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their condition in any respect, financial or social. The very genius of free institutions invites them to higher levels and better fortunes. They may dictate their own wages, fraternize with their own associates, choose their own employers, and serve man and mammon according to the dictates of their own conscience.

But while the law accords this liberty to the one, it accords a like liberty to every other one; and all are bound to so use and enjoy their own liberties and privileges as not to interfere with those of their neighbors.

All the legislation in England and America has been progressively in the direction of according to laborers the enjoyment of equal rights with others. The early English statutes, beginning with the middle of the fourteenth century, are to be read in the light of the civilization of that day, and their provisions, to us of the nineteenth century, harsh, illiberal and tyrannical, were but the reflex of the prevalent notions of class distinctions that shaped and guided the social and political policy of those days.

From time to time, however, down to 1875, this legislation has been liberalized and christianized, and to-day, in England or here, workmen stand upon the same broad level of equality before the law with all other vocations, professions, or callings whatsoever, respecting the disposition of their labor and the advancement of their associated interests.

There as here it is unlawful for employers wrongfully to coerce, intimidate or hinder the free choice of workmen in the disposal of their time and talents. There as here it is unlawful for workmen wrongfully to coerce, intimidate or hinder employers in the selection of such workmen as they choose to employ. There as here no employer can say to a workman he must not work for another employer; nor can a workman say to an employer he cannot employ the service of another workman.

By the law of the land these respondents have the most unqualified right to work for whom they please, and for snch prices as they please. By the law of the land O'Rourke and Goodfellow have the same right. By the same law the Ryegate Granite Company has the right to employ the respondents or O'Rourke on such terms as may be mutually agreed upon, without let, hindrance or dictation from any man or body of men whatever.

Suppose the members of a bar association in Caledonia county should combine and declare that the respondents should employ no attorney, not a member of such association, to assist them in their defense in this case, under the penalty of being dubbed a "scab," and having his name paraded in the public press as unworthy of recognition among his brethren, and himself brought into hatred, envy and contempt, would the respondents look upon this as an innocent intermeddling with their rights under the law? The proposition has only to be stated to disclose its utter inconsistency with every principle of justice that permeates the law under which we live.

If such conspiracies are to be tolerated as innocent, then every farmer in Vermont, now resting in the confidence that he may employ such assistance in carrying on his farm as he thinks he can afford to hire, is exposed to the operation of some such code of law in the framing of which he had no voice, and upon the terms of which he has no veto, and every manufacturer is handicapped by a system that portends certain destruction to his industry. If our agricultural and manufacturing industries are sleeping upon the fires of a volcano liable to eruption at any moment it is high time our people knew it. But happily such is not the law, and among English-speaking people never has been the law. The reports, English and American, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose

either by legal or illegal means, whether such purpose be illegal at common law or by statute, or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute, is a common-law conspiracy. Such combinations are equally illegal whether they promote objects or adopt means that are per se indictable, or promote objects or adopt means that are per se progressive, immoral or wrongfully prejudicial to the rights of others.

If they seek to restrain trade or tend to the destruction of the material prosperity of the country they work injury to the whole public.

These propositions are the clear deductions of the cases cited in argument and breath a spirit of equality and justice that must commend itself to every intelligent mind.

Counsel have cited to us no case in which it has been ruled that this crime of conspiracy does not exist at the common law.

We are referred to Mr. Wright's clever monograph upon criminal conspiracies, wherein the author, though not denying that conspiracies to injure industries and against the free exercise of one's calling according to his own choice, were held to be criminal at the common law, still attempts to throw doubt upon the basis upon which the doctrine rests.

