and without fault on his part, was in the loss arising from want of ten days' notice, and the measure of damages would ordinarily be the wages for a time equal to the agreement of notice. Judgment reversed and new trial ordered. Smith v. Douglass and Dun. Opinion by Robinson, J.

Also, see Common Carriers and Reference.

CONVERSION.

Conversion of United States securities.-This action is brought for the alleged conversion of a (seven-thirty) note of the United States, issued under the act of congress of March 3, 1865 (13 U. S. Stats. at Large, 468), which, when held by the First National Bank of New Albany, Indiana, under whom plaintiffs assert title, was substantially in this form: "$1,000. Three years after date the United States promise to pay to the order of $1,000, with interest at 7 3-10 per cent, payable semi-annually in lawful money." Signed by the proper officer of the Treasury. It was on May 22, 1868, intrusted by that bank to plaintiffs (common carriers) for remittance to Washington for conversion into five-twenty bonds, as allowed by that act, being indorsed by their cashier - "Pay to the bearer (printed), Secretary of the Treasury for redemption, W. Mann, Cash." The package containing this note was, in course of transportation, stolen from the plaintiffs and taken to Liverpool, England, where the indorsement, having been obliterated or extracted by some chemical process, so that it could not be observed, it was, in good faith and for full value, purchased by the firm of Bemas & Co., bankers, who thereafter remitted it to the defendants, bankers, and their correspondents in New York, for conversion. Defendants sent the full value of the note to Bemas & Co., without notice affecting the validity of their title, and they subsequently converted it by accepting substituted security, in conformity with the provisions of the act of 1865. Held, that the note, although issued by the United States government, was subject to the common-law rule applicable to commercial paper. As issued, no payee being named, it was payable to any bona fide holder before maturity. The payee's name being in blank, he could insert his own name or that of any other person. But until such restriction was placed upon the negotiability of the instrument, it continued an obligation through the law merchant payable to any one who, in good faith and before maturity, became its holder. Indorsements or other minutes on its back or otherwise, so long as they continued apparent, operated at most by way of notice or of guaranty, but otherwise in no way interfered with the negotiability of the instrument, which, until its restriction by the insertion of the name of a payee, continued payable to bearer. Defendants' title to the note was in no way acquired through any indorsement of the bank, and was in no way affected by any obliteration or forgery of the indorsement made by the bank's cashier. Judgment should be in favor of defendants. Dinsmore, President, etc., of Adams Express Company v. Duncan et al. Opinion by Robinson, J. Also, see Joinder of Parties.

JOINDER OF PARTIES.

1. Action to recover damages for the unlawful taking and wrongful conversion of five checks, drawn to the order of the plaintiffs by different persons or firms, and upon which the plaintiffs' firm-name was forged. The checks were received by the defendants - the Camden and Amboy Railroad Company - for value, and without notice of the forgery of the indorsement. They were deposited by that company with the defendantthe Mechanics' National Bank-who caused them to be presented to the several banks upon which they were drawn, and they were duly paid.

Defendants below moved to dismiss the complaint on the following grounds: 1. That the evidence was insufficient to charge the said defendants jointly with any wrongful conversion of the said checks; 2 and 3. That the evidence was insufficient to charge either defendant severally with any wrongful conversion of the checks; 4. That the evidence failed to establish that the plaintiffs were ever the owners of, or were entitled to the possession of, the said checks. Motion denied, and exceptions taken. The court ordered a verdict for the plaintiffs, and ordered the above exceptions to be heard at general term. Held, the title of plaintiffs to the checks was evidenced by their being made payable to their order, as well as by proof of the transactions in which they were given as payment. The proof showed the alleged indorsement by the plaintiffs through which title to and authority to collect these checks was a forgery, but it is claimed by the defendants that neither a joint or several action for the conversion can be maintained. This position is not tenable. Each defendant has dealt with these checks in derogation of plaintiffs' title, claiming through the forgery, and they have, by their concurred action, made a conversion of the checks and realized therefrom their full value. Although the bank does not appear to have acted except as collecting agent for the railroad, they are equally liable for their acts on behalf of a principal who could give no such authority. Both defendants have contributed to the same injury, and are to render but a single satisfaction. The plaintiff had his election either to sue in trover or for money had and received. Judgment ordered. White v. The Mechanics' National Bank et al. Opinion by Robinson, J.

