George T. Brown and William H. Sweetland, for plaintiff.

Francis W. Miner, for defendant.

DURFEE, C. J. This is case for negligence. The defendant is a horse railroad company, having its rails laid in the streets of the city of Providence. On the afternoon of July 7, 1883, a driver in the employ of the company took two empty passenger cars belonging to it from the stable in Elmwood to the repair shop on Thurber's avenue. The two cars were fastened together, one behind the other, and drawn by a single horse. They were driven slowly along, the driver occupying the platform in front of the forward car, looking beside and before him. In their passage they were driven along Broad street on the track close by the sidewalk of Grace Church cemetery. The plaintiff, a boy six years old, was on the sidewalk with a boy named Hall, eleven years old. Hall was riding a velocipede and the plaintiff was racing with him. The plaintiff, to get ahead of Hall, jumped on the rear platform of the front car, and after remaining there a little while, either fell off or jumped off and fell. The mother of the plaintiff, who was permitted to relate what her boy told her about the accident, testified at first that he told her that he fell off, but on being asked in cross-examination if he did not tell her that he was afraid the driver would see him and jumped off, replied, "Yes, sir, I think probably he did, but am not quite sure he told me he fell off." The accident occurred between two and three o'clock. The driver did not see the boys and knew nothing of the accident when it happened, and heard nothing about it until nearly 7 o'clock.

The plaintiff was badly injured, doubtless by collision with the second car. The plaintiff offered in evidence, for the purpose of proving the negligence of the company, an ordinance of the city of Providence containing rules and regulations for railroads in the city. The defendant objected on the ground that the company had not consented to the ordinance, and that without consent it was not bound by it. The court sustained the objection and the plaintiff excepted. The defendant moved the court, after the plaintiff's testimony was in, to nousuit him. The court granted the motion and the plaintiff excepted. The plaintiff now petitions for a new trial for error in these two rulings.

The ordinance was offered for the purpose of put. ting in proof the following rule, to wit: "Cars driven in the same direction shall not approach each other within a distance of three hundred feet, except in case of accident, when it may be necessary to connect two cars together, and also except at stations." We do not think the rule is applicable in the case at bar. It applies when two cars, going in the same direction, are driven separately, so that the distance between them may be increased or diminished. It requires that the cars so driven shall be kept at least three hundred feet apart. If the two cars were driven close together there would be danger of collision, when the forward car stopped, particularly if the two cars were on a descending grade. The rule was obviously intended to prevent the occurrence of any such casualty. The rule itself permits the cars to approach for the purpose of being connected in case of accident. This shows that the rule was designed for cars separately driven. Of course if the rule was inapplicable, the refusal to admit it in evidence is not a ground for granting a new trial.

The reason given by the court for granting the nonsuit was that it appeared from the evidence submitted for the plaintiff that his own fault contributed to his injury. The court announced that the child jumped from the platform because he was afraid the

driver would see him, and that he must therefore have known that he was a wrong doer. It is contended for the plaintiff that he cannot be charged with contributory negligence, if he exercised as much care as could be expected of him considering his age, and that whether he did exercise that degree of care was a question for the jury. The cases cited to this point are some of them very strong. The plaintiff however was nonsuited not because he was simply careless, but because he was knowingly committing a wrong or trespass which directly contributed to his injury. Whether in this view his youth would entitle him to the same leniency, may perhaps not be beyond question, but if it would, we are nevertheless of opinion that the nousuit was rightly granted, for the plaintiff, however excusable his own fault, was not entitled to recover without proof of fault on the part of the defendant, and we think there was no evidence tending to show that the defendant was guilty of any negli gence toward him.

The plaintiff was injured, because having got on the rear platform of the forward car, he jumped off or fell off before the following car.

Now in order to show that the negligence of the defendant contributed to the injury, it is necessary first to show that the defendant owed the plaintiff a duty of care, which if it had duly observed, the injury. would not have happened. Where no care is due there can be no liability for neglecting it.

Now it appears, that before the accident, the driver did not know that the plaintiff had got upon the platform or that he had jumped or fallen off. The driver therefore is not chargeable with any want of care, unless it was his duty to have known that the plaintiff had got on the car.

