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imprisonment, aud that it must be the imprisonment of trying that question in advance, and that he was
that all persons acting under it are without protection;
called upon him to decide whether he had jurisdiction as it would had the complaint laid the offense within
and authority to act or not; while here the facts prethe time limited, but the evidence had shown it with- sented had no color of legal value, and the defendant's out the time. Magistrates of neither superior nor infe- action in the premises was but the commission of an rior courts are answerable for a want of jurisdiction
official wrong. arising from a mistake of fact that they had no means Whatever the decisions elsewhere hare been on the of discovering nor correcting, nor when they would subject-and they are not uniform-we deem it imposhave had authority to act had the facts been as alleged sible to sustain this plea without overruling several by the party. Lowthor v. Earl of Radnor, 8 East, 113; decisions of this court that have loug been recoguized Pike v. Carter, 3 Bing. 78; 1 Smith Lead. Cas. 1135.
and practiced upon as the settled law of the State. In Aiken v. Richardson, 15 Vt. 500, it was held-as it Judgmeut affirmed, cause remanded, and repleader has been since in Muzzy v. Howard, 42 id. 23—that un- awarded on the usual terms. der the statute against arrest and imprisonment Powers and Veazey, JJ., dissent. for debt there was no competent jurisdiction to issue a capias without the requisite affidavit, and that the case was analogous to the cases that proceed on the MASTER AND SERVANT_“ FELLOW SERVANT" ground that jurisdiction of the process is as essential
- FOREMAN- BURDEN OF PROOF. as jurisdiction of the person and of the subject-matter. And Smith v. Bouchier, 2 Str. 993, was referred to ap
MINNESOTA SUPREME COURT, APRIL 24, 1884. provingly, which was trespass and false imprisonment against five, who justified under process of the Uni
PARKER V. ST. PAUL, M. & M. Ry. C'0.* versity of Oxford, for that by the custom, a plaintiff
The plaintiff, with other servants, was employed to assist in making oath that he had a personal action against any
handling and removing cars in the yards of the defendant, party within the precincts of the university, and that
including also as a part of his duty the removal of damhe believed the defendant would not appear, but run
aged or broken cars to the proper place for repairs, under away, the judge might award a warrant to arrest him,
the direction of a foreman, who was subject to the orders and detain him till security was given for his answer
of a yard-master and division superintendent. Held, that ing the complaint; that the defendant Bouchier made
as respects risks arising from the acts and omissions of a complaint to the defepdant Shippen, the vice-chan- such foreman in the course of such employment, he was cellor, of a personal action against the plaintiff, and to be deemed the fellow-servant of plaintiff, that he suspected the plaintiff would run away; that The burden rests upon the servant claiming to be injured in he took his oath of and upon the truth of the premises such case to show that the injury is the result of the masupon which a warrant was granted to the other de- ter's default or negligence in respect to some duty belong. fendants, whereon plaintiff was arrested. The court ing to him as master. held that the custom was not pursued, for that by it
AT the plaintiff was to swear to his belief of the defend.
PPEAL from order of District Court, Hennediu ant's design to run away, whereas he only swore that
county. he suspected it, which was not the same thing; and
Benton and Roberts, for appellant. the plaintiff had judgment against all the defend- Arthur M. Keith, for respondent. ants. Wright v. Hazen and Gordon, supra, was a case for
VANDERBURGH, J. For the purposes of this appeal false imprisonment against the party and the justice
it must be taken as admitted that the plaintiff, at the for an arrest for debt without the requisite affidavit.
time of the injury complained of, bad been for sereral As to the justice, the pleadings left the case to stand
months in the employ of the defendant as a brakeman on the fact that the plaintiff was a resident citizen at
in the yard of the company at Minneapolis. It was the time the writ issued, so the plaintiff had judge
his duty, in connection with an engineer, foreman and ment on the pleadings; but in view of a repleader be
other employees, to assist in handling and moving ing awarded, the court said that all it would be neces.
