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CORRESPONDENCE.

of New York; James v. Cowing; Sprague v. Hosmer ;

The Philadelphia and Reading Coal and Iron Company LEGAL NOTICES IN SUNDAY NEWSPAPERS.

v. Hotchkiss. -Order affirmed, and judgment abso

lute for respondents on stipulation, with costs – Brush Editor of the Albany Law Journal:

v. Barrett; Mason v. Ludington; Dean y. De Wolf; In reply to the question of “M,” of Cleveland,

Hewer v. Dannenhoffer. Judgment reversed and whether a constructive service of legal process by pub judgment absolute for plaintiff on submission, with

costs lication in a Sunday newspaper is good, I send the fol

Faulkner v. Hart.-Judgment of General lowing cases: If a publication of a notice is, by stat

Term reversed, and that of Special Term affirmed, with

costs - Ritch v. Smith. Order affirmed, with costsute, required to be made for any number of days less than a week, a publication on Sunday as one of such

Monroe v. The Tradesmen's Fire Insurance Company. days is invalid (Scammon v. Chicago, 40 Ill. 146; Sewall

- Appeal dismissed, with costs – Elwood v. Roof; v. St. Paul, 20 Minn. 511; see Excelsior Ins. Co. case, 16 People ex rel. Waldman v. Police Commissioners of

New York. Abb. Pr. 8; State v. Wheeler, 64 Me. 532); but if the number of days be more than a week, neither its publication on the intervening Sundays (Taylor v. Palmer,

NOTES. 31 Cal. 240; Miles v. McDermott, id. 271; Carpenter v. St. Paul, 23 Minn. 232), although Sunday may be the first day of such publication (Cleland v. Tavernier, 11

THE November number of the American Law Revier id. 194), or the last (Savings Society v. Thompson, 32 Cal. 347), nor its omission on such intervening Sundays Validity of Statutes authorizing the accused to testify, (Kellogg v. Carrico, 47 Mo. 157) will avoid its legality;

and by Ernest Howard Crosby on Imputed Contribunor will there arise any presumption of law that such

tory Negligence of Third Persons. Mr. Crosby lays notice was published on Sunday (Jenks v. Chicago, 48

down three rules; first, contributory negligence of Ill. 296), so, a thirty days' notice of sale was held to be

third persons does not constitute a defense unless such good, although one of the three notices was posted on

negligence is to be imputed to the plaintiff; second, the inside of a post-office door, such office being open

the contributory negligence of a third person, who was only for two hours on Sunday (Graham v. Fitts, 53

guilty thereof as the agent of the plaintiff, must be Miss. 307; see Osgood v. Blake, 1 Fost. 550).

imputed to the plaintiff; third, a plaintiff, who derives A contract for a Sunday advertisement is void.

his cause of action from an injury done to a third perSmith v. Wilcox, 19 Barb. 581 ; 25 id. 341; 24 N. Y. 353;

son, is chargeable with the contributory negligence of Sheffield v. Balmer, 52 Mo. 474. Whether there can be

such person. In the October number of the Southern a waiver of such irregularity in process. Morgan v.

Law Journal and Reporter is a leading article by Frank Johnson, 1 H. Black. 6:28; Taylor v. Phillips, 3 East,

Fuller on Eloquence of the Bar, and a sketch, by J. 155; Vanderpoel v. Wright, 1 Cow. 209; Wright v. Jef- M. Whitehead, of Benjamin F. Porter, deceased, once frey, 5 id. 15; Gould v. Spencer, 5 Paige, 541; Pierce v.

reporter and afterward judge of the Alabama Supremo Rehfuss, 35 Mich. 53; Rheem v. Carlisle Bank, 76 Penn.

Court. Also an excellent sketch of the late Judge St. 132.

Manning. -The second volume of the Federal ReA mistake in dating process, etc., on Sunday may be porter, by the West Publishing Co. of St. Paul, conamended. Boyd v.Vanderkemp, 1 Barb. Ch. 273; York tains causes decided from May to July, 1880, covering v. Ackerman, Penning, *900. See, also, Cotton v. Huey, 1,000 pages. It is a well-executed and very valuable 4 Ala. 56; Marshall v. Russell, 44 N. H. 509; Haines v.

publication, and little short of indispensable to every McCormick. 5 Ark. 663.

J. H. S.

well-provided lawyer. TRENTON, N. J., Oct. 30, 1880.