2. Action for conversion of several checks payable to the order of the plaintiffs, and upon which the indorsement of plaintiffs was forged. Upon such forged indorsement the defendant Frink, in good faith, cashed the checks and passed them to the defendant Sweeny, for full value and in good faith. Sweeny deposited them in the National Park Bank and received credit for them. The bank admits the possession of the checks at the time of the alleged conversion, and by its answer claims them as its property. Held, the right of the plaintiffs to maintain an action for the conversion of their property in these checks is well established (1 Hill, 295), as is the right to form successive transferees in one action. 23 N. Y. 264. No. demand was necessary as to either defendant. Frink and Sweeny had transferred the checks, and the Park Bank had collected them; besides, they had severally put the plaintiffs' title in issue. In bringing this action the plaintiffs do not, until satisfaction of their claim, conform or assent to the acts or title of any wrongdoer, except that they probably affirm the payments made by the banks on which the checks were drawn, and their absolute conversion by means of payments made by the drawer. In recognizing the agency

they do not impair their remedy against the agents through whom a wrong had been done. Under these views the mere return to plaintiffs of these paid and canceled checks after suit brought, the extinguishment of which as a subsisting liability was recognized by the bringing of a suit for their conversion, is no defense for the parties through whom the wrong has been consummated. Judgment for plaintiff affirmed. White et al. v. Sweeny et al. Opinion by Robinson, J. MASTER AND SERVANT. See Contracts.

NEGLIGENCE.

1. Action to recover damages for injuries sustained by the plaintiff in consequence of an accident to a train on defendants' railway, in which plaintiff was a passenger. On the trial the plaintiff proved that he was in the car of a train on defendants' road; that, by reason of the breaking of one of the rails, the car overturned; and that plaintiff had his collar bone broken, without imputation of negligence on his part. Plaintiff proved surgical treatment, the time during which he was disabled, and the character and value of his earnings. Held: The fact that the accident arose from the car running off the track and upsetting showed some defect in the road or machinery by which it was operated as presented a prima facie case of negligence entitling him to recover. They had contracted to carry him safely, but failed to do so, through defect in the track. They were bound to have their track in a sound and safe condition. The burden of proof was for them in this case, to prove that the accident occurred without fault on their part.

2. Measure of damages.-There was no error in instructing the jury that, in fixing the measure of damages, they might take into account the probable earnings of the plaintiff, during his disability on account of the injury. Brignolo v. Chicago and Great Eastern R. R. Co. Opinion by Robinson, J.

3. The judge was requested to charge, that if the track and rails were sound immediately before the accident, and there was no defect in the rail which could have been discovered by any examination, the defendants were not responsible. This was refused, the judge saying it was a question for the jury. The proposition was abstractly correct. It involved a proposition of law, and if at all relevant, could not be left to the jury to pass upon as a question of fact. It could not be deemed immaterial, if there was any testimony at all in the case upon which to predicate it, and I think there was such testimony. Dissenting opinion by Daly, C. J.

and securities to the value of more than $100,000. Shortly after his arrival here he became insane, and has since been confined in a lunatic asylum, under the care and custody of the court, the circumstances attending his insanity are well known. The application for the removal is made by the wife of the lunatic, who resides at Bombay, for the reasons:

1st. That Colah's entire life before he quitted Bombay had been passed in that place; that he, all his relations, and nearly all his connections and friends are Parsees whose religious habits and customs are totally different from those of the people of the United States; that there are no Parsees resident in this city, nor any priest or minister of that religion in this country, and, that, in the event of his decease here, his remains would be deprived of the performance of certain rights and ceremonies which are deemed essential and vital by all persons of the religious faith in which he has been educated, and has always professed.

2d. That the difference between this climate and that of Bombay, and the difference in diet and the mode of living, are unfavorable to his health, and have a prejudicial effect upon his mental condition.

3d. That he has ceased to be violent or dangerous, and is now quiet and easily managed; that he rarely speaks, or takes notice of or exhibits any interest in what is passing around him; that it is very difficult to arouse his attention, and that the only hope of restoring him lies in his return to his native country, the society and care of his wife, the presence of his children, and the renewal of former associations with relations and friends in the scenes to which he has been accustomed from his infancy.

The first of these grounds, the importance in the religious belief of the Parsees of certain rites and ceremonies over the body after death, was denied; but the other grounds were sustained. The case was submitted to five physicians, who unanimously reported that, in their opinion, Colah's removal to Bombay will not prove injurious to his physical or mental health, and, in case he is properly attended, that it would be a very expedient measure. The learned judge, in granting the application, says: "The jurisdiction assumed to be inherent in a State over that unfortunate class of persons within its limits who are deprived of the use of their mental faculties may be said to rest upon two grounds:

First. Its duty to protect the community from the acts of those who are not under the guidance of reason, and secondly, its duty to protect them, as a class incapable of protecting themselves, which has its foundation in the reciprocal obligations of allegiance and pro

der of parties.