We think it was clearly the duty of the driver to look forward to his horse and to the road before him, rather than back to the empty cars behind him. The company is therefore not liable on account of any neglect on the part of the driver. If it be liable at all, it is liable either because it ought not to have permitted the cars to go coupled together, or because it ought to have provided a second man to have charge of them while en route, so as to prevent the children on the streets from getting on the platforms. We do not see how the company can be held to have done wrong in permitting the two cars to go coupled together. Driven slowly they were neither dangerous nor unreasonably inconvenient. The only question is therefore whether it was the duty of the company to employ a second man to have charge of the cars and guard them from intrusion.

It is well settled, that as a general rule, an owner of property which has been trespassed upon is not liable to the trespasser for any injury resulting from the trespass merely because he might by care have guarded against it. For instance, a man who digs a pit on his land is not liable to a trespasser who is injured by falling into it, because it has been left unfenced or unguarded. Hargreaves v. Deacon, 25 Mich. 1; Hounsell v. Smyth, 7 C. B. (N. S.) 731. But the rule has its exceptions. If the pit be dug on the edge of a public way, where it endangers the safety of the public travel, a traveler who accidentally straying falls into it can recover for the injury. In such a case the pit is a common nuisance.

In Lynch v. Nurdin, 1 Q. B. (N. S.) 29, the defendant's servant left his cart and horse in the public street, unattended, for half an hour. After a while the plaintiff, a boy between six and seven years old, and other children, began to play with the horse and climb into the cart and out of it. While the plaintiff was getting out, another boy started the horse, so that the plaintiff fell and broke his leg. A verdict in his favor was sustained by the Court of Queen's Bench

sitting in banc. The court thought that the child was merely indulging a natural instinct in playing with the empty cart and deserted horse, being tempted to it by the most blamable carelessness on the part of the defendant's servant.

In Birge v. Gardiner, 19 Conn. 507, the defendant, who put a heavy gate on his own land, beside a passway which was used by children, going to and from the public road, but left it so carelessly that it fell upon a child, between six and seven years old, who shook it in passing, was, held to be liable for the injury.

In Railroad Company v. Stout, 17 Wall. 657, the plaintiff, a child six years old, was injured while playing with the turn-table of a railroad company. The table was on the company's land, but near two public roads, without visible separation from them, and was left unattended and unlocked, and easily revolved on its axis. The injury happened by the table being set in motion by other boys. It appeared that the boys of the neighborhood were in the habit of resorting to the place for play. A verdict for the injured child against the railroad company was sustained by the Supreme Court of the United States. See also same case before Dillon, J., and a jury, Stout v. Sioux City & Pacific R. Co., 2 Dill. 294.

We know of uo cases more favorable to the plaintiff than the three cases last cited, but in all three of them the object which caused the injury was a dangerous object left exposed, without guard or attendant, in a place of public or common resort for children. An object so left is a standing temptation to the natural curiosity of a child to examine it or to his instinctive propensity to meddle and play with it.

In Keffe v. Milwaukie & St. Paul R. Co., 21 Miun. 207; 18 Am. Rep. 393, which was precisely like Stout v. Sioux City & Pacific R. Co., this peculiarity was specifically stated and commented on as the ground of liability.

"The defendant knew," say the court, "that by leaving this turn table unfastened and unguarded, it was not merely inviting young children to come upon the turn table, but was holding out an allurement which acting upon the natural instincts by which children are controlled, drew them by those instincts into hidden danger." These cases seem to reach the limit of liability. They go beyond what was thought to be the limit in Mangan v. Atterton, L. R., 1 Exch. 239. In that case the defendant left a dangerous machine, which might be set in motion by any passer by, unguarded, in a public place. The plaintiff, a boy four years old, put his fingers in the machine at the direction of his brother, seven years old, whilst another boy was turning the handle which moved it, and his fingers were crushed. The court held that the plaintiff could not maintain any action for the injury. And see Hughes v. Macfie, 2 H. & C. 744. The case at bar differs very much from the three cases previously stated, for in the case at bar the cars, instead of being left unattended, were in the charge of the driver who was in the act of driving them, so that there was nothing done to encourage the trespass, which was merely the result of a momentary impulse. Ordinarily a man who is using his property in a public place is not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such vehicle to keep an outrider on purpose to drive such boys away, and that if he does not, he is liable to any boy who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred. See Lygo v. Newbold, 9 Exch. Rep. 302; and the remark of Blackburn, J., in Austin

v. Great Western R. Co., L. R., 2 Q. B. 442, 446, and yet such a case is very much like the case at bar. There are some risks, in regard to which a child ought to be enlightened, before he is committed to the chances of the street.

