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The Supreme Judicial Court of Maine, in the case of Emerson v. Europ. & N. Am. Railway Co., 67 Me. 387 holds that a mortgage by a railway company of "all its right, title and interest in and to all and singular its property, real and personal, of whatever nature and description now possessed, or to be hereafter acquired, including all its rights, privileges, franchises and easements, "cannot be regarded at law as including money earned by the railway company in carrying freight for an express company under a contract entered into after the mortgage was made. This is an application of the common-law maxim of Nemo dut quod non habet. There are apparent departures from this principle, but those are where the results are produced by other principles not inconsistent with it. Thus where property has been added to mortgaged property by way of accession, natural or artificial, and the property annexed cannot be separated from the other without much injury, it is permitted to remain. For instance, a house is built on mortgaged land or a fixture is added to a house. And a man may sell property of which he is potentially in possession, such as the wine his vineyard will produce, the grain his field will grow, the milk his cow will yield, what may be taken at the next cast of his fishing net, fruits to grow on his trees, or young animals not in existence, the offspring of animals, owned by him. 2 Kent's Com. 468, note (a). The thing sold must, however, be specific and identified. A person cannot sell the products of a field he expects to own. Farrar v. Smith, 64 Me. 74.

was the mere agent or servant of the defendants in doing the work they would be liable for his negligence in leaving the coal hole open, but if his employment was an independent one, they would not be liable. This is in accordance with the distinction recognized in numerous cases in England and this country. It is well settled that employers not personally interposing or giving directions respecting the manner of the work, but contracting with a third person to do it, are not liable for a wrongful or negligent act in the performance of the contract, if what was agreed to be done was lawful. Gray v. Hubble, 32 L. J. Rep. (N. S.); Hillard v. Richardson, 3 Gray, 349; Blake v. Ferris, 5 N. Y. 48; Painter v. Mayor of Pittsburgh, 10 Wright, 213. The fact that the contractor is paid by the day does not necessarily destroy the independent character of his employment. Forsythe v. Hooper, 11 Allen, 419; Corbin v. America Mills, 27 Conn. 274. If one renders service in the course of an occupation repre-option to purchase the machine within a year when senting the will of his employer only as to the result of his work, and not as to the means by which it is accomplished—it is independent employment. See Pack v. Mayor of New York, 8 N. Y. 222; Barry v. City of St. Louis, 17 Mo. 121; Mercer v. Jackson, 54 Ill. 397.

the payments of rent were to apply toward the purchase-money. He paid rent for two months, and then did not pay for nine months when he became bankrupt. The company claimed the machine from the assignee in bankruptcy and asked to be permitted to prove for the balance of rent due. The matter was referred to a jury to determine whether there was a custom or usage in Ireland, allowing such contracts of sale of sewing machines as this one, where the title to the property was to remain in the vendor after he had parted with possession. The jury found that there was such a custom. The court held that the custom was not an unreasonable one, and thus the company was entitled to resume possession of the machine, and this, notwithstanding its laches in allowing the installments of rent to remain so long overdue. The court, however, expressed its disinclination to favor such contracts by refusing to grant the successful party any costs. The Irish Law Times in an article upon the decision

gives instances where the Irish courts have condemned these contracts as "entirely at variance with all principles of fair trading," (Mackintosh v. Kerwan, Q. B. Div., Feb. 4, 1878; Ex parte Harpus, Re Smith, 9 Ir. L. T. Rep. 52) and cites several articles and cases which have appeared in the ALBANY LAW JOURNAL as sustaining the view taken in the Irish courts. See 15 Alb. L. J. 64; 16 id. 442; 17 id. 98.

Here when

There must even in equity which sometimes enforces
these pledges of property to be acquired, be some
subject for the contract to attach to.
the mortgage was made there was no contract
with the express company for the carriage of freight.
See, also, Brachett v. Blake, 7 Metc. 335; Mulhall v.
Quinn, 1 Gray, 105; Law v. Pew, 108 Mass. 347; 11
Am. Rep. 357.

