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very many authorities are reviewed and commented Having deliberately chosen to wait until the property upon. By these authorities it is settled beyond all not only changed custody, but was also annexed still controversy, that a judge of any court, whether of more firmly by ballasting, he could not then treat as limited or general jurisdiction, is not liable in a civil personalty in the hands of the railroad company, conaction for acts done in his judicial capacity, and withinverted by a mere failure to give it up on demand, what his jurisdiction, even though it be alleged that the acts became to his knowledge a part of realty in the hands complained of were done maliciously and corruptly. of the contractors, against whom he had a remedy for In Pratt v. Grordner, 2 Cush. 68, Shaw, C. J., said: “It the only conversion that ever took place. Morrison v. is a principle lying at the foundation of all well- Berry, 42 Mich. -; 4 N. W. Rep. 739; Pierce v. Godordered jurisprudence, that every judge, whether of a dard, 22 Pick. 559; Fryatt v. Sullivan Company, 5 Hill, higher or lower court, exercising the jurisdiction 116; 7 id. 529; Cooley on Torts, 55. Detroit & Bay City vested in him by law, and deciding upon the rights of Railroad Co. v. Burch. Opinion by Campbell, J. others, should act upon his own free, unbiased convic
MARRIED WOMAN NOT LIABLE FOR IMPROVEMENTS tions, uninfluenced by any apprehension of conse
TO SEPARATE PROPERTY MADE ON HUSBAND'S CREDIT. quences.” In some of the cases, as in Bradley v.
- Plaintiffs placed a furnace in the house of a married Fisher, 13 Wall. 335, it is held that judges of courts of
woman upon the request of her husband and gave him superior or general jurisdiction are not liable to civil credit for the purchase-price. Afterward, on asceractions for their judicial acts, even when such acts are
taining that the house did not belong to the husband in excess of their jurisdiction, and are alleged to have
but to the wife, the plaintiffs, after demanding paybeen done maliciously or corruptly; and a distinction
ment, returned the note they had taken from him and is made between excess of jurisdiction and the clear brought action against the wife. Held, that they could absence of jurisdiction over the subject-matter. In
not recover. Morrison v. Berry, 4 Nev. 739; Newcomb other cases it is held that judges of courts of limited
v. Andrews, 41 Mich. 518; Vanneman v. Powers, 56 N. jurisdiction are liable to civil actions for their acts
Y. 39; Woodruff Iron Works v. Adams, 39 id. 23; done in excess of their jurisdiction. The case of
Wright v. Hood, 5 N. W. Rep. 488. Holmes & Webster Gowing v. Congal, 12 Iowa, 495, does not hold that an
v. Bronson. Opinion by Graves, J. inferior judicial officer is liable where he has jurisdiction. Warren v. Mitchell, 18 Iowa, 155; Landegan v.
SURETYSHIP OFFICIAL BOND - WHEN SURETIES Hariner, 30 id. 155. Jones v. Brown. Opinion by
NOT LIABLE AS TO DUTIES IMPOSED BY LAW PASSED Rothrock, J.