RAILROAD COMPANIES. See Negligence. (To be continued.)

INSANE PERSONS.

Chief Justice Daly has recently given the following opinion, at the special term of the court of common pleas for the city of New York, in the matter of the application for the transfer of Bomanjee Byramjee Colah, a lunatic, to Bombay, in India. Colah is a native of Bombay, of the age of twenty-six years, a Parsee, a well-known race in India, of peculiar religious tenets, habits and customs. In the year 1870 he left Bombay, and came to New York city, bringing with him money

while they are within the limits of a State, are under the obligations of a temporary and local allegiance, and are entitled to its protection. 1 Bl. Com. 370; Cockburn on Nationality, p. 139; The case of the Princess Bariatínsky, 1 Ph. 375; Highmore on Lunacy, p. 18; Powell on Legeance and Protection, pp. 169, 205. In England, whence our law respecting idiots and lunatics is derived, the custody and care of this class of persons and their property is a part of the prerogative of the sovereign. Anciently, by the common law, it was intrusted to tutors, or, more properly, curators, the curator being either the feudal lord or the next of kin, who, in the case of an idiot, as his disability was permanent, took his land and the profits, as the next in succession, subject to the obligation of supporting him during his life; but, in the case of a lunatic who

may be restored to his reason, the curator simply had the custody of the estate, under the obligation of applying the profits to his support, and retaining the excess that it might, together with the estate, be restored to him if he recover his reason, and if not, that it might be secured to his heirs. Bracton, lib. 1, cap. 10, lib. 5, c. 20; Fleta, lib. 1, cap. 11, § 10, p. 6; Mirror of Justices, pp. 46, 74, 98, 123, 130; Year Books, 32 Edw. I, p. 272; Beverly's Case, 4 Cos. 127; 1 Bl. Com. 302; Fitz. N. B. 232; Shep. Ct. Keeper, c. 22, 172; Bacon's Discourse on the Laws of England, from Selden's Notes, pp. 175, 176; Reeve's History of the English Laws, by Finlason, introduction, xc to ci, vol. 2, c. xii, p. 193 and note a.

But this practice being attended with great abuses, the king, as parens patriæ or common curator of the realm, assumed, as early as the reign of Henry I, exclusive jurisdiction over this class of persons and their estates; and in the statute De Prerogitiva Regis, passed in the reign of Edward II (17 Edw. II, c. 9, 10), it was placed among the king's prerogatives. That statute declaring that the king should have the custody of the lands of "natural fools," and the profits, with the obligation of maintaining them, and that, with respect to those who had had "their wit and memory," but had lost it, the king should provide that their lands should be safely kept; that they and their households should be maintained out of the profits of their estates, and that the residue should be kept to their use, to be delivered to them when they came to "their right mind;" a jurisdiction or power which was not, as has been supposed, derived from the statute, but rests on the broader ground of the duty of a sovereign, as parens patriæ, to take care of those who, by reason of their imbecility or want of understanding, are incapable of taking care of themselves, a principle introduced into the common law at a very early period from the Roman law of the Twelve Tables. Inst. B., tit. 1, 23, §§ 3, 4; Dig. 27, 10, 1, 67; Maynz Elements du Droit Romaine, tom. 1, § 106; Ortolan's generalization du Droit Romaine, 94, 95, 96, 97; Shep. Abm. part 3, p. 71. And which, upon the authority of Selden, was one of the liberties and privileges secured by Magna Charta. Bacon's Discourse on Selden's Notes, p. 176, 5 m.

This duty was first discharged by the king's committing the custody of such persons and of their estates to proper committees in each particular case; but it was afterward transferred to the lord chancellor, not in his capacity as chancellor, or as a part of his equitable jurisdiction, but as the king's delegate in the exercise of this special jurisdiction. Fleta, p. 6; Reeves' History of English Law, by Finlason, vol. 2, ch. 12, p. 193, and note a; Staunf'd Pr. Reg. 33; 1 Bl. Com. 303; 3 id. 427; In the matter of Heli, 3 Atk. 635; Ex parte Phillips, 19 Ves. 122. And the exercise of it in England, through many centuries, has resulted in the formation of a body of precedents and rules constituting a distinct branch of jurisprudence.