In the case of Ex parte Singer Sewing Machine Co., Re Blackwell, 12 Ir. L. T. Rep. 57, decided by the Irish Court of Bankruptcy on the 16th of last month, the familiar sewing machine contract question came up. A sewing machine was let on hire to a trader by the company mentioned on an agreement that the trader should pay a certain monthly rent, and keep the machine in his own custody, and that, if he should fail to perform on his part, the machine might be taken by the company which might also recover the amount of rent in arrear. He had an

The Supreme Court of Ohio in Matter of Victor, 31 Ohio St. 206, passes upon a peculiar question, and one which has not heretofore been presented before the courts, namely, whether to render valid a commutation by the executive of the punishment of a convicted and sentenced criminal, the criminal must accept or acquiesce in such commutation. The court holds that the commutation is presumed to be for the culprit's benefit, and is valid without any action on his part.


v. The Grand Junction Railway Company, 3 M. & W. 244, where it was held in a case of a collision between two trains, that the plaintiff must show the accident to be due exclusively to the defendant's

THE Court of Appeals in Robinson v. New York Railroad Co., N. 11, manifested an unusual degree of timidity or rather caution in regard to the question of imputed negligence, and that joint negligence of the defendant, with other persons having charge of the train in which the plaintiff was traveling, was not sufficient.

negligence. The facts of that case were that the plaintiff a woman - was invited to ride by one Conlon in his carriage and accepted the invitation. Conlon was a fit and proper person to manage a horse; but through the alleged negligence of the defendants' servants, its train was run against the carriage, and plaintiff was injured. The defendants alleged that the negligence of Conlon contributed to the injury, and that this negligence was imputable to the plaintiff, but the court below charged that even if Conlon was negligent the plaintiff would not be responsible therefor, and this ruling was sustained by the Court of Appeals. The opin

ion of the court ends thus: "It is not intended by

this decision to establish a rule which will embrace cases not within the facts developed in this case, as construed by the court and found by the jury."

The English decisions are undoubtedly in favor of privity in negligence. The point was first raised m Thorogood v. Bryan, 8 C. B. 115, which was an action under Lord Campbell's act. The deceased, wishing to alight from an omnibus in which he was a passenger, got out while it was in motion, and without waiting for it to draw up to the curb; and, in doing so, he was knocked down and fatally injured by an omnibus belonging to the defendant. Williams, J., who tried the cause, told the jury that if they were of opinion that want of care on the part of the driver of the omnibus in which the deceased was traveling, or on the part of the deceased himself, had been conducive to the injury, their verdict must be for the defendant. A rule for a new trial on the ground of misdirection having been obtained, was, after consideration, discharged by the court, Coltman, J., observing: "The negligence that is relied on as an excuse is not the personal negligence of the party injured, but the negligence of the driver of the omnibus in which he was a passenger. But it appears to me that, having trusted the party by selecting a particular conveyance, the plaintiff has so far identified himself with the owner and her servants, that if any injury results from their negligence he must be considered a party to it." To the same effect Maule, J., says: "On the part of the plaintiff, it is suggested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant, the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it."

In The Milan, Lush. Adm. 388, Dr. Lushington said he would not be bound by and did not approve of Thorogood v. Bryan, and in the note to Ashby v. White, 1 Smith's L. C. (6th Eng. Ed.) 266, that case was sharply criticised. See, also, S. C., 7th Am. Ed. at p. 481. And consult Rigby v. Hewitt, 5 Exch. 240, and Greenland v. Chaplin, id. 243.

