While I think it could be shown that some, if not all of the meanings that follow, have also been given to the proposition under consideration, yet as this could only be done by showing the inconsistency of the particular writer, if he did not use the proposition with one of such meanings, it would not repay the loss of space to do so. I shall, therefore, give a few meanings which all will admit the proposition may have, but none of which is, in my opinion, the true one.

used as including the act as well as its character, and some- and certainly not less fatal to a syllogism is the absence of a times as including only the character. It is not law that premise. But the case is really stronger against the claim. whether the performance or omission of a particular act is a that the court decides the negligence of an act because it debreach of legal duty (c is negligence), is a pure question of fines what negligence is, than it is against the claim that he law. This will appear from a perusal of the last case on the who declares that B. equals C. decides the question whether point in the United States Supreme Court, in Sioux City and A. equals B. It may quite possibly happen that those to Pacific R. R. Co. v. Stout, reported in 1 CENT. LAW JOUR- whom the latter information is given, may already know NAL, 202; and Norton v. Ittner et al., 56 Mo. 351, that A. is equal to C.; so that in fact, though not in form, both of which hold that negligence is seldom a question for the original question is decided by such information. But the court, giving the chief instances in which it is, and the the oracular exposition of the court that a particular act is authorities in support of these views. There are some courts negligent, if, under the circumstances, a reasonably prudent that hold differently, but I only speak, as Shearman & Red- man would not have committed it, has never assisted, and field do, of the rule. never could assist, a rational human being. The only cirHowever it would be unfair not to admit that the authors cumstances under which (to be somewhat Hibenian) such a quoted, seem, from the remarks and notes following the sen-judicial beacon-light could show the way, would be where tences given above, to think that the rule that negligence is neither could be seen. a pure question of law, may be satisfied by the fact that in every case the court defines what constitutes negligence. I say it would be unfair not to admit this, because, while I think such fact would not satisfy their expression of the rule, I regard the error as a much more natural one than that already adverted to. I shall, as before, quote no authorities. There can be no dispute that this, whether Shearman & Redfield's view or not, is often enunciated. I shall, however, give a sentence from Parsons, which might thoroughly favor It may be regarded as meaning that negligence is a mixed the view contended for: "So the reasonableness of a usage question, because it is for the court where the facts are not may be a question for the court; but whether the usage in in dispute, and for the jury where they are. Redfield on the question comes within the general construction of reason- Law of Railways, vol. 2, p. 231, says: “And what is proper ableness is generally for the jury." Parsons on Marine Ins., care will be often a question of law, where there is no disvol. 1, p. 136, note. I quote from Parsons, because, in my pute about the facts." Again, the number of authorities opinion, he is, with the possible exception of Greenleaf, the prevents quotation. But is it true that, where there is a disclearest and most accurate in his language of any American pute about the facts, the question of proper care is less for law-writer, a very Hallam or John Stuart Mill, in statement. the court, than if there was no such dispute? I apprehend If, however, this sentence does not mean that the court has not. This is a bold remark, and I have considerable hesitathe power to declare that there is no evidence tending to tion in making it. However, let us examine the point; and prove the issue, or is not intended to express the same rule first in the light of principle. If it is alleged that A. drove as that which prevails relatively to the question as to what his horse negligently along the side-walk, and this is denied, constitutes necessaries for infants, both of which are exam- both as to the fact of his having driven his horse, and the ined further on, but is designed to express the same rule as fact of his driving being negligent, and conflicting evidence to their reasonableness of a usage, as is now being consid- is given as to whether the horse was driven on the side-walk, ered in relation to negligence, is it not inaccurate? The how would the court charge or instruct the jury? Would it court does not pass upon the reasonableness of a usage in not, in those states where negligence is for the court, charge any particular case, if in that particular case the jury pass that "if the jury believe, from the evidence, that the deupon it. The court does not pass upon negligence in any fendant drove his horse on the side-walk, he was guilty of particular case, if in that particular case the jury pass upon it. negligence;" and in those where, as in most, it is for the The stereotyped declaration of the court, in the great ma- jury, instruct that "if the jury believe, from the evidence, jority of cases of negligence, is well known: "Negligence that the defendant drove his horse along the side-walk, and consists in doing something which a reasonably prudent man that in doing so he acted negligently, or otherwise than as a would not, under the circumstances, have done;" or "such reasonably prudent man would have acted, then," etc., etc. an act was negligence, if, under the same circumstances, a If these should be substantially the instructions, would not reasonably prudent man would not have done it." And And the courts have passed upon the question of negligence, to this is having the court pass upon the question of negligence! precisely the same extent as they would have done had it If there is a dispute as to whether A. is equal to B., it is not come up upon demurrer to the petition, or if, at the trial, easy to see how the question is determined by simply assert- the defendant had offered no evidence either directly or by ing that B. is equal to C. True, it may be a good beginning cross-examining the plaintiff's witnesses? Clearly, if the if C. is brought in simply as a middle term in a syllogism, question comes up, on demurrer, the court does not pass on which the party introducing the term continues with the the facts; if the case goes to the jury, the court none the less proposition that A. is equal to C., leaving the conclusion ob- instructs as to the law. vious that A. is equal to B. But the absence of a link is generally regarded as fatal to the completeness of a chain;

