amount due the attaching creditor. This would certainly be against the weight of authorities in this country, and in most cases be productive of the greatest injustice.

In the cases of Sheedy v. Second National Bank, 62 Mo. 18, and Myers v. Smith, 29 Ohio, 120, it was held that partnership demands can not be garnished for the separate debt of one of the partners. And to the same effect are the decisions in Vermont, New Hampshire, New York, Louisiana and Mississippi. See Drake on Attachment, (4th edition,) sec. 570, and notes. The exception to this rule is, where equity powers have been conferred by statute upon the common law courts, and when by virtue of such powers they can compel a settlement of the partnership for the purpose of ascertaining whether one of partners has such an interest in a particular debt due the firm, as to justify its appropriation to the payment of his individual indebtedness. As no such powers have been conferred upon the common law courts of this State, the exception can not be applied to an attachment here.

The only cases in this country in which it is claimed a contrary doctrine is held, and to which we have been referred, are the cases of McCarty v, Emlen, 2 Dallas, 277; Knox v. Scheler, 2 Hill, 595, and Wallace v. Patterson, 2 H. & McH. 463. The case of McCarty v. Emlen is a very old one, having been decided in 1797. If it has not been expressly overruled, it certainly has been very much shaken by the case of Knerr v. Hoffman, 65 Pa. 126, in which the opinion of the court was delivered by Judge Sharswood. So much so, that the doctrine it announces can hardly be considered as the present recognized doctrine of the courts of Pennsylvania. And in this view we are strengthened by what is said by Judge Agnew in the case of Alter v. Brook and Barrington, 9 Phila. 258. But apart from this, the doctrine announced in that case does not recommend itself to our judgment, and we are not disposed to adopt it. The case of Knox v. Schepler, 2 Hill, like the case in 22 Md. 30, is one where the defendant was the sole surviving partner of the firm of Gable, Cowell & Schepler. It therefore rested upon a different principle from the case before us, in which the partnership is a continuing one at the time of the attachment. It is, however, said in the opinion of the court "that the interest of one partner may be taken in execution or may be the subject of attachment at the suit of a separate creditor of that partner." But the rule laid down in regard to the disposition of the fund after judgment of condemnation, shows that under the law as recognized in South Carolina, the case is brought at least within the equity of the exception to which we have above alluded. The judgment of the court was, that the money should be paid over conditionally to the attaching creditor - that is, it was to be held by him as the defendant had it, subject to the equities of the other partners and of the creditors of the firm, and he was also to give bond to answer any claim which might thereafter be made on such fund." We are not disposed to quarrel with this

rule, but can not consent to hold it applicable to our court. The language of Chief Justice Swift, in his opinion in Church v. Knox, 2 Conn., is very appropriate to it. He observes, on page 518, “It is further said, if the plaintiffs have recovered more than the proportion of the defendant in this debt, and it should be wanted for the payment of partnership debts, the other partners may call them to account, and recover back such money. At this rate a judgment may be rendered in favor of a man for a sum certain, with a liability to refund the whole, or a part of it, on some contingency. It is sufficient to state the proposition to show the absurdity of it. What right can a court have to say, that a certain part of a debt due to a partnership may be taken to pay the private debt of a partner in a suit where the partners are not parties; and then, if wanted to pay the debts of the partnership, to oblige them to resort to the creditor?"

