goods at the wharf in the city to which they are consigned, voluntarily assumes the delivery of them to the consignee at his place of business, no lien for cartage arises. Richardson v. Rich et al., 210.

3. Goods were taken from a common carrier under an attachment against a person not the owner. Held, no defense to an action by the owner for breach of contract to deliver the goods. Edwards v. White Line Transit Company, 213.

4. A special contract for the transportation of live stock provided that the carrier, a railroad company, should be released from "any and all claims which may or might arise for damage or injury to said stock while in the cars of said company, or for delay in its carriage, or for escape thereof from the cars, and generally from all claims relating thereto, except such as may arise from the gross negligence or default of the agents or officers of the said company acting in the discharge of their several official duties." In an action for damages to the stock occasioned during transportation, held (1) that the effect of the contract was to impose on the plaintiff the burden of proving, not merely that the live stock was injured and damaged by accident and delay occurring in the transportation, but also that these were caused by the gross negligence of the defendant's agents; and, (2) that proof that some of the stock were injured and lost by accidents on the railroad while in the course of transportation, that considerable delays occurred in carrying the cattle, and that they were damaged and lessened in weight and value from this cause, did not raise the presumption of negligence or default on the part of the agents of the railroad company within the meaning of the contract. Bankard v. Baltimore & Ohio R. R. Co., 321. 5. Where flour was brought to Ogdensburg by the Northern Transportation Company, consigned to the plaintiffs at Concord, N. H., and to go over the Northern Railroad, and was deposited in a store-house under the general control of the transportation company, and, according to the course of business there for six or seven years, a clerk of that company forwarded to plaintiffs a way-bill marked duplicate," headed "Northern Railroad Company," and dated at "Ogdensburg depot," but signed by no one, reciting that the railroad company had received of the transportation company the flour in question, and promising to deliver it to the consignees, subject to charges as specified; and at the same time sent to the Northern Railroad Company a duplicate of such way-bill, which was entered by them in their books, after which orders and applications respecting the freight were addressed by the consignees to the railroad company, and were acted upon by its agents; and a loss by fire occurred before the flour was removed by the railroad company from Ogdensburg, it was held, that defendants, the trustees of the railroad, were liable, as common carriers, for the loss. Baxter v. Wheeler, 434, and note, 456.

6. When goods are delivered to a transportation company to be transported over its route, and over several railroads, to the place of its destination, the companies having associated and formed a continuous line, an intermediate company is liable for the loss of goods happening upon its part of the line. Ib.

7. When several distinct corporations associate together and form a continuous line of common carriers, each being empowered to contract for freight and passengers for the whole line, and to receive pay for the same, which is to be divided in prescribed proportions,

they are jointly liable for losses or injuries upon any part of the line. Ib.

8. When a contract is made in one State to transport goods over a line extending through two or more States and the goods are lost, the rights of the parties will be governed by the laws of the State where the loss happened. Ib.

9. When common carriers by water, in their bill of lading made at Toledo, Ohio, stipulate to deliver goods to consignees at Concord, N. H., the dangers of navigation, fire and collisions on the lakes and rivers and the Welland canal excepted, it was held, that this limitation did not extend to losses by fire on the railroads. Ib. 10. Where the trustees, under a second mortgage of a railroad, have taken possession of it, and have afterward, by a bill in equity, obtained a decree of foreclosure, with a provision for a sale of the railroad in accordance with the power conferred by the mortgage, and have themselves become the purchasers, as they were authorized to do by the decree, and to hold the property in trust for the bondholders, and they continued to keep possession of the railroad, and operate it as such trustees, it was held, that they were liable as common carriers for the loss of goods received for transportation. Ib.

CONSPIRACY.

1. In an action on the case, grounded on an alleged conspiracy by the defendants to injure the plaintiff, he cannot recover unless there is evidence that he sustained actual damage. The fact of conspiracy is simply matter of aggravation, and should be proved in order to entitle the plaintiff to recover in one action against several. Kimball v. Harmon, 340.

2. In an action on the case, alleging that the defendants combined and conspired together to defeat the right of plaintiff to receive and possess a certain lot of bedsteads which he had purchased of one of the defendants, he is not entitled to recover damages against such defendant for breach of the contract of sale. Ib.

CONSTITUTIONAL LAW.

