certainly be used by some coachman. If ever the duty which is relied on here to create a liability existed, it was in that case, but the Court of Exchequer held that the public inconvenience caused by holding the defendant liable under such circumstances would be so great, that in the absence of any principle compelling them so to hold, they gave judgment for the defendant. That decision has been followed in Longmeid v. Holliday, 6 Ex. 761, and many other cases. The only doubt thrown upon it is by George v. Skivington, L. R., 5 Ex. 1, which I agree is an authority standing by itself in favor of Mr. Charles' contention. I prefer to follow Winterbottom v. Wright, rather than George v. Skivington.

CAVE, J. I am of the same opinion. Where a licensee goes upon or uses the property of his licensor for purposes in which the licensor is interested, there is a duty cast upon the licensor to see that the licensee is not exposed to unusual danger; and for a breach of that duty the licensor is responsible. The rule applies equally where the property is land or a thing to be used as the staging was here; the duty arises out of the possession and control of the thing-not out of the property in it. The only authority which can be cited in support of the plaintiff's case is George v. Skivington. I think that case is inconsistent with Winterbottom v. Wright, unless it can be distinguished, on the ground that the duty owing from the vendor to the purchaser is extended to the purchaser's wife where the article is, to the knowledge of the vendor, bought for her use. If it cannot be distinguished, I must follow Winterbottom v. Wright in preference to George v. Skivington. The case of Nelson v. Liverpool Brewery Company, 2 C. P. D. 311, is not in point; but there are some dicta in it which appear to support Mr. Charles' contention. The cases however upon which those dicta are founded are all clearly distinguishable from the present case. It lies upon the plaintiff here to show that the defendant was his liceusor; that the defendant had the possession and control of the staging, and that it was by his permission the plaintiff came to be upon it when he was injured. I think there is no evidence of these essential conditions, and therefore that the ruling was wrong, and the defendant entitled to judgment.

Rule absolute.

the act of 1876. The plaintiffs were notified of the insolvency proceedings, but did not prove their claim; and while said proceedings were pending brought this suit and attached property acquired by the defendant after the filing of the petition. The defendant claims that the contract was to be performed by payment within this State, and that the debt is barred by the discharge, it being provable against his estate in insolvency.

In one reported case at least, Scribner v. Fisher, 2 Gray, 43, the distinction contended for was attempted to be held, and the doctrine laid down that when the contract is to be performed in the State where the insolvency proceedings are had, the discharge will be held a bar, as against the creditor resident of another State. But that case has since been overruled by the Supreme Court of Massachusetts, in Kelley v. Drury, 9 Allen, 27; and most emphatically by the Supreme Court of the United States in Baldwin v. Hale, 1 Wall. 223, a case originally brought in the Circuit Court of the United States for the District of Massachusetts. It must now be regarded as settled beyond question that a discharge granted by a state court of insolvency is no bar to the claim of a uon resident creditor, who does not take part in the insolvency proceedings, or submit himself in any way to the jurisdiction of the insolvency tribunal; nor is the rule affected by the place where the contract is made or to be performed, or the forum in which it is sought to be enforced. The debt attends the person of the creditor, and unless he is within the jurisdiction of the court, no discharge granted by it can affect his rights. It is a question of citizenship, and State courts and State laws are powerless to affect the rights of non-resident creditors by any jurisdiction they may have or exercise over the person of the debtor, or by any proceedings in rem affecting the debt itself.

In the case of Baldwin v. Hale, supra, the action was on a note made and payable in Boston, and indorsed by Baldwin, the maker, to Hale,a resident of Vermont. Baldwin soon after obtained a discharge in insolvency in Massachusetts, subsequent to which Hale, who had taken no part in the insolvency proceedings, sued the note in the U. S. Circuit Court in Massachusetts; and the discharge, which expressly purported to be from all contracts payable or to be performed in Massachusetts, was relied on as a defense. The court held the

ON A NON-RESIDENT CREDITOR.

VERMONT SUPREME COURT, MARCH TERM, 1882.

BEDELL V. SCRUTON.*

A discharge granted by a State court of insolvency is no bar to the claim of a non-resident creditor, who does not take part in the insolvency proceedings, or submit himself in any way to the jurisdiction of the insolvency tribunal; nor is the rule affected by the place where the contract is made or to be performed, or the forum in which it is sought to be enforced.