But the case of Wallace v. Patterson, 2 Harris & McHenry, 463, is relied upon to sustain this attachment. It is to be said of that case, which was decided as far back as 1792, that no opinion of the court was filed in it, and it is impossible from the report of the case to ascertain the true ground upon which the judgment was given. The case is altogether too unsatisfactory to be adopted as a binding authority. In the case of Berry, Garn. v. Harris, Adm'r. 22 Md. 30, the point was made, that the separate creditor of one partner can attach a debt due the partnership, and the case of Wallace v. Patterson, was cited in support of the proposition. Although this case was decided upon the ground, that the defendant was a surviving partner, and that by virtue of his survivorship the legal interest in the debt attached was absolutely transferred to him and therefore liable to be attached for his separate debt, the general proposition contended for was noticed. And the court then intimated in the strongest manner, that the case of Wallace v. Patterson would not be considered a binding authority for the point to which it was cited. On page 40, Judge Bowie, who delivered the opinion of the court, uses this language: "If this was a case of continuing partnership, we should have much difficulty in distinguishing it on principle from the case of Fisk (v. Herrick, 6 Mass. 281; Lyndon v. Gorham, 1 Gall. 367, and the cases in Alabama and Tennessee; but the case of a surviving partner, invested with the entire legal property, and control over the chattel, so broadly marks the line between them, that we are not at liberty to disregard the legal claims of the attaching creditor. The case of Wallace v. Patterson, 2 H. & McH. 463, was the case of a domestic creditor, against one of several non-resident partners, whose firm as well as the debtor partner had become bankrupt. The distinction between attachments against tangible chattels and choses in action belonging to the firm, and attachments issued during the existence of the firm, and after its dissolution, was not adverted to, and no opinion was given; we do not regard it, therefore, as decisive of the point to which it was cited."

So satisfied are we upon the ground of reason

and expendiency, and the great weight of authority' that the partnership credits of a continuing partnership should not be subjected to the process of attachment at the suit of a separate creditor of one of the partners, that we can not adopt the case of Wallace v. Patterson to the extent which is claimed for it.

In our opinion then, in a case like the present where the partnership is a continuing one, and where there has been no adjustment of partnership affairs, a debt due the partnership can not be taken by garnishment to pay the individual debt of one of the members of the firm.

This judgment will therefore be reversed and judgment entered for the appellant. Judgment reversed, and judgment for appellant.

NEGLIGENCE LIABILITY OF TRUSTEES OF PUBLIC CHARITY.

GLAVIN v. RHODE ISLAND HOSPITAL.

Supreme Court of Rhode Island, July 26, 1879.

1. NEGLIGENCE-INJURY THROUGH NEGLIGENCE OF SURGEON — LIABILITY OF TRUSTEES OF HOSPITAL.-A, who had been for some three weeks a patient in the Rhode Island Hospital, paying $8 per week, brought an action against the hospital for damages, alleging severe injuries caused by the unskilfulness and negligence of the surgical interne, a house officer of the hospital. At the trial, a verdict for the defendant was directed by the presiding judge, on the ground that the hospital, being a public charity, was exempt for reasons of public policy from the liability charged. Held, that in the absence of legislative provisions granting such exemption, the exemption could not be allowed, public policy requiring that duty assumed should be faithfully performed.

2. AGENTS-LIABILITY For Acts of-SURGEONS. - Although the attending physicians and surgeons could not be considered as servants of the hospital, yet the hospital was responsible for the exercise of reasonable care in selecting them, and liable for their negligence.

3. THE GENERAL TRUST FUNDS of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or servants.

Petition for a new trial.

Charles E. Gorman, for plaintiff; Charles Bradley & Charles Hunt, for defendant.

DURFEE, C. J., delivered the opinion of the court:

This is an action on the case to recover damages for unskilful and negligent surgical treatment. The declaration sets forth that the plaintiff, having received an injury in his hand and fingers for which he was in need of surgical and medical treatment and care, gave himself into the charge of the defendant corporation, who were owners of a large hospital where they were in the habit of receiving persons needing such treatment and care, and of treating and caring for them for hire; and that, in consideration of being so received and

treated with skill and care, he promised to pay the defendant corporation a reasonable compensation therefor, and that the defendant corporation, in consideration thereof, received him and promised to supply him with such surgical and medical treatment, skill, and attention as were necessary for the care and cure of his injuries. The declaration also sets forth that the corporation, its officers, agents, and servants, regardless of its and their duty, neglected properly to care for the plaintiff and his injuries, or to supply such medical and surgical treatment as was needed for their care and cure; but on the contrary conducted so carelessly, improperly, and unskilfully, that his hands and fingers by reason thereof become ulcerated and gangrenous, and likewise his arm, so that his life was endangered and his arm had to be amputated at or near the shoulder, etc. The declaration also contains counts charging the defendant corporation with a neglect of duty in other ways, and especially in that, regardless of the obligation incumbent on it, it neglected to provide careful, competent, and skilful officers, agents, and servants to care for, attend to, and treat him and his injuries.