The question was again directly involved in Child v. Hearn, 22 W. R. 864; L. R., 9 Ex. 176. The facts of that case were as follows: The plaintiff, a plate

layer, in the employment of a railway company, was returning from work along their line upon a trolly, when some pigs belonging to the defendant escaped from his field, which adjoined the railway, and running on to the line in front of the trolly, upset it, thereby causing the injury to the plaintiff for which he sought to recover damages from the defendant. A verdict was entered for the plaintiff, which the court afterward set aside, holding that the company had not maintained a sufficient fence under 8 Vict., c. 20, s. 68, and that the plaintiff could not recover, since he was identified with the company whose line he was using for their purposes. Bramwell, B., in his judgment, observed: "The plaintiff was a servant of the owner of property which was unfenced through the owner's default. It is manifest, as I have before said, that if the pigs got on to that unfenced property through its owner's default, the owner could not maintain an action; and, if so, it is impossible to say that a third person using the property through the license of the owner, and on his behalf, can. The servant can be in no better position than the master when he is using the master's property for the master's purposes. Therefore, without saying any thing as to the decision in Thorogood v. Bryan, it is sufficient to say that the defendant's pigs escaped through the negligence of the plaintiff's employer, and that, having met with the accident through his employer's neg ligence, the plaintiff can maintain no action against the defendant."

This decision has recently been followed by the same court in the case of Armstrong v. The Lancashire and Yorkshire Railway Company, 23 W. R. 295; L. R., 10 Ex. 47. The plaintiff, who was in the employ of the London and North-Western Railway Company, sued the defendants, over whose line the North-Western have running powers, for compensation for an injury he had sustained from a

A like decision was come to in the case of Bridge | collision between some of the defendant's trucks

and a North-Western train in which he was traveling. It appeared that the North-Western train being late, the station-master at one of the defendant's stations ordered the trucks in question to be shunted, the signals being put at "danger" while this was being done. Notwithstanding this, the driver of the North-Western train came on, and the collision ensued by which the plaintiff was injured. The jury found that there was negligence in the defendants in shunting at a time when the North-Western train was overdue, and in the driver of the latter in disregarding the signals, and must be assumed that it was on the part of the defendants negligence proximately contributing to the accident. A verdict was thereupon entered for the defendants, which the court refused to disturb.

BRAMWELL, B., said: "I am of opinion that this rule must be discharged. It is impossible, I think, to distinguish the present case from Thorogood v. Bryan, except in one particular, and that is in the defendants' favor. It must not be supposed, so far as my individual opinion is of any value, that I am at all dissatisfied with the decision in Thorogood v. Bryan. It has been admitted by Mr. Pope that, if his contention is right, the owner of a bale of goods, which was being carried by the defendants, and had been damaged by an accident similar to the one from which the plaintiff has received injury, would be entitled to have an action. The learned counsel was also constrained to admit that if a carriage had been let to hire and injured by the joint negligence of its driver and the driver of another carriage which came into collision with it, the owner of the hired carriage could maintain an action for compensation for such damage. These, I confess, seem to me to be startling propositions. But there is another difficulty. If the present action is maintainable against the defendants, it is upon the ground that they were joint wrong-doers with the London and NorthWestern Railway Company? If so, there is this difficulty, that one of the wrong-doers is so through contract, and the other by tort. Can there be a joint liability with regard to the negligence or breach of duty toward the plaintiff, and no joint liability as to the contract under which he was being carried? Would another action be maintainable against the London and North-Western Railway Company? Suppose that the plaintiff had merely been an ordinary passenger, could he maintain one action for breach of contract against the London and North-Western Railway Company which carried him, and also another action against the defendants, through whose negligence the coal wagons which caused the accident were left on the line of railway? These are questions worthy of consi leration; and in this particular case there is, I think, good reason for holding that the rule in Thorogood v. Bryan should apply, however unreasonable it may at first sight appear to be. The plaintiff cannot bring an action against the London and North-Western Railway Company, because he was their servant; and yet it is said that he may maintain an action against another company, the defendants, who only contributed to, and certainly were not the proximate cause of the mischief. It would follow from that, therefore, that the servants of a railway company may in case of a collision sue what I may call the

opposing company. but that they cannot sue the

company who were the proximate cause of the injury suffered by them. Surely a most preposterous consequence. I am, however, prepared to decide the present case on the authority of Thorogood v. Bryan, which, though it may have been questioned and impeached, has never been overruled, and has since been acted on. But, as I have already said, I think this case is distinguishable from that case, and in a point that is favorable to the defendants, and that the latter are entitled to avail themselves of it upon this rule, notwithstanding that there is no cross rule. Certain points were put by the learned judge to the jury, and he reserved leave to the plaintiff to enter a verdict on the ground that, if the findings of the jury were supported by the evidence, and these findings showed the plaintiff to be entitled to the verdict, then it should be entered for him. Now, in assenting to leave to move to enter a verdict against him, the learned counsel for a defendant does not consent to have the matter decided

