The decision was placed on the ground of a breach of the contract of carriage.

The next case in which this jurisdiction was considered is that of The Tonawanda, 34 Leg. Int. 394; S. C., 5 Cent. L. J. 418, decided by Judge McKennan in the Circuit Court of the Eastern District of Pennsylvania in 1877, and before the judgment of this court in Insurance Co. v. Brame, supra. In that case the ruling of Chief Justice Chase in The Sea Gull was approved, and the same authorities were cited, with the addition of Sullivan v. Union Pac. R. Co., supra.

In The Charles Morgan, 2 Flip. 274, before Judge Swing, in the Southern District of Ohio, on the 24th of October, 1878, the subject was again considered. That was a suit in rem, by the wife of a passenger on a vessel, to recover damages for the death of her husband; and in deciding upon the sufficiency of a plea to the jurisdiction, the judge, after quoting a remark of Mr. Justice Clifford in Steamboat Co. v. Chase, 16 Wall. 532, that difficulties, it must be conceded, will attend the solution of this question, but it is not necessary to decide it in this case," retained the libel, because, as the case at bar will probably go to the Supreme Court of the United States, it will be better for all parties that the appeal should be taken after a trial upon its merits."

64

Our decision in Insurance Co. v. Brame was announced on the 21st day of January, 1878, but was evidently not brought to the attention of the judge, because while citing quite a number of cases to show that the weight of authority was in favor of the English rule, he makes no reference to it. Indeed it is probable that the volume of the reports in which it appears had not been generally distributed when his opinion was filed.

It thus appears that prior to the decision in Insurance Co. v. Brame the admiralty judges in the United States did not rely for their jurisdiction on any rule of the maritime law different from that of the common law, but on their opinion that the rule of the English common law was not founded in reason, and had not become firmly established in the jurisprudence of this country. Since that decision the question has been several times before the Circuit and District Courts for consideration.

In The David Reeves, 5 Hughes, 89, Judge Morris, of the Maryland district, considering himself bound by the authority of The Sea Gull, which arose in his district, and had been decided by the chief justice in the Circuit Court, maintained jurisdiction of a suit in rem by a mother for the death of her son in a collision that occurred in the Chesapeake bay. He conceded however that this was contrary to the common law, and to the admiralty decisions in England; but as the question had never been passed on in this court, he yielded to the authority of the Circuit Court decision in his own district.

The case of Holmes v. Oregon & C. R. Co., 6 Sawy. 262; S. C., 5 Fed. Rep. 75, was decided by Judge Deady in the Oregon district, on the 28th of February, 1880, and he held that a suit in personam could be prosecuted in admiralty against the owner of a ferryboat engaged in carrying passengers across the Wallamet river, between East Portland and Portland, for the death of a passenger caused by the negligence of the owner. He conceded that no such action would lie at common law, but as, in his opinion, the civil law was different, he would not admit that in admiralty, "which in not governed by the rules of common law," the suit could not be maintained. His decision was however actually put on the Oregon statute, which gave an action at law for damages in such a case, and the death occurred within the jurisdiction of the State. Judge Sawyer had previously decided, in Arm

strong v. Beadle, 5 Sawy. 484, in the Circuit Court for the District of California, that an action at law, under a similar statute of California, would not lie for a death which occurred on the high seas, and outside of the territorial limits of the State.

In The Clatsop Chief, 7 Sawy. 274; S. C., 8 Fed. Rep. 163, Judge Deady sustained an action in rem against an offending vessel for a death caused by negligence in the Columbia river, and within the State of Oregon.