SUBSEQUENT TO EXECUTION. — After the official bond
of a sheriff had been given, an act of the Legislature MORTGAGE - MORTGAGEE IN POSSESSION MUST AC- taxiug the business of manufacturing and selling inCOUNT FOR RENTAL VALUE OF PREMISES. When a toxicating liquors was passed, and sheriffs were remortgagee goes into possession of the mortgaged prem- quired to collect the tax when warrants therefor were ises and does not rent the same to another, he must issued by county treasurers. Held, that the duty of account for the reasonable rental value thereof and collecting taxes was not germane to the office of not for the net proceeds therefrom. In Sanders v. sheriff, and the sureties on his official bond would not Wilson, 34 Vt. 318, it is said: “When the mortgagee be liable for his default therein, in the absence of a himself occupies, and especially when the premises are clear provision in the bond to meet such a case. Gausa farm in cultivation, upon which labor and expendi- sen v. United States, 97 U. S. 584; Converse v. United ture are to be bestowed to produce annual crops and States, 21 How. 463; Commonwealth v. Holmes, 25 profits, the mortgagee will be charged with such sums Gratt. 771. And it must be observed further that in as will be a fair rent of the premises, without regard proceeding to ascertain whether the new duties were to what he may in fact have realized as profits from or were not adventitious, they cannot be considered the use of it. The rule is founded in sound policy, for otherwise as against these sureties, unless their affinity the reason that the particular items of expenditure in to the office is plain and obvious. The rule is one of labor or otherwise, as well as the profits received, are manifest justice. St. Louis v. Sickles, 52 Mo. 122; wholly within the knowledge of the mortgagee; and Mayor of Rahway v. Crowell, 11 Vroom, 207; Citizens' if he is not disposed to render a full and honest ac- Loau Association v. Nugent, id. 215; Amherst Bank count, it would be impossible for the mortgagor to v. Root, 2 Metc. 536; Kitson v. Julian, 30 E. L. & E. show them, or to establish errors in the mortgagee's 326. When an obligation of this kind is created, the account.” To the same effect, see, also, 1 Hilliard on parties, unless they express themselves very clearly to Mort. 33; Daniell's Ch. Pr. (4th ed.) 2223; Washburn the contrary, must be understood as referring to the on Real Prop. 578; Gordon v. Lewis, 2 Sumn. 143; Kel- kind of duties which are fairly appropriate to the office, logg v. Rockwell, 19 Conn. 446; Trimleston v. Hamill, as it then exists, distinct from others. In case some1 Ball & B. 379; Bainbridge v. Owen, 2 J. J. Marsh. thing beyond is meant to be provided for, the provis465; Van Buren v. Olmstead, 5 Paige, 9; Strong v. ion should be made so plain as to leave no reasonable Bianchard, 4 Allen, 538. Barnett v. Nelson. Opinion ground for sureties to allege the failure to understand by Day, C. J.
it. The duties prescribed by the act mentioned were
not equivocal. Their character could not be mistaken. MICHIGAN SUPREME COURT ABSTRACT. They were those of a tax colleotor, and as distinguish
able from such as are properly incident to the office of JUNE, 1880.
sheriff, as are the common functions of a township
treasurer from those of a constable. As stated by CONVERSION - WHEN ACTION FOR, WILL NOT LIE. Field, J., “the duties of sheriff, as such, relate to the A sub-contractor for building a railroad, without right, execution of the orders, judgments and process of the took ties belonging to plaintiff below and put them courts; the preservation of the peace; the arrest and among other ties forming the superstructure of the detention of persons charged with the commission of railroad. In June, 1878, plaintiff notified the presi- a public offense; the service of papers in actions, and dent of the railroad company that the ties were his, the like. They are more or less directly connected but took no steps to recover them though they might with the administration of justice; they have no relaeasily have been identified. The railroad had not then tion to the collection of the revenue." People v. Edpassed under the control of the company and did not wards, 9 Cal. 286. See, also, Pybus v. Gibbs, 88 E. C. pass under its control until nearly six months later. L. 902; Oswald v. Mayor of Berwick, 26 E. L. & E. 85; Held, that plaintiff could not then maintain an action Skillett v. Fletcher, L. R., 2 C. P. 469. White v. City against the company for the conversion of the ties. I of East Saginaw. Opinion by Graves, J.
- OFFICIAL BOND - MISTAKE IN NAME OF OBLIGEE cedure. This subdivision has not been attempted to DOES NOT INVALIDATE. - The statute of Michigan re- be changed and is in full force. quires the sheriff of a county to give a bond to the By chapter 245 of the Laws of 1880, passed May 10, State for the purpose of indemnifying all persons in 1880, chapter 467 of the Laws of 1870 were expressly rewhose favor a duty may arise, to be performed by him. pealed. Laws 1880, p. 373, last clause of No. 46. By This bond is required to be approved by the county chapter 480 of the Laws of 1880, subsequently, May 28, boar:: of supervisors. A sheriff gave a bond which 1880 (Laws 1880, p. 690), the Legislature perpetrated the was duly approved, wherein the county in which he blunder of amending section 1 of chap. 467, Laws 1870, was sheriff, and not the State, was made the obligee. which it had previously repealed. Held, that the bond was valid so as to sustain an action Chap. 480, Laws 1880, is clearly unconstitutional and thereon by a party injured by a neglect on the part of the jurisdiction of the court depends upon the provisthe sheriff to levy an execution and a making by him ions of the Constitution and of section 440 of the Code of a false return thereon. If the several duties which of Civil Procedure. the sheriff is called upon to perform could only arise
Yours truly, because of the statute requiring the giving of the bond,
NATHANIEL C. MOAK. there would be abundant reason for saying that until a ALBANY, Aug. 30, 1880. bond in conformity with the statute was produced, no recovery could be had. But the statute does not im
ANSWERS TO "MIDSUMMER" PRIORITY AMONG pose the duties; they would be the same if no official
MorTGAGEES. bond were required, and a sheriff de facto is charged to the Editor of the Albany Law Journal : with them under the same circumstances as is a sheriff
I suggest this solution of “Midsummer's" legal probde jure. It needs no statute to enable the officer to lem, published in your last number: give a valid bond to perform any such duty; and had
The order of record of the mortgages being C, B, A, the sheriff executed to the plaintiffs a common-law and C, having knowledge of B's mortgage only, it is bond, conditioned that he would duly levy and return clear that C's mortgage must be paid in full, excepting the execution they placed in his hands, there could
as he is affected by his knowledge of B's mortgage, have been no doubt of its validity. United States v.
