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presumption of guilt, nor shall that circumstance be referred to by
any attorney prosecuting in the cause, nor shall the same be con-
sidered by the court or the jury before whom the trial takes place.
In view of this humane and liberal provision, with what propriety
can it be said that any statement made by him as a witness on the
stand was not voluntary? By volunteering he became as to his
testimony but a witness. To that extent he lost his character as
the party accused.

The cases referred to by counsel to establish their position on
the subject do not sustain them. Mr. Greenleaf, in section 225 of
his work on Evidence, states the doctrine upon which defendant's
counsel rely. "The manner of examination is therefore particu-
larly regarded, and if it appears that the prisoner had not been left
wholly free, and did not consider himself to be so in what he was
Vol. XXXVI — 63

Digitized by



State V. EddiDgs.

called upon to say, or did not feel himself at liberty wholly to
decline any explanation or declaration whatever, the examination
is not held to have been voluntary. In such cases not only is the
written evidence to bo rejected, but oral evidence will not be
received of what the prisoner said on that occasion. The prisoner
therefore must not be sworn. But where, being mistaken for a
witness, he was sworn, and afterward, the mistake being discovered,
the deposition was destroyed, and the prisoner, after having been
cautioned by the magistrate, subsequently made a statement, this
l:ittor statement was held admissible. It may at first view appear
unreasonable to refuse evidence of confession merely because it was
made under oath, thus having in favor of its truth one of the high-
est sanctions known in the law. But it is to be observed that none
but voluntary confessions are admissible, and that if to the perplex-
ities and embarrassments of the prisoner's situation are added the
danger of perjury and the dread of additional penalties, the confes-
mm ran scarcely be regarded as voluntary; but on the contrary it
seems to bo made under the very influences which the law is par-
ticularly solicitous to avoid. But where the prisoner, having been
examined as a witness in a prosecution against another person,
answered questions to which he might have demurred as tending
to criminate himself, and which therefore he was not bound to
answer, his answers are deemed voluntary, and as such may be sub-
sequently used against himself for all purposes, though where his
answers arc compulsory and under peril of punishment for con-
tempt they are not received."

It will bo observed that the reason for excluding a statement
sworn to by the prisoner, under the circumstances mentioned by
Prof. Greenleaf, is wholly inapplicable to the question we are con-
sidering. He offers himself here as a witness, for the very purpose
of having what ho may say considered by the jury in determining
whether he is guilty or not. He is permitted to do so by the
statute, and it might with as much plausibility be contended that
the jury before whom he testifies could not consider his testimony,
because involuntary, as that a subsequent jury could not hear and
consider evidence of what he testified to on a former trial.

We think that the prisoner had a fair trial, under extremely
liberal instructions from the court, and that no error occurred in
the trial which would justify a i*eversal of the judgment It ig
therefore affirmed, all concurring. Judgment affirmed.

Digitized by


APRIL TERM, 1880. 499

King V. Jefl^TAon City School Board.

KiNQ A'. Jeffersox City School Boabd.

(TlMo. 628.)
ScJiool« power of board to make rules,

A district school board has power to make a rule suspending any pupil absent^
without satisfactory excuse, six half days in four consecutlT'e woeks.

rpHE opinion states the case.

Jf. J. Learning, for plaintiff in error,
£J. L, King, for defendant in error.

Naptox, J. The only question in this case is whether rnle 11,
adopted and enforced by tlie board of the Jefferson City school
district, in the case of the plaintiff's son, is a legal one. The ques-
tion arose on a demurrer to defendant's answer, which set up a
breacli of this rule by plaintiff's son as a justification for his sus-
pension. The Circuit Court sustained the demurrer. The rule is as
follows: ''Any pupil absent six half days in four consecutive weeks,
without satisfactory excuse, shall be suspended from schooL" The
statute provides (K. S. 1879, § 7045), that "the board shall have
the power to make all needful rules and regulations for the organ-
ization, grading and government of the schools in their district"
It is clear that the legislature have intrusted to this school board
the duty of making regulations touching the government of the
school, of the necessity and propriety of which they are primarily
the judges. They are elected by the people of the district, and
roust be presumed to be conversant with the subject, and have no
motive to make any rules except such, as in their best judgment,
are necessary and proper to promote the objects of oi\r common-
school system.

