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Pr. 221; Republic v. Oswald, 1 Dallas. 343; Com. v. Blanding, 3 Pick. 304; King v. Root, 4 Wend. 113.

6. As to the form of the action: In Hodgson v. Scarlett, the court, while refusing to decide whether, if it could be proved that the advocate acted with express malice and without reasonable and probable cause, an action might be maintained, intimated that the plaintiff could not, even in such a case, recover in an ordinary action for slander, but would have to resort to a special action on the case, alleging express malice, and the want of probable cause. 1 Starkie, 286; Fairman v. Ives, 1 B. & A., 645; Holroyd, J., in Hodgson v. Scarlett, supra. In this country it is settled that the remedy is by action on the case. But where a verdict was rendered for the plaintiff in an action of slander, the court refused to arrest the judgment, the speaking of the words and the time of the utterance having been put in issue, and found against the defendant, although from the declaration it appeared that the words were spoken in the course of a judicial proceeding.

This brief statement of the law on this subject has been suggested by a case which came before the English Court of Exchequer last month, and which shows not only that the rule, as stated above, is firmly established in that country, but that the public have either never known or have forgotten it. Its announcement, after a lapse of years, has called forth a torrent of abuse and a great deal of protest from the newspapers, that 66 a law court, which should be the home and safeguard of justice, is the only charmed spot in England where gross injustice, as far as defamation of character is concerned, may be perpetrated." The facts in this case (Lewis v. Higgins, 62 L. T. 98) were these: The plaintiff had been a solicitor in certain proceedings, in the course of which a criminal prosecution was instituted and failed. Some time after, in an argument before one of the chancelors, the defendant, an eminent equity lawyer and queen's counsel, referring to the proceedings which the plaintiff had commenced, said: "Is not that putting a pistol to a man's head? Is not that more than any highway robbery, and more than any crime of the ordinary sort for which men are transported and convicted every day before magistrates and judges?" For these and other words, defamatory of his conduct as an attorney, the plaintiff brought suit. On the trial, after the opening speech for the plaintiff, Kelly, C. B., informed the counsel that he would receive evidence only on two points; first, whether the words were spoken, and, secondly, on what occasion they were used. "I must tell the jury,” said the learned judge, "that the law of England forbids me to enter into any other questions in the case, and does not authorize them to enter into and determine upon the merits of a case, affecting the character of a member of the bar, which depends entirely upon what has been stated by him in a cause legitimately before the judge in a court of justice. This has been held to be the law, over and over again. * I think it essential that

you and the public should clearly understand that the privilege claimed by the defendant as applicable to this case is not that of counsel, but the privilege of the people of England as represented by counsel. It is essential to the well-being of the whole community that a counsel, when once engaged, should discharge his duty fearlessly, without the shadow of a shade of apprehension as to the consequences." Upon this ruling, the object of the plaintiff in bringing the suit-that of denying upon oath the truth of the charges against him-being frustrated, he accepted a nonsuit.

Yet, after all, is the privilege of an advocate, as laid down in the books, to speak as he thinks proper during the trial of a cause in which he is engaged, so great a matter as it appears at first sight? If the rule were otherwise, it would, doubtless, be inconvenient; as was said on circuit in the leading English case, the business of one assize might be taken up with the trial of actions arising at a former assize. But there are restraints more powerful than the fear of an action at law. When the Chief Baron in the last case, as a climax to his vindication of the independence of the English bar, asked, "What would become of a case between the crown and a helpless individual in some proceeding, civil or criminal, unless counsel were at liberty fearlessly to defend his client without fear of consequences," did he purposely forget one of the most celebrated of modern trials, which attracted for years the attention of the people of three continents, and filled every day, month after month, one of the halls in the very building where he was then sitting and delivering judgment? If the action of Gray's Inn and the fate of Dr. Kenealy are beneath the notice of an English judge, the result of too much "fearlessness" on the part of an eminent counselor of this city, in the notorious government prosecutions of last year, may certainly furnish an abundant answer, so far as the American lawyer is concerned, to the query of the learned judge.

