Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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1131 NOTES ON AMERICAN REPORTS. [493-501

Necessity of force to constitute attempted rape.

Cited in State v. Smith, SO Mo. 510, holding it immaterial whether accused
entertained the idea of force or fraud; State v. Shroyer, 104 Mo. 441, 24 A. S.
R. 344, 16 S. W. 286, holding it immaterial whether the connection was to be
foy actual physical force or during the unconsciousness of sleep.

80 AM. REP. 499, KING v. JEFFERSON CITY SCHOOIi BOARD, 71
MO. 028.

Power of board to malce rnles for government of school.

Cited in Board of Education v. Purse, 101 Ga. 422, 66 A. S. R. 312, 41 L.R.A.
693, 28 S. £. 896, holding a school board has power to suspend a pupil whose
parent enters the school room during school hours and uses offensive and abusive
language in presence of school; State ex rel. Beaty v. Randall, 79 Mo. App. 226,
holding the jurisdiction of the school board to make needful rules for conduct
of pupils and of teacher to enforce such rules extends over the pupil from his
home to school and return ; Re Rebenack, 62 Mo. App. 8, holding any rule tending
to advance the objects of the law in establishing public schools must be con-
sidered reasonable and proper by the courts where not subversive of rights of
children or parents or in conflict with humanity; State ex rel. Clark v. Os-
borne, 24 Mo. App. 309, holding the courts will interfere where the rule
reaches beyond the school board's proper sphere of action; State ex rel. Stallard
V. White, 82 Ind. 278, 42 A. R. 496 (dissenting opinion), on enforcement of
proper reflations; Indianapolis v. State, 129 Ind. 14, 13 L.R.A. 147, 28 N. E.
61 (dissenting opinion), on power of school officers to make rules; State ex rel.
O'Bannon v. Cole, 220 Mo. 697, 22 L.R.A.(N.S.) 986, 119 s! W. 424, holding
that reasonableness of regulation adopted by school board is to be judged in
first instance by such board.

Cited in notes in 66 A. S. R. 334, on causes of suspension and expulsion from
school; 6 L.R.A. 634, on rules and regulations for management and conduct
of pupils in public schools; 41 L.R.A. 693, on right to exclude, suspend, or expel
pupils from school for misconduct of parent affecting child; 41 L.R.A. 697,
on right to exclude, suspend, or expel pupils for absence and tardiness.
— Of teacher to enforce rules.

Cited in Deskins y. Gose, 86 Mo. 486, 66 A. R. 387, holding a teacher may
punish for an infraction of a rule against quarreling and using profane
language on the way home from school.

Action to determine scope of school board's powers.

Cited in Kinzer v. Independent School Dist. 129 Iowa, 441, 3 L.R.A.(N.S.)
496, 106 N. W. 686, 6 A. & E. Ann. Cas. 996, holding the question whether an
inferior tribunal, such as a school board, has acted within the scope of its au-
thority may be determined in an action of mandamus or other special pro-
ceeding.

30 AM. REP. 501, DUDIiEY v. CAMBEN & P. FERRY CO. 42 N. J. li.

25, Second appeal 45 N. J. li. 368, 46 A. R. 781.
Duty and liability of ferryman.

Cited in reference notes in 87 A. D. 722, on liability of keeper of common ferry
towards goods; 91 A. D. 66, on ferrymen as common carriers; 49 A. R. 434,
Ml liability of ferryman for loss of horses in charge of another.

Cit«d in notes in 67 A. D. 212, on effect of contributory negligence of owner



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36 AM. REP.] NOTES ON AMEtaCAN REPORTS. lltt

or agent accompanying live animals on liability of carrier for their injury;
87 A. D. 721, on duties and liability of keeper of public ferry; 68 L.RJL 157, cm
what is within duty of ferryman as a common carrier; 68 L.R.A. 159, on dot?
of ferryman to maintain proper barriers to protect passengers and propertj.

Standard of care required of person injured.

Cited in Chicago, B. & Q. R. Co. ▼. Dougherty, 12 IlL App. 181^ holding it
to be ordinary care.

Se AM. REP. 505, DAVET ▼. JONES, 42 N. J. li. 28.

Ijiability of bank for negligence of correspondent.

Cited in Irwin y. Reeves Pulley Co. 20 Ind. App. 101, 48 K. E. 601 (dissentii^
opinion), at to the liability; Bank of Lindsborg v. Ober, 31 Elan. 599, 3 Pac
324, holding it liable for negligence of correspondent in failing to collect note.

