With the exception of this statutory provision, the rule in Indiana seems to be the same as elsewhere, as it is held in State v. Wabash R. Co. 115 Ind. 466, 1 L. R. A. 179, 17 N. E. 909, that, where a corporation is in the hands of a receiver, who has full possession of its property and entire charge of its affairs, the corporation cannot be prosecuted for crimes or misdemeanors committed by the agents or servants of the receiver.

III. Conclusions.

The few instances in which this question has previously arisen, with possibly one exception, fully sustain the decision in PARMENTER V. BARSTOW, although in several cases it is intimated, and in one, an English case. expressly held, that the trustee may seek and have reimbursement from the trust fund, under the proper circumstances, for a personal judgment recov ered against him for the tort or negligence of a servant, and paid by him.

Receivers, although treated generally as trustees, are in a class by themselves as to their liability for the torts of employees. The cases are practically unanimous that they are liable officially only, not individually, except in the event of their individual fault, and that any judgment recovered against them is payable out of the funds in their hands as such receivers. When engaged in operating railroads many decisions hold them officially to the same rules of liability that control common carriers, and statutes providing for liability for personal injuries and relating in terms to railroad corporations only have been by many courts construed to include receivers engaged in operating railroads also. Two states, however, Georgia and Texas, by a stricter construction, excluded re

ceivers from liability under statutes relating in

terms to railroad corporations only, but in both states special legislation was afterwards passed to remedy the situation. The doctrine urged in a few instances, that receivers are within the same rales of liability as public officers, has met with practically no approval, for, as one court points out, the rule granting immunity to public officers from liability to individuals when executing their public duty is limited to those who are strictly public officers, and parts of the gov ernmental agency of the state, entirely distinct from individual gain or profit.

An exception to the general rule exists in Indiana, where it is provided by statute that the statutory action for killing or injuring stock may be brought against the company, notwithstanding the road is being operated by a receiver at the time the injury occurs. But, as to other actions for the tort or negligence of employees of receivers, so far as appears, the rule is the same as elsewhere. M. M. M.

MUNICIPAL COURT

v.

Albert A. WHALEY et al. (........ .R. I.... ..) That a legatee is also an executor of NOTE. As to liability of surety on administrator's bond, in an action against him for the wrongful acts of one administrator, brought by

one who has become the owner of a coadminis

trator's claim as distributee, see Nanz v. Oakley,

9 L. R. A. 223, with note on several executors considered as one person.

testator's estate does not prevent the enforcement for nis benefit of the liability of sureties on the bond for the default of his coexecutor, when the bond is joint and several in form.

ΟΝ

(June 27, 1903.)

N DEMURRER to the complaint in an action brought to enforce the alleged liability of sureties on an executor's bond. Overruled.

The facts are stated in the opinion. Mr. Irving Champlin for plaintiff. Messrs. Edwards & Angell, for defendants:

Executors giving a joint or joint and several bond are primarily liable for the devastavit of each other, and neither can maintain an action as a beneficiary under the will against the sureties on the bond for a devastavit of the other.

Miller v. Steward, 9 Wheat. 680, 702. & L. ed. 189, 195; Lafayette v. James, 92 Ind. 240, 47 Am. Rep. 140; 24 Am. & Eng. Enc. Law, p. 749, note 1, Suretyship; Hoell v. Blanchard, 4 Desauss. Eq. 21; Jeffries v. Lawson, 39 Miss. 791; Stephens v. Taylor, 62 Ala. 269; Newton v. Newton, 53 N. H. 537; Boyd v. Boyd, 1 Watts, 365; Jamison v. Lillard, 12 Lea, 690; Clarke v. State, 6 Gill. & J. 288, 26 Am. Dec. 576; Babcock v. Hubbard, 2 Conn. 536; Eckert v. Myers, 45 Ohio St. 525, 15 N. E. 862; Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 Pick. 535; Dobyns v. McGovern, 15 Mo. 662; Anderson v. Miller, 6 J. J. Marsh. 568; Green v. Hanberry, 2 Brock. 403, Fed. Cas. No. 5,759; Ames v. Armstrong, 106 Mass. 15; Sparhawk v. Buell, 9 Vt. 41; Woerner, Am. Law of Administration, § 258; Williams, Exrs. 7th Eng. ed. p. 529, note a 1, p. 1820. note y; 3 Redf. Wills, p. 93; Croswell, Exrs. & Admrs. § 588; Schouler, Exrs. & Admrs. § 406.

