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certain bonds having nearly eighteen years to run, on testator's children and their descendants who might which a small premium had been paid. The case was be living at the time of the testator's decease, or that decided upon its own peculiar ciroumstances, which of the last of his children. The language used, as well 80 far as disclosed were held to show no special rea- as the declared purpose, shows that it is a gift in trust son why the tenant for life should not receive the in- for the benefit of those who should thereafter, througbterest paid on the bonds. The investment constituted out an indefinite period of time, being descendants of a very small proportion of a large estate, and Mr. Jus- | the testator, become destitute and in need of aid and tice Holmes remarked: “We have no occasion to support. The words import that the bequest is ultidoubt, that taking the whole administration of the mately to be administered by others than the trustees trust into account, the balance had been evenly held named, and that the testator has not sought to repose between the two parties, and the relation between the a special confidence in them exclusively, but to estabremainderman and life tenants is such that there is lish a permanent trust, for which trustees were ultiless call than might be in some other cases for treat- | mately to be appointed according to the ordinary rules ing the life tenant with great strictness.'"

of courts of equity. That such a gift is too reIt is thus apparent from the statement made by mote as tending to create a perpetuity, when it is to Judge Devens of what was decided in Hemenway v. be held for the benefit of those who may not have been Hemenway, that the life tenant was not required to living at the time of the testator's death, or that of make good the premiums paid. The fact that the his children, and who may not come into being until amount was small, and that the investment formed many years thereafter, cannot be controverted unless but a small part of a large estate, and the further fact it can be sustained as a public charity. Nightingale v. that there existed between the life tenant and remain- Burrell

, 15 Pick. 104; Brattle Square Church v. Grant, derman a peculiar relation, cannot affect the principle 3 Gray, 142; Sears v. Russell, 8 id. 86; Thorndike v. involved. Irrespective of all such considerations, the Loring, 15 id. 391. life tenant either is or is not bound to restore the de- The attorney-general has therefore been made a pleted principal to its original sum before the pre- party to this bill, as well as all the demandants of the miums were paid. The decision in that case was that testator. Jackson v. Phillips, 14 Allen, 539. he was not obliged to do it.

A public or charitable trust may be indefinite in du

GUY C. H. CORLISS. ration, and its general object or purpose, as indicated, POUGHKEEPSIE, N. Y.

being charitable, the application and selection of the particular objects or individuals who are to receive its benefits may be confided to those who are its trus

tees. That a gift should have this character, there WILL - TRUST FOR TESTATOR'S DESTITUTE must be some benefit to be conferred upon or duty to CHILDREN AND DESCENDANTS-PUBLIC be preferred toward, either the public at large or some CHARITY-PERPETUITIES.

part thereof, or an indefinite class of persons. If a

trust were created for the benefit of the poor of a parMASSACHUSETTS SUPREME JUDICIAL COURT.

ticular town or parish, or of persons of a speciJULY 6, 1886.

fied clsss or occupation, as seamen, laborers or mechanics, it would not be doubted that it would be good

as a charity. So if a sum were bequeathed, the income KENT V. DUNHAM.*

of which from time to time, or in the discretion of the A. bequest to trustees, their heirs and assigns forever, in trustees, was to be applied to the relief of the desti

trust, " to appropriate such part of the principal and in- tute by distribution of fuel or provisions, or in any
terest as they may deem best for the aid and support of other similar defined mode, or as the trustees might
those of my (the testator's) children, and their descend- deem most expedient, the gift would be enforced as a
ants, who may be destitute, and in the opinion of the trus- public charity.
tees need such aid,” will not admit of being construed as The gift in the case at bar is solely for the benefit of
a gift to the testator's children and their descendants who the children of the testator, aud their descendants.
might be living at the time of the testator's decease, or