In Re Long Island North Shore Passenger & Freight Transp. Co., 5 Fed. Rep. 599, which was a suit for the benefit of the act of Congress limiting the liability of the owners of vessels, Judge Choate, of the Southern District of New York, decided that in New York, where there is a statute giving a right of action in cases of death caused by negligence, claims for damages of that character might be included among the liabilities of the owner of the offending vessels. In that case the injury which caused the death occurred within the limits of the State. In the opinion it is said (p. 608): "It has been seriously doubted whether the rule of the common law, that a cause of action for an injury to the person dies with the person, is also the rule of maritime law. There is some authority for the proposition that it is not, and that in admiralty a suit for damage in such a case survives. The Sea Gull, 2 L. T. Rep. 15; S. C., Chace Dec. 145; Cutting v. Seabury, 1 Spr. 522; The Guldfaxe, 19 L. T. Rep. 748; S. C., L. R., 2 Adm. & Ecc. 325; The Epsilon, 6 Ben. 381. But however it may be in respect to the original jurisdiction of admiralty courts, I see no valid reason why the right of a person to whom, under the municipal law governing the place of the transaction and the parties to it, the title to the chose in action survives, or a new right to sue is given for the damages resulting from a tort, the admiralty courts, in the exercise of their jurisdiction in personam over marine torts, should not recognize and enforce the right so given." This case was decided on the 12th of February, 1881; and on the 21st of the same month Judge Brown, of the Eastern District of Michigan, in The Garland, 5 Fed. Rep. 924, held that a suit in rem could be maintained by a father for the loss of the services of his two sons killed in a collision in the Detroit river. In his opinion he said: "Were this an original question. * * I should feel compelled to hold that this libel could not be maintained. But other courts of admiralty in this country have furnished so many precedents for a contrary ruling, I do not feel at liberty to disregard them, although I am at a loss to understand why a rule of liability differing from that of the common law should obtain in these courts." His decision was however finally put on a statute of Michigan which gave an action at law for such damages.

*

In The Sylvan Glen, 9 Fed. Rep. 335, Judge Benedict, of the Eastern District of New York, dismissed a suit in rem on the ground that the statute of New York giving an action for damages in such cases created no maritime lien. This case was decided on the 4th of October, 1881.

At November Term, 1882, for the Circuit Court of the Eastern District of Louisiana, Judge Billings decided in the E. B. Ward, Jr., 4 Woods, 145; S. C., 16 Fed. Rep. 255, that a suit in rem could not be maintained for damages for the death of a person in a collision on the high seas through the fault of a person having its home port in New Orleans; as the statute of Louisiana did not apply to cases where the wrongful act which caused the death occurred outside the State. Afterward, in June, 1883, Judge Pardee, of the Circuit Court of the same district, decided otherwise. The E. B. Ward, Jr., 17 Fed. Rep. 456. In his

opinion he said (p. 459): "Upon the whole case, considering the natural equity and reason of the matter, and the weight of authority as determined by the late adjudicated cases in the admiralty courts of the United States, I am inclined to hold that the ancient common-law rule, actio personalis moritur cum persona,' if it ever prevailed in the admiralty law of this country, has been so modified by the statutory enactments of the various States and the progress of the age, that now the admiralty courts are permitted to estimate the damages which a particular person has sustained by the wrongful killing of another,' and enforce an adequate remedy. At all events, as the question is an open one, it is best to resolve the doubts in favor of what all the judges consider to be 'natural equity and justice.' He also was of opin

ion, that as the offending vessel was wholly owned by citizens of Louisiana, and the port of New Orleans was her home port, the Louisiana statute applied to her, and that the court of admiralty could enforce such a right of action in a proceeding in rem. See also The E. B. Ward, Jr., 23 Fed. Rep. 900.

The case of The Manhasset, 18 Fed. Rep. 918, was decided by Judge Hughes, of the Eastern Virginia District, in January, 1884, and in that it was held that a suit in rem could not be maintained by the administratrix against a vessel, under the statute of Virginia which gave an action for damages caused by the death of a person, even though the tortious act was committed within the territorial limits of the State; but that the widow and child of the deceased man had a right of action, by a libel in rem, under a general maritime law, which they could maintain in their own names and for their own benefit. In so deciding the judge said: "The decision of Chief Justice Chase in the case of The Sea Gull, supra, establishes the validity of such a libel in this circuit. I would maintain its validity independently of that precedent. Such a right of action is a maritime right, conferred by the general maritime law (2 Dom. Civil Law, pt. 1, tit. 8, $ 1, art. 4; 2 Gro., ch. 17, § 13; Ruth. Inst. 206; Bell Princ. 748, § 2029; 4 Ersk. Inst., tit. 4, § 105); and is not limited as to time by the twelve-months limitation of the State statute."

The last American case to which our attention has been called is that of The Columbia, 27 Fed. Rep. 704, decided by Judge Brown, of the Southern District of New York, during the present year. In giving his opinion, after referring to the fact that as he understood, the question was then pending in this court, the judge said: "Awaiting the result of the determination of that court, and without referring to the commonlaw authorities, I shall hold in this case, as seems to me most consonant with equity and justice, that the pecuniary loss by persons who have a legal right to support from the deceased furnishes a ground of reclamation against the wrong-doer which should be recognized and compensated in admiralty."