But in 1 Hawkins' Pleas of the Crown, chap. 27, $2 (a book of great authority; 2 Russell Crimes, 674) it is laid down "that all confederacies whatsoever wrongfully to prejudice a third person are highly criminal at common law;" and in 2 Wharton's Criminal Law, § 2322, it is said that "a combination is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief." And the same proposition in one form of expression and another is laid down in 2 Bish. Crim. Law, § 172; and in Desty Crim. Law, § 11; and in 3 Chit. Crim. Law, 1138; and in Archbold Crim. Prac. and Pl. 1830. And it was said by Denman, C. J., in Queen v. Kenrick, 5 Q. B. 491: "It was contended in the first place that the third count was bad by reason of uncertainty as giving no notice of the offense charged. The whole law of conspiracy as it has been administered at least for the last hundred years has been thus called in question; for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered as constituting the offense so called. The offense has been held to consist in the conspiracy and not in the acts committed for carrying it into effect, and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose," and Baron Rolfe, in Reg. v. Selsby, 5 Cox Crim. Cas. 495, and Tindal, C. J., in Reg. v. Harris, 1 Car. & Marsh. 661; and Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47; and Grove, J., in Rex v. Hawboy, 6 T. R. 619; and Lord Mansfield, in Rex v. Eccles, 1 Leach Crown Cas. 274; and Hill, J., in Walsby v. Anley, 3 E. & E. 516; and Campbell, C. J. in Reg. v. Rowlands, 17 A. & E. 671; and Baron Bramwell, in Reg. v. Druitt, 10 Cox Crim. Cas. 592; and Brett, J., in Reg. v. Bunn, 12 id. 316; and Malins, V. C., in Springhead Co. v. Riley, L. R., 6 Eq. 551; and Coleridge, C. J., in Mogul S. S. Co. v. McGregor, 15 Q. B. Div. 476; and Shaw, C. J., in Commonwealth v. Hunt, 4 Metc. 111, 128; and Caton, J., in Smith v. People, 25 Ill. 17; and Gibson, C. J., in Commonwealth v. Carlisle, Jour. Jur. 225; and Chapman, C. J., in Carew v. Rutherford, 106 Mass. 1, have all added their indorsement of the doctrine advanced as early as the work of Hawkins, supra, and it is manifest that we are compelled to forsake the literature of doubt and to cleave unto that of authority.

See, also, Rex v. Ferguson. 2 Stark. N. P. 489; Rex v. Bykerdike, 1 N. & R. 179; People v. Fisher, 14 Wend. 9; Snow v. Donaldson, 32 N. J. L. 151; Snow v. Wheeler, 113 Mass. 186; State v. Noyes, 25 Vt. 415; State v. Burnham, 15 N. H. 396; Morris Coal Co. v. Barclay Coal Co., 68 Penu. St. 173.

Vice-Chancellor Malins, in the case cited supra, states the law of the subject in 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 combination for the object of interfering with the perfect freedom of action of another man, it is an offense not only at common law, but under act 6 George IV., chapter 129."

The principle upon which the cases, English and American, proceed is, that every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others; and if two or more persons combine to coerce his choice in this behalf it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all in equal sense property. If men by overt acts of violence destroy either they are guilty of crime. The anathemas of a secret organization of men, combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as dangerous and generally altogether more effective than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they, at the same time, lay a basis for an indictment on the ground that the State itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace and general prosperity of the State is directly involved in the question.

In the case at bar the third and fourth counts set forth more particularly the methods adopted by the respondents to interfere with the prosecution of its business by the Ryegate Granite Works. They charge the respondents with an intent to prevent the prosecution of the work of that company by threatening O'Rourke, Goodfellow and others that the Ryegate Granite Works were 66 scab shops," and all workmen therein were "scabs," and their names would be published in the "scab" list in the Granite Cutters' Journal, and that they would be shunned and not allowed to work with other granite cutters, and would be disgraced in the craft, etc.; by all of which O'Rourke, Goodfellow and others were frightened and driven away from said shop.

The exposure of a legitimate business to the control of an association that can order away its employees and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice and with every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidation is to establish over labor and over all industries a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal consideratious, and whose plans, carried into execution, usually result in violence and the destruction of property.

