was engaged at the time in doing his exists between the proprietor of a master's business, and was acting with

theatre and a star performer, and in the general scope of his employment.

the former is liable for the negli

gence of the latter, whereby a spectaIt is not the test of the master's liabil

tor is injured. ity that he expressly authorized the par

Certificate from Nisi Prius. ticular act and conduct which occa

The narr. averred that the defendant sioned the injury. It is in general suf- was the proprietor and manager of a ficient to make the master liable that he certain company of dramatic and gymgave his servant authority or made it nastic performers, then employed and his duty to act in respect to the business used by him in exhibiting plays and in which he was engaged when the feats of skill to which the public was wrong was committed, and that the act invited to witness performances, upon complained of was done in the course of the payment of a certain reward ; that his employment. The master in that the plaintiff was admitted to the theacase will be deemed to have consented ter on April 20, 1869, having first paid and authorized the act of the servant, defendant a certain reward in that beand he will not be excused from liabil-half, safely and securely to witness the ity, although the servant abused his au- plays and feats of skill of defendant's thority, or was reckless in performing company of performers, and that it his duty or inflicted an unnecessary in- became and was defendant's duty to use jury in executing his master's orders.

proper care that plaintiff should witness Also held. That if a servant under said performance in safety and security. guise of executing his master's orders, Breach, that defendant did not use and exercising the authority conferred

proper care in the premises, and suffered upon him, wilfully and designedly for performers to be inexperienced, wherethe purpose of accomplishing his own by one of said performers, while perindependent, malicious or wicked pur- forming a feat, fell upon and injured pose, does an injury to another, the mas- him. Plea, Not Guilty. ter is not liable. When it is said that

Upon the trial it appeared that the the master is not responsible for the plaintiff, having purchased a ticket, enwillful wrong of his servant, the lan. tered Fox's American Theatre, and took guage is to be understood as referring a seat immediately in front of the to an act of positive and designed in

stage. During a trapèze performance jury, not done with a view to the mas- by two performers, called “ Flying ter's service or for the purpose of exe- Men," who were star performers encuting his orders.

gaged by defendant by the week, at Judgment of General Term, affirming thirty dollars a week, one of them judgment on verdict for plaintiff, af- missed his hold upon the ropes for some firmed.

unexplained reason, and fell from the Opinion by Andrews, J.

height of twenty-five feet upon the

plaintiff, who, in consequence thereof, MASTER AND SERVANT.

was confined to the house for five weeks PENNSYLVANIA SUPREME COURT. Fox v. Dougherty.

having one rib fractured, and sustain.

ing a contusion of the chest and spine. Decided March 6, 1876.

The plaintiff contracted a doctor's bill The [relation of master and servant of $25, which he did not pay, and a

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small bill of medicines, and was pre-bound that they should be performed vented from plying his trade as a ped-without danger to the audience flowing dler of stationery for six months. from the want of skill or care in the

The defendant requested the court performers. But we have already said to instruct the jury :

that he would not be answerable for 1. “That if the defendant engaged accidents which reasonable prudence a star performer to exhibit feats of could not foresee.” strength and skill, but in no way inter The Court also charged the jury that fered with the performer in those exhi-“ a duty was raised which the defendbitions, and if the ropes used in such ant was bound to discharge in favor of performances were put up under the di- the plaintiff-that was, that the plainrection of professsional gymnasts, and tiff should be secured, while at the exnot under the direction of the defendant, hibition, from all harm that might rethen the relation of master and servant sult from the carelessness or negligence did not exist between the defendant and of his employés or performers, or from the performers, and he would not be any known or obvious defect of the liable for their unskilfulness in such an various structures or machinery employexhibition.” Answer. “If these per- ed.” ..... “Was there anything in formers were employed by the defendant the arrangement of the trapèze which as proprietor of the establishment, the occasioned the accident, and which an relation of master and servant did exist ordinarily prudent man might have between them, and he would be liable foreseen and remedied; or were the for an accident resulting from their un- performers unskillful or negligent, and skilfulness, unless such accident was did the accident result from that cause? one which an ordinarily prudent man In either case you should find for the could not foresee.

plaintiff.” 2. “ That if the plaintiff knew of the The jury, under these instructions, kind of performance he was going to found a verdict for the plaintiff for witness, and procured a seat which was $500, and, judgment being entered underneath the place where the per- thereon, the defendant certified the former was to leap during the exhibi- case to this Court, assigning for error tion, he was guilty of contributory neg- the answers and charge of the Court, as ligence.”