freight cars for different purposes, including damaged sary for the justice to show was that the original writ
or broken cars, which were required to be transferred described the plaintiff as a non-resident, and that he
to repair tracks in the same yard. While thus ensigned it supposing such to be the fact, having no mode
*S. C., 19 N. W.Rep. 349.
gaged with them in the course of his employment, on servant. The duty of handling such cars, after inspecthe day in question, in removing a damaged car, and tion, belonged to these men as the servants of the while in the act of uncoupling it from an engine, and company in their particular department of duty, irrewithout fault on his part, his hand was severely in- spective of the particular grade of employment of each jured, in consequence of the coupling attachment be- in the division of labor necessarily incident to the sering out of repair, of which faot he was not at the time vice. And it was not a duty or service which was be
ing performed by the foreman as master as respects the It was a matter of daily occurrence for these men to question of liability to other employees. In other be so engaged in removing cars. As to the particular words, it was a servant's, and not a master's duty he car in question, it appears that it was promptly in- was discharging. spected by a car inspector after it was broken, and set 2. It is the duty of the master to use reasonable diliout upon a side track to be transferred to the repair gence in the employment of servants to secure such as track, and the inspector at the same time caused “bad are competent and reliable, and to provide them safe order" cards to be fastened on each side of it, in the and suitable machinery, appliances and equipment, oustomary way, which indicated that it was to be so and also to establish and promulgate suitable and removed for repairs, and the signification of which was needful regulations for the safe and proper conduct of well kuown and understood by the employees in the its business, having reference to its risks and exigenyard, including the plaintiff. It thereupon became cies; and these are duties which belong to the master their duty, under the direction of their foreman, to as such, and in the performance of which he is bound remove the car to the proper place for repairs. The to exercise such diligence for the protection of his emplaintiff had on a previous day observed this car, and ployees; and if they are performed through an agent, that it was so marked, but under the circumstances in of whatever grade, he must be deemed to represent which he was ordered to uncouple it, he did not recog- the master, and the latter is accordingly responsible nize or identify it. The engine had been coupled to it, for their negligent performance. Slater v. Jewett, 85 and the foreman, as we must assume from the verdict, N. Y. 73, 74; Fuller v. Jewett, 80 id. 52. But where gave plaiutiff the wrong signal, indicating that it was there has been no lack of diligence on the part of the to be sent to a track which was not in the direct line master in the performance of these duties, it is manior route to the repair track, and ordered the plaintiff fest that the use and operation of the machinery, and to uncouple the car from the engine at the proper time the execution and managemeut of the details of the to carry into effect such order, and the latter uot un- business, must necessarily be committed to those who derstanding that the car was on the way to the repair from the nature of their employment, for a common track, mistook its character, and failed to exercise the master and a common purpose, are co-servants, who proper caution in the process of uncoupling it. The must each, among the hazards of the employment, be plaintiff's evidence warrants the inference that if be deemed to assume the risk of the negligent acts, omishad observed the marks upon the car, which he did sions or mistakes of fellow servants, just as he takes not do, being called to act quickly, he would have pro. the risk of imperfections in machinery which may ceeded more cautiously; and so also if the foreman prove unsafe in fact, though selected and inspected under whom he acted had given the proper signal to with due care. Rose v. Railroad Co., 58 N. Y. 217; indicate that the car was on the way to the repair track Besel v. Railroad Co., 70 id. 171; Wright v. Railroad he would in like manuer have protected himself. This Co., 25 id. 566; De Graff v. Railroad Co., 76 id. 125; foreman was acting under a yard maste who was his Ladd v. Railroad Co., 119 Mass. 412; Holden y. Railsuperior, and the latter in turn was subject to the or- road Co., 129 id. 276. In this case the car had been with. ders of the division superintendent of the com- drawn froin actual service in the business of the company.
