fective machinery, voluntarily continues employment, waives right to recover for injuries; Conroy v. Oregon Construction Co., 10 Sawy. 633, 23 Fed. 73, contributory negligence is a defense; Griffin v. Overman Wheel Co., 61 Fed. 572, 21 U. S. App. 151, United States courts not bound by a contrary rule of State court; Canadian Pac. Ry. v. Clark, 74 Fed. 362, 38 U. S. App. 573, defendant may prove contributory negligence, though such defense be not set up in answer; Scudder v. Crossan, 43 Ind. 346, allegations of malpractice not proved if negligence of patient contributed to injury; arguendo, in Tanner v. Louisville & N. R. R., 60 Ala. 637; in general discussion, Donaldson v. Milwaukee & St. P. Ry., 21 Minn. 297.

Negligence.- Burden of proving contributory negligence rests on defendant, irrespective of statute law, p. 407.

Cited and rule approved and followed in Indianapolis & St. L. R. R. v. Horst, 93 U. S. 298, 23 L. 900, holding instruction in ac cordance with above rule, correct; Hough v. Railway Co., 100 U. 8. 226, 25 L. 618, where servant was injured by defective machinery, burden of showing contributory negligence, upon railroad company; Inland, etc., Coasting Co. v. Tolson, 139 U. S. 557, 35 L. 272, 11 S. Ct. 655, defendant must show negligence on part of wharfinger, crushed between steamboat and wharf; Morgan v. Illinois, etc., Bridge Co., 5 Dill. 102, F. C. 9,802, fact that four-year-old child strayed from home and, while playing, fell into excavation, not proof of contributory negligence; Knaresborough v. Belcher Silver Mining Co., 3 Sawy. 446, F. C. 7,874, plaintiff need not allege want of concurring negligence; Holmes v. Or. & Cal. R. R., 6 Sawy. 274, 5 Fed. 86, to the same point; Watkinds v. Southern Pac. R. R., 14 Sawy. 31, 38 Fed. 712, 4 L. R. A. 240, and n., plaintiff need not allege that he was without fault; Wabash, etc., R. R. v. Central Trust Co., 23 Fed. 740, presumptions and inferences should be in favor of injured party; Osborne v. Detroit, 32 Fed. 44, charge in accordance with syllabus rule, proper; Smith v. Havemeyer, 36 Fed. 927, occupants of defective pier responsible for damage to vessel, in the absence of proof of contributory negligence; Union Pac. R. R. v. Novak, 61 Fed. 590, 15 U. S. App. 400, it is not necessary that evidence be direct and positive; Berry v. Lake Erie, etc., R., 70 Fed. 194, plaintiff need not aver nor prove freedom from contributory negligence; Toledo, P. & W. R. v. Chisholm, 83 Fed. 657, 49 U. S. App. 708, negligence will not be presumed; Chesapeake, etc., Ry. v. Steele, 84 Fed. 98, 54 U. S. App. 561, in the absence of contrary proof, presumption was that decedent exercised proper precautions before crossing track; Fitchburg R. v. Nichols, 85 Fed. 947, 50 U. S. App. 302, allegation in complaint that plaintiff exercised due care, does not affect rule; Mobile & Mont. R. R., 65 Ala. 569, 570, complaint need not negative contributory negligence; Texas, etc., Ry. v. Orr, 46 Ark. 194, plaintiff need not aver due care; Western Union Tel. Co. v. Eyser, 2 Colo. 154, 166,

V.