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1. PRIMARY AND ANCILLARY GUARDIANSHIP — VALID PAYMENT.-Plaintiff, at the time the fund in controversy accrued to her, was an infant residing with her father in Alabama, to whom letters of guardianship were issued. For the purpose of receiving a legacy to which plaintiff was entitled in Georgia, a guardian was also appointed by the courts of that state, who, after collecting the legacy, paid it over to the father. Held, that the payment was rightfully made. An ancillary guardian of foreign appointment can not be called to account a second time for money assets of the ward, which such guardian has previously paid to the domiciliary guardian.

2. CANONS ESTABLISHED SITUS OF PROPERTY-PRI. MARY AND ANCILLARY ADMINISTRATORS.—In the kindred trust of executor or administrator the following rules are established: That the situs of chattels or movables is that of the owner; that the power and authority of the personal

representative of the decedent have no extra-territorial operation; that the representative appointed in the jurisdiction within which decedent had his last residence, is the primary or chief administrator; that other jurisdictions, within which decedent has goods or effects, may appoint administrators for the same; but such administrator, so appointed, is subordinate and ancillary to the administrator at the last residence.

3. DOMICILE OF INFANT.-The domicile of the father is the domicile of an infant child. It is not changed by the infant's temporary absence at school or elsewhere. The infant can not, of his own motion, acquire a new domicile; but it may be changed by his father.

APPEAL from Montgomery Chancery Court.
STONE, J., delivered the opinion of the court:

In Wharton's Conflict of Laws, § 559, it is said: "The state wherein a ward is domiciled, is that which, both in interest and in conscience, is charged with his protection, and it is that, therefore, which, on general principles, should nominate and direct the guardian of such ward. Hence, by the uniform practice of European continental states, the guardian appointed by such home authority has control of his ward's estate abroad as well as at home. This, however, does not prevent the appointment of special subordinate guardians to take charge of the ward's estate in remote territories." The same author, in Section 260, quotes approvingly from Sir R. Phillimore, as follows: "Whatever may be the differences in the positive laws of different states, with respect to the mode of constituting a guardian, the rule of international comity imperatively demands that a guardian duly constituted, according to the laws of the domicile of the ward, should be recognized as such by all other countries." See an able discussion of this question, Nugent v. Vetzen, 2 Eq. Cases (Law Rep.), 704.

The domicile of the father, as a general rule, is the domicile of an infant child. Prima facie, the infant's residence or domicile is that of his parent, and such it will remain during minority, in spite of his temporary absence at school or elsewhere. Nor can he, of his own motion, acquire a new domicile, since he is not a person sui juris. But his domicile may be changed by his father, if he has one." Schouler, Dom. Rel., 412; Id. 312. Gibson, C. J., in School Directors v. James, 2 Watts & Serg. 570, says: "The domicile of an infant is the domicile of his father during the father's lifetime." The same doctrine is asserted by this court, in the case of Johnson v. Copeland, 35 Ala. 521.

For general purposes, personal property is not localized-has no independent situs. It follows the residence of the owner, and, in case of his death, it is distributed according to the law of his domicile. See Parsons v. Lyman, 20 N. Y. 112; Johnson v. Copeland supra; Story Confl. of Laws, § 362; Wilkins v. Ellett, 9 Wall. 740. In the kindred trust of executor or administrator, certain canons are settled and admitted in all courts. Among these are, that the situs or residence of chattels or moveables is that of the owner; that the power and authority of the personal representative of the decedent have no extra-territorial operation, but are limited to the state or country from which such representative receives his appointment; that the representative appointed in the jurisdiction within which decedent had his last residence, is the primary or chief administration; that other jurisdictions in which decedent has goods or effects, may appoint administration of the same; but such administration, so appointed, save for certain purposes of local policy, claimed and exercised by all nations, is subordinate and ancillary to the administration of the last residence. See Wilkins v. Ellett, supra; Dawes v. Boylston, 9 Mass. 337; Jennison v. Hapgood, 10 Pick. 77; Parsons v. Lyman, supra.