The only public interest that there can be in connecthat of the last of his children. Such a bequest is not a tion with it is that where, as there may be hereafter public charity, and being too remote, as tending to create certain destitute persons, descendants of the testator, a perpetuity, is to be deemed invalid and without effect. who might otherwise become a public charge, they will

be entitled to relief from this fund. This legacy, it

will be observed, is readily distinguishable from one Dunham, deceased, praying that the will of the said Duubam be annulled and adjudged invalid and of by which the income of a fund is devoted to the poor

of a particular town or parish, preference being given no effect, so far as it contained a residuary clause,

to the descendants or the relations of the testator. In which clause, together with the facts, appears in the opinion. The defendants demurred to the bill. Hear- thus provided for only as a part of the poor who are to

such a donation there is a public object, as they are ing in the Supreme Court before C. Allen, J., who re

receive the benefit of the charity, altbough a preferserved the case for the full court.

ence is given them, on account of their descent or reR. M. Morse, Jr., and H. Dunham, for plaintiffs.

lationship, in its distribution.

There were certain English cases which, as the trusL. S. Dabney, for defendants.

tees contend, offered strong ground for holding this

legacy to be public charity. DEVENS, J. The gift to “Samuel Leeds and Josiah

In Attorney-General v. Bucknall, 2 Atk. 328 (1741), Dunham, Jr., their heirs and assigns forever, and to the survivors of them, and his heirs forever, in trust,

the point decided was that any person, though the

most remote in the contemplation of the charity, to sell, dispose of, invest and manage the same, and

might be a relator in an information in reference appropriate such part of the principal and interest as

thereto. The facts, as stated in the note, do not show they may deem best for the aid and support of those

that any question arose as to whether the bequest was of my children and their descendants who may be des

a public cbarity, the only inquiry apparently being titute, and in the opinion of the trustees need such

whether the relator was one of the poor relations who aid," will not admit of being construed as a gift to the

were the objects of the bounty. *7 N. E. Rep. 730,

In White v. White, 7 Ves. 423 (1802), it was held that

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BILL in equity by the plaintiffs

, heirs-at-law of Josiah

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a bequest to poor relations of two families for putting beggary, and thus from becomiug a publio charge. To out their children as apprentices, the duration of establish as a permanent charity a provision for a sin. which would have exceeded the limits allowed by law gle family, and thus, it may be, to prevent an indefiunless it was a public charity, might be executed by nite accumulation of property which might eventually putting out those who were then ready as apprentices. be solely for the benefit of the testator's heirs, and There was no discussion of the subject in the opinion those who claim under them, would be foreigu to the of the master of the rolls, Sir William Grant.

general principles of our law on this subject, and canIn Attorney-General v. Price, 17 Ves. 371 (1810), not be justified by so slight a prospective public beuthere was a direction lo pay £20 per annum to the tes- efit. tator's poor relations iu the county of Brecon, wbich The result is that the portion of the eighth clause of was held as a public charity, apparently upon the au- the testator's will which seeks to establish a trust in thority of Isaac v. Defriez, Amb. 595, and on the two-thirds of the residue of his estate for the benefit ground that it was entitled to have perpetual continu- of his children and their descendants “who may be ance for the benefit of a particular class of poor. destitute, and in the opinion of the trustees need such

In Gillam v. Taylor, L. R., 16 Eq. Cas. 581, it was aid," must be deemed to be invalid and without effeot. held that where the testator gave the residue of his Demurrer overruled. real and personal estate to trustees for investment in their joint names, and directed the interest from time to time to be paid to such lineal descendants as they might severally need, the gift was charitable, and INSURANCE LIFE AGREEMENT FOR PROthat it need not be distributed to those actually poor, POSAL AND ACCEPTANCE-MATERIAL but only to those relatively so, and thus that if all the

ALTERATION OF RISK BEFORE relations except one had £20,000 a year, and the latter

TENDER OF PREMIUM. £10,000 a year, he would be entitled. This decision is treated with but scant respect in Attorney-General v. Northumberland, L. R., 7 Ch. Div. 745, by Sir George

ENGLISH COURT OF APPEAL, MARCH 6, 1886. Jessel, M. R., where it is said that such a charity would only be good in favor of those actually poor. In

CANNING v. FARQUHAR.* this latter case the gift only gave prefereuce to the re- A proposal was made to an insurance company for an insurlations of the testator in the distribution of the in

ance on the life of the proposer, who made, on a form iscome of the trust fund to the poor, which was pro- sued by the company, statements as to his state of health vided for annually.

