"Balance due from Robert H. Morrow to deceased about $2,400." All the executors made an affidavit to the inventory in the form required by law to the effect that the inventory was a true inventory of goods, chattels and credits of deceased, "and of all just claims of the deceased against me." This affidavit was signed by defendant, Robert H. Morrow, and his co-executors, and completed the inventory. Wm. D. Veeder, for applt. A new promise to take the case out of the statute need not be express. An absolute acknowledgment of the existence of a debt is sufficient, from which to infer a promise to pay. The acknowledgment or promise is not made to a stranger, but to the estate of the deceased creditor. It is not compulsory. It is unqualified and unconditional. It is sufficiently signed "by the party to be charged thereby." Sands v. Gelston, 15 Johns., 511; Bryar v. Willcocks, 3 Cow., 159; Stewart v. Foster, 18 Abb., 305. Judgment reversed and new trial granted at Circuit, costs to abide event. payment of trust moneys, which bond and mortgage are cancelled by the infants upon coming of age and learning its existence, is not such an extension of the time of pay. ment as will discharge the sureties upon his bond from liability. Appeal from judgments in favor of plaintiffs. special guardian. Defence, that the sureties were discharged by extension of time by the giving of a bond and mortgage, and satisfaction of the bond and mortgage. In August, 1871, William H. Lilleston was appointed special guardian of certain infant owners of real estate, including the plaintiffs. He was allthorized to sell the same, and gave the statute bond upon his appointment under 2 R. S., 19, § 178. The lands were sold and the guardian has failed to pay over $2,805.04, part of the proceeds found to be in his hands on an accounting, and ordered paid to the infant. The defendants were the sureties of the special guardian. The sale was made on the 18th August, 1871. On the 9th December, 1874, the made and presented their petition to plaintiffs, who were still under age, this Court, asking the Court to order an account to be made by the Special guardian, and for his removal as such special guardian. On the 22d December, 1874, an accounting was had, and the balance found due ordered paid, which payment has not been made. No guar dian was appointed for the petitioners upon this accounting. When the proceedings were again brought before the Court by the attorney who acted for the infants, an order was made by the Court, by consent, that the special guardian execute a bond and mortgage to Missouri Voss for the whole amount found to be in the special guardian's hands, to secure the same. The mortgage was to cover three lots of land in Brooklyn, and to be payable a year after date, with interest payable semi-annually. The infants knew nothing of this order or of the bond and mortgage, executed according to its provisions, and never affirmed it. It was in fact cancelled before the infant Wardell became of age. In March, 1876, the bond and mortgage having never been paid, the attorney for the infants again applied to the Supreme Court, and the attorney for the special guardian requir under it after they became severally of age. It was an order wholly unauthorized and void, and never was made good by the affirmance of the security taken under it. There was therefore no postponement of time, and no discharge of the sureties upon the statute bond. & A Judgment affirmed with costs. RAILROAD COMPANIES. MASTER AND SERVANT. SUPREME COURT OF WISCONSIN. Smith v. The Chicago, Milwaukee St. Paul RR. Co. Decided August Term, 1877. railroad company is not liable for injuries received by its employees through latent defects in machinery, where due care has been taken to provide against such defects. Appeal from order denying motion for a new trial. The plaintiff was a brakeman in the employ of the defendant company. While in the discharge of his duties on a moving train, the signal to put on brakes was given. The plaintiff obeyed the signal, and, while engaged in setting a brake, the brake-rod broke just below the cog-wheel, near the platform, and he was thrown under the cars on to the track, and sustained serious injuries. It appeared that the brake-rod was defective, and that the defect was unknown to the plaintiff. ed the cancellation of the bond and mortgage before application should be made to punish the guardian for non-payment, and it was so ordered. The mortgage and bond were cancelled by Missouri Voss under this order. She became of age in May, 1875, and this cancellation was made in March, 1876. It does not appear when after she became of age Mis souri Voss had notice of the existence of the bond and mortgage. J. L. Logan, for applt. C. L. Burnet, for respts. Held, That the defence claimed upon the part of the defendants fails. There was no new security taken by which the time of payment of trust moneys was postponed. The infants could not be bound by the order of The car was a new flat car, which the Special Term. They had no had been taken into the train but two guardian authorized to represent or three days prior to the accident, and them, and they could not be bound appeared to be a good car. by the act of an attorney appointed peared that there was an old crack or by them. Both infants repudiated flaw in the brake-rod which was unthe order and the security given | known to the plaintiff and the other It ap employees of the company, and which adopted or applied by railroad cor porations generally. There was not a particle of testimony which tended to show that the employees of the company, whose duty it was to make tests as to the sufficiency of the materials used for cars, or of inspecting and examining those purchased, were not skilful and competent to properly perform their duty; or that they had failed to perform it in respect to the cars in question; or that they had neglected to apply the usual well-known and approved tests to the iron; or had inspected the car in a careless manner. doubtless rendered the rod defective and unsafe. The plaintiff testified, in substance, that he had been in the employ of the company about four years; that he was a regular brakeman, but that it was also his business to look over and inspect the cars of his train every day and see if everything was in order, and to report and repair defects if he found any. He had not been working for a week before the 5th, but on that morning returned to his work and looked over the first eight cars from the engine, when the train started from Yomah for La Crosse. The train started immediately back from La Crosse after it was unloaded, but whether the plaintiff had time and opportunity to continue the inspection of the cars while at La Crosse is a point left in doubt upon the evidence. But in regard to the test applied to the brakerods, the defendant proved by John Baillie, its master car-builder, that the iron was purchased of the best makers, and was of the best quality; that samples of each lot were tested in the defendant's shops in the usual and most approved