cases on the subject of lateral support, which engaged the English courts before the separation of this country, none has been discovered in which this doctrine has been even hinted at. In 1833, Chancellor Walworth, in dealing with a case not involving this question, made this statement, viz.: "From the recent English decisions, it appears that the party who is about to endanger the building of a neighbor by a reasonable improvement on his own land is bound to give the owner of the adjacent lot proper notice of the intended improvement." Lasala v. Holbrook, 4 Paige, 169. To support this statement he cites Peyton v. Mayor, etc., 9 Baru. & C. 725; Walters v. Pfeil, 1 Moody & M. 362, and Massey v. Goyder, 4 Car. & P. 161. All these cases were decided in 1829. I think it can be shown that this statement of Chancellor Walworth is the sole basis of the claim that the doctrine contended for is established by authority. The independent opinion of that eminent jurist would go far to establish the doctrine, but as has been seen, no opinion was called for, and none was expressed by him. Moreover the cases referred to do not support his statement. In Peyton v. Mayor, etc., Lord Tenterden, after adverting to the fact that the declaration did not charge a want of notice of taking down the house whereby the alleged injury was caused, added: "Therefore, in our opinion, the action cannot be maintained upon the want of such notice, supposing, that as matter of law, the defendants were bound to give notice beforehand; upon which point of law we are not, in this case, called upon to give any opinion." In Walters v. Pfeil the question of the obligation to give notice was not raised or mentioned. Massey 7. Goyder is the report of a trial before Chief Justice Tindal. By one count defendant was charged with excavating on his own land to the injury of plaintiff's building, without giving previous notice; by another count he was charged with negligently excavating. The question of notice was left to the jury, who found notice had been given, but upon a general finding, judgment was entered on the last count. It is plain that none of the cases justified the statement in Lasala v. Holbrook. The precise question was afterward raised. One of the counts of a declaration for injury done to a building by removal of its support on adjacent land was founded on a lack of notice. Tindal, C. J., in dealing with the case on demurrer, said: "As to the allegation that it was the duty of defendant to give notice to plaintiff of his intention to pull down his wall * * it is objected, and we think with considerable weight, that no such obligation results as an inference of law from the mere circumstance of the juxtaposition of the walls of defendant and plaintiff." Trower v. Chadwick, 3 Bing. N. C. 334. That cause was thereafter tried before the same chief justice. One of the issues was on the above-mentioned count. Damages were awarded generally. On writ of error, the Exchequer Chamber reversed the judgment. Baron Parke, delivering the unanimous judgment of the court, quoted the language of Chief Justice Tindal, above set out, and added: "We also think it impossible to say, that under such circumstances, the law imposes upon a party any duty to give his neighbor notice. We are inclined to think that the second count of the declaration has made the breach of this supposed duty a substantial ground for damage, and the probability is that the main damage did result from the want of notice, for it is obvious, that if notice had been given, the plaintiffs might have taken precautions to strengthen their vault. Inasmuch therefore as the damages are giveu generally upon the whole declaration, we think that the judgment must be arrested, and a venire de novo awarded." Chadwick v. Trower, 6 Bing. N. C. 1 (1839). Notwithstanding this unmistakable deliverauce, the statement of Chancellor Walworth, com menced and has continued to be cited as expressing