and other matters, and a declaration that the statements These cases do not fully sustain the position that the were true and were to be taken as the basis of the conlegacy here in question can be upheld as a public char- tract. The proposal was accepted at a specified preity. In all of them there were persons so situated as mium, but upon the terms that no insurance should take to be entitled to the benefit of the charity, so that an effect till the premium was paid. Before tender of the indefinite accumulation was not to be permitted in premium, there was a material alteration in the state of favor of a class which might never have an existence, the health of the proposer, and the company refused to or might never come into existence within any period accept the premium or to issue a policy. Held, that the of time when its connection with the testator could be nature of the risk having been altered at the time of the traced.

tender of the premium there was no contract binding the Bequests in favor of poor relations also are company to issue a policy. for a far more extensive class than descendauts. While the failure of issue, and thus the termination of A

PPEAL from the judgment of Pollock, B., for the the line of lineal descent, is comparatively common,

defendant on further consideration. the aucestors of every person are indefinitely numer

The plaintiff was the administrator of A. S. Canning, ous, and there can be no failure of collateral relations, deceased, and the action was brought against the deexcept such as may arise from the impossibility of trac

fendant as representing the Sun Life Assurance 80ing the descent of the testator.

ciety. The cause of action alleged was that the soWithout desiring to express any opinion as

ciety agreed with A. S. Canning in his life-time to in

to whether we should hold it to be our duty to follow the

sure bis life for one year on payment by or on his bedoctrine of these cases if the question presented by the half of the premium of 471. 188. 4d., but although the case at bar was fairly within them, the reasons why premium was tendered within one month of the aothe gift of the testator cannot be sustained as a public ceptance by the society, the time allowed for pay, charity appear to us entirely sufficient. It is the pol

ment thereof, yet the society refused to receive it, and icy of the law to prevent indefinite accumulation of repudiated the agreement, and refused to issue a polproperty for the benefit of individuals. The descend-icy or to pay on the death of A. S. Canning the sum

insured, or any of it. ants of the testator are now, and have been since his decease, in comfortable circumstances. Not only may

The facts were as follows: On the 8th of Dec., 1883, a long time elapse before any descendant will exist who

a proposal form was forwarded by one Walters to the can be termed “ a destitute person,” but such a time society. The form contained the usual questions that may practically never occur, as it may be at so distant

are put to proposing insurers duly answered by A.S. a period that descent cannot be traced, or the event

Canning, and a certificate signed by him that all the of the failure of descent from the testator may render

statements were true, that he was then in good health, it impossible that it should ever occur.

In the expec

and as to certain other matters, and a declaration as tation of the remote contingency that there shall be a

follows: “I, Alfred Samuel Canning, described in descendant who is a destitute person, the fund is to

the foregoing proposal, being desirous of assuring with be permitted to accumulate if the will of the testator

the Sun Life Assurance Society, the sum of 20001. with is followed. If the line of descent from the testator

profits on my own life, do hereby declare that the fails, it will have been accumulated for his heirs, it

whole of the statements made by me in the said promay be, in a remote generation. There is no general

posal are true; and this declaration, together with the public object sufficient to justify this accumulation in

certificate signed by me in the presence of the medthe possible advautage which the public may obtain by

ical examiner, is to be the basis of the contract behaving the descendants of the testator protected from

* 16 Q. B. Div. 727.

