TER V. THE MADI SON AND IN RAILROAD Nov. Term, contributes to the ultimate objects of the company. Had 1854. he been on the train by the side of Gillenwater and injured GILLENWA by the same negligence, in a suit against the company he would have been summarily dismissed by the same argument. He would be told that his action was one of new DIANAPOLIS impression, that he contracted with reference to the risks COMPANY. of the employment and reserved a compensation in fees with an eye to these risks. He would therefore be denied redress, because he was a quasi co-servant of the careless engineer. It would be difficult to imagine upon what principles either of justice or public policy such ruling could be supported. For the basis of implied contract and increased compensation, with reference to such risks, on the part of the carpenter and legal adviser, is wholly visionary. But when it is held that the legal adviser, the carpenter, and all such quasi servants of the company are not co-servants within the meaning of the Farwell case, because their several duties belong to different departments, a result is attained, clear, just, and of easy application. Had Gillenwater received the injury from the negligence of a fellow-carpenter in the same employment, while erecting the bridge or loading the timbers, a question would then have been presented within the range of the Farwell case. It would then have devolved upon us to decide be tween the conflicting authority of the Courts of Massachu setts and Ohio. 4 Metc., supra.-20 Ohio 415. As it is, we do not feel called upon to intimate any opinion either way. If we had any doubt as to the soundness of the distinc tion we have made, the cautious concluding language of the Massachusetts Court would remove it and strengthen our position. The ruling is thus qualified. "Considering it as a nice question, we would add a caution as to any hasty application of the rule to cases not clearly within the same principle. Each case may be varied and modified by circumstances not appearing in this. We are far from intending to deny that there are implied warranties arising out of the relation of master and servant." TER V. SON AND IN- So that even in the opinion of the learned judge who Nov. Term, 1854. gave the new doctrine its chief importance, it is to be cautiously applied, and strictly limited to cases within the GILLENWAsame principle. This is the usual judicial language in relation to some legal heresy, of such long standing that THE MADIthe mischief is believed to be less to follow than to overrule it. It is thus cautiously added that the principle COMPANY. should not be carried beyond the adjudicated cases. But it is rather an ominous introduction to a question admitted to be one of new impression. It strongly implies a suspicion of the correctness of the principle sought to be established. Since then, however, (1842), the Courts of New-York have followed the same lead. Brown v. Maxwell, 6 Hill 592.-Coon v. The Syracuse, &c., Railroad Company, 1 Selden 492. The Supreme Court of Massachusetts, as late as 1849, reviewed their ruling in the Farwell case, and adhered to their former decision. Hayes v. The Western Railroad Corporation, 3 Cushing 270. More recently, however, the doctrine of 4 Metc. 49, and 1 McMullen 385, was reviewed, and expressly repudiated, by the Supreme Court of Ohio. The Little Miami Railroad Company v. Stevens, 20 Ohio 415. Dixon v. Rankin is a weighty argument to the same effect. 1 Am. Railroad Cases 567, and note. The leading case, Priestly v. Fowler, was decided by the English Court of Exchequer in 1837. No authorities are there cited. But the Court expressly say, they are at liberty to decide the question upon general principles, looking to the consequences of a decision the one way or the other. The cases which go upon the opposite doctrine, also profess to settle the question upon principle chiefly. So that a question of such recent date, upon which respectable Courts differ so widely, can not be regarded as settled. As already observed, the case at bar is so clearly distinguished from any of the cases cited on either side of this vexed question, that we are not called upon to intimate an opinion either way; leaving ourselves open to examine it on its merits, whenever it is directly presented in the record. RAILROAD It is sufficient that Gillenwater was at the time a passenger. The company are, therefore, liable for the injury received. Their guarantee to the public is, that their servants are persons of competent skill, and that they will use due diligence in its application. In a somewhat similar case, where one of the stockholders of the railroad company was on the cars, traveling gratuitously by invitation of the president, and was injured by a collision, the company were held liable. Grier, justice, adds, "that any relaxation of the law affecting railroad companies as passenger carriers, would be highly detrimental to the public safety." 