afterwards claim that the new note had all the qualities of the Old one, and that, if sued on it, the debtor could not claim the benefit of the exemption because of the waiver contained in the old note. Yet this is in effect what is claimed for the notes taken for the labor claims. We therefore hold that the applications for issue must be refused on this ground, even though the notes might not be considered as taken in payment of the labor claims.

One other fact appeals very strongly to our judgment. If these surrendered claims could be resurrected and allowed to participate in this distribution, it would work great injustice to the laborer whose wages it was the design Of the legislature to protect. Many of these laborers continued in the employ of Blain Bros. up to the failure, and then had due them the full amount for which priority is given under the act Of 1872. Some of them had more than $200, some had less. In all such cases a pro rata distribution would have to be made, and the laborer, instead of getting the amount allowed him by law, would have to take pro rata with the holders of these notes. Surely such was not the design of the legislature in its enactment of ninth of April, 1872. These issues would have to be framed so as to give the laborer an opportunity to be heard, and, instead of six or eight issues, we might multiply them by the score.

The several issues applied for are therefore refused.

W. H. Woods, R. Brace Petrek'ln, and M. M. McNeil, for appellants.

Without a distinct agreement that a second Obligation is in discharge Of the first, it will be treated as a mere collateral security not affecting the original liability on the first obligation. Shaw v. The Church, 39 Pa. St. 226; Weakly v. Bell, 9 Watts, 280. Mechanic’s lien is not relinquished by acceptance of promissory note. Additional securities are cumulative. Kinsley v. Buchanan, 5 Watts, 118.

K. A. Lovell and Spear o'c McMartrie, for appellee, cited Silver v. William, 17 Serg. & R. 292.

PER CURIAM. These six appeals were argued together. They are from the same decree, and present the same question. The auditor and court concur in the finding of all the controlling facts. On those facts the opinion of the learned judge contains a clear and correct statement Of the law applicable thereto. There was no error in refusing the application for an issue when, under the facts not disproved, the law will not sustain the claims made by the appellants to be preferred in the distribution of the fund.

Decree in each case afifirmed, and the several appeals dismissed, at the costs of the respective appellants therein.

OIL CITY dz PETROLEUM BRIDGE CO. v. JACKSON.‘
(Supreme Court of Pennsylvania. October 18, 1886.)

NEGLIGENCE—CHILD—BRIDGE—IMPROPER UsE OF.

A bridge was safe for the ordinary purposes of travel. A child, accompanied by his brother, was crossing the bridge, using the roadway, but not in the ordinary way. He was walking upon a gas-pipe, where he ought not to have been, and was killed. Held, that the court should. have given the jury binding instructions to find for the defendant.

IEdited by Henry R. Hatfield, Esq., of the Philadelphia bar.

Error to common pleas, Venango county.

Case by W. H. H. Jackson against the Oil Gity & Petroleum Bridge Company. The facts of the case are fully set forth in the opinion of the supreme court. The jury rendered a verdict for plaintiff, whereupon defendant took this writ.

C. Heydrick and Wm. McNair, for plaintiff in error.

Whether a given state of facts proved, constitutes negligence is generally a question of law for the court. Goshorn v. Smith, 92 Pa. St. 438; Philadelphia, W. di- B. R. Co. v. Stinger, 78 Pa. St. 219; Hoag v. Lake Shore (3: M. S. R. Co., 85 Pa. St. 293; Philadelphia <f- R. R. 00. v. Schertle, 97 Pa. St. 301; Woodbridge v. Delaware, L. d2- W. R. Co..105 Pa. St.460; Moore v. Pennsylvania R. 00., 99 Pa. St. 301. If the child was not rightfully in the carriage-way, he was a trespasser. Gillespie v. McGowan, 100 Pa. St. 144; Cauley v. Pitts-burg, 0. ct S. L. R. Co., 98 Pa. St. 498; Baltimore & 0. R. Co. v. Schwindling, 101 Pa. St. 258. Where the negligence of a child is the result of its parent’s permission, such negligence is contributory. Nagle v. Allegheny Val. R. Co., 88 Pa. St. 39; Smith v. O’Connor, 48 Pa. St. 223; Glassey v. Hestonville, etc., P. Ry. Co., 57 Pa. St. 172.

Isaac Ash, J. W. Lee, and F. L. Blackmarr, for defendant in error.