But I would not venture to contradict what I have never seen doubted, if I had not failed to find a single case that

cases of negligence as well; but is quite a different one from that contended for.

track is not merely evidence of negligence, but negligence per se, and a question for the court," they use the word in its proper sense, as, of course, whether there was a failure to stop would not be for the court. But when the same court declared in the case of Crissy v. Hestonville, Mantua & Fairmount Passenger R. R. Co., supra, that "the question of negligence must be submitted to the jury, when there is any substantial doubt as to the facts," they use the word in the improper, or, at any rate, second sense, or else, in my opinion, say what they do not mean.

supported it. True, hundreds of them declare it to be the rule; for instance, in the recent case of Crissy v. Hestonville, Mantua & Fairmount Passenger R. R. Co., American How, then, did such a doctrine originate, and how has it Law Times Reports, N. s. 166, the Supreme Court of Penn- been perpetuated? I am the more anxious to attempt an ansylvania says: The question of negligence should be sub-swer, as by doing so, if at all successful, it will appear that, mitted to the jury when there is any substantial doubt as to if I am right in my criticisms of this doctrine, no practical facts; but in this case, as in many, where the same rule is consequence will follow; and, therefore, my position will be laid down, there was no dispute or doubt about the facts. relieved from a violent presumption against it. I think it Again, though neither the extract from Redfield, nor that arose in one of two ways. I have said above that the use of from the decision of the Pennsylvania court, states, or neces- the term negligence in two different meanings, without adsarily implies that where there is no dispute about the facts, verting to the fact that it had two meanings, probably led to the question of negligence is not for the jury, yet they both a conflict of the authorities. I will now add that I think it seem to lean that way. However, nothing can be more cer- has led to the inconsistency of several writers. When neglitain than that, in the latest and most authentic cases, the gence is used as expressing the existence of the facts alleged question of negligence is held to be for the jury, though to be negligent, as well as the character of such facts, there there be no dispute about the facts. In the case just cited is no inconsistency in saying, that, if there be a dispute about there was no dispute; in Patterson v. Wallace, 1 McQueen's the fact or facts, the question of negligence must go to the House of Lords Cases, p. 748, there was no dispute ; in Man-jury. But when negligence is used in its proper sense, as exgam v. Brooklyn R. R., 38 N. Y.,p. 455, there was no dispute; pressing the character of something, it is quite natural but and in the case of Sioux City & Pacific R. R. Co. v. Stout, quite inconsistent to subject it to the operation of a rule, in the U. S. S. C., 1 Cent. Law Journal, 202, there was no which could only affect it in the event that it means what it dispute. In all these, it was held a question for the jury does not mean, and what it, at the time, is not regarded as whether the undisputed acts were or were not negligent. If, meaning. For instance, when the Supreme Court of Pennhowever, there are cases applying the doctrine, that a dispute sylvania declared in Railroad v. Beale, 73 Penn. St. 504, that about the commission of the act or acts alleged to be negli-"the failure to stop immediately before crossing a railroad gent, takes the question of negligence to the jury, where, but for such dispute, the question would not have gone to them, or takes it to them to an extent to which, but for such dispute, it would not have gone to them—and in saying that I have found no such case, I am far from saying that none such could be found-what is the foundation of the doctrine? It is at any rate a doctrine "sui generis." It is not, in any respect like the rule, that, while what a contract is, is a question for the court if in writing, and for the jury, if not, yet it the contract is partly in writing and partly oral, it is a ques tion for the jury. This is reasonable. It should go to either court or jury; as the question what the contract is, is an indivisible one, this in such a case to be determined by two distinct kinds of evidence, each of which is ordinarily for a different tribunal. There would be no objection on principle to giving the determination to the court, just as is done with those facts which, generally for the jury, go to the court, if the finding of them is necessary to passing upon the ad mission of some particular evidence. And there can be none to the question of the contract going to the jury. It is a totality, and one the nature of which is not simply the sum of those of its parts. The most skillful formation of an opinion as to its character, from the opinions entertained by different people, of its parts, would give about as correct an idea of it as the combination of the opinions of different people as to hydrogen and oxygen would give of water Either court or jury must yield, and necessity is as philosophic a reason as can be given, notwithstanding the sneers at the "Saxon intellect" indulged in by the lovers of civil law. Neither is this doctrine like the rule that, while probable cause is generally for the court, yet if belief and X enters into it, it is for the jury. This is only equivalent to leaving the question to the jury, when the court is in doubt whether the facts are or are not sufficient to establish the existence of probable cause. This principle applies, as is well-known, to