On the trial by the jury the plaintiff submitted testimony to show that on the 3d of October, 1873, he had two fingers of his right hand accidentally sawed off by a circular saw in a lumber yard where he was employed; that he was immediately taken to the hospital, where he was received by the superintendent, and committed to the care of the surgical interne, who etherized him and undertook to dress his wound; that a profuse hemorrhage occurred, being occasioned, as the plaintiff claims, by the negligence or unskilfulness of the interne; that the interne, after repeatedly trying in vain to arrest the hemorrhage by ligating the arteries, applied a tourniquet to the plaintiff's arm so tightly as to stop circulation, and kept it applied for nearly seventeen hours, before the arrival of a surgeon who was skilful enough to ligate the arteries; that the plaintiff, in consequence, suffered excruciating pain, his arm being enormously swollen. and that afterward his arm mortified so that he had to have it amputated, after leaving the hospital, just below the shoulder joint.

The plaintiff also submitted testimony to show that his injury was such, especially in view of the hemorrhage, that some one of the experienced surgeons, attendant on the hospital, should have been immediately summoned; but that, in fact, no one of them was sent for until after nearly nine hours, and no one came until after nearly seventeen hours, though there were four, subject to call, residing and having their offices within a mile of the hospital. Further testimony was introduced by the plaintiff showing the treatment which he received both while he was in the hospital and after he left; showing the degree of care which was used in selecting the interne, and showing the charter of the corporation and the rules and regnlations in force in 1873. It appeared that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and when he left, October 22, 1873, a bill for board and attendance at $8.00 per week, amounting to $21.75, was

presented to him in behalf of the defendant corporation, which was subsequently paid.

For the defendant corporation testimony was introduced to explain the management of the hospital generally, as well as the circumstances of the care of the plaintiff, and to show that there was no want of reasonable care, skill and diligence on the part of the defendant corporation. Testimony was also introduced to show that the hospital was administered as a charity; that its income was derived mainly from its endowments and from voluntary contributions; that the physicians and surgeons attendant on the hospital, and the medical and surgical internes, gave their services without compensation, except that the internes, who were required to be constantly in attendance, had their board and lodging in the hospital, and that the bill which was rendered to the plaintiff was designed only to cover board, washing, warmth, and the services of nurses and ward tenders.

After the introduction of the testimony and the argument of the case to the jury, the court instructed the jury that no testimony had been submitted which entitled the plaintiff to a verdict for damages, and directed the jury to return a verdict for the defendant corporation. The ground of the instruction was, that the defendant corporation being the dispenser of a public charity, and being dependent for its support, in a great measure, on voluntary grants and contributions, was, for reasons of public policy, exempt from liability for any negligence or unskilfulness on the part of its trustees, agents, servants, physicians, or surgeons, or of its medical or surgical internes; and that if any patient in the hospital suffered injury in consequence of any such negligence or unskilfulness, his remedy, if any he had, was to prosecute the person or persons who were directly chargeable with the negligence or unskilfulness, and not bring his action against the defendant corporation. The plaintiff contends that this instruction was erroneous, and that he was entitled to recover, first, because the defendant corporation delivered him over to an incompetent and unskilful interne, in selecting whom for his place the corporation did not exercise proper care; second, because the interne, acting within the scope of his appointment, unskilfully and negligently cared for him; third, because the interne caused his hemorrhage by his unskilfulness and negligence, and fourth, because the plaintiff being in a critical condition, it was the duty of the interne, under one of the rules of the hospital, to send immediately for some one of the attendant surgeons, and the duty of the corporation, under its charter, having established the rule, to put it in execution.

