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their condition in any rospect, financial or social. The either by legal or illegal means, whether such purpose very genius of free institutions invites them to higher be illegal at common law or by statute, or to effect a levels and better fortunes. They may dictate their legal purpose by illegal means, whether such means be own wages, fraternize with their owu associates, choose illegal at commou law or by statute, is a common-law their own employers, and serve man and mammon ac conspiracy. Such combinations are equally illegal cording to the dictates of their own conscience.


ther they promote objects or adopt means that are But while the law accords this liberty to the one, it per se indictable, or promote objects or adopt means accords a like liberty to every other one; and all are that are per se progressive, immoral or wrougfully bound to so use and enjoy their own liberties and priv prejudicial to the rights of others. ileges as not to iuterfere with those of their neighbors. If they seek to restrain trade or tend to the destruc

All the legislation in England and America has been tion of the material prosperity of the country they progressively in the direction of according to laborers work injury to the whole public. the enjoyment of equal rights with others. The early These propositions are the clear deductions of the English statutes, beginning with the middle of the cases cited in argument and breath a spirit of equality fourteenth century, are to be read in the light of the and justice that must commend itself to every intellicivilizatiou of that day, and their provisions, to us of gent mind. the nineteenth century, harsh, illiberal and tyrannical, Counsel have cited to us no case in which it has been were but the reflex of the prevalent potions of class ruled that this crime of couspiracy does not exist at distinctions that shaped and guided the social and the common law. political policy of those days.

We are referred to Mr. Wright's clever monograph From time to time, however, down to 1875, this upon criminal conspiracies, wherein the author, legislation has been liberalized and christianized, and though not deuying that conspiracies to injure industo-day, in England or here, workmen stand upon the tries and against the free exercise of one's calling acsame broad level of equality before the law with all cording to his own choice, were held to be criminal at uther vocations, professions, or callings whatsoever, the common law, still attempts to throw doubt upon respecting the disposition of their labor and the the basis upon which the doctrine rests. advancement of their associated interests.

But in 1 Hawkins' Pleas of the Crown, chap. 27, There as here it is unlawful for employers wrong-1 & 2 (a book of great authority; 2 Russell Crimes, fully to coerce, intimidate or hinder the free choice 674) it is laid down “that all confederacies whatsoever of workmen in the disposal of their time and talents. wrongfully to prejudice a third person are highly There as here it is unlawful for workmen wrongfully criminal at common law;" and in 2 Wharton's Crimito coerce, intimidate or hinder employers in the nal Law, $ 2322, it is said that “a combination is a selection of such workmen as they choose to employ. 1 conspiracy in law whenever the act to be done has a There as here no employer can say to a workman he necessary tendency to prejudice the public or oppress must not work for another employer; nor can a work individuals by unjustly subjecting them to the power man say to an employer he cannot employ the service of the confederates, and giving effect to the purposes of another workman.

of the latter, whether of extortion or mischief.' And By the law of the land these respondents have the the same proposition in one form of expression and most unqualified right to work for whom they please, | another is laid down in 2 Bish. Crim. Law, $ 172; and and for sncb prices as they please. By the law of the in Desty Crim. Law, $ 11; and in 3 Chit. Crim. Law, land O'Rourke and Goodfellow have the same right. 1138; aud iu Archbold Crim. Prac. and Pl. 1830. And By the same law the Ryegate Granite Company has it was said by Denman, C. J., in Queen v. Kenrick, 5 the right to employ the respondents or O'Rourke on Q. B. 491: "It was contended in the first place that such terms as may be mutually agreed upon, with the third count was bad by reason of uncertainty as out let, hindrance or dictation from any man or body giviug no uotice of the offense charged. The whole of meu whatever.

law of conspiracy as it has been administered at least Suppose the members of a bar association in Caledo for the last hundred years has been thus called in nia county should combine and declare that the re question; for we have sufficient proof that during that spondents should employ no attorney, not a member period any combination to prejudice another unlawof such association, to assist them in their defense in fully has been considered as constituting the offense this case, uuder the penalty of being dubbed a "scab," so called. The offense has been held to consist in the and baving his name paraded in the public press as conspiracy and not in the acts committed for carrying unworthy of recognition among his brethren, and it iuto effect, and the charge has been held to be himself brought into hatred, ouvy and contempt, sufficiently made in general terms describing an unwould the respondents look upon this as an innocent lawful conspiraoy to effect a bad purpose," and Baron intermeddling with their rights under the law? The Rolfe, iu Reg. y. Selsby, 5 Cox Crim. Cas. 495, and proposition has only to be stated to disclose its utter Tindal, C. J., in Reg. v. Harris, 1 Car. & Marsh. 661; inconsistency with every principle of justice that and Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47: permeates the law under which we live.