The other way in which this doctrine may have originated is, that it is usual as well as correct to speak of the case as going to the jury. So when there is a dispute about facts, which the court declares to be negligent, it may be loosely, indeed, said that the question of negligence goes to the jury, because the argument on the case is to be made to them.

There is a fourth possible meaning of "mixed law and fact." These words may mean that when the case goes to the jury they can decide both fact and law. Very probably this meaning is never intended; I merely mention it because it strikes me as the one which the words are naturally best adapted to convey; while it is well known that such a power in the jury, in other instances, has been ably contended for. I, of course, refer to the controversy as to the right of the jury in criminal cases to pass on the whole issue and the consequent right of attorneys to argue the law before them. This controversey, more or less active since the bitter fight between Lords Camden and Mansfield, has in this country called forth such men as Story and Shaw. U. S. v. Battiste, 2 Sumn. 243; Commonweath v. Pater, 10 Metc. 263.

These words may have a fifth meaning, which would be, that it was difficult to determine whether any particular question of negligence was one for the court or one for the jury. A non-professional would unhesitatingly select this, and with the best reason. But no lawyer, it is safe to say, has ever re

R. Co., 55 Mo. 476; Norton v. Ittner et al., 56 Mo. 351; Callahan v. Warne et al., 40 Mo. 131; Sioux City & Pacific R. R. Co. v. Stout, U. S. S. C., supra; Mangan v. Brooklyn R. R., 38 N. Y. 455; Detroit & W. R. R. Co. v. Van Steinberg, 17 Michigan, 99; Patterson v. Wallace, 1 McQueen's House of Lords Cases, 748.

garded the words as conveying any such idea. With him ute or city ordinance. Karle v K. C., St. Joe & C. B. R. "the proverbial uncertainty of the law" is merely a vulgar fact, which he spurns with the wing of philosophy as he rises to the mountain peak of theory, and from thence sees the same uniformity in judicial rulings and overrulings as in the ripplies of the summer lake. Nay more, to change the figure, he not only finds each utterance, from the solo of the nisi prius judge to the chorus of the appellate court, a beautifully adapted part of one grand judicial concert, but he feels that, in every case, he can, with the prophetic ear of an artist, catch the coming melody.