The court, in giving its charge to the jury, was guided by McDonald v. Massachusetts General Hospital, 120 Mass. 432. In that case a hospital patient sued the corporation for unskilful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil, and the court held that without such evidence the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained even with such evidence, for

the reason that the corporation could not be held to have agreed to do more than furnish hospital accommodations, which the plaintiff had had, and for the further reason that any judgment recov ered against the corporation could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it.

The Supreme Judicial Court of Massachusetts, in the case above cited, referred to Holliday v. St. Leonard, 11 C. B. N. S. 192, decided by the Court of Common Pleas in 1861, as authority for the point that the corporation was not liable to be sued for the tort of the house pupil without proof of negligence in selecting him. The doctrine announced in Holliday v. St. Leonard is that a corporate or quasi-corporate board or body, having a public trust or duty to discharge gratuitously, is not liable for the torts of its servants or employees if it is personally without fault. The plaintiff calls our attention to cases in which Holliday v. St. Leonard has been qualified or impugned. Mersey Docks V. Gibbs, 11 H. L. 686, L. R. 1 H. L. 93; Forman v. Mayor of Canterbury, L. R : 6 Q. B 214; Coe v. Wise, L. R. 1 Q. B. 711, 5 B & S. 440, 458, These cases hold that a board or body having work to do for the public gratuitously are liable for the torts of their servants or employees, the same as a private business corporation, provided they have funds or are in receipt of an income out of which a judgment against them can be satisfied. Winch v. Conservators of the Thames, L. R. 7 C. P. 458, 9 Ib. 328. The authority of McDonald v. Massachusetts General Hospital in so far as it rests upon Holliday v. St. Leonard, is seriously impaired by these cases: and the question arises whether it might not have been better decided on the other grounds suggested in the opinion of the

court.

The other grounds suggested were two. The first was that the corporation could not be presumed to have agreed to do more than furnish hospital accommodations, and these the plaintiff had had. It is quite conceivable that a corporation might not agree to do more than furnish hospital accommodations, leaving the patient to find his own physician or surgeon. In such a case the corporation would plainly not be liable for the torts of the physicians or surgeons; for in such a case they would not be its servants and it would not have assumed any responsibility in their selection. But that is not this case. Here the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this that they are the servants of the corporation? We think not. If A out of charity employs a physician to attend B, his sick neighbor, the physician does not become A's servant, and A, if he has been duly careful in selecting him, will not be answerable to B for his malpractice. The reason is, that A does not undertake to treat B through the agency of the physician, but only to procure for B. the services of a physician. The relation of master and servant is not established between A and the physician, and so there is no such relation between the corporation and the physicians and surgeons who give their services at the hospital. It

is true that the corporation has power to dismiss them; but it has this power not because they are its servants, but because of its control of the hospital where their services are rendered. They would not recognize the right of the corporation, while retaining them, to direct them in their treatment of patients.

But though the relation of master and servant cannot be said to exist between the hospital and physicians and surgeons attendant on it, the hospital does nevertheless assume a responsibility, in that it uses its own judgment, or that of its trustees, in selecting them, and impliedly, therefore, undertakes to exercise reasonable care to get such as are skilful and trustworthy in their professions. A patient has the right to rely on the exercise of such care, and consequently if, through the neglect of the hospital to exercise it, he receives an injury, he is entitled to look to the hospital for indemnity, unless the hospital enjoys some extraordinary exemption from liability.