the conclusions of English courts on this subject. In the edition of the third volume of Keut's Commentaries which was published in 1840, it is stated that “if the owner of a house in a compact town finds it necessary to pull it down and remove the foundation of his building, and he gives due notice of his intention to the owner of the adjoining house, he is not answerable for the injury which the owner of that house may sustain by the operation, provided he remove his own with reasonable and ordinary care." This statement was not made in the first edition of that volume, which was published in 1828. From that fact, and from the note to the passage above quoted, it is plain that it was based upon Lasala v. Holbrook, and the English cases of 1829. The case of Chadwick v. Trower was not alluded to. After the decision of Trower v. Chudwick, Gale & Whatley, in their treatise on Easements, discussed the question of the duty to give notice, now contended for, and declared their opinion, that if the observations of Chief Justice Tindal in that case were well founded, no such duty was imposed by law. Those observations were, as we have seen, adopted and approved by the Exchequer Chamber. Subsequent authors in this country have expressed views in respect to the duty to give notice such as have been contended for, but they refer for English authority only to the cases of 1829, on which the statement in Lasala v. Holbrook had been based. The case of Chadwick v. Trower is not mentioned. They also refer to American cases as authority for the doctrine. I have not been able to find among them a single case justifying the statement. The cases generally cited are Shrieve v. Stokes, 8 B. Monr. 453; Winn v. Abeles, 35 Kans. 85, and Shafer v. Wilson, 44 Md. 268. In Shrieve v. Stokes the question of the obligation to give notice was not raised by the pleadings or the evidence. What was said by the court on the subject was incidental, and based on the supposed authority of the English cases of 1829. In Winn v. Abeles the question of duty to give notice was not involved. In Shafer v. Wilson the question of liability for want of notice was raised. The court below instructed the jury that notice was a duty. In reviewing this instruction, the court above only says that such notice would seem to be a reasonable precaution, and bases this statement on Lasala v. Holbrook. This review, in my judgment, justifies the assertion that the doctrine contended for has not the sanction of authority. In the only adjudicated case, not based on mistaken citations, the determination was against the doctrine; and although the decision does not bind us, it must have great weight as a declaration of the obligations imposed by the common law on adjoining property-owners, by a court of eminent ability. Having found no support for the contention of plaintiffs either in principle or authority, I am unwilling to join in imposing this burden on property-owners. I have devoted much consideration to this case from the sincere conviction that the rule to be promulgated will disastrously affect urban property, and without producing any practical good. A judicial determination that notice is necessary in cases such as that before us cannot prescribe the form of notice, or fix the time, or provide for constructive notice. Our determination will simply require reasonable notice, and whether in any case such notice has been given must be matter for the jury. An owner hereafter proposing to improve property so situate must give notice. Must the notice be in writing, or will verbal notice or knowledge suffice? How shall notice be given to the owner of the building if he be an infant, or non compos mentis, or non-resident? Such and other similar questions the owner, when confronted by the rule to-day promulgated, must determine according to his own view of what is reasonable, but conscious that a jury may disagree with his view and hold him liable. If the owner of the building be infant, idiot or beyond seas, it

He

to collect and comment on the facts for him. usually thinks that he knows what the facts are before the case comes on for trial. The chairman of the central council can illustrate this by his experience with the justice who was going fishing. There are judges of higher courts as well as justices of the peace (perhaps some of you may have seen them) who decline to listen to argument, forgetting that to "hear patiently" is the first duty of a judge, according to the ancient worthies. If it be asked what further qualification would you require, I would answer-none. The office in its present form has outlived its usefulness. Indeed the opponents of Darwin's doctrine of the "survival of the fittest" may find solid comfort in the fact that the justice of the peace still survives. Doubtless there are many good men who fill the places of justices in Alabama, and they reside both in the cities and in the country.

The mere mistakes of the justices do not come from evil motives, but simply from want of knowledge. The Clay county justice of the peace who sent the horse thieves to the penitentiary was amazed when he discovered that the warden would not receive them. He was convinced that they should be sent there and he thought it his duty to execute the law. The Coosa county justice of the peace who had an action of ejectment, and, with the help of his constable, turned the true tenant out of possession, was conscientious. He believed he was right. These errors are amusing, but as they are not joined with a corrupt intent, they are subjects of merriment and for appeal to or redress in another court. But it is when the office is worked as a business, for the money that can be gotten from it, without any sort of regard for the administration of justice that it requires the earnest attention of this association and of the profession.

friends jurisdiction." And this might be extended to some other courts as well as to those of the justice of the peace. 3. Care and discrimination in the choice of persons to fill the office, not allowing any one to take it who chooses to do so without any regard to character or qualification. 4. The speedy visitation of known misconduct or incapacity with removal. And there is not one of us present who has not sinned against this plain duty repeatedly. Which one of us will deny it?

If the plan adopted in Europe could be inaugurated in America it would be a long step in advance. Acting upon the principle that it is the duty of the State to administer justice for its citizens without cost to them, officers are appointed by the governing power, who are learned in the law, whose duty it is to hear the complaints of would-be litigants, sift their stories, and if a meritorious case is developed send it to a court of law for trial. But if it is unfounded, frivolous, malicious or speculative merely then they refuse to allow it to go into court.

ABSTRACTS OF VARIOUS RECENT DE

CISIONS.

RAILROADS-NEGLIGENCE - FIRES SET BY LOCOMOTIVES-REMOTE AND PROXIMATE CAUSE-EVIDENCEDAMAGES.-(1) A charge that a railroad company is required to exercise the utmost care in running through a town or village where buildings are constructed of wood, and situated so near to a railroad as to be exposed to fire that may come in large quantities from the locomotive, and especially so if at the time the wind is blowing in the direction from the engine toward the building; and that under such circumstances the company is bound to exercise a greater degree of care than when running trains in the country, where there is no property near the track, exposed to fire; and that the degree of care which is required is

flicting injury on the person or property of others-does not prescribe a greater degree of care than the circumstances stated in it called for. A charge that railroad companies are required to furnish their locomotives with spark arresters of the best mechanical

1. Justice Scoop-his arms might be blazoned thusa fox rampant-on a black ground-with a cost bill in his claws, or perhaps technically: "Party per 'fess checquy, sable and argenta fox rampant regardant sable-sable a 'fess between two foxes trippant argent."