That the judiciary might intervene in case of rules manifestly
reaching beyond their sphere of action and relating to subjects
nowise connected with the management or successful operation of
the school, was decided by this court in DriU v. Snodgrass, 66 Ma
286, and that the courts might interfere also in cases where the
rule was calculated to subvert or retard the leading object of oar
legislation on this subject, may also be conceded. But I apprehend

Digitized by



King V. Jefferson City School Bo«rd.

that the case should be a plaiu one. It is said that occasional
absences from school, on the part of the pupil, or truancy, as it is
familiarly termed, is of no importance to any one except the pupil
or his parents, and its indulgence is therefore not to be attended
with such punishment as suspension or expulsion from the school
entirely; that every child has a right to go to the public school, and
that right cannot be taken away by a rule of the board; that such
rule is subversive of the object of our system of common schools,
which was designed to throw open and leave open the doors of the
school to all children of the proper age, and give them an opportu-
nity of acquiring such education as will fit them for the after
duties of life. This is true, but this right of attending school
necessarily requires, when the school is joined, and whilst such
attendance continues, a submission to the regulations of the school.
Suppose rule 11 to be inverted, and instead of reading as it now
stands, should read thus: ''Any pupil is at liberty to go a fishing
during school hours and be absent a half day or a whole day, and
as many days as he pleases, provided he conducts himself decently
when in attendance on scliool." And this is the point to which the
argument of the plaintiff tends. The pupil, it is urged, is at
liberty to be absent when he pleases, and such absence is a matter
solely between him and his parents. But the studies in our public
schools are, I presume, classified according to the ages and advance-
ment of the scholars; and the continued or repeated absences of
one of a class not only is injurious to the absentee, but if allowed
beyond a certain point is calculated to demoralize those who attend
and derange the orderly instructions of the teacher. Taxes are not
collected to pay teachers to sit in front of empty benches or to
hunt up truant boys. Such absences, when without excuse, are the
fault of the parents, whose business it is to see that the attendance
of their child is regular, unless prevented by causes which will, of
course, be an excuse under the rule now in question. My opinion
is, that the' rule in question was clearly within the power of the
board of directors, and that it is not our business to supervise its
expediency, even if we might differ with the board on that point,
but all the judges are of opinion that the rule was a reasonable and
proper one. The judgment will therefore be reversed and ths
case remanded.

Reversed and remanded.

Digitized by







(18 y room, 25.)
Ferr^f^' negligence — eontnbtUorjf,

The plaintiff drove upon a feny boat with a span of hlgh-strang hones and
a wagon. Wishing to blaa^et the horses, he left the wagon and stepped oat
of reach of the lines. The horses becoming frightened, plunged overboard
and were drowned. The plaintiff did not require any of the persona in
charge of the boat to assist him in the care of the horses, and was not re-
quired to pay any toll. Held, that in the absence of any proof of negligence
on the part of the ferry company, they were not liable for the loss. {8e$
note, p, fm.)

ACTION of uegligence. The opinion states the case. The de«
fendant had judgment below.

Digitized by



Dudley v. CamdflD and Pbilmdelphia Ferry Company.
P. L, Voorheesy for plaintiff.
E. T. Oreeji, for defendauU-

Van Syckel, J. In April, 1877, the plaintiff drove his horses
and carriage upon the defendants' ferry boat, at Philadelphia, for
the purpose of crossing over to Camden. Before the boat left the
slip, the horses became frightened, and ran over the bow of the boat
into llie river. The horses were drowned, and the carriage and
harness damaged. This action is brought to recover compensa-
tion for the loss.

A ferryman is not chargeable, as a common carrier, for the ab-
solute safety of property retained by a passenger in his own custody
and under his own control.

In ttliite V. Winniaimviei Co., 7 Cush. 155, the plaintiff, who drove
his horse upon the ferry boat and retained the custody of him, was
held to be without remedy for the loss of the horse, which became
frightened at the bell and jumped overboard, because he failed to
exercise proper care and oversight over his property.