In Hestonville Passenger R. Co. v. Connell, 88 Penn. St. 520; 32 Am. Rep. 472, the plaintiff, a boy between six and seven years old, was injured in an attempt to climb upon the front platform of a horse railroad car while the car was in moderate motion. The car was a car used for suburban travel, and according to custom, was in the charge of no one but the driver, who at the time of the accident was engaged on the rear platform. The court held that the railway company was not liable for the injury, the injury having resulted not from any neglect of the person in charge, "but from the sudden and unanticipated act of the child itself." "It may be assumed," say the court, "that a child, old enough to be trusted to run at large, has wit enough to avoid ordinary danger, and so persons who have business on the streets may reasonably conclude that such a one will not voluntarily thrust itself under the feet of their horses or under the wheels of their carriages, and a fortiori may they conclude that they are not to provide against possible damages that may result to the infant from its own willful trespass." The doctrine of this case is well supported by other cases. Morrissey v. Eastern R. Co., 126 Mass. 377; 30 Am Rep. 686; Gavin v. City of Chicago, 97 Ill. 66, 71; 37 Am. Rep. 99; McAlpin v. Powell, 70 N. Y. 126; 26 Am Rep. 555; 55 How. Pr. 163; Snyder v. Han. & St. Jos. R. Co.,60 Mo. 413. These are all cases of injury to intrusive or trespassing children, in which the defendants were held to be exempt from liability, although they might have prevented the injury, because the kind of care which would have been required to prevent it was not obligatory upon them. And see Zoebisch v. Tarbell, 10 Allen, 385. The case at bar is in our opinion a case of the same class. The defendant company is not liable for the injury to the plaintiff, because it never incurred any duty or obligation of care to him. If the driver had seen the boy on the platform it might have been his duty, notwithstanding the boy was a mere intruder, to stop the car and put him safely off. If the driver had stopped the cars, so as to afford the boy an inviting opportunity to get on them, thus tempting his childish instinct, it might have been his duty to look through the cars before starting, and if he found the boy, to remove him. The case presents no such circumstances. We think therefore that on this point there was no evidence on which the case could have been properly left to the jury, and that if it had been left to them, and they had found for the plaintiff, it would be our duty to set the verdict aside. Therefore the nonsuit was rightly granted. Brown v. European & N. A. R. Co., 58 Me. 384.

Petition dismissed.

WILL-ACCUMULATIONS OF INCOME.

NEW YORK COURT OF APPEALS, FEBRUARY 8, 1884.

BARBOUR V. DE FOREST.

The relator in his will gave a portion of his residuary estate to his executors, in trust, to receive and apply the income to the use of plaintiff during life. By a codicil the executors were directed, if in their judgment the whole of the income was not needed for plaintiff's support to retain and invest the residue during her minority, the accumulations to be considered and treated as part of the principal. Held, that the direction for accumulation was void, and that plaintiff was entitled to the whole income. PPEAL from a judgment entered upon an order of the General Term of the Supreme Court, in

A

The defendant in error was the plaintiff in the State court, and brought her action of replevin for the recovery of specific personal property, to which she claimed title, and which she alleges was wrongfully detained from her by the plaintiff in error. The defendant below was deputy marshal of the United States, and as such had possession of the property replevied by virtue of an execution issued upon a judgment of the Circuit Court of the United States for the Western District of Michigan against Adolph Heyman, having taken the same by virtue of a levy under said execution as the property of the judgment debtor. Judgment was rendered in the Supreme Court of the State in favor of the plaintiff below, upon a finding in favor of her title to the property, reversing a judgment in favor of the defendant below in the Circuit Court for the county of Kent. To reverse that judgment this writ of error is prosecuted.

The sole question presented for our, decision is whether it was error in the State court to permit a recovery of the possession of property, thus held, against a marshal of the United States, or his deputy, in favor of the rightful owner; and whether, on the other hand, it should not have adjudged in favor of the defendant below, that his possession of the property by virtue of the levy under the writ was in itself a complete defense to the action of replevin without regard to the rightful ownership.

The case of Freeman v. Howe, 24 How. 450, was precisely like the present in its circumstances, except that there the process under which the marshal had seized and held the property replevied was an attachment according to the State practice in Massachusetts, being mesne process, directed however not against property specifically described, but commanding a levy as in cases of fi. fa., upon the property of the defendant. Whether that difference is material is perhaps the only question to be considered, for the doctrine of that decision is too firmly established in this court to be longer open to question. The proper answer to it will be found by an examination of the principles on which the judgment in that case proceeded, and of those cases which preceded, and of others, which have followed it.

