by a fiction of the law to be present anywhere, it should be whenever 'its work and business is going on, and not indefinitely absent, in any other place than that where its interests are involved.

Exemplary damages, it may therefore be concluded, may in proper cases be given by jury for injuries or wrongs, caused by gross negligence, either of the defendant himself or of his servant or agent, acting in due course of his employment.

The next question is, what is negligence? And what is gross negligence? The limits of this paper will only permit a brief and cursory review of the discussion contained in the books upon this subject. Negligence has

been defined by Mr. Justice Willes, in Grill v. The Screw Collier Co., 15 to be "the absence of such care as it was the duty of the defendant to use." He declines to make a distinction between negligence and gross negligence, and expresses his agreement with Lord Cranworth, 16 who said that "gross negligence, is ordinary negligence with a vituperative epithet." The Supreme Court of the United States in Milwaukee, etc. R. Co. v. Arms,17 takes a similar view, but says that gross regligence means greater want of care than is implied by the term "ordinary negligence," but, after all, it means the absence of the care that was necessary under the circumstances.'

Degrees of negligence however, are generally but very vaguely recognized most of the cases that are adjudicated. In Welch v. Durand, 18 it was held that firing a pistol, in such a manner that the ball glanced and wounded the plaintiff, was culpable negligence on the part of the defendant, and that he should pay exemplary damages for the injury inflicted by his maladroit marksmanship. In Pickett v. Crook, 19 the court holds that exemplary damages "can only proceed from gross and criminal negligence-such negligence as evinces, on the part of the defendant, a wanton disregard of the safety of others, and which in law is equivalent to malice." To the like effect is the language of the court in Wallace v. The Mayor, etc. 20 "the recovery of puni

14 1 Redfield on Railways, 513.

15 Law Rep. C. P. 600.

16 Wilson v. Brett, 11 M. & W. 113.

17 91 U. S. 489.

18 36 Conn. 182.

19 20 Wis. 358.

20 2 Hilt. (N. Y.) 440.

tory or vindicitive damages is allowed only where the act causing the injury has been willfully done; where the circumstances show that their was a deliberate preconceived or positive intention to injure, or that reckless disregard of the safety of persons or property which is equally culpable." A good definition of gross negligence is, that it "means such entire want of care as to raise a presumption, that the person in fault is conscious of the probable consequences of his carelessness, and is indifferent, or worse, to the danger of injury to the persons or propper of others."21

The variety of injuries to the person, caused by gross negligence and for which exemplary damages can be given is almost infinite. In Cochran v. Miller, 22 such damages were given for injuries caused by the negligent malpractice of a physician; in a New York case, 23 for the consequences of blowing up a steamer; in Mobile, etc. R. Co. v. Asheraft, 24 for the injuries occasioned by a "run off" of a railway train; in Frink v. Coe,25 for those caused by the upsetting of a stage coach; in Taylor v. Grand Trunk, etc. R. Co.26 for injuries caused by a railway accident; and such was also the case of Hopkins v. Atlantic, etc. R. Co,27 and that of New Orleans, etc. R. Co. v. Bailey, and many others. All these cases proceed upon the principle that the defendants, either in their proper persons or by their respective servants or agents acting within the scope of their employment, and for whose act defendants are responsible, have been guilty of gross negligence, or to use Lord Cranworth's phrase, negligence with a vituperative epithet. Simple negligence, ordinary negligence, slight negligence will not suffice to justify a verdict for exemplary damages. In Moody v. McDonald,29 which was an action for damages on account of injuries received from the careless blasting of rock by defendant, the court held that, "In cases of negligence simply, the rule is to allow the actual damages." Why this was a

21 Shearman and Redfield, Negligence, sec. 600. 22 13 Iowa, 128.

28 Caldwell v. N. J. S. Boat Co. 47 N. Y. 28224 48 Ala. 15.

25 4 Greene (Ia.) 555.

26 48 N. H. 304.

27 36 N. H. 9.

28 40 Miss. 349.

29 4 Cal. 297.

case of "negligence simply" does not appear from the opinion of the court, nor by any means by the verdict of the jury, who fixed the damages at nearly double the amount at which they were laid in the declaration. Very possibly in this, as in the case of Wardrobe v. California Stage Co.30 the court may have held that where an agent or servant is the actual wrong-doer, the fault of the principal is oniy simple negligence, and, therefore, he is only liable for compensatory damages. It is a little like arguing in a circle, to add to this statement that a principal can not be made to pay exemplary damages for the fault of his agent, because in such case his own liability is only for simple negligence. That is what these two cases amount to.