defendant must show plaintiff at fault for contributing to injury; Kansas Pac. Ry. v. Twombly, 3 Colo. 129, question of contributory negligence left to jury; Platte, etc. v. Dowell, 17 Colo. 379, 30 Pac. 70, contributory negligence not presumed; Sanders v. Reister, 1 Dak. 172, 46 N. W. 685, defendant must show that plaintiff's trespass involved negligence contributing to injury; Herbert Northern, etc., R. R., 3 Dak. 56, 58, 13 N. W. 354, 355, question of negligence, for jury; Mares v. Northern, etc., R. R., 3 Dak. 344, 21 N. W. 8, jury must find that want of care and caution contributed to injury; Hopkins v. Utah Northern Ry., 2 Idaho, 280, 13 Pac. 345, defendant must establish contributory negligence; Kansas City, etc., R. R. v. Phillibert, 25 Kan. 586, facts stated in findings did not show contributory negligence; Paducah, etc., R. R. v. Hoehl, 12 Bush, 47, plaintiff need not allege nor affirmatively prove freedom from contributory negligence; Frech v. Philadelphia, etc., R. R., 39 Md. 576, where circumstances showed injury resulted from plaintiff's negligence; Davis v. Kansas, City, etc., Ry., 46 Mo. App. 189, question of negligence is for jury; Higley v. Gilmer, 3 Mont. 97. plaintiff need not allege nor prove freedom from negligence; Lincoln v. Walker, 18 Neb. 247, 20 N. W. 114, to same point; Cox v. Norfolk, etc., R. R., 123 N. C. 613, 31 S. E. 851, reversing judgment of non-suit, where evidence tended to prove negligence on part of defendant; Gram v. Northern, etc., R. R., 1 N. Dak. 260, 46 N. W. 974, averment and proof of absence of negligence on plaintiff's part, unnecessary; Cassidy v. Angell, 12 R. I. 449, 34 Am. Rep. 691, plaintiff may be non-suited where his own complaint shows contributory negligence; Smith v. Chicago, etc., Ry., 4 S. Dak. 80, 81, 55 N. W. 720, in the absence of evidence, court must conclude there was no contributory negligence; Reddon v. Union Pac. Ry., 5 Utah, 355, 15 Pac. 265, non-suit will not be granted where contributory negligence does appear affirmatively from plaintiff's evidence; Baltimore, etc., R. R. v. Whittington, 30 Gratt. 809, averment of due care, unnecessary; Norfolk, etc., R. R. v. Burge, 84 Va. 70, 4 S. E. 25, defendant must prove lack of ordinary care on part of plaintiff; Southwest. Improvement Co. v. Andrew, 86 Va. 272, 9 S. E. 1016, averment and proof of due care, unnecessary; Norfolk, etc., R. R. v. Gilman, 88 Va. 242, 13 S. E. 476, to same point; Kimball v. Friend, 95 Va. 139, 27 S. E. 903, presumption that traveller did his duty in approaching crossing; Southern R. R. v. Bryant, 95 Va. 221, 28 S. E. 185, to same point; Northern, etc., R. R. v. O'Brien, 1 Wash. 607, 21 Pac. 35, charge in accordance with syllabus rule, proper; Northern. etc., R. R. v. Hess, 2 Wash. 387, 26 Pac. 867, plaintiff need not establish freedom from negligence; Spurrier v. Front St. Cable Ry., 3 Wash. 662, 29 Pac. 347, to same point; also Sheff v. City of Huntington, 16 W. Va. 317, Hulehan v. Green Bay, etc., R. R., 68 Wis. 527, 32 N. W. 532, and Valin v. Milwaukee, etc., R. R., 82 Wis. 6, 33 Am. St. Rep. 20, 51 N. W. 1086, question of

contributory negligence for jury, proof must be clear and decisive. Cited and approved, arguendo, in Baltimore, etc., R. R. v. Griffith, 159 U. S. 610, 40 L. 278, 16 S. Ct. 108, McKeever v. Market St. R. R., 59 Cal. 300, and Kansas Pac. Ry. v. Pointer, 14 Kan. 51, in general discussion; Owens v. Richmond, etc., R. R., 88 N. C. 506, 510, Shenandoah Valley R. R. v. Moose, 83 Va. 831, 3 S. E. 798, Gerity v. Haley, 29 W. Va. 103, 11 S. E. 903, Eastburn v. Norfolk & W. R. R., 34 W. Va. 694, 12 S. E. 823, and Myers v. Chicago, etc.. Ry., 95 Fed. 412, arguendo, in dissenting opinion. See following notes: 75 Am. Dec. 384, 86 Am. Dec. 587, 34 Am. Rep. 625, and 39 Am. Rep. 511.

Distinguished in Parrott v. New Orleans, etc., R. R., 62 Fed. 563. holding complaint showing plaintiff guilty of negligence is bad. Negligence. Less discretion is required of an infant than an adult, according to maturity and capacity of child, p. 408.