Cited in note in 77 A. S. R. 627, on liability of collecting banks for their owi
negligence and that of their notaries, correspondents, and other agents.
Service of notice of dishonor.

Cited in reference note in 83 A. D. 150, on service of notice of dishonor of Dote»
and bills.
Liability of collecting agencies for attorney's default.

Cited in note in 50 A. S. R. 116, on liability of collection agencies for default
of their attorneys.

Se AM. REP. 508, McANDREWS v. COLLERD, 42 X. J. li. 189.
What constitutes nuisances.

Cited in Perrin v. Crescent City Stock Yard &i Slaughterhouse Co. 119 La.
83, 43 So. 938, 12 A. & E. Ann. Cas. 903, holding a use of property which materi-
ally interferes with the physical comfort of those who live in the neighborhood
or which impairs the enjoyment of their home may be a nuisance even though it
does not impair their health or result in driving them from their homes; Driscoll
v. Carlin, 50 N. J. L. 28, 11 Atl. 482, holding defendant who had deposited
timbers on side walk and left them there liable to one sustaining injury by fallio;
over same; Frost v. Berkeley Phosphate Co. 42 S. C. 402, 46 A. 8. R. 736, 2«
L.R.A. 693, 20 S. E. 280, holding phosphate factory generating deleterious gase*
and vapors a nuisance; McGregor v. Camden, 47 W. Va. 193, 34 S. E. 936,
holding oil and gas wells are not nuisances per se and whether they are t
nuisance to a dwelling house and its appurtenances depends upon their location,
capacity and management.

Cited in notes in 107 A. S. R. 217, on effect of care and precaution against
creation of annoyance to prevent public nuisance; 1 £. R. C. 273, on liability for
injury due to escape of anything likely to do harm.

Distinguished in Simon v. Henry, 62 N. J. L. 486, 41 Atl. 692, holding bltstiof
of rock by dynamite in construction of public sewer through highway not a
nuisance per se.
— Element of negligence.

Cited in Weston Paper Co. v. Pope, 166 Ind. 394, 66 L.R.A. 899, 67 N. R
719, holding the fact that a manufacturing company has expended a large tsom
of money in the construction of its plant, and that it conducts its buMncss in ^
careful manner and without malice, will not relieve it from liability to riptrian
owner for damages for depositing refuse into stream; Mathews v. St. Louif k



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1133 NOTES ON AMERICAN REPORTS. [501-508

S. F. R. Co. 121 Mo. 298, 25 L.R.A. 161, 24 S. VV. 691, holding statute making
railway companies liable for damages caused by fire communicated by loco-
motive irrespective of negligence, constitutional; Longtin v. Persell, 30 Mont.
306, 104 A. S. R. 723, 65 L.R.A. 655, 76 Pac. 699, 2 A. & E. Ann. Cas. 198, holding
the carrying on of blasting on premises platted as city lots, continuously for
over a year, constitutes a nuisance prima facie, irrespective of the care exer-
cised; Hickey v. McCabe, 30 R. I. 346, 27 L.R.A.(N.S.) 426, 75 Atl. 404, 19
A. & E. Ann. Cas. 783, holding property owner entitled to recover for physical
injuries to property resulting from blasting on adjoining land.
» Agency of defendant in particular injury. •

Cited in Marine Ins. Co. v. St. Louis, I. M. & S. R. Co. 41 Fed. 643, holding
one who creates or continues a nuisance is liable for any damage caused thereby,
though the immediate cause may have been the negligence of another person;
Chicago, W. & V. Coal Co. v. Glass, 34 111. App. 364, holding where the establish-
ment and maintenance of a public nuisance results in injuries to others, it is
not necessary, in order to render the person maintaining it liable, to show his
immediate and direct agency in causing the injury.
— Storage of explosives and inflammables as nuisance.