against him and the rule made absolute without regard to the verdict of the jury. He must be taken to adopt the proceedings only so far as they are supported by the evidence. The question whether there was any evidence of negligence in the defendants was left open. The point may be put thus: The defendants, doubtless, were guilty of negligence, but it was negligence the consequence of which the other railway company might have avoided by the use of reasonable care; and it is clear to my mind that the defendants might have maintained an action against the London and North-Western Railway Company to recover compensation for the damage sustained by their coal wagons by reason of the collision, for which the case of Davies v. Mann, ubi sup., is an authority; and if that be so, it would be highly unreasonable that the plaintiff should have this action against the defendants."

POLLOCK, B., said: "I also think that this rule should be discharged. It is sufficient to say that I think the case is not distinguishable from Thorogood v. Bryan, and is governed by that decision. I must not be taken as in any way expressing dissatisfaction with the decision in that case. The only difficulty I have had in applying it has been in consequence of the use of the word 'identified' in the judgment of the court there. If the court are to be taken as meaning by that word that the plaintiff, by his own proper conduct, as by the selection of the omnibus in which he was riding, so acted as to constitute the driver his agent, the proposition would, I think, be an unsustainable one. But I do not understand the word to be used in that sense. I take the court to mean by it that, under the circumstances of the case, the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus or his driver. The case of Waite v. The North-Eastern Railway Company, E. B. & E. 719, is an illustration of this, where the child, as far as regards contributory negligence, was 'identified with its grandmother, in whose charge it was, although it could not be said that the child exercised any volition in the selection of its grandmother for its companion. If, then, the rule laid down by Parke, B., in Bridge v. The Grand Junction Railway Company, 3 M. & W. 244, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequence of the defendants' negligence, he is entitled to recover; if, by ordinary care, he might have avoided it, he is the author of his own wrong' be adhered to it

seems to me that no hardship follows, inasmuch as the plaintiff is only in the same position as the donkey in the case of Davies v. Mann, 10 M. & W. 546, and, notwithstanding the carelessness of the driver of the train he was traveling by, he would be entitled to recover against the defendants, supposing that their negligence was of a similar character to that of the defendant in Davies v. Mann. It may be said, why should he not have a right of action against both companies? The answer to that question is that a man may have an action against two tort-feasors for any act causing the injury; but there is no hardship in saying that, if two independent persons are in a position somewhat hostile to each other, then the right to maintain a separate action against one may be an answer to an action against the other, for the plaintiff must show that the negligence of the one whom he sues was the proximate cause of the accident. Therefore, I think that the defendants are entitled to our judgment."

It is to be observed of this case, that the plaintiff was the servant of the company in whose train he was traveling, and was therefore precluded from suing them for the injury which arose from the negligence of their servants.

In this country the prevailing opinion is unquestionably against imputed negligence. Shearman & Redfield on Negligence, § 46; Wharton on Negligence, $395. In Chapman v. The New Haven Railroad Co., 19 N. Y. 341, the Court of Appeals of this State held that a passenger by railroad is not so identified with the proprietors of the train conveying him, or their servants, as to be responsible for negligence on their part, and could recover for personal injuries from a collision through negligence of the defendant, although there was such negligence contributing to the collision on the part of the train conveying him, as would have defeated an action by its owners. And in Colegrove v. N. Y. & N. H R. R. Co., 20 N. Y. 492, it was held that the injured passenger could maintain his action against the proprietors of both, on the ground of their concurring negligence. These cases were followed and approved in Webster v. Hudson River Railroad Co., 38 N. Y. 260.

