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than twelve men is good unless the defect is waived by the party against whom it is rendered; while in a trial for felony the right to have the verdict returned by exactly twelve men is a right which the accused, according to some decisions, is incapable of waiving.

The arguments against the system are generally the following: The plan of committing the decision of the facts in litigation to a large number of men drawn from the body of the community, inxeperienced in the sifting of evidence, unacquainted with the artifices of advocacy, is, when considered by itself, one of the most clumsy and artificial that can be devised. Worse tribunals have existed, it is true, in the course of civilized history.

The Anglo-American trial by jury is one degree better than the trial by the Athenian Areopagus. A trial by a limited assembly of men elected for the particular occasion is preferable to a trial before the general public, just as a representative body is superior for legislation to an assembly of the entire mass of freemen or voters. The general superiority of a trial before a judge who is trained to the sifting of evidence, experienced in the habits of witnesses, and strongly disciplined in mind, over a trial before an accidental body of twelve men, taken temporarily from their business, acting under a feeling of restraint and awkwardness which springs from being placed in a new situation, suffering in their private affairs and anxious to return to them, must be apparent upon the least reflection. Observe the difference between the methods employed by advocates where the trial is before a jury and where it is before a judge. The former is very commonly-where advocates of a certain class are employed-characterized by attudinizing before a jury; disingenuous offers of incompetent evidence which it is known beforehand the judge will exclude, and which evidence the counsel could not produce if it were admitted; side bar remarks, looks and gestures; attempts to excite sympathy on the one hand or prejudice on the other.

An argument before a jury is in many cases of such a character that it would be an insult if delivered to a judge sitting as a trier of the facts. The experience of civilized men has convinced them that the highest success results from a division of labor, whereby men become highly expert in particular departments of human effort. Accordingly, in order to achieve the best results in any given department of human effort, the particular work must be committed to those who are experts in such work. This rule is universal; but it is ignored in the system of trial by jury. That system, when analyzed and applied to complicated transactions or controversies, is as absurd as it would be for the owner of a ship, which required a crew of twelve men, to choose for that purpose a lawyer, a doctor, a clergyman, a merchant, a banker, a carpenter, a shoemaker, a farmer, a capitalist, a vagrant, a saloonkeeper and an astronomer; and putting this motly crew under the direction of one man, experienced in navigation, but unacquainted with the particular ship, should turn it adrift and trust to Divine Providence for a safe voyage.

We have in our judicial system two forms of trial, trial by judge and trial by jury, standing side by side, and undergoing constant comparison with each other. In causes for equitable relief, in cases of admiralty and divorce, and such as belonged to the ancient ecclesiastical court in England. the trial is by the judge. In civil actions for damages the trial is by jury. Now whatever arguments may be put forth concerning the merits and demerits of these two systems as they thus stand side by side inviting comparison, this conclusion cannot be gainsaid, that there is no such fundamental difference between the jurisdiction of the different courts, no such difference in the questious of fact

brought before them in civil suits as to produce any essential or necessary difference in the methods by which either tribunal must proceed to ascertain controverted facts.

In point of law the rules of evidence are in general the same in the different classes of judicatories. This being so, it can scarcely be possible in the nature of things, when the wide difference in the character and experience of the triers of the facts in these two classes of judicatories is considered, that the results achieved by those of one class are not better than the results achieved by those of the other class. That is a proposition which public opinion ought to face and consider. Now if the results, or in so far as the results of trial by judge are better than the results of trial by jury, the good of society requires that trial by judge be extended and that trial by jury be curtailed. On the other hand, if the results of trial by jury are better than those of trial by judge, the good of society requires that trial by jury be extended and that trial by judge be curtailed. The system which a sufficient experience has shown to be better than the other ought to displace the other. If the voice of the bar could determine the matter, there is scarcely a doubt what that voice would be.