Cited in Kerbaugh v. Caldwell, 80 C. C. A. 470, 151 Fed. 194, 10 A. ft E.
Ann. Cas. 453; Kleebauer v. Western Fuse ft Explosive Co. 60 L.R.A. 377, 69
Pac. 246, — as to storing of gunpowder being nuisance per se; Kinney v. Koop-
mann, 116 Ala. 310, 67 A. S. R. 119, 37 L.R.A. 497, 22 So. 593; Rudder v. Koop-
man, 116 Ala. 332, 37 L.R.A. 489, 22 So. 601, — ^holding the storing of large
quantities of gun powder and dynamite in a wooden building located within the
corporate limits of a city or town in a thickly settled portion thereof con-
stitutes a nuisance; Flynn v. Butler, 189 Mass. 377, 75 N. E. 730, holding a
magazine for the storage of gun powder and dynamite in a populous neighborhood
may be found to be a nuisance at common law; 0*Hara v. Nelson, 71 N. J. Eq.
161, 63 Atl. 836, holding the storing and using of gasoline in large quantities,
in a frame building situate in thickly built-up portion of large city where there
are numerous frame buildings, constitutes a nuisance; Prussak v. Hutton,
30 App. Div. 66, 61 N. Y. Supp. 761, holding defendant who maintained powder
magazine liable for damages caused by explosion thereof resulting from it being
struck by lightning; McDonough v. Roat, 8 Kulp, 433, holding the business of
storing and handling dynamite constitutes a nuisance or otherwise according to
the location and surroimdings in which it is carried on; Wilson v. Phoenix
Powder Mfg. Co. 40 W. Va. 413, 62 A. S. R. 890, 21 S. E. 1035, holding a powder
mill situated on bank of river and near two railroads is a public nuisance;
Rudder ▼. Koopman, 116 Ala. 332, 37 L.R.A. 489, 22 So. 601, holding that storing
large quantities of dynamite in wooden building within corporate limits of
village, in thickly settled portion is nuisance.

Cited in reference notes in 19 A. S. R. 39, on gunpowder as a nuisance; 123
A. S. R. 679, on duty to adjoining proprietor as to storage of explosives.

Cited in notes in 36 A. R. 658, on the keeping of gun powder on private
premises as a nuisance; 67 A. S. R. 134, 136, on liability for keeping explosives;
61 A. D. 283; 42 A. S. R. 540; 16 L.R.A.(N.S.) 693,— on storage of explosives
as a nuisance; 29 L.R.A. 719, on negligence in manufacture and storage of gun-
powder, nitroglycerin, dynamite, and other explosives; 29 L.R.A. 722, on effect
of city ordinance on negligence in manufacture and storage of gunpowder, nitro-
glycerin, dynamite, and other explosives.



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8« AM. REP.] NOTES ON AMERICAN REPORTS. 1134

Municipal power over nuisance.

Cited in note in 38 L.R.A. 309, on municipal power over nuisances as to elec-
tricity, steam, and exploaives.
liC^slattve authority as defense to action for injury.

Cited in Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 56 A. R. 1, 7 AtL
432, holding act of the legislature cannot confer upon individuals or private
corporations, acting primarily for their own profit, although for a public benefit
as well, any right to deprive persons of the ordinary enjoyment of their property
except upon condition of just compensation.

Cited in notes in id L.R.A. 580, on presumption as to authority of railroad
company to commit nuisance under statutory authority to construct and maintain
road ; 1 £. R. C. 667, on right of action for damage necessarily resulting from ex-
ercise of statutory powers.

36 AM. REP. 511, COUS T. BERRY, 42 N. J. li. 308.
Conditional sales, mortgages or bailments.

Cited in The Marina, 19 Fed. 760, holding an agreement by which goods de-
livered to the vendee are to remain the property of vendor till paid for is a
conditional sale, and not a chattel mortgage within meaning of registratios
acts; Tilford v. Atlantic Match Co. 134 Fed. 924, holding a holder of boodi
of a corporation secured by a trust mortgage executed prior to corporation's
purchase of a boiler imder conditional contract of sale reserving title in seller
until price was paid, was neither a subsequent purchaser nor mortgagee within
New Jersey statute making conditional contract not recorded as provided there-
in void as to judgment creditors and subsequent purchasers and mortgagees in
good faith; Roddy v. Brick, 42 N. J. Eq. 218, 6 Atl. 806, holding if a convey-
ance resolves itself into a security, whatever be its form, it is in equity a mortr
gage; Rothholz v. Schwartz, 46 N. J. Eq. 477, 19 A. S. R. 409, 19 AtL 312. ai
to contract of sale where by express terms title is to remain in vendor; Kestner
V. Keiser Cigar Co. 4 Pa. Dist. R. 479, holding if the legal effect of the contract
is to require or permit the transferee to return the goods transferred as a com-
pliance with his contract the transaction is a bailment but if the l^al effect
is to require transferee to purchase and pay for them at all courts so that be
cannot return the goods without breach of contract the transaction is a con-
ditional sale.