Vice-Chancellor Bacon, the oldest of the English Editor of the Albany Law Journal:

judges, was raised to the Bench iu 1870, and his present In Illinois, at least, a constructive service of legal age is 82. The following are the particulars relating to

the other judges : process by publication in a Sunday paper is not good, for the same reason that actual service of a writ on the

Raised to the Present Sabbath day would be of no effect, Scammon v. Chi

Bench.

Age.

1875 Baggallay, L. J.

64 cago, 40 IlI. 146. Your Cleveland correspondent, “M,"

Bramweil, L. J..

1856 may find in this authority an answer to his query in

Brett, L. J...

1868 your number of October 30, 1880.

Cockburn, L. C. J

1856

78 Yours truly, W. J. CULVER. Coleridge, L. C. J..

1873 CHICAGO, Nov. 1, 1880.

Cotton, L. J..

1877 Denman, J..

1872 Field, J....

1875 NEW YORK COURT OF APPEALS DECISIONS. Fry, J...

1877 Grove, J..

1871 Hall, V. C.

1873 HE

1868 Nov. 9, 1880:

Hawkins, J.

1876 Huddleston, B....

1875 Judgment affirmed with costs Hurt v. Taylori James, L. J..

1869 Solinger v. Earle; Foose v. Whitmore; Wilson v. Law- Jessel, M. R.

1873 rence; Hooley v. Gieve; Roe v. Barker; Ormes v. Lindley, J.

1872 Dauchy; People ex rel. New York Elevated Railroad Lopes, J.

1876 Lush, J.

1865 Company v. Commissioners of Taxes of New York ;

Malins, V. C...

1866 The Lacustrine Fertilizer Company v. The Lake Guano | Manisty, J...

1876 and Shell Fertilizer Company; Hunt v. Purdy; Frieberg Phillimore, Sir R.

1867

70 v. Branigan, People ex rel. Westray v. The Mayor of Pollock, B.

1873 New York; Lowenstein v. Flauraud; Pierson v. Morch; Stephen, .

1879

51 Van Beil v. Prescott. — Judgment reversed and new

Bowen, J..

1879

45 trial granted, costs to abide event - Pardee v. Treat; | From this list it will be seen that there are eight Pakalinskey v. The New York Central and Hudson judges who have attained seventy years and upwards, River Railroad Company; Hatch v. The Mayor, etc., and eight whose age exceeds sixty.

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The Albany Law Journal.

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Congress. He charged the jury on the question of the plaintiff's character for chastity, that the same

principles of law were to be applied to women as to ALBANY, NOVEMBER 20, 1880.

men in determining whether the exclusion was law

ful or not. That the social penalties of exclusion of CURRENT TOPICS.

unchaste women from hotels, theaters, and other

public places could not be applied to common carHOME one has kindly sent us a recent number of the riers; that they had a right to travel in the streets Daily Memphis Avalanche. We opened the sheet

and on the public highways, and other people who with some trepidation, for the reputation of the

travel must expect to meet them in such places; and newspaper in this part of our country had made us as long as their conduct was unobjectionable while apprehensive of some concealed Greek fire, dynamite, in such places, they could not be excluded. The or other explosive or inflammatory substance. To

carrier is bound to carry good, bad, and indifferent, our surprise we found the Avalanche a very calm and

and has nothing to do with the morals of his pasdignified journal, uttering political sentiments which sengers, if their behavior be proper while travelling. might well have emanated from the New York Tri- Neither can the carrier use the character for chastity bune. It also brought us an item of legal news which of his female passengers as a basis of classification, that at least in some parts and in some courts

so that he may put all chaste women, or women who argues of the South, colored folks have rights which white

have the reputation of being chaste, into one car, people respect. Jane Brown, a colored woman,

and those known or reputed to be unchaste, in anbought a ticket entitling her to a first-class passage

other car.

Suchi a regulation would be contrary to from Corinth to Memphis, on the Memphis and

public policy, and unreasonable. It would put every Charleston railroad. She took her seat in the woman purchasing a railroad ticket on trial for her ladies' car; the conductor ordered her to go forward

virtue before the conductor as her judge, and in into a smoking and emigrant car; she refused to go,

case of mistake, would lead to breaches of the and thereupon she was ejected with great violence. peace.

. It would practically exclude all sensible and She brought suit for damages in the Federal Circuit sensitive women from travelling at all, no matter Court, and a jury of white men awarded her $3,000.

how virtuous, for fear they might be put into, or The defense was first, that the plaintiff was an un

unconsciously occupy, the wrong car.