and Grove, J., in Rex v. Hawboy, 6 T. R. 619; and If such conspiracies are to be tolerated as innocent, Lord Mansfield, in Rex v. Eccles, 1 Leach Crown Cas. then every farmer in Vermont, now resting in the con 274; and Hill, J., in Walsby v. Anley, 3 E. & E. 516: fidence that he may employ such assistance in carry and Campbell, C. J. in Reg. v. Rowlands, 17 A. & E. iug on his farm as he thinks he can afford to hire, is 671; aud Baron Bramwell, in Reg. v. Druitt, 10 Cox exposed to the operation of some such code of law in Crim. Cas. 592; and Brett, J., in Reg. V. Bunn, 12 id. the framing of which he had no voice, and upon the 316; and Malins, V.C., in Springhead Co. v. Riley, L. terms of which he has no veto, and every manufacturer R., 6 Eq. 651; and Coleridge, C. J., in Mogul S. S. Co. is handicapped by a system that portends certain de v. McGregor, 15 Q. B. Div. 476; and Shaw, C. J., in struction to bis industry. If our agricultural and Commonwealth v. Hunt, 4 Meto. 111, 128; and Caton, manufacturing industries are sleeping upon the fires of J., in Smith v. People, 25 [11. 17; and Gibson, C. J., in a volcano liable to eruption at any moment it is high Commonwealth v. Carlisle, Jour. Jur. 225; and Chaptime our people knew it. But happily such is not the man, C. J., in Carew v. Rutherford, 106 Mass. I, have law, and among English-speaking people never has all added their iudorsement of the doctrine advanced been the law. The reports, English and American, as early as the work of Hawkins, supra, and it is are full of illustratious of the doctrine that a combina manifest that we are compelled to forsake the literation of two or more persons to effect au illegal purpose ture of doubt and to cleave unto that of authority.

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See, also, Rex v. Ferguson. 2 Stark. N. P. 489; Rex v. to discharge further tban to say that the remedy can-
Bykerdike, 1 N. & R. 179; People v. Fisher, 14 Weud. not be found in the boycott.
9; Snow y. Donaldson, 32 N. J. L. 151; Snow v. (Omitting question of form of pleading.]
Wheeler, 113 Mass. 186; State v. Noyes, 25 Vt. 415; Affirmed.
State v. Burnham, 15 N. H. 396; Morris Coal Co. v.
Barclay Coal Co., 68 Penu. St. 173.
Vice-Chancellor Malius, in the case cited supra, states

CONSTITUTIONAL LAW - COMMUNICATED the law of the subject iu brief but intelligible words:

“Every man is at liberty to enter into a combination
to keep up the price of wages, but if he enters into a

SUPREME COURT OF ERRORS OF CONNECTICUT, combination for the object of interfering with the

DECEMBER 23, 1886.
perfect freedon of action of another man, it is an
offense not only at common law, but under act 6

George IV., chapter 129.”

A statute making railroad companies liable in damages for
The principle upon which the cases, English and

fires communicated by their locomotives where the owner American, proceed is, that every man has the right to

of the property injured is not guilty of contributory negemploy his talents, industry and capital as he pleases,

ligence, is not unconstitutional as denying to such corpofree from the dictation of others; and if two or more

rations the equal protection of the laws, or as taking their persons combine to coerce his choice in this behalf it

property without due process of law, or as impairing the is a criminal conspiracy. The labor and skill of the

rights given them by their charters to use fire, steam and workman, be it of high or low degree, the plant of the

locomotive engines.
manufacturer, the equipment of the farmer, the in-
vestments of commerce, are all in equal sense prop-

THE opinion states the case.
erty. If men by overt acts of violence destroy either
they are guilty of crime. The anathemas of a secret M. W. Seymour and H. H. Knapp, for appellant.
organization of men, combined for the purpose of con-

J. S. Turrill, for appellee.
trolling the industry of others by a species of intimi-
dation that works upon the mind rather than the