ACTION for goods. The opinion states the case.

Judgment below, pro forma, for the defendant. Leslie & Rogers, for defendant.

Alex. Dunnett, for plaintiffs.

ROYCE, C. J. This case was heard upon an agreed statement of facts; from which it appears that in 1874 the defendant, then and now a resident of Vermont, contracted a debt to the plaintiffs, then and now residents of New Hampshire, for meat. In 1879 the defendant filed a petition in insolvency, and in due course obtained his discharge, under the provisions of * Appearing in 54 Vermont Reports.

the Supreme Court of the United States, Clifford, J., in the opinion, saying: "Insolvent laws of one State cannot discharge the contracts of citizens of other States; because they have no extra-territorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction in the case."

In the leading case of Ogden v. Saunders, 12 Wheat. 213, the same court say that a discharge under a State law, "as against citizens of other States, is invalid as to all contracts;" and in Cook v. Moffat, 5 How. 309, 16 a certificate of discharge under an insolvent law will not bar an action brought by a citizen of another State on a contract made with him."

This doctrine is supported by a large number of well-considered cases, and must be regarded as the settled law. Boyle v. Zacharie, 6 Pet. 348; Suydam v. Broadnax, 14 id. 75; Hawley v. Hunt, 27 Iowa, 303; Felch v. Bugbee, 48 Me. 9; Soule v. Chase, 39 N. Y. 342; Watson v. Bourne, 10 Mass. 337; Poe v. Duck, 5 Md. 1; Beers v. Rhea, 5 Tex. 349; Anderson v. Wheeler, 25 Conn. 603; Crow v. Coons, 27 Mo. 512; Beer v.

Hooper, 32 Miss. 246; McMillan v. McNeill, 4 Wheat. 209; D'Arcy v. Ketchum, 11 How. 165; 3 Am. Law. Reg. (N. S.) 462.

As the above is decisive of the rights of the parties, we are not called upon to consider the constitutional question presented by the briefs.

The pro forma judgment of the County Court is reversed, and judgment for the plaintiffs for the sum named in the agreed statement of facts, $111.70, with interest from November 4, 1874.

RIPARIAN RIGHTS OF MUNICIPALITY.

MICHIGAN SUPREME COURT, OCTOBER 4, 1882.

BACKUS V. CITY OF DETROIT.

A city has a right to build a wharf for public purposes where any street which has been duly dedicated to the public abuts upon a navigable stream.

It is unimportant to this right whether the law of the State does or does not recognize in the bank owner a title to the land under the water to the middle of the stream. Barbour & Rexford and F. A. Baker, for complain

ant.

Henry M. Duffield, City Counsellor, for defendant.

COOLEY, J. Complainant is owner of lots numbered 31 to 36, inclusive, on a subdivision of part of the Loranger farm, south of Fort street, in the city of Detroit, being part of Private Claims 338 and 474. The subdivision was made by a plat duly executed July 24, 1863, by Rosalie Loranger, then the owner, through whose conveyance complainant derives title. The lots all front on the Detroit river, and appear from the plat to be bounded upon it. Between lots 33 and 34 the plat shows a street 30 feet in width extending to the river. In front of lots 34, 35 and 36 complainant has constructed a wharf 285 feet in length, and in front of lot 33 another wharf 270 feet in length, and the space between being thirty feet in width, between the side lines of the street extended, has been excavated by complainant for a slip, and is now used by him as such. The title, if any, which remained in Rosalie Loranger to the land under water between the street lines as thus extended, complainant claims to have acquired by conveyances. The city of Detroit however claims that by the plat a way was dedicated, not to the bank merely, but "up to and over the water of the Detroit river to the channel bank thereof, or as far toward the same as should be desirable or necessary to the people of the city of Detroit," and that the dedication so made was duly accepted by the city. The charter of the city confers power upon the common council to erect, repair and regulate public wharves and docks at the ends of streets or on the property of the city, and acting in the assumed exercise of this authority the city has entered into a contract with parties named in the bill for the construction of a wharf in extension of said street to the outer line of complainant's wharves aforesaid.

