porters, a preference may, if the Council think fit, be given to the reporters of any publication which may be discontinued in consequence of the issue of the reports recommended by the committee.

17. Subject to rule 15, the editor and reporters shall be appointed for a term of five years, and shall be eligible for re-appointment.

18. The particular duties of the editor, reporters, assistants and secretary, and of all employees, shall be prescribed by the Council, who shall have full power to increase or diminish the number engaged, establish and vary their duties, and adjust or alter their salaries, regard being had to existing interests for the time being under rule 9.

19. The reporter of the Court of Appeals and of the Supreme Court shall not practice in any court of record. The other reporters and all their assistants may practice, but it must be a fundamental requirement that their duties be faithfully and punctually discharged.

20. The judges of the several courts shall be requested to appoint convenient places to be occupied by the reporter, to allow the reporters access to all such papers as they can control and to their written opinions.

21. The bar shall be requested to afford the reporters all the assistance in their power for the better discharge of their duties, by communicating information, and by permitting the use of briefs and papers and shorthand writer's notes.

22. The profession shall be invited to subscribe to the reports (which it is supposed will be about eleven volumes per annum) at the following price: For the entire set, $50 per annum, to be paid in advance in such sums as the Council shall determine.

23. Such invitation shall contain an announcement that it is considered essential for carrying out the scheme that the aggregate amount of subscriptions, including what may be allowed by the State, shall reach $65,000 per annum at the least, but that the Council may commence their work whenever the prepaid subscription is, in their opinion, sufficiently large, and the guarantee executed by enough members of the bar to do so with prudence.

24. The prices to non-subscribers shall be one-third more than those charged to subscribers.

26. The Council shall have power to make such arrangements as will lead to the discontinuance of any set of existing reports, and for discharging the consideration of the same by payments out of the profits.

27. The Council shall make such arrangements for obtaining and collecting subscriptions for the reports, and disbursing the same, and for obtaining the guarantee of the bar, referred to in rule 9, and for naming, publishing, selling and distributing the reports, as in their judgment shall seem best.

28. The proceeds of the sale of reports and other publications and other profits therefrom shall be applied as follows:

1. In defraying the expenses of the publication, sale and distribution, including the commission or other remuneration agreed to be given to the publishers or printers.

2. In payment of the secretary's salary and other expenses of the Council under rule 4, and the first moiety of the salaries under rule 9.

3. In payment of the second moiety of the salaries under rule 9, and of the consideration, if any, agreed to be given for the discontinuance of any existing re

ports under rule 26, in such order and priority as the Council shall have arranged.

4. In making good to the members of the bar who have united in the guarantee of any moneys which they may have paid under the same.

Lastly, in augmenting the salaries of the reporters, or of such of them (if any) as the Council shall consider proper to be augmented, or in constituting a reserve fund to meet future contingencies, or in such other way as the Council, in their discretion, shall decide best calculated to improve the system of reporting and for the interest of the bar.

29. The Council shall have power, so far as they may not be fettered by any subsisting engagement, to lessen the subscription price of the reports if found practicable.

30. The Council shall prepare and publish annually a financial statement and report of the working of the system.

All of which is respectfully submitted.
Dated NEW YORK, December 3, 1873.

LEWIS L. DELAFIELD, Chairman,
HENRY NICOLL,

A. P. MAN,

CHAS. M. DA COSTA,

HENRY A. TAILER,

Committee on Law Reporting.

THE LATE JUDGE PECKHAM.

In response to the call of the Albany Bar, a large meeting of the members of the legal profession of the State was held in the Assembly Chamber of the Capitol on Wednesday last, to commemorate the life and services of the late Judge Peckham. A large number of distinguished lawyers were present from various parts of the State. The meeting was presided over by Hon. A. J. Parker. Brief addresses were delivered by the Chairman, by the Hon. Matthew Hale, Hon. J. V. L. Pruyn, Hon. W. W. Campbell, Mr. Ballard, Hon. W. M. Evarts, Judge Miller and others. We have space for the remarks of Judge Miller and of Mr. Evarts:

Mr. CHAIRMAN - In the death of Judge Peckham the judiciary of the State, the legal profession of which he was an honored member, an extensive circle of devoted friends and society at large, have sustained an irreparable loss.

It would better accord with our feelings on this occasion to maintain the silence which seems most suitable in view of the sad calamity which terminated his useful life, but his eminent talents, his elevated position, and his private virtues, demand a public expression of respect, and as one of his associates for a number of years upon the bench, I feel I must add my feeble tribute to the present commemoration of his life and services.

