§ 1037. Fall of building-Liability of lessor and lessee-Executor's liability.— A party leased a building as a store-house, which was unfit and unsafe for use as a storage warehouse, and it fell without any fault contributing to the fall on the part of the lessees or of the plaintiff. The house of the plaintiff, adjoining thereto, was injured. Held, that the lessor was liable for the injury. Boston Beef Packing Co. v. Stevens,* 12 Fed. R., 279.

§ 1038. Upon what theory the defendants were sued in their representative character, and by what rule of law their liability in such character can be sustained, was not satisfactorily shown. The question was reserved upon the trial, but no authority was adduced to change the opinion expressed by the court upon the trial, that an action cannot be maintained against an executor or trustee in his representative character for a wrongful act which was not, and could not be, committed by him in his official capacity, but which, because it was a wrongful act, was in excess of his authority. Ibid.

1039. Whoever, for his own advantage, authorizes his property to be used by another in such manner as to endanger and injure unnecessarily the property or rights of others, is answerable for the consequences. The mere fact that a third person is interposed between the owner or principal and the party injured cannot affect the responsibility of him who originates and sanctions the injury. If the wrong causing the damage arises from non-feasance or misfeasance of the lessor the party suffering damages may sue him. Ibid.

§ 1040. Liability of town officer for killing dog.— A constable in the town of Alexandria killed a dog and justified under a by-law of the corporation. The by-law authorized the constable "to kill any dog going at large within the limits of the corporation without his owner.” The plaintiff brought an action of trespass, and the jury assessed his damages to the sum of $200. A motion was made for a new trial on the ground of excessive damages. Held, that in cases of tort courts have seldom granted new trials unless the damages are so excessive as to imply gross partiality or corruption on the part of the jury. The special verdict did not find that the dog was "found going at large without his owner" within the meaning of the by-law. Held, that the defendant was not justified in shooting and killing the dog. Swan v. Bowie,* 2 Cr. C. C., 221.

§ 1041. Seizure by force - Recoupment - Damages.- Crofford lived in Mississippi, and owed a debt. An execution was levied on his slaves. A delivery bond was given, and, when forfeited, it operated as a judgment against the principal and surety. The principal removed to Arkansas, and, when the bond was forfeited, the surety went over into Arkansas, took the slaves by force out of the possession of the principal, and subjected them to a sale on execution and thus satisfied the judgment. In consequence of the wrongful abduction of the plaintiff's slaves, the cattle of the neighbors destroyed his corn and a flood in the river swept away a quanity of his wood. In an action of trespass by the principal against the surety, held, that the surety might recoup from the damages the amount of the judgment so satisfied, and that it was not erroneous to include the value of the wood and corn destroyed in the damages. And evidence of judgments held by the principal against the surety, and an agreement to extend the judgment upon the delivery bond and credit the first-mentioned judgments upon it, is admissible to rebut the mitigation of damages; also evidence that the party holding the judgment on the delivery bond was enjoined from collecting debts. McAfee v. Crofford,* 13 How., 447.

§ 1042. Destruction of property by order of city - Defense.- Where a city was about to be evacuated, and its common council passed resolutions to destroy all liquor on hand in anticipation of such evacuation, and to compensate the owners for the loss thereof, held, that the city was liable to one whose liquor was so destroyed, and it was no defense to show that a fire was raging near the whisky, which would probably have burned had it not been destroyed. Richmond v. Smith, 15 Wall., 438.

§1043. Liability of city for detention of vessel by failure to open bridge – Damages.— The Chicago river is a public navigable highway, and vessels have the right to pass up and down without unnecessary detention, But the right of navigation does not take away the right of crossing the river, and it must be considered settled that the city has the power to construct bridges for the purpose of crossing, provided the bridges are so constructed and maintained as not materially and unnecessarily to obstruct navigation. The two rights coexist, and each one must be construed with reference to the other, precisely as we qualify the right to travel along a street by the right to cross it. The navigator must yield something to the foot passenger, just as the latter must yield something to the navigator. Generally, and perhaps with reason, the navigator has the preference on the Chicago river, as he is permitted to pass at once, while foot passengers and vehicles are constantly being stopped, in the season of navigation, in their efforts to cross the bridges. Scott v. City of Chicago,* 1 Biss., 510. § 1044. The propeller S. D. Caldwell was proceeding down the Chicago river with the purpose of going to Milwaukee to carry out a contract made by it. There was considerable ice in the river, which somewl at impeded the progress of the vessel. When the vessel