That the doctrine of contributory negligence is applicable to cases
of this character is the settled rule in New York, dark w Union
Ferry (7o., 35 N. Y. 485 ; Wyckoff \\ Queens County Perry Co., 52
id. 32 ; s. c, 11 Am. Rep. 650. The same rule is recognized in
Willouyhhy v. Horridge, 12 C. B. 742.

The property, in such cases, is not at the sole risk of either party.
The ferryman undertakes for its safety, as against any defects in his
boat, or the want of proper appliances for the security of goods
committed to him, as well as for the skill and care of himself and
his servants. The defendants in this case, if carrying for hire,
would have been responsible for diligence, care and skill on their
part, and would have been bound to provide such safeguards as,
under all ordinary circumstances, would have saved the plaintiff
from loss. If the plaintiff retained possession of his property,
and assumed the care of it, he also was bound to exercise ordinary
care and prudence in the management of it, to prevent loss or injury,
and if he was guilty of negligence contributory to the injury, he
cannot recover. Whart on Meg., § 707.

The plaintiff's account of the transaction is that he drove on the
boat in a fall-top buggy, and wishing to blanket his horses, he wrap-
}>cd the lines around the whip and got out on the right-hand side,

Digitized by


FEBRUARY TERM, 1880. 505

Dadley y. Camden and Philadelphia Ferry Company.

and walked around to the wheel on the left side, where he coald not
reach the hnes. While in that situation, the horses made a step or
two forward, striking the wheel against the iron guard of the boat,
which made a noise that frightened them, and they immediately
started, and plunged into the river.

The plaintiff, not being within reach of the lines, had nothing
to check them by. He admits that if he had been at their heads,
lie could have stopped them. He says they were fine, high-strung
horses, but gentle. It is manifest, from the plaintiff's own state-
ments, that it was necessary to keep these horses under proper
control to insure their safety, and it was clearly negligence on
his part, in the situation in which he was placed, to put himself in
a position where he had no command of them. They were as
effectually out of his reach as if he had been at the other end of
the boat. When he put himself where he could not seize the lines,
he jissumed the risk incident to it The defendants had not taken,
nor had they been called upon by the plaintiff to take, any over-
sight of the property, and they had therefore a right to presume
that the plaintiff would use the reasonable care requisite to secure

In this case, ihe defendants were unpaid bailees ; the plaintiff
took his horses upon their boat without being required to pay any
toll. Regarding the degree of care which the plaintiff could lawfully
exact of the defendants, in that character, his own negligence is still
more manifest. Ever since the dictum of Lord Coke, founded
upon Southcote^s case, that the bare acceptance of goods by a mere
depositary, implied a promise to keep them safely, was overruled in
Coggs V. Bernard, degrees of negligence have been recognized in
the English law. For a reference to the long line of authorities,
see the notes to that case in 1 Smith's Lead. Gas.

In Foster \, Essex Bank, 17 Mass. 479, Chief Justice Parker
considered the doctrine entirely settled, that a mere depositary,
without any special undertaking, and without reward, is not
answerable for the loss of goods deposited, but in case of gross
negligence, which is equivalent to fraud, in its effect upon contracts.

That a naked bailee is responsible only for gross negligence is
the admitted law of New York. Edson y, Weston, 7 Cow. 278;
Beardslee v. Richardson, 11 Wend. 25. This rule was applied in
the later English case of McCarthy v. Young, 6 H. & N. 329.

While there are cases which criticise the attempt to define, pre-

Digitized by



Dudley ▼. Camden and Philadelphia Ferrjr Company.

oiselj, what constitutes gross negligence, and the difference between
negligence and gross negligence, the necessity of distinguishing
between different degrees of care has never been denied.