manner; that all materials were inspected, as well as the work done, by first-class inspectors; that he himself examined all cars purchased by the company thoroughly as to the character of the cars, the materials used, and their manu-ject not discovered by practical tests. facture; that no car was allowed to go on the road in which he could discern any defect which would make it unsafe. It appeared that the system of inspection of cars which were purchased, and the tests applied to the materials of which its cars were manufactured, were the same as those Held, That the motion for a new trial should have been granted; that there was no evidence which tended to show that the company was guilty of negligence in not applying a proper and sufficient test to the brake rod. That it was a plain duty of the company to use due care and skill in providing suitable and safe machinery for the plaintiff to operate, and to adopt or apply all reasonable and usual tests to discover any defect in the brake-rod. This is the degree of diligence which this Court has decided the law imposes on such corporations. 38 Wis., 289; 41 Id., 478. See also 49 N. Y., 521. The servant then takes the risk of the employment, and of a failure of the machinery from any latent ob And this Court, moreover, has held expressly that the negligence or misconduct of the officer or employee whose duty it is to attend to these things, and who, pro hac vice, represents the company in the matter, is the negligence or misconduct of the company itself. 36 Wis., 657. See also 53 N. Y., 549; 59 Id., 517; 110 held as security), under this policy, Mass., 210. has been received and approved by Judgment reversed and new trial the company." It further contained, ordered. Opinion by Cole, J. LIFE INSURANCE. SUICIDE. The Charter Oak Life Ins. Co., plff. in error, v. Emma R. Rodel. Decided November 19, 1877. A clause in a policy which requires that notice "of the just claim of the assured " shall be given, has reference to the claim or title to the policy and not to the justness of a cause of action thereon. If there is any evidence tending to prove that deceased was insane when he took the poison which caused his death, the question should be left to the jury. To make the insuring company liable in cases of suicide, the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act he was committing. If he was compelled to the act by an insane impulse which the reason that was left him did not enable him to resist, or if his reason ing powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. Error to the Circuit Court of the United States for the Eastern District of Missouri. amongst other conditions, the following: That in case the said Emil G. Rodel should "die by his own hand,". the policy should be void. It was conceded that he died on the 25th day of December, 1873, from the effects of poison, administered by his own hand, and this fact was set up in the answer by way of defense; but the plaintiff, in her replication, averred that he was insane at the time, and not in possession of his mental faculties, and not responsible in consequence for his act; and denied that he committed suicide or died by his own hand, within the meaning and intention of the policy. The defendant, however, in its answer, made another issue, by denying that it had ever received due notice and satisfactory evidence of the death of Rodel, and of the just claim of the plaintiff under the policy; averring that the only proof and notice it had received from the plaintiff of Rodel's death, and of her claim under the policy, had been and was to the effect that "said Emil G. Rodel committed suicide at about six This was an action on a policy of 35 o'clock P.M., Friday, December life insurance, issued by the defend-5th, 1873, in saloon on northeast corant (now plaintiff in error) upon the ner of Eleventh and Market streets, life of Emil G. Rodel, for the benefit of the plaintiff, his wife. The licy was dated June 25th, 1873, don tained a promise to pay to the plaintiff "for her sole and separate use and benefit, ninety days after due notice and satisfactory evidence of the death of the said E. G. Rodel, and of the just claim of the assured (or proof of interest, if assigned or n in the city and county of St. Louis, Mo., by taking poison," as appeared from the certificate of the coroner accompanying and making part of said notice and proof received by the defendant, without any other proof of the death or of the circumstances thereof. The plaintiff, in her replication, averred, as she had done in her petition, that due notice and proof of the death of the said Rodel, and of the claim of the plaintiff was given to the defendant, according to the terms of the policy. Held, That the notice was sufficient; that the clause in question, so far as it requires notice "of the just claim of the assured," had reference to her claim or title to the policy, and not to the justness of her cause of action thereon. Proof of death was all that was required. This was given, and does not appear to have been objected to. If the proofs also disclosed facts of which the defendant could avail itself as a defense to an action on the policy, this would not derogate from the sufficiency of the proofs as proofs of death. But whilst the disclosure of such facts might well suggest to the company the propriety of refusing payment and standing suit, it would be no bar to the bringing of a suit. Otherwise no suit could ever be brought until the parties had gone through an extra judicial investigation resulting favorably to the assured. There was some evidence on the trial of Rodel's insanity. When the plaintiff rested, the defendant moved that the jury be instructed to render a verdict for the defendant on the ground that the evidence of the plaintiff was insufficient to sustain a recovery. This motion was overruled, and an exception was taken. Held, That if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is entirely in his discretion. 8 Wall., 242; 9 Id., 197; Id., 248; 44 Mo., 383; 45 Id., 236; 49 Id., 311; Peters' C. C., 225; 1 Pet., 170; 10 Pet., 80; 14 Pet., 322; 13 How., 131; 9 Pet., 541; 2 Pet., 137. When the evidence was closed the following request and another of substantially the same purport were refused, namely: that the plaintiff could not recover if the assured knew that the act which he committed would result in death, and deliberately did it for that purpose. An additional request was made to charge that a certain letter written evidently under great excitement by Rodel to his wife on the day of his death, apprising her of his intention to destroy himself, and his reasons for so doing, based upon his pecuniary troubles and anticipated exposures, bore evidence of coolness and deliberation, and, of itself, afforded presumptive evidence of sanity at the time when it was written. This request was also refused. The judge, after stating that the burden of proving the insanity of the deceased was on the plaintiff, charged the jury as follows: "It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a |