Cited in reference note in 2 A. S. R. 579, on effect of contracts of sale or
lease providing for payments in instalments.

Cited in notes in 89 A. D. 127, 128, on contracts of sale or lease, providing
for payments by instalments; 40 A. R. 22, on conditional sale; 57 A. R. 572,
577, on conditional sales of chattels; 94 A. S. R. 210, 214, on distinction be-
tween absolute sales and conditional sales; 94 A. 8. R. 252, on distinction be-
tween conditional sale and lease; 12 L.R.A. 447, on sale of personal propertr
on instalment plan.
— Passing of title.

Cited in Oester v. Sitlington, 115 Mo. 247, 21 S. W. 820; Campbell v. Roddy.
44 N. J. Eq. 244, 6 A. S. R. 889, 14 Atl. 379; Hirsch v. C. W. Leatberbee
i;.umber Co. 69 N. J. L. 509, 55 Atl. 645; Call v. Seymour, 40 Ohio St.* 67a—
holding where property is delivered to purchaser upon condition that title
shall not pass until price has been paid that condition must be performed
to divest seller of his property; Hudson Trust & Sav. Inst. v. Carr-Curran Psptf



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1136 ' NOTES ON AMERICAN REPORTS. [608-518

Mills Co. 58 N. J. Eq. 50, 43 Ail. 418, holding a sale of a machine incapable
of delivery entire and payable in instalments did not pass title till erected
and paid for as agreed.

Cited in reference note in 1 A. S. R. 63, on rights of vendor under conditional
sale accompanied by delivery of possession to vendee.

Cited in note in 37 A. R. 668, on interest of vendee under conditional sale.
— Validity as against creditors.

Cited in Cooper v. Philadelphia Worsted Co. 68 N. J. Eq. 622, 60 Atl. 352;
Marvin Safe Co. v. Norton, 48 N. J. L. 410, 57 A. R. 566, 7 Atl. 418; Russell
V. Harkness, 4 Utah, 197, 7 Pac. 865; McComb v. Donald. 82 Va. 903, 5 S. E.
558, — ^holding where vendor agrees to sell vendee personal property for a price
agreed to be paid at a future time and delivers possession but expressly re-
tains title till payment it is a conditional sale, and though by parol or un-
recorded instrument it is valid as against vendees, creditors or subsequent pur-
chasers with or without notice.
Possesston as evidence of title.

Cited in notes in 12 L.R.A. 703, on possession as evidence of title to person-
alty; 25 L.R.A.(N.S.) 785, 787, on right of one leaving cliattels in another's
possession as against latter's vendees or creditors.

Se AM. REP. 518, MUHIiENBRINCK ▼. IjONG BRANCH, 42 N. J. L.

364.
Power to license as including power to tax.

Cited in State v. Glavin, 67 Conn. 29, 34 Atl. 708, holding license fee j/reatly
out of proportion to reasonable cost of issuing it was tax under name of license
and void; Johnson v. Asbury Park, 60 N. J. L. 427, 39 Atl. 693, as to power
to license not including power to tax; Littlefield v. State, 42 Neb. 223, 47 A.
S. R. 697, 28 L.R.A. 588, 60 N. W. 724; State v. Angelo, 71 N. H. 224, 51
Atl. 905; State, Clark, Prosecutor, v. New Brunswick, 43 N. J. L. 175; Mul-
cahy V. Newark, 57 N. J. L. 513, 31 Atl. 226; Blanke v. Hoboken Bd. of Health,
64 N. J. L. 42, 44 Atl. 847; Thurlow Medical Co. v. Salem, 67 N. J. L. Ill,
60 Atl. 475, — holding license fees cannot be imposed for revenue unless by express
authority of law; Fielders v. North Jersey Street R. Co. 68 N. J. L. 343, 96
A. S. R. 562, 69 L.R,A. 455, 53 Atl. 404, as to distinction between police power
and taxing power.

Annotation cited in Ex parte Gregory, 20 Tex. App. 210, 54 A. R. 516, as to
when license fee is tax.

Cited in notes in 30 L.R.A. 426, on what may be included in license fees
under general power of municipality to regulate; 30 L.R.A. 429, on necessity
that license fees imposed by municipality shall not be for revenue; 30 L.R.A.
430, on distinction between license measures for revenue and for regulation;
30 L.R.A. 437, on limitations of amount of license fees which municipality may
impose under power to restrain or prohibit; 129 Am. St. Rep. 268, on consti-
tutional limitations on power to impose license or occupation taxes.