There is an eminent propriety in having the personal effects of a ward in the same jurisdiction in which such ward has his or her residence. It will, as a general rule, be better cared for and administered at that place. The near relations of the ward, with whom such ward is most likely to reside, will be more watchful, than strangers would be, of the financial condition of the sureties on the guardian's bond. Many other reasons, without being here enumerated, will suggest themselves why the personal property of the ward should be under the control of the guardian, who has the custody of the ward. The case of Dorman v. Ogbourne, 16 Ala. 759, is persuasive to show that the same rule and policy, which obtain in primary and ancillary administrations, prevail between guardianship of the domicile and foreign guardianship.

The complainant, Anna P. Metcalf, nee Howard, so far as the record informs us, was always a resident of Alabama. At the time when complainant's right to the fund in controversy accrued, and ever afterwards, she resided with her father in Alabama. When he took out letters of guardianship in this state, he became domiciliary guardian of both her person and estate, of the latter, within the territorial jurisdiction of Alabama. Mrs. Lowther's guardianship in the state of Georgia was, in its nature, ancillary. Its purpose and office were to receive the pecuniary legacy of ten thousand dollars, to which complainant was entitled under the will of Mrs. Parish. Under the laws of Georgia, it was thought necessary to have such local guardian to receive the legacy from Mrs. Parish's executor, and give him a proper receipt and acquittance. This, however, did not have the effect of making Mrs. Lowther's the primary or controlling guardianship, although first in time. It still possessed only the properties of an ancillary guardianship, auxiliary to the guardianship of the domicile. When she paid over the assets to Mr. Howard, the father of complainant, having the right to her care and custody, and domiciliary guardian by rightful appointment, she only placed the fund where it rightfully belonged. See Skinner v. Frierson, 8 Ala. 915; Willis v. Willis, 16 Ala. 652; Bogle v. Bogle, 23 Ala. 544.

The courts of Alabama, in view of their own policy, can not hold such payment wrongful. In Wilkins v. Ellett, 9 Wall. 740, the domiciliary administration was in Alabama, where the intestate had his residence at the time of his death. A debtor of the estate, residing in Tennessee, had there made payment of the debt to the administrator-in-chief, taking his receipt against the claim. Subsequently, an administrator of the estate was appointed in the state of Tennessee, who brought suit against the debtor to recover the said debt. The payment to the Alabama administrator was relied on in defense. The court held the payment good, remarking: "It has long been settled, and is a principle of universal jurisprudence in all civilized nations, that the personal estate of the deceased is to be regarded, for the purposes of succession and distribution, wherever situated, as having no other locality than that of his domicile; and, if he dies intestate, the succession is governed by the law of the place where he was domiciled at the time of his decease. * The original administration, therefore, with letters taken out at the place of the domicile, is invested with the title to all the personal property of the deceased, for the purpose of collecting the effects of the estate, paying the debts, and making distribution of the residue, according to the law of the place, or directions of the will, as the case may be." It does not follow from this that the courts of Georgia, in the condition in which the record shows the guardianship of Mrs. Lowther to have been, would have made any order compelling her to pay over the fund to the home guardian.

They probably would not. In a case like this, Lary v. Craig, 30 Ala. 631, this court refused to make an order requiring a resident guardian to pay over personal assets to a guardian of foreign appointment. It becomes a very different question, however, when the attempt is made, in the courts of Alabama, to hold an ancillary guardian of foreign appointment, to account a second time for the money assets of the ward, which such guardian had previously paid to the domiciliary guardian who, all the while, has resided with his ward in the state of Alabama. The money having reached its proper destination, we hold it is rightfully there. The decree of the chancery court is affirmed.

NOTICE OF DISSOLUTION OF PARTNERSHIP.

LOVEJOY ET AL. v. SPAFFORD ET AL. Supreme Court of the United States, October Term, 1876.

To discharge a member of a firm from a claim of one who had no dealing with it prior to its dissolution, but who knew of its existence, and who were its members, it is not necessary that the latter should have received actual notice of the dissolution, or that notice should have been published in a newspaper at the place of business; it is sufficient if the notice of dissolution was so generally communicated to the business men of the vicinity, as to be likely to come to the knowlege of all.

IN ERROR to the Circuit Court of the United States for the District of Minnesota.