Stiness, Ch. J., delivered the opinion of the court:

The ground of the demurrer to the declaration is that Joseph W. Smith, for whose benefit the action is brought, was a coprincipal with Henry W. Smith on the bond in suit, and a coexecutor with said Henry W. Smith on the estate of Sheffield Smith; that said action is therefore by one of the principals on a bond against the sureties thereon, to recover from said sureties for the default of his coprincipal, and is not maintainable. The bond is joint and several.

Pub. Stat. 1882, chap. 184, § 10, in force at the time this bond was given, provided: "Every executor shall give bond,”

etc.

that it has been customary, when so desired, Under such a provision we understand as it would be allowable, for several exec

utors to give separate bonds. In most cases, however, the custom has been, as in this case, for joint executors to give joint and several bonds.

"On a joint bond all the obligors must be sued; but on a joint and several bond a creditor may sue all jointly or one separately for the whole amount. It is the same as though all had given a joint bond and each a separate bond, and the creditor could elect on which bond he would sue." Bouvier, Law Dict. title Joint and Several; 2 Woerner, Am. Law of Administration, 2d ed. § 558; 3 Wms. Exrs. Am. ed. Rand. & T. 243; 3 Redf. Wills, 2d ed. p. 282.

The defendant claims that Joseph W. Smith, being a principal, cannot sue the representatives of a coprincipal or a surety, because he himself is liable, and he would thus be suing for his own default. As stated by Woerner, supra, an executor was not required by common law to give bond, and was not liable for the malfeasance of a coexecutor, unless he had concurred in it, or there had been a joint possession of the estate from which it could be inferred that one had yielded to the control of another who had squandered the property. Except as it may be modified by statute, the rule in this country is the same, that one executor is not liable, as such, for waste committed by his coexecutor, nor for assets which the latter

received and misapplied without the knowledge and consent of the former. By force

of modern statutes, however, this rule now applies, practically, to liabilities of coexecutors as between themselves or on accounting, since the requirement of a bond protects legatees and creditors. There can be no question that on a joint bond all executors would be jointly liable, for that is the condition of the bond. The question, therefore, comes upon the distinction between a joint and a joint and several bond. Having said that upon a joint bond there would be an obvious joint liability, it follows that if there is only the same liability on a joint and several bond there is no difference between the two. Yet there is a

well-recognized distinction between them, such as we have already pointed out. If, then, by reason of the several obligation, one may be sued alone, it follows that either party may sue the other in a distinct right.

As several bonds, the sureties are sureties

severally of each executor, as they might be on separate bonds. Only in this way can effect be given to the provision of severalty

in the bonds. Most of the cases relied on

288, 26 Am. Dec. 576; Ames v. Armstrong, 106 Mass. 15; and Sparhawk v. Buell, 9 Vt. 41,-are frequently cited to show the joint liability of coexecutors, but they are all suits of legatees or creditors, who without question can hold them jointly on a joint and several bond.

The real plaintiff in the case at bar is a legatee, but the question is not whether he could sue if he were that and nothing more, but whether, though he is a legatee, he can sue, being also a coexecutor.

Aside from the cases of creditors and legatees cited by the defendants, in which courts have spoken of the joint liability of coexecutors under joint and several bonds, and others which are distinguishable on other grounds, we find but two which seem to support the contention that in no event can one executor sue his coexecutor.

In Stephens v. Taylor, 62 Ala. 269, the court held that two or more executors entering into a joint and several bond for the faithful performance of their duties are liable for the acts and defaults of each other, unless the bond shows that they did not intend to become bond for each other's defaults; that the sureties to such a bond become responsible to claimants for the faithful administration of the estate by their principals, the executors, and each of them,

and the principals, and each of them, come under obligation to hold the sureties harmless against any default on the part of the principals; that there are the duties towards one another that spring out of the relation created by the bond. This states very plainly the position taken by the defendants in this case.

The same rule is held in Hoell v. Blanchard, 4 Desauss. Eq. 21, with the addition that a coadministrator cannot hold a surety for default by another administrator, though claiming in a different right,-exactly the case before us. The reasoning of the court is that the relation between a principal and surety is very different from the relation between a surety and creditor; that a principal is bound to stand between his surety and the surety's responsibility in that character. It is to be noted, however, that the bond and several, as in Stephens v. Taylor. As a appears to have been a joint, and not joint joint bond, we think there can be no doubt as to the doctrine of Hoell v. Blanchard, but it does not reach the point of this case.