Although I knew Judge Peckham at an early day, when he was at the zenith of his professional fame, and once had met him as an opponent in the old Supreme Court, my acquaintance with him was slight until we were associated together in the discharge of official duties. In that connection I learned to appreciate his strong, noble character and his many virtues. To these and to this portion of his successful career I shall confine my remarks, leaving to others the agreeable task of tracing a more extended outline of his eventful history. During this period Judge Peckham was in full vigor of mind and body, and developed qualifications which were appreciated by the public, and finally secured his elevation to the bench of the highest court of this State.

His great experience at the bar, his capacity to grasp the most difficult subjects and intricate questions, his legal acumen, his keen discriminating mind, his calm and impartial spirit in the investigation of truth, his learning and great ability, ripened as they rose to full maturity, rendered him one of the most useful, efficient and able judges that ever adorned the bench of this State. He possessed faculties of the highest order, and in quickness of perception and the rapidity with which he arrived at results he had few equals, and I never knew his superior.

It may, perhaps, be said that he was not always right, for to err is human, and like all men who arrive at conclusions quickly he occasionally was mistaken But no one never yielded more readily, willingly and cheerfully, upon being convinced that he was wrong, than the lamented Judge. He was as prompt in rectifying the error as he was honest and pure in committing it. His strong, deep sense of justice shrunk intuitively from adhering to decisions of his own which he found to be erroneous because he was the author of them. He was diligent and unwearying in searching out the truth, and by severe criticism and sound logic scanned his own decisions and exposed errors with, perhaps, more zest and candor than if they had been committed by others. He had no pride of opinion under such circumstances which induced him to adhere to an erroneous judgment, and I have sometimes thought that he was more willing and eager to recede from conclusions hastily formed, because he doubted their accuracy on account of their having been arrived at without that calm deliberation and care which is so essential and important in the administration of justice and in the elucidation of legal principles.

While this characteristic of his mental organization peculiarly distinguished his career, he was also remarkable for great fearlessness and entire fidelity in the discharge of his official duties. He never swerved from the due and proper administration of the law to suit exigences, or to acquire fame or applause. He spurned all attempts to gain popularity. He administered justice with stern dignity, with integrity, impartiality and fearless independence, and with that disregard of consequences which is the crowning glory of the truly great and just Judge. It may perhaps be said that he was severely just according to the spirit of the law; but he always held the scales of Justice with equal poise to all, equal and alike. Innocence never suffered at his hands. He would direct a jury to acquit a person unjustly charged with crime as promptly and heartily as he would mete out strict justice to the hardened criminal. No ingenuity of counsel, no popular excitement or public clamor would cause him to hesitate in a faithful and honest discharge of his official duties.

With a full appreciation of the intricacies of a difficult case, our lamented friend possessed a faculty of communicating his ideas to others in such a manner as to bring them within the comprehension of the humblest mind. He would seize the strong points and present them with great clearness and vigor. His style was terse and incisive, but so bold and forcible that no one could fail to understand what he desired to explain. These characteristics peculiarly distinguished his written opinions at the General Term of the Supreme Court, which were always able, but comparatively few of them have been reported. He was an invaluable associate there, candid, patient and courteous at all times. Judge Peckham was deeply versed in the

Although once a member of the national legislature, the great field of his labor was in the profession to which his life was devoted. He was satisfied with the honor which he there won, and apparently beyond this he had no ambition for distinction. It was in an avocation which requires the exercise of the closest discrimination, the severest study and the highest order of intellectual ability that he shone pre-eminently, exhibiting the great powers of his mind and those infallible marks of genius for which he was distinguished. He was equally remarkable for the kindness of his heart, his strong attachment to his friends and his genial disposition. He was fond of social enjoyment, and as a companion was agreeable and pleasant, and the delight of his friends. I shall never cease to remember the many hours I have enjoyed at his hospitable home, enlivened by the presence of his loved companion, who sealed her devotion to him by sharing his sad fate. They both now sleep soundly and well in the cold embrace of Death beneath the deep blue waters of the Atlantic. I parted with Judge Peckham when he was elevated to the Court of Appeals with regret in the breaking up of an association of nearly nine years, which to me had been most agreeable and which I am proud to consider as among the pleasantest recollections of my life. The sudden termination of his life and his tragic death far away from the surroundings of home and of friends, amid the dangers of the sea, courageous as he was to the very end, are full of tragic interest and makes us feel more keenly the terrible blow that has been inflicted. It strikes home to our hearts and conveys an impressive lesson of the frailty of life, aud teaches us that we are but spared monuments of mercy who, in the twinkling of an eye, may be called to render our final account.