LOOMIS, J. This action is founded on the statute of body, are quite as dangerous and generally altogether 1881 (Sess. Laws 1881, ch. 92), the first section of which more effective than acts of actual violence. And while is as follows: “Where an injury is done to a building such couspiracies may give to the individual directly or other property of any person or corporation by a affected by them a private right of action for damages, fire communicated by a locomotive engine of any rail. they, at the same time, lay a basis for an indictment road corporation, without contributory negligence on on the ground that the State itself is directly con

the part of the person or corporation entitled to the cerned in the promotion of all legitimate industries care and possession of the property injured, the said and the development of all its resources, and owes the

railroad corporation shall be held responsible in dam. duty of protection to its citizens engaged in the exer

ages to the extent of such injury to the person or corcise of their callings. The good order, peace and gen

poration so injured; and any railroad corporation eral prosperity of the State is directly involved in the

shall have an insurable interest in the property for question,

which it may be so held responsible in damages along In the case at bar the third and fourth counts set its route, and may procure insurance thereon in its forth more particularly the methods adopted by the owu behall." respondents to interfere with the prosecution of its

The plaintiff was the owner and possessor of land ad. business by the Ryegate Granite Works. They charge joining the defendant's railroad track iu the town of the respondents with an intent to prevent the prose.

New Milford, and certain of its fences, growing trees, cution of the work of that company by threatening

and herbage thereon were destroyed by fire communiO'Rourke, Goodfellow and others that the Ryegate

cated by the defendant's locomotive engine. There Granite Works were “scab shops," and all workmen

was no coutributory negligence on the part of the therein were "scabs," and their names would be pub. plaintiff, and he brought this suit to recover damages lished in the "scab" list in the Granite Cutters' Jour for the injury received, and obtained a verdiot in his nal, and that they would be shunned and not allowed favor in the court below. The defendant gives six disto work with other granite cutters, and would be dis tinct reasons for his appeal to this court, but none of graced in the craft, etc.; by all of which O'Rourke, them cau avail to set aside the plaintiff's verdict if the Goodfellow and others were frightened and driveu statute is valid, and can be construed to cover the away from said shop.

property injured. Our discussion therefore will be The exposure of a legitimate business to the control confined essentially to these two points: of au association that can order away its employees

1. Is the statute a valid one? The defendant's counand frighten away others that it may seek to employ,

sel in this argument presented a powerful arraignment and thus be compelled to cease the further prosecution of the statute as denying to railroad corporations the of its work, is a condition of things utterly at war equal protection of the laws, in that it makes them with every principle of justice and with every safe

liable for the consequences of a lawful act without guard of protection that citizens under our system of any fault or negligence; and as taking away their government are entitled to enjoy. The direct ten property without due process of law, in that it do dency of such intimidation is to establish over labor | prives them of a legal defense, and as impairing the and over all industries a control that is unknown to the rights given them by their charters, which authorize law, and that is exerted by a secret association of con- | the use of fire, steam, and locomotive engines, while spirators, that is actuated solely by personal considera- | requiring trains to be run for the benefit of the public. tions, and whose plans, carried in to execution, usually for the unavoidable consequences of which acts the result in violence and the destruction of prop

statute makes them liable. erty.

The several counts in this indictment seem to be That evils exist in the relations of capital and labor, based principally upon this one principle of the comand that workmen have grievances that often times mon law; that for a lawful, reasonable, and careful call for relief are facts that observing mien caunot deny. I use of property the owner cannot be made liable. But With such questions, we, as a court, have no function this principle is not so wrought into the Coustitution

or into the very idea of property, that it cannot be age it might occasion, without proof of scienter or departed from by the Legislature where protection to knowledge of its vicious propensity, as required by persons or property may require it.

the common law, we do not think the act would be But the defendant also invokes another principle, void. Such a statute would only be a new application which it is claimed the statute violates, namely, the of an aucient common-law principle, that where one equal protection of the law. But to give force to of two innocent persons must suffer loss from an act this objection, it should appear that a burden is cast done, it is just that it should fall on the one who upon railroad corporations from which all others are caused the loss rather than upon the other, who had exempt under similar circumstances. There can of no agency in producing it, and could not by any means course be no such inequality if the circumstances are have avoided it. radically different. This consideration seems to have Au ancient statute of this State, which has been been ignored in the argument for the defendant, of very often enforced, makes the owner of dogs, or if else it was erroneously assumed that the circum

the owner is a minor or on apprentice, the parent, stances were similar. Some of the cases cited in be guardian or master, liable for all the damage done by half of the defendant will illustrate the distinction to them, irrespective of any fault or negligence on the which we refer.