In the case at bar, however, the injury was not received from a physician or surgeon, but from a surgical interne, and it may be that a surgical interne stands on a different footing. There are some cases of minor importance in which the internes are allowed to act as physicians and surgeons; and in such cases, I think that their relation to the corporation does not differ from that of a visiting physician or surgeon. But the internes act in still another capacity. The corporation undertakes to furnish physicians and surgeons for all kinds of cases, including the most critical. It has a regular staff of physicians and surgeons. But inasmuch as these are not, like the internes, constantly in attendance at the hospital, they must frequently be sent for. The corporation undertakes to send for them, and of course it must do it through an agent. The internes are the persons appointed to perform this duty for it. A rule of the hospital prescribes that in all cases requiring immediate and important action, in all doubtful cases, and in all cases requiring immediate operation, the interne shall send for the surgeon of the day, and, if he cannot be found, for one of the other surgeons. Here then we have the relation of principal and agent, or master and servant. If the interne neglects to call the surgeon in the class of cases designated, his neglect is the neglect of the corporation. Now the plaintiff contends that his injury was such that under the rule a surgeon should have been immediately sent for, and that the interne's neglect to do it cost him his arm. He also contends that the corporation did not use proper care in selecting the interne, who was incompetent for his position, and thereby he suffering the injury complained of. He contends that he was entitled to recover on both these grounds, and if the evidence was sufficient to establish them, we think that he was entitled to recover on both grounds, unless the hospital enjoys some peculiar immunity.

This brings us to the important question whether the hospital does enjoys any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds: to wit, on the

ground of public policy, and on the ground that the hospital has no funds except such such as are exclusively dedicated to the charitable uses for which it was established, and which therefore cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or surgeon, or of a medical or surgical interne.

The first ground is the ground on which the plaintiff was nonsuited. The argument is that hospitals, like the Rhode Island Hospital, are a public benefit; but if they are liable for the torts of the physicians or surgeons attendant on them, or of the medical or surgical internes, or of their nurses and other servants, people will be discouraged from voluntarily contributing to their foundation and support, and therefore public policy demands that they shall be exempted from liability. In our opinion the argument will not bear examination. The public is doubtless interested in the maintenance of a great public charity, such as the Rhode Island Hospital is; but it also has an interest in obliging every person and every corporation which undertakes the performance of a duty to perform it carefully, and to that extent, therefore, it has an interest against exempting any such person and any such corporation from liability for its negligences. The court cannot undertake to say that the former interest is so supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for a court but for the legislature.

The second ground is one of the grounds suggested in McDonald v. Massachusetts General Hospital. No authority was cited in that case except Holliday v. St. Leonard, previously mentioned. The defendants, however, have referred us to Feoffees of Heriot's Hospital v, Ross, 12 Cl. & Fin. 507, which is very much in point. Heriot's Hospital was an eleemosynary foundation created under a will for the benefit of fatherless boys. The suit was in behalf of a boy who was alleged to have been illegally refused the benefit of it. The question was whether the action would lie against the trustees as such for damages for the refusal. The House of Lords held that the plaintiff had no right to indemnity out of the trust funds. Lord Cottenham was of the opinion that to give damages out of the trust fund would be to divert it from its proper purpose. Lord Campbell thought it would be contrary to reason, justice and common sense to sanction the suit. "Damages are to be paid," he said, "from the pocket of the wrongdoer, not from a trust fund." Lord Brougham strongly expressed the same opinion.

The authority relied on to support the decision was a decision of the House of Lords in Duncan v. Findlater, 6 Cl. & Fin. 894. There the action was against trustees appointed under a public road act, to charge them in their quasi-corporate capacity for an injury occasioned by the negligence of the men in making the road, and the House of Lords held that the action was not maintainable. The case resembles Holliday v. St. Leonard, and like it, in the light of the later decisions, has no value as a precedent for any case where there are funds

which can be applied to the payment of damages.