1. By an exercise of the right of eminent domain the legislature may confer upon a city the power to acquire absolute title to land for a public park, on compensation made to the owners, but the city holding the land in trust for the public cannot convey it without legislative sanction; and an act of the legislature authorizing such conveyance is valid, unless it operates to divest the lien of bonds for the payment of which the land is pledged, in which case it is unconstitutional and void as impairing the obligation of contracts. The Brooklyn Park Commissioners v. Armstrong, 70.

2. By a general law of Massachusetts, it was declared that every act of incorporation thereafter passed should "at all times be subject to amendment, alteration or repeal, at the pleasure of the legislature." Subsequently a water-power company obtained a charter, with the privilege of erecting a dam across the Connecticut river, upon payment of damages to fishowners. The dam was accordingly erected, and several years afterward the legislature passed an act compelling the owners of the dam to make and maintain a suitable fish-way. Held, that this act was constitutional, there being no express provision in the charter allowing the company to maintain a dam without a fish-way. Commissioners Island Fisheries v. Holyoke Water-power Company, 247.

on

3. An act of a State legislature, providing that "no * * * Chinese shall be permitted to give evidence in favor of, or against, any white man," is not in conflict

with the fourteenth amendment of the United States constitution. People v. Brady, 604.

4. The State legislatures have the power to regulate the competency of witnesses, and the production of evidence in State courts, notwithstanding the fourteenth amendment of the constitution of the United States. Ib.

5. An inferior court was established by an act of the legislature of an insurgent State during the rebellion; after the suppression of the rebellion a judge was elected for six years, and his election was ratified by the legislature. The legislature afterward, and before the expiration of the six years, abolished the court. Held, that the act was never a valid law; that the legislature had the constitutional right to abolish the court; and that, thereafter, the judge had no claim to the salary. Perkins, treasurer, v. Corbin, judge, etc., 698.

CONTRACT.

1. Where a contract is entire, and one party is willing to complete the performance, and is not in default, no promise can be implied on his part to compensate the other party for part performance, although the contract itself is void by the statute of frauds. Galvin v. Prentice, 58.

2. In an action upon a written contract for the sale of hogs, to be delivered at W. at the option of H., by giving ten days'" notice at any time in June, held, that the contract obliged defendant to make the delivery during the month specified, without notice. mering v. Gaughey, 673.

Will

3. An obligation in writing to pay a specified sum of money on a day certain, in coin, or cotton at twenty cents per pound, at the option of the promisor, becomes absolute to pay coin, unless a tender of the cotton is made when due. A like obligation, when at the option of the creditor, does not require of him an election and notice in order to maintain his action to recover the coin. Russell v. McCormick, 707.

CONTRIBUTORY NEGLIGENCE.

1. The plaintiff, an infant four years and seven months old, while returning unattended from school, was run over by defendant in the public street. In an action to recover for the injuries, held, that it was for the jury to determine whether or not plaintiff's parents were guilty of negligence in permitting him to be in the street alone. Lynch v. Smith, 188, and note, 191.

2. In such action the opinion of plaintiff's schoolteacher as to his capacity is admissible. Ib.

3. When an infant is in the streets, without negligence on the part of himself or parents, he is bound to use only such reasonable care as he is capable of, though of less degree than adults would be bound to use under the circumstances. Ib.

EXPRESS COMPANY.

Where an express company receives a draft for collection, with instructions to return it at once if not paid, and on demand of the drawee, he refuses to pay it until certain explanations are received from the drawer, whereupon the company consent to wait until the drawee can communicate with the drawer, and he, receiving satisfactory explanations, is ready to pay, and remains So two days without renewed demand from the company, but on the fourth day (the third being Sunday) he becomes insolvent, the company is responsible for the loss occurring to the drawer. Whitney v. Merchants' Union Express Company, 207. (Mass.)

LANDLORD AND TENANT.

Plaintiff occupied the lower portion of a house, and another tenant the upper portion. The of and upper story having been destroyed by fire, in an action by plaintiff against the landlord, the judge charged the jury that it was the landlord's duty to proceed with diligence, after the fire, to put on the roof, and that he was liable for damages to plaintiff caused by delay. Held error, there being no express covenant to repair, and the maxim, sic utere tuo, etc., not applying. Doupe v. Genin, 47 (N.Y.)

PARENT AND CHILD.

1. There is no legal obligation on a parent to maintain his minor child independent of statutory enactment. Kelly v. Davis, 499. (N. H.)

2. A parent cannot be charged for necessaries furnished by a stranger to his minor child, except upon a promise to pay for them. Such promise is not to be implied from mere moral obligation, nor from the statutes providing for the re-imbursement of towns; but the jury, in finding a promise, are to take into consideration all the circumstances connected with the parent's neglect, as indicating his intention, views and purposes with regard to the wants of his child. Ib.