Distinguished in State, Flanagan, Prosecutor, v. Plainfield, 44 N. J. L.
118, holding the provision in city charter granting to common council the
right to regulate and prohibit the sale of spirituous liquors and also the amount
of the assessment to be paid ^^ license, confers taxing power for city pur-
poses.



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36 AM. REP.] NOTES ON AMERICAN REPORTS. 1136

~As Judicial question.

Cited in St. Louie v. Spiegel, 75 Mo. 145; State y. Bengsch, 170 Mo. SI,
70 S. W. 710, — ^holding it competent for the courts to make examination and
•QB if, under » mere power to license, the power of taxation for reTeoue ii
exercised.
Reasonableness of license fee.

Cited in La Porta v. Hoboken Bd. of Health, 71 N. J. L. 88, 58 Ail 115,
holding license fee reasonable in particular instance.

Cited in note in 30 L.R.A. 432, on presumption of reasonableness of license
fees imposed by municipalities.

Ordinances discriminating between resident and nonresident applicants
for license.

Cited in State, Morgan, Prosecutor, v. Orange, 60 N. J. L. 389, IS Atl 240,
holding them void.

Cited in reference note in 20 A. S. R.. 403, on discrimination between resi-
dents and nonresidents in municipal ordinance.
Municipal regulation of pawnbrokers etc

Cited in notes in 14 L.R.A. 100, on validity of ordinances relating to hawk-
ing and peddling; 32 L.R.A. 116, on power of municipalities to regulate tradi
of pawnbrokers, junk dealers, and dealers in secondhand clothes.

30 AM. KEP. 523, WOOD t. SHBLDON, 48 N. J. L. 421.
Implied warranty of genuineness In salte of choses in action.

Cited in Meyer v. Richards, 163 U. S. 386, 41 L. ed. 199, 16 Sup. Ct Rep.
1148; McClure v. Central Trust Co. 165 N. Y. 108. 53 L.R.A. 163, 58 N. K.
777, — holding it applies to choses in action; Sutro v. Rhodes, 92 Cal. 117,
28 Pae. 98 (dissenting opinion); Gould v. Bourgeois, 61 K. J. L. 361, 18 AU.
64, — holding that upon sale of personal property, act of selling is affirmation by
vendor that he is owner; Liebermann ▼. Reichard, 7 North. Co. Rep. 237,
holding warranty of title in grantor implied by sale extends, also, to choses io
action.

Cited in notes in 23 £. R. C. 206, on implied warranty of title on sale of
chattel; 10 L.R.A. (N.S.) 546, on implied warranty as to usury on transfer of
paper without indorsement.
Measure of damages for breach of warranty.

Cited in Morgan v. Hendrie Bros. 34 Colo. 25, 81 Pac 700, 7 A. ft E. Ann.
Cas. 035, holding in action for breach of warranty of title in the sale of cer-
tain shares of stock in a corporation, the measure of damages is the purchtse
price paid for the stock with interest, and not the value of the stock and
dividends paid thereon.

80 AM. REP. 527, JOHNSON v. ARNWINE, 42 N. J. Ii. 451.

Foundation for adniissibiiity of secondary evidence of contents of
writing.

Cited in Gordon v. State, 48 N. J. L. 611, 7 Atl. 476, holding where it is
proven that instrument is lost it is proper to admit secondary evidence of its
contents; McManus v. Coramow, 10 N. D. 340, 87 N. W. 8; Roll v. Rea, 50 N.
J. L. 264, 12 Atl. 905; Koehler v. Schilling, 70 N. J. L. 585, 57 Atl. 154; Avery
▼. Stewart, 134 N. C. 287, 46 S. E. 519; Wiseman v. Northern P. R. Co. 20



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1137 NOTES ON AMERICAN REPORTS. [618-535

Or. 425, 23 A. S. R. 135, 26 Pac. 272,— holding party alleging loss or destruc-
tion of original must show that he has in good faith exhausted in a reasonable
degree all the sources of information and means of discovery which the nature
of the case would naturally suggest and which are accessible to him; Taliaferro
V. Rice, 47 Tex. Civ. App. 3, 103 S. W. 464, holding that strictness of proof
required to permit secondary evidence of contents of paper is proportioned to
importance of document in question as showing amount of care that would
probably be exercised in its preservation.