that is, after deducting the amount of B's mortgage, C Tingrey, 5 Pet. 115; Thompson v. Buckhannon, 2 J.J.
must be paid in full. B, however, is entitled to reMarsh. 416; Governor v. Allen, 8 Humph. 176; Mon-ceive the amount of his mortgage only after A's morttrille v. Haughton, 7 Conn. 743; Commonwealth v.
gage, of which he knew, is satisfied. The only fund Wolbert, 6 Binn. 292. And any bond that may vol- out of which A can be paid, however, is the amount antarily be given to a party for his benefit will be reserved as against C to pay B's mortgage. The order equally valid if given to another for him. Van Hook
of payment would therefore be: v. Barnett, 4 Dev. 268. Aud in the case last cited this
1. To A, the amount of his mortgage, not however principle was applied to the bond of offico of an ad
exceeding the amount of B's mortgage. 2. To B, the ministrator, which, though given to the county justices, amount, if any, by which his mortgage exceeds A's when the statute required it to be given to the gov, mortgage. 3. To C, the entire amount of his morternor, was held to be a valid common-law bond, and
gage. 4. To A, the amount, if any, by which his available as such to any person in whose favor a cause of action against the administrator might arise. County 5. To B, such part of his mortgage as he did not re
mortgage fell short of the amount of B's mortgage. of Bay v. Brock. Opinion by Cooley, J.; Graves, J., ceive as second distributee, that is, an amount not exdissented.
ceeding the amount of A's mortgage. CORRESPONDENCE.
In the case supposed by “Midsummer,” of each mortgage being $5,000, and the property bringing
$10,000 (disregarding expenses, taxes, etc.), the distriTo the Editor of the Albany Law Journal:
bution would be: 1. $5,000 to A; 2. $5,000 to C; 3. In re as to whether Dr. Buchanan's bail could be Nothing to B. held in the case of his death by suicide?
B cannot complain because he took subject to C's I don't understand his bail were under bonds to pre-prior recorded mortgage for $5,000, and to A's mortsent his soul (if he has any), and if they produce his gage for $5,000, of which he knew. "body," though dead by his own hands or by any other The problem is more interesting if A's mortgage be means, why should they not be exonerated ? but I for- less than $5,000, say $4,000, and B's mortgage more get; this is asking you a question.
than $5,000, say $6,000. The distribution would then Yours truly,
be: 1. To A, $4,000. 2. To B, $2,000. 3. To C, $4,000.
E. C. STEBBINS. C cannot complain, for he took with knowledge of a LOCKPORT, N. Y., August 28, 1880.
prior mortgage of $6,000, and it does not concern him
how or to whom the $6,000 is paid. And B cannot comCOUNTY COURT JURISDICTION.
plain for the reason mentioned in the former case. To the Editor of the Albany Law Journal:
If A's mortgage were $6,000, and B's $4,000, the dis
tribution would be: 1. To A, $4,000. 2. To C, $5,000; I see several of your correspondents are "exercised” over chapter 480 of the Laws of 1880, which attempted 3: To A, $1,000 additional, receiving in all $5,000; being to give county courts jurisdiction when the relief $1,000 less than bis mortgage.
A cannot complain, because he took subject to the demanded for the recovery of a sum of money not exceeding $3,000,” etc. It seems to me there need be prior recorded mortgage for $5,000, of C, who was in
nocent as to A, nor for the same reason as before can little apprehension of difficulty.