14 Howard, supra. The Court below, therefore, erred in overruling the demurrer to the fourth plea. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. S. C. Stevens, for the appellant. J. G. Marshall and W. M. Dunn, for the appellees. STRONG V. DANIEL. Section 3, p. 49, acts of 1840, which enacted that on all judgments which had been replevied under the then existing laws, but not fully satisfied, and on all judgments on which a stay had expired and execution had been issued, and levied or not levied, the execution-debtor might replevy the same, in addition to the former stay, for six months after March 1, 1840, was unconstitutional and void. That section being a nullity, the replevin-bail could enjoin a sale of his property on an execution issued upon the judgment. A statute which is in conflict with the constitution, is a nullity, and inoperative for any purpose. ERROR to the Shelby Circuit Court. DAVISON, J.- Bill in equity to enjoin the sale upon execution of a tract of land in Shelby county. The case is this: Strong, on the 24th of April, 1839, recovered a judgment in the Shelby Circuit Court, against Thatcher and Walker, for 239 dollars, upon which one Voorhees Conover became replevin bail;, the effect of which was to stay execution on the judgment for one hundred and eighty days from its date. After that period had elapsed, viz., on the 23d of October, 1839, Strong sued out a writ of fieri facias on the judgment, and placed it in the hands of the sheriff. An act of the legislature, approved February 24th, 1840, provided that on all judgments which had been replevied under the then existing laws, but not fully satisfied, and on all judgments on which a stay had expired, and execution had been issued, and levied or not levied, the executiondebtor might replevy the same, in addition to the former stay, for six months after the 1st of March, 1840. Acts of 1840, p. 49, sec. 3. Under this act Daniel, on the 8th of June, 1840, and while the writ of fieri facias was in the hands of the sheriff, entered himself bail for such additional stay of execution on said judgment; whereupon the sheriff, pursuant to the statute, returned the writ. After the expiration of six months from the 1st of March, 1840, another fieri facias was issued on the judgment, against Thatcher, Walker, Conover, and Daniel. This writ was, on the 24th of June, 1841, levied on the land in question as the property of Daniel; to enjoin the sale of which, this suit was instituted. The Court, on final hearing, awarded a perpetual injunction. The statutory provision above quoted was plainly inoperative, so far as the plaintiff was restricted from proceeding to enforce payment by his first execution. Nor was his right, upon its return, to have another execution, in any degree affected by the additional recognizance of replevin bail. This point is expressly decided in Dormire v. Cogly, 8 Blackf. 177. That case, in effect, decides the law in question to be in conflict with the constitution, and we think correctly. But it is contended that Daniel should not be permitted to set up the invalidity of the law under which he acted, and in support of that position Magruder v. Marshall, 1 Blackf. 333, is cited. In that case, it was held, that the defendant in an action on a replevin bond could not question the constitutionality of the statute under which the Nov. Term, 1854. STRONG V. DANIEL. V. Nov. Term, bond was executed. We can not follow that decision. Per Curiam.-The decree is affirmed with costs. Wednesday, WARWICK and Others v. The State on the relation of GLADDEN. A mother died intestate, leaving personal property. No letters of administration were taken out upon her estate. The guardian of her children took possession of the property, and realized from it a certain sum, &c. Held, that the sureties on his bond were responsible for a faithful application, &c., of such money. The bond given by a guardian in assuming the duties of his trust, was, by the R. S. 1838, only designed to secure the faithful appropriation and investment of the personal estate of the ward, including the rents of the real estate. A guardian applied to sell real estate of his ward, and sold the same while the R. S. 1838 were in force, under an order of the Probate Court, without having given an additional bond pursuant to the statute. Held, that the sureties on the original bond were not responsible for the accounting for or application of the purchase-money. APPEAL from the Tippecanoe Court of Common Pleas. PERKINS, J.-Debt by the State on the relation of Jacob W. Gladden against Warwick and others, on the bond of one David Patton, who had been the guardian of said Gladden. Judgment for the plaintiff for 461 dollars and 21 cents. It is unnecessary to state the pleadings, as the cause was finally submitted to the Court upon an agreed case. We gather from it these facts, viz.: |