Towne v. Ammidown, 20 Pick. 535, was a bill by a surety on a joint and several bond for indemnity from the heirs of a deceased coexecutor who had been guilty of no de

In Nanz v. Oakley, 120 N. Y. 84, 9 L. R. | A. 223, 24 N. E. 306, a suit was brought on a joint and several bond in which an administratrix had joined with a coadministrator. The latter had the entire management of the estate, and had converted to his own use about $4,000 belonging to the estate. The administratrix was also the sole heir and next of kin of the intestate. Upon her death her coadministrator was charged by the surrogate with the amount, and ordered

to pay it over to her administrator. Suit was brought against the coadministrator, and execution returned unsatisfied, where

upon the action was brought against the surety on the original bond by the administrator of the coadministratrix and heir. The court held that he was entitled to recover. Numerous authorities are reviewed by the court, and the underlying reasons upon which the decision is based are that the purpose of a bond is to insure the discharge of the duty reposed in the persons appointed; that it was not intended to change the liability or relation of the persons appointed from that which existed independently of the bond; and that joint administrators are liable for joint acts and severally liable for their own acts.

The same rule has been applied to joint and several notes. In Beecham v. Smith, El. Bl. & El. 442. It was held that a maker

of a joint and several note who was one of the payees could sue a comaker on his several promise. Lord Campbell, Ch. J., said:

It is the general rule that one executor, on accounting, is not held by the acts of another, in which he has not participated or as to which he has not been negligent. McKim v. Aulbach, 130 Mass. 481, 39 Am. Rep. 470; Wilson's Appeal, 115 Pa. 95, 9 Atl. 473; Paulding v. Sharkey, 88 N. Y. 432; Re Adams, 51 App. Div. 619, 64 N. Y. Supp. 591; Hall v. Carter, 8 Ga. 388; Ormiston v. Olcott, 84 N. Y. 339; Sparhawk v. Buell, 9 Vt. 41 (by Redfield); Gaultney v. Nolan, 33

Miss. 569.

If the joint executors are not liable for the devastavit of each other, we see no satisfactory reason why one should not be entitled to sue for his separate and personal

claim.

The defendants urge as a reason that the plaintiff is thereby suing his own sureties, whom the law regards with peculiar tenderness. It is true that sureties are, and should be, protected as far as possible, and that a principal cannot sue his sureties for his own default. But if a several bond is equivalent to a separate bond it follows that in a separate suit the sureties are those of the coexecutor pro hac vice, and that they are not sued by the plaintiff as his sureties or for his default. If, also, bonds are to secure the beneficiaries of an estate, there is no just reason why the interest of a beneficiary, who happens to be an executor, should not be protected, as well as others,

from acts for which he is not chargeable. It is said that he should not be able to sue, because, being a coexecutor, he has the duty and opportunity to know what is done, which a mere creditor or other beneficiary does not have. There is force in this argument, and a court should hold an executor

327.

In State ex rel. Wyant v. Wyant, 67 Ind. 25, where the statute required separate bonds, but the administrators executed a joint and several bond, the court construed it as separate bonds, and sustained a suit by one against the other administrator and sureties. While the case is largely controlled by statute, it is nevertheless in point upon the question whether an administrator can sue his coadministrator on his several obligation. In Pringle v. Pringle, 130 Pa. 565, 18 Atl. 1024, an executor was allowed to sue, as an individual, his coexecutor, who had received all the assets, for a debt due from the testator to him. It was not a suit on a bond, but it is in point to show that an executor is not, by virtue of his office, debarred of a personal right.

on his part. Still, two executors cannot always have possession of money at the same time. Sickness, absence, or other causes may prevent one from having constant oversight; and in such a case it would be hard law, as between the two, to deny a remedy to the innocent against the guilty. We fail to see why the beneficiary may not sue the executor in default, although, by virtue of the bond, both might be sued by a creditor or legatee. Thus, the relation of executors is preserved between themselves and as to creditors; due effect is given to the form and obligation of the bond; only the one in default is held to answer; and the rights of all beneficiaries are protected. We think that this result is best sustained in reason and authority.