Mr. Justice HUNT delivered the opinion of the court: The action was by the holder of two drafts, dated September 27, 1870, drawn by J. B. Shaw upon J. B. Shaw & Co., and accepted in the name of J. B. Shaw & Co. The object of the action was to charge Lovejoy as a partner. The firm of J. B Shaw & Co. was formed on the 15th day of April, 1868; transacted a lumber business at Davenport, Ia., and continued until the 12th day of May, 1870, when it was dissolved by an instrument in writing. In fact, Lovejoy was not a member of the firm of J. B. Shaw & Co., nor was there in existence such a firm, when the drafts were accepted in its name. The acceptance in the firm-name was a fraud on the part of Shaw.

The questions arising upon the bill of exceptions grow out of the sufficiency of the notice of the dissolution of the firm, given by the retiring member. Formal notice was given to all those who had previously dealt with the firm. It does not appear whether there had been any change of signs, nor whether the firm had any external sign. No evidence was given, that notice of the dissolution was published in any newspaper, and it was proven that two daily newspapers were published in Davenport at the time of the dissolution. After that time, the business was carried on in the name of J. B. Shaw alone. Prior to the present transaction, the plaintiffs, in discounting its paper, had heard of the firm, and who were its members. They testified that they had no information of the dissolution till some time after its occurrence. The drafts in suit were given for lumber sold by the plaintiffs and by one Mead, were drawn by Shaw and accepted by him, in the name of the firm, at Read's Landing, where the lumber was sold. There was no evidence that the firm had ever had any other transaction in Eau Claire or Read's Landing. No evidence was given of the relative position of the places in question; but, from maps and gazetteers, we learn that Eau Claire is in the interior of the State of Wisconsin, and distant several hnndred miles from Davenport, in the State of Iowa. Read's Landing is not far

from Eau Claire.

The case was tried by the circuit court, upon the theory that, to discharge a member of a firm from the claim of one who had had no dealing with it prior to its dissolution, but who knew of its existence, and who were its members, it was necessary that the latter should have received actual notice of the dissolution, or that notice should have been published in a newspaper at the place of business. This doctrine was not announced in terms, but such was the result of the trial. Either of these notices was held to be sufficient; but it was held that, without one of them, the retiring member could not protect himself. In terms, the holding of the judge was, that there must be either actual notice or public notice; and it will be seen from the offers and exclusions presently to be stated, that this public notice could mean only a newspaper publication. Thus, the witness, Barnard, after testifying that he had been in business at Davenport, prior to May 12, 1870, until the time of the trial, that he had business relations with all the lumber dealers at that place, and knew them all, and that he knew of the dissolution when it occurred, was then asked whether or not it was generally known at Davenport, at the time the firm was dissolved, that such dissolution had taken place. To which the plaintiffs objected, on the ground that the same was incompetent and immaterial. Which objection was sustained, and the defendant, Lovejoy, excepted, and his exception was noted.

Defendants' counsel then asked the witness: "State whether or not it was generally known, at this time, along the river that this dissolution had taken place." To which plaintiffs made the same objection as before, and the objection was sustained, and an exception taken by defendant Lovejoy and noted. Defendants' counsel then asked the witness: "Did you, at or near the time of the dissolution, communicate the fact that it had occurred, to any persons other than the plaintiffs; and, if so, to whom, and in what manner?" To which the plaintiff's made the same objection as before; which objection was sustained, and an exception was taken and noted for defendant Lovejoy. Counsel for defendant Lovejoy stated, in connection with the questions to the witness Barnard, that he did not expect to prove actual notice of the dissolution to the plaintiffs, or to the persons who sold the lumber.