That evils exist in the relations of capital and labor, and that workmen have grievances that often times call for relief are facts that observing nien cannot deny. With such questions, we, as a court, have no function

to discharge further than to say that the remedy cannot be found in the boycott.

[Omitting question of form of pleading.] Affirmed.

CONSTITUTIONAL LAW - COMMUNICATED FIRES-RAILROAD.

SUPREME COURT OF ERRORS OF CONNECTICUT, DECEMBER 23, 1886.

GRISSELL V. HOUSATONIC R. Co.

A statute making railroad companies liable in damages for fires communicated by their locomotives where the owner of the property injured is not guilty of contributory negligence, is not unconstitutional as denying to such corporations the equal protection of the laws, or as taking their property without due process of law, or as impairing the rights given them by their charters to use fire, steam and locomotive engines.

THE opinion states the case.

M. W. Seymour and H. H. Knapp, for appellant.
J. S. Turrill, for appellee.

LOOMIS, J. This action is founded on the statute of 1881 (Sess. Laws 1881, ch. 92), the first section of which is as follows: "Where an injury is done to a building or other property of any person or corporation by a fire communicated by a locomotive engine of any railroad corporation, without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured, the said railroad corporation shall be held responsible in damages to the extent of such injury to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be so held responsible in damages along its route, and may procure insurance thereon in its own behalf."

The plaintiff was the owner and possessor of land adjoining the defendant's railroad track in the town of New Milford, and certain of its fences, growing trees, and herbage thereon were destroyed by fire communicated by the defendant's locomotive engine. There was no contributory negligence on the part of the plaintiff, and he brought this suit to recover damages for the injury received, and obtained a verdict in his favor in the court below. The defendant gives six distinct reasons for his appeal to this court, but none of them can avail to set aside the plaintiff's verdict if the statute is valid, and can be construed to cover the property injured. Our discussion therefore will be confined essentially to these two points:

1. Is the statute a valid one? The defendant's counsel in this argument presented a powerful arraignment of the statute as denying to railroad corporations the equal protection of the laws, in that it makes them liable for the consequences of a lawful act without any fault or negligence; and as taking away their property without due process of law, in that it deprives them of a legal defense, and as impairing the rights given them by their charters, which authorize the use of fire, steam, and locomotive engines, while requiring trains to be run for the benefit of the public, for the unavoidable consequences of which acts the statute makes them liable.

The several counts in this indictment seem to be based principally upon this one principle of the common law; that for a lawful, reasonable, and careful use of property the owner cannot be made liable. But this principle is not so wrought into the Constitution

or into the very idea of property, that it cannot be departed from by the Legislature where protection to persons or property may require it.

But the defendant also invokes another principle, which it is claimed the statute violates, namely, the equal protection of the law. But to give force to this objection, it should appear that a burden is cast upon railroad corporations from which all others are exempt under similar circumstances, There can of course be no such inequality if the circumstances are radically different. This consideration seems to have been ignored in the argument for the defendant, of else it was erroneously assumed that the circumstances were similar. Some of the cases cited in behalf of the defendant will illustrate the distinction to which we refer.

age it might occasion, without proof of scienter or knowledge of its vicious propensity, as required by the common law, we do not think the act would be void. Such a statute would only be a new application of an ancient common-law principle, that where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other, who had no agency in producing it, and could not by any means have avoided it.

An ancient statute of this State, which has been very often enforced, makes the owner of dogs, or if the owner is a minor or on apprentice, the parent, guardian or master, liable for all the damage done by them, irrespective of any fault or negligence on the part of the owner. Gen. Stat., p. 267, § 5. Another statute (Gen. St., p. 489, § 6) makes one who kindles a fire on his own or any land liable for all damage it may do if it runs upon the land of another; the proof of negligence is not required. We are not aware that the validity of any of these statutes has been called in question. The dangerous character of the thing used is always to be considered in determining the validity of statutory regulations fixing the liability of parties so using it. Fire has always been subject to arbitrary

In Durkee v. City of Janesville, 28 Wis. 464, an act had been passed providing that the city of Janesville should be holden to pay no costs in any action brought against it to set aside any tax assessment or tax deed, or to prevent the collection of any tax. The act was held void, because it exempted one corporation by name from a burden from which no other was exempt under like circumstances, and it enabled the city to recover its own costs if it recovered judgment, but denied it 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.