B complain. The Constitution, art, 6, § 15, provides that county
Did this problem ever really arise ? courts shall “have original jurisdiction in all cases
NEW YORK, August 21, 1880.
E. M. S. where the defendants reside in the county and in which the damages claimed shall not exceed $1,000."
This provision per se confers jurisdiction in cases To the Editor of the Albany Law Journal : where the relief sought is a money judgment not ex- Your correspondent, “Midsummer," in No. 8 of ceeding $1,000 if defendants reside in the county. No current volume, puts a question which at first sight legislative provision was necessary in that class of appears to be a puzzler; but referring to his communicases. The Legislature has however provided therefor cation for a full statement of the case, it seems to me in subdivision 3 of section 340 of the Code of Civil Pro- | that his figures as to amounts of mortgages, amount
realized on sale and his manner of stating the facts | ing young and old, sick and healthy, great preparamakes the case seem more complicated than it really tions had to be made, and an extension of time is.
was necessary. This also being accorded, another Suppose M. put it this way: A, B and C hold sepa- | day was appointed, and again no rats appearing, Chasserate mortgages on the same property. They were de- neuz objected to the legality of the summons under livered in the order named, but recorded in the inverse certain circumstances. A summons from that court, order. B however knew that A held his mortgage he argued, implied full protection to the parties sumunrecorded, and C knew of B’s. Now upon foreclos- moned, both on their way to it and their return home; ure,
er" being a careful lawyer, and hoping but his clients, the rats, though most anxious to appear to realize enough to pay all the parties, made his client in obedience to the court, did not dare to stir out of their B the plaintiff, and C and A defendants. What decree holes on account of the number of evil disposed cats should he have taken?
kept by the plaintiffs. Let the latter, he continued, C was first on the record, and knowing nothing enter into bonds, under heavy pecuniary penalties, of A's mortgage, he (C) of course comes in ahead of A; that their cats shall not molest my clients, and the but C knowing of B s mortgage, he must postpone his summons will at once be obeyed. The court acknowllien to that. Hence the decree provides that as be-edged the force of this plausible plea, but the plainttwcen C and A, C's mortgage must be first paid; but iffs refusing to be bound over for the good behavior of as betweeu C and B, the proceeds shall first be applied their cats, the period for the attendance of the rats to the payment of B's priot lien. This in no way was adjourned sine die, and thus Chasseneuz and his prejudices C, for he gets all the law gives him, viz., the clients came off victorious." proceeds subject to the prior lien of B. Then B, although prior to A on the record, kuew that A has his The Law Magazine and Review for August contains unrecorded mortgage; hence the amount set apart for articles on the Decline of Circuit Life, by John KingB must, as between him and A, go first to pay A's mort- horn; Parliamentary Drawing and Conveyancing, by F. gage, residue, if any, to B's.
S. Reilly; Study of Jurisprudence, by Albert V. Dicey; Applying this distribution to the facts, the money
Legal Relations between a Stockbroker and his Cusgoes as follows: “Midsummer”' gets his costs and al- tomer, by F. T. Piggott and Frederick Whinney; Lord lowances (he has well earned them), his client B gets Chief Baron Yelverton, by Waldron Burrowes-an unnothing (not an unusual case), and C gets his $5,000, usually interesting number. - We notice that the and A the residue. Yours truly,
Central Law Journal agrees with us in opinion, that the SUBSCRIBER.
decision in the Ah Chuey case, where the prisoner was Port RICHMOND, S, I., August 23, 1880.
compelled to exhibit tattoo marks on his person to the
jury, on the question of identity, is wrong. To the Editor of the Albany Law Journal: I answer “Midsummer's" questiou as to priority of
In Palmer v. Alleyne, recently tried at Liverpool, mortgages, asked in ALBANY LAW JOURNAL of Au- before Mr. Justice Lindley and a jury, the plaintiff gust 31, 1880, at page 160, as follows, viz. : A's mortgage
had obtained a graut of exclusive burial in a cemetery, was not recorded and C had no knowledge of it, there
had there buried his wifo, had gone away leaving the fore the mortgage of C has preference of payment over grant with the defendant, and in his absence the dethat of A. A stood ahead of B as between A and B,
fendant had in the same grave buried his mother, stepbut lost his priority, which went to C, who stood be- mother of the plaintiff's dead wife. The plaintiff hind B. As C, who stood behind B, worked ahead of
brought trespass, but the case was settled. — Iu A, by reason of A's NEGLECT in not recording his mort
Healey v. Jeffries, tried before Mr. Justice Fry and a gage, B now can claim the payment of his mortgage jury, the defendant was master of a work-house, who over A, and A is out in the cold.
had detained the plaintiff, a lady's maid, on a charge of Yours,
delirium tremens, which turned out to be hysterics. EGBERT WHITAKER.