John C. Spetzler was sworn as a witness in behalf of the defendant, and testified that, in May, 1870, he was in the employment of J. B. Shaw & Co., in their yard at Davenport, as salesman; that the business was conducted after the dissolution by Shaw, in the name of J. B. Shaw. The defendant proposed to prove by the witness that the dissolution, immediately upon its occurrence, was a matter of general repute and knowledge in the city of Davenport, where the firm did business, and that all lumber dealers in Davenport were informed of it. To which plaintiffs objected, on the ground that the same was incompetent and immaterial; which cbjection was sustained. To which the defendant Lovejoy excepted, and his exception was noted. Sumner W. Farnham, not a partner, was sworn on behalf of the defendant, and testified that, in September, 1870, and before the transaction in question, he visited Eau Claire in company with J. B. Shaw; was there two or three days, and called on the lumber dealers of that place. The witness was then asked whether, on that occasion, he or Shaw gave any notice to the lumber dealers of Eau Claire of the dissolution of the firm of J. B. Shaw. If so, to whom, and in what manner? To which the plaintiffs objected, on the ground that the same was incompetent and immaterial, unless the defendant proposes to prove actual notice to plaintiffs, or to those who sold the lumber, or notice by publication in a newspaper. The objection was sustained by the court, and the defendant Lovejoy

excepted, and his exception was noted. The defendant then offered to prove by this witness that, while he and Shaw were at Eau Claire on this occasion, and before the sale of the rafts in question, the said Shaw, in the presence of the witness, notified all, or nearly all, of the lumber dealers in Eau Claire, where plaintiffs then lived and did business, and in the vicinity, that the firm of J. B. Shaw & Co. had dissolved, and that Farnham & Co. had sold out to Shaw. To which the plaintiff's objected, on the ground that the same was immaterial and incompetent, unless the defendant proposes to show actual notice to the plaintiff's, or to those who sold the lumber; which objection was sustained, and the defendant Lovejoy excepted, and his exception was noted.

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In Pratt v. Page, 32 Vt. 11, cited as an important case, it was held that, to entitle a plaintiff to recover in a case like the present, these facts must appear: 1. The claimant must have known, at the time of making his contract, that there had been a partnership. 2. That he did not then know of its dissolution. 3. That he supposed he was entering into a contract with the company when he made it. In the court below, the plaintiff recovered on the ground of want of sufficient notice of dissolution; but in the appellate court that question was not reached. In City Bank of Brooklyn v. McChesney, 20 N. Y. 240, the bank, having had previous knowledge of the existence of the firm of Dearborn & Co., of which the defendant, McChesney, was a member, discounted a note made in the firm-name; but, after the partnership was in fact dissolved, without knowledge or information on the part of the bank, it was held, there being no publication of dissolution, that the retiring partner was liable. The court makes no examination of the law, but adopts, as the basis of its judgment, the opinion of Senator Verplanck, in Vernon v. Manhattan Co., 22 Wend. 183. In that case Senator Verplanck made use of this language: Now, following out this principle, how is a person, once known as a partner, to prevent that inducement to false credit to his former associates which may arise, after the withdrawal of his funds, from the continued use of the credit which he assisted to obtain? How shall he entitle himself to be exempted from future liability on their account? The natural reply is, he must take all the means in his power to prevent such false credit being given. It is impossible for him to give direct notice of his withdrawal to every man who may have seen the name of his former firm, or have accidentally received its check or note. No man is held to impossibilities. But he does all he can do in such a case by withdrawing all the exterior indications of partnership, and giving public notice of dissolution in the manner usual in the community where he resides. He may have obtained credit for his copartnership, by making his own interest in it known through the course of trade. So far as those are concerned who have had no direct intercourse with the firm, he does all that is in his power to prevent the continuance and abuse of such credit, if he uses the same sort of means to put an end to that credit which may have caused it. But there are persons with whom he or his partners may have transacted business in the copartnership name and received credit from. To such persons he has given more than a general notice of the partnership; for he has directly or indirectly ratified the acts of the house, and confirmed the credit that may have been given, either wholly or in part, upon his own account. He knows, or has it in his power to know, who are the persons with whom such dealings have been had. Public policy, then, and natural justice alike, demand that he should give personal and special notice of the withdrawal of his responsibility to every one who had before received personal and special notice,

either by word or acts, of his actual responsibility and interest in the copartnership. Justice requires that the severance of the united credit should be made as notorious as was the union itself. This is accomplished by the rule that persons, having had particular dealings with the firm, should have particular notice of the dissolution or alteration; but that a general notice, by advertisement or otherwise, should be sufficient for those who know the firm only by general reputation." Both the senator and chancelor, and the court in McChesney's case, agree in the opinion that persons who merely take or receive for discount the paper of a firm, are not to be deemed dealers with the firm, so as to be entitled to actual notice.