In Grill v. Iron Screw Collier Co., L. R., 1 C. P. 600, where the
propriety of establishing degrees of negligence was questioned, it
was admitted that the line between the degrees of care cannot be
disregarded. The absence of the requisite care is the presence of
negligence. Where a lesser degree of care is due, its absence shows
a greater degree of negligence. It is wholly immaterial therefore
whether it is termed gross negligence or the absence of slight care.
To make the negligence actionable, there must be a failure to
exercise that degree of care only which can be exacted of the de-
fendant in the character he occupies. That one who permits his
friend to deposit his valuables in his safe, temporarily, should not
be held to the same degree of responsibility which attaches to a safe
deposit company, is a rule of such obvious justice, that it must in-
here in every system of law that equitably regulates human con-
duct The defendants in this case, as gratuitous bailees, were liable
only for the omission of that care which the most inattentive and
thoughtless of men never fail to take of their own affairs. No such
carelessness was shown on the trial below

The rule to show cause should he viade absolute,

NoTS BT THB Rbfobtkr.— JJtxina ▼. Rudjft 84 Ark. 385, was* a case quite Rimtlartothe
princi: al case. The evideoce was conflicting, but it may be sufflcienUy gleaned from the
following requests and instractions:

The defendants asked the court to instruct the Jury, " If you believe from the evidence
that the ferry boat was in good order, suitable for the purpose for which she was used ;
was manned by a prudent and careful captain and crew ; that the gates were securely
fastened; that the captain warned the person in charge of the wagon of the danger of the
mules becoming frightened while crossing the river, and directed him to unhitch them,
and requested the plaintiff's wife to get out of the wagon and take her children out ; but the
person in charge of the wagon refused to unhitch the mules, and asserting his ability to
manage them, retained control of them ; and the plaintiff's wife remained in the wagon
with her children; that there was no negligence on the part of the captain or crew; and
that the accident would not have occurred if the captain's order to unhitch the mules had
been obeyed; the defendants were not liable, and you should And for the defendants.'*
This was refused, and the court charged as follows:

** Ferrymen are common carriers, and as such are insurers of all things committed <o
and received by them for transportation, against all harm or damage, except such as may
be occasioned by the act of Gk>d, the public enemy, or the willful negligence or default of
the party injured.

''Whether proper appliances and means were used, or the ferry boat skillfully manned
and nuinaged, is a question of fact for the Jury; and if Tyou find from the evidence, (hat
such necessary and proper appliances and means were used, and the boat skillfully and
properly manned and managed; and that the defendants exercised extraordinary care in
the use of such appliances and means, and in the skillful management of the boat, you
will And for the defendant; but if you find that such appliances and means were not used

Digitized by


FEBRUARY TERM, 1880. 505

Davey v. Jones.

~ that the boat was not properly manned, or flkfllf ully managed, or the defendants did not
exercise extraordinary care in using such appliances and means, or in the sUllfui manage-
ment of the boat — you will find for the plaintiff.

'^If , for want of a spark-catcher, sparks from the chimney or smoke-stack fell upon
and burnt the mules, by which they became frightened, and by backing, precipitated the
wagon into the river, such fact is to be considered by you, as evidence tending to show
negligence on the part of the defendants.

** If the feny boat was in good condition and repair, and suitable for the business in
which she was employed, and was manned with a suflicient number of hands, and all
proper appliances and means were in use at the time, and due care and caution were used
in the transportation of the plaintiflTs property, and the falling of the mules and wagon into
the river was occasioned by the neglect of the person in charge to obey the order of the
captain to unhitch the mules, and without fault on the part of the defendants, their agents
or servants— these facts may be taken in consideration In passing upon the question of
negligence on the part of the plaintiff.

** If the plaintiff's wife, or other person in charge of the wagon and team, retained on
the boat exclusive control thereof, and the defendant assumed no control of the same, and
the precipitation of the wagon and team into the river occurred without negligence on the
part of the person In charge of the boat, the defendants are not chargeable for the loss or
damage, as a common carrier or as an insurer ; and are only answerable for actual negli-
gence. And if the loss was occasioned by the wiUful wrong or negligence of the plaintiff,
and would not have occurred but for it, the plaintiff is not entitled to recover, unless the
direct cause of the loss was the omission of the defendants, after becoming aware of the
plaintiff's negligence, to use proper care to avoid the consequences of such negligence.''