This cost the defendant 801. SAUGERTIES, August 25, 1880.
The High Court of Justiciary in Scotland has had to
decide a curious charge of cruelty to animals preferred NOTES.
under the Prevention of Cruelty to Animals (ScotHE
land) Act, which is in the same terms as the corretains an interesting article by William M. Iving, sponding English act. The appellant and his wife were on Comparative Jurisprudence. The writer concludes walking in Leith with two dogs which were attacked that two great lessons of this science are the exact
by a larger dog. The dogs were separated once, but nature of the relation of custom to law, and the exact began to fight again. Neither the appellant, nor his nature of the relation of custom and law to legisla- wife, nor his servant, nor a policeman, were able to tion. From Legal Prosecutions of Animals, by Wil- separate them. The appellant, having destroyed his liam Jones, in the same periodical, we extract the
umbrella in his efforts for the protection of his own following: “The citation contained a description of dogs, fetched a knife from his house, which was close the animals; thus, in a process against rats in the dio by, and inflicted several stabs on the large dog, from cese of Autun, the defendants were described as dirty the effects of which it died on the following day. The animals in the form of rats, of a grayish color, living in police magistrate fined him thirty shillings, and it was holes. This trial is famous in the annals of French argued in support of the conviction that the appellant law, for it was on that occasion Chasseneuz (who wrote bad committed an offense within the statute, since he a work in 1588, on the excommunication of animals), needless pain by causing the dog to die a lingering and
had been guilty of wanton cruelty, and had inflicted the famous advocate, won his first laurels. The rats not appearing on the first citation, Chasseneuz, their painful death. The court, however, allowed the apcounsel, with true legal subtilty, argued that the sum
peal. The Lord Justice Clerk, after observing that "it mons was of a too local and individual character; that is not comfortable to try to separate dogs which ara as all the rats in the diocese were interested, all fighting," held that there had been no cruelty within the rats should be summoned. This plea being ad
the act, which was only aimed against persons who mitted, the curate of every parish in the diocese was
niake an animal suffer without cause. The court, instructed to summon every rat for a future day. | ion as to whether the appellant was liable to an action
however, expressly abstained from expressing an opinThe day arriving, but not any rats, Chasseneuz de- at the suit of the owner of the deceased dog.- Solicitclared that as all his clients were summoned, includ- ors' Journal.
The Popular Science Monthly
, for September, con
to the poor.
and beloved friends of the Virginia bar, arraying The Albany Law Journal.
themselves on the side of good sense, law and orALBANY, SEPTEMBER 11, 1880.
der, moral courage and christianity, against the false idea of chivalry and the infraction of human and
divine law involved in duelling. CURRENT TOPICS.
The apparent disadvantage of living in a country IN the current number of the Virginia Law Jour
like France or South Carolina, where they have no
divorce, is shown in the recent trial of the Comtesse lett - grandson of Patrick Henry of Revolutionary
de Tilly at Poitiers. A contemporary says: “The fame — who died in 1870, aged 45. He seems to countess confessed throwing vitriol in the face of have been a brilliant popular orator, a lawyer en- a young girl, destroying one eye and disfiguring her gaged in important causes, a leading politician, and
for life, having been told the terrible effects of the & statesman of promise. At the present time we
liquid by the chemist of whom she bought it. The find an appropriate text in the following extract:
jury, after a 'touching address from her advocate,' “In 1859, Patrick Henry Aylett challenged and acquitted her, on the ground that the girl was her fought a duel in North Carolina with the chivalrous husband's mistress, that she had paid the medio and lion-hearted 0. Jennings Wise, whose untimely
expenses and made compensation, had learned Latin fall at Roanoke Island lost to his native State a son
and Greek to teach her children, and was generous whose valor and brilliant genius shone with meteoric
But the French jury had an splendor along the short path of his early manhood. Mr. Wise was editor of the Enquirer, and Mr. Ay
for so glaring a non sequitur which an English jury lett was writing for the Examiner; their articles, and
would be without. The Comte de Tilly was charged the antagonism which they aroused, excited so much with infidelity and cruelty; and in England his wife heat, that all efforts at amicable adjustment proved might have sued for a divorce. Where no such abortive, and a hostile meeting became unavoidable.