So much of the law as formed a part of the king's prerogative, and was applicable under our republican form of government, was, upon our separation from Great Britain at the revolution, vested in the people, and this especial jurisdiction was, in this State, by legislative enactments, transferred to certain judicial tribunals that have administered it in accordance with the rules and principles which the course of experience in England has pointed out as the most just, practicable and judicious.

This court has been one of those designated tribunals

since 1854, having committed to it by statute the "care and custody of the person and estate of a lunatic or person of unsound mind," when he resides in the city and county of New York. Code of Procedure, § 30; Laws of New York of 1854, p. 464, § 6.

An authority that carried with it all the power that was exercised in such cases by the lord chancellor in Great Britain, or by the court of chancery in this State, when this jurisdiction was intrusted exclusively to that tribunal. Justice Harris has said, in John Mason's Case, 1 Barb. S. C. 441, that, as our statute has conferred this jurisdiction "without restriction or limitation, the manner in which the control thus given is to be exercised by the court is entirely a matter of discretion;" which, however, must be understood with this qualification, that it is a discretion regulated and restricted by certain rules and principles that have always been acted upon, both in this country and in England.

It may be said, in general terms, in relation to the nature and extent of this jurisdiction, that the care and custody of a lunatic, and of his estate, necessarily imply both the right and the duty on the part of the court to do, in respect to either, whatever is most conducive to his interest; to see, in respect to his person, that he is maintained as comfortably as his unfortunate situation will admit of and his pecuniary resources will allow; that every thing is done that can be done by care, skill and medical treatment, to promote his general health, or which will or may contribute to the restoration of his reason. His interest is the chief consideration, and, therefore, great care has always been taken not to intrust the custody of his person or his estate to those who may be pecuniarily benefited by his death, or whose interest it is to keep his property from diminishing, unless the officer exercising the power is satisfied that it would be to the advantage of his bodily and mental condition, that those who stand in the relation to him of blood and natural affection should have the custody and care of him. Nor will the interest of heirs or next of kin be at all considered in any outlay that may be made for his comfort or benefit, or in determining what is most conducive to his interest, either in the care of his person or in the management of his estate.

"The king" said Lord Hardwicke, in Roberts' Case, 3 Atk. 309, "is quasi, a trustee for the lunatic's benefit only." Lord Macclesfield declared that, in the eye of the law, a lunatic is never looked upon as beyond the possibility of recovery, and added, "it is his benefit and comfort I am to take care of, and not to heap up wealth for the benefit of his administrator or next of kin." Dormer's Case, 2 P. Wms. 265.

And Lord Northington afterward declared that, "in the management of the lunatic's estate, the ruling principle is to do what is for the benefit of the lunatic." Ex parte Grimstone, Amb. 707.

Lord Loughborough, in adverting to the precedents and orders of previous chancellors in the exercise of this delicate jurisdiction, said, "that there was one pervading principle, which was that the trust was administered solely in the interest of the lunatic himself, that nothing could be more mischievous than to consider how his successor might be affected by what was done, and that the chancellors had always shut out of their view all consideration of eventual interests, and considered only the interest of the person under their care." Oxenden v. Lord Compton, 2 Ves. Jr. 72. "A lunatic," says Lord Eldon, in Chamley's Case,

1 Ves. Jr. 296, "is to have every comfort that his circumstances will admit of," and he said in another case (Ex parte Whitehead, 2 Merv. 99), "the court has nothing to consider but the situation of the lunatic himself, always looking to the probability of his recovery, and never regarding the interest of the next of kin. The court does nothing wantonly or unnecessarily to alter the lunatic's property; but, on the contrary, takes care of it for his sake, that if he recover he shall find his estate, as nearly as possible, in the same condition as he left it, applying the property in the mean time as the court thinks it would have been wise and prudent in the lunatic himself to apply it if he had been capable." To which I may add the observation of Chancellor Kent, in Eunice Saulsberry's | Case, 3 Johns. Ch. 347, that "the governing principle in the management of the estate is the lunatic's interest, not that of those who may have eventual rights of succession." See, also, In the matter of Livingston, 1 Johns. Ch. 436; In the matter of Taylor, 9 Paige, 611; In the matter of Willoughby, 11 id. 259; In the matter of Heeny, 2 Barb. Ch. 326; In the matter of Shep, Abm. part 3, p. 71.

I have referred to the authority of these eminent judges in the exposition of the nature of this jurisdiction, and of the principles which govern in the exercise of it, because it indicates the extent of the power with which the court is clothed, and because what I am asked to do involves a very heavy expenditure and charge upon the lunatic's estate, which I should not impose unless it be clear that I have the power to do so, and that it is necessary for his benefit.