In Monaghan v. Horn, 7 Can. Sup. Ct. 410, the Supreme Court of Canada held that a mother could not sue in her own name, in admiralty, for the loss of the life of her son, on the ground that no such action would lie without the aid of a statute; and the statute of the Province of Ontario, where the wrong was done, and which was substantially the same as Lord Campbell's act, provided that the action should be brought in the name of the administrator of the deceased person. No authoritative judgment was given as to the right of an administrator to sue in admiralty under that act. This was in 1882, before The Vera Cruz, supra, in the House of Lords.

Such being the state of judicial decisions, we come now to consider the question on principle. It is no doubt true that the Scotch law "takes cognizance of

the loss and suffering of the family of a person killed" and gives a right of action therefor under some circumstances. Bell Princ. (7th ed.), p. 934, § 2029; Cadell v. Black, 5 Paton, 567; Weems v. Matthieson, 4 Macq. 215. Such also is the law of France. 28 Merl. Report, 442, verbo "Reparation Civile," § 4; Rolland v. Gosse, 19 Sirey, 269.

It is said also that such was the civil law; but this is denied by the Supreme Court of Louisiana in Hubgh v. New Orleans & Carrollton R. Co., 6 La. Ann. 495, where Chief Justice Eustis considers the subject in an elaborate opinion after full argument. A reargument of the same question was allowed in Hermann v. New Orleans & Carrollton R. Co., 11 La. Ann. 5, and the same conclusion reached after another full argument. See also Grueber Lex Aquilia, 17. But however this may be, we know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land; and the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched. It is not mentioned in the laws of Oleron, of Wisbuy, or of the Hanse Towns (1 Pet. Adm. Dec. Appx.); nor in the Marine Ordinance of Louis XIV (2 Pet. Adm. Dec. Appx.); and the understanding of the leading textwriters in this country has been that no such action will lie in the absence of a statute giving a remedy at law for the wrong. Ben. Adm. (2d ed.), § 309; 2 Pars. Shipp. & Adm. 350; Henry Adm. Jur. 74.

The argument every where in support of such suits in admiralty has been, not that the maritime law, as actually administered in common-law countries, is different from the common law in this particular, but that the common law is not founded on good reason, and is contrary to "natural equity and the general principles of law." Since however it is now established that in the courts of the United States no action at law can be maintained for such a wrong in the absence of a statute giving the right, and it has not been shown that the maritime law, as accepted and received by maritime nations generally, has established a different rule for the government of the courts of admiralty from those which govern courts of law in matters of this kind, we are forced to the conclusion that no such action will lie in the courts of the United States under the general maritime law. The rights of persons in this particular, under the maritime law of this country, are not different from those under the common law; and as it is the duty of courts to declare the law, not to make it, we caunot change this rule.

This brings us to the second branch of the question, which is whether, with the statutes of Massachusetts and Pennsylvania above referred to in force at the time of the collision, a suit in rem could be maintained against the offending vessel if brought in time. About this we express no opinion, as we are entirely satisfied that this suit was begun too late. The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. No one will pretend that the suit in Pennsylvania or the indictment in Massachusetts could be maintained if brought or found after the expiration of the year, and it would seem to be clear that if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence

of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right. No question arises in this case as to the power of a court of admiralty to allow an equitable excuse for delay in suing, because no excuse of any kind has been shown. As to this, it only appears that the wrong was done in May, 1877, and that the suit was not brought until February, 1882, while the law required it to be brought within a year.

The decree of the Circuit Court is reversed, and the cause remanded, with instructions to dismiss the libel.

NEW YORK COURT OF APPEALS ABSTRACT.