In those States where, except in certain proceedings, a choice is given to litigants to bring their actions in chancery or at law, as for instance, in the State of Tennessee, the courts of law are neglected and the courts of chancery are overrun. Trial by judge is a favorite mode of trial by good lawyers, and trial by jury with poor lawyers, with disingenuous lawyers, with lawyers who resort to low subterfuges and to unconscionable means of obtaining the desired result in a pending litigation. A litigant who has a good cause, which he feels sure is founded in justice, will generally prefer to submit it to a judge of candor and reputation than to submit it to the accidents of a jury trial. If the grounds of the popular affection for trial by jury were analyzed, it is believed that the most substantial reason for preferring this tribunal is that there is in every community a class of people who do not favor a rigid execution of the laws. They love the jury system, because this mode of trial is a negative upon the execution of the laws in what are deemed to be hard cases; because it is a sort of popular pardoning power, where twelve men, in violation of their oaths, may render a verdict against the law and the evidence. This affectionate regard for jury trial is most conspicuously displayed in cases where murder is committed to avenge wrongs done against family or domestic honor, and where, according to a loose public judgment, 110 punishment ought to be inflicted, although the crime is denounced by the law of the land. Instead of committing the dispensation of pardon exclusively to the executive, where it is lodged by the Constitution, it is by this system committed also to twelve men of the neighborhood, who dispense it in violation of the oaths which they take at the commencement of the trial. If may well be believed that if the reason, why so many continue to prefer this clumsy and otherwise unsatisfactory mode of ascertaining the facts in litigation, were carefully analyzed, one reason would be found to be that the trial by jury is a popular negative upon the execution of the laws. This reason is never expressed in so many words, but it is continually implied by eulogists of the system in the statement that in every period of English history the jury has been found a bulwark against executive tyranny. That is no doubt true. The jury has been found a bulwark against executive tyranny in former times, and it has been found a bulwark against executive effort in later times to enforce the laws. In our system of government, Federal and State, where the powers of government are carefully divided, where the

executive power is committed to magistrates chosen for short periods of time, whose duties are defined by written constitutions and checked by a powerful judiciary, the necessity for upholding this species of trial upon the idea that it is a bulwark against executive tyranny does not in fact exist.

Such are the arguments against the system. On the other hand, we are confronted with the fact that the institution has been established for many ages, is grounded in the affections of the people, gives them

to him by either counsel, though he has the power to draw written instructions of his own motion. These instructions are read to the jury, are then handed to them and are taken by them to their room upon their retirement to consider of their verdict.

SHALL THE PATENT LAWS BE REPEALED?

an interest and an insight regarding the workings of BY virtue of the constitutional provision, patent laws

their government, is a bulwark against the partiality of judges, and generally does lead to just verdicts when held before competent judges.

These observations are made, not with any expectation that trial by jury, even in civil cases, will be done away with in our day. It is not possible now, it may never be possible, even in such cases, to discontinue it altogether. But the observation may be useful in considering the formation of the jury and the regulation of its functions, and those of the judge, and in limiting the cases in which it may be required; in all which respects the different States do now very much differ.

The

In some of the New England States the jurors for both the grand and trial juries are chosen annually in the town meeting, and are generally persons of some training for such a function. In other States the list commonly includes the greater portion of males of full age. The exemptions which may be claimed are many in number. It so happens therefore, that what with the admissions and what with the exemptions, juries do not, in general consist of the citizens best qualified for the service. If there be such diversity in the qualifications of juries in the different States, there is greater in the regulation of their functions. English system rests upon the idea that it is the office of the judge to declare the law and the office of the jury to find the facts. But at the same time the inexperience of the jury is aided by the experience of the judge, in so far that the judge not only declares the law to them, but he sums up the evidence and gives them his opinion of its weight and bearing, cautioning them at the same that they are not bound by his opinion, except as to questions of law; in other words, under this system it is the office of the judge to instruct the jury as to the law, and it is his privilege to advise them as to the facts. Where this practice exists, a judge of candor and ability, who attends to the evidence given upon the trial, will have little difficulty in bringing the minds of the jury to a just result.