reached Madison-street bridge she gave the usual notice by whistle of her approach. The bridge-tender and assistant were absent. On the return of the latter he made some efforts to open the draw, but failed owing to some snow and ice getting in between the moving and stationary part of the bridge. The bridge-tender returned two days later, and on the next day after his return succeeded in opening the bridge and the propeller passed through. But in the meantime the cold increased, and had so much strengthened the ice that, after trying several days to force her way through, the propeller relinquished her attempt to go out in that way, and a contract was made at large expense to cut the ice so as to enable her to proceed on her way. In trying to go through the ice in the river the propeller sustained considerable damage, and for this, together with the delay and the additional expense, an action was brought against the city. There was no objection made to the construction of the bridge. The main complaint on the part of the plaintiff was that proper precautions were not taken by the bridge-tender, and that the necessary assistance was not there at the time. Held, that taking into consideration the state of the weather, the ice in the river, the non-passage of vessels for some days through the bridge, the same degree of vigilance could scarcely be looked for as in the midst of the season of navigation; but that, making due allowance for this difference, there ought to have been the same exertions made as at any other time; that while it was the duty of the city to keep the bridge in a condition to be turned when steamers or vessels could pass up and down the river, still it is one of the incidents of a bridge so constructed that snow and ice may occasionally interrupt the movement, and if, by a sudden change of the weather, ice should form so as to obstruct the turning, all that could be required would be to use every reasonable effort, as soon as practicable, to remove the obstacle. Every precaution should have been taken that under the circumstances was practicable to allow the propeller to pass at once; that the question is not precisely whether those there did what they could, but rather whether there was the necessary competent assistance there at the time, and whether, if it had been there, and proper exertions made, the result would have been the same; though the cold was intense, and the evidence showed that it was with difficulty that men could work in the open air, yet what could be done ought to have been done; that on the whole it should be left to the jury whether the city authorities did all that was required of them, all that skill and diligence could effect, to accomplish what the propeller demanded, viz., the opening of the Madison-street bridge in order that she might pass down the river as soon as possible. Ibid.

§ 1045. A vessel was delayed and damaged by reason of the failure of the city authorities of Chicago to turn a bridge so as to allow the vessel to pass through. The navigation season had closed. The weather was intensely cold and the bridge could not be readily opened owing to obstructions of snow and ice. It was claimed on the part of the vessel that notice was given to the proper persons that the vessel would pass down the river on the following day. This was denied by the city, and it was contended that no such notice was given. Held, that in an action against the city for damages, the only aspect in which this fact is of importance is the bearing it may have upon the question of care and diligence of the city under the circumstances; because, if notice were actually given on the day before, it was the duty of the city authorities to take measures immediately to remove any obstacle which, upon inspection, might appear to be in the way of opening the bridge; whereas, if no notice were given, as navigation in the river was generally closed for the season, the same degree of preparation might not be expected on the part of the bridge-tender. Ibid.

§ 1046. Where the city authorities have been guilty of neglect in not opening a bridge across a navigable stream, and a vessel is frozen in, detained and damaged thereby, the measure of damages is (1) the necessary expense incurred by the vessel in cutting a passage through the ice; (2) the value in the nature of demurrage of the propeller while necessarily detained by the act of the defendant, and in such a manner as fully to indemnify the plaintiff for any loss sustained by him in consequence of such detention. (3) The damage that the propeller actually suffered through the neglect of the authorities, so far as it was the result of their fault. Ibid.

§ 1047. Compromise.- If one who is tortiously deprived of his property freely and voluntarily compounds with the wrong-doer the original tort is thereby extinguished, and cannot afterwards be made a ground of action unless there was duress or fraud practiced in obtaining the compromise. American Ins. Co. v. Johnson, Bl. & How., 27.

§ 1048. Trespass on the case.- A tort, unaccompanied by force and followed by consequential injuries, warrants an action of trespass on the case. Emigh v. Pittsburgh, etc., R. Co., 4 Biss., 114.

§ 1019. Where there is no contract, a tort unaccompanied by force, but followed by consequential injury, warrants an action on the case for damages. Ibid.

§ 1050. Practice. When the gist of the action is a breach of contract, although the form be tort, the defendant is entitled to the benefit of the same defenses that he would have had

in the other form of action; and if he be a mere servant he will not be liable unless he can be held as a party to the contract. Lighter v. Kimball, 1 Low., 211.

§ 1051. Actions of trespass on lands are classed with those actions which demand the possession of land, and with actions of waste which are local. Livingston v. Jefferson, 1 Marsh., 203; 4 Am. L. J., 78.