HON. WM. M. EVARTS' REMARKS.

Mr. CHAIRMAN: It has been the custom, upon the death of any great man of our profession, to pay tributes of respect and honor, and to my mind, the death of the man to whose memory we have come to do honor to-day, is not a private loss, to be mourned only by intimates and the brotherhood of the bar, but really is a matter in which without affectation and without arrogance we might feel there was a deep public interest.

For these sentiments and this action there is of course an excuse when the event which calls us together is the death of a man high in the public service - service in the administration of justice. I hope that the time will never come when by our conduct in our respective positions, or by our actions concerning it, this disposition will ever be weakened.

If there be any thing, sir, in my judgment, which characterizes the American people, and which they will never willingly let go, it is that the administration of justice by an upright judiciary be secured to them; and in the city of New York, we, although knowing much of the character and services of Judge Peckham, had not that opportunity of personal intercourse with the deceased, which was secured to those of our profession living in the city of Albany, we had not been unmindful of the worth of his personal character, and of the singular ability with which he performed the duties of the office to which the people of the State had called him.

We had ourselves, in some dark days of our judiciary, in some days of the disgrace and shame of our bar, received from the presence of this manly and upright judge wise counsel. I believe it is true praise for us to say that our deceased friend took such a high and enlightened view of the position of our judiciary as materially assisted us. It is strange - the vicissitudes which may attend the quiet and unostentatious life of a citizen. This death of Judge Peckham was a death without a death bed-fathoms under the waters of the

sea.

There is no scene in which death forms so much that is tragic as in that of Judge Peckham. The scene of his death and his memorable words, as recorded for us, should command the admiration and respect of all, irrespective of town, city, or nation; and it is our privilege as it is our duty to remember the great moral lesson that is conveyed by that sublime scene.

Mr. CHAIRMAN: We may share and we do share together the enjoyments and the duties of life, but every man must die alone. That is one personal relation that permits of no participation. We may be engaged in the market-place, in the farm, in the senate, or in the council-chamber, but we must all die at last-alone. And whenever death comes, it comes as the exit through the gate; through and under the dark shadow of which no sight can guide and in which faith only can uphold.

A number of letters from gentlemen unable to attend the meeting were read.

The following resolutions were adopted:

WHEREAS, The members of the Bar of the State of New York have received the mournful intelligence that, in the early morning of the 22d day of November, 1873, Rufus W. Peckham, one of the Judges of the Court of Appeals, was lost in mid-ocean by the wreck of a vessel that was bearing him to a distant country in the hope of restoring health impaired by arduous labors in his high office.

This appalling disaster is especially deplored by his brethren of the profession of the law, of which he was a most conspicuous ornament, and by his associates upon the Bench, with whom the later years of his life were spent in dispensing justice, with dignity and learning.

It is fitting that the death of a man who, by diligence in his profession, had achieved a place of marked eminence, and having been elevated to the highest judicial position known to our laws, leaves a record unstained in its purity and distinguished in all that gives value to the patient labors of an upright judge, should be, in a public form, commemorated. It is to perform this sacred duty that we are now assembled; and it is therefore

Resolved, That we bow with reverence and resignation to the irrevocable decree that has, under such painful circumstances, deprived us of a personal and professional friend. While we may not murmur against the inscrutable ways of God, we may still, in common with a stricken community, mourn the loss of our honored brother, a learned and impartial judge, and a most eminent and exemplary citizen.

Resolved, That while we point, with a just professional pride, to the public services of our lamented brother, we find a melancholy satisfaction in recurring to his many endearing qualities in a closer and more personal relation. He was generous and manly, imbued with a lofty sense of honor, and a dignity of personal character that provoked no undue familiarity, yet he

still was as gentle in manner as he was resolute in purpose - the delight of friends and a most welcome guest in every social gathering. We find some consolation in the belief that during the short interval between apparent security and certain death, he viewed the frightful situation with characteristic serenity, and in the very moment of extremest peril, when the relentless waters closed over the sinking deck, he was still loyal to all the impulses of a brave and noble nature.