In the opinion in that case, Mr. Justice Nelson rerefers to the case of Taylor v. Carryl, 20 How. 583, as a conclusive and sufficient authority on the point. He said: "The main point there decided was that the property seized by the sheriff under the process of attachment from the State court, and while in the custody of the officer, could not be seized or taken from him by a process from the District Court of the United States, and that the attempt to seize it by the marshal by a notice or otherwise was a nullity, and gave the court no jurisdiction over it, inasmuch as to give jurisdiction to the District Court in a proceeding in rem, there must be a valid seizure and an actual control of the res under the process." And referring to the grounds of the dissent in that case he continues: "The majority of the court was of opinion that according to the course of decision in the case of conflicting authorities under a State and Federal process, and in order to avoid unseemly collision between them, the question as to which authority should for the time prevail did not depend upon the rights of the respective parties to the property seized, whether the one was paramount to the other, but upon the question which jurisdiction had first attached by the seizure and custody of the property under its process."

The opinion then proceeds to show that no distinction can be made affecting the question between process in rem and an attachment issued by a commonlaw court, although the latter is not the foundation of the jurisdiction, and the property seized is not the subject-matter of the suit, which is simply for the recovery of a debt, without a lien or charge upon the prop

erty except that resulting from its seizure, as security for the judgment. The objection that the process was directed against the property of the defendant and conferred no authority upon the marshal to take the property of the plaintiffs in the replevin suit is then answered, the court saying: "For the property having been seized under the process of attachment, and in the custody of the marshal, and the right to hold it being a question belonging to the Federal court, under whose process it was seized, to determine, there was no authority, as we have seen, under the process of the State court to interfere with it."

The opinion of the court then points out the error of Chancellor Kent in his statement (1 Com. 410) that "if a marshal of the United States, under an execution in favor of the United States against A., should seize the person or property of B., then the State courts have jurisdiction to protect the person and the property so illegally invaded."

Commenting on this statement, it is said that the effect of the principle, if admitted, would be to draw into the State courts "not only all questions of the liability of property seized upon mesne and final process issued under the authority of the Federal courts, including the admiralty, for this court can be no ex. ception, for the purposes for which it was seized, but also the arrests upon mesne and imprisonment upon final process of the person in both civil and criminal cases, for in every case the question of jurisdiction could be made." And the court adds: "We need scarcely remark that no government could maintain the administration or execution of its laws, civil or criminal, if the jurisdiction of its judicial tribunals were subject to the determination of another."

To meet the objection, that the party whose property had been wrongfully taken and withheld, would be left without remedy, unless by virtue of citizenship he could sue in a Federal court, the opinion then explains the remedy in such cases by an ancillary proceeding in the court whose process has been made the instrument of the wrong; a remedy, the principle and procedure of which we had occasion recently, in the case of Krippendorf v. Hyde, 110 U. S. 276, to restate and reaffirm.

The point of the decision in Freeman v. Howe, supra, is that when property is taken and held under process, mesne or final, of a court of the United States, it is in the custody of the law and within the exclusive jurisdiction of the court from which the process has issued for the purposes of the writ; that the possession of the officer cannot be disturbed by process from any State court, because to disturb that possession would be to invade the jurisdiction of the court by whose command it is held, and to violate the law which that jurisdiction is appointed to administer; that any person not a party to the suit or judgment, whose property has been wrongfully, but under color of process taken and withheld, may prosecute by ancillary proceedings in the court whence the process issued, his remedy for restitution of the property or its proceeds while remaining in the control of that court; but that all other remedies to which he may be entitled against officers or parties, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court, he may pursue in any tribunal, State or Federal, having jurisdiction over the parties and the subject-matter. And vice versa the same principle protects the possession of property while thus held, by process issuing from State courts, against any disturbance under process of the courts of the United States, excepting of course those cases wherein the latter exercise jurisdiction for the purpose of enforcing the supremacy of the Constitution and laws of the United States.

