passing under bridge; Kennedy v. Denver, etc., Ry., 10 Colo. 500, 16 Pac. 214, majority refusing recovery for injury of person walking on track; Grows v. Maine Central R. R., 67 Me. 108, majority determining contributory negligence as matter of law, and refusing recovery for injury at crossing; Lincoln v. Walker, 18 Neb. 275, 25 N. W. 76, majority awarding damages for injury to person falling into excavation in street; Nicholas v. Peck, R. I., 43 Atl. 1040, majority refusing recovery for injury caused by defective sidewalk; arguendo, in Clough v. Clough, 10 Colo. App. 443, 51 Pac. 517, and Talty v. City of Atlantic, 92 Iowa, 142, 143, 60 N. W. 519, both holding city not liable for death of children playing in sandpit. See note in 31 Am. Rep. 207, and 36 Am. St. Rep. 851.

Railroads. A child six years old, being injured while playing on a turntable, which was not locked, railroad was held liable, p. 665.

Cited and relied upon in Union Pacific R. R. v. McDonald, 152 U. S. 279, 38 L. 442, 14 S. Ct. 625, holding railroad liable for injury to boy falling into hot slack alongside track; Clark v. Canadian Pac. Ry., 69 Fed. 545, holding railroad liable for injury to person at crossing; Illinois Cent. R. R. v. Jones, 95 Fed. 375, awarding damages for injury to boy driving across tracks; Barrett v. Southern Pacific Co., 91 Cal. 303, 25 Am. St. Rep. 189, 27 Pac. 667, Kansas Cent. R. R. v. Fitzsimmons, 22 Kan. 691, 31 Am. Rep. 205, and Evansich v. Gulf, etc., R. R., 57 Tex. 125, all applying rule; Hansen v. Southern Pacific Co., 105 Cal. 386, 38 Pac. 959, awarding damages to child whose foot was caught in defective cattle-guard and run over; Pekin v. McMahon, 154 Ill. 149, 45 Am. St. Rep. 117, 39 N. E. 486, 27 L. R. A. 209, collecting authorities, and awarding damages for death of child in unguarded pool; Bransom v. Labrot, 81 Ky. 644, 50 Am. Rep. 197, awarding damages for death of child playing on lumber pile in unfenced lot; Powers v. Harlow, 53 Mich. 515, 51 Am. Rep. 160, 19 N. W. 260, awarding damages for injury to boy playing with dynamite left unguarded; Fink v. Missouri Furnace Co., 10 Mo. App. 67, awarding damages for death of child falling into unguarded sandpit; Harriman v. Railroad Co., 45 Ohio St. 29, 4 Am. St. Rep. 517, 12 N. E. 458, awarding damages for injury to child through explosion of signal-torpedo, left on track. Cited, arguendo, in Crogan v. Schiele, 53 Conn. 206, 55 Am. Rep. 99, 1 Atl. 907, holding owner of building liable to person falling into excava tion, running around it; Indianapolis, etc., R. R. v. Pitzer, 109 Ind. 183, 58 Am. Rep. 389, 6 N. E. 312, holding railroad liable for death of child on track; Hansen v. State Bank Building Co., 100 Iowa, 676, 69 N. W. 1022, refusing recovery for injury to boy wrongfully using elevator; Nelson v. Crescent City R. R., 49 La. Ann. 501, 21 So. 639, awarding damages for injury to child, run over by electric street car; Stucke v. Orleans R. R., 50 La. Ann. 205, 23 So. 354, awarding damages to conductor, negligently injured while work

by refusal of the corporation to accept payment when tendered; Morrison v. Price, 23 Fed. 221, & stockholder may not defend against unpaid subscription to an insolvent corporation because induced by fraud.

Miscellaneous.- Cited incidentally in Bradley v. Farwell, 1 Holmes, 440, F. C. 1,779, United States v. Elliott, 64 Fed. 34, and Martin v. South Salem Co., 94 Va. 49, 26 S. E. 597.

17 Wall. 624-630, 21 L. 741, KIBBE v. BENSON.

Judgments.- Equity will not relieve against judgment at law because contrary to equity, unless defendant was ignorant of the fact creating such equity, pending the trial, or it could not have been received as a defense, p. 627.

Approved in Pacific R. R. v. Missouri Pacific R., R., 2 McCrary, 229, 12 Fed. 642, refusing to set aside foreclosure for bad faith in defending suit, which was known to plaintiff.

Judgments.- If party could have defended suit at law, but allowed judgment to go by his own neglect, he cannot have relief in equity for a matter he might have availed himself of at law, p. 627.