Resolved, That we regard the death of Judge Rufus W. Peckham as a public calamity. However much we may deplore the sudden severance of personal and professional ties, we are not unmindful that in his deservedly high position he was one of the great officers of the State, to whom, with his eminent associates, were confided interests of the most exalted character, affecting all classes of our fellow citizens. With large experience, of approved integrity and learning, fearless in the assertion of right, yet gentle and merciful in enforcing the demands of the law, he was a fitting member of that high tribunal to which, in some form, all individual rights of liberty and property are referred, and, when dealt with in the appropriate forms pertaining to the administration of justice, tends to exact the dignity of a State and promote the happiness of its people.

Resolved, That to his distinguished associates upon the Bench of the Court of Appeals we tender our most respectful sympathies in the great loss they have sustained, and his more immediate kindred we affectionately commend to the only source of consolation in the hour of great affliction.

Resolved, That the record of these proceedings be presented to the Court of Appeals, now in session in this capital, with a respectful request that they be entered upon the minutes of the court, and that we will wear the usual badge of mourning for thirty days.

COURT OF APPEALS ABSTRACT.
DAMAGES.

Action to recover damages for an alleged unlawful ejection of plaintiff from one of defendant's cars. It appeared that plaintiff paid his fare upon one of defendant's cars which stopped for some reason, and plaintiff was transferred to another car. He refused to re-pay his fare, and the conductor ejected him without using any unnecessary force, or doing plaintiff any material injury. The conductor at the time supposed the fare had not been paid.

Held, that charge of the judge, authorizing exemplary damages, was erroneous; that, although defendant's servant acted in good faith, yet, as his act was unlawful, plaintiff was entitled to recover compensatory damages, including compensation for loss of time, the fare upon another car, and a suitable recompense for the injury done to his feelings, but nothing further. Where one honestly does what he believes to be his duty, and where no intentional injury has been committed, exemplary damages are not allowable. Hamilton v. Third Avenue R. R. Co. Opinion by Grover, J.

LIFE INSURANCE.

1. Answers in application: warranties: evidence.-This action was upon a policy of life insurance. The defense was based upon alleged misrepresentations made by the assured in his application, and to the medical examiner. Held, that statements made in an application for a policy of life insurance are in the nature of

warranties, and, if untrue in fact, avoid the policy, although immaterial, but verbal representations need only be substantially correct, and in particulars material to the risk, and misrepresentations made to the medical examiner, or the concealment of facts from him not material to the risk, in the absence of a fraudulent intent, will not vitiate the policy. Higbie, Exr., etc. v. Guard. Mut. Ins. Co. Opinion by Allen, J.

2. In an action upon a policy of life insurance, it is not competent to question the medical examiner of the assured as to the effect certain assumed facts would have had upon his judgment and action, had they been disclosed to him. Such questions do not call for the opinion of the witness in a matter of science connected with his profession. Ib.

3. The opinion of an expert, to be competent evidence must be based upon facts, not upon conjecture. He is not necessarily restricted to his own observation, but may give an opinion based upon facts proved by others, or upon hypothetical cases when pertinent to the issue, and there has been evidence given tending to prove the assumed facts. Ib.

4. Where a physician had testified that he had not sufficient knowledge to enable him to form or express a medical opinion as to the cause or character of certain symptoms, held, that evidence as to the impression made upon his mind by casual intercourse with the assured was properly excluded. Ib.

5. Persons of ordinary understanding are competent to form an opinion whether one whom they have had an opportunity to observe appears to be sick or well. Ib.

MALICIOUS PROSECUTION.

Probable cause.-Action for malicious prosecution for charging plaintiff with stealing or attempting to steal a diamond pin, for which defendant had him arrested and imprisoned. It appeared from plaintiff's evidence that at the time of the transaction the parties were upon a steamboat returning from an excursion to Coney Island. Defendant's child, by her severe coughing, attracted plaintiff's attention, and he went to where defendant and his wife and child were sitting to suggest a remedy. As he could not approach defendant in front he stepped behind him and touched him upon the shoulder and said he wished to speak to him. Defendant answered him in a loud and disagreeable manner, "if you have any thing to say, say it here." Plaintiff was on the point of leaving, but turned and said he merely wished to speak to him in regard to his child's cough. Defendant soon afterward pointed plaintiff out to a detective and charged him with an attempt to steal a diamond pin he wore at the time of the occurrence. Plaintiff was arrested, a charge of larceny was preferred against him, and he was imprisoned in a cell all that night, the next day, Sunday, and until 11 o'clock on Monday morning, when he was taken before a justice and discharged on the evidence of defendant and his wife. Plaintiff was nonsuited. Held, error; that from the facts defendant had no reasonable ground for suspecting plaintiff of a criminal intent. Carl v. Ayres. Opinion by Andrews, J.