RAILROAD COMPANY.

1. A passenger riding on the Erie railway, a railroad corporation created by the laws of New York, upon a ticket entitling him to a passage between two stations, both situate in New York, was injured in consequence of an accident on a portion of the railway which runs through Pennsylvania.

Held, that the contract of carriage was made with reference to the laws of New York, and that a statute of Pennsylvania, limiting the amount of recovery in similar cases, had no effect upon the damages recoverable in this case. Dyke v. Erie Railway Co., 43. (N. Y.)

2. Where a railway corporation takes possession of premises, under the right of eminent domain for railroad purposes, the occupation of buildings upon the premises, for the general purposes of trade and mechanical or manufacturing purposes by lessees of the corporation, is a conversion of the premises from the corporate purposes, and a writ of entry will lie against the corporation by the original owners, in which they are entitled to judgment establishing their title as owners in fee, subject to the valid easement of the corporation, and for damages or mesne profits for the wrongful use of the premises. Proprietors v. Nashua, etc., Railroad Company, 181. (Mass.)

DECISIONS OF COMMISSION OF APPEALS. The commissions of appeals convened on Tuesday, and announced the following decisions. The calendar was taken up on Thursday. Judgments affirmed, with costs: Noe, adm'x, v. Christie, Clark v. Crego, Colt v. Bransddorf, Schuyler v. Smith, McKeon v. See, Chesbrough v. Riley, Chesbrough v. Wright, Johnson v. Zinc, Russell v. Metropolitan Int. Co., The Whitehall Trans. Co. v. The New Jersey Steamboat Co., Van Dusen v. Sweet, Allaback v. Utt, People ex rel. Bristol v. Nichols, Wheeler v. Buckman, Jaycox v. Caldwell, Deal v. Maxwell, Abbe v. Eaton, Palmer v. Holland, People ex rel. Oneida Valley Bank v. Supervisors of Madison Co., Gray v. Durland, Diveny v. City of Elmira, Van Valkenburgh v. Lenox Fire Ins. Co., McCready v. Thorn, Urban v. Guthrie, Scott v. Grand

Trunk Railway Co., Taylor v. Grand Trunk Railway Co., Mason v. Grand Trunk Railway Co., Townsend v. Hayt, Losee v. Clute, Loeschigk v. Hatfield, Taylor v. Remington, Shipman v. Williams, Amory v. Wood.

Judgments affirmed by default, with costs: Shafer v. Guest, Adee v. Demorest, Cuba National Bank v. Martin, Meriden Britannia Co. v. Leland.

Judgment and order affirmed, with costs: Orchard v. Bininger.

Order affirmed, with costs: People ex rel. Otsego Co. Bank v. Supervisors of Otsego Co., People ex rel. Bank of Cooperstown v. Supervisors of Otsego Co., People ex rel. Worthington Bank v. Supervisors of Otsego Co., People ex rel. Central Bank of Cherry Valley v. Supervisors of Otsego Co., Voorhies v. McCartney.

Judgment reversed and new trial granted, costs to abide the event: Yale v. Mills, Whittaker v. Eighth Avenue Railroad Company, Waddell v. Darling, Clothier v. Adriance, Mechanics' and Traders' Bank of Jersey City v. Dakin, Groff v. Morehouse.

Judgment affirmed, with costs to the respondent in each appeal: Struthers v. Pearce.

Order of general term affirmed and judgment absolute ordered against the defendant, with costs: Betts v. June.

Order reversed and judgment ordered for plaintiff upon the verdict, with costs: Foot v. Marsh, Groat v. Gile.

Order reversed and judgment upon report of referee affirmed, with costs: Sheldon v. Sheldon.

Order reversed and judgment entered upon the verdict affirmed, with costs: Losee v. Bullard.

Order of general term entered and judgment ordered for plaintiff upon the verdict, with costs: Nors v. Stanton.

Judgment reversed and new trial ordered, without costs of appeal to this court to either party: Jones v. Butler.

Order affirmed and judgment absolute ordered against the plaintiff, with costs: Jones v. Fireman's Fund Ins. Co., Wetmore v. Truslow, Dillaye v. Commercial Bank of Whitehall, Mitchell v. Bartlett, Unger v. Forty-second street and Grand street Ferry R. R. Co., Buffalo, N. Y. and Erie R. R. Co. v. Stevens.