remedy exists, the wild justice which the countess Escaping the Richmond police, they got upon the Danville train some distance in the country, and fought
wreaked on her rival is not unlikely to be followed with pistols early next morning, just over the North
by the equally wild justice which the jurymen beCarolina line. Mr. Aylett's bullet narrowly missed
stowed on her.” In this country we do better, for the person of Mr. Wise. Mr. Wise fired in the air. we not only have divorce generally, but we usually This ended the combat, as Mr. Wise's noble and acquit every person who pleads a “sexual” reason magnanimous behavior disarmed every feeling of for his violence. resentment in the brave and manly bosom of his antagonist. As Mr. Wise, in his duel with Hon. Sher- A citizen has libelled the excursion steamer Sea rard Clemens, fired at and wounded him, it was Bird for the recovery of penalties for carrying a never known why he should have discharged his pistol in the air in his fight with Mr. Aylett, unless greater number of passengers than she was by law
authorized to carry. it was because his adversary was very near-sighted,
The action was brought under and was, moreover, a married man with several smaủ section 4465 of the Revised Statutes, and section children, Both gentlemen bore themselves before 4469 makes the penalty a lien on the vessel. The the duel, upon the field, and afterward, in a manner libellant is entitled to recover the amount of the fare worthy of their names and ancestry. In courtesy, and $10 additional for each and every passenger calór, and magnanimity, neither Richard of the Iron- carried in excess of the number which the vessel is Heart nor Ivanhoe could have surpassed them.”
allowed by her certificate to carry. Pollock claims We have italicised some words to point our reflec- that the Sea Bird carried an excess of 371 passentions. The picture that we have is that of a lawyer gers on July 11 from New York to the Highlands, and statesman, deliberately breaking the law, and and an excess of 237 on the trip made that day from sending a challenge on account of an editorial dis- Sandy Hook to Bay Ridge. The case was before cussion, resisting friendly intervention, evading the Judge Choate, in the United States District Court, officers of justice, fighting a duel, spared by his an- recently, for hearing on objections made by the detagonist on account of his defective eyesight, and fendants, the libellees. These objections were that for the sake of his little children whom their father the suit should be begun in the name of the United seemed to have forgotten, and compared by his States; that the statute does not give a remedy by biographer, his brother, to a brutal and cruel hero libel in admiralty against the vessel, but only against of a barbarous age. This picture would better have the master and owners personally, and that the libelbeen omitted from the memoir of a lawyer and lant does not appear to have been a passenger or to statesman. It seems out of place in a legal journal. | have been damaged by the act complained of. The We would fain believe that the senseless, unlawful, objections were overruled. The statute makes the and wicked fashion of duelling is going out of penalty recoverable by “any person suing for the vogue in the new South. It seems to be growing same." Whether this citizen is actuated by mounpopular even in South Carolina. If New Yorkers tives of public or of private good, the step is an boast of the fame of Alexander Hamilton, they do excellent one. A few recoveries will do much to not dwell on the manner of his death. He died as prevent such horrible catastrophes as that of the the fool dieth. But then and now are different Sewanhaka. It is a pity that more private citizens. eras. We should be glad to see our esteemed con- will not interest themselves in the enforcement of temporary, the Virginia Law Journal, and our learned the laws for public safety.
VOL. 22.– No. 11.