So in Ohio & M. R. Co. v. Lackey, 78 Ill. 55, an Illinois statute was held unconstitutional and void which made the railroad company liable for all the burial expenses and coroners' fees incurred, where any one happened to die or be killed in any way in the cars of such railroad. This act attempted to make the company liable, though a person might die from a mortal sickness which was upon him when he entered the car, or by his own hand, or in other ways in regard to which the company would have no agency whatever, The distinction between such a case and the one at bar is too manifest to require further comment.

The only case cited which supports the defendant's position in the least is the case of Zeigler v. South Ala. R. Co., 58 Ala. 594, where a statute of that State was held unconstitutional which declared that railroad corporations should be liable and make compensation to the owner for all damage to live stock caused by their locomotives or trains, without any reference to the skill or diligence with which the train was operated, unless there was some contributory negligence on the part of the owner other than permitting the stock to run at large. There might be a difference of opinion in different jurisdictions as to the validity of such legislation. But assuming for the sake of argument that the decision was right, there is an important distinction between the two cases. There the animals injured were where they ought not to have beentrespassers obstructing the defendant's railroad track, directly exposing the defendant's property to hazard and loss; here the property injured was where it ought to have been, on the plaintiff's own premises, occasioning no hazard to the railroad company. There too it was possible for the owner to have kept his stock on his own premises, where they would have been safe, but here it was not possible for the plaintiff to avoid the loss that he suffered by any act of his

own.

It is a mistake to suppose that it necessarily transcends the limits of valid legislation, or violates the principle of a just equality before the law, if the one using extra-hazardous materials or instrumentalities, which put in jeopardy a neighbor's property, is made to pay the risk and bear the loss thereby occasioned, if there is no fault on the part of the owner of the property, even though negligence in the other party cannot be proved. If the statute should make the owner of a vicious domestic animal liable for the dam

more severe and arbitrary on the subject than any statute. In Rolle's Abridgement ("Action on the Case," B, tit. "Fire") it is said: "If my fire, by misfortune, burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods and also my neighbor's house, he shall have his action on the case against me. So if the fire is caused by a servant or a guest, or any person who entered the house with my consent, but otherwise if it is caused by a stranger who enters the house against my will."

It ought perhaps to be stated that this has not been adopted as the common-law rule in the United States. In most States we presume there are arbitrary police regulatious concerning the transportation or deposit of gunpowder. Would the constitutionality of a statute be questioned that should make one who deposits large quantities of gunpowder or dynamite on his own premises, in dangerous proximity to the property of another, liable for any loss thereby occasioned to the latter without proof of negligence?

There is no force in the objection that the statute under cousideration unjustly selects only railroad corporations to bear the burden of an extraordinary risk. It is confined to them because they alone have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons, whether wet or dry, with locomotive engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extraordinary hazard of loss, and that too for the sole profit of the corporation. The argument for the defendant is fallacious in erroneously assuming that the statute denies to the defendant a good defense which at common law all others would have under similar circumstances.

In Jones v. Festiniog Ry. Co., L. R., 3 Q. B. Div. 733. in a suit against an unchartered railway company, it was proved by the defendants that all reasonable precautions had been taken to prevent the emission of sparks from a locomotive engine used by them. But it was held nevertheless that they were liable on the ground that the locomotive was a dangerous engine to be brought and used by the defendants even upon their own premises, and that they must bear the consequences in case of damage to others. Wharton, in his treatise on Negligence (§ 868) lays down the same

doctrine as to the liability of unchartered companies at common law. How then can it transcend the limits of just and valid legislation to attach to chartered railroad companies, for doing the same act, under the same circumstances, the same liability, where the charter, as in this case, is an open one, expressly made subject to all general laws?