pany, and duly inspected and marked for repairs. That It does not appear that the foreman had any other it was a damaged car in process of removal implied no responsibility than as above iudicated. The plaintiff negligence on the part of the company, and there is no was employed to assist him in the matter of handling contention that the defendant did not exercise due cars in the yard, as well damaged or broken cars as diligence in the matter of the employment and retenthose for ordinary service and use.
tion of its servants, or that the appliances and arrange1. As respects the discharge of such duties by the ments for the transfer of such cars, apart from the parties so employed, and any risks incident thereto, question of notice to plaintiff, were not adequate and including the acts and omissions of the foreman, the suitable. Flanugan v. Railroad Co., 45 Wig. 105; Watlatter must be regarded as the co-servant of plaintiff. son v. Railroad Co., 58 Tex. 438. Brown v. Railroad Co., 27 Min. 162; 6 N. W. Rep. 3. The court modified the defendant's sixth request 484; McCosker y. Railroad Co., 84 N. Y. 82; Lawler v. by inserting the words we have italicized, so that as Railroad Co., 62 Me. 466; Weger v. Railroad Co., 55 given it would read as follows: “Sixth. The peril inPenn. St. 460; Brown v. M. & St. L. R. Co., 18 N. W. cident to the coupling of damaged cars is one to which Rep. 834. The foreman was not deputed to act as the every railroad brakeman may be exposed by the very authoritative representative of the master, as superin- nature of his employment, and one which at times tendent or middle-man, vested with a discretion to must necessarily be incurred. The existence of such control and manage a division or department of the peril while such car is being taken to the place of re
business. Whart. Neg. (2d ed.), $ 235. And therefore pair implies no negligence whatever upon the part of
such duties is not attributable to the master. We think by an injured brakeman if he is either directly or by
damaged cars or atebenezi stenicalem efter etc. and is uiage APPEAL from judgment of the General Term of the
of in that the arrangements and regulations made and in first department, entered upon an order roade overoperation for the transfer of such cars might be rea- ruling plaintiff's exceptions and directing judgment on sonably suitable and proper for the purpose, and yet a verdict. through some accident or misfortune, or some negli- This action was brought to recover for work, labor, gent act or omission of a fellow servant in carrying and services alleged to have been rendered by the them out, a brakeman or other laborer might be mis- plaintiff for the defendant. led or misdirected, so as to mistake the character of Plaiu tiff continued in such employment from June the car or its destination, and mistakes or confusion 27, 1874, to March 4, 1876. Periodically and at the end in giving orders may be reasonably expected to occur of every two weeks during that time he received paywithout the fault of the defendant, or its superior or ment for his services at the rate of $2.50 per day. At managing officers.
the time of receiving each payment, the plaintiff signed 4. The question as to the existence or sufficiency of a pay-roll containing a receipt in full. In 1879, three such regulations or usage on the part of the company years after the plaintiff ceased to work for the defend. does not seem to have been considered in this case; ant, he made a demand upon the comptroller for pay. nor does the want of them appear to be shown. In the ment for extra work sought to be recovered in this absence of proof the master will hardly be presumed to action. be in default; nor will it be presumed that regulations or precautions are insufficient because the foreman
Denis A. Spellissy, for appellant. failed to do his duty. Rose v. Railroad Co., 58 N. Y. D. J. Dean, for respondent. 222; Wood, Mast. & Serv., $$ 419-346; Davis v. Railroad Co., 20 Mich. 122; Wright v. Railroad Co., 25 N. Y. RUGER, C. J. We quite conour in the views ex566; Whart. Neg., $ 243; Thomp. Neg. 1053. Iu any pressed by the learned judge writing the opinion of erent, if there was a regulation or usage established and the court below, and could perhaps well rest the de. existing and known to plaintiff, amounting to a direc
cision of the case upon the consideration there given tion as to the disposition of damaged cars, and under to it were it not that the novelty of the provisions conwhich it was the duty of this crew of men to remove
