with the limits of the State, but no notary shall be compelled to act beyond the limits of the county in which he resides.

The authority of notaries extends throughout the State, and they are not required by statute to be twenty-one years of age. But it is urged by counsel for defendant that under the Constitution none but voters twenty-one years of age are electors; that no person not an elector can hold a county office; and