And even

Simple or ordinary negligence, therefore, or negligence without the vituperative ephithet, not gross, will not justify exemplary damages under any circumstances. where there has been gross and undeniable negligence on the part of the defendant, if the plaintiff has also been guilty of negligence proximately contributihg to the injury, he can not recover either exemplary or compensatory damages. We do not propose however to enter this field of discussion, which is really no part of the subject of exemplary damages for if an adequate degree of negligence, on the part of the plaintiff be shown by the defendant, the recovery itself is defeated, and damages, exemplary and compensatory, costs and all go down together.

Wm. L. Murfree, Sr.

IMPLIED TRUSTS.

There is some apparent conflict in the authorities on the principle of implied trusts, more apparent than real. The exceptions to it do much to explain and reconcile these ccnflicting cases. The rule was thus stated by Sir Wm. Grant, in Cruwys v. Colman, 9 Vesey, 322, to constitute a valid trust undoubtedly three circumstances must concur: sufficient words to raise it, a definite subject and a certain or ascertained object." The rule was thus stated by Sir Richard Pepper Arden, in Malim v. Keighley, 2 Vesey, Jr., 333, and affirmed by Lord Eldon, same volume, 529: “I will lay down the rule as broad as this-wherever any person gives property, and points out the ob

30 Supra.

ject of the property, and the way in which it shall go, that does create a trust, unless he shows clearly that his desire is to be controlled by the party, and that he shall have an option to de eat it. The word 'recommend' proves desire, and does not prove discretion. If a testator shows his desire that a thing shall be done, unless there are plain express words or necessary implication that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust. Recommend is a request and more." This case first discloses the idea of discretion. The above rule, as laid down by the Master of the Rolls, subsequently Lord Alvanley, was approved by Lord Cottenham, in Knight v. Bonton, 11 Clark & Fin. 548, which is also reported as Knight v. Knight, 3 Beavan, 172; 2 Spence's Equity Jurisdiction, 67; Ball v. Varby, 1 Vesey, Jr. 272, and note 2; Moggeridge v. Thackwell, 1 Vesey, Jr. 474, and note 4. The same rule was announced in Briggs v. Perry, 3 Mac. & G., 546, in which there is a reference to 1 H. L. Cases, 270, which was decided by Lord Truro, and states the rule as it is found in 1 Perry on Trusts, 112, chapter Implied Trusts.

V.

As illustrations, we will give the language of the wills construed in the more important and leading cases: Wood v. Cox, 1 Keen, 317,-"To her own use and benefit forever, trusting and wholly confiding in her honor that she would act in strict conformity with his wishes." Podmore Gunning, 7 Simons, 644: "To his wife, absolutely, having a perfect confidence she will act up to those views which I have communicated to her as the ultimate disposal of my property after my decease." Cruwys v. Coleman, 9 Vesey, 322: "And it is my absolute desire that my sister Mrs. Bridget Cruwys, which I have made my only executrix, bequeaths at her own death to those of her own family what she has in her own power to dispose of that was mine, provided they behave well to her with decency and affection." Shovelton v. Shovelton, 32 Beavan 144: Whatsoever and wherever unto my unto my said dear wife to and for her own absolute use and benefit, in the fullest confidence that she will dispose of the same for the benefit of her children according to the best exercise of her judgment and as family circumstances may require at her hands." Gully v. Gregor, 24 Beav. 185: "as to and for her own sole use and benefit forever, feeling assured and having every confidence that she will hereafter dispose of," etc. Ware v. Mallard, 16 Jur. 492: entire estate to his wife to and for her sole use and benefit, in full confidence that she would, in every 1espect, appropriate and apply the same unto and for the benefit of all children. Massey v. Sherman, 1 Amb. 520: "to his wife in fee, not doubting but that my wife will dispose of the same amongst my children as she shall please. See Clifton v. Lombe, 1 Amb. 519; Baker v. Mosley, 12 Jur. 740: trusting that he would preserve the same so

that after the death of trustee it might go to the testator's children, or the survivors of them."