A sixth meaning would be that "the existence of negligence is a fact to be proved, and for the jury to determine, where there is any competent evidence tending to prove it. But the question what constitutes that fact, in any given case, or rather what other facts and circumstances, being proved, amount to evidence of the existence of the main fact in issue, or tend to prove, it is, and must be, a question of law." Callahan v. Warne et al., 40 Mo. 131. This, as corrected by the learned judge, is of course true; but as the court has this power in every conceivable instance-for it is as fully exercised in excluding evidence, the character of which could not, under the circumstances, be determined till | it had been heard, as it is in excluding evidence which bears its character on its face-it is not likely that the peculiarity of negligence has ever been regarded as consisting in that in which it is obviously not peculiar. It will be observed, too, as illustrative of the unsatisfactory character of the term negligence, how necessary is the above self-made correction; as without it the statements would be contradictory, or "parvo discrimine aite." The second would mean, that what would be negligence would be for the court, because it would define negligence, while the jury would be restricted to finding, | not whether the facts constituted negligence, but whether they constituted the definition of negligence.,

A seventh meaning would be that whether what was proved, or attempted to be proved, could be negligence, under any circumstances, would be a question for the court; and whether it was in this particular case, would be one for the jury. This is the law as to the question of necessaries for infants, but it does not correspond with the law of negligence. It is true, that where the court declares that there is no evidence of negligence to go to the jury, it, in effect, does the same as where it declares that certain articles do not come within the larger circle of legal necessaries which is described by itself. But the court never determines that any article falls within the inner circle, the area of which is to be determined by the jury. This the court does as to negligence when it declares that the acts proved or assumed, in a particular case, are negligent.

3d. When the question is one for the jury, as it is in all other cases, the court defines negligence or declares what, in general, constitutes it.

As to the second proposition it is well known that courts are far from harmonious as to what decisions rational juries should arrive at. For instance, according to Shearman & Redfield, who cite the authorities in support of their position, "It is negligence in a carrier of passengers to allow the slightest motion of his vehicle, during the entrance or exit of a passenger, unless such motion was caused by circumstances over which he had no control, or unless he had no notice of the passenger's movement." But the court refused to declare, in Meyer v. Pacific R. R. Co., 40 Mo. 153, "that it was the duty of the conductor to stop the train when attempting to put Meyer off the car." Again in Kennayde v. Pacific R. R. Co., 45 Mo. 255, the court says: "The citizen, who on a public highway, approaches a railway track, and can neither see nor hear any indication of a moving train, is not chargeable with negligence for assuming that there is no car sufficiently near to make the crossing dangerous." While in Railroad v. Beale, 73 Penn. St. 504, Sharswood, J., says, "There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track, is not merely evidence of negligence for the jury, but negligence per se, and a question for the court." But it must suffice to say what is well known, that the state of the decisions is such as to remind one forcibly of Selden's remark about the chancellor's foot. This, of course, could scarcely be otherwise in the application of a principle which gives such scope to subjective influences. As to the third proposition nothing need be said, except that, in the class of cases where the question is as to whether ordinary care has been used, a class said by the United States Supreme Court to be "infinite in variety and extent," the part played by the court, is, if I am at all correct in the views above announced, entirely insignificant; and the question of negligence is not, substantially at least, "a mixed question of fact and law," at all. H. I. D'ARCY. ST. LOUIS.

Spanish Grants-Title by Adverse Possession—
The Rule in Gibson v. Chouteau.
MARY MCREE v. JOHN COPELIN ET AL.

Circuit Court of Saint Louis County, Missouri, General Term
December, 1875.

2d. The question of negligence is one for the court where the jury could not, as rational beings, decide it otherwise died at St. Louis in the year 1893, leaving several heirs, and among others a son, than as the court does; or where there is a breach of a stat

1. Presumption of Death from Seven Year's Absence.-Where an ancestor who then resided at New Orleans, a mere failure to hear of such son in St. Louis, the residence of the ancestor, for seven years after the death of such ancestor, no enquires hav

ing been m de at New Orleans, will not raise a presumption of law that the son died un

married and without issue after the lapse of seven years.