The employers' liability bill has passed the House men carelessly spills-a pot of molten iron over anof Commons. It provides for the liability of the other, while endeavoring to obey the superintendemployer to the workman for injury by reason of ent's instructions. Is the master liable? If so, why defective machinery or appliances; the negligence should he be ? He has not been careless, nor has of a superintendent or any person to whose orders his delegate, the superintendent. The master would the workman was bound to conform; the act or omis- not have been liable if the superintendent had not sion of any person done or made in obedience to the given “particular instructions." Why should the employer's rules or by-laws, or in obedience to par- “particular instructions” make the master liable ? ticular instructions given by any person delegated It is probable that all the employers touched will with the authority of the employer; the negligence now exact a contract of hiring, releasing them from of any person who has charge or control of any sig- these liabilities, in consideration of a trifling innals, points, locomotive engine, or railroad train. crease of wages, as Lord Bramwell has pointed out. The right of action survives in case of death, and in that case the right and remedies are the same as We publish in full the opinion of Judge West.' if the workman had not been in the service of the brook on the question of license to sell ale and beer. employer. In case of defective machinery, etc., The question is not only important to a large body the liability does not arise unless original defect or of people, dispensers and recipients of the beverthe omission to repair it springs from the negligence ages aforesaid, but gains interest from the fact that of the employer or some one in his service charged Judge Barnard disagrees with its conclusions. The with the duty. No rule or by-law approved or ac- point of disagreement seems to be this: when the cepted by any department of government under au- act of 1870 extends the act of 1857, when not inthority of Parliament shall be deemed improper. consistent with it, over the whole State, is the No liability arises in case the workman knows of original act of 1857 alone extended, or does the ex. the defect or negligence, and neglects within a rea- tension also carry the amendment to that act passed sonable time to notify the employer or some superior in 1869 ? Judge Barnard holds that the extension to the workman, unless he knows that the employer does not embrace the amendment; Judge Westbrook or such superior already knows of the defect or neg- holds that it does. Judge Barnard also holds that ligence. No action is maintainable unless written no beer license can now be granted outside the menotice of the injury or death is given within six tropolitan police district, apparently overlooking weeks, and action is brought within six months; but O'Rourke v. People, 3 Hun, 225; 5 T. & C. 496. It in case of death the want of notice shall be no bar is understood that Judge Erastus Cooke, of the if the judge thinks the omission excusable. The Second Judicial District, sustains Judge Westrecovery shall not exceed the estimated earnings of brook's view. a person in the same employment, grade, and dis
NOTES OF CASES. trict, for the three years next preceding the injury; and shall be diminished by the amount of any sum
DVANCE sheets of the 13th Rhode Island Repreviously paid by way of penalty for the same neg- A
ports bring us several interesting cases. In ligence under any other act of Parliament. A superintendent is a person whose sole or principal of repair controlled a yard occupied by a tenant.
Bradbury v. Furlong, 14, F. owned and for purposes duty is superintendence and who is not ordinarily In the yard was a cistern on which F. had put a engaged in manual labor; the term “employer" includes a body of persons, corporate or unincorporate; knowledge of F., and a wooden cover weighted with
This was removed without the
proper iron cover. "workman means a railway servant and any per
a stone but claimed to be insecure was substituted. son to whom the Employers and Workmen Act of 1875 applies.
A child three years old living in a tenement, the
yard of which was contiguous to F.'s yard and conThe Employers and Workmen Act of 1875 de- nected with it by an open gateway, fell into the cisfines “workman" as excepting domestic and menial tern and was drowned. In an action by the adminservants, and including laborers, servants in hus- | istrator of the child against F., brought under the bandry, journeymen, artificers, handicraftmen, mi- statute, giving a right of action for an injury inflicted ners, or others engaged in manual labor. It will by a wrongful act causing death, held, that F. was thus be seen that the new bill excludes domestic and not liable. The court said: “This court has demenial servants, and does not cover the case of a cided that in order to maintain an action under this servant suffering injury from the negligence of a section it is not necessary to prove that the injury mere fellow-servant, having no authority over him, was inflicted by the defendant in person, but that except when in obedience to the employer's rules or it is enough to prove that it was inflicted by his by-laws, or his particular instructions to a delegate agent or servant, and also that it is not necessary to of his authority, or in case of certain railway em- prove that the injury was purposely inflicted, but ployees. Now what is meant by “rules ” ? Does that it is enough to prove that it resulted from some it mean only written rules, or does it include oral act carelessly or negligently done by the defendant, instructions ? This seem to us extremely vague, and his agent or servant. Chase v. American Steamboat doubtless will give rise to considerable discussion in Co., 10 R. I. 79; McCaughey v. Tripp, 12 id. 449. the courts. Take the case of a foundry under the The court has gone thus far in compliance with the direction of a superintendent. One of the work- rule that remedial statutes are to be liberally con