So in Metcalf v. Baker, 1 Abb. (N. S.) 431, the Superior Court of New York, at General Term, held as in the principal case, that one riding on invitation with the owner of a private vehicle was not chargeable with his negligence contributing to an injury, occasioned by the negligence of the defendant, to the plaintiff; and to the same effect are Robinson v. N. Y. C., etc., R. R. Co., 65 Barb. 146; Sheridan v. Brooklyn City R. R. Co., 36 N. Y. 39; Knapp v. Dagg, 18 How. Pr. 165.

But in Payne v. The Chicago, Rock Island & Pacific R. R. Co., 39 Iowa, 523, where the plaintiff was injured at a railroad crossing, by a collision between the wagon in which he was riding and defendant's train, the court decided, without discussing the question, that the negligence of the one who was driving defeated plaintiff's right to recover, citing

therefor Artz v. C., R. I. & P. Railway Co., 34 Iowa, 153. But the case is like that of Beck v. East River Ferry Co., 6 Rob. 82, where the plaintiff and the one guilty of negligence were engaged in a joint enterprise. In the Iowa case, three neighbors, one of whom was plaintiff's intestate, were traveling for a common purpose in a wagon belonging to none of them, but procured for the purpose. They drove by turns. The case was correctly decided, and is not an authority against the doctrine of the principal case.

In Bennett v. The New Jersey Railroad Co., 7 Vroom, 225; S. C., 13 Am. Rep. 435, it was held that where a passenger in a horse car is injured by the carelessness of the engineer of a railroad company, in the management of his locomotive, it is no defense to show contributory negligence in the driver of the horse car.

In Lockhart v. Lichtenthaler, 46 Penn. St. 151, this The question was considered at great length. action was brought to recover damages under a statute by the widow and children of one killed by a collision between a train of cars and oil barrels owned by the defendant, and placed too near the track by his servants. The deceased was a brakeman on a car belonging to a coal company but which was drawn by a locomotive belonging to the railroad and controlled by its servants. The court held that the deceased was not a servant of the railroad company, but that he "must be considered in the light of a passenger in charge of property being conveyed with himself by the railroad company for his employers," and that if the negligence of the railroad directly contributed to the accident, the defendant would not be liable. After a review of the authorities, Thompson, J., who delivered the judgment of the court, said: "If in this case there was no contributory negligence chargeable to those conducting the train, by which the cars in charge of the deceased were with himself being conveyed; in other words, if their negligence did not directly contribute to the disaster, although they may have been negligent in a general sense, the defendants will be answerable if the act of their servants or agents was the proximate cause of it. The negligence on the part of the train which would be a defense must be directly involved in that result; it must by itself, or concurring with the defendants, be the proximate cause of the death. For instance, running too rapidly on a road in bad repair, driving instead of drawing the train, would not abstractly be such negligence as would be a defense. To be such the consequences of these acts, or some of them, must have directly entered into and become active agents in the very disaster itself. This must be the rule of all such cases."

Smith v. Smith, 2 Pick. 621, is frequently cited as as an authority in support of the rule of Thorogood

v. Bryan, but all that was decided in that case was that one who is injured by an obstruction placed unlawfully in a highway cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided. This rule is well established and is, we take it, not in conflict with the principal case. See Stiles v. Geesey, 71 Penn. St. 439; Cleveland, Columbus & Cincinnati R. R. Co. v. Terry, 8 Ohio St. 570; Williams v. Mich. Cent. R. R. Co., 2 Mich. 259; Murphy v. Deane, 3 Am. Rep. 390.

In Puterbaugh v. Reasor, 9 Ohio St. 484, the plaintiff put R. in charge of his team. R. and the defendant engaged in a fight which frightened the team and it ran away, and one horse was killed. The defendant was held not liable because the plaintiff, having placed R. in charge of the team, was responsible for his negligence. Shearman and Redfield cite this case as well as that of Cleveland, etc., v. Terry, and Smith v. Smith, supra, as authorities for the rule of Thorogood v. Bryan, but they are obviously not so as to the question of privity in negligence.