One of the strong cases in America has such a singular history that we will give it. It is Coate's appeal, and to be found in 2 Barr. 129, being at December term, 1845, decided by Judge Rogers. It came up again as McKonkey's Appeal, and was decided by Judge Gibson. (Chief Justice) in March, 1850, and reported 1 Harris, etc., 13. It came up again as Pennock's Appeal, and was decided by Judge Lowrie in 1853, and is to be found 20 Penn. 268, overruling the opinions of both Judge Rogers and Chief Justice Gibson, who had settled the law between the very same parties in this case, and upon which this estate had been managed from 1845 to 1853. Was the little lad who burnt the Temple at Ephesus named Lowrie? Rogers and Gibson had followed the English rule. The court went back to their rule in Burt v. Herron, 66 Pa. St. 400, decided in 1871.

The American cases are not so numerous as the English. Erickson v. Willard. 1 N. H. 217, decided by Judge Woodbury, afterwards on the United States Supreme Bench. "I desire that the said I W should, at his discretion, appropriate a part of the income of my estate aforesaid, not exceeding $50 a year, to the support of the widow ME." Ward v. Pelonbet, 2 Stock. 305; Warner v. Bates, 98 Mass. 277. These cases, to-wit, Gilbert v. Chapin, 19 Conn. 351, and Harper v. Phelps, 21 Coun. 257, are much discussed by the American editors of Leading Cases in Equity, but do not at bottom conflict with the Erickson-Willard case, decided by Judge Woodbury, nor with Warner Bates' case decided by Judge Bigelow. In these cases in equity Hardyng v. Glyn is discussed with great ability.

The most extreme of the English cases is Irvine v. Sullivan, 8 L. R. Eq. Cas. 673, decided in 1869, and in which testator devised all his estate to A, B and C. his executors, upon trust to sell. "I hereby give and bequeath the same to D, absolutely trusting that she will carry out my wishes with regard to the same with which she is fully acquainted." Testator had, before the date of his will, told her to whom he had been for some time engaged to be married, that he desired her to make gifts out of the property he would leave her. D wrote down his wishes, but the paper was not submitted to or signed by the testator, The court held that she took this devise subject to these gifts. In Wood v. Cox, 2 M. & C., the court held that it was a gift subject to a charge and that Sir Geo. Cox was entitled to the property subject to the legacies of the testatrix,including those verbally given. In this connection see Stubbs v. Sargon,3 M. & C. 507. Very similar to these last mentioned cases is Harrison v. Harrison. 2 Grat.' 1 where there was some optional legacies given by testator to his servants.

As to restrictive precedent conditions relative to a legatee's marriage without consent, see Desboy . Boyville, 2 P. W. 547. The will gave cer

tain stocks etc.; to apply the dividends for plaintiff's maintenance till twenty-one, or be married with consent of A and B; and if without their consent, then dividends to her during her life, and after death stock, etc., to her children. It was held that it was only intended that she should forfeit them in case she married before she was twenty-one without their consent We deduce from the cases on this subject five exceptions to the general rule as follows: 1. Where the first taker has any right to spend any portion of it. Pigott v. Bullock, 1 Ves. Jr. 483. 2. Where it is clearly and distinctly inconsistent with any positive provision of the will, as a simple recommendation and no more. Knote v. Cottee. 2 Phillips, 192; Shaw v. Lawless, 5 Cl. & Fin. 129. 3. Where there is any uncertainty as to the takers or property. Wright v. Atkyns, 1 T. & R. 82. Williams v. Williams, 1 Sm. (N. S.) 357; Shovelton v. Shovelton, 32 Beavan, 144. 4. Where it is a mere power as distinguished from a trust. 5. Where it is a mere statement of good will or affection, or where the words simply state the motive leading to the gift, but leaving the legacy and its use discretionary with the first taker. See Pigott v. Bullock, 1 Ves. Jr. 483. Hawkins, in his work on Wills, p. 160, says, in commenting on the rule as stated by Lord Truro, in Briggs v. Perry, quoted above: "But this formula is, perhaps, not strictly accurate; for the rule is, not that a trust is created if the expression exclude discretion (which is, of course), but that precstory expressions shall be prima facie considered to exclude discretion." This statement by Hawkins contains the true law on this complicated subject, and also its true construction in its application to each will under discussion. But where the discretion of the first taker or trustee is in any way so mixed with the legacy that it must needs be considered by the court, it is never a discretion that will allow him to act according to his own arbitrary will, and thereby disappoint the true object of the testator, although it is not so fully expressed in the will but that it must be reached by construction.