So far as chaste person; second, that under the law of Ten- heard from, therefore, Jane Brown's body is marchnessee a carrier may refuse to carry any person at

ing on. pleasure. It was conceded that on the occasion in

A correspondent asks us what we say as to the question her conduct was proper, and that the rail

case of Reed v. N. Y. Cent. R. R. Co., 45 N. Y. 574, road company had no regulation making discrimi

in view of our third conclusion in regard to declaranation on account of color.

tions of injured parties, ante, 365. That conclusion was

as follows: “Complaints and statements of the injured The statute in question abrogated “the rule of as to his present physical condition, although the common law giving a right of action to any per- subsequently to the occurrence and indeed after suit son excluded from any hotel, or public means of is brought for the injuries, are admissible, whether transportation, or place of amusement." It also en- made to a physician or to one who is not an expert." acted that “no keeper of any hotel or public house, In the case referred to, the syllabus states that it or carrier of passengers for hire, shall be bound to was held that “the evidence of the plaintiff, in his entertain, carry, or admit, any person whom he own behalf, that at the time this labor was being pershall, for any reason whatever, choose not to enter- formed, he declared to a person casually present, tain, carry, or admit, to his house, hotel, carriage or and with whom he had no business relation, that he means of transportation, or place of amusement; felt ill, was inadmissible, either to controvert the nor shall any right exist in favor of any such person defendant's proof or to show statements of his own so refused admission; but the right of sứch keepers out of court consistent with his testimony.” We of hotels, carriers of passengers and keepers of say that this is not inconsistent with our conclusion: places of amusement to control the access and ad- first, because it was the plaintiff's own testimony as mission or exclusion of persons to or from their pub- to what he had said, and not the testimony of others lic houses, means of transportation and places of as to what he had said; or as Judge Allen put it, amusement, shall be as perfect and complete as that it was “the unsworn statement of the plaintiff;" of any private house, carriage, or private theater, or it was not the best evidence from his own mouth; place of amusement for his family." Judge Ham- "the plaintiff,” said Judge Allen, “was a compemond charged the jury that this act of the Legisla- tent witness to prove the state of his health at the ture, so far as it abrogated the common-law right of time," "and it was not necessary to resort to other action for wrongful exclusion from railroad cars on and inferior evidence; and so long as his sworn roads running between two or more States, was un- statements were admissible, his unsworn declaraconstitutional, because it was a regulation of com- tions should not have been received." This certainly merce between the States, which the Legislature is as far as the decision could go, for it did not inhad no right to make, the exclusive right to make it volve the proof of the declarations by the testimony being by the Constitution of the United States in of third persons. This, we think, serves to distin

VOL. 22.- No. 21.

guish the case. But, second, at all events the decis. Judge Davis' virtues, talents, and public services as ion was not put on this ground by a majority of the anybody, but this partisan exhibition on the bench court, for only three judges concurred in this view, is not greatly to his credit. If he wants to denamely, Allen, Grover and Rapallo, while Folger, J., nounce Mr. Hewitt's conduct, let him hire Cooper was for reversal on another ground, in which Ra- Institute, or publish a pamphlet. This is his right, pallo, J., also concurred; Church, C. J., and Peck- and he would have plenty of sympathizing hearers ham, J., dissented, and Andrews, J., did not vote. or readers. But the present is not the way to comSo the case is not of much authority on this point. mend himself to men who love fair play and abhor Third, if Judge Allen meant to exclude proof by judicial partisanship. It is entirely outside the third persons, not expert, of the plaintiff's declara- much-abused judicial privilege of commenting on tions, his theory that there is no necessity for such the conduct and demeanor of witnesses. The imevidence because the plaintiff himself could testify propriety of this present utterance is emphasized by as to his state of health, we think, is erroneous, and the fact that the judge committed an important erherein we agree with the dissenting judges. ror in stating the testimony upon which he arraigns

Mr. Hewitt, and is forced to descend to an explanaAs our Court of Appeals are about to take posses

tion in the newspapers.