An

APPEAL PAROL EVIDENCE TO VARY WRITING — PRACTICE-OBJECTION.-(1) When the General Term reverses a decision upon questions of law alone, and the party appeals to this court, if it appears from the record that any errors of law were committed on the trial which called for a reversal, whether such errors were considered by the General Term or not, the judgment will be affirmed. (2) When a written contract is complete in all its parts, requiring nothing more to make it plain and intelligible, parol evidence is inadmissible to add to, contradict or vary its terms. objection to a conversation offered for such a purpose as immaterial and improper, and calling for a conclusion of the witness, is sufficient to raise the question of its admissibility. Where the objection to evidence could not be obviated by any means within the power of the party offering it, a general objection is sufficient to raise the question of its missibility. The fact that a written contract is unenforceable by reason of some vice expressed in it does not authorize the introduction of parol evidence to eliminate such objection. It is only where the contract is obviously incomplete and imperfect by reason of the absence of some provision which it is apparent that the parties must have contemplated as a part thereof, that parol evidence may be admitted to supply the defect. Nov. 30, 1886. Holcombe v. Munson. Opinion by Ruger, C. J.

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BONDS - OF INDEMNITY JUDGMENT ENTERED BY CONSENT-PRESUMPTIVE EVIDENCE.-The covenantor in an action on a covenant of general indemuity against judgments is concluded, by the judgment recovered against the covenantee, from questioning the existence or extent of the covenantee's liability in the action in which it was rendered. The recovery of a judgment is an event against which he covenanted, and it would contravene the manifest intention and purpose of the indemnity to make the right of the covenantee, to maintain an action on the covenant, to depend upon the result of the retrial of an issue, which as against the covenantee had been conclusively determined in the former action; "always however saving the right, as the law must in every case where the suit is between third persons, to contest the proceeding on the ground of fraudulent collusion for the purpose of charging the surety." Cowen, J., in Douglass v. Howland, 24 Wend. 55. The general doctrine above stated is fully settled by authority. Chace v. Hinman, supra; Gilbert v. Wiman, 1 N. Y. 550; Methodist Churches v. Barker, 18 id. 463; Rapelye v. Prince, 4 Hill, 120; Ins. Co. v. Wilson, 34 N. Y. 280; Douglass v. Howland, supra. This case however presents a feature, which so far as I know is not found in any of our reports. The judgment in the action of Kahrs against the sheriff was entered by consent. The question is not free from difficulty, but we are of opinion that the judgment, in the absence of any evidence of

Its

fraud or collusion, or any suggestion that there was a defense to the action against the sheriff, although entered upon consent of the parties to the action, presumptively, at least, established the liability of the defeudants. The defendants executed the bond at the request, and for the accommodation of Dubee. obvious purpose was to secure the sheriff against apprehended litigation as to the title to the property seized under the execution against Fischer. The bond was given to indemnify the sheriff against suits and judgments to which he should be a party, growing out of that proceeding. The appellants did not make it a condition of their liability that they should have notice. They were satisfied that the sheriff should conduct litigations founded upon his seizure of the property, without reserving any right of intervention. They committed the matter to his discretion, not indeed by express words, but by necessary implication. It is true that the sheriff was not, in a legal sense, the agent of the sureties to manage suits brought against him; but the sureties agreed that no judgments should be recovered against him therein. They did not limit the indemnity to judgments obtained upon an actual trial, or after a contest in court, and they did not undertake to divest the sheriff of the power incident to his position as a party to settle and adjust litigations instituted against him, in view of the exigencies of the situation. It might very well happen that a judgment founded upon a compromise or agreement, without actual trial, would best promote the interest of all concerned. Can it be affirmed, as a matter of law, that the conditions of the bond only covered judgments obtained upon hostile and adverse litigation, and that no discretion was left in the sheriff to consent to a judgment, although he believed that by so doing money would be saved to the parties ultimately liable? This, we think, would be a too strict interpretation of the contract. But at the same time, to hold that a judgment entered by consent of the parties, and without notice to or approval by the sureties, is in the absence of proof of fraud or collusion, conclusive against them, would open the door to the perpetration of secret frauds, and subject sureties to a most hazardous responsibility, and to the discretion and judgment of a third person, which might seriously imperil them. A judgment by default has been held to be covered by an indemnity against judgments (Lee v. Clark, 1 Hill, 56; Aberdeen v. Black mar, 6 id. 324; Annett v. Terry, 35 N. Y. 256); but where default is made, the plaintiff must give proof to entitle him to judgment. The reasonable rule is that a judgment so obtained is presumptive evidence only against the sureties, and that they are at liberty to show that it was not founded upon any legal liability to the plaintiff in the action. We are not aware that this point has been adjudicated in our court, but this conclusion is warranted, we,think, by legal and equitable considerations. In this case there is an absence of any proof impeaching the fairness or justice of the claim of Kahrs, or tending to show that the judgment exceeded the legal liability of the sheriff. The judgment should therefore be affirmed. Nov. 23, 1886. Conner v. Reeves. Opinion by Andrews, J. All concur, except Ruger, C. J., not voting.