After an elaborate presentation of the facts, Prof. Ordronaux sums up the legal aspects of the question as follows:

The foregoing facts, based upon historical data which admit of no disproof, point conclusively to the duty which the State owes to itself, as well as to the county of New York, of seeing that its gifts to charitable uses are no longer diverted to other and unauthorized purposes. And whatever may be said in general of its authority over all eleemosynary corpora-. tions founded by itself, to visit, investigate and direct their management, we shall find that the common law of England, which became, under the first Constitution of this State, the common law of New York, explicitly provides means by which the sovereign authority can always interfere to mould the character of a public charity, for the greatest good to the greatest number. Under the shadow of its time-honored principles we shall accordingly find the following propositions arranging themselves on the side of the State's unquestionable rights, viz.:

First. That if the Society of the New York Hospital, originally founded by private benefaction, be, in point of law, a private corporation, although dedicated to public charity, then the Bloomingdale Asylum, founded and built wholly by State subsidies, satisfies every condition necessary to make it a public charity. Second. The principle is indisputable that the founder of an eleemosynary corporation may dispose and order it as he will, and may give it whatever shape he pleases, provided it be a legal one. 1 Kyd on Corp. 50; 2 id. 195; Dartmouth College v. Woodward, 4 Wheat. 518.


NE of the most interesting documents, from a legal standpoint, submitted to the Legislature during its recent session, was a report of the State Commissioner in Lunacy - Prof. Ordronaux - - on the relations of the State to the Society of the New York Hospital, and more particularly as to the right of the county of New York to the aid of the Bloomingdale Asylum in caring for the pauper insane. The Society of the New York Hospital, of which the Bloomingdale Asylum forms a department, was incorporated by royal charter in 1771, the motive or reason therefor being thus expressed in the charter: We, taking into our royal consideration the beneficial tendency of such an institution within our said city, calculated for relieving the diseases of the indigent and preserving the lives of many useful members of the community, are graciously pleased to grant,' etc. This preamble clearly indicated the class of citizens to be benefited by the hospital.

Third. Before the passage of the act of 1816 there was no Bloomingdale Asylum in existence. This act made annual grants to the Society of the New York Hospital for the specific purpose of founding and erecting it as a public charity. Chap. 203, Laws of 1816; Assembly Doc. 263, March, 1831. The State, being thus the sole founder (fundator perficiens) of that institution, had the exclusive right, from its inception, to direct its management. The fact that it has allowed it to remain in the hands of the Society of the New York Hospital, as trustees, does not in the least invalidate its present right to discharge such trustees and appoint others of its own selection; or to direct the present trustees as to the future management of such trust for cujus est dare ejus est disponere. Nor does lapse of time bar these rights in respect to the State. For this is not recalling the charity but only directing its application. The State has always the right to follow its gifts to charitable uses, they be


In 1810 this charter was amended by the Legislature at the request of the society. In 1816 the society was authorized by statute to build the Bloomingdale Asy-ing public gifts, and to ascertain how they are being

lum, and the sum of $10,000 was directed to be paid annually from the State treasury for its support. Since that act the State has contributed to this Asylum $440,000 for the specific purpose of building and maintaining a public asylum for the insane; it has beside contributed to the Society of the New York Hospital over $800,000.

But the Governors of the Bloomingdale Asylum have treated these trust funds as a private gift to a private corporation, and have refused and still refuse to receive or care for the pauper insane, taking the ground that "this asylum was particularly intended for those able to pay." They also claim, as was claimed in the Dartmouth College case, that their charter, being from the Crown, is a contract beyond the control or limitation of the State.

carried out.

Fourth. Were it even true that the State had only added its funds to those already possessed by the Society of the New York Hospital, and thus joined in the erection of the Bloomingdale Asylum, that fact would not divest it of authority, for, as we have elsewhere shown, it is an established principle of the common law that if the King and a private man join in endowing a charitable corporation, the King alone shall be the founder. Kyd on Corp. 51. Under that same principle, also, there could be no partnership between the King and a private citizen, and all that the King in England might do, in relation to granting franchises, the State with us may do. Hence the right to appoint visitors being always inherent in the founder of a charity, the State could at any time have done the

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