This is an injunction bill to restrain the construction by the city of the wharf, for whose construction a contract has been made. The Superior Court granted the relief prayed. It does not appear what use the city proposes to make of the wharf when constructed, and the complainant contests the right to construct it for any purpose whatever. His claim is that the slip is entirely upon his own land and that the dedication terminated at the shore. If therefore the city has no authority to construct the wharf for any purpose, the decree from which the city has appealed must stand, but if the city may construct it for some purposes but not for others, we should assume that the purpose intended was lawful, and sustain the appeal.

This is an important question, for it is one that arises in many places, and considerable interests are

likely to depend upon it whenever the land affected by the supposed dedication is valuable for commercial purposes. Each party claims that the position contended for is eminently reasonable and just, and asks judgment on that basis. But each party claims also that its contention is sustained by authority.

The river Detroit is a navigable river in the Amer ican sense of that term. The site of the proposed wharf is covered by navigable water. It is not claimed that the wharf, if constructed, will in any degree obstruct or embarrass navigation, and if a private individual were owner of the bank, his right to construct the wharf would be conceded. In examining the case on authority however we are subject to some embarassment in the application of cases decided arising from the different rules which prevail in different jurisdicdictions respecting the ownership of land under navigable waters, and also in the same jurisdictions depending on the fact that the water is or is not navigable in the common law sense as distinguished from the American sense of that term. At the common law the title to all land on navigable waters below high water mark is in the sovereign; but navigable waters are only those where the tide ebbs and flows. This rule was so far modified in its adoption in some of the American colonies as to extend the bank ownership to low water mark, but in other respects it remains the law of this country at the present time. At the common law the ownership of the banks of fresh water streams, whether subject to public easements or not, extended to the middle of the stream, and if a river was capable of being navigated the riparian proprietors were at liberty to make any use of the soil under which it was not inconsistent with the public easement, subject of course to the restraining, regulating and controlling authority of the sovereign power. They might therefore erect docks on ground below the line of either high or low water, provided no State regulation forbade and no actual impediment to navigation was created. These are familiar rules. But in this country so many large rivers exist with a capacity for navigation quite beyond that of any fresh water stream known to the common law, that some eminent judicial tribunals have thought that the common-law rule of riparian ownership should be modified to adapt it to the different circumstances. They have therefore held that upon the large fresh water streams of the country, which are navigable in the popular sense of that term, the riparian ownership must be limited to the water line, whether high water line or low water line has not always been indicated, and that while the public have an easement in the use of the water beyond that line, the State itself is owner of the soil under the water. This is the rule declared or by implication recognized in Wilson v. Forbes, 2 Dev. 30; Collins v. Bentbury, 3 Ired. 277; s. c., 5 id. 118; State v. Glen, 7 Jones (N. C.), 321; Bullock v. Wilson, 2 Port. 436; Thurman v. Morrison, 14 B. Monr. 249; Thurman v. Morrison, 17 id. 367; State v. Jersey City, 25 N. J. 525; McManus v. Carmichael, 3 Iowa, 57; Haight v. Keokuk, 4 id. 199; Tomlin v. Railroad Company, 32 id. 106; Bainbridge v. Sherlock, 29 Indiana, 364; Bailey v. Railroad Company, 4 Harr. 389; Bates v. Illinois Central Railroad Company, 1 Black, 204; Barney v. Keokuk, 94 U. S. Rep. 324; Wood v. Fowler, 26 Kans. 682. Some of these cases go so far as substantially to deprive the owner of the bank of all riparian rights whatever, and to limit his privileges within the lines of his ownership, one boundary of which is held to be the river bank. Thus in Bailey v. Railroad Company, supra, it was held to be within the power of the State to permit a railroad company to construct a closed bridge across a navigable river, and that riparian proprietors above had no cause of action for the resulting injury. In Woods v. Fowler, supra, the bank proprie

tor on the Kansas river was held to have no right of action or interference as against a stranger cutting and removing the ice which formed immediately in front of him; and in Tomlin v. Railroad Company, supra, the authority of the State to permit a railroad company to take possession of the land below ordinary high-water mark on the Mississippi river, and to cut off the bank proprietor from access to it was sustained. But in any view that may be taken of the line of ownership, the cases last cited appear unsound, and in the recent case of Railway Company v. Renwick, 102 U. S. 180, the better and more sensible doctrine is laid down that the land under the water in front of a riparian proprietor, though beyond the line of private ownership, cannot be taken and appropriated to a public purpose without making compensation to the riparian proprietor.