Approved in Goolsby v. St. John, 25 Gratt. 161, refusing relief for mistake in amount of one item of judgment at law; Nye v. Sochor, 92 Wis. 43, 53 Am. St. Rep. 897, 65 N. W. 856, refusing relief where defendant missed train and made no defense, and subsequently forgot to take appeal.

Judgments.— If a party could not avail himself of a defense in a suit at law, by reason of fraud or accident, equity will relieve against the judgment at law, p. 628.

Process.- Where statute provides substitute service "at the dwelling-house" of defendant, this means nearness of place, and is not satisfied by service 125 feet distant and in a corner of the yard, p. 629.

Approved in Amy v. Watertown, 130 U. S. 317, 32 L. 951, 9 S. Ct. 536, collecting authorities, and holding statute requiring service on mayor in suit against city, peremptory; Phoenix, etc., Ins. Co. v. Wulf, 9 Biss. 287, 1 Fed. 777, holding service on husband in building occupied as store and dwelling, sufficient against wife; Harris v. State, 72 Miss. 963, 18 So. 387, 33 L. R. A. 90, and n., holding meeting of supervisors in building 100 feet away not "at the courthouse," as required by statute; State v. Old Town Bridge Co., 85 Me. 28, 26 Atl. 950, arguendo; Lonkey v. Keyes, etc., Mining Co., 21 Nev. 317, 31 Pac. 59, 17 L. R. A. 353, holding service on deputy secretary insufficient under statute requiring service on secretary of State, in suit against foreign corporation.

Judgments.- Equity will set aside a default judgment in ejectment, where service was insufficient and defendant had no opportunity to defend his estate, p. 630.

Approved in Hauswirth v. Sullivan, 6 Mont. 211, 9 Pac. 803, collecting authorities, and setting aside judgment, void for service of process on Sunday.

Distinguished in Goolsby v. St. John, 25 Gratt. 161, refusing relief to party who neglected to avail himself of his legal remedies.

17 Wall. 630-639, 21 L. 717, SMITHS v. SHOEMAKER.

Ejectment.- In ejectment, plaintiff cannot introduce his own deelaration or that of those under whom he claims, to show that defendant's ancestor entered under the person making the declaration; hence, a letter written by plaintiff's grantor is inadmissible, p. 638.

Approved in Sullivan v. McMillan, 26 Fla. 585, 8 So. 459, holding declarations of party in his own favor, in a letter, inadmissible in action on contract.

Evidence. A letter is not admissible as part of res gestæ, on account of its date, without proof that it was written and received, p. 637.

Cited with approval in People v. Colburn, 105 Cal. 651, 38 Pac. 1106, holding unanswered letter in defendant's possession, inadmissible in prosecution for robbery; Razor v. Razor, 149 Ill. 624, 36 N. E. 964, holding letter to wife, inadmissible to prove adultery; Payne v. Commonwealth, 31 Gratt. 859, holding letter, which defendant did not receive, inadmissible in prosecution for running lottery.

Distinguished in Cluverius v. Commonwealth, 81 Va. 814, 863, holding letters admissible in murder case, to show meeting of accused and deceased.

Evidence.- Date of an instrument is prima facie true only when instrument has been admitted on other and sufficient ground, and where true date is important on some other issue than admission of the instrument, p. 637.

Appeal and error.— One seeking to justify in appellate court, the admission of ex parte declarations of himself or his vendor, against his adversary's objection, must show by the record some circumstance to obviate the soundness of the objection, p. 638.

Appeal and error.— - Judgment will not be reversed on error which worked no injury, but it must appear beyond doubt that the error did not, and could not, have been prejudicial, p. 639.

Cited with approval in Vicksburg, etc., R. R. v. O'Brien, 119 U. S. 103, 30 L. 300, 7 S. Ct. 120, reversing judgment where physician's depositions as to plaintiff's condition was improperly admitted;