§ 1052. On plea of not guilty in assault and battery the plaintiff is not bound to prove that the defendant made the first assault, but he must do so to sustain the plea of son assault deStevens v. Lloyd, 1 Cr. C. C., 124.

mesne.

§ 1053. Parties.- Distinct trespassers cannot be joined in the same action. Giltner v. Gorham, 4 McL., 403.

§ 1054. For the purpose of preventing a wrong, e. g., diversion of water by tort-feasors, a court will proceed without the joinder of a non-resident joint wrong-doer. Cole S. M. Co. v. Virginia, etc., M. Co., 1 Saw., 470.

§ 1055. Evidence - Verdict. In actions of tort several wrongs or torts of a like character on different days within the time laid may be proved. Taylor v. Carpenter, 2 Woodb. & M., 1. § 1056. In cases of tort if the injury is admitted the onus probandi is cast upon the defense to show the matters of defense or justification relied upon. Steamboat Rhode Island, Olc., 511.

§ 1057. Where the issue is as to the neglect of a postmaster in transmitting a letter, evidence of the neglect of his assistant is not admissible. Dunlop v. Munroe, 7 Cr., 242.

§ 1058. In an action of tort a jury may find a part of the defendants guilty. Milne v. Huber, 3 McL., 219.

§ 1059. Miscellaneous. A tort is a wrong independent of or contradistinguished from a breach of contract. New Jersey S. N. Co. v. Merchants' Bank, 6 How., 428.

§ 1060. The law implies a corrupt motive in the perpetration of a tort by one who commits it in the departure from a known duty and in wanton violation of law. Bark Yankee v. Gallagher, McAl., 467.

§ 1061. A tort does not create a debt, and property wrongfully carried away by a creditor does not extinguish the debt in his favor. Palmer v. Burnside, 1 Woods, 179.

§ 1062. A private tort, e. g., an assault and battery, is not merged in a felony. Plummer v. Webb, 1 Ware, 77.

§ 1063. Where a tort is a continued, inseparable act, partly on land and partly at sea, the common-law courts have jurisdiction. Bark Yankee v. Gallagher, McAl., 467.

§ 1064. Where a vessel has been wrongfully attached to a pier, and during a violent storm is in danger of destroying it, the owners of the pier may, after notice to the vessel-men, cut the vessel loose without incurring liability for an injury which it may do to another pier. Dutton v. Strong, 1 Black, 31.

1065. A lottery prize obtained by false pretenses may be recovered by the managers of the lottery, and the court will not examine the question of the legality of the lottery. The defendant is also estopped by his acceptance of the prize money from denying the fact of there having been a drawing. Catts v. Phalen, 2 How., 376.

§ 1066. Where a tenant brings explosives into the tenement, which explode and damage it, this constitutes an actionable waste of the premises. Parrott v. Barney, Deady, 407.

§ 1067. The fact that a person injured by a tort was engaged in violating the Sunday laws of the state is no defense to an action by the injured party against the tort-feasor. Phila., W. & B. R. Co. v. Phila., etc., S. Co., 23 How., 216.

§ 1068. While those who instigate a military officer wrongfully to seize property and to make an arrest, and who co-operate with him in so doing, are liable jointly with him for so doing, persons who merely stand by and do not assist the officer are not liable. Berry v. Fletcher,* 1 Dill., 66.

§ 1069. Where one obtains possession of a chattel, e. g., å slave, tortiously, the owner may waive the tort and sue ex contractu for the value of the slave's services. Jones v. Buzzard, Hemp., 240.

§ 1070. A non-transferable ticket for a "continuous" passage between two stations on a railroad is not assignable, and the assignee of such a ticket attempting to ride on such ticket is a tort-feasor who may be expelled from the train on refusal to pay fare. Cody v. Central Pac. R. Co., 4 Saw., 114.

§ 1071. Every person who undertakes a business in which the public is concerned is bound by the general law of the land to conduct that business with reasonable care; and if, for want of such care in such business, another person suffer damage, the conductor of such business is liable to make good the damage. Mandeville v. Cookenderfer, 3 Cr. C. C., 257. § 1072. Misuse of property, causing damages to others, subjects the party guilty of said misuse to action of damages. Boston Beef Packing Co. v. Stevens,* 12 Fed. R., 279.

§ 1073. A jockey should not attempt to take the track ahead of another horse before his

horse is a clear length ahead of the other horse. And if he crowds the other horse, thus impeding him, or compels his jockey to hold him in or change his course to avoid a collision, it is foul riding. McKey v. Irvine,* 10 Fed. R., 725.