part of the owner. Gen. Stat., p. 267, $ 5. Another In Durkee v. City of Janesville, 28 Wis. 464, an act statute (Gen. St., p. 489, 96) makes one who kindles a had been passed providing that the city of Janesville fire on his own or any land liable for all damage it should be holden to pay no costs in any action brought may do if it runs upon the land of another; the proof against it to set aside any tax assessment or tax deed, of negligence is not required. We are not aware that or to prevent the collectiou of any tax. The act was held the validity of any of these statutes has been called in void, because it exempted one corporation by name question. The dangerous character of the thing used from a burden from which no other was exempt under is always to be considered in determining the validity like circumstances, and it enabled the city to recover of statutory regulations fixing the liability of parties its own costs if it recovered judgment, but denied it 80 using it. Fire has always been subject to arbitrary to the other party to the same litigation in case judg | regulations, and the common law of England was ment was recovered against the city.

more severe and arbitrary on the subject than any So in Ohio & M. R. Co. v. Lackey, 78 Ill. 55, an Illi statute. In Rolle's Abridgement ("Action on the nois statute was held unconstitutional and void which Case,” B, tit. “ Fire") it is said: “If my fire, by mismade the railroad company liable for all the burial | fortune, burns the goods of another man, he shall have expenses and coroners' fees incurred, where any one his action on the case against me. If a fire breaks out happened to die or be killed in any way in the cars of | suddenly in my house, I not knowing it, and it burns such railroad. This act attempted to make the com- my goods and also my neighbor's house, he shall have pany liable, though a person might die from a mortal his action on the case against me. So if the fire is sickness which was upon him when he entered the caused by a servant or a guest, or any person who eucar, or by his own hand, or in other ways in regard to tered the house with my consent; but otherwise if it which the company would have no agency whatever, is caused by a stranger who enters the house against The distinction between such a case and the one at bar my will." is too manifest to require further comment.

It ought perhaps to be stated that this has not been The ouly case cited which supports the defendant's adopted as the common-law rule in the United States. position in the least is the case of Zeigler v. South In most States we presume there are arbitrary police Ala. R. Co., 58 Ala. 594, where a statute of that State regulatious conceruing the transportation or deposit was held unconstitutional which declared that rail- of gunpowder. Would the constitutionality of a statroad corporations should be liable and make compen- | ute be questioned that should make one who deposits gation to the owner for all damage to live stock caused | large quantities of gunpowder or dynamite on his own by their locomotives or trains, without any reference premises, in dangerous proximity to the property of to the skill or diligence with which the train was op another, liable for any loss thereby occasioned to the erated, unless there was some contributory negligence latter without proof of negligence ? on the part of the owuer other than permitting the | There is no force in the objection that the statute unstock to run at large. There might be a difference of der cousideration unjustly selects only railroad corpoopinion in different jurisdictions as to the validity of rations to bear the burden of an extraordinary risk. It is such legislation. But assuming for the sake of argu- confined to them because they alone have the privilege ment that the decision was right, there is an important of taking a narrow strip of land from each owner, withdistinction between the two cases. There the animals out bis consent, along the route selected for the track, injured were where they ought not to have been and of traversing the same at all hours of the day and trespassers obstructing the defendant's railroad track, night, and at all seasons, whether wet or dry, with lodirectly exposing the defendant's property to bazard comotive eugines that scatter fire along the margin of and loss; here the property injured was where it the land not taken, thereby subjecting all combustible ought to have been, on the plaintiff's own premises, property to extraordinary bazard of lo88, aud that too occasioning no hazard to the railroad company. There for the sole profit of the corporation. The argument too it was possible for the owner to have kept his for the defendant is fallacious in erroneously assumstock on his own premises, where they would have ling that the statute denies to the defendant a good debeen safe, but here it was not possible for the plaintiff fense which at commou law all others would have unto avoid the loss that be suffered by any act of his der similar circumstances. own.