Answer. “ Affirmed, pro- above given. vided that, to an ordinarily prudent The Judges who heard this opinion person, it would be obvious that the being equally divided in opinion, the

judgment of the Nisi Prius stands. seat was a dangerous one."

Per curiam opinion. 3. “That if the performers made their own selection of feats, and were RAILROAD BONDS. not under the immediate direction of U. S. CIRCUIT COURT-DISTRICT the defendant, and the accident which

LOUISIANA, occurred to one of these performers Henry R. Jackson vs. the Vicksburg, was without the fault of the defendant, Shrevesport and Texas Railroad Comthe plaintiff cannot recover.” Answer. pany, et al. “If the feats were such as were likely, Decided March 1876. from their character, to prove danger- Railroad bonds payable to bearer, with ons to the audience, the defendant was the place of payment left blank, and


the amount of principal and interest terest thereon at the rate of eight per secured thereby indefinite und uncer- cent. per annum on the first day of tain, are not negotiable.

March and the first day of September And where the President is authorized

and by endorsement to name the place of of each and every year; payment whereby the amount secured the President of said company is auis made certain, and endorses the thorized to fix by his endorsement, the bonds but leaves the place of pay- place of payment of principal and inment blank, an innocent holder ac- terest, in conformity with the tenor of quiring possession from a thief is not authorized to fill the blank.

this obligation. The bonds were signed This cause was heard upon exceptions by the President and the Treasurer, and

bore the seal of the company. filed to the report of the master. In April, 1864, during the late war

Upon the back of each of the bonds carried on by the United States against in question, was an indorsement as fol

lows: "I hereby agree that the within the seceding States, the bonds in ques

bonds and the interest coupons thereto tion were in the office of the railroad company at Monroe, Louisiana. Dur. attached shall be payable in

C. W. YOUNG, ing the month just named, a raid was

President." made upon Monroe by the naval forces

The coupons attached to said bonds of the United States, and at that time

declared that, “The Vicksburg, Shrevesthe office of the company was broken

port & Texas Railroad Company will open, and these bonds carried off by persons connected with the expedition, date) nine ponnds sterling if payable in

pay the bearer hereof (on a specified without the consent or knowledge of London, or forty dollars if payable in any of the officers of the company. In

New York or New Orleans." Upon short, the bonds were stolen from the

this state of facts, the question for sooffice of the company. They were afterwards put in circulation and bought in the hands of bona fide holders for

lution is, whether the bonds are good by the holders at from fifteen to twenty value. If the bonds are negotiable this cents on the dollar. The face of the bonds certified that the Vicksburg, inquiry must be answered in the atShrevesport and Texas Railroad Com

HU, 1. Generally bonds issued by pany is indebted to John Ray or bear

a corporation and payable to bearer, er, for value received, in the sum of

have the qualities of negotiable instrueither two hundred and twenty-five lbs.

ments. sterling, or one thousand dollars lawful

But here the amount for the

paymoney of the United States of Ame

ment of which the bond is given rica, to wit: two hundred and twenty

is uncertain. It is clear that the five pounds sterling, if the principal and

sum of two hundred and twenty-five interest are payable in London, and one thousand dollars lawful money of the pounds, payable in London, with nine United States of America, if the prin- months at the same place, is entirely cipal and interest are payable in New

different from one thousand dollars, York or New Orleans, which sum said company promises to pay to John Ray payable in New York or New Orleans, or bearer, on the first day of Septem- with forty dollars interest payable semiber, A. D. 1877, and also to pay an in- annually at the same places. This un

certainty, unless cured, deprives the and judgment for the defendant was enbonds of their character as negotiable tered as follows: instruments.

“ This action having been brought to 2. That the holder could not fill the a trial by jury on the 27th day of blank left by the president and thus March, 1873, and a verdict having been

found for the defendant herein, it is render the amount certain. It cannot

now, on motion of Field & Shearman, be said that the holder was expressly attorneys for defendant herein, adauthorized to fill the blank, still less judged that the complaint be dismissed can it be claimed that, when the presi- upon the merits of the action, and that dent signed the endorsement and left the defendant, De Witt, recover of the the place of payment blank, he au- of this action."

plaintiff Jeremiah Towle, $357.18 costs thorized any one who might steal the Within three years from the rendibonds, or to whom the thief might sell tion of judgment, as provided by statthem, to fill the blank. If any one ute, the motion was made to vacate the was authorized by implied contract to judgment herein, and for a new trial do it, it was some one to whom the

on payment of costs, which was grant

ed. company had regularly issued the bonds.