Ward v. Cochran, 150 U. S. 610, 37 L. 1199, 14 S. Ct. 234, reversing Judgment in ejectment where special verdict was insufficient; Sanger v. Flow, 48 Fed 157, 4 U. S. App. 32, applying rule in action to set aside assignment for benefit of creditors; Kansas City, etc., R. R. v. Stoner, 51 Fed. 655, 10 U. S. App. 209, refusing to reverse judgment for technical errors in action for negligence; National Masonic Assn. v. Shryock, 73 Fed. 781, 36 U. S. App. 658, reversing judgment on insurance policy, where evidence of sobriety was improperly admitted; Magness v. State, Ark., 50 S. W. 557, reversing conviction for murder, for refusal to admit evidence to impeach witness; Henry v. Colorado, etc., Water Co., 10 Colo. App. 23, 51 Pac. 93, reversing judgment on contract for erroneous instructions as to inferences by jury; Smuggler, etc., Mining Co. v. Broderick, 25 Colo. 18, 71 Am. St. Rep. 108, 53 Pac. 170, reversing judgment for damages for erroneous admission of evidence as to safety of mine; Simmons v. Spratt, 26 Fla. 464, 8 So. 127, 9 L. R. A. 347, reversing judgment for erroneous admission of bill of exceptions to prove testimony of witness on former trial; State v. Taylor, 118 Mo. 162, 24 S. W. 451, reversing conviction for rape, for erroneous instruction on alibi; Haugen v. Chicago, etc., Ry., 3 S. Dak. 405, 53 N. W. 773, applying rule in action against railroad for negligent fire; dissenting opinion in Cluverius v. Commonwealth, 81 Va. 895, majority holding letters admissible in murder case, to show meeting of accused and deceased.

Appeal and error.- Fact that an error worked no injury, must be so clear that Supreme Court need not decide on preponderance of evidence that verdict was right, to prevent reversal, p. 639.

Approved in Kansas City, etc., R. R. v. Stoner, 51 Fed. 655, 10 U. S. App. 209, refusing to reverse for technical errors, where evidence of negligence is clear.

17 Wall. 639-648, 21 L. 661, DANIEL v. WHARTENBY.

Estates. Rule in Shelley's case is in force in Delaware, p. 641. Cited, arguendo, in Rice v. Rice, 36 Fed. 861, refusing to enforce vendor's lien, not sanctioned by statute.

Disapproved in Westcott v. Binford, 104 Iowa, 650, 65 Am. St. Rep. 533, 74 N. W. 19, holding rule not in force in Iowa.

Estates. Where person takes freehold estate under a deed, or will, or other writing, and in same instrument, there is a limitation by way of remainder, either with or without interposition of another estate, to his heirs in fee or in fee tail, ancestor takes whole estate, p. 642.

Approved in McArthur v. Allen, 15 Fed. Cas. 1212, and Wescott v. Binford, 104 Iowa, 648, 65 Am. St. Rep. 532, 74 N. W. 19, both construing wills and holding this rule of Shelley's case did not apply.

Payments. In absence of express agreement or local usage, a promise to pay, whether in form of notes or bills, is only conditional payment, p. 670.

Maritime liens.- Where advances are made to captain of vessel in foreign port, to pay for repairs or incidental expenses, presumption of law is that they are made upon credit of vessel, as well as upon that of her owners, p. 671.

Approved in Roberts v. Bark Windermere, 2 Fed. 727, enforcing lien for services in removing ballast from foreign vessel; The Comfort, 25 Fed. 159, enforcing lien for repairs made in New York on vessel owned by non-resident; Miller v. Palmer, 58 Md. 462, enforcing payment of bills given by captain of vessel for advances made for repairs and supplies.

Distinguished in The Mary Morgan, 28 Fed. 198, reviewing authorities, and holding no lien on vessel for repairs made under contract with the owner, and note given.

Maritime liens. Presumption that advances in a foreign port were made on credit of vessel can be repelled only by clear and satisfactory proof, p. 671.

Approved in The Kate, 164 U. S. 468, 41 L. 517, 17 S. Ct. 139, reviewing authorities, and holding no lien on chartered vessel for coal furnished charterers; Berwind v. Schultz, 25 Fed. 917, holding no lien where master of vessel had funds to pay for supplies, which materialman should reasonably have known.

Maritime liens.- Funds furnished to a captain in a foreign port for repairs, supplies or incidental expenses have priority as a lien upon the vessel over existing mortgages, p. 672.

Cited with approval in The J. E. Rumbell, 148 U. S. 9, 37 L. 346, 13 S. Ct. 499, applying rule to lien given by State statute for repairs and supplies furnished at home port; Whittaker v. The J. A. Travis, 29 Fed. Cas. 1119, applying rule to lien for repairs and supplies furnished at home port; The Guiding Star, 9 Fed. 524, applying rule in distributing proceeds after sale of vessel.

Distinguished in The Kate Hinchman, 7 Biss. 240, F. C. 7,621, holding duly recorded mortgage on vessel payable before claims for supplies furnished in home port.

Admiralty. Where advances to vessel in foreign port were in gold, and drafts given by captain therefor call for payment in gold, Admiralty Court's decree for payment in like currency is proper, p. 672.

17 Wall. 672-680, 21 L. 698, LIFE INS. CO. v. FRANCISCO.

Insurance. Preliminary proof of death of insured being received by company without exception, as to form or substance, the question of sufficiency is properly left to jury, though no evidence is given as to contents, p. 678.