EVIDENCE CORPORATE RECORDS AS AGAINST STOCKHOLDERS.-Corporate books are not only evideuce of the corporate acts when those need to be proved, but are to some extent evidence against the stockholders who are chargeable with a knowledge of their contents. Nov. 23, 1886. Blake v. Griswold. Opinion by Finch, J.

MASTER AND SERVANT-DUTY AS TO RULES FOR PROTECTION TO EMPLOYEES.—The plaintiff's testator was a car repairer in the employ of the defendant, and

while under one of its cars standing upon a side track engaged in making repairs, its employees using an engine carelessly backed a car against it, and thus he came to his death. The law imposes upon a railroad company the duty to its employees of diligence and care not only to furnish proper and reasonably safe appliances and machinery, and skillful and careful co-employees, but also to make and promulgate rules, which if faithfully observed, will give reasonable protection to the employees. Slater v. Jewett, 85 N. Y. 761; S. C., 39 Am. Rep. 627; Besel v. N. Y. C., etc., R. Co., 70 id. 171; Sheehan v. Same, 91 id. 339; Danna v. Same, 92 id. 639. It appears that the managers of some railroads in this country have adopted a rule substantially like this: "A blue flag by day and blue light by night placed in the draw-head, or on the platform or step of the car at the end of a train, or car standing on a main track or siding, denotes that car repairmen are at work underneath. The car or train thus protected must not be coupled or moved until the blue signal is removed by the repairmen." This is certainly a very efficient rule, and if faithfully and carefully observed would give reasonable protection to repairmen. The plaintiff contends that it was under the circumstances of this case a question for the jury to determine whether the defendant for the protection of its repairmen engaged in a peculiarly hazardous work should not have promulgated such a rule or one substantially as efficient. The only rule the defendant had made bearing upon this case was as follows: "A red flag by day and a red lantern by night, or any signal violently given, are signals of danger, on perceiving which the train must be brought to a full stop as soon as possible, and not proceed until it can be done with safety." This rule seems, from its phraseology, to have been mainly, if not exclusively, intended for the government of moving trains, and was not very well adapted for the protection of men under stationary cars upon side tracks engaged in making repairs. There was no rule prohibiting the removal of the signal, and the signal was not intended exclusively for the protection of such men, nor did it give notice that human life was in danger. It matters not that there was a custom or rule among the repairmen in the employ of the defendant at Mechanicsville that they should place a red flag at each end of the cars which they were repairing, It does not appear that that rule was regularly promulgated by the defendant, or that obedience to it was required by the defendant; nor does it appear that it was printed or generally known to the engineers engaged in running trains. It appears that it was a common and frequent occurrence for engines and cars to be switched upon the side tracks at Mechanicsville without any check or hindrance from any one having control of the tracks at that place, and thus the repairmen engaged under and about cars seem to have been exposed to constant peril. We do not perceive how it was possible to say as matter of law that the rules of the defendant were proper and sufficient for the protection of its repairmen, and that it should not have taken greater precautions, by rules or otherwise, for their safety. We think the facts should have been submitted to the jury and that the nonsuit was improper. Dec. 7, 1886. Abel v. D. & H. C. Co. Opinion per Curiam.

NEGLIGENCE -CONTRIBUTORY - ATTEMPTING TO BOARD MOVING TRAIN.-One of the defendant's trains, on its elevated railway, had reached and was about leaving the Chatham square station, on the Second avenue line, on the evening of December 9, 1881, when the deceased, with other persons, hastened from another train to get on board. As they came up running for that purpose, the gate of the car was closed, and the train started to leave the station. It was

moving very slowly, but with constantly accelerated speed, when two persons,[running in advance of the deceased, pushed open the closed gate and boarded the car. The deceased also attempted to get on, but at that moment the conductor, while the deceased having one foot on the platform and his hands grasping the stanchions of the car platform was stepping on the car, again closed the gate. Deceased's foot was caught by the gate so that he was carried alond by the moving car, until struck by a projecting water-pipe, at the north end of the station, by which he was knocked from the car upon the track below and fatally injured. Held, that plaintiff was guilty of contributory negligence, and a nonsuit was properly directed. Nov. 23, 1886. Solomon v. Manhattan Ry. Co. Opinion by Andrews, J. Ruger, C. J., Earl and Finch, JJ., concur; Miller and Danforth, JJ., dissent; Rapallo, J., taking no part.