This case was rightfully submitted to the jury. Pennsylvania R. 0'0. v.Ogier,~ 35 Pa. St. 60; Philadelphia d;- R. R. Co. v. Spearen, 47 Pa. St. 300; Crissey v. Hestonville, M. (B: F. P. Ry. Co., 75 Pa. St. 83; Philadelphia 0. P. R. Co. v. H assard, Id. 367; Hydraulic Works v. Orr, 83 Pa. St. 332; Schilling v. Aber

PAXSON, J. The defendant’s first point called for a binding instruction that “upon all the evidence the plaintiff is not entitled to recover.” As the affirmance of the point would have ended the case, the defendant was not entitled to such affirmance if there were any disputed questions of fact which ought to have been submitted to the jury. In considering this question I desire to say, at the outset, that we are not disposed to adopt the theory upon which the case was tried below and argued here, that the defendant owed no duty to the child whose unfortunate death was the occasion of this suit. The defendant company was the owner of the bridge when the accident occurred. It charged and received tolls from those who crossed it. Hence, when it allowed foot passengers, adults, or children to cross upon the carriage-way, we are not prepared to say that it owed no duty to those who so crossed it. It may be that the duty was not the same in each case; that is to say, that the company would not be held to as strict a rule when a passenger used the carriage-way as where he crossed upon that part of the bridge appropriated to pedestrians.

What is the true measure of the defendant’s responsibility? We think it may be found in Pennsylvania (is Ohio Canal 00. v. Graham, 63 Pa. St. 290, where it was said by Justice SHARSWOOD, after a careful examination of the authorities in this state and elsewhere:

“From these cases it may be deduced that where a corporation, in consideration of the franchises granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person arising from want

v.6A.no.2—9

of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest, or lightning, or the wrongful act of some third person, of which they had no notice or knowledge. It matters not that ordinary care was used in the erection or repair of it, and that such work was done under contract by competent workmen.”

This paragraph is carefully worded, and the rule it lays down sufficiently stringent. By it we propose to test this case.

It being the duty of the company to keep the bridge in repair, it is evident that, had the accident been the result of its being out of repair, the company would have been liable, even though such defect was latent, and the company had no knowledge of it. Thus, if there had been a defective plank, or a hole in the carriage-way, and an accident had resulted therefrom, there could have been no question of the liability of the company therefor, even though ignorant of the existence of such defect. To this extent the company may be said to insure the safety of those who cross its bridge.

But there was no evidence that the bridge was out of repair. This accident did not proceed from any such cause. It was not shown that the V carriage-way where the accident occurred was not safe for vehicles of all kinds to pass and r'epass at will, and for foot passengers, subject to the danger of injury by passing vehicles. That it contained places where a venturesome child, unattended by a care-taker, might be injured, was established by the evidence, and was shown by the accident itself.

It appears from the uncontradicted testimony that the plaintiff’s two little boys, one seven years of age, and the other between five and six, with the permission of their father, started to go from his residence on the south side of the Allegheny river to his office on the north side, on the twenty-ninth of May, 1882, and that the boys entered the carriageway, instead of the footway, of the bridge. The younger child, who ap— pears to have been the less venturesome, objected to going upon the roadway, but the elder insisted, and they entered upon it. The only knowl- , edge we have of what occurred was the story told by the younger brother. He said: >

“We went into the bridge, and Harry got out onto the gas-pipe to walk, and I told him to get off. I was afraid that he whuld get hurt; soI told him to get off, and he said that he did not want to; and then he asked me if I would let him get on again if he would get OE. and I said I would not let him get on again, and then he said that he would not get off; so I was going ahead of him, and I heard him hallo, and I turned around and looked, and I saw him standing slanting, and he was just falling. I did not see him after that.”

In the construction of the bridge there was a hub-rail placed along the sides of the carriage-way at a sufficient height from the floor to protect the timbers from the hubs of passing vehicles. In May, 1882, when repairs were being made, a portion of this hub-rail was taken off, and it was contended by plaintiff that, at the time of the accident, it was still off for a distance of eight or twelve feet at the place where the boy fell. Conceding this to be so, there was a gas-pipe some six or eight inches in diameter along that side of the bridge, of sufficient height to answer the purpose of a hub-rail. It also appears that there were open spaces left along the sides of the carriage—way directly over the chords of the bridge. These spaces were left for the convenient, and perhaps necessary, examination of the chords, which were some three feet below the floor of the bridge. At each side, and above the chords, there was originally a spaceof about 11 inches, through which anything falling upon the chord might roll off into the river below. It was alleged by the plaintiff, and we may regard it as found by the jury, that these apertures were so enlarged by the repairs made in May, 1882, that a child falling upon the chord from above would be likely to rollofl' into the river. These openings or holes were in such a position that no one, adult or child, would or could get into them in the ordinary course of travel. They were useful, if not necessary, in order to inspect, from time to time, the condition of the bridge. Substantially similar openings exist on many bridges in this commonwealth, which are regarded as safe bridges, and upon which such. an accident has never been known to occur.