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tween me and the said society; and if any untrue aver- From this it follows that after the insurance com-
ment is contained in this declaration, in the state- pany have said that they accept the proposal, and that
ments made by me in the said proposal, or in the said if the premium is paid they will issue a policy,
certificate, then this contract shall be void and all although there is no change in the circumstances, and
moneys which shall have been paid to the said society all that has bappened is that they alter their mind,
upon account of the insurance made in consequenoe yet they are not bound to aocept the premium. I do
thereof shall be forfeited.” On the 14th of Decem- not shrink from saying that in my view of insurance
ber the actuary wrote to Walters: “The proposal to law there is no contract in such a case binding them to
insure 20001. with profits on the life of Mr. Alfred accept the premium. If so this action fails, because
Samuel Canuing has been accepted at the annual prem- tender is only equivalent to payment if the person to
ium of 47l. 188. 4d.” There was a note to the latter, whom the money is offered is bound to accept it. If
"No assurance can take place until the first premium the premium is offered and accepted there is at once
is paid." On the 7th of January, 1881, a letter was an insurance, and the year for wbich the insurance
written on behalf of the society to Walters, remind- runs oummences then, and if the policy is drawn up
ing him that, "unless the first premium is paid by the properly that will appear in it.
14th inst., Mr. Canuing will have to sign a certificate But then there is another view short of that. Sup-
of health," and adding, "on receipt of the premium posing it to be true that after all the terms are agreed
the policy will be prepared." In the meanwhile, on on, and the premium is offered, the company are
the 5th of January, Canning had fallen over a cliff, bound to accept it, when does the contract of insur-
and seriously injured himself. On the 9th of January ance commence? It commences at the time when the
Walters went to the office of the society, and tendered premium is offered, because in this case tender would
the premium, but at the same time he informed them be as good as payment. There is no insurance before
of the accident to Canning, and the premium was re- that, but only a contract to the effect, “If you will
fused. Canning died shortly after. The action was offer the premium we will insure." The only consid-
tried before Pollock, B., without a jury, and after eration any one can suggest for this contract is the
hearing arguments, on further consideration, judg- trouble the man takes to bring his money. What
ment was given for the defendant with costs. The then happens with regard to any previous examina-
plaintiff appealed.

tion or declaration of health, neither of which is maA. Churles, Q. C., and R. M. Bray, for plaintiff. terial unless the company insist upon it. This is maE. Clarke, Q. C., and Jeune, for defendant.

terial, that the person to be insured should not conR. M. Bray, in reply.

ceal any material fact, and that his statements, if he LORD ESHER, M. R. This seems to me to be a very

makes any, should be correct. In this case che declaimportant case in insurance law, and at the begin ration was a representation which was true at the ning of it I was much taken with the ordinary propo

time it was made. In insurance law that is not the sition that a proposal and an acceptance of that pro

material time, but the material time is the moment posal make a contract. Whether that is so or not de

when the insurance is made, and the representations pends on whether the one was meant to be a proposal,

ought to be true then. If there has been a material and the other an acceptance by way of contract, and

change there ought to be an alteration of the represenwe are bound to look further and see what was the

tation, and the ground for entering into the contract subject-matter. What is the contract of life assur

is altered. In this case the ground of the contract to ance? It is this, "Taking the life to be good at the

give an insurance being changed, it was not binding commencement of the risk I insure that life for a year

on the society at the time of the tender of the at a certain premium." Froin this it is apparent that

premium, and they had a right to say “the cirthe material moment for the agreement as to the state

cumstances are altered, therefore we will not inof health is when the risk commences, that is, at the

sure, even though if the circumstances bad not beginning of the year, for it is not denied that the been altered, they would have been bound by their agreement is only for a year. Now it is said that be

contract. It seems to me therefore that the appeal fore that year oommenced there was a binding agree

fails. In my opinion however the real ground for our ment to insure. But is it possible to say that when

decision is that the negotiations before the time when parties are discussing beforehand the conditions of the

the policy is effected are mere statements of intenrisk they mean to treat what they then say are the ex

tion, and that till the insurance company accept the isting facts as binding them when the moment to

premium they have a right to decline to accept the make the contract arrives? No one can bind himself