RECORDING ACT ASSIGNMENT OF MORTGAGE AGENCY-TO RECEIVE INTEREST.-(1) The assignment of a mortgage and the satisfaction of the same are "conveyances" within the meaning of the recording act. Van Keuren v. Corkins, 66 N. Y. 77; Westbrook v. Gleason, 79 id. 25; Decker v. Boice, 83 id. 215; Bacon v. Van Schoonoven, 87 id. 446. In Jones Mort., § 791, the notice, it is said, must be given to the owner of the equity of redemption, in order to protect the assignee against payments made in good faith by the

mortgagor, or the party liable to pay the mortgage, to the assignor, that the recording of the assignment is not, of itself, such notice of the assignment as will afford such protection. This dictum would seem to be in direct conflict with the general rule relating to the effect to be given to the assignments of mortgages when placed on record, and to conveyances to subsequent purchasers of the mortgaged premises who take title subject to the mortgage. The record of an assignment of a mortgage is constructive notice to all persons of the rights of the assignee, save as excepted by the statute. Viele v. Judson, 82 N. Y. 32. In the case cited it is laid down in the opinion by Finch, J., that the recording of an assignment furnishes protection against any subsequent assignment of the same mortgage, or any unauthorized discharge, and is notice that the rights of the mortgagee are gone, and that he can neither assign nor discharge the instrument. This case is directly in point, and very distinctly covers the question presented. The record of the assignment here, as in the case cited, was an ample protection to the plaintiff's claim, and notice to C. that T. had disposed of his interest in the mortgage. In Heermans v. Ellsworth. 64 N. Y. 159, the action was upon a demand against the defendant for money loaned by the plaintiff's assignor, and it was held that it is the duty of a non-negotiable chose in action, in order to protect himself against payment by the debtor to the original creditor, to notify the former of the assignment, and that in an action upon the demand where such a payment is established, the burden of proving notice prior to payment is upon the plaintiff. No question arose as to the constructive notice, or the effect of the recording act, and the case'cited therefore is not in point. The recording of an assignment of a mortgage is notice to a purchaser of the equity of redemption, and payments made by him to the assignor after the assignment are invalid and do not bind the assignee. (2) An attorney authorized to receive the interest on a bond and mortgage has no implied authority to receive the principal. Held, in Smith v. Kidd, 68 N. Y. 130, where it is said, in the opinion by Rapallo, J., that it is incumbent on the debtor who makes a payment to an attorney to show that the securities were in the attorney's possession on each occasion when the payments were made, and that it is

not incumbent on the creditor to show notice to the debtor of the withdrawal of the papers from the possession of the attorney. Dec. 7, 1886. Brewster v. Carnes. Opinion by Miller, J.

TRUSTS-REMOVAL OF TESTAMENTARY TRUSTEE AND EXECUTOR-CAUSES.-An executor and trustee appointed under a will may be removed by the surrogate on the application of beneficiaries representing twothirds in interest under the will, where the evidence convinces the surrogate of the unfitness of such trustee and executor by reason of drunkenness, improvidence, and hostility to the beneficiaries seeking relief. Nov. 23, 1886. In re Estate of Cady. Opinion by Earl, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CARRIERS-PASSENGERS-MOBS-PROTECTION OF PASSENGERS.-A railway company is not required to exclude from its passenger cars "non-union" workmen, who are the object of the hatred of a mob, lest the mob should board the train and injure the other passengers. In order to justify a recovery in this case it must be shown that appellant was guilty of negligence and that such negligence was the proximate cause of the injury to the appellee. The instructions proceed upon the theory that the taking of the non-union men upon the train on the evening of June 1, 1882, was an act of negligence. The jury were told, in substance, that if the circumstances were such as to lead a prudent man to believe that the presence of non-union men upon the train would provoke an attack by the strikers, and the appellant knew of such circumstances, then the admission of the non-union men into the cars was a violation of the appellant's duty to its passengers, and the appellee is entitled to a recov

ery.