The doctrine of Freeman v. Howe, supra, was fur

ther defined by the decision in Buck v. Colbath, 3 Wall. 334, which checked and corrected an attempted misapplication of its principle, which, if permitted, would cover actions against the officer for trespasses, not involving any interference with the property itself while in his possession. It was there satisfactorily shown that the officer was protected against such an action only in that class of cases where he could justify under process or order of a court directing expressly the very act alleged to be wrongful, and not in that other class where the writ or order, such as a writ of attachment or other mesne process, and the final process of execution upon a judgment, commends the seizure of property described not specifically, but only generally, as the property of the party named in the writ. In the latter the officer acts at his peril, and is responsible in damages to the party injured for the consequences of any error or mistake in the exercise of his discretion in the attempt to enforce the writ. In the former, as he has no discretion, it is the court itself which acts, and the officer is protected in his obedience to its command. Of this class the case of Connor v. Long, 104 U. S. 228, was an example; that of Buck v. Colbath, supra, fell within the latter. And in distinguishing that case from Freeman v. Howe, supra, Mr. Justice Miller stated the principle of the latter decision-"a principle," he said, "which is essential to the dignity and just authority of every court, and to the comity which should regulate the relations between all courts of concurrent jurisdiction; "that principle is," he continued, "that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and that no other court has a right to interfere with that possession unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises."

Here it will be perceived that no distinction is made between writs of attachment and executions upon judgments, and that the principle embraces both, as indeed both are mentioned as belonging to the same class elsewhere in the opinion.

And there is nothing in the nature, office or command of the two descriptions of process, by which, so far as the question here involved is concerned, they can be distinguished. One is mesne process, and the other final; but in the courts of the United States the attachment cannot be used, as in the practice of other jurisdictions, as means of compelling the appearance of the defendant, or of founding jurisdiction as a proceeding in rem. Both alike command the seizure of the property of the defendant without a specific description, and in obeying the precept, the officer exer. cises prescisely the same discretion, and with the same consequences, if he commits a wrong under color of it. The court has the same control over both forms of its process, and has custody of the property seized by virtue of them in the same sense. The circumstance that as to property held under an attachment, the final judgment may direct its sale, while the execution is issued upon the præcipe of the party, and is executed without further order, cannot alter the relation of the court, either to the officer or the property. It has jurisdiction over the latter to meet and satisfy the exigency of either writ, and that jurisdiction can be maintained only by retaining the possession acquired by the officer in executing it. A third person, a stranger to the suit and claiming as owner, may prosecute his right to restitution in either case, in the same methods, as pointed out in Krippendorf v. Hyde, 110 U. S. 276, or he may pursue his remedy for damages against the officer, either personally for the trespass, as in Buck v. Colbath, supra, or for the breach of his official duty,

upon his bond and against his sureties, as in the case of Lammon v. Feusier, 110 U. S.

The very point was involved in the decision in Hagan v. Lucas, 10 Pet. 400, where it was expressly held that property held by a sheriff under an execution from a State court could not be taken in execution by a marshal of the United States by virtue of final process upon a judgment in a Federal court. Mr. Justice McLean, delivering the opinion of the court, said: 'Had the property remained in the possession of the sheriff under the first levy it is clear the marshal could not have taken it in execution, for the property could not be subject to two jurisdictions at the same time. The first levy, whether it were made under the Federal or State authority, withdraws the property from the reach of the process of the other." A most injurious conflict of jurisdiction would be likely often to arise between the Federal and State courts if the final process of the one could be levied on property which had been taken by the process of the other. The marshal or the sheriff, as the case may be, by a levy, acquires a special property in the goods, and may maintain an action for them. But if the same goods may be taken in execution at the same time by the marshal and the sheriff, does this special property vest in the one or the other, or both of them? No such case can exist; property once levied on remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer; and especially by an officer acting under a different jurisdiction."

That which cannot be done by final process is equally out of the reach of original or mesne pro

cess.

The forbearance which courts of co-ordinate jurisdiction administered under a single system exercise toward each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same space they are independent and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues. "The jurisdiction of a court," said Chief Justice Marshall, is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment in which jurisdiction is to be exercised." Wayman v. Southard, 10 Wheat. 1.

66

The principle which defines the boundaries of jurisdiction between the judicial tribunals of the States and of the United States, the application of which effectually prevents their confusion, was set forth and vindicated in the judgment of this court in Ableman v. Booth, 21 How. 506. It was there said by Chief Justice Taney, p. 516, "that the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court as if the line of division was traced by landmarks and monuments visible to the eye." And speaking of the procedure in cases of habeas corpus issued under State