* *

In Hooksett v. Concord R. Co., 38 N. H. 242, where the construction of a similar statute was under consideration, Eastman, J., in giving the opinion of the court, used this suggestive language: "The extraordinary use of the element of fire, by which the property of individuals situated along the lines of railroads becomes endangered beyond the usual and ordinary hazard to which it is exposed, no doubt caused the Legislature to interfere. *By this exposure an increased risk of loss of property is caused. The risk must be borne by some one, and if the property is insured a larger premium must by paid. Upon whom shall this risk fall and this burden rest? Upon the owners of the property or upon the corporations who make this extraordinary use of the fire?" The only answer, it seems to us, which a due sense of justice can dictate, is the one given in that case-that the responsibility and burden should rest on the corporations. No other mode of adjusting this risk can be suggested so just toward all parties as this. Before the statute, upon taking land for railroad purposes, it was possible upon the appraisal to include something for the increased risk to buildings on the land not taken, confining it however to the diminished value of the remaining property caused by the risk. Pierce Railr. 215; In re Utica, etc., R. Co., 56 Barb. 456; Wilmington & R. Co., 60 Penn. St. 374. But it would seem extremely difficult to make any just appraisal even on this limited basis; and it could have no application to buildings afterward placed on the land, nor to buildings which might be destroyed by fire from this source on land more remote from the railroad, no part of which was taken or appraised, nor to any personal property whatever. And it would of course be utterly impracticable to assess beforehand damages for property that might be destroyed in the future.

And here we may suggest that the statute under consideration, though often characterized as arbitrary, is really based on a principle quite similar to that which allows an assessment in favor of the landowner founded on the risk of fire from the same source. In both cases it is assumed that there is a risk, and that it is justly placed on the corporation. The statute carefully guards the interests of the corporations by giving them an insurable interest in all the property for which they may be made liable, aud section 4 provides that no appraisal of damages for land taken or injured by the location or construction of a railroad shall hereafter include any compensation for the increased risk to any building outside of such location, on account of sparks from the locomotive eugines on such railroad.

This last provision suggests that the statute is not quite so equitable in its application to the defendant company, which established its railroad before the statute was euacted, as to corporations afterward formed. It can of course derive no benefit from this provision except as to land it may have taken since the enactment of the statute. The record is silent as to when the land in question was taken, or whether or not any thing was at the time included or claimed as damages on account of the risk from fire to the property now owned by the plaintiff. No question founded on these facts was made to the court below, and of course is not to be entertained in this court for the purposes of decision. We may however remark, as to the general provisions of the statute, that if they are valid as to railroads to be established, they may be

equally so as to railroads already in existence. The defendant's charter not only contains an explicit reservation for the Legislature to alter, amend or repeal it, but makes it also in terms subject to all general laws the Legislature may hereafter pass. And as to any defense suggested by the assumption that an appraisal of the general risk from fire may have been made to the plaintiff originally or his grantor, while we reserve a final decision of the question for the case in which it properly arises, we may here suggest that where the original appraisal only gave damages to the extent that the property was diminished in value in consequence of the risk, and the same property is afterward destroyed, the damages to be recovered under the statute would of course only represent the remaining or diminished value, so that the statute cannot properly be charged with allowing double damages for the same thing. In other jurisdictions the original appraisal and the indemnity provided by the statute have not been considered so inconsistent as that both might not exist together. Pierce v. Worcester & N. R. Co., 105 Mass. 199; Bangor, etc., R. Co. v. McComb, 60 Me. 290; Addin v. White Mt. R. Co., 55 N. H. 413: Lyman v. Boston & W. R. Co., 4 Cush. 288.