risk. as to the state of his health a short time bence, and a LINDLEY, L. J. This action is for damages for man who makes a statement as to his state of health breach of a contraot to grant a policy on the life of Camuot mean to be bound as to what it will be a month Canning, and the question is whether the Sun Office hence, weither can the person to whom the statement was bound to issue a policy. This turns, it appears to is made be taken to rely on it further than as it may me, on the question whether the office was bound to gvide him in acceptiug the insurance or not. These accept the premium which was tendered during the cousiderations show that all these statements which life-time of Canning. It is said the office was so bound are made preliminary to the moment of insurance are by contract, and we have to investigate this and see not considered by either party as contractual state- how it is made out. On the 8th of December Canments, but as expressions of intention on the one side ving sent a proposal to the office. In that there was to insure, on the otber to accept the risk. That seems nothing about the premium that would be payable; to me to be the view at which we must arrive looking with that document was a declaration of the truth of at this as a business transaction. Now there is no certain statements made by Cavning, which was to be case that supports affirmatively this view, but it is the basis of the contract. That was followed by the supported negatively by the fact that during all the usual reference to friends, and an examination by the years that life insurance has been known and prac- medical officer of the office. On the 14th of Decemi. ticed, there is no case in the books or known to any ber the office made a communication to Caming, oue in which an action such as this has been main- through Walters, that his proposal had been accepleui tained. These considerations are conclusive to my subject to payment of a certain premium. I pause mind that wbat was said was preliminary to the con- here for a moment to consider the effect of these tract of insurance, and was never intended by either negotiations. It was urged on the part of the plainparty to be a contract in itself.

tiff that there was then a complete contract binding

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the office on payment or tender of the premium to is

CARRIER-DELAY BY STRIKERS. sue a policy of insurance. It is true that there had been an acceptance of Cauning's offer, but he bad not

NEW YORK COURT OF APPEALS, JUNE 22, 1886. at this time assented to the company's terms; and until he assented to them there was no contract bind

GEISMER V. LAKE SHORE AND MICHIGAN SOUTHERN ing the compauy. The company's acceptance of Can

R. Co.* ning's offer was not a contract but a counter offer. Subsequently the premium was tendered, and I think Where delay in delivering freight is caused not by the rethere would be considerable difficulty, if there had

fusal of employees on a strike to return to work, but by been no change in the risk, in saying that the com

the unlawful and violent conduct of the strikers, after pany, under such circumstances, might decline to ac

they have abandoned the service of the company, defendcept the premium and issue the policy. Iu the case

ant is not liable. supposed the counter offer would be a continuing

PPEAL from order of General Term, fifth departoffer; the tender would be an acceptance of it, and the

ment, denying motion for a new trial, and from company would be bound to issue the policy. But the

the judgment ordered for plaintiff on the verdict. case supposed is not the case we have to deal with

Upon the trial of this action there was eridenice here, because another element is introduced by reason

proving or tending to prove these facts: Ou the 21st of the material change in the risk in the interval be- day of July, 1877, the plaintiff delivered to the defend. tween what I have called the counter offer and the

ant, at Toledo, in the State of Ohio, a large number of tender of the premium. If Canning had tendered the cattle and hogs, to be transported, within a reasonmoney and bad not informed the office of the altera- able time, over its railroad, to Buffalo in this State, tion in the character of the risk, he would have been there to be delivered to him. The usual and ordinary attempting to take advantage of an offer intended to

time for the transportation of such freight between cover oue risk in order to make it cover another risk

the two places Hamed was about twenty-five hours. not known to the office. In other words, if he had

The plaintiff's Cattle and hogs were started on a train paid tbe money without disclosing to the office the of defendant's cars for their destination, and were fact that his statements, which were true when he carried with reasonable dispatcb and without delay 80 made them, were so no longer, he would have done far as Collingswood, in the State of Ohio, where they that which would have been plainly dishonest. But arrived on the 220 day of July. Collingswood was a that was not done, the alteration was disclosed, and place where it was usual and customary for the dethe company refused to take the risk. I think they fendant to stop all its stock trains for the purpose of were perfectly justified in so refusing. It comes to

changing engines, engineers, firemen and crews emthis, there was no contract before the tender; and the ployed on such trains, and the train on which plainrisk being cbanged the company's offer could not tiff's stock was shipped, stopped there for the purpose fairly be regarded as a continuing offer which Cans of making such usual changes. ning was entitled to accept. His tender was in truth

When plaintiff's stock arrived there the defendant a liew offer for a new risk which the company were at

was willing and desirous to proceed and continue the liberty to decline. It appears to me therefore that carrying of the stock to Buffalo, and had all the necesthis action fails, and the appeal ought to be dis

sary cars, locomotives and employees to make up and missed.