2. Justice Grab.

3. Justice Simple-" argent an asses "head, ears pendant, erased sable."

And in conclusion, what remedy is proposed? In considering this question we are reminded of what an English writer says on the same subject. He says, in speaking of the probability of effecting a reform, that "the task imposed on the Paladin Huon by Charlemagne, as the price of his rights, was merely that he should proceed to Bagdad, enter the court of the Caliph as he sat banqueting with his emirs, cut off the head of the man who sat next to him, kiss his daughter thrice, and request as a present four of his jaw teeth, and a handful of his silver beard;" and this task is light compared with that of reforming the justice of peace. But something may be done by our profession by insisting: 1. That the sessions of the Justice Courts should be regular and public, as far as practicable. This was the evident design of section 3,300 of the Code. 2. To use the words of the English writer whom I have just quoted, "the abolition of private

is not erroneous. The objection urged against the twentieth charge is, it affirms that the defendants were required to exercise the "tmost care," under the circumstances indicated in the charge. The authorities relied upon in support of the objection are: Whart. Neg., § 869; Frankford & B. T. Co. v. Philadelphia & T. R. Co., 54 Penn. St. 345; Railroad Co. v. Anderson, 20 Mich. 244; Railroad Co. v. Butts, 7 Kans. 308. The first of these authorities, as far as applicable, calls for "the diligence good specialists in this department are accustomed to exercise," and for the exer* * * cise of "every precaution to prevent injury." In the Pennsylvania case the plaintiff's bridge had been constructed long before the railroad, and was destroyed by fire set out by the locomotive of a passing train. The track was about one hundred and fifty feet from one end of the bridge and three hundred feet from the other; and the nearest depot stood about four hundred yards from the bridge. The plaintiff's contention was, in so far as the case need be noticed now, that the station should not have been placed so near the bridge, and that the bridge should not have been passed by the locomotive under steam. It was shown by the testimony that an engine under ordinary headway would run six hundred feet with the steam shut off, but that stopping at the station required that steam be put on to run over defendant's bridge over the same creek that plaintiff's bridge spanned. There

was no evidence as to any unusual emission of sparks, either in quantity or size. The doctrine of the case announced, as abundantly supported by authorities adduced on both sides is, that there being in the charter of the company no prescribed limit of approach toward buildings and bridges, it could locate its road and station on such route and at such points as in the judgment of the directors would be beneficial to the interests of the corporation and the public; that in the absence of proof of a special motive to do injury, we must presume that the location was made for proper ends, and not to do injury; that the proximity of the station and of the line of the road to the plaintiff's bridge could not, in itself, be considered a ground of legal liability, but an element only in ascertaining the degree of reasonable care to be used under the circumstances; that the law, in conferring the right to use an element of danger, protects the person using it, except for an abuse of his privilege, and that in proportion to the danger to others will arise the degree of care and caution to be used in exercising the privilege; that great danger demands higher vigilance and more efficient means to secure safety; where the peril is small, less will suffice; that it is undoubtedly the duty of a railroad company using such dangerous machines, fired by intense heat and run in close proximity to our houses aud valuable buildings, to use the utmost vigilance and foresight to avoid injury; that it is the duty of those using these hazardous agencies to control them carefully, and adopt every known safeguard, and to avail themselves from time to time of every approved invention to lessen their danger to others; that questions of skill, vigilance, care and proper management in any business are necessarily questions of fact, depending upon the circumstances of each case, and are to be referred to a jury; what is care in one case may be negligence in another, where the danger is greater and more care is required; that as the degree of care has no legal standard, but is measured by the facts that arise, it is reasonable that such care must be required as it is shown is ordinarily sufficient, under similar circumstances, to avoid the danger, and secure the safety needed; and therefore that ordinary care is the only rule that can be stated by a court; and that which is ordinary care in the case of extraordinary danger would be extraordinary care in a case of ordinary danger; and that which would be ordinary care in a case of ordinary danger would be less than ordinary care in a case of extraordinary danger. Holding these views, the court said it could not controvert the proposition of the turnpike company that it is the duty of railroad companies to adopt the best precautions against danger in use; and it is not sufficient for them to exercise what, under circumstances of less risk, would be ordinary care. It was held however that the trial judge had not violated these principles in his charges. The conclusion of the court upon the point was that to hold it improper to stop at the station, and that steam must be shut off in passing by the bridge, would be to abridge the proper and ordinary use of the road; that the injury in the case did not arise from any special act of negligence, but from a customary and lawful use of the road; that such use would however not justify stopping to blow off steam through the mud valves at a common crossing, where many horses pass, or are frightened by the noise, or stopping in a high wind opposite a new house in the process of building, where the burning cinders and sparks are carried through the open door by the wind; that negligence has been defined to be the absence of care according to the circumstances, but that it had never been held that steam must be shut of in passing even in close proximity to dwellings, though many miles of railroad run within a few feet of valuable houses, mills and manufactories, and indeed, through towns and cities. The Michigan case is