In further confirmation of our reasoning as to the validity of the statute we make the following citations:

Redfield, in his treatise on the Law of Railways, in the first edition, page 360, published in 1857, alluding to the statutes similar to the one under consideration, said. "We cannot forbear to add that the interference of the Legislatures upon this subject in many of the American States seems to us an indication of the public sense in favor of placing the risk in such cases upon the party in whose power it lies most to prevent such injuries occurring."

In Pierce on Railroads (page 444) it is said: "Statutes have been enacted making the company liable, even in the absence of negligence, for injuries to private property caused by fire communicated by its engines, which in effect make it an insurer in case of such injury. These statutes are constitutional, even when applied to pre-existing corporations."

In 2 Wood's Railway Law (§ 331) it is said: "In some States railway companies are made liable, irrespective of the question of negligence, for fires set by their engines, and as a compensation for this extraordinary liability, are given an insurable interest in such property, and these statutes have been held constitutional even in their application to corporatious established before the statute was passed, and although damages for the risk of fire were considered when the land was taken."

In the well-considered case of Rodemacker v. Milwaukee & St. P. R. Co., 41 Iowa, 297, the court discussed at length the constitutionality of a provision of the Code of that State, that "any corporation operating a railway shall be liable for all damages by fire that is set out or caused by the operating of any such railway," and fully sustained the act, even as applicable to pre-existing railways. The counsel for the defendant in the case at bar sought to impair the force of the decision by reason of the fact that in Iowa the Code had entirely supplanted the common law. The distinction seems to us not well taken. The Legislature surely could acquire no additional power by exercising its sovereign will twice; first in abolishing the common law, and then in enacting the statute. And the objection as to inequality before the law so persistently urged against our statute applies with equal force to the provision of the Iowa Code, for that applies exclusively to railway corporatious the same as our statute.

In Lyman v. Boston & W. R. Co., 4 Cush. 290, it was held that a similar statute in Massachusetts was ap

plicable to railroads established before as well as since its passage, and that it extended as well to estates a part of which is conveyed by the owner as to those of which a part is taken by authority of law. The constitutionality of the statute was not discussed, but the principles stated as constituting its foundation directly apply. Dewey, J., in delivering the opinion, on page 291, said: "We consider this one of those remedial acts passed for the more effectual protection of property against the hazards to which it has become subject by the introduction of the locomotive engine. The right to use the parcel of land appropriated to a railroad does not deprive the Legislature of the power to enact such regulations and impose such liabilities for injuries suffered from the mode of using the road, as the occasion and circumstances may reasonably justify." This reasoning clearly makes the legislation in question a legitimate exercise of the police power of the State. See also the comments of Shaw, C. J., in delivering the opinion in Hart v. Western R. Corp., 13 Metc. 105, and of Bigelow, C. J., in Ross v. Boston & W. R. Co., 6 Allen, 90.

[Omitting a minor question.]

For the foregoing reasons we conclude that there was no error in the judgment complained of. The other judges concurred.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-REVIEW-EXCEPTION NOT TAKEN BELOW -EXPERT EVIDENCE-COVERING FOR DECK CARGO.(1) In New York the trial court has the power to set aside a verdict as contrary to the evidence, and grant a new trial, without any exception; but on appeal from an order refusing a new trial the New York Court of Appeals can consider no objection which is not based upon some exception taken at the trial. (2) Whether boards piled on barrels in tiers on the deck of a canal boat are a sufficient covering to protect a cargo of beans from injury by rain, is not properly a subject for expert testimony. April 19, 1887. Schwinger v. Raymond. Opinion by Earl, J.

NEGLIGENCE-STREET RAILWAYS-USE OF STREET.Persons driving through the streets are not absolutely 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 if they do this, and without any fault on their part they are injured by carelessness or fault chargeable to the railway, they can recover from the railway company. April 19, 1887. Fleckenstein v. Dry Dock, E. B. & B. R. Co. Opinion by Earl, J.