In Jones v. Festiniog Ry. Co., L. R., 3 Q. B. Div. 733, It is a mistake to suppose that it necessarily tran- | in a suit against an unchartered railway company, it scends the limits of valid legislation, or violates the was proved by the defendants that all reasonable preprinciple of a just equality before the law, if the one cautions had been taken to prevent the emission of using extra-hazardous materials or instrumentalities, sparks from a locomotive engine used by them. But it which put in jeopardy a neighbor's property, is made was held nevertheless that they were liable on the to pay the risk and bear the loss thereby occasioned, ground that the locomotive was a dangerous eugine to if there is no fault on the part of the owner of the be brought and used by the defendants even upon property, even though negligence in the other party their own premises, and that they must bear the con. cannot be proved. If the statute should make the sequences in case of damage to others. Wharton, in owner of a vicious domestic animal liable for the dam- his treatise on Negligence ($ 868) lays down the same doctrine as to the liability of unchartered companies equally so as to railroads already in existence. The at common law. How then can it transcend the limits defendant's charter not only contains an explicit reof just and valid legislation to attach to chartered servation for the Legislature to alter, amend or rerailroad companies, for doing the same act, under the peal it, but makes it also in terms subject to all gensame circumstances, the same liability, where the eral laws the Legislature may hereafter pass. And as charter, as in this case, is an open oue, expressly made to any defense suggested by the assumption that an subject to all general laws ?

appraisal of the general risk from fire may have been In Hooksett v. Concord R. Co., 38 N, H. 242, where made to the plaintify originally or bis grantor, while the construction of a similar statute was under con- we reserve a final decision of the question for the case sideration, Eastman, J., in giving the opinion of the in which it properly arises, we may here suggest that court, used this suggestive language: “The extraordi where the original appraisal only gave damages to the nary use of the element of fire, by which the property | extent that the property was diminished in value in of individuals situated along the lines of railroads be- conseque!ice of the risk, and the same property is aftercomes endangered beyond the usual and ordinary ward destroyed, the damages to be recovered under the hazard to which it is exposed, no doubt caused the statute would of course only represent the remaining Legislature to interfere. * * By this exposure or diminished value, so that the statute cannot propan increased risk of loss of property is caused. The erly be charged with allowing double damages for the risk must be borne by some one, and if the property same thing. In other jurisdictions the original apis ipsured a larger premium must by paid. Upon praisal and the indemnity provided by the statute whom shall tbis risk fall and this burden rest? Upon have not been considered so inconsistent as that both the owners of the property or upon the corporations might not exist together. Pierce v. Worcester & N. R. who make this extraordinary use of the fire ?" The Co., 105 Mass. 199; Bangor, etc., R. Co. v. McComb, 60 only answer, it seems to us, which a due sense of jus- | Me. 290; Addin v. White Mt. R. Co., 55 N. H. 413: tice can dictate, is the one given in that case-that the Lyman v. Boston & W. R. Co., 4 Cush. 288. responsibility and burden should rest on the corpora In further confirmation of our reasoning as to the tions. No other mode of adjusting this risk can be validity of the statute we make the following citasuggested so just toward all parties as this. Before tions: the statute, upon taking land for railroad purposes, it Redfield, in his treatise on the Law of Railways, in was possible upon the appraisal to include something the first edition, page 360, published in 1857, alluding for the increased risk to buildings on the land not to the statutes similar to the oue under consideration, taken, confining it however to the diminished value said. “We cannot forbear to add that the interference of the remaining property caused by the risk. Pierce of the Legislatures upon this subject in many of the Railr. 215; In re Utica, etc., R. Co., 56 Barb. 456; Wil American States seems to us an indication of the pubmington & R. Co., 60 Penn. St. 374. But it would seem lic sense in favor of placing the risk iu such cases upon extremely difficult to make any just appraisal even on the party in whose power it lies most to prevent such this limited basis; and it could have no application to injuries occurring.” buildings afterward placed on the land, nor to build In Pierce on Railroads (page 444) it is said: “Statings wbich might be destroyed by fire from this source utes have been enacted making the company liable, on land more remote from the railroad, no part of even in the absence of negligence, for injuries to priwhich was taken or appraised, nor to any personal vate property caused by fire communicated by its enproperty whatever. And it would of course be utterly gines, which in effect make it an insurer in case of impracticable to assess beforehand damages for prop such injury. These statutes are constitutional, even erty that might be destroyed in the future.