Other courts have not considered that the greater size of the American rivers was a circumstance that should vary the rule of private ownership on navigable fresh water streams, and they have held to and applied the common-law doctrine that the line of private ownership is the middle of the stream. Adams v. Pease, 2 Conn. 481; Stuart v. Clark's Lessee, 2 Swan, 9; Gavit's Administrators v. Chambers, 3 Ohio, 496; June v. Purcell, 36 Ohio St. 396; Walker v. Board of Public Works, 16 Ohio, 540; O'Fallon v. Daggett, 4 Mo. 343; Middleton v. Pritchard, 4 Ill. 510; Canal Trustees v. Haven, 10 id. 548; Houck v. Yates, 82 id. 179; Washington Ice Company v. Shortall, 101 id. 46; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 id. 199; Knight v. Wilder, 2 Cush. 199; Canal Commissioners v. Kempshall, 26 Wend. 404; Browne v. Kennedy, 5 H. & J. 195; Jones v. Pettibone, 2 Wis. 308; Mariner v. Shulte, 13 id. 692; Arnold v. Elmore, 16 id. 509; McCullough v. Wall, 4 Rich. 68; Brown v. Chadbourne, 31 Me. 9; Rundle v. Delaware, etc., Canal, 1 Wall. Jr. 275; Hart v. Hill, 1 Whart. 124; Morgan v. Reading, 11 Miss. 366; Steamboat Magnolia v. Marshall, 39 id. 110; Minto v. Delaney, 7 Ore, 337; Moore v. Willamette, etc., Co., 7 id. 355; Schur meier v. Railroad Co., 10 Minn. 82. And these cases, so far as they declare the principle mentioned, have had the approval of this court. Lorman v. Benson, 8 Mich. 18; Ryan v. Brown, 18 id. 196; Watson v. Peters, 26 id. 517; Bay City Gas Light Company v. Industrial Works, 28 id. 182. The reason is well stated by Hosmer, J., in Adams v. Pease, 2 Conn. 481, 484, when he says that the doctrine of the common law to which we adhere, "promotes the grand ends of civil society by pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner." See Richardson v. Prentiss, 48 Mich.

If therefore according to the law as it exists and is recognized in this State, the strip of land which constitutes a street, extending to the river banks between lots 33 and 34, had been granted by Loranger to an individual, the grantee or any one claiming under him would have had an undoubted right to construct the wharf in question. As before stated, it interferes in no manner with the navigation, and the ostensible purpose in constructing it is to aid navigation, not to hinder or embarrass it. But the strip of land was not granted to an individual, but was dedicated to the use of the public as a street. The city is not the public, though it represents the public for all the purposes of control, repair and improvement of the street. The plat under the statute which was in force when it was made and recorded, passed the fee in all streets marked upon it to the county in which the city is situated (Comp. L., § 1345), but this was only in trust for street purposes. We attach no special importance to the fact that the title passed instead of a mere easement. The purpose of the statute is not to give the county the usual rights of a proprietor, but to preclude ques

tions which might arise respecting the public uses other than those of mere passage to which the land might be devoted. The common-law dedication would be sufficient to stop the owner from setting up any claim or asserting any right to the prejudice of the easement. Cincinnati v. White's Lessee, 6 Pet. 431; Hunter v. Sandy Hill, 6 Hill, 407; Dubuque v. Maloney, 9 Iowa, 450; Schurmeier v. Railroad Co., 10 Minn. 82; Brown v. Manning, 6 Ohio, 298: S. C., 27 Am. Dec. 255; Tinges v. Baltimore, 51 Md. 600, and this is all that is important here.