This practice exists in the courts of England, in the courts of some of the older States of the American Union, and in the courts of the United States. If the jury system is to retain any of its ancient favor, the power of intelligent and experienced judges to control its workings, so as to secure just results, must be maintained, where it still exists, in full force aud vigor, and restored where it has been curtailed or denied. But in the courts of many of the newer States of the Union the judge is prohibited by constitutional ordinances or by statutes from giving the jury the benefit of his opinion upon questions of fact. In some States the law has gone even beyond this. The judge is prohibited from summing up the evidence, lest in doing so he should give to the jury intimations of his opinion as to what their verdict should be. Nay, more, he is prohibited from charging them orally, but is required to give them instructions in writing, and in one State at least the law has gone to the extreme of requiring the judge to charge the jury in writing before the counsel argue the issues of fact to them. In that State the judge delivers a hypothetical written charge, composed in most cases of paragraphs handed

have been enacted since 1793, "to promote the progress of science and useful arts. When these patent laws cease to accomplish that result, it then needs no argument to prove that those laws should be repealed.

Very much can be said in favor of a repeal of the patent laws of the United States. In America the reasons for the repeal of the patent laws have never been fairly considered. In fact, those persons who are interested in patent monopolies, as they now exist in the United States, have heretofore been able to so completely control the avenues to public opinion, that "the other side" has never been heard. In the public mind there is a great deal of mystery and sanctity about letters-patent for inventions.

For instance, the public is continually told that patents are property just as much as houses and lands are property. As a matter of fact this statement is not correct in any particular whatever. Patents are wholly the creatures of Federal statutes. But a man has a natural right to the property he earns. No just law could ever deprive him of that property without compensation therefor. This doctrine has always received the universal assent of all nations, peoples and tribes.

But about patents for inventions, there is such a multitude of practices in the patent office and in the Federal courts that openly defy both law and justice, that practically a poor man, with law and right and justice wholly on his side, stands no chance whatever of securing his statute rights, provided he is opposed by wealth, individual or corporate. This is a very strong statement, I am well aware; but I am quite as well aware that it is literally true, without exception. A patent simply and only guarantees to a man a chance to sustain his patent in the courts. If the owner of a patent happens to be a poor man, and the infringer happens to be a rich man, the patent owner's "chance" is reduced to almost nothing. Suppose here in Boston a mau has obtained a grant of letterspatent for an invention; we will suppose that it is really a valid patent, such as would be so determined by the Supreme Court of the United States, if it could ever reach that tribunal.

The owner of the patent is a man of limited means, owns his shop or little factory, and owns the house he lives in, and has no other property. His patent invention is a very simple thing; but is universally used in every family. The patentee is now in the second year of the life-time of his pateut, and has now every chance of securing to himself a hand some competence during the remaining fifteen or sixteen years of the life of his patent.

But a rich manufacturer thinks that the patent monopoly of the poor man would be a good thing for him to own. It would be profitable, and much more, it would help to create a market and sales of his numerous other goods in that general line. The rich manufacturer offers the poor man $5,000 for his invention. The poor man refuses, and replies that he can make over $100,000 in the enjoyment of his patent monopoly. The rich mau advises the poor man that he cannot enforce his patent rights in a court of justice, and that he must be contented to take what the rich man is

willing to pay, or lose all his property, patent rights included.

The poor man has given his best years to the service of his country as a common soldier to uphold the laws, and naturally he feels indignant at the thought that the laws are practically silent to everybody, but the rich.

He sues the rich manufacturer in the usual way for infringing his patent. After several months' delay the matter comes before the court for argument on a motion for a preliminary injunction. The court reserves its decision, for six months, a year, and I know of one case in a neighboring State where a judge reserved his decision for four long years. In the meantime the rich manufacturer continues his bold infringements, running his machinery twenty-four hours a day, by relays of fresh help. He graduates his prices so as to just undersell the poor man, and thus drives the poor man out of the market. Nine months after hearing the argument on his motion for an interlocutory injunction, the judge announces his opinion granting the injunction prayed for.