Order affirmed and judgment absolute ordered against the defendants, with costs: Snelling v. Howard, Southworth v. Scofield.

Judgment reversed and new trial ordered, unless plaintiff shall, within twenty days after notice of filing the remittitur, consent to reduce the damages to fourfifths of $581 18-100, and interest thereon from June 20, 1865, in which event judgment affirmed as thus modified, neither party to have costs to this court: Alexandre v. Sun Mutual Insurance Company.

Appeal dismissed with costs: People ex rel. Lee v. Lynon.

Order of general term as to Ashton reversed and judgment for defendant upon report of referee affirmed as to him, with costs: White v. Ashton.

Judgment reversed by default and new trial ordered, costs to abide event: Douglass Axe Manufacturing Co. v. Weed.

Re-argument ordered: In the matter of Nichols v. Wells, Hatfield v. Sneden, Hoard v. Peck, People ex rel. Curtis v. Common Council of Rochester. These causes are ordered to be placed upon the present calendar of the commission, and are set down to be heard on Wednesday of the second week.

JUDGE HUNT AND THE COMMISSION OF APPEALS.

In the commission of appeals on Tuesday, upon the withdrawal of Judge Ward Hunt from the bench, Chief Commissioner Lott addressed him as follows:

Judge Hunt: It has been known to your associates in the commission, for some time, that your official relations with them would close with the present term, after the decisions just handed down and rendered, and we cannot permit the occasion to pass without an expression of our high appreciation of your services, and of the uniform courtesy and kindness that has characterized your intercourse with us.

Your opinions, published in the reports, bear evidence that the conclusions reached by you in the cases in which they were written, were the result of a careful examination and full consideration, and we know that your concurrence in a dissent from opinions written by your associates was expressed after carefully investigating the questions involved, and that your long judicial experience in the court of last resort has greatly aided them in their examinations. We consequently appreciate the loss we will sustain by being deprived of that experience and valuable aid.

It is, however, very gratifying for us to know that while your official relations with us are terminated, you are to assume new judicial duties as a member of the supreme court of the United States, and that the public will have the benefit of your services. That gratification is increased by the knowledge of the fact that the place made vacant by the resignation of a very eminent and highly distinguished and esteemed jurist, who is a resident of this State, is to be filled by another of its citizens of great legal learning, long judicial experience and inflexible integrity.

May you long live to discharge the duties of your new and responsible office, and God bless you. Judge HUNT replied as follows:

This expression of kind feeling on the part of my associates is most gratifying. During the period of my judicial service I have uniformly received from my associates kindness and attention, and from the members of the bar respect beyond my desert. It was my fortune to succeed in this court that great and good man, Judge Denio. His praises are in the mouths of all men. A life-long and intimate acquaintance enables me to concur most heartily in every eulogy. It is now my fortune to succeed, in another tribunal, another great and good man. For a period of nearly fifty years has Judge Nelson held high judicial office, a period, I think, unparalleled in the history of the civilized world. Lord Elden held office for twentyseven years, Mansfield for thirty-two years, Hardwicke for twenty-three years. In the court which Judge Nelson now leaves, Marshal served for thirtyfive years, Taney for thirty-eight, and Story for thirtyfour years. During his judicial service the integrity, ability and impartiality of Judge Nelson have been uniform. It is my pride to concur in the eulogies upon him. While I unite most heartily in these welldeserved encomiums, and most fully in those contained in Mr. Stoughton's published letter, I must express my dissent from one idea there put forth.

I cannot believe that Judge Nelson owed his eminence to the fact that he was appointed to office rather than elected by the people. I cannot assent to the suggestion that under an elective judiciary the bench of New York has degenerated. Bronson, Gardner, Jewett,

Ruggles, Denio, passing by the living, were equal to any judges that ever occupied the bench of this State. Great as is my respect for Spencer, Kent and Savage, I cannot believe they were the superiors of those I have named.

A service of seven years in the highest court in this State enables me to speak with some confidence of the character of its judges During that period I have never known a cause to be decided except as the judges honestly believed to be right; nor have I ever known any one judge to give his vote except in accordance with his convictions of justice and duty. The present judges of both branches will fully maintain the high character of this court.

I go, sir, to a new and untried field. I shall hope to bring no discredit upon the court I leave. I shall ever look with pleasure upon the time spent in this court, and to all its members I tender my best wishes for their welfare here and hereafter.