1811,

2. Confirmation of Spanish Grants-Title by Adverse Possession-Gibson v. Chouteau limited. A tract of eighty arpents in the Earriere des Noyers common fields was confirmed to one Jeanette, by the Old Board of Commissioners, November 11, under these ond set on of thea tof Congress of March 3, 187 The United States survey for Jeanette's representatives was approved March 22d, 1343. A patent issued December 10, 1361, to Jeane ie or her legal representatives." In 1842. one Steitz entered into possession of a portion of sa'd tract adversely to those then entitled as the legal representatives of Je. nette, from which time a continuous adverse possession existed unt 1 September 15, 1871, when Mary McRee, who had by various mesne conveyances acquired before the year 1850, all, or a portion of the title of Jeanette brought at avion of ejectment against the persons in possession claiming under said Steltz. Hold: () That the right created by the confirmation by the Old Board, at least from the date of approval of the United States survey in the year 1348, was not a mere right to a pa ent, but an estate in the land itself; that all it needed to make it complete was the mere for mal legal ile conferred by patent. (2) That the so-called inchoate or equitable title or estate of a confirmee without patent has all the incidents of the most absolute estate in realty, and is as completely protected by the law of this state; that a right of dower and an estate of tenancy by the curtesy may exist therein, and it may pass by de-cent and by will, and may be transferred by deed or by estoppel, and may be seized and sold on execution

in dispute. Plaintiff introduced as a witness Julia Labadie, a granddaughter of Jeanette, who testified in substance as follows: Can't tell how many children my grandmother had; heard three spoken of, one named John, another named Marie Louise, and another named Susan; all but Susan died before my grandmother died; John died leaving no children; Marie Louise died leaving a child John Baptiste Marly; my grandmother Jeanette died in 1803; I was born in 1809; what I have said about grandmother and her children I heard from my mother; my mother always said that John and Marie Louise died before my grandmother; I think my mother died in 1845; there was not much conversation between me and my mother about the children of my grandmother; my grandmother had two husbands; Valentine was the name of her last husband; she had no children by Valentine; she resided in St. Louis; Marie Louise left only one child, J. B. Marly. Plaintiff also introduced in evidence a marriage contract bearing date (3) That the rules applicable in determining the validity of a transfer of the estate of October 22, 1773, between Jeanette and Pierre Ignace dit Valena confirmee without patent, are those of the local municipal law of the state; that if by the tine, which states that the children of Jeanette "are in number law of the state an adverse possession during the period prescribed by the statute of lim- three, to-wit.: Mary Louise, John and Susan." The defendants, itations would work a transfer of an absolute fee simple estate to the adverse possessor, as bearing on the devolution of the title by descent from Jeanette, there can be no possible reason for making an exception of an adverse possession as a possible mode of transferring the estate of a confirmee without patent. (4) That by introduced a document purporting to be a will of Jeanette bearing the unquestioned law of this state, an adverse possession during the period date January 2, 1803, shortly before her death. In this will she prescribed by the statute, does not merely bar an entry, but is as effectual as a deed declares herself the widow of Valentine; that she and Valentine of conveyance to transfer the title to the adverse possessor. (5) That by the admitted adverse possession during a period of more than ten years prior to the patent of De- have no children; that of "my first marriage," "I have four cember 10,1861, whatever estate Mrs. McRee at one time may have had was transferred to children who are named Augustine, who I believe now resides at the adverse possessors, and they, and not she, at the date of the patent were the true New Orleans. Susanna, who is here personally, Marie Louise, deowners of the so-called equitable estate, created by the confirmation 10 Jeanette, and hence her legal representatives. (9) That the patent being to the "legal represen- ceased, but represented by her son, Juan Baptiste, and Ignace. deceased." The will contains further references to Augustine, Susanna and Juan Baptista, who is referred to in the latter part of the will as a granddaughter. The translation of the will, which alone is before the court, bears on its face marks of finaccuIt may be that the original is not characterized by the confusion of speaking of the same grandchild at one time as a grandSon, and at another as a granddaughter. An inventory of the effects of Jeanette, made Jan. 8, 1803, after her death, was also introduced by the defendants.