The demurrer to the declaration is overruled.

Fannie C. HARRINGTON et al., Respts.,

υ.

obliged to cross, and in failing to attempt to stop when he discovers one approaching, are questions for the jury.

Appt.

jury may be guilty of wantonness if he acts recklessly, without regard to the rights of

1. The rule that a person operating street car has a right to assume that one approaching the track will not place himself on it at such a time as to be injured by the car does not apply where persons engaged in a bicycle race are seen approaching the track along a narrow path at such a distance from the car that, even should they discover its approach, it is doubtful if they could stop or leave the path in time to avoid collision with the car. 2. A street car company is liable for the death of a bicycle rider racing in city streets in violation of an ordinance,

where the motorman, knowing that he is in peril, drives his car forward onto the narrow path by which the rider must cross the tracks when he might have stopped the car and let him pass in safety, while the rider, after discovering the presence of the car, does all he can to avoid a collision, but is unsuccessful, and is killed by colliding with the car. 3. To bring one within the operation

of the rule that one having the last clear chance to avoid an injury is liable for it, notwithstanding the negligence of the person injured, it is not necessary that he should know that injury is inevitable if he fails to exercise care, but it is enough if the circumstances known to him are such as

to convey to the mind of a reasonable person a question as to whether the other person will be liable to escape the threatened injury. 4. Ruling out a question to a motorman whose car collided with a bi

cyclist as to whether or not he would have moved his car forward if he thought that he was endangering life is not reversible error, where he is subsequently permitted to testify that he thought that by so doing he would avoid a collision, and that it would be dangerous to stop.

5. Intent to injure is not necessary to render one liable under the rule that he is responsible for an injury who has the last

clear chance to avoid it.

6. That a person who has negligently

(October 8, 1903.)

PPEAL by defendant from a judgment A of the Superior Court for Los Angeles County in favor of plaintiffs in an action brought to recover damages for the alleged negligent killing of their intestate. Affirmed.

The facts are stated in the opinion. Messrs. Bicknell, Gibson, & Trask, for appellant:

The conduct of the motorman cannot possibly be brought within the rule which excuses contributory negligence upon the part of the person injured.

Bolin v. Chicago, St. P. M. & O. R. Co. 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446; Tesch v. Milwaukee Electric R. & Light Co. 108 Wis. 593, 53 L. R. A. 618, 84 N. W. 823; Watermolen v. Fox Riv

er

Electric R. & Power Co. 110 Wis. 153, 85 N. W. 663; Hager v. Southern P. Co. 98 Cal. 309, 33 Pac. 119; Murphy v. Deane, 101 Mass. 455, 3 Am. Rep. 390; Holmes v. South Pacific Coast R. Co. 97 Cal. 161, 31 Pac. 834; O'Brien v. McGlinchy, 68 Me. 552.

"Reckless" and "wanton" are not synonymous. Recklessness is an element in wantonness,—at least an extreme degree of recklessness is; but it is not the only element. Wantonness includes, besides, an element of moral turpitude which is not involved in mere recklessness.

28 Am. & Eng. Enc. Law, p. 594. On petition for rehearing. Messrs. Dunn & Crutcher, also for appellant:

The decision of the department erroneously holds the doctrine of "last clear chance" applicable to the facts in this case. This court has always confined that doctrine to cases where the negligence of the plaintiff and defendant is distinct and independent. Holmes v. South Pacific Coast R. Co. 97

which he is not entitled.

8. Whether or not one participating in bicycle races which are part of

the festivities of a holiday is guilty of negligence in failing to look out for the approach of street cars on a track which he is

Angeles Consol. Electric R. Co. 115 Cal. 105, 34 L. R. A. 350, 46 Pac. 889, 43 Pac. 207; Sego v. Southern P. Co. 137 Cal. 405,

70 Pac. 279.

see also Bogan v. North Carolina C. R. Co. 55

L. R. A. 418, and note.

seen.