The court observed: **Tliat ferrymen, when they receive property for transportation
and have the exclusive custody of it, are held to the strict liability of common carriers, is
too well settled to be questioned. But It is also well settled, that if the owner retains con-
trol of the property himself and does not surrender the charge of It to the ferryman, such
strict liability does not attach, and he is only responsible for actual negligence ; and if the
owner, by his own negligence, has contributed to the loss, which otherwise would not have
happened, he is only liable, when the direct cause of the loss is his omission, after becom-
ing aware of the owner's negligence, to use a proper degree of care to avoid the conse-
quences of such negligence. Harvey v. Rose^ S6 Ark. 3, and authorities cited; s. c, 7 Am.
Rep. fS05; Wyekof v. Queeru Ckmnty F^erru Co,, 52 N.Y. 82 ; s. c, 11 Am. Rep. 650 ; Whart on
Neg. 826, 385, 706-8; Davtes v. Mann, 10 M. & W. 546. Whether the property in this case
was intrusted to the exclusive custody of the defendants; whether the plaintiflp, by the
negligence of his agent, so contributed to the loss, that but for it the loss would not have
occurred ; and whether the direct cause was the omission of the defendants, after having
become aware of such negligence, to take proper means to prevent the consequences of It
— were questions raised by the evidence ; and the instructions in respect to the matter ot
negligence properly presented them for the consideration of the juiy, were unol^ection-

Davky V. Jones.

(18 Vroom, 28.)

NegotiMe instilment — excuse for omission to give notice of protest,

DsLvey, holder of a note indorsed by Jones, sent it to a bank for collection.
The bank's notary misdirected the notices of protest to *' Darcy ; " the
plaintiff* did not receive them, and the indorser was consequently not
notified. Held, that the defendant was not liable.*

* See Cummins v. Heald, ante, p. 264.

Vol. XXXVI— 64

Digitized by



Davey v. Jones.

ACTION on a promissory note. The opinion states the facts.
The defendant had judgment below.

G, F. Parol, for plaintiff,
W. J. Magie, for defendanL

Van Syckel, J. This is a suit upon a promissory note drawn
by Lewis D. Jones to the order of the defendant, Evan Jones, and
by him indorsed to the plaintiff. The note was payable at the
First National Bank of Jersey City. The plaintiff resides at Fin-
dernc, in Somerset county, and the defendant at Plainfield, in the
county of Union, in this State. The plaintiff indorsed the note
and left it before its maturity for collection at the First National
Bank of Jersey City, to the officers of which he was known, and
where he had been a dealer and depositor for twenty years. When
the note came due the drawer had no funds in bank to meet it, and
it was handed by the teller of the bank to the notary for protest.
The notary by' mistake read the plaintiff's name on the note Fred-
erick Darcy instead of Frederick Davey, and made out the notices
of protest to Frederick Darcy and Evan Jones, and inclosed them
in an envelope directed to Frederick Darcy, Jersey City. In con-
sequence of this mistake the notices did not reach the plaintiff,
and no notice was therefore sent to or received by Evan Jones, the

The plaintiff sets up these circumstances in excuse of his failure
to give notice of non-payment to tlie defendant.

When a note is deposited by the holder with an agent or bank,
for the purpose of collection at maturity, such agent or bank will
be entitled to the same time to give notice of dishonor to his prin-
cipal as if such depositary were the real holder for value, and the
principal will be entitled after he receives such notice from his
agent to the like time to transmit notice to tlie antecedent parties
whom he seeks to charge as if he were an indorser and had received
notice from the real holder for value, and not from his own agent.
Flay ties v. BirkSy 3 B. & P. 599; Howard v. Ives, 1 Hill, 263: CoU
V. Noble, 5 Mass. 167; Howlandv. Adrain, 1 Vroom, 41; State Bank
v. Ayers, 2 Halst. 130; Stoiy on Prom. Notes, § 326.

The bank therefore had the option to send the notice to each
indorser, or to send all the notices to the plaintiff, upon whom the
duty would then have fallen to notify the prior parties.

Digitized by


FEBEUARY TERM, 1880. 507

Davej V. Jones.

Collecting agents are recognized in the law as holders for collec-
tion, and for all the purposes of demand and notice, and the exer-
cise of due diligence after dishonor; they are holders of the note,
and the law imposes upon them the duty of doing all that the
owner would be required to do for the protection of his rights, and
makes them liable over to tlie owner for default in that duty.
Bartlett v. Isbell^ 31 Conn. 29G; Titus v. Mechanics' Bank, 6 Vroom,

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 57 of 123)