As to the decision in Pennock's Appeal, overruling both Rogers and Gibson (Judges), where the law of the case between the very same parties, and touching the very same estate, had been previously settled by the highest courts of appeal. we do not know of any other judge in England or America who has ever attempted such a judicial

act.

FONTAINE T. Fox, Jr.

Appeal from the Circuit Court of the United States for the District of Nebraska.

FIELD, J., delivered the opinion of the court: The road of the Union Pacific Railroad Company passes for its entire length, from Omaha on the Missouri river to Ogden in Utah, a distance of 1,036 miles, through a country almost destitute of timber fit for fuel. During its construction, however, large deposits of coal, of excellent quality and easily worked, were discovered in land along its line, from which abundant supplies for the use of the company could be obtained. The complainant represents that their extent, quality, and value were unknown, and that doubts were generally entertained as to their adequacy to meet the necessities of the company, until he had made explorations in June, 1868, and reported to its managers the information which he had thus acquired; and that upon that information the contract which has given rise to this suit, was made, after much negotiation, between the company and himself and Cyrus O. Godfrey, with whom he had become associated in business. But in this respect he is mistaken. Though he may have imparted to the managers the information acquired by his explorations, the knowledge of the existence and general character of the deposits had been communicated to them years before by the engineers appointed to survey the route for the construction of the road. They had reported that coal in inexhaustible quantities, of suitable quality for the purposes of the company, was found so near the line of the road as to render its extraction and delivery easy and convenient. It is of little moment, however, whether the knowledge of the existence, character, extent, and accessibility of the deposits was obtained from the complainant or from others; it is sufficient that the directors of the Union Pacific Railroad Company, having the control and management of its road and business, were informed upon the subject at the time the contract mentioned was made. That coutract was as follows: "This agreement made this 16th day of July, in the year of our Lord one thousand eight hundred and sixty-eight, between the Union Pacific Railroad Company by its proper officers,

of the first part, and Cyrus O. Godfrey and Thomas Wardell, of the State of Missouri, or assigns, parties of the second part: Witnesseth, that the said party of the first part agrees that the said parties of the second part may prospect at their own expense for coal on the whole line of the Union Pacific railway, and its branches and extensions, and open and operate any mines discovered, at their own expense; that said railroad company agrees to purchase of said parties of the second part all clean merchantable coal mined along its road, needful for engines, depots, shops, and other purposes of the company, and to pay for the same the first two years at the rate of six dollars per ton; for the next three years at five dollars per ton; for the four years thereafter at four dollars per ton; and for the six years remaining at the rate of three dollars per ton, delivered upon the cars at the mines of said party of the second part, and which shall not be less than ten per cent. added to the cost of the same to the said party of the second part. This contract to be and remain in full force and effect for the full term of fifteen years from the date hereof. That said railroad company agrees to facilitate the operations of said party of the second part, in prospecting and otherwise, by means of such information as it may possess, and by furnishing free passes on its road to the agents of the parties of the second part, not exceeding six in number. Said railroad company further agrees to put in switches and the necessary side-tracks, at such points as may be Lutually agreed upon, for the accommodation of the business of the said parties of the second part; that the said parties of the second part agree to make all necessary exertions to increase the demand and consumption of coal by outside parties along the line of said railroad, and to open and operate mines at such points where coal may be discovered, as may be desired by said railroad company; and to expend within the first five years from the date of this agreement, in the purchase and development of mines and mining lands, and improvements for the opening, successful and economical working of the same, not less than the sum of twenty thousand dollars; also to furnish for the use of the said railroad company good merchantable coal, and to pay all expenses for improvements for loading coal into cars. Any improvement desired by said railroad company in regard to the coal to be used by it shall be at the cost of said railroad company. In consideration of their exertions to increase the demand for coal, and the large sum to be expended in improvements, it is further agreed that the parties of the second part shall have the right to transport over the said railroad and its branches for the next fifteen years from the date of this agreement, coal for general consumption at the same freight that will be charged to others; but the said parties of the second part shall be entitled in consideration of services to be rendered as herein provided, to a drawback of twenty-five per cent. on all sums charged for the transporta