tained in the so-called "eight-hour statute," and the them to track No. 8, plaintiff must be deemed to have large number of persons interested in their construcundertaken and continued in his employment subject tion, render it proper that we should also express our to all the risks incident to such particular duty, and views with reference to their legal effect. The secno liability would attach to the company on account
tion under which the claim in this case is made reads of the mistakes or omissions of the foreman. Flanagan as follows: v. Railroad Co., 50 Wis. 472; 7 N. W. Rep. 337 ; Watson “On and after the passage of this act, eight hours v. Railroud Co., 58 Tex. 438; Railroad Co. v. Ward, 61 shall constitute a day's work for all classes of mechanIII. 131; Haskins v. Ruilroad Co., 65 Barb. 134; 56 N.Y. | ics, workingmen, and laborers, excepting those en608; Wright v. Railroad Co., supra, 570. Fay v. Rail. gaged in farm and domestic labor, but overwork for road Co., 30 Minu. 231; 15 N. W. Rep. 241, has no ap- extra compensatiou by agreement between employer plication to the facts of this case. There a freight car
and employee is hereby permitted." Section 1, ch. 385, was negligently continued in actual use in the business Laws of 1870. The second section makes the law apof the company, without examination or repair, which plicable to persons in the employ of municipal cor. were held to be duties belonging to the master. And porations, and undoubtedly brings the appellant as respects the company's rules for coupling cars, it was within the benefits intended to be conferred by the held merely that an employee could not be charged act. with contributory negligence in not observing a rule It is well to premise that this act was not intended of which he had no notice, and which had fallen into to affect or regulate the rate of wages which should disuse.
govern as between employer and employee. That subOrder reversed and new trial granted.
ject is left by the act, as it must always remain open
to enter into those relations. Experience has shown EMPLOYER AND EMPLOYEE “EIGHT-HOUR that legislation on the subject must always be futile LAW."
and ineffectual, for the reason that it is controlled by
the patural laws determining the value of labor and NEW YORK COURT OF APPEALS, APRIL 29, 1884. property, and which are as much beyond the power of
statutes to affect as they are above the control of the
to be rendered in a calendar day will by the operaby the day, for labor beyond the statutory time, unless it
tion of a silent but inevitable law also reduce correwas provided for in the contract of employment.
spondingly the rate of the per diem compensation to be Plaintiff entered into defendant's employ in the department paid for such labor, and will thus always maintain the
of docks at an agreed price per day, with knowledge that same relation between the services rendered and the
tion to be paid for labor, but left it in terms to the
agreement of the parties. It was one of the avowed statute, was to be paid for by an extra per diem com-
until about three years after the date of the last payUnder a contract which does not specify the hours ment, and no adequate reason is rendered for this of labor, the employee named therein is lawfully en- delay in the presentation of the claim now urged. titled to refuse to labor beyond the statutory time iu Under these circumstances the court below bave any calendar day of his employment; but he may law-found that the extra services in question were not renfully contract to labor beyond that period and stipu dered by the plaintiff or received by the defendant late for extra compensation for the labor rendered in with the expectation or understanding on the part of excess of that time.
either party that they were to be paid for by extra The language of the act does not authorize any in- compensation; and that no promise for their payment ference that it was intended to confer the right upon can be implied from the circumstances. We think this persons employed to charge for more than one day's finding was justified by the evidence, and cannot be labor for the services rendered in any calendar day; disturbed. but on the contrary such an inference is plainly re- The general rule by which a promise to pay for pelled by the express provision authorizing extra com- services is implied from the circumstances of the case pensation for overwork when the agreement provides does not afford any assistance to the appellant in this for it.