"The law requires common carriers of passengers to take and carry every one who desires to go, provided they have room, and there be no objection on account of the condition, habits, character, deportment or purposes of the passenger." Galena & C. U. R. Co. v. Yarwood, 15 Ill. 468. The company has no power to adopt rules and regulations prohibiting decently behaved persons who will pay their fare and conform to all reasonable regulations for the safety and comfort of passengers from travelling on the road." Chicago, B. & Q. R. Co. v. Bryan, 90 111. 126. It is the duty of a railroad company "to receive and carry all persons as passengers wishing to become such, provided they in good faith offer to pay the usual fare." Rorer Railr. 961; Ang. Carr., §§ 524, 525; Story Bailm. 591. It is true that the rule here laid down is subject to certain qualifications. There are those whom the common carrier is not bound to receive or carry. "He is not obliged to carry one whose ostensible business is to injure the carrier's business; one fleeing from justice; one going upon a train to assault a passenger, commit larceny or robbery, or for interfering with the proper regulations of the company, or for gambling or committing any crime; nor is he bound to carry a person, who on account of his drunken condition would be obnoxious to the passengers, nor one affected with a contagious disease." Thomp. Carr. 29. Persous may be rejected who are of known or notoriously bad, or even justly suspicious character, or persons offensively gross and immoral in their conduct, habits or

behavior, * ** or such as refuse to pay their fare, or to conform to the reasonable rules and regulations of the company." Rorer Railr. 958. It is said that these laborers had incurred the wrath of an angry mob, and that their presence on the train invited the vengeance of that mob. They had however done nothing to deserve the hostile treatment exhibited

toward them. They had agreed to work for the steel company upon being paid certain wages, and were endeavoring to perform that agreement. What they were doing was clearly permissible under the law. Where the employer and the employee make a contract with each other, and arrange the terms, satisfactorily to themselves, upon which the one shall receive and the other shall render service, they are acting strictly within the limits of their constitutional rights. In this country any man has a right to work for whom he pleases, upon any conditions that he chooses to submit to, provided the occupation engaged in is lawful in its character. Any individual or organization which assumes to interfere with the exercise of such right infringes upon the personal liberty and freedom of action which it is the object of our institutions to secure to every law-abiding citizen. In the light of these principles, the non-union workmen were committing no offense. They were earning their living in an honest way, by legitimate labor, in a lawful occupation. To hold, that because they were so doing, a common carrier was authorized to refuse to give them passage over its road, would be to maintain a monstrous doctrine indeed. It is true that the "Ore Shovellers' Union," a labor organization, outside of and unknown to the law, chose to take offense at their conduct, and to pursue them with unnatural violence. But we are not prepared to hold that a common carrier will be justified in refusing to receive a person as a passenger in its conveyance simply because that person's exercise of his lawful rights has become offensive to bis unreasoning neighbors, and provokes from such neighbors unreasonable demonstrations of hostility against his person. Suppose that the appellee, who is a judge of one of the appellate courts of this State,had by his declaration of the law upon some public question stirred up such a feeling of hostility toward himself among a certain class of persons along the line of the railroad over which he was obliged to travel from, his home to the place where his court held its sessions that he was in danger from mob violence, and that upon his application to be received as a passenger, the railroad company had declined to admit him upon its train on the ground that his presence there might pro. voke an attack at some point on the road, and so cause injury to the passengers, would the company be justified in thus preventing him from going to the performance of his official duties? We see no difference between the case supposed and the case presented by the record. The law is no respecter of persons. Its glory is that it extends its protecting hand as well to the lowly workman as to the learned judge. Each one of these thirteen non-union laborers, soiled with oredust from the docks, yet willing to comply with the reasonable regulation which required him to take his seat in the smoking car, rather than in either of the passenger coaches, was as much entitled as was the appellee to demand of a carrier, holding its franchises at the hands of the State for the benefit of the whole public, a safe passage, at the close of his day's labor, to his home and his family. Hence it was no less the duty of the railroad company to take the thirteen laborers on the train than to take the appellee thereon. Appellant was not obliged to neglect its duty to the one because the performance of that duty might, in some remote and uncertain degree, result in harm to the other. It is not contended, nor is there a particle of evidence to show that the appellant had any notice that this attack would be made on its train, either at the place where it was made or at any other point on its road. No prudent man, even in the exercise of that high degree of care which the law imposes upon the carrier of passengers, could be expected to foresee or anticipate that the animosity of union tow