one in which the plaintiff's building was destroyed by fire communicated by sparks flying from defendant's engine. The lower court, says the opinion, "charged the jury that regard must be had to the actual state of things at the time, the force and direction of the wind, dryness of the weather, and proximity of the building to the railroad; aud that what might be ordinary care on a still and wet day might not be on a windy and dry one, and when near combustible matter, the question still being what care a prudent man would exercise in precisely similar circumstances." There had been full testimony upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of the equipments as suitable to be used. This rule was held to be incorrect, the Supreme Court saying that railroad trains cannot deviate from their track, and must make schedule time, not only for purposes of business, but for consideration for human life; and that those who establish themselves in the neighborhood of railroads must know that trains are expected to run with regularity, aud if there are special risks, arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargeable to the railroad, but are incidental to the situation, and the extra care they demand devolves upon the other party, and the consequence of his not exercising it must fall upon him, because the railroad is not in fault. The Kausas decision merely decides, that where the fire escapes owing to high winds, and no negligence or want of care upon the part of the railroad company, the latter is not responsible. There is nothing in any of these authorities that requires us to hold the use of the word "utmost" to be fatal to the charge. The Pennsylvania court uses the same expression asserted here as being objectionable in the charge. Nothing need be said of the section in Wharton's work, nor of the Kansas case; and we think that the meaning of the Michigan decision is the same as that in Kansas, which is, that where there is no negligence upon the part of the railroad, it is not liable for damages attributable solely to the wind-damage which the exercise of proper care was unable to avoid. In neither of them was the locus of the injury in a village or town. In Fero v. Railroad Co., 22 N. Y. 209, the charge was that less care is required of railroad companies while running their trains in the country, where there is no property near their track, exposed to fire, than in a village, where wooden buildings are situated so near their road as to be exposed to fire from the locomotive, and, at a time when the wind is blowing in a direction from the engine toward the buildings; and that uuder such circumstances, they are bound to use the utmost care; and if, from the want of such care, fire is communicated to such buildings, and they are consumed, the company will be liable, in the absence of contributory negligence upon the part of the owners; and the ruling was affirmed by the Court of Appeals, it observing that a much higher degree of care, both in respect to the rate of speed, and the watchfulness to prevent casualties, should manifestly be required when trains are passing through or remaining stationary in the streets of a city or densely populated village; and that it was not stretching the rule unduly to say that under such circumstances the railroad company is bound to use the utmost care to guard against the damages which obviously attend such a condition. "The substance of the charge, without criticising its terms with too great nicety, is that the care must be proportioned to the danger of accidents, and that where there is great danger, there must be a corresponding degree of care." See also Longabaugh v. Railroad Co., 9 Nev. 270, 299, and Railroad Co. v. Richard

son, 91 U. S. 454, 469, 470. In view of the New York and Pennsylvania cases, we do not say and do not think there was error in the use of the word "utmost" in the twentieth charge; and there is nothing in the authorities cited by appellant, or in any falling under our notice, that is inconsistent with this conclusion. Moreover this charge distinctly affirms that the degree of care required is to be proportioned to the danger to be apprehended of inflicting injury to the person or property of others, by which we understand the judge announced the same doctrine as is announced in the opinions in the two cases referred to, which, in other words, is that the degree of care is to be measured by or according to the facts that arise, or in proportion to the danger, and with which rule the use of the word "utmost," as defining the care required in a case where circumstances are like those existing in the one at bar, is not inconsistent. We fail now to conceive a case likely to occur in the natural course of things that would call for a higher degree of care against damage by fire than the circumstances of the one before us called for. In one of these charges it is said that the engine must have the "most approved appliances" to prevent the escape of sparks; and another that a railroad company should provide engines with "modern appliances." In another, the twentythird, the view announced is that the engine must have been supplied with "a spark-arrester of the best mechanical invention and construction in general use at the time." These charges were all given at the request of the plaintiff. Instructions given at the request of the defendant are, in so far as they relate to the character of the appliances, as follows: "That it is not negligence to run an engine which emits sparks, provided the company use machinery equipped with such spark-arresters and mechanical contrivances as are the best generally known and in use in the country for the prevention of the escape of sparks, and that are approved by experienced railroad operators." That the company is only required "to avail itself of the best mechanical contrivances which had been tested and put in general use at the time of the fire for preventing the burning of the property of others, but it is not required to use every possible contrivance, although patented, and recommended in scientific "discussions;" and that the engine shall be supplied "with a sparkarrester of the best mechanical invention and construction in general use at the time," or as in still another, or fourth, charge on the subject, one "of the most approved style in general use.' The language of the twenty-third charge is excepted to as too stringent. Of the six authorities cited by counsel for appellant on this point, we have access to Whart. Neg., § 872; Frankford & B. T. Co. v. Philadelphia & T. R. Co., 54 Penn. St. 345; Steinweg v. Railway Co., 43 N. Y. 123; Jefferis v. Railroad Co., 3 Houst. 447. These authorities, taking them in their order, hold, the first, that a company cannot be required to use