when applied to pre-existing corporations." And here we may suggest that the statute under In 2 Wood's Railway Law ($ 331) it is said: “In some consideration, though often characterized as arbi. States railway companies are made liable, irrespective trary, is really based on a principle quite similar to of the question of negligence, for fires set by their enthat which allows an assessment in favor of the land | gines, and as a compensation for this extraordinary liaowner founded on the risk of fire from the same bility, are givev an insurable futerest in such propsource. In both cases it is assumed that there is a erty, and these statutes have been beld constitutional risk, and that it is justly placed on the corporation. even in their application to corporatious established The statute carefully guards the interests of the cor- before the statute was passed, and although damages porations by giving them an insurable interest in all for the risk of fire were considered when the land was the property for which they may be made liable, aud taken." section 4 provides that no appraisal of damages for In the well-cousidered case of Rodemacker v. Milland taken or injured by the location or construction waukee & St. P. R. Co., 41 Iowa, 297, the court disof a railroad shall hereafter include any compensation cussed at length the constitutionality of a provision for the inoreased risk to any building outside of such of the Code of that State, that “any corporation oplocation, on account of sparks from the locomotive eu- erating a railway shall be liable for all damages by fire gines on such railroad.

that is set out or caused by the operating of any such This last provision suggests that the statute is not | railway," and fully sustained the act, even as applicaquite so equitable in its application to the defendant ble to pre-existing railways. The counsel for the decompany, which established its railroad before the feudant in the case at bar sought to impair the force statute was euacted, as to corporations afterward of the decision by reason of the fact that in Iowa the formed. It can of course derire po benefit from this Code had entirely supplanted the commou law. The provision except as to land it may have taken since distinction seems to us not well taken. The Legislathe enactment of the statute. The record is silent as ture surely could acquire no additional power by exto when the land in question was taken, or whether ercising its sovereigu will twice; first in abolishing or not any thing was at the time included or claimed the common law, and then in enacting the statute. as damages on account of the risk from fire to the And the objection as to inequality before the law property now owned by the plaintiff. No question so persistently urged against our statute applies with founded on these facts was made to the court below, equal force to the provision of the Iowa Code, for that and of course is not to be entertained in this court for applies exclusively to railway corporatious tbe samo the purposes of decision. We may however remark, as our statute. as to the general provisions of the statute, that if they 1 In Lyman v. Boston & W. R. Co., 4 Cush. 290, it was are valid as to railroads to be established, they may be held that a similar statute in Massachusetts was applicable to railroads established before as well as ity a bond and mortgage of which he was the owner. since its passage, and that it extended as well to es. Thereupon defendant agreed, that if plaintiffs would tates a part of wbich is conveyed by the owner as to loay the required sum, he (defendant) would repay those of which a part is taken by authority of law. ! them in case of eventual default, and take a transfer The constitutionality of the statute was not discussed, of the mortgage from plaintiffs. This contract was but the principles stated as constituting its founda unknown to the third party, who thereby secured the tion directly apply. Dewey, J., in delivering the opin loan, and assigned the mortgage to plaintiffs. Upon ion, on page 291, said: “ We consider this one of those default in payment of the notes executed for the loan, remedial acts passed for the more effectual protection plaintiffs recovered judgment thereon, and in suppleof property against the hazards to which it has be mentary proceedings upon the judgment collected come subject by the introduction of the locomotive from the third party $450. In an action by plaintiffs engine. The right to use the parcel of luud appropri on defendant's contract, held, that the amounts thus ated to a railroad does not deprive the Legislature of collected could not be considered voluntary payments the power to enact such regulations and impose such made by defendant so as to toll the statute of limitaliabilities for injuries suffered from the mode of using tions. (2) After default had been made in the paythe road, as the occasion and circumstances may rea ment of the loan notes, defendant entered into a fursonably justify.” This reasoning clearly makes the ther written contract with plaintiffs, whereby in conlegislation in question a legitimate exercise of the po sideration of the sum of $1,800, receipt whereof was aclice power of the State. See also the comments of | knowledged, a half-interest in the mortgage was trangShaw, C. J., in delivering the opinion in Hart v. ferred to defendant. Held, that the question whether Western R. Corp., 13 Metc. 105, and of Bigelow, C. J., the contract was an absolute purchase of the half-inin Ross v. Boston & W. R. Co., 6 Allen, 90.

terest, or an assignment pro tanto of the legal title in [Omitting a minor question.]

consideration of a part payment which would toll the For the foregoing reasons we conclude that there statute of limitations, should have been left to the was no error in the judgment complained of.

jury upon all the evidence. April 19, 1887. Blair v. The other judges concurred.