We are now brought face to face with the question whether a bridge company is bound to maintain such a structure as to prevent the possibility of an accident to a child. A venturesoine boy, in his natural love of sport, will explore every nook and recess of a bridge, climb upon the timbers, and manage in some way to get through every hole large enough for his body to pass, and is as likely to get down on the piers or upon the roof as anywhere else. The case at bar furnishes an illustration of this. The boy who met with this sad mishap was not content to walk upon the carriage-way, which was safe for all, but insisted upon walking upon a round gas-pipe placed some distance above the floor, notwithstanding the remonstrance of his younger brother, who, child as he was, saw the danger. Of course, no blame is imputed to the boy for this. It was childlike, and perhaps the very thing I might have done myself at his age; but the question is, has the bridge company been guilty of such neglect as to be liable to the boy’s father for his death? Some little of the responsibility for accidents to children ought to remain upon the parents, whose duty it is to look after them and preserve them from danger. It must not be overlooked that this suit was brought by the father for the loss of his boy. He was in the habit of crossing this bridge daily, perhaps several times daily, as his house was on one side of the river, and his office on the other. He must have known the condition of the bridge, and may be presumed to have considered it safe, else he would not have given the permission on the day in question, as he had often done before, to cross it unattended. It is hardly possible tha. he had not seen these openings again and again, but he also knew that the bridge was perfectly safe for travel in the ordinary way, while a child might be injured there, as he might have been injured almost anywhere, by courting danger in walking in dangerous places.

Upon careful consideration of the case, we are unable to see any such negligence on the part of the defendant company as to render them liable in this action. As before observed, it was a safe bridge for the ordinary purposes of travel. The child who was killed was not using it in the ordinary way. He was walking upon the gas-pipe, where he ought not to have been, and which was so dangerous that his younger brother remonstrated with him, and warned him to get off. It is not necessary to impute negligence to the child; it is sufficient that he was injured, not as the result of the use of the bridge, but as the consequence of his venturing, in his childish recklessness, where no one, child or adult, had any business to be.

We are of opinion that the defendant’s first point should have been aflirmed. Judgment reversed.

APP%$L—JUSTICE OF THE PEACE—RULES OF COURT—ISBUE—TRIAL wrrnou'r— AWER.

An appeal from a justice of the peace had been placed upon the issue docket without bein properl at issue. A rule of court provided that, “if a cause is not struck 0 the list or want of an issue when the list is first called over,” neither party shall afterwards object to the want of a formal issue, but the cause shall proceed to trial on the general issue. This cause was not struck off the list. no motion being made to that effect, and the judgment of the justice was atfirmed. Held, after the judgment, that it was too late to object, as the party was concluded by the rule.

Error to common pleas, Greene county.

Appeal from the judgment of an alderman in a case wherein David Slusher, in right of Elizabeth Slusher, was plaintiff, and William Goodwin, defendant.

The justice had entered judgment for plaintiff, and defendant had appealed therefrom. This appeal the prothonotary put upon the issue docket Without putting in the plea of nil debet, as required by rule of court. The cause got on the trial list; and Goodwin, having no counsel, did not know of it, and the court affirmed the judgment of the justice under another rule of court. Some time after the entry of the judgment, Goodwin petitioned the court to open the judgment, which was refused; whereupon Goodwin took this writ, alleging that the court had no power to enter the judgment. Section 7 of rule of court 38 provided that, “if a cause is not struck off the list for want of an issue, when the list is first‘called over, neither party shall afterwards object to the want of a formal issue as a ground for continuance, but the court will enter the general issue on the record, and the cause shall proceed to trial on such issue, with leave to add any other plea on the trial which justice may require.

Purman 0': Ross, for plaintiff in error.

Defendant, having filed his appeal in time, was entitled to be heard before the court and jury. unless he has lost that right by default. He has not, as issue was not joined. Green v. Hallowell, 9 Pa. St. 53; Bisbing v. Albertso'n, 6 Watts 80 S. 450; Coal Co. v. Hutchinson, 11 Luz. Leg. Reg. 84; Jamieson v. Pomeroy, 9 Pa. St. 230; Gannon v. Fritz, 79 Pa. St. 307; Dailey v. Green, 15 Pa. St. 128; Freem. Judgm. § 117.