§ 1074. The fact that a rider, when attempting such a foul, jeopardizes himself and horse as greatly as his competitor does not justify his making the attempt. Ibid.

TOW AND TUG.

See MARITIME LAW.

TRADE-MARKS.

See PATENTS, COPYRIGHT AND TRADE-MARKS.

TRADING WITH THE ENEMY.

See WAR.

TRADITION.

See EVIDENCE.

TREASON.

See CRIMES.

TREASURY DEPARTMENT.

See GOVERNMENT.

TREASURY NOTES.

See MONEY.

TREASURY TRANSCRIPTS.

See EVIDENCE; GOVERNMENT.

TREATIES.

[See CONSTITUTION AND LAWS; CRIMES.]

SUMMARY When concluded, § 1.— Laws conflicting with treaty, § 2.— Power of congress to repeal or annul, §3.— Judicial and political powers, §§ 4, 5.— Treaty-making power, § 6.— The supreme law, § 7.- Burlingame treaty, § 8-10.

§ 1. Although it is true as a principle of international law that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature, the exchange of ratifications having a retroactive effect, confirming the treaty from its date, a different rule prevails where the treaty operates on individual rights. In such case the principle of relation does not apply to rights which were vested before the treaty was ratified. Haver v. Yaker, §§ 11, 12.

§ 2. If an act of congress should levy a duty upon imports which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, the act and not the treaty gives the rule of decision in a judicial tribunal of the United States in a case to which one rule or the other must be applied. Taylor v. Morton, §§ 13–15.

§ 3. The legislative power of congress is applicable to treaties as a part of our municipal law whenever they relate to subjects which the constitution has placed under that legislative power. Hence congress may either expressly or by antagonistic legislation repeal a treaty prescribing the duties to be levied upon a foreign import. Ibid.

§ 4. Whether a promise in a treaty has or has not been observed is a question for the political and not for the judicial department of the government. It is not for the courts to say whether or why congress has legislated in contravention of a treaty. Ibid.

§ 5. Whether or not a species of merchandise is like the product imported from Russia, within the meaning of the treaty covering duties upon Russian imports, is not a question for the judicial department of the government to decide, if the plain meaning of the act of congress upon the subject is to declare the amount of duty on such merchandise and imports, even though in violation of the terms of the treaty. Ibid.

§ 6. By article I, section 10, and article II, section 2, of the United States constitution the treaty-making power is surrendered by the states and vested in the president and senate of the United States. In re Parrott, §§ 16-34.

§ 7. By article VI of the constitution of the United States treaties made under authority of the United States are declared to be the supreme law of the land. “anything in the constitution or laws of any state to the contrary notwithstanding." Ibid.

§ 8. Article XIX of the constitution of California, which prohibits any corporation from employing, directly or indirectly, in any capacity any Chinese or Mongolians, and provides, further, that no Chinese shall be employed on any state, municipal, or other work, except in punishment for crime, and the act of February 13, 1880, to enforce it, making it a misdemeanor punishable by fine for any officer, agent, etc., of any corporation to employ Chinese or Mongolians, are null and void as being in conflict with the treaty of June 18, 1868, with China, securing to Chinese subjects residing in the United States the same privileges, immunities and exemptions in respect to travel and residence as may be enjoyed by the citizens or subjects of the most favored nation. Ibid.

§ 9. The provisions of the Burlingame treaty of June 18, 1868, between the United States and China, recognizing the rights of citizens and subjects of the two countries to migrate and emigrate from one country to the other for purposes of curiosity, trade, or as permanent residents, and insuring Chinese subjects visiting or residing in the United States the same privileges, immunities and exemptions, in respect to travel or residence, as may be enjoyed by the citizens of the most favored nations, are within the treaty-making powers conferred upon the president and senate of the United States, and therefore valid. Ibid.

§ 10. The privileges and immunities secured to the Chinese by the Burlingame treaty of June 18, 1868, include all those rights which are fundamental in free governments, and among those rights is the right to labor and pursue any lawful calling. Ibid.

[NOTES. See §§ 35-339.]

HAVER v. YAKER.

(9 Wallace, 32-35. 1869.)

Opinion by MR. JUSTICE DAVIS.

§ 11. A treaty as respects the rights of either government under it concludes and binds them from the date of its signature. The ratification retroacting confirms it from its date.

ERROR to the Court of Appeals of Kentucky.

It is undoubtedly true, as a principle of international law, that, as respects. the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date Wheaton's International Law, by Dana, 336, bottom paging.

§ 12. but, as affecting individual rights, treaties are not considered as concluded and binding until there is an exchange of ratifications.

But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character which