But the business of the poor man is gone. He must now recover it. The influence of the rich infringer's action has induced many other irresponsible infringers to flood the market with the goods made under his patent. Still the poor man goes bravely on, borrows money from his industrious friends, who like him are persons of narrow means, in order to carry on his suit. Many months are consumed by the defendant in taking volumes of testimony, most of which is absolutely unnecessary and entirely irrelevant and useless. This testimony has been taken for use at the final hearing on the merits of the patent itself. But before the time for the final hearing arrives, the complainant discovers that the rich defendant is boldly violating the preliminary injunction forbidding him to make, use, or sell the invention protected by the patent. The rich man has thus been secretly underselling the poor man. Then the poor man learns, for the first time, the secret of his inability to recover his trade.

The attorney for the poor man advises his client to commence at once proceedings for contempt against the rich infringer and violator of the injunction. Complainant's lawyer honestly and truly advises his ellent that the law is here clear and well settled that the defendant will be obliged at least to disgorge his stolen gains and profits. The matter is referred to a master to determine those gains and profits. After many months the master finds that defendant has made several thousand dollars in violating the injunction. Under section 725 Revised Statutes, the judge fines him to the amount of those profits, but refuses to allow any costs to complainant.

The wife of the poor complainant now lies dead in a distant city, whither he goes to perform the last sad rites. In the meantime the rich defendant (being a very dishonest man) divests himself of all his property. He now refuses to pay the fine imposed, whereupon the judge orders his committal to jail till he pays the fine. In the absence of the poor complainant and his lawyer, after a few days incarceration, the judge, by an entirely ex parte proceeding, orders the discharge of the prisoner, on his taking his simple, unsupported oath that he has no property exceeding $20, in the form of Massachusetts Poor Debtor Oath, applicable to civil matters only. See Hendrys v. Fitzpatrick, 19 Fed. Rep. 810. The injunction meantime is still in force, and is in force to this day. Strange as it may seem this is no fancy picture, but is the cool assumption of power by one of the most eminent judges of the United States, which assumption of power has practically repealed the very patent in fa

vor of which he granted an injunction still in force. In the meantime the case comes up for final hearing. The printing of the whole record, the voluminous testimony for defendant as well as brief testimony for complainant, the clerk of the court estimates will cost $5,000 (not an unusual cost).

But the poor complainant tells his lawyer that he cannot possibly raise so much money, but offers to print his own side at a cost of $150, and complainant's lawyer asks the court to order the defendant in contempt to print his own testimony. The court refuses to do so, and says that the ancient rule of the court (made in 1842) as to printing cannot be changed. On motion of defendant in contempt complainant is given sixty days in which to print the whole case, including testimony on both sides, or the suit will be dismissed.

This is a sample of the trials and difficulties of a poor inventor in his endeavors to sustain his patent in a court of justice. In all material points it is substantially true in the case above cited. But that case is a much stronger case than I have pictured. The monopoly there is a small one, worth only $10,000 to $15,000

per year.

The Federal courts are perfectly free to any poor man as well as to any rich man to euter. But woe be to the man who enters therin, unless he is plated with gold. The immense cost of printing is the chief cost in patent suits. Under section 823 Revised Statutes, this is absolutely prohibited from being taxed as costs; yet in defiance of the statute, the court goes straight on and taxes printing as costs against the losing party all the same. And in the language of an eminent New Yorker (now dead), "What are you going to do about it?"

Now these are some of the trials of a poor patentee in sustaining his patent in the courts. But the catalogue is by no means exhausted.

In the patent office, before the inventor gets his patent, the inventor has quite as hard a time, providing his invention is known to be worth any thing, and the moneyed influence is desirous of thwarting his application for a patent, or is desirous of stealing his invention outright, and having the patent granted in the name of somebody else, no matter whom.