manage the train; but it was presented from proceedLOPES, L. J. This is an action brought by the plaining immediately, and accomplishing in the usual time tiff, as the legal representative of a deceased person

the carriage of the stock to its destination in consewho endeavored to effect an insurance with the Sun

quence of a portion of its employees striking and reOffice, to recover compensation because they had not, fusing to run the train, or to permit others so to do. in accordance with an agreement they made, issued a

A few weeks prior to the arrival of the plaintiff's life policy. The plaintiff relies upon the proposal stock at Collingswood, the defendant made an order made by the deceased, and the acceptance by the reducing the pay of its enıployees engaged on its train, office. I think however that these amounted only to

and at its stations and shops ten per cent, and by reanegotiations. All that was done was preliminary and

son of such reduction many of the employees refused with a view to an insurance to be thereafter made, and

to work on the defendant's trains or to permit others no final contract between the parties was intended

to work who were willing to, and many of the firemen until the premium should be paid. I am fortified in and brakemen wbo had been in the defendant's emthis view by finding that in the acceptance itself is the ploy took forcible possession of some of the defenddeclaration that there is to be no insurance till the ant's evgines, and some of the fixtures of the engines first premium is paid. It appears to me that the true

and detached engine hose, let the water out of the entmeaning of this is that until the premium is paid no gine boilers, uncoupled cars, carried away and hid liability at all is to attach to the otlice. That being so

some coupling pins and links, placed the engines in when the premium was tendered, the office were jus- the round-house and barricaded the same. tified in refusing to accept it on the ground tbat no

The persous wbo took such forcible possession of the binding contract existed which compelled them to do property of the defendant were a great number (over 80. They were entitled to say that what bad taken

two hundred persous) the greater portion of whom place between the parties amounted to a negotiation

were firemen and brakemen who had been in the emonly, and that as there had been a change in matters ploy of the defendant up to the time of the strike on materially affecting the risk, they had a right to with

the 22d day of July, and were the controlling element draw their acceptance of the plaintiff's offer. If there had been no change of circumstances, and the pre- ant's trains at Collingswood. Such persons boldly and

of the force which prevented the moving of defend. mium had been duly tendered, I might have a difficulty defiantly refused to obey any of the orders of the dein saying that the office could have refused to issue

fendant's officers, and refused to permit any of the a policy, but that question does not arise, and I do not

defeudant's trains to be moved, and threatened quite wisb to express any opinion about it.

sons who should attempt to move any of the trains or

Appeal dismissed. cars until the demands of the strikers should first be
Solicitors for plaintiffs, Crowdy, Son and Tarry. complied with.
Solicitor for defendants, Ford, Ranken Ford, aud

The officers of the defendant made various attempts

*34 Hun, 50, reversed.

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to move trains from Collingswood, and placed on the from carrying on its business and continuing their trains employees who were willing to work and oper-| labor, and that it was effective and sufficient to preate the same; but they were prevented from moving vent those who were willing from going in the employ the trains by threats, and were compelled to desist of the company, and this combination was strong and from all attempts to move them from Collings. powerful, strong in its moral position, strong in its wood.

physical power to overmaster and control the situa. During all the time from the day the stock arrived tion, and prevent the company from bringing out its at Collingswood until it was finally reshipped, the offi- engines and starting out the trains, and so extended cers of the defendant exerted themselves with great from Cleveland to Buffalo, embracing Erie, it is no diligence to move the trains, and to induce and per- excuse for the delay, because if the strikers were the suade those who, up to that time, had been in the em- defendant's employees, they represented the defend. ploy of the defendant, to return to their places on the ant; they were its servants and agents, and their acts trains, and to permit the defendant to have the use were the acts of the corporatiou." and control of its property, the railroad and its fix- To all these portions of the charge defendant's countures; but they openly declared and announced that sel excepted; and he requested the judge to charge, they would do so only upon the condition that the “that if the jury believe from the evidence that the order of the defendant reducing the wages of the em- cattle were delivered in Buffalo at as early a day as ployees should be annulled, and the wages restored as was possible under all the circumstauces in the case, they were before the reduction: they also demanded they will find for the defendant;” “that if the jury the annulling of the rule requiring certain qualifica- believe from the evidence that on and after the 21st tions of engineers, and the removal of the general day of july, 1877, the railroad tracks, depots and rollmaster mechanic, and that 110 oue should be dis- | ing stock of the defendant were taken forcible possescharged for taking part in the riot; aud the strikers sion of by a body or bodies of armed men, among would bave disbanded and the late employees of the whom were some of its employees, and that they condefendant would have promptly resumed their em. tinued to hold possession thereof by force of arms for ployment with the defendant, and would have ceased several days, by reason of which the delivery of plainall force and violence to the defendant, its officers and tiff's stock at Buffalo was delayed until August 4, 1877, employees and would have allowed and restored to the plaintiff cannot recover;" "that if the jury bethe defendant the full and complete control of all its lieve from the evidence that under the circumstances property and its railroad bad their demands been ac- the defendant could not have moved the stock from ceded to; but the defendant refused to accede to the Collingswood to Buffalo previous to the time it did demands.