The public do not like this sion of their chamber in the new capitol, we are re

sort of conduct in a judge. The physical, moral, minded that new accommodations for our lower

and political world will continue to revolve very courts are soon to be provided in the city hall, which

well without the interference of judicial busy

bodies. is to take the place of the old edifice burned last winter. We know nothing of the plans of the new building, but we hope that every thing will not be

The meeting of the New York State Bar Associasacrificed to exterior and interior display, but that

tion on Tuesday last was even more slenderly atwe shall have rooms where people can see, breathe,

tended than usual, and the exercises, on the whole, and hear. It is of slight consequence that nobody

were of less than ordinary interest. Even the supcan be heard in the assembly chamber of the new

per in the evening did not attract the usual number. capitol, but hearing is of great consequence in a

We have concluded that the lawyer is not a convencourt room. Light and ventilation too are important

tional animal. The principal matter of interest in matters. In recent architecture, while there is a

the morning session was an elaborate report by Mr. decided revival of good taste, there is a tendency to Delafield, of New York, denouncing legislative dissink the utilitarian in the esthetic, and to give us

crimination in favor of our law schools, and seeking beautiful medieval caves where we should have

to put the Harvard, Yale, and Virginia law schools simple rooms. Our profession demand a little con

on the same footing in our State as our own. The sideration for themselves, as well as for the judges,

former branch of his suggestions was adopted, the jurors, suitors, and spectators, and must have natural

latter discarded. While we are by no means strenlight enough to see to read at mid-day, air that will

uous about having law school graduates admitted not poison, and acoustic properties that will enable

on motion, believing that the courts are quite at libthe occupants of the rooms to hear and be heard

erty to amuse themselves with their present farcical without painful effort. Let the money be spent on

examinations, yet if there is an advantage in a law these points, rather than on carvings, paintings, til

school education over that to be derived from mere ings, and costly masses of materials.

reading in an office, it would seem fair to make some discrimination, in point of the term of study, in fa

vor of the law schools. We regretted to hear Mr. However men feel about Mr. Hewitt's conduct, Delafield read the sentence in the late Chief Judge as a politician and a man of honor, in the Chinese

Church's letter, to the effect that law school manletter case, there can hardly be any difference of

agers run the schools simply to make money. That opinion among the bar as to the rebuke adminis

declaration is a great injustice to such men as Judge tered to that gentleman by Judge Davis in his re

Dwight and Judge Dillon, of Columbia, and the cent decision. It seems to us a very unnecessary late Senator Harris and Amos Dean, and Judge and undignified, not to say improper, performance.

Parker, formerly of the Albany Law School; and If Mr. Hewitt was guilty of any crime, it was Judge especially to the late Chief Judge's eminent calDavis' duty to hold him for that crime. If he had league, the late Judge Allen, who used to come down not been guilty of any crime, Judge Davis had no

from the bench to deliver lectures before the Albany duty in the premises, with respect to him, The

Law School. people have not yet constituted Judge Davis their Cato, nor their model of deportment. He has as The annual address, by Mr. George W. Biddle, of little right to promulgate his opinion on such points Philadelphia, was a vigorous, exhaustive, and adfrom the bench as we have to do so in this JOURNAL. mirably expressed essay on the proper office and This is not the first time, even in this case, that he limitations of Retrospective Legislation. Mr. Biddle has thought it important to the public to "put produced an excellent impression upon our bar, by himself on the record,” from the bench, on purely his learning, modesty, and amenity, and his address public or political affairs. We are glad to know was listened to with great interest and profit. To that in this instance bis conduct has not cost the his remarks, at the supper, in favor of a substantial victim any thing. We have as high a respect for life tenure for judges, we cannot give our adhesion,

IN

for if we have a good judge we want to compliment rare, and but few persons have been found willing him by a re-election, and if we have one who is not to contemplate such a union.”' " The fact that margood, we do not want to suffer him for life. riages between persons so related are so commonly

prohibited by legislation in those communities

which are most advanced in moral and intellectual The only essays read were one by Mr. Edward E. Sprague, of Flushing, on Law and Lawyers in

progress, must be deemed high evidence of the genShakespeare, and one by Mr. Joshua Gaskill, of erally prevailing sentiment on the subject. Whether Lockport, on Exemption of Personal Property from this sentiment finds its origin in the mandate of diExecution, both highly creditable productions.

vine law, or a belief that such unions are a violation of the physical laws of nature, or in the con

viction that to tolerate such alliances would impair Judge Andrews, of the Court of Appeals, spoke the peace of families and lead to domestic licenstrongly at the dinner in favor of limiting appeals to tiousness, its existence must be acknowledged and that court, and against what he called a double

traced to some or all of these sources. The statheaded court." We have no dread of a “double

utes of Henry VIII, prohibiting such marriages, are headed court,” if we can get seven other heads as

but a reaffirmation of the Levitical law. Regina v. good as those of the present judges. It might be