2. To justify an arrest upon a criminal charge the facts must appear to be such that a discreet and prudent person would be led to believe that a crime had been committed by the person charged. In causing such an arrest one may act upon appearances, but he cannot act upon mere conjecture or put a false and unreasonable construction upon the acts of him whose

arrest he seeks, and then justify himself by pleading that he acted thus upon the appearances. Ib.

REVIVOR.

1. When discretionary with the court: appeal. This was an action in equity commenced prior to the Code, to wit: June 28, 1848, answers were served, but no further steps were taken in the cause until in July, 1872, when the motion on which this appeal arises was made. The complainant died in March, 1850, leaving a will upon which letters testamentary were issued in May, 1850. The executors did not attempt to revive or continue the action. One died six years and the other ten years after the issue of the letters testamentary. An administrator, with the will annexed, was appointed in June, 1872. A motion to revive and continue the action on supplemental complaint with amendments if necessary was made in July, 1872, at Special Term. The Special Term granted the motion, and in the order stated that the case was a proper one for denying the motion if the court had any discretion, and that it was granted on the ground that the court had no discretion.

Held, 1st. That the right of the representatives of a deceased party to continue an action pending at his death is not an absolute right but rests in the legal discretion of the court to which the application is made under § 121 of the Code for leave to continue.

2d. That a long delay in making the application constitutes laches and a valid reason for refusing the leave asked. In such case the equitable rule applies which requires reasonable diligence as well as good faith.

3d. That the statute of limitations is applicable to a proceeding to revive and continue an action, and it is barred by lapse of time Beach v. Reynolds et al. Opinion by Allen, J.

2. It is questionable whether an order upon such an application is appealable to this court. Ib.

STOCK BROKERAGE.

Evidence: custom: conversion of stock held as security. -Action for the alleged conversion of certificates for 400 shares of Atlantic Mail Steamship Company stock. The stock in question was deposited with defendant, a gold and stock broker in the city of New York, December 1, 1866, by plaintiff, to secure the former against any loss he might sustain on purchases or sales of gold to be made on account of the latter. Prior to January 19, 1867, all the transactions on plaintiff's account were closed. Defendant accounted therefor, and showed that they had resulted in loss, and that plaintiff owed him $11,600.22. Plaintiff tendered defendant this sum and demanded the return of his certificates. Defendant replied that he did not have them. Defendant offered to show, upon the trial, a custom and usage which authorized a broker to hypothecate or otherwise use securities received by him as a margin on transactions like those in question, and that plaintiff knew of this custom. This offer was overruled, and defendant excepted. The court directed a verdict for plaintiff for the value of the shares, deducting the amount due defendant. Held, no error; that the custom, if proved as offered, did not authorize a sale or any disposition of the stocks which would deprive plaintiff of his property or his right to reclaim it; that defendant's lien was discharged at the time of the refusal, and a right to 'further or longer use the stock was gone, and that therefore the evidence offered was wholly immaterial. Whatever right defendant had, it ceased the instant the obligation of plaintiff was discharged by his tender to

defendant of the amount due him. If the property was then lawfully out of defendant's possession, it was his duty at once to regain possession of it and restore it to plaintiff, and upon his neglect or refusal so to do, he was liable to an action as for the conversion of the property. An authority in defendant to sell the stock was inconsistent with the contract of bailment, and a custom or usage will not avail thus to vary the terms of the agreement. Property pledged may, with the assent of the pledgor, express or implied, be used by the pledgee in any way consistent with the general ownership and ultimate rights of the former to have the property when the lien shall be discharged. Lawrence v. Maxwell. Opinion by Allen, J.

SURFACE WATER.

Action to recover damages for an alleged interference by defendant with the flow of water of a creek upon which plaintiff owned a saw-mill. Defendant's land was situated above plaintiff's upon the stream, and in order to drain off surface water from its lands it dug two ditches upon its own lands, discharging into the creek, which was the natural outlet of such water. It was thus carried off more directly and quickly, and in times of high water raised the water of the creek and at other times reduced its volume in consequence of the rapid drainage, and affected somewhat the use of plaintiff's mill. Held, that defendant had the right to drain the surface water from its lands, through the ditches dug by it, into the creek, although it increased and diminished at times the flow of the water of the creek, to the damage of riparian proprietors below. Waffle v. N. Y. C. R. R. Co. Opinion by Grover, J.