Cited in note in 11 E. R. C. 458, on admissibility of secondary evidence of
■contents of private document.
Questions of fact preliminary to admissibility of erldence.

Cited in Longstreth v. Korb, 64 N. J. L. 112, 44 Atl. 934, sustaining finding
of trial court as to sufficiency of proof of diligence in searching for lost letter;
Porter v. Buckley, 78 C. C. A. 138, 147 Fed. 140; Hupfer v. National Distilling
Co. 119 Wis. 417, 96 N. W. 809, — ^holding identity question for trial court and
the appellate court will not reverse its rulings unless against clear preponder-
ance of the evidence.
Conclusiveness of finding of fact by trial court.

Cited in Voorhis v. Terhune, 50 N. J. L. 147, 7 A. S. R. 781, 13 Atl. 391;
Roesel v. State, 62 N. J. L. 216, 41 Atl. 408, — holding its finding will not be set
aside unless the evidence on its face does not support the conclusion on which
the court based its judgment.
Defense to action for malicious prosecution.

Cited in note in 93 A. S. R. 461, on advice of counsel as probable cause for
malicious prosecution of civil action.

56 AM. REP. 585, SBaTH v. OXFORD IRON CO. 42 N. J. li. 4«7.
Assumption of risk.

Cited in Thomas v. Missouri P. R. Co. 109 Mo. 187, 18 S. W. 980 (dissenting
opinion), as to risks assumed by servant; Schminkey v. T. M. Sinclair & Co.
137 Iowa, 130, 114 N. W. 612, holding that servant does not assume new and
•extraordinary risks created by master after entering service, and of which he
had no knowledge.

Cited in notes in 92 A. D. 217, on risk assumed by servant; 77 A. D. 223, as
to when servant assumes risk of dangerous machinery and appliances; 87 A.
S. R. 573, on assumption of risks by employees in mine; 17 L.R.A.(N.S.) 84, on
servant's assumption of risk from latent danger or defect.

Distinguished in McDonald ▼. Standard Oil Co. 69 N. J. L. 445, 55 Atl. 289,
holding servant assumes risk of plain and obvious dangers which are apparent
to one of ordinary skill and imderstanding.
— Duty of master to provide safe place and appliances.

Cited in Smith v. Peninsular Car Works, 60 Mich. 501, 1 A. S. R. 642, 27
N. W. 662, holding master is bound to furnish servant safe place to work;
Dewey v. Detroit, G. H. & M. R. Co. 97 Mich. 329, 37 A. S. R. 348, 22 L.R.A.
292. 56 N. W. 756 (dissenting opinion), as to duty of master to furnish safe
place to work; Nickel v. Columbia Paper Stock Co. 95 Mo. App. 226, 68 S. W.
^55, holding a paper manufacturer is liable for diseases arising from infected
matter given to a paper assorter in his employ to be assorted; Nord Deutscher
Lloyd S. S. Co. v. Ingebregsten, 57 N. J. L. 400, 51 A. S. R. 604, 31 Atl. 619,
holding master must exercise reasonable care in fumishinp: suitable machinery
Am. Rep. Vol XVH.— 72.



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36 AM. REP.] NOTES ON AldERICAN REPORTS. 113S

and keeping same in repair; Carroll v. Tidewater Oil Go. 67 N. J. Li. 679, SS.
Atl. 275, holding if the injury is due to a latent defect which master eitlier
knew or in exercise of due care might have known, he is liable.

Cited in reference note in 4 A. 8. R. 615, on master's dut^ to fumi^
safest and best materials.

Cited in notes in 87 A. S. R. 661, on duty of mine owner to provide safe
machinery and appliances; 87 A. S. R. 562, on degree of care required of mine
owner to prevent injury to employees; 98 A. S. R. 302, on effect of delegation
of duty to supply, repair, or inspect machinery and appliances; 54 L.R^ 156v
on master's liability as to keeping instrumentalities in proper condition as de-
pending on subject matter of inspection or repairs neglected; 17 L.R.A.(N.S.)
107, on applicability to latent defect of rule imputing to master notice of de-
fects in original construction.

— Duty of master to warn servant of nnnsual risks.

Cited in Parkhurst v. Johnson, 50 Mich. 70, 45 A. R. 28, 15 N. W. 107, hold-
ing it duty of master to warn employee; Hysell v. Swift k Co. 78 Mo. App. 39,



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