By settled rules of construction this provision must Such an implication arises only when the services aro be held to mean that neither extra labor can be re- rendered under circumstances authorizing an expectaquired, uor extra compensation demanded, except in tion of compensation therefor, or the inference that the case of an agreement therefor previously made by they would not otherwise bave been rendered. Livthe parties.
ingston v. Ackeston, 5 Cow. 531; Williams v. HutchinSo when the exigencies of his employment, or the son, 3 N. Y. 312; Griffin v. Potter, 14 Wend. 209. requirements of his employer, call upon the laborer The distinction between an express and an implied for a greater number of hours of labor than those contract is that the first is proved by an actual agreespecified in the statute, it is optional with him, either ment and the other by circumstances and the course to refuse to perform them, or to insist, as the condi- of dealing between the parties. Hill. on Cont. (1st ed.) tion of their performance, upon the payment of extra 54; Add. on Cont. 22. compensation for the extra work; but in the absence of The course of dealing between these parties shows such an agreement, the provisions of the act do not au- conclusively that the whole compensation intended to thorize a demand for the extra compensation.
be paid for the services in question was actually paid There is of course no foundation in this case for at regular intervals of two weeks each. a claim that any such agreement has been made, and The particular question arising under a statute limin fact none is put forward by the appellant.
iting the number of hours constituting a day's work, If it should be held under this statute, as it doubt- when a laborer has served more than the number of less nay, that such an agreement might be implied statutory hours has frequently been the subject of infrom circumstances, those existing in this case do not vestigation in the tribunals of the United and tend to raise such an implication, but on the contrary, neighboring States, and the result, under statutes more quite conclusively tend to repel it.
favorable to the claims of the laborer thau those of It seems quite clear that it could not have been this State, has uniformly been against the implication within the contemplation of either of the parties to of a promise for the payment of such labor. United this contract that the labor rendered by the plaintiff States v. Martin, 4 Ottó, 403; Luske v. Hotchkiss, 37 in each calendar day, beyond the time fixed by the Conu. 219; Brooks v. Cotton, 48 N. H. 50,
Iu United States v. Murtin, under the act of Congress of a particular fund for the payment of the claim there of June 25, 1868, being section 3738 of the Revised brought in question. So does the one at bar. That Statutes, which provided that “eight hours shall con- fact is lacking in the case of People v. Merchants and stitute a day's work for all laborers, workmen and me- Mechanics' Bauk, 78 N. Y. 269; 34 Am. Rep. 532, on chanics now employed, or who may hereafter be em- which the appellant relies; and this distinction is ployed, by
behalf of the government pointed out by the learned judge who delivered the of the United States," it
held that this opinion in that case. Counsel for the appellant conlaw did not make a contract between the govern- tends “that there never was any fund set apart for a ment and its laborers by which eight hours constituted particular object, or any intention or purpose to set a day's work, and that it did not prevent the govern. apart such a fund.” I do not regard this, if true, as ment from making agreements with them by which of much importance, but the appeal papers do not pertheir labor might be more or less than eight hours a mit us to accept such construction. The checks of the day, nor does it prescribe the amount of compensation petitioners were money assets in the hands of the for that or any other number of hours' labor.
bank and were so treated by all parties; they were deIn Brooks v. Cotton it was held, under a statute livered to it with explicit directions to apply the pro. which provided “that in all contracts for or relating ceeds on payment of the notes; those directions were to labor, ten hours of actual labor shall be taken to be a assented to by the bank officer, and the checks col. day's work unless otherwise agreed by the parties;" lected from the general fund. From that moment the that if work is done through the
season at bank was bound to hold the money for and apply it to certain agreed price per day, and the work done that purpose, and no other, or failing to do so, returu from time to time in a day is done and accepted with- it to the petitioner. As to it, the bank was bailee or out objection as a day's work, an agreement may be trustee, but never owner. It is estopped from saying implied that the work done in a day, whether on an that all this is matter of book-keeping. It assumed a average more or less than ten hours, shall be reckoned duty, and the receiver as its representative is bound and paid for as a day's work. It will be observed in by it. Nor does this obligation at all depend, as the this case that the work had not been paid for, and that appellant seems to suppose, upon the question, when, circumstances did not therefore furnish any evidence where, and to whom the notes were to be paid; upon the question. Under the statute of Connecticut whether presently or in the future is immaterial. The of 1866, which provided that “eight hours work done specific object for which the fund was created was the and performed in any one day shall be deemed a lawful payment of the notes, and its character does not deday's work unless otherwise agreed by the parties,” it pend upon those incidental circumstances. The checks was held in Luske v. Hlotchkiss that the only effect of were impressed with a trust, and no change of them the statute is to release the laborer from work and en- into any other shape could divest it so as to give the title him to his day's wages at the end of eight hours, bank or its receiver any different or more valid claim and that if he works more than eight hours a day, un- in respect to them than the bank had before the conless by special request or agreement, he cannot claim version. Van Alen v. Am. Nat. Bank, 52 N. Y. 1; additional compensation for such additional work. Dows v. Kidder, 84 id. 121. (2) The application of the
These authorities seem quite decisive of the question | petitioners to the court below was not a motion under presented by this appeal. We think that there was no section 768 of the Code, but a special proceeding for evidence in the case from which a jury would bave the enforcement or protection of a right under section been authorized to imply a contract upon the part of 3331; costs might therefore be awarded in the discrethe defendant to pay for the labor claimed, and that tion of the court, as on appeal from a judgment taken therefore the court below were justified in deciding to it. Section 3240. People v. Cily Bank of Rochester. the question as they did.