Complainant refers to several cases in support of his view of the case. Boston v. Lecraw, 17 How. 427, seems to us to have no important bearing. A street was laid out to high-water mark on tide water. By the law of Massachusetts the land between high water mark and low water mark was subject to grant and individual enjoyment, and it had been granted to and held by the town of Boston. From the end of the stree, at high-water mark across this private domain of the town, which indisputably the town might improve and occupy, Lecraw claimed that the public had acquired a right of passage by dedication. This was the point of contention in the case, and was decided in favor of the town. The subsequent case of Richardson v. Boston, 19 How. 263, and 24 How. 188, throws no light upon this controversy. In Kean v Stetson, 5 Pick. 492, the right to lay out a town road between high water and low-water mark on tide water was decided. The reason assigned was that the town highway would impede more or less the public right of passage in the natural highway already exist ing; and this could not be done by the towns without license from the Legislature. The same ruling had previously been made in Commonwealth v. Charlestown, 1 Pick. 180, and was sanctioned in Simmons v. Mumford, 2 R. I. 173. But no doubt under proper legislative authority the road might have been laid, though whether it could or not seems unimportant to the question whether a bank proprietor, whose ownership to the center of the river is conceded, must limit, or must be presumed to limit, his dedication to the shore line.

Prosser v. Wallero County, 18 Iowa, 327, though having more apparent relevancy, is really no more important. It must be borne in mind that in Iowa the boundary of private ownership on navigable fresh water rivers is at the bank. It was proposed to lay out a public highway across the land of a non-consenting proprietor to the river Des Moines, and the land owner contended that this would deprive him of an existing ferry landing, and enable the landing to be made use of for the ferry of a third party. On this contention he claimed large damages. The court held, first, that no ferry could be established there except under the grant of a franchise, and that he, as land owner, would have the first claim to such a grant, following as to this, Memphis v. Overton, 3 Yerg. 387 and second, that laying out a highway to the river bank would not entitle the holder of a ferry franchise, not being the owner of the land, to make the highway a ferry landing. The reason for this second conclusion was that the appropriation of the land for a highway was the appropriation for an easement over land only and not over water, that the fee remained in the original owner, and to take it for a ferry landing would be the imposition of a new burden upon it, entitling the owner to further compensation. Whether this is correct or not we do not care to question. Compare Murray v. Menefee, 20 Ark. 561. It is enough for our purposes that the decision is grounded upon the private ownership in the land subject to the easement, which of itself will sufficiently distinguish the case from this. Here the fee passed from Loranger by the dedication, and the street became subject to all the

ively, bought of the appellant, a dealer in such articles, pistol cartridges loaded with powder and ball. The boys purchased the cartridges for use in a toy pistol, and were instructed by appellaut how to make use of them in this pistol. The appellant knew the dangerous character of the cartridges, knew the hazard of using them as the boys proposed, and that the lads were unfit to be intrusted with articles of such a character. Shortly after the sale the toy pistol loaded with one of the cartridges was left by Allen and Todd lying on the floor of their home. It was picked up by their brother Bertie, who was six years of age, and discharged, the ball striking Todd and inflicting a wound of which he died.

A man who places in the hands of a child an article of a dangerous character, and one likely to cause injury to the child itself, or to others, is guilty of an actionable wrong. If a dealor should sell to a child dynamite or other explosives of a similar character, nobody would doubt that he had committed a wrong, for which he should answer in case injury resulted. So if a druggist should sell to a child a deadly drug, likely to cause harm to the child, or injury to others, he would certainly be liable to an action.

The more difficult question is whether the result is so remote from the original wrong as to bring the case within the operation of the maxim causa proxima et non et remota spectatur. It is not easy to assign limits to this rule, nor to lay down any general test which will enable courts to determine when a case is within or without the rule. It is true that general formulas

have been frequently stated, but these have carried us but little, if any, beyond the meaning conveyed by the words of the maxim itself.

The fact that some agency intervenes between the original wrong and the injury does not necessarily bring the case within the rule. On the contrary, it is firmly settled that the intervention of a third person, or of other and new direct causes, does not preclude a recovery, if the injury was the natural or probable result of the original wrong. Billman v. Indianapolis etc., R. Co., 76 Ind. 166. This doctrine remounts to the famous case of Scott v. Shepherd, 2 Black. 892, commonly known as the "Squib case." The rule goes so far as to hold that the original wrong-doer is responsible, even though the agency of a second wrong-doer intervened. This doctrine is enforced with great power by Cockburn, C. J., in Clark v. Chambers, L. R., 3 Q. B. D. 327, and is approved by the text-writers. Cooley on Torts, 70; Addison on Torts, § 12.

Although the act of the lad Bertie intervened between the original wrong and the injury, we cannot deny a recovery if we find that the injury was the natural or probable result of appellant's original wrong. In Henry v. Southern Pacific R. Co., 50 Cal. 176, it was said: "A long series of judicial decisions has defined proximate or immediate and direct damages to be the ordinary and natural results of the negligence, such as are usual and probable, and might therefore have been expected." Lord Ellenborough said in Townsend v. Walthen, 9 East, 280, that "Every man must be taken to contemplate the probable consequence of the act he does."

In Billman v. Indianapolis, etc., R. Co., supra, very many cases are cited declaring and enforcing this doctrine, and we deem it unnecessary to here repeat the citations. Under the rule declared in the cases referred to, it is clear that one who sells dangerous ex. plosives to a child, knowing that they are to be used in such a manner as to put in jeopardy the lives of others must be taken to contemplate the probable conse quences of his wrongful act. It is a probable consequence of such a sale as that charged against appellant, that the explosives may and will be so used by children among whom it is natural to expect that they will

be taken, as to injure the buyers or their associates. A strong illustration of the principle here affirmed is afforded by the case of Dixon v. Belle, 5 M. & S. 198. In that case the defendant sent a child for a loaded gun, desiring that the person who was to deliver it should take out the priming; this was done, but the gun was discharged by the imprudent act of the child, the plaintiff injured, and it was held that the defendant was liable.

In Lynch v. Nurdin, 1 Q. B. 29, the doctrine of the case cited was approved, and the same judgment has been pronounced upon it by other courts, as well as by the text-writers. Carter v. Towne, 98 Mass. 567; Whart. on Negl. 851; Sher. & Redf. (3d ed.), 586.

There is no such contributory negligence disclosed as will defeat a recovery. The age of the lads who bought the cartridges, the use the appellant knew they intended to make of them, and the fact that they did use them as instructed by him, are all important matters for consideration upon the question of contributory negligence. There are very many cases holding that the age of the child is always to be taken into account, and that what would be negligence in an adult will not be negligence in a young lad.

The Supreme Court of the United States thus states the rule: "The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case." Railroad Co. v. Stout, 17 Wall. 657. It must be the law in cases of this nature that the age of the child shall be considered, or it must follow that a vendor of the most dangerous explosives may sell them as freely to young children as to men of mature years, and this surely would be a result which no reasonable man would undertake to support.

In Potter v. Faulkner, 1 B. & S. 805, Erle, C. J., said: "The law of England, in its care for human life, requires consummate caution in the person who deals with dangerous weapons." And we think it may with equal truth be said that the common law both of England and America requires of him who deals with dangerous explosives to refrain from placing them in the hands of children of tender age. If the child is too young to know the character of the thing sold him, it is the business of the dealer to refuse to sell him articles likely to put in jeopardy his own or some other person's life.

Where one sells another a dangerous instrument, and that other is ignorant of its true character, and this the seller knows, he is responsible for injuries resulting from the negligent use of the instrument. There are many well reasoned cases, which carrying the doctrine still further, hold that one who places a dangerous thing in a position where it is likely to cause injuries to others, is liable to a child who is injured, although he may be a trespasser. Bird v. Holbrook, 4 Bing. 628: State v. Moore, 31 Conn. 479; Berge v. Gardner, 19 id. 507; Lynch v. Nurdin, supra; Kerr v. O'Connor, 63 Penn. St. 342; Keffe v. Milwaukee, etc., Co., 21 Minu. 207; Railroad Co. v. Stout, supra.

The case in judgment does not require us to carry the rule to the extent which is done in the cases cited. Here the appellant with full knowledge of the character of the cartridges, and fully informed as to the use the lads intended to make of them, placed these dangerous instruments in their hands, and he cannot now escape liability upon the ground that the boys had no right to buy or use such articles. Nor can he escape upon the ground that the loaded pistol was left lying where the young child Bertie could reach it. One who deals with children must anticipate the ordinary behavior of children. The appellant was bound to take notice of the natural conduct of lads like those to whom he sold the cartridges, and it cannot be justly said that the acts of the lads in carrying the pistol with