Glascock v. Central P. R. Co. 73 Cal. 137,

17 Pac. 518; Carlson v. Atchison, T. & S. F. R. Co. 66 Kan. 768, 71 Pac. 587; Dwajakowski v. Central R. Co. (N. J. L.) 55 Atl. 100; Judge v. Elkins, 183 Mass. 229, 66 N. E. 708; Wilman v. People's R. Co. (Del.) 55 Atl. 332; Keenan v. Union Traction Co. 202 Pa. 107, 51 Atl. 742; Hackney v. Illinois C. R. Co. (Miss.) 33 So. 723; Shatto v. Erie R. Co. 59 C. C. A. 1, 121 Fed. 678; Rich v. Evansville & T. H. R. Co. (Ind. App.) 66 N. E. 1028.

Mr. Charles L. Batcheller, with Messrs. Hunsaker & Britt, for respondents:

Liverpool, L. & G. Ins. Co. v. Southern P. Co. 125 Cal. 434, 58 Pac. 55.

Harrington had a right to assume that the motorman would heed the signals and stop the car. It would have been, all the circumstances considered, a highly reasonable supposition, and whether it might properly be indulged was, at least, a question for the jury.

Weingarten v. Metropolitan Street R. Co. 62 App. Div. 364, 70 N. Y. Supp. 1113. There was no "contemporaneous and acnegligence of Harrington" for the con

Esrey v. Southern P. Co. 103 Cal. 541, 37 Pac. 500; Herbert v. Southern P. Co. 121 Cal. 227, 53 Pac. 651; Fox v. Oakland Consol. Street R. Co. 118 Cal. 55, 62 Am. St. Rep. 216, 50 Pac. 25; Cunningham v. Los Angeles R. Co. 115 Cal. 561, 47 Pac. 452; Williams v. Southern P. R. Co. 72 Cal. 120, 13 Pac. 219; Crowley v. City R. Co. 60 Cal. 628; Schierhold v. North Beach & M. R. Co. 40 Cal. 447; Needham v. San Francisco & S. J. R. Co. 37 Cal. 409; Maumus V. Champion, 40 Cal. 121; Lemasters v. Southern P. Co. 131 Cal. 105, 63 Pac. 128; Shearm. & Redf. Neg. § 99; Cooley, Torts, p. 674; Bishop, Non-Contract Law, §§ 466, 467; 1 Thomp. Neg. Rev. ed. 1901, § 207; Valin v. Milwaukee & N. R. Co. 82 Wis. 1, 33 Am. St. Rep. 17, 51 N. W. 1084; Kansas P. R. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730.

Negligence is the omission to do some thing which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; it is not absolute or intrinsic, but always relative to some circumstances of time, place, or person. Needham v. San Francisco & S. J. R. Co. 37 Cal. 423.

last clear opportunity to avoid the accident. Williams v. Delaware, L. & W. R. Co. 155 N. Y. 158, 49 N. E. 672; Esrey v. Southern P. Co. 103 Cal. 541, 37 Pac. 500; Cooley, Torts, 2d ed. p. 811; Beach, Contrib. Neg. 2d ed. §§ 24, 25, 33; Fox v. Oakland Consol. Street R. Co. 118 Cal. 55, 62 Am. St. Rep. 216, 50 Pac. 25; Bishop, Non-Contract Law, §§ 462, 463; Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67; Schierhold v. North Beach & M. R. Co. 40 Cal. 447; Crowley v. City R. Co. 60 Çal. 628; Brown v. Lynn, 31 Pa. 512, 72 Am. Dec. 768; Richmond v. Sacramento Valley R. Co. 18 Cal. 351; Kline v. Central P. R. Co. 37 Cal. 406, 99 Am. Dec. 282; Fernandes v. Sacramento City R. Co. 52 Cal. 45; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653.

If the plaintiff is acting in violation of a statute or ordinance at the time of the accident, and such violation proximately contributes to the injury, he is guilty of contributory fault, and is as much debarred from recovery as in other cases of contributory negligence. But, if such violation did not so contribute to the injury, it is no defense.

Shearm. & Redf. Neg. § 104; Hall v. Ripley, 119 Mass. 135; White v. Lang, 128 Mass. 598, 35 Am. Rep. 402; Steele v. Burkhardt, 104 Mass. 59, 6 Am. Rep. 191; Neanow v. Uttech, 46 Wis. 581, 1 N. W. 221.

Angellotti, J., delivered the opinion of

This action was instituted by the plaintiffs, the widow and minor children of Arthur E. Harrington, deceased, for damages alleged to have been sustained by them by reason of the death of deceased, which death was alleged to have been caused by the negligence of defendant. A verdict was ren