In Bristol v. Sprague 8 Wend., 423, which was an action against a retired partner, upon a note made after the dissolution, Nelson, J., says: "It is well settled that one partner may bind another after dissolution of the firm, if the payee or holder of the note is not chargeable with the notice, express or constructive, of the dissolution of the partnership (6 I. R., 144; 6 Cowen, 701), and that such notice must be specially communicated to those who had been customers of the firm, and as to all others, by publication in some newspaper in the county, or in some other public and notorious manner." In Ketcham v. Clark 7 Johns. 147, Van Ness, J., said: "In England it seems to be necessary that notice should be given in a particular newspaper, the London Gazette; but we have no such usage or rule here. I think, however, we ought at least to go so far as to say that public notice must be given in a newspaper of the city or county where the partnership business was carried on; or, in some other way, public notice of the dissolution must be given. The reasonableness of it may, perhaps, become a question of fact in the particular case." Mr. Parsons, in his treatise on Partnership (p. 412, 413), gives this rule: "In respect to persons who have had dealings with the firm, it will be necessary to show either notice to them of a dissolution or actual knowledge on their part, or at least adequate means of knowledge of the fact. As to those who have not been dealers, a retiring partner can exonerate himself from liability by publishing notice of the dissolution, or by showing knowledge of the fact." He adds: "A considerable lapse of time between the retirement and the contracting of the new debt would, of course, go far to show that it was not, or should not have been contracted on the credit of the retiring partners." Mr. Justice Story, in his work on Partnership, says: The retiring partner "will not be liable to mere strangers who have no knowledge of the persons who compose the firm, for the future debts and liabilities of the firm, notwithstanding his omission to give public notice of his retirement; for it can not be truly said in such cases, that any credit is given to the retiring partner by such strangers."-§ 160. In a note he discusses the doctrine as laid down by Bell and Gow, and adheres to the rule as above announced. Mr. Watson says that to dealers actual notice must be given; as to strangers, he says: "An advertisement in the London Gazette is the most usual and advisable method of giving notice of a dissolution to the public at large." Watson on Part. 385. In his commentaries on the law of Scotland, Professor Bell, in speaking of a notice to dealers, says: "An obvious change of firm is notice; for it puts the creditor on his guard to inquire as at first. So the alteration of checks or notes, or of invoices, is good notice to creditors using those checks and invoices." As to notice to strangers, he says: "As it is impossible to give actual notice to all the world, the law seems to be satisfied with the Gazette's advertisement, accompanied by a notice in the newspaper of the place of the company's trade, or such other fair means taken, as may publish as widely as possible the fact

of dissolution." The Gazette notice he holds to be one circumstance to be left to the jury. 2 Bell's Com. 640-1. In Wardwell v. Haight 2 Barb. S. C. 549, 552, Edmunds, J., says: "The notice must be a reasonable one. It need not be in a newspaper. It may be in some other public and notorious manner. But, whether in a newspaper or otherwise, it must, so far as strangers and persons not dealers with the firm are concerned, be public and notorious, so as to put the public on its guard."

In view of these authorities we are of the opinion that the rule, adopted by the judge on the trial of this cause, was too rigid. We think it is not an absolute, inflexible rule that there must be a publication in a newspaper to protect a retiring partner. That is one of the circumstances contributing to, or forming, the general notice required. It is an important one; but it is not the only, or an indispensable one. Any means that, in the language of Mr. Bell, are fair means to publish as widely as possible the fact of dissolution, or which, in the words of Judge Edmunds, are public and notorious so as to put the public on its guard; or, in the words of Judge Nelson, notice in any other public or notorious manner; or, in the language of Mr. Verplanck, notice by advertisement or otherwise, or by withdrawing the exterior indications of partnership and giving public notice in the manner usual in the community where he resides, are means and circumstances proper to be considered on the question of notice.