ACTS DONE WITHIN SCOPE OF EMPLOYMENT.

It is a well-established principle of law that the master is only liable for negligent acts of the servant when such acts are done by the servant within the scope of his employment; but, as is usual with most general principles of law, the real difficulty is to say when the facts of an individual case bring it within the principle. The case of Burns v. Poulsom [see note of case, ante, p. 339. ED.], a report of which will be found in last week's issue of the Weekly Reporter (p. 20), affords a good illustration of this difficulty. In that case a stevedore was employed to ship iron rails, and had a foreman whose duty it was (assisted by laborers) to carry the rails from the quay to the ship, after the carman had brought them to the quay and unloaded them there. The carman not unloading certain rails to the foreman's satisfaction, the latter got into the cart, and threw out some of them so negligently that one of them fell upon and injured the plaintiff, who was passing by. It was held in the court of common pleas by Grove and Denman, JJ. (dissentiente Brett, J.), that there was evidence for the jury that the foreman was acting within the scope of his employment, so as to render the stevedore responsible for his acts.

Admitting that the dividing line is often very fine between acts done and acts not done within the scope of the employment, we must say that the reasoning employed by the dissentient judge in this case appears to us to be the more forcible. It seems to have been substantially admitted that it was no part of the stevedore's duty to unload the cart in which the rails were brought; and if so it is difficult to see how in point of time the course of the employment could begin until the rails were deposited on the quay. The case in

which acts, not in fact authorized by the master, have been held to be acts within the scope of the employment, have mostly been cases in which the acts complained of constituted a manner of performing the duty intrusted to the servant. But if it was no part of the duty of the foreman to unload or assist in unloading the cart, but only to take the rails from the quay to the ship, how could any act of his in unloading the cart be construed to be a manner of doing the duty intrusted to him, and so within the scope of his employment? The fallacy which seems to us to underlie the judgment of the court is that it seems to have been assumed that if the acts of the foreman were done to facilitate the subsequent performance of his duty, and so with the intention of benefiting his master, they would be done within the scope of the employment. It does not seem to us that this would be so. Suppose that it was the duty of some servant to receive goods from a train at a certain platform, and that, finding the truck containing the goods to be inconveniently placed at the platform, he jumped on the engine and set the train in motion in order to draw the truck into a better position, and an accident in consequence occurred; surely it could not be contended for a moment that the master would be liable in respect of the railway accident. The case is a little more striking and unlikely than that of Burns v. Poulsom, but we are at a loss to see the substantial distinction. We presume the way in which our illustration would be met by the majority of the court would be by saying that it must be a question for the jury whether an act can reasonably be said to be within the scope of the employment, and that so outrageously unusual an act as that we have instanced could not be found, as a matter of fact, to be within the scope of the employment; and if it were so found the verdict would be set aside as against evidence. It is not, however, necessary to take so strong a case as that which we have just instanced. Suppose a servant, going to receive goods from a railway, was asked by the porters to assist in pushing a truck to a certain spot along the line, or to pull the handle of the points, or otherwise to assist in their work for the purpose of his receiving the goods, could his master be rendered liable for injury done to third persons if an accident occurred? In Burns v. Poulsom the foreman interfered with the rails in the cart against the will of the carman, but that seems to make no difference.

In reality the point where the divergence of opinion exists between the majority of the court and the dissentient judge is, that the judgment of the majority assumes that it might, under certain circumstances, be part of the foreman's duty to assist in unloading the cart. Of course if that were so it would make all the difference; but if the report of the case be correct there was no evidence of that whatever. It seems to have been a sort of assumption from what anyone might readily conjecture to take place very often in such a case, viz.: that if the carman has any difficulty in unloading, the person coming to receive the goods would assist him. It seems to us that this is carrying the doctrine of respondeat superior a great deal too far. It is a doctrine which, even when rightly applied, in many cases entails great hardship on the master, and is, in fact, in a great measure, based on the expediency of the thing. If the servants were substantial persons worth suing, there can be little doubt that the doctrine would never have grown to its present dimensions. It does seem to us to be carrying a doctrine of this kind too far to hold that it may ex