SIC UTERE TUO UT ALIENUM NON LÆDAS. To the Editor of the Albany Law Journal:

In Rowe v. Smith, 45 N. Y. 233, the action being "founded upon a violation of the duty imposed upon the owner of domestic animals to keep them from straying upon and injuring the premises of another," the learned court says: "The maxim sic utere, etc., suggests the ground of obligation in such case."

In The Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444, the court says of this maxim, that it "is iterated and reiterated in our books, and yet there is scarcely an aphorism known to the law, the true application of which is more vague and undefined."

That the maxim does not suggest the ground of obligation in the case first cited, stares out in the fact that the owner of estrays is not using them in their act of straying.

Happily Rowe v. Smith did not turn upon the application of this maxim.

In the case cited from 9 N. Y., the court (S. L. Selden) says: "While therefore sic utere tuo, etc., may be a very good moral precept, it is utterly useless as a legal maxim. It determines no right; it defines no obligation."

The answer to this is, that the maxim is a commonlaw maxim, and there is no judicial name, and probably never will be, however clear and venerable, which can so get "the start of the unbounded world," as to explode any common-law maxim for legal uselessness. But the maxim is so neighborly and unimpeachable in its ordinary social aspects-so taking in its moral summary that it has been squired into extra legal duty, and and has fainted somewhat under the loads of armor that have too conveniently been put upon it. It is somewhat amusing that the learned judge referred to, with his usual clearness and force, illustrates the value and distinguishes the application of the maxim in the same opinion in which he denounces its legal inutility.

The maxim is indispensable in the place where it belongs, and that is in case of concurrent rights, whether equal or different in degree, in respect to the same property. Here the maxim is the boundary, and does determine the right and define the obligation of the parties, as between each other, in the use of their respective estates. And any definition of such use, given the common legality of the respective interests, would necessarily be resolvable into the language of

this maxim. Each can use; neither can obstruct the other within the pale of his proper light. That is sic utere, etc. See, also, Fisher v. Clark, 41 Barb. 332.

B. W. H.

A COURT OF ERRORS IN CRIMINAL CASES. NEW YORK, January 8, 1872.

To the Editor of the Albany Law Journal: It has been suggested, as a measure of law reform, that, in capital cases, appeals should lie directly to the court of appeals. Permit me to suggest a measure which, in my opinion, would be an improvement in many respects. It is the creation of a new court, to be called "The Court of Errors in Criminal Cases," or by some other appropriate title, and to have exclusive appellate jurisdiction in cases of felony; that is, it should have all the appellate jurisdiction in such cases now possessed by the court of appeals and by the general term of the supreme court. It might be composed of three or five judges, and should be in point of dignity on a level with the court of appeals.

The advantages of this plan would be, as I conceive: 1. A speedy review of convictions by the court of last resort, which is conceded on all hands to be a great desideratum.

2. The relief of the calendar of the court of appeals. The need of this is proved by the existence of the commission of appeals. I suppose this rather anomalous court is not to be a permanent institution, and that it is very doubtful whether the court of appeals alone and unaided can keep up with its work.

3. The "division of labor;" that is, an arrangement by which one body of judges of the highest rank should be occupied solely with questions relating to criminal law, while another larger body should be devoted entirely to civil cases. This might fairly be expected to give the law a more scientific character and greater certainty. The multiplicity of subjects which the court of appeals is required to consider is so vast that it would not be strange if it should be led into some ill-considered decisions. Whatever diminishes in any degree this danger must be of great benefit to the community.

I think the foregoing suggestions are at least worthy of discussion and of consideration by the constitutional commission. S. H.

LEGAL NEWS.

Judge Ward Hunt left during the week for Washington, to take his place on the bench of the supreme

court.

Lerdo de Tejoda, the new president of Mexico. is a lawyer, forty-five years of age, posesses great energy and courage, and is also notably eloquent as an orator.

The following appointments for the office of United States attorney for the southern district of New York, have been confirmed by Attorney-General Williams: Thomas Simons, A. H. Purdy, John A. Goodlett, R. M. Sherman. Willet D. Enike, Jr., Henry Down, N. P. Hayes and W. H. Hartley.

About seventy of the most distinguished members of the bar of the supreme court of the United States have addressed a letter to ex-associate Justice Nelson, expressive of their deep regret that they are compelled to part with him, paying high compliment to his learning, sagacity, impartiality and integrity as a justice.

The Albany Law Journal.

ALBANY, JANUARY 18, 1873.

MUNICIPAL CORPORATIONS AND SLIPPERY SIDEWALKS.