Chadwick, 12 Eng. Jour. 174. While the Levitical difficult to find them, but we have faith that they law is not binding as a rule of municipal obedience, might be found, and that if added, or rather sub

it has been judicially declared to be a moral prohijoined, to the present court, they would not consti- bition, and as such, binding upon all mankind (Hartute a monster of dreadful mien. We shall give rison v. Buswell, 2 Vent. 9), and is now incorporated a fuller report of the meeting next week. It is im

into the statutes of England by the acts of 5 and 6 portant to say that while the attendance at these

William IV, ch. 54. In Illinois it is held that such meetings is small, the membership of the association

a marriage is prohibited by the laws of God,' is increasing, and that the association is becoming within the meaning of a statute of that State. a wealthy corporation.

Bonham v. Badgley, 2 Gilm. 622. In Parker's Ap

peal, 44 Penn. St. 309–312, the court, while holding NOTES OF CASES.

that such a marriage was not void under the laws of

Pennsylvania, took occasion to say: 'We cannot reN Campbell v. Crampton, United States Circuit frain from stating that such connections are destructCourt, Northern District of New York, May,

ive of good morals, and should be frowned upon by 1880, 2 Fed. Rep. 417, it was held by Wallace, D.

the community.' Between what degrees of conJ., that while under the laws of New York a mar

sanguinity the line is to be found, which determines riage between nephew and aunt may not be voidable

what marriages are unobjectionable and what are for consanguinity, an agreement to marry between

not to be tolerated, it is not necessary to decide, parties so related, and living in a State where such but the better opinion would seem to be that marmarriage is incestuous, will not be tolerated, nor

riages should not be sanctioned in any nearer dedamages permitted to be recovered for the breach gree than that of cousin-german. A marriage thereof, in the courts of New York. The marriage between uncle and niece, or nephew and aunt, agreement was made in Alabama, where such mar

would certainly shock the sentiment of any enlightriages are by statute declared incestuous, and the ened community, and this, in the absence of any intention of the parties was to reside there after

other test of the propriety of decency of things, marriage. The court first pronounce that the con

should be accepted as controlling. It can hardly be tract is to be construed by the place of perform- doubted that if the parties here had become husance, and that this, in the case of a promise of mar

band and wife, they would have been regarded as riage, is the place where the parties intended to live joined in an unnatural union, and as victims of a in marriage, which in this case was Alabama. Cit- corrupt moral taste, to be pitied and avoided, if not ing Scudder v. Union Nat. Bank, 1 Otto, 406; Sotto

as objects of detestation; and in this view the meyer v. De Barros, 20 Alb. L. J. 450. The court plaintiff may consider herself fortunate that she examine the question whether such a marriage

has been saved from such a future by the selfish and would be void or voidable in this State, and answer

perfidious conduct of the defendant.” it in the negative. The court proceed: "Notwithstanding the extensive research of coun

unsel, no case What constitutes a “riot " was defined in Lycomhas been found which determines whether an agreeing Fire Insurance Co. v. Schrenk, Pennsylvania Sument for a marriage between a nephew and aunt is preme Court, June 14, 1880, 37 Leg. Int. 426. This obnoxious as contravening morality or public policy. was an action on a fire policy. A breaker at a coal Such marriages are expressly prohibited by the civil mine was set on fire at night by a party of men, law, by the laws of England, and by the statutes of who fired several shots, drove the watchmen away many of our own States.” “It is not improbable and then burned down the breaker. Held, that this that the question has not been presented to the was a riot within the provisions of the policy of incourts of the States where there is no statutory pro