Acting upon the general principle that the court is empowered to do whatever is best for the lunatic himself, without any regard to the effect it may have upon the ultimate interests of others, it becomes very plain to my mind that if the removal of him to a place beyond the limits of the jurisdiction of the court is, as a sanitary measure, essential to him and for his benefit, it is competent for the court to direct it to be done, and, so far as it has the means, to see that it is carried out. It is true that the custody of a lunatic is always given by the court to a committee, and that, when this committee goes with his charge beyond the jurisdiction of this court, it has no longer any power or control over either; but this does not constitute a sufficient reason for keeping the lunatic within the court's territorial limits when, in the opinion of those who are most competent to judge, the effect of so doing is prejudicial to his health, and tends to lessen the chances of his recovery. The court is to do what is for his benefit, and, when it has taken every precaution, in seeing that he is intrusted to the care of a person who, in the judgment of the court, will faithfully execute the trust committed to him by taking the lunatic to the designated place, and who will fulfill every instruction given. For the faithful discharge of that delicate duty the court does what it ought to do under the circumstances, and in so doing but carries out the philanthropic purpose which lies at the very foundation of the jurisdiction which it consents to give up.

I do not find in the reports any adjudged case covering the precise point here presented. In re Hackett, 3 Irish Ch. 375, the lunatic was transferred from Ireland to England. It was beyond the jurisdiction of the chancellor having custody of his person, but the jurisdiction of each chancellor was a part of the prerogative of the same sovereign. In the matter of Houston, 1 Rus. 311, the lunatic was brought by his committee

from Jamaica to England, for the benefit of his health, but by what authority is not stated, the only point in the case being whether another commission was necessary in England, which the court held was necessary. In Briggs v. Terry, 1 Myl. & Craig, 675, an infant ward of the court of chancery was allowed, upon application, to go to France to see his father in the custody of a person giving security that he would bring him back within a given period; and In re Jones, 1 Pr. 461, leave was given for a lunatic, under particular circumstances, to reside in Scotland, his committee who resided in England undertaking to bring him within the jurisdiction of the court whenever required.

Although these cases have some bearing upon the question before me, they are not precisely analogous, but there is an unreported case exactly in point, of which I have been advised by the professional gentleman by whom it was instituted. In the year 1840, John Gravillon, a well-known wealthy French merchant in this city, and an alien, became insane and was placed in the asylum at Bloomingdale. A commission of lunacy having been granted, and a committee of his person and estate appointed, the committee, upon a certificate of the resident physician of the asylum, that an improvement of Mr. Gravillon's general health might be expected from a sea voyage, applied to ViceChancellor McCoun for authority to send him to France in charge of a physician and two nurses, and to place him in a maison de sante in Paris. The application was granted. He was taken to France and placed in an institution in Paris, where he died two years afterward, and the expense incurred was paid out of his estate.

My conclusion, after this review of the law, is, that I have the power; and, in respect to the expediency and necessity of its exercise, I regard the opinions of the physicians as conclusive.

The committee of the estate will be directed to pay out such sums as may be subsequently directed by order, to defray the expenses of the journey from here to Bombay, and, upon return of the committee of the person who will take Colah to Bombay, the court will adjust and fix upon a proper sum to be paid to him out of the estate, for the discharge of this trust, which will not be regulated by the commissions given by the Revised Statutes to executors, administrators or guardians (2 R. S., 93, § 58), as is the rule in committees of the estate. In the matter of Livingston, 2 Denio, 575; 9 Paige, 440, that measure not being applicable where there is a separate committee of the person, but will be regarded as an actual and necessary expense, which would have to be paid out of the estate, to some one, and is incurred, in this instance, to the gentleman who is the committee of the person, for the reason that he can communicate with the lunatic in the only tongue in which he can or will speak, and is, from that and many other reasons, a most appropriate one to whom to confide the execution of this most delicate and very responsible trust, which it would be unreasonable to expect him to discharge for the benefit of this friendless stranger, unless he is remunerated for his time and trouble. It will involve, in the meanwhile, the abandonment of his business here, and is to be regarded like the cases of Annesly, Amb. 78; of Evington, Jacobs, 406; 2 Russ. 567; and of Ord, id. 94, as an exceptional one to the general rule, that no compensation will be allowed to the committee of a lunatic for his personal services. Anonymous, 10 Ves. 103; Shelford on Lunacy, 163.