On appeal, The uncertainty as to amount of princi

Held, That the plaintiff having made pal, interest and place of payment de- this motion upon an affidavit setting prives the bonds of the quality of ne- out the proper facts and within three gotiable instruments.

years, he was clearly entitled to this reExceptions to master's report reject. R. S., 309, secs. 36–37.) Defendant,

lief from the judgment entered. ( ing these bonds overruled, and report however, to prevent this, while the confirmed.

judgment still stands of record and of Opinion by Woods, J.

full farce, claims that it was improper

ly entered upon a non suit of plaintiff EJECTMENT. NEW TRIAL.

and not upon a verdict. N. Y. SUPREME COURT, GENERAL TERM. It is evident that the judgment in FIRST DEPARTMENT.

the form in which it now appears was Towle, respt., v. Dewitt, applt. irregularly entered, but it was done by Decided March 6, 1876.

defendant's own attorney and in his beApplication may be made in ejectment half. While tbe judgment thus stands suit by defeated party within three of record it imports absolute verity, and years after judgment entered to va- the defendant having taken no steps to

cate judgment and for new trial. open and correct it, stands in the posi Party having entered judgment in his tion of seeking to impungn the record

own favor irregularly is not allowed for the purpose of defeating this moto question its regularity for the pur- tion, and to maintain it in its present pose of defeating a motion to vaca te form for all other purposes. This canjudgment and for new trial. not be done. The judgment stands as

Appeal from order of special term entered by defendant, nearly three vacating judgment in ejectment, and years ago, and if this motion were degranting new trial on payment of costs. feated for the reason given by defend

In 1869 this action in ejectinent was ant, the judgment would still remain in brought, and tried in 1873.

full force, and plaintiff would have lost Plaintiff

, after putting in certain by lapse of time his right to assail it maps and documentary evidence, re- for irregularity. quests the court to charge in his favor,

Order affirmed. which was refused. Plaintiff then Opinion by Davis, P. J.; Daniels rested. The complaint was dismissed, and Brady, J. J., concurring.

VOL. 2.)

money received.


for sale, defendants to receive 12 per

cent. upon the selling price of all goods MONDAY MAY 1, 1876. [No. 12. sold as a commission for making sales, ORDER OF ARREST.

2 per cent. of said commission being a

del credere cominission for guaranteeGENERAL TERM SUPREME COURT. FI:ST

ing payment of the price by the parties DEPT.

to whom the sales were made. That William Liddell, respt., agt. William defendants had rendered an account of Paton, et al.

sales, with the prices received, which Decided January 28, 1876.

acknowledged a balance due plaintiff The Court will look into the facts and after deducting the commission agreed determine whether an order of arrest upon of $8,996.02. should be vacated the same in a case

The defendant's moving affidavit for where the ground of arrest and the cause of action are identical as where the purpose of vacating the order of they are not.

arrest, admitted the consignment of the In order to sus'ain an order of arrest goods, and the rendering the account of

in an action for money obtuined in a sales, but stated that according to usage fiduciary capacity, it must appear and custom in the defendants' business that there was an obligation on the with plaintiff and others, the monies repart of the person retaining the money to hand over the identical ceived for sale of goods of different par

ties were never kept distinct; that the Il here there is an account between the prices for which the plaintiff's goods parties, and interest is allowed on were sold were credited to plaintift"s acbalances, an arrest cannot be sus count; that there was no understanding tained in an action to recover the that the identical proceeds of the goods balance of account.

were held in trust, or that the proceeds Appeal from an order den ying the

were held by defendants in any tiducidefendant's motion to set aside an order ary capacity; but that the balance dne of arrest.

plaintiff was an ordinary indebtedness The cause of action set forth in the

upon contract; that in their dealings complaint is alleged to have arisen ont interest had been allowed plaintiff on of the sale of goods consigned by the balances in defendants' hands; that for plaintiff to defendants as factors for a portion of the indebtedness sed on sale on his account, and by them sold plaintiff' had extended the time of payand the proceeds received, and instead ment by the receipt of time acceptances of being remitted, according to their of defendants; that the claim sued on agreement, withheld by them from the was discharged by a composition made plaintiff.

with the creditors of defendants under The affidavit upon which the order the provisions of the Bankrupt Act. of arrest was obtained alleged various There was some conflict with reference consignments by plaintiit, a merchant to the arrangements under which the of Belfast, Ireland, of goods to defend consignments were made, and plaintiff ants, merchants in New York, to be acted; but it was stated in the attidavit sold by defendants, pursuant to an of plaintiff's attorney, in opposition to agreement by which plaintiff was to the motion to vacate the order of arconsign goods to defendants as factors rest, that the accounts of detendants

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