the

most perfect possible contrivances to prevent the escape of sparks," and until the contrivance “ has been accepted in general use, a company cannot be charged with negligence in not adopting it; "the sec ond, that it is the duty of the company "to avail themselves from time to time of every approved invention to lessen" the danger: the third, that it should use any improvements known to practical men, and which has actually been put into practical use, but a failure to take every possible precaution which the highest scientific skill might suggest, or to adopt an untried machine or mode of construction, is not, of itself, negligence; and the fourth, that engines should be supplied "with such spark-catchers as were then in general use." The charge excepted to, considered alone, or in connection with the others, does not violate these authorities. The several instructions set forth the law correctly and in accordance with the

current of authority. (2) The proposition of law desired to be impressed upon the jury was that the defendant company was not liable for the destruction of the plaintiff's property by the fire originated through the defendant's negligence, if from the evidence, it appeared that some new independent agency intervened, and that such intervening agency caused the destruction of plaintiff's property. While as before stated we have been unable to find any evidence upon which to build the theory of "intervening cause" in this case, yet we think the fifth, second, third and fifteenth charges above, that were given, instructed the jury, as fully as was warranted by the evidence, that the defendant was not liable if plaintiff's loss was the result of any new intervening force or agency; and that it was not liable unless the plaintiff's loss was the direct, proximate and natural consequence of its negligence. We have carefully considered the great number of authorities cited by all the counsel in their briefs, besides many others suggested by those cited, and we think that the instructions given upon this feature of the case, as above quoted, are fully sustained, not only by the numerical strength of the authorities, but by the clearness and force of the reasoning therein, and to our minds, by the soundness of the principles therein enunciated. There seems to be no fixed rule by which accurately to apply the maxim causa proxima, non remota, spectatur to the circumstances of every individual case, each case necessarily depending, for the applicability of this rule, upon its own peculiar facts. But in Parsons on Contracts (vol. 3, p. 180, 7th ed.) we find the clearest and most comprehensive explanation of the maxim, and a formula for its application that will furnish a test in almost every case, in the following terse language: "Every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into his consideration." The same author (id.) says, as to the test whether a cause of damage was proximate or remote: "Did the cause alleged produce its effect without another cause intervening, or was it made operative only through and by means of this intervening cause?" In Fent v. Railway Co., 59 Ill. 349, a case almost on all fours with the one under consideration, in which a locomotive, passing through a village, threw out great quantities of unusually large cinders, and set on fire a warehouse near the track, from which the plaintiff's building was destroyed, two hundred feet distant, the weather at the time being very dry, and the wind blowing freely, Chief Justice Lawrence, rendering one of the ablest opinions upon this subject we have seen, in which many authorities are reviewed, says: "We believe there is no other just or reasonable rule than to determine in every instance whether the loss was one which might reasonably have been anticipated from the careless setting of the fire, under all the circumstances surrounding the careless act at the time of its performance. If loss has been caused by the act, and it was, under the circumstances, a natural consequence which any reasonable person could have anticipated, then the act is a proximate cause, whether the house burned was the first or the tenth, the latter being so situated that its destruction is a consequence reasonably to be anticipated from setting the first on fire." Whether the injury complained of is the proximate result of the defendant's negligent act, or whether the injury was too remote from the original cause, and was brought about by some independent intervening force or agency, are questions of fact peculiarly and exclusively within the province of the jury to determine. These propositions, though not in the same forms of expression here used, are substantially embraced in the instructions above that were given; and the soundness