When, therefore, the defendant proved that actual notice had been given to all those who had dealt with the firm; that all subsequent business was carried on in the name of the remaining partner only, thus making a marked change in the presentation of the firm, when the claimants received and obtained the draft at a distance of several hundred miles from the place where the firm did business, and there was no évidence that the firm had ever before transacted any business in that place, we think the evidence offered should not have been excluded. When the defendant offered to prove that it was generally known along the Mississippi river that the dissolution had taken place, and offered evidence showing to whom, to what extent, and in what manner notice had been given; that all the lumber dealers in Deavenport were notified and knew of the dissolution; that at Eau Claire, on the occasion of the transaction in question and before the drafts were made, notice was either given to all, or nearly all, of the lumber dealers in that place that the firm had been dissolved, we think the evidence was competent to go before the jary.

The question is not exclusively, whether the holders of the paper did in fact receive information of the dissolution. If they did, they certainly can not recover against a retired partner. But if they had no actual notice, the question is still one of duty and diligence on the part of the withdrawing partner. If he did all that the law requires, he is exempt, although the notice did not reach the holders. The district judge held peremptorily that there must be either actual notice or public notice,-in effect, that it must be through a newspaper, and excluded other evidence tending to show a public and notorious disavowal. In this we think he erred. He refused to admit evidence which would have sustained the fifth request to charge, that if the notice was so generally communicated to the business men of Eau Claire as to be likely to come to the claimants' knowledge, the jury are at liberty to find such knowledge. In this we think he erred.

Without prescribing the precise rule which should have been laid down, we are of the opinion that the errors in the rulings were of so grave a character that a new trial must be ordered. New trial ordered.

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1. NEGLIGENCE WHEN A QUESTION OF LAW.-If there is no controversy as to the facts, and from these it clearly appears what course a person of ordinary prudence would pursue under the circumstances, the question of negli gence is purely one of law; but it does not necessarily fol low, because there is no conflict in the testimony, that there is no issue which must be submitted to the jury.

2. NEGLIGENCE, WHEN A QUESTION OF FACT.-If the circumstances under which a person acted were complicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, whether he was guilty of negligence, is a question of fact for the jury.

3. THE CONTRIBUTORY NEGLIGENCE which will justify a nonsuit must have proximately contributed to the injury suffered by the plaintiff.

The defendant owned and operated a street railway, the cars of which, drawn by horses, passed along its tracks at stated intervals, only a few minutes apart. The plaintiff was employed by a gas company, and while so employed he dug a ditch, running between the two tracks of the defendant's road, and at right angles therewith. He knew that the cars passed frequently; but he did not watch them. While he was in the ditch, two or three feet from the track, and with his back toward the track, a car approached. When immediately opposite the plaintiff, the horses plunged or shied, and one of them fell into the ditch and upon the defendant, injuring him severely. He brought an action against the railway company, in which the jury found a verdict for the defendant. The instructions to the jury, and most of the facts of the case, sufficiently appear from the opinion of the court. Hamilton & Dunlap, for appellant; McKune & Welty, for respondent.

CROCKETT, J., delivered the opinion of the court:

The action is to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant's servant, and there is no contro. versy in respect to certain facts in the cause, which were established by uncontradicted evidence. These facts were, that the defendant was the owner of a line of street cars, propelled by horses, in the city of Sacramento, and operated with a double track, running easterly and westerly along K street; that the two tracks were separated by a space about five feet wide; the cars going west, passing over the track on the northerly side of the street, and those going east passing over the other track. That the cars were in the habit of passing over these tracks at short intervals, as was well known to the plaintiff, who was a laborer employed by the gas company, and, when he received the injury complained of, was engaged with another la borer in laying a gas-pipe across K street, beneath the railroad tracks; that on the southerly side of the street an open cut had been made across that side of the street northerly as far as the southerly side of the south track, beneath and across which an opening had been made sufficiently large to admit the pipe, but without disturbing the surface of the street within the track; that on the north side of this track, and in the space between the two tracks, an open cut had been made about three feet deep to receive the pipe, in which cut the plaintiff was at work, when one of the

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