tion of coal. That said railroad company agrees to furnish the parties of the second part with such cars as they may require in the operation of their business, and to transport them as promptly as possible. This agreement to remain in force for fifteen years. The coal lands owned by said party of the first part are hereby leased for the full term of fifteen years to the said parties of the second part or their assigns, for the purpose of working the same as may seem to them profitable; said parties of the second part to pay for the first nine years a royalty of twenty-five cents per ton for each ton of coal taken from their lands, excepting always coal taken from entries, air-courses or passage-ways, for which coal no royalty shall be paid; payments for the same being due and payable monthly. The royalty for the last six years

of this lease shall be free, provided the price of coal to the railway company is reduced to three dollars per ton. If three dollars and twenty-five cents or more per ton, then in that case the royalty shall be as during the first nine years. In witness whereof we have hereunto set our hands and seals, this the day and year first above mentioned.

(Signed)

"OLIVER AMES, "President of the Union Pacific R. Co. "C. O. GODFREY. "THOMAS WARDELL." This contract on the part of the railroad company was made by direction of the executive committee of the board of directors, of whom the president was one, and not by the board itself. It was never reported to the board for its consideration or action. But, notwithstanding this defect, in August following the contractors, Wardell and Godfrey, entered upon its execution, and began work on several mines along the line of the road. Soon afterwards Godfrey transferred his interest to Wardell, perceiving, as the bill alleges, that sums beyond those stipulated would be required, and being alarmed at the risks which he believed he had assumed.

In January following (1869), a corporation under the laws of Nebraska, called the Wyoming Coal and Mining Company, was formed to develop and work the mines, having a capital stock of $500,000, divided into shares of $100 each, a majority of which was taken by six of the directors of the railroad company, one of whom was its president; and to it Wardell assigned his contract without any consideration. The corporation continued the execution of the contract, Wardell acting as its superintendent, secretary and general manager, and delivered coal as needed by the railroad company up to the 13th of March, 1874, when the officers and agents of that company, by order of its directors, took forcible possession of the mines and of the books, papers, tools and other personal property of the coal company, which they have held and used ever since. Hence the present suit, which Wardell brings in his own name, alleging as a reason that a majority, if not all, of the directors and stockholders of the coal

company, except himself, are also directors and stockholders of the railroad company, and that, therefore, he can obtain no relief by a suit in the name of the coal company. He prays that an account may be taken of the amount due for the coal delivered to the railroad company, for drawback on freight from the date of the contract to the forcible seizure alleged; for coal extracted from the mines since their seizure; for the property of the coal company taken, and for the damages arising from the seizure and the attempted abrogation of the contract; and that the rights and interests of the several parties may be ascertained and declared; and for general relief. To this bill the railroad company filed an answer, setting up in substance three defenses: 1st. That the contract of July 16th, 1868, was a fraud upon the company; that it was made on its part by the executive committee of its board of directors, a majority of whom were, by previous agreement, to be equally interested with the contractors in it, and, for that reason, its terms were made so favorable to the contractors and unfavorable to the company as to enable the former to make large gains at the expense of the latter, and that the organization of the Wyoming Coal and Mining Company was a mere device to enable those directors to participate in the profits; and that, therefore, the contract was of no validity and binding obligation upon the company; 2d. That at the time of the seizure of the property the railroad company was the owner of nine-tenths of the stock of the coal company and had become apprehensive that Wardell, its superintendent and manager, would not furnish the coal needed to run the trains; and, 3d. That since then the coal company and the railroad company, through their boards of directors, have had a settlement of their transactions, by which the contract of July 16th, 1868, has been rescinded and the sum of $1,000,000 allowed to the coal company, and that the railroad company has set apart and tendered to the complainant $100,000 for his share in the coal company in that settlement.

The court below held that the contract of July 16th, 1868, was a fraud upon the company, but that the complainant was. apart from it, entitled to some compensation for his time, skill and services while engaged in taking out the coal, with the return of the money actually invested and compensation for its use, the amount to Be credited with what he had actually received out of the business; and that at his election he could have an accounting upon that basis or take the $100,000 tendered by the company. Of the alternatives thus offered the complainant elected to take the $100,000 instead of having the accounting mentioned, but appealed to this court from the decree, contending that the contract itself was valid and that he is entitled to an accounting upon that hypothesis.

The evidence in the case justifies the conclusion of the court below as to the nature of the contract of July 16th, 1868. It was evidently drawn more