The court said: “We are decidedly of hibition, because such marriages are felt to be so the opinion that in the foregoing testimony every unnatural and revolting that they have been very element of riot is found, whether at common law or under an act of 1705. There was the unlawful as- although having power to employ men or represent semblage of three or more persons, combined to- the master in other respects, is, in the management gether to perpetrate an outrageous and violent of the machinery, a fellow-servant of the other opcrime. The commission of the crime was immedi-eratives. Albro v. Agawam Canal Co., 6 Cush. 75; ately preceded by numerous discharges of fire-arms. Wood's Mast. & Servt., § 438; also SS 431, 436, 437. Two peaceable citizens, engaged in watching and On the same principle, however low the grade or protecting the premises — placed there for that pur- rank of the employee, the master is liable for inpose were compelled to flee therefrom in terror of juries caused by him to another servant if they retheir lives. The crime was arson, one of the most sult from the omission of some duty of the master odious known to the criminal law. It was com- which he has confided to such inferior employee. mitted at a late hour of the night, when the great, Flike case, 53 N. Y. 549. The liability of the masmajority of persons are in their beds and asleep, ter depends upon the character of the act in the and least prepared to defend themselves or their performance of which the injury arises, without reproperty. It is an offense having a more natural gard to the rank of the employee performing it. If and necessary tendency to put whole communities it is one pertaining to the duty the master owes to in fear and terror than almost any other. In this his servants, he is responsible to them for the maninstance it was accompanied by the voices of men ner of its performance. The converse of this necescalling for wood and oil, with which to apply the sarily follows. If the act is one which pertains fire, by the loud and appalling noise of exploding only to the duty of an operative, the employee perweapons of destruction, and the criminals them- forming it is a mere servant and the master, although selves were a band of men whose numbers could not liable to strangers, is not liable to a fellow-servant be determined on account of the darkness of the for its improper performance. The doctrine in night. For a court, in charging a jury, to speak of Mullan v. Phila. & South. Mail Steamship Co., 78 such an occurrence as any thing less than a riot of Penn. St. 25; S. C., 21 Am. Rep. 2, sustains this the most marked and distinct character, would be proposition. Accordingly, where B. who represimply to mislead them. We think the learned sented the employer as financial agent or superinjudge of the court below, in his comments to the tendent, overseer, or manager, and stood in his jury, dealt quite too leniently with the plain and place, held, that he did so only in respect to these undisputed facts of the case. He said to them that duties, which the employer had confided to him; as to prove a riot there must be a previous unlawful to other acts about the employer's place, he was a assemblage, accompanied with circumstances of mere employee. And where he turned on steam he force and violence, and that if the assembling of performed the act of a mere operative, and the empersons be not accompanied with such circumstances ployer would not be liable to a fellow-employee for as these, it cannot be deemed a riot, however unlaw- an injury caused by that act. In the opinion writful the acts which they actually committed.' From ten by Rapallo, J., Folger, C. J., and Andrews and this the jury would naturally infer that unless the Miller, JJ., concurred, while Earl, Danforth, and proof went back to the time when the men first met Finch, JJ., dissented. The Mullan case supports together, and established that such original meeting this doctrine, but in Berea Stone Co. v. Kraft, 31 was attended with circumstances of actual force and Ohio St. 237; S. C., 27 Am. Rep. 510, the contrary violence, a case of riot could not be made out, no was held. There a foreman temporarily assisted a matter what acts of outrage and violence were sub- laborer in the master's employ in fastening a hook sequently perpetrated. Such is not the law as we to a stone, and owing to the foreman's negligence understand it, and we consider it error to say or to the plaintiff sustained an injury. The master was intimate that it is, to a jury charged with the trial | held liable. The court said: " Where the master, of such a case.” The latter view is sustained by or one placed by him in charge of men engaged in the authority of Chief Justice Holt, in 11 Mod. his service, personally assists or interferes in the 116, and by V. S. v. Macfarland, 1 Cr. C. Ct. 140. labor being performed under his direction and conIt is not necessary that the act should be unlawful. trol, and is, while performing such labor, or interState v. Brooks, 1 Hill (S. C.), 361; Kiphart v. State, fering with its performance, guilty of negligence 42 Ind. 273; nor that it should be done by the riot- resulting in an injury to one engaged in such serers themselves, if they assembled to do it. Newby vice, there is no sound principle of law that will v. Territory, 1 Or. 163.

surance,

excuse or exonerate the master from liability. Or

Holland, 96 Eng. Com. Law, 102; Shearm.

& Redf. on Neg., § 89 et seq.; Wharton on Neg., § In Crispin v. Babbitt, New York Court of Appeals, 205.” “If the act done by him had been done unSept. 21, 1880, it was held as follows: The liability der his direction, as he did it by one of the emof a master to his servant for injuries sustained ployees of the company, its liability could not be while in his employ, by the wrongful or negligent doubted, and for the reason that the negligent act, act of another employee of the same master, does although committed by the hand of another, was, not depend upon the doctrine of respondeat superior. in law, the act of the foreman, and consequently the The liability of the master does not depend upon act of the master. And it could be no less the act the grade or rank of the employee whose negligence of the master when performed by the foreman in causes the injury. A superintendent of a factory, person.”

mond v.

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