STATUTES-AMENDMENT-REPEALING EFFECT-PENALTIES.-Laws N. Y. 1870, ch. 163, which authorized banking associations to charge on loans and discounts interest at the rate of seven per cent per annum, and conferred the right to recover double the amount of interest paid at any greater rate, was repealed by Laws N. Y. 1880, ch. 567, which enacted that Laws 1870, ch. 163, § 1, "is hereby amended so as to read as follows," and then set out the provisions of the act of 1870, except that "six per centum " was inserted in place of seven per centum," and there being no clause in the act of 1880 saving actions pending, an action brought for penalties under the act of 1870, which was pending when the act of 1880 came into effect, will abate April 19, 1887. Nash v. White's Bank of Buffalo. Opinion per Curiam.

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STATUTE OF LIMITATIONS-PART PAYMENT-JUDGMENT. (1) Plaintiffs were applied to for a loan of $3,500 by a third party, who offered to assign as secur

ity a bond and mortgage of which he was the owner. Thereupon defendant agreed, that if plaintiffs would loan the required sum, he (defendant) would repay them in case of eventual default, and take a transfer of the mortgage from plaintiffs. This contract was unknown to the third party, who thereby secured the loan, and assigned the mortgage to plaintiffs. Upon default in payment of the notes executed for the loan, plaintiffs recovered judgment thereon, and in supplementary proceedings upon the judgment collected from the third party $450. In an action by plaintiffs on defendant's contract, held, that the amounts thus collected could not be considered voluntary payments made by defendant so as to toll the statute of limitations. (2) After default had been made in the payment of the loan notes, defendant entered into a further written contract with plaintiffs, whereby in consideration of the sum of $1,800, receipt whereof was acknowledged, a half-interest in the mortgage was transferred to defendant. Held, that the question whether the contract was an absolute purchase of the half-interest, or an assignment pro tanto of the legal title in consideration of a part payment which would toll the statute of limitations, should have been left to the jury upon all the evidence. April 19, 1887. Blair v. Lynch. Opinion by Finch, J.

TRUST-POWER OF SALE-REV. STAT. N. Y. 729, §§ 47, 49-INVALID EXECUTION.-(1) A deed of certain land in New York was made to "Cornelia H. Burton, *** in trust for Annie G. Burton, Grace Burton and Burr Burton, with power to sell and convey or mortgage, without the appointment of a guardian, of the second part," habendum to the party of the second part, "their heirs and assigns." Held, a mere formal passive trust, which Rev. Stat. 729, §§ 47, 49, executed by vesting the title in said three beneficiaries, who were infants, subject to the power of sale, which continued as a valid power in the said Cornelia H. Burton. (2) The language of the deed sufficiently showed that Cornelia H. Burton was not entitled to exercise said power for her own benefit, but only for the benefit of said infants; and mortgages of the land therefore given by her to secure the debts of her husband, were not valid executions of the power, and were void. April 19, 1887. Holden v. Burton. Opiuion by Earl, J.

UNITED STATES SUPREME COURT ABSTRACT.

AGENCY-APPOINTMENT-LIABILITY OF PRINCIPAL. An English mining company, being indebted to D., and desiring to obtain further advances from him to work its mines in Utah, executed a writing, by which it was agreed that D. should advance a certain amount of money, and P. was appointed manager of its property and business until he had out of the profits of working the mine repaid to D. all money, with interest, advanced by him, and until he had mined and delivered to D. the amount of ore that the company had, by a previous agreement, sold to him, D. to have the power to remove P. if he was not satisfied with his management, and in the event of his removal to consult with the directors as to the appointment of his successor. The company also executed a power of attorney to P., authorizing him to work and manage the mine. P. employed his brother to haul ore, and he sued D. for the value of his services, claiming that P. was D.'s agent. Held, that P. was not the agent of D., but of the company, and that the agreement was intended only as a security for the repayment of the advances made by D. to the company. The relation between the defendant and the company was strictly

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