We have previously, in this opinion, cited the cases which limit the authority of Holliday v. St Leonard. It max help us to consider the leading case more in detail. The leading case is Mersey Docks v. Gibbs, 11 H. L. 686, decided in the House of Lords in 1865. The action was against a quasi-corporate board charged with the duty of keeping certain docks in order, and authorrized in consideration thereof to collect tolls and dock rates. The board had no interest in the rates and tolls, being bound to expend them on the docks or in the payment of a debt incurred in building them. A vessel belonging to plaintiff was injured in entering the docks, in consequence of a neglect to keep them fit for navigation. The House of Lords decided that the action for the injury would lie against the board, the plaintiff being entitled to indemnity out of the public fund. The case was decided with great deliberation, the judges being summoned in. Mr. Justice Blackburn, after advisement, delivered the unanimous opinion of all the judges who heard the case. The opinion was that such corporations, though acting without reward, are in their very natures substitutions on a large scale for individual enterprise, and that in the absence of anything in the statutes which create them showing a contrary intent, it must be held that their liability was intended to be, to the extent of their corporate funds, the same as that of individual owners of similar works. He also remarked that, if the true interpretation of the statute is that it casts a duty on the corporation, not only to construct the works, but also to use reasonable care and skill in their construction and in their maintenance for use, there is nothing illogical in holding that those who are injured by a neglect of the duty may maintain an action against the corporation, and be indemnified out of the funds vested in it by the statute. The case of Duncan v. Findlater was cited by Mr. Justice Blackburn in his opinion, and the language there used by Lord Cottenham, which was chiefly relied on as authority for the decision of Feoffees of Heriots Gospital v. Ross, was expressly disapproved. It is remarkable, however, that the case of Feoffees of Heriot's Hospital v. Ross, though cited by counsel, does not seem to have attracted the attention of either Mr. Justice Blackburn or of the other three learned lords who delivered concurring opinions.

The language used by Lord Cottenham in Duncan v. Findlater was criticised by Lord Wesbury more pointedly even than by Mr. Justice Blackburn. He said in effect that he supposed Lord Cottenham regarded the funds of statutable boards as being in the nature of trust property, and had the idea that trust property would be protected in equity from seizure and sale on execution for the torts of the trustees. He expressed the opinion that this belief was erroneous. "It is much more reasonable," he says "in such a case, that the trust or corporate property should be amenable to the individual injured, because there is then no failure of justice, seeing that the beneficiary will always have his right of complaint and his title to

relief against the individal corporators who have wrongfully used the name of the corporation."

In all the English cases decided since the decision of Mersey Docks v. Gibbs, which we have seen, the cases of Duncan v. Findlater and Holliday v. St. Leonard, as authority for the broader doctrines declared in them, are uniformely regarded as overruled.

In view of these later decisions, the question here is, whether a charitable corporation, like the Rhode Island Hospital, which holds its property for the charity, is more highly privileged than a corporation created for public purposes, which holds its property for such purposes; whether, in fact, because it holds its property for the charity, it is relieved from all responsibility for the torts or negligences of its officers, trustees, agents, or servants. We have come to the conclusion, after much consideration, that it is not. We understand the doctrine of the cases we have just been considering to be this: that where there is duty, there is, prima facie at least, liability for its neglect; and that when a corporation or quasi corporation is created for certain purposes which can not be executed without the exercise of care and skill it becomes the duty of the corporation or quasi corporation to exercise such care and skill; and that the fact that it acts gratuitously, and has no property of its own in which it is beneficially interested, will not exempt it from liability for any neglect of the duty, if it has funds, or the capacity of acquiring funds, for the purpose of its creation, which can be applied to the satisfaction of any judgment for damages recovered against it. We also understand that the doctride is that the corporate funds can be applied, notwithstanding the trusts for which they are held, because the liability is incurred in carrying out the trusts and is incident to them. We do not understand, however, that the corporate property is all equally applicable. For instance, in the case of Mersey Docks v. Gibbs it was not decided that the docks themselves could be resorted to, but only the unapplied funds which the board then had or might afterwards acquire. So in the case at bar; it may be that some of the corporate property-the buildings and grounds for example-is subject to so strict a dedication that it cannot be diverted to the payment of damages. But however that may be, we understand that the defendant corporation is in the receipt of funds which are applicable generally to the uses of the hospital, and following the decision in Mersey Docks v. Gibbs, we think a judgment in tort for damages against the corporation can be paid out of them. Indeed, we cannot see why these funds are not as applicable to the payment of damages for torts as to the payment of counsel for defending an action for such damages. Both payments are to be regarded as incident to the administration of the trust.

POTTER, J., concurring:

I concur in granting a new trial, but for reasonssomewhat different from those given by the other members of the court.

The plaintiff sues the defendant for maltreat