Opinion by Danforth, J. The judgment should be
[Decided April 29, 1884.]
Affirmed. All concur.
BROKER-SEAT IN STOCK EXCHANGE-LIABLE FOR
DEBTS, U.S. R. S., $ 5104-JURISDICTION OF STATE NEW YORK COURT OF APPEALS ABSTRACT. COURT.-There can be no doubt that a seat or mem
bership in the New York Stock Exchange is in a cerTRUST-BANK AND DEPOSITOR--FRAUD-RECEIVER
tain sense property. It has great value to the owner OF BANK--ORDER REQUIRING HIM TO PAY
or possessor, and may under the conditions prescribed COSTS.— The Rochester City Bank having discounted in the Constitution and by-laws, be transferred and certain notes for a firm which was a depositor with it,
transmitted and converted into money.
Grocers' and that firm, wishing to auticipate payment, gave to
Bauk v. Murphy, 60 low. Pr. 426; Ritterband v. Bagthe bank its checks for the amount of the notes less gett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. rebate of interest, which checks the bank received and 3.28; 4.2 Am. Rep. 301; In re Ketcham, N.Y. Daily Reg., charged in the firm account, and entries were made in Feb. 9, 1880; Elliot v. Mer. Ex. of St. Louis, 28 Alb. L. the bank books to the effect that the notes were paid.
J. 512; In the Matter of Werder, id. 176; In re GallaThe firm at the time supposed that the bank held the her, 19 N. B. R. 224; Hyde v. Woods, 94 U. S. 523. notes, but they had in fact been previously sold by the
The question as to the character of the property of bank. Before the notes became due the bank failed, such a seat is so fully discussed in the authorities and in an action, brought by the attorney-general in cited that nothing more is necessary to be added. But the name of the people, a receiver was appointed of its the property in the seat, whatever it was, as between property and effects. Held, that an order requiring the defendant, Jones, and the plaintiff, passed by the the receiver to pay the notes out of the funds in his assignment in bankruptcy, and as between them hands was properly granted; that the transaction be- vested in the plaintiff as fully as it was before postween the bank and said firm was not in their relation
sessed by the defendant. By that assignment the deof debtor and creditor, nor in that of bank and de- fendant was as fully and completely divested of his depositor, but by it a trust was created, the violation property in the seat or membership as he could be by of which constituted a fraud by which the bank could any paper or instrument which he could execute; and not profit, and to the benefit of which the receiver way he could do nothing more to vest complete, perfect not entitled. Libby v. Hopkins, 104 U. S. 303; In re title as against himself in the plaintiff. United States LeBlanc, 14 Jun, 8: affirmed 75 N. Y. 598. Thoso
Rev. Stat., $ 5104, provides that “the bankrupt shall, cases stand upon the ground of a specific appropriation at all times, until he is discharged, be subject to the