Cited and approved in Miles v. Receivers, etc., 4 Hughes, 179, F. C. 9,544, holding, under facts, lame boy, eight years of age, guilty of contributory negligence; Crane Elevator Co. v. Lippert, 63 Fed. 948, 24 U. S. App. 176, finding of jury that youth was innocent of contributory negligence, binding on appellate court; Illinois Cent. R. v. Jones, 95 Fed. 380, 381, 383, 385, 389, question as to whether boy of ten was guilty of contributory negligence, was for the jury; Government Street R. R. v. Hanlon, 53 Ala. 80, child of tender years presumed to be incapable of exercising discretion, and contributory negligence no defense; Little Rock, etc., Ry. v. Barker, 33 Ark. 372, instruction in accordance with syllabus rule, proper; Pueblo Electric St. Ry. v. Sherman, 25 Colo. 119, 71 Am. St. Rep. 117, 53 Pac. 323, whether infant should be held responsible for his contributory negligence, a question for jury; Western, etc., R. R. v. Young, 81 Ga. 416, 12 Am. St. Rep. 325, 7 S. E. 914, age and capacity must both be taken into consideration; Chicago, etc., R. R. v. Murray, 71 Ill. 607, to the same point; St. Louis, etc., Ry. v. Valirius, 56 Ind. 520, railroad company liable for injury to youthful employee, caused by defective cars; McMillan v. B. & M. R. R., 46 Iowa, 233, instruction in accordance with syllabus rule, wrongfully refused; Merryman v. Chicago, etc., Ry., 85 Iowa, 638, 52 N. W. 546, boy of thirteen, crushed by turn-table, guilty of contributory negligence; Kansas Pac. Ry. v. Whipple, 39 Kan. 540, 18 Pac. 735, railway company liable, where boy of nine was injured while wrongfully walking on track; Westerfield v. Levis, 43 La. Ann. 69, 9 So. 55, child of five years and seven months prima facie incapable of contributory negligence; Elkins v. Boston, etc., R. R., 115 Mass. 200, age of plaintiff, competent evidence; Wright v. Detroit, etc., Ry., 77 Mich. 127, 43 N. W. 766, charge failing to state syllabus rule, erroneously defective; Twist v. Winona, etc., R. R., 39 Minn. 169, 12 Am. St. Rep. 629, 39 N. W. 405, boy of ten and one-half years, injured while playing on turn-table, guilty of con

tributory negligence; Mackey v. Vicksburg, 64 Miss. 783, 2 So. 180 no legal inference that infant of six was guilty of negligence; Westbrook v. Mobile, etc., R. R., 66 Miss. 568, 14 Am. St. Rep. 589, 6 So. 322, child of tender years, prima facie exempt from re sponsibility; Ridenhour v. Kansas City Cable Ry., 102 Mo. 287, 14 S. W. 762, boy responsible for failure to exercise reasonable care and diligence as characterized average boy of his age; Donoho v. Vulcan Iron Works, 7 Mo. App. 450, child playing in street may recover for injury caused by street's unsafe condition; Stone v. Dry Dock, etc., R. R., 115 N. Y. 109, 21 N. E. 713, suit should not have been dismissed, but question of infant's negligence submitted to jury; Bottoms v. Seaboard & R. R. R., 114 N. C. 712, 41 Am. St. Rep. 806, 19 S. E. 732, 25 L. R. A. 792, and n., negligence of infant, twenty-two months old, will not relieve railroad from liability for injuries; L. E. & W. R. R. v. Mackey, 53 Ohio St. 384, 53 Am. St. Rep. 645, 41 N. E. 981, 29 L. R. A. 760, child nine years old, exercising degree of care to be expected from one of his years and intelligence, not guilty of negligence; Wallace v. Suburban Ry.. 26 Or. 180, 37 Pac. 478, 25 L. R. A. 667, and n., degree of care required of child, a matter for jury; Young v. Clark, 16 Utah, 51, 50 Pac. 834, to the same point; Reed v. Madison, 83 Wis. 176. 53 N. W. 548, 17 L. R. A. 736, child injured by defective sidewalk, not held to same degree of care as adult; Railroad Co. v. Stout, 17 Wall. 660, 21 L. 748, arguendo; Thurber v. Harlem, etc., R. R., 60 N. Y. 335, and Murray v. Richmond R. R., 93 N. C. 95, 96. See following notes: 55 Am. Dec. 676, and 49 Am. St. Rep. 409.