without endangering life and property, then that the There was a sufficient number of other competent defendant was justified in delaying the delivery of the workmen willing and ready to take the places of the stock until it was actually delivered;" "that if the strikers at such reduced wages, who could at any time cause of the detention of the plaintiff's stock arose have been so employed, and who would have moved from forcible resistance of the late employees of the defendant's train, except for the violent opposition of defendant, the defendant having at all times sufficient the strikers. After the strike had continued for a force of faithful employees to have operated and run period of eleven days it ceased, and all the late em- the defendant's road had it not been for such forcible ployees of the defendant, who were engaged in the resistance, then the plaintiff cannot recover; that strike, resumed work on the defendant's cars, and the if any of the employees of the defendant joined the defendant was restored to the possession of all its strikers, they ceased from that time to be employees property and railroad and fixtures so taken possession of the company, aud the defendant is not in any way of by the strikers; but the wages were not restored responsible for their acts." The judge declined to nor other concessions made by the defendant.

charge each of these requests, and the defendant's If it had not been for those who had been in the em- counsel duly excepted. The jury rendered a verdict ploy of the defendant up to the time of the commence- for the plaintiff. The defendant appealed to the Genment of the strike, the defendant could have over- eral Term, and from affirmance there to this court. come the resistance, and transported plaintiff's stock in due and ordinary time. As soon

D. H. McMillan, for appellant.

as the strike ceased, the defendant transported the plaintiff's

A. Moot, for respondent. stock to Buffalo, and there delivered it to the plaintiff, who took possession of it. The plaintiff suffered great EARL, J. We are of opinion that the learned trial damage from the delay, to recover which this action judge fell into error as to the rules of law of vital was commenced.

and controlling importance in the disposition of this The trial judge, among other things, charged the case. jury "that if the strike had its origin in the minds of A railroad carrier stands upon the same footing as the defendant's employees, that it began with them other carriers, and may excuse delay in the delivery of and terminated when they were ready to end it, and goods by accident or misfortune, not inevitable or that strangers, outside parties, joined them through

produced by the act of God. All that can be required sympathy or other cause, tho defendant is not exempt of it in any emergency is that it shall exercise due and the plaintiff may recover damages;”

care and diligence to guard against delay, and to for: whether the delay in bringing forward this train arose ward the goods to their destination; and suit bag because the defendant's engineers, brakemen and fire- been uniformly decided. Wibert y. New York & Erie men were on a strike, declining to work, and the com- R. Co., 1.2 N. Y. 245; Blackstock v. New York & Erie pany had not men to carry on its business, or that R. Co., 20 id. 48. they would not do it or suffer others to do it, even In the absence of special contract there is no absothough they were active in their resistance, although lute duty resting upon a railroad carrier to deliver the they committed violence if they were the servants or goods intrusted to it within what, under ordinary ciremployees of the defendant, nevertheless it is im- cumstances, would be a reasonable time. Not only putable to the defendant in this case; “that if the storms and floods and other natural causes may exdefendant's employees were willing to carry on the cuse delay, but the conduct of men may also do so. business, and other men, which have been mentioned, An incendiary may burn down a bridgo, a mob may sought to prevent those who were willing to work tear up the tracks or disable the rolling stock or inter

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