tatives" of Jeanette, the rights of the true owners of the inchoate or equitable estate are not compromised by an attempt to pass upon the deraignment of title, and therefore the adverse possessors come in under the terms of the patent as such owners, and hence as the legal representatives of Jeanette they are the patentees. (7) That the doctrine here announced does not, in the least, conflict with that of Gibson v. Chouteau, 13 Wall. 92, inasmuch as in that case, the executive officers of the

United States had passed upon the derivative title under O'Carrol-in the name of whose legal representatives the New Madrid location in question had been made-and had issued the patent to Mrs. McRee as such representative, and hence, as the case stood before the Supreme Court of the United States, the patent to Mrs. McRee had conclusively determined in her favor all matters bearing upon the deraignment of title, including adverse possession.

The facts are fully set forth in the opinion.

racy.

United States survey Nos. 1286-1289 was approved March 22, 1848.

The defendants introduced in evidence the proceedings before

Charles Gibson, for plaintiff; Glover and Shepley, Rankin and the Board of Commissioners and recorder in the matter of the Hayden, for defendants.

claim of St. Louis to commons, also U. S. survey of the commons of St. Louis, within the external lines of which the ground in controversy lies; also a lease from the city of St. Louis to Matthias Steitz, dated November 22, 1842; also a deed of the city of St. Louis to said Steitz, dated January 11, 1848, conveying the same premises absolutely. The defendants further introduced testimony showing a derivative title in themselves under Steitz by deeds of conveyance and by descent; and further, that all the title that was acquired by the inhabitants of St. Louis by virtue of the act of Congress of June 13, 1812, that of May 26, 1824, and that of January 31, 1831, became vested in the city of St. Louis prior to the lease of the city to Steitz of November 22, 1842. Steitz, in 1842, soon after the lease to himself, entered into possession of the premises sued for, and fenced the same and cultivated it, and he and those who have acquired his title have ever since, and down to the commencement of this suit, been in the actual possession of the same adversely to the plaintiff.

JONES, J.-This is an action of ejectment commenced September 15, 1871. To establish title to the premises in dispute, certain documentary evidence was introduced in behalf of plaintiff. First, the proceedings of the Old Board of Commissioners of the date of November 20, 1811, confirming to one Jeanette, under the second section of the act of Congress of March 3, 1807, a tract of 80 arpents in the Barriere des Noyers fields, and ordering" that the same he surveyed on her possession." Secondly, confirmation certifi cate No. 1289, bearing date also November 20, 1811. This certificate recited the decision of the commissioners in behalf of Jeanette as to the tract of 80 arpents, and ordered that the same " be surveyed conformable to her possession; by virtue of ten years' consecutive possession prior to the 20th of December, 1803." Also a patent bearing date December 10, 1861. This patent recited the confirmation to Jeanette by the Old Board of Commissioners, as stated above, and the issuance of the confirmation cer tificate No. 1289; and further embraced a copy of U. S. survey No. 1286-1289. It then proceeded to grant all the land within the limits of said survey to Jeanette "or her legal representatives." Jeanette died in 1803 Plaintiff claims all Jeanette's title through a The case, as it is presented to us for review, involves only two daughter named Susan Jeanette and a grandson, John Baptiste questions. One is whether the court at special term erred in its Marly, to whom, it is alleged, all her title descended under the ruling as to the presumption of the death without issue of an alfacts in evidence. Susan Jeanette conveyed to Wm. McRee iu leged absent son of Jeanette, and the descent of his title to his 1831, and John Baptiste Marly to Pierre Labadie in 1848; Pierre sister and nephew, under whom plaintiff claims. The other is as to Labadie to Mrs. Mary McRee, plaintiff, April 11, 1851. Wm. Mc- the correctness of its rulings touching the adverse possession of Ree's interest passed to the plaintiff before 1850. The facts bear- the defendants and those under whom they claim, the court having upon the devolution of the title by descent are to some extenting ruled in various forms that the adverse possession shown con

The court at special term found for the plaintiff. The defendants appealed to the general term. The cause was tried by the court without a jury.