Lynch. Opinion by Finch, J.

Trust-POWER OF SALE-REV. Stat. N. Y. 729, 98


land in New York was made to “Cornelia H. Burton,

* * * in trust for Annie G. Burton, Grace BurAPPEAL-REVIEW-EXCEPTION NOT TAKEN BELOW ton and Burr Burton, with power to sell and convey -EXPERT EVIDENCE-COVERING FOR DECK CARGO. or mortgage, without the appointment of a guardian, (1) In New York the trial court has the power to set of the second part," habendum to the party of the secaside a verdict as contrary to the evidence, and grant ond part, “their heirs and assigns.” Held, a mere a new trial, without any exception; but on appeal formal passive trust, which Rev. Stat. 729, SS 47, 49, from an order refusing a new trial the New York executed by vesting the title in said three benefiCourt of Appeals can consider no objection which is ciaries, who were infants, subject to the power of sale, not based upon some exception taken at the trial. (2) which continued as a valid power in the said Cornelia Whether boards piled on barrels in tiers on the deck | H. Burton. (2) The language of the deed sufficiently of a canal boat are a sufficient covering to protect a showed that Cornelia H. Burton was not entitled to cargo of beans from injury by rain, is not properly a exercise said power for her own benefit, but only for subject for expert testimony. April 19, 1887. Schwinger the benefit of said infants; and mortgages of the land v. Raymond. Opinion by Earl, J.

therefore given by her to secure the debts of her husNEGLIGENCE-STREET RAILWAYS-USE OF STREET.

band, were not valid executions of the power, and Persons driving through the streets are not absolutely

were void. April 19, 1887. Holden y. Burton. Opiu

ion by Earl, J. bound to keep off or get off from the railway tracks, except that they must fairly and in a reasonable manner respect the paramount right of the railway; and UNITED STATES SUPREME COURT ABif they do this, and without any fault on their part

STRACT. they are injured by carelessness or fault chargeable to the railway, they can recover from the railway com

AGENCY-APPOINTMENT-LIABILITY OF PRINCIPAL. pany, April 19, 1887. Fleckenstein v. Dry Dock, E. B. & B. R. Co. Opinion by Earl, J.

- An English mining company, being indebted to D.,

and desiring to obtain further advances from bim to STATUTES-AMENDMENT-REPEALING EFFECT-PEN.

work its mines in Utah, executed a writing, by which ALTIES.-Laws N. Y. 1870, ch. 163, which authorized

it was agreed that D. should advance a certain amount banking associations to charge on loans and discounts

of money, aud P. was appointed manager of its propinterest at the rate of seven per cent per annum, and

erty and business until he had out of the profits of conferred the right to recover double the amount of

working the mine repaid to D. all movey, with ininterest paid at any greater rate, was repealed by Laws

terest, advanced by him, and until he had wined and N.Y. 1880, ch. 567, which enacted that Laws 1870, cb. 163,

delivered to D. the amount of ore that the company $ 1, “is hereby amended so as to read as follows," and

bad, by a previous agreement, sold to him, D. to have then set out the provisions of the act of 1870, except

the power to remove P. if he was not satisfied with his that "six per ceptum" was inserted in place of

management, and in the event of his removal to con" seven per centum," and there being no clause in the

sult with the directors as to the appointment of his act of 1880 saving actions peuding, an action brought

successor. The company also executed a power of for penalties under the act of 1870, which was pend

attorney to P., authorizing him to work and manage ing when the act of 1880 came into effect, will abato

the mine. P. employed his brother to haul ore, and April 19, 1887. Nash v. White's Bank of Buffalo.

he sued D. for the value of his services, claiming that Opinion per Curiam.

P. was D.'s agent. Held, that P. was not the agent of

D., but of the company, and that the agreement was STATUTE OF LIMITATIONS--PART PAYMENT-JUDG intended only as a security for the repayment of the MENT.-(1) Plaintiffs were applied to for a loan of advances made by D. to the company. The relation $3,500 by a third party, who offered to assign as secur- between the defendant and the company was strictly

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