The corruption and trickery practiced heretofore in the United States patent office finds no parallel in any other department of the government; I speak advisedly, and of what I know. And yet there are men and examiners in the United States patent office who are above even suspicion. Even they cannot ignore the pressure of those who have the influence to deprive them of their office, if that end is desired.

Some years ago I knew of a United States Senator who left his place in the Senate to argue a very important case before a patent commissioner who had been appointed solely by that Senator's power and influence. Of course that senator would wiu his case every time under such influences.

But this subject so enlarges that I must cut this article short before I have reached the ground I was aiming for, and reserve that for another article.

One thing is certainly learned, and that is that the patent laws are for the rich mainly, almost wholly. Perhaps there may be a remedy; if there is any remedy, it is not in tinkering the laws any more.

The remedy must first be in the strict, faithful and impartial administration of the patent law. Laws are useless unless faithfully administered.

However in any event, the inventor, at the present time, will hardly, it would seem, be benefited on the whole by any patent law; vast amounts of money are constantly being spent on idle, wildgoose schemes. Many men of great ability waste years of very useful

and valuable time in ill-considered projects. To be sure, much of this valuable time and money might have been saved; but for the complete and total ignorance of the patent law by these capitalists and invent

ors.

I have in mind now a most successful attempt of moneyed influence to support an alleged invention by a patent in which there is not even a hint of the invention itself, much less defined in such clear and certain language as the well settled law absolutely requires.

I will not explain further, just at this time, lest I "tread on somebody's toes." But if ever the "inside history" of the patent office and court proceedings in this most remarkable case is made public, it will startle the civilized word, for there have been "millions in it," in very truth.

L

Nine-tenths of all granted patents don't return the costs of the grants. The other tenth runs the gauntlet of the Federal courts, only when the rich, the powerful and the influential handle the matter.

Does this tend to "promote the progress of science and the useful arts," as advised by the Constitution?

Can there be but one answer?

If I remember rightly it was in case of Hendrie v. Sayles, 28 N. Y. 546, that the Supreme Court of the United States say, substantially, that just at the time when wanted by the public, the proper invention comes before the public, and not only that, but several or many inventors, at about the same time, in widely separated sections, devise and produce the article itself, so that it seems difficult, if not impossible to determine who the real inventor is. And not unfrequently the real inventor is deprived of the real honor and profit of the invention by the fraud or trickery in patent office and court of some pretender, copyist or pirate who has the money bags behind him.

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A married woman owning land not held to her sole and separate use, for the purpose of securing debts of other persons in conjunction with her husband, executed two deeds of trust upon it, the second of which was expressly made subject to the first. She did not undertake to bind herself personally to pay either of the debts. There was a sale under the first deed of trust, and some time afterward she bought the land back from the purchaser at this sale. Held, that she took it discharged of the lien of the second deed of trust.

BLACK, J. This is an appeal from a decree of the Johnson Circuit Court enjoining the defendants from selling the property in question under their deed of trust.

On the 23d of April, 1879, H. C. Betts and Amanda, his wife, made a deed of trust to Cope to secure a debt of $9,000 due from W. H. Betts & Co. to Mary Atherton. This firin was composed of W. H. & J. J. Betts, and they and their wives also joined in the deed, which conveyed the ten or eleven acres of land here in question, owned by Amanda, and a storehouse and two outlots not owned by her. In March, 1881, the same

grantors made another deed of trust on the same property to secure a debt of H. C. Betts & Sons, due to the defendants, the Studebaker Bros. This deed on its face is made subject to the prior'one, and is the deed under which the sale was about to be made. Thereafter, and in September, 1881, W. H. Atherton, who represented the Mary Atherton 'debt, purchased the whole of the property at the trustee's sale under the first deed of trust for $6,155, paying for the property in question the sum of $250. Subsequently and in the same month, Atherton, by warranty deed, conveyed the ten acres in question to Amanda Betts for her sole and separate use at the price of $1,156. In October, 1882, Amanda Betts sold and conveyