one, and that the other signor was
also surety. Sayles v. Sims. 552

3. A joint and several promissory
note executed by B. and by plain-
tiff was indorsed by defendant and
then negotiated, subsequently at
the request of the maker, and with-
out knowledge that plaintiff was
surety for B., defendant signed the
note as maker, adding to his sig-
nature the word "surety." Plain-
tiff paid the note and brought this
action for contribution, claiming
that the parties were in fact co-
sureties for B. Held, that it ap-
peared both by the circumstances
and the words of the contract that
defendant intended to limit his lia-
bility to that of surety for both
the other makers, and that the ac-
tion was not maintainable. Id.

4. Where the promissory note of a
firm given by one of its mem-
bers for the accommodation of the
payee, as to a bona fide holder for
value, without notice of the actual
relation of the parties, the mem-
bers of the firm are bound as
principals, and upon the death of
one of them, an action may be
maintained thereon against his
personal representatives upon
showing the insolvency of the sur-
viving partner; the rule absolving
the estate of a joint surety upon
his death is not applicable. First
Nat. Bk. v. Morgan.

593

256

Of notices for redemption of
land sold for taxes in Hamilton
county, how made.

See People ex rel. v. Sup'rs. (Mem.)
601

QUESTIONS OF LAW AND FACT.

1. It seems, that while, as a rule, the
interpretation of written instru-
ments is a question of law for the
court, yet, when the interpretation
of a promise depends upon the

1. A judgment of ouster in an action
in the nature of a quo warranto
does not conclude one who is in no
sense a party to the action, and
does not take office from or in any
way hold under the defeated party;
nor is it competent evidence against
him. People ex rel. v. Murray. 535
2. In March, 1873, defendant was
duly appointed assistant clerk of
one of the district courts of New
York city for the full term of six
years; he was removed by the
justice of that court, and in Janu-
ary, 1875, the relator was appoint-
ed by the justice. In January,
1876, the relator was removed, and
one M. appointed. Thereupon an
action in the nature of a quo war-
ranto was brought on the relation
of the relator herein against M.
A judgment was rendered there-
in, deciding that the relator was
entitled to the office, and that M.

3. Plaintiff bought a ticket of the G.
T. R. Co., at Montreal, from that
city by railroad to Troy or Albany,
thence by steamboat on the Hud-
son river to New York. His bag-
gage was checked to go by the
same route, but the railroad
agent at Troy delivered it to de-
fendant, who received and trans-
ported it over its road to New
York. It was placed in its bag-
gage-room. Three days thereaf-
ter, and as soon as plaintiff had
reason to believe that his baggage
had been carried by defendant, he
demanded it; a portmanteau
could not be found. In an action
to recover for the loss, held, that
the delivery of the baggage to de-
fendant was the wrongful act of
the railroad agent at Troy, who
was not plaintiff's agent in any

4. Plaintiff was a passenger in one
of defendant's cars; he was seated
near an open window, with his
elbow on the window-sill; while
passing over a bridge his elbow
was struck by some substance,
and his arm broken. In an action
to recover damages for the injury,
the grounds upon which negli-
gence was claimed to be imputable
to the defendant were, that the
bridge, which was a truss bridge
of wood, with the truss work
sheathed on the inside with boards,
was too narrow for the safe passage
of the car, and that it was out of
repair, some of the boards lining
the truss work being warped and
loose. These positions were con-
troverted by defendant.
It ap-
peared that some months after the
accident the bridge was removed
and replaced by an iron bridge,
the trusses of which did not come
up as high as the window-sills of
the cars, and the change of mate-
rial left more space between the
sides of the new bridge and the
track. The court charged the jury
that they might "take that fact
into consideration in determining
whether the defendants were not
guilty of negligence in allowing
the old bridge to remain." Held,
error. Dale v. Del., L. and W. R.
R. Co.
468

5. It seems that a parol license given
by the owner of land to a railroad
company to occupy the land for
its road, followed by the expendi-
ture of money in the construction
of the road is not irrevocable; it
simply justifies the entry, and is
revocable at the pleasure of the
plaintiff. Murdock v. P. P. and
C. I. R. R. Co.
579

6. An injunction is proper to re-
strain the continuous unlawful use

7. After the passage of the act of
1873 (chap. 531, Laws of 1873),
providing for the laying out of
Gravesend avenue in the county
of Kings, and authorizing the con-
struction of a railroad thereon, and
while defendant, who had acquired
the franchise to build the railroad
given by the act, was engaged in
an effort to remove the restriction
contained in said act against the
use of steam power, plaintiff, who
owned land over which said avenue
was to be constructed, and who was
desirous of having a railroad con-
structed operated by steam power,
called upon defendant 's president
and proffered his services to secure
an amendment of said act, remov-
ing the restriction. No consent
was asked for or given by plaintiff
to construct the railroad across his
land. The desired amendment
having been obtained (§ 4, chap.
307, Law of 1874), defendant, act-
ing upon the assumption that the
authority conferred by the act of
1873 authorized it to enter upon
the avenue and construct its track
without acquiring the title to, or
compensating the owners of the
lands, went on and completed that
work. In an action to restrain de-
fendant from using plaintiff's land
for its road and for damages, held,

badly out of repair that it was
dangerous to run over it, by contin-
uing in the employment after such
knowledge, he assumed the risk,
and the corporation is not liable
ld.
for the injury.

10. It is the duty of a railroad cor-
poration to remove snow and ice
from a platform over which it is
necessary for passengers to pass
in order to reach its cars; or to
take precautions by covering it
with ashes or other substance, to
protect passengers passing over it
from danger to which otherwise
they would be exposed. Weston
v. N. Y. El. R. R. Co.

595

finding of a parol license for such
use; and that the action was main-
tainable.

Id.

8. It cannot be affirmed, as matter
of law, that an engineer, while run-
ning an engine upon a railroad,
has the same opportunity as the
corporation, or whatever subord-
inates may represent it, whose
duty it is to keep the track in
repair, to ascertain and know of
defects; and in case of injury to
him, in consequence of such de-
fects, he cannot be deemed guilty
of contributory negligence, simply
because he knew that the track
was somewhat out of repair.
han v. S., B. and N. Y. R. R. Co.
585

Me-

9. It seems, however, that if the en-
gineer knew that the track was so
SICKELS.-VOL. XXVIII. 89

version of certain goods plaintiff's
evidence tended to show that it
sold the goods conditionally to O.,
who subsequently delivered them
to L., plaintiff's agent for the sale
of its goods, to be held as security
for the purchase-price. Plaintiff
ratified the act of L. L. there-
after, without the knowledge of
plaintiff, delivered to O. a receipt
for the goods, stating that they
were received in store on account
of O., at a specified rate for stor-
age; this O. transferred to H.,
upon an alleged sale of the goods
for a valuable consideration. Held,
that, as the giving of the receipt
was no part of the means needed
or used to obtain the possession
of the goods by L., the ratifica-
tion by plaintiff of his act in this
respect, was not a ratification of
the receipt; that L. was not auth--