Notwithstanding the decision of the supreme court of Michigan, in Detroit v. Blakeby, 21 Mich. 84 (4 Am. Rep. 450), to the contrary, the weight of authority must be regarded as settling the principle that municipal corporations are liable for injuries to persons occasioned by a neglect to keep their streets and sidewalks in repair. Hutson v. Mayor, 9 N. Y. 163; Weet v. Brockport, 16 N. Y. 161; Davenport v. Ruckman, 37 N. Y. 568; Browning v. Springfield, 17 Ill. 143; Pittsburg v. Grier, 22 Penn. St. 63. And the general obligation on such a corporation to keep its streets safe and convenient extends as well to defects and obstructions occasioned by snow and ice and by any other cause.

The case of Providence v. Clapp, 17 How. (U. S.) 161, is usually regarded the leading authority on the question how far snow and ice on a sidewalk will constitute a defect. That case was decided under the statute of Rhode Island, which, in addition to requiring towns to keep their highways safe and convenient, specially directed that when the highways were blocked up or incumbered with snow, so much thereof should be removed or trodden down as would render the road passable. The obstruction or defect complained of consisted of a ridge of hard-trodden snow and ice on the center of the sidewalk, along which the plaintiff was passing in the night time, and by means of which he fell. The court held that the liability of the city was not modified by the special direction of the statute above stated; that, after a fall of snow, it was the duty of the city to use ordinary care and diligence to restore the walk to a reasonably safe and convenient state, and that it was for the jury to find whether it was in such state or not. Mr. Justice Nelson said: The treading down of snow when it falls in great depth, or in case of drifts, so that the highway or street shall not be blocked up or incumbered may, in some sense, and for the time being, have the effect to remove the obstructions; but as it respects sidewalks and their uses, this remedy would be, at best, temporary; and in case of rain or extreme changes of weather, would have the effect to increase rather than remove it. * * * The just rule of responsibility and the one, we think, prescribed by the statute whether the obstruction be by snow or any other material, is the removal or abatement so as to render the highway, street or sidewalk at all times safe and convenient, regard being had to its locality and uses."

Most of the cases regarding the liability of towns

and eities for injuries from defects of this kind have been decided in the New England States under statutes specifically imposing upon them the duty to keep their highways and streets in repair, so that the same be safe and convenient. But the reasoning of these decisions would seem to be just as applicable, so far as municipal corporations are concerned, in States where the duty is not directly imposed by statutes, but arises impliedly from the acceptance of a charter.

One of the most important of these New England cases is that of Stanton v. Springfield, 12 Allen, 566, as therein was established a limitation not before directly recognized. In that case the only defect alleged was that the sidewalk, where plaintiff fell, was slippery by reason of the smoothness of the ice upon it. The court held — Hoar, J., delivering the opinion

that the mere fact that a highway is slippery from ice upon it, so that a person may be liable to slip and fall upon it, while using ordinary care, if the way is properly and well constructed, and there is no such accumulation of ice or snow as to constitute an obstruction, and nothing in the construction or shape of the way which occasions any special liability to formation or accumulation of ice upon it, is not a defect or want of repair which will authorize a jury to find that it is not safe or convenient for travelers within the meaning of the statute, imposing upon towns the duty to keep their ways safe and convenient for travelers at all seasons of the year. The court took occasion to distinguish the case at bar from some prior decisions, as Shea v. Lowell, 8 Allen, 136, and Payne v. Lowell, 10 id. 147, on the ground that some of the above conditions were wanting in them. In the first of these cases the plaintiff fell on the ice on the sidewalk, and it was proved that the ice on other places on the sidewalk similarly situated had been removed, a little prior to the accident, with a shovel, and that it could have been easily removed where plaintiff fell. The plaintiff had a verdict and this was sustained on appeal. In the other case, Payne v. Lowell, the plaintiff fell on a slippery walk. It had rained and frozen the night before, and the sidewalks throughout the city were covered with ice; there was also evidence tending to show that there was ice upon the walk where the accident occurred prior to the rain; the court, on appeal, refused to interfere with the verdict for the plaintiff. The doctrine of Stanton v. Springfield was affirmed in Johnson v. Lowell, 12 Allen, 572, and in Gilbert v. Roxbury, 100 Mass.

185.

In Mason v. Boston, 14 Allen, 508, the doctrine was somewhat extended. It was therein held, that a slippery condition of a sidewalk, caused by snow carried upon it and trodden down by the ordinary travel and then freezing, is not such a defect as will render the city liable for a personal injury received in consequence thereof. This must be taken to apply only where the surface of the walk is smooth and even.