Distinguished in Felton v. Aubrey, 74 Fed. 353, 43 U. S. App. 278, holding railroad company owes no greater duty to infant, trespassing upon its tracks, than to an adult; Western Ry. v. Mutch, 97 Ala. 198, 38 Am. St. Rep. 183, 11 So. 896, 21 L. R. A. 318, railroad company not responsible for death of trespassing infant, killed while attempting to board train; McLaughlin v. New Orleans, etc., R. R., 48 La. Ann. 26, 18 So. 703, boy of eleven, crossing track after warning, guilty of contributory negligence; Manly v. Wilmington, etc., R. R., 74 N. C. 660, railroad company not liable for death of child killed while lying asleep upon track; Houston, etc., R. R. v. Miller, 51 Tex. 275, minor, aged nineteen, cannot recover for damage caused by negligence of fellow employee.

Trial. Instructions, assuming as existing, facts of which no proof is found in record, should not be granted, p. 409.

Cited and rule followed in Insurance Co. v. Baring, 20 Wall. 162, 22 L. 252, holding prayer must be rejected, there being no evidence to support facts assumed; Chambers County v. Clews, 21 Wall. 324, 22 L. 520, bill of exceptions being silent, court would not assume that revenue stamp of certain value was on bond; New Jersey, etc., Ins. Co. v. Baker, 94 U. S. 611, 24 L. 269, court properly refused inVOL. VII - 58

structions based upon assumed facts; Maryland Cent. R. R. v. Neubeur, 62 Md. 402, instruction permitting jury to put aside evi dence and find upon presumption, erroneous.

Trial.- Where general scope and tendency of charge is correct, exceptions to it will not be sustained, because detached sentences are open to criticism, p. 409.

Followed in Chicago, etc., Ry. v. Linney, 59 Fed. 49, 19 U. S. App. 315, where instruction was correctly qualified by further instructions; St. Louis, etc., Ry. v. Needham, 69 Fed. 826, 32 U. S. App. 635, to the same point; Everett v. Spencer, 122 N. C. 1011, 30 S. E. 334, it is duty of jury to construe whole charge of court.

15 Wall. 410-426, 21 L. 198, TIFFANY v. LUCAS.

Bankruptcy. Sale by insolvent, made within six months of subsequent bankruptcy, is not necessarily void, under thirty-fifth section of bankrupt act. Fraudulent design of bankrupt, and knowledge of it on part of vendee, must concur to bring sale within prohibition of the law, pp. 420-421.

Cited and rule applied in Wager v. Hall, 16 Wall. 601, 21 L. 506, where circumstances showed creditor had knowledge of vendor's insolvency, sale was void; Casey v. La Societe de Credit Mobilier. 2 Woods, 82, F. C. 2,496. pledge of notes in substitution of notes already pledged by bank to secure loan to itself, not void; Love v. Love, 15 Fed. Cas. 998, execution lien unaffected by subsequent bankruptcy proceedings; In re Union Pac. R. R., 24 Fed. Cas. 627, not an act of bankruptcy for corporation to convey property in trust to secure bonds, issued for purpose of paying unsecured debts; Judson v. Courier Co., 8 Fed. 425, transfer to preferred creditor, not void where other creditors joined in arrangement; Armstrong v. Chemical Nat. Bank, 41 Fed. 239, 6 L. R. A. 229, and n., creditor may retain property transferred to secure loan; In re Nathan, 92 Fed. 592, mortgage given to secure creditor, having knowledge of debtor's insolvency, void; In re Cobb, 96 Fed. 825, upholding insolvent's pledge of collateral to bank; Stone v. Jenison, 111 Mich. 599, 604, 70 N. W. 151, 153, 36 L. R. A. 678, 680, and n., payment to depositor not invalid, although made after an act of insolvency; Haas v. O'Brien, 66 N. Y. 600, assignment for benefit of creditors, made in good faith, not void per se; Ordway v. Montgomery, 10 Lea, 520, bona fide sale, by failing debtor, in part consideration of creditor's debt, valid. Cited in In re Pierson, 19 Fed. Cas. 668, arguendo: also in Singer v. Sloan, 22 Fed. Cas. 203.

Distinguished as to facts in Alderdice v. State Bank, 1 Hughes, 56, F. C. 154, and Harrison v. McLaren, 11 Fed. Cas. 657, shipment after insolvency, to creditor making advances at time, not a pref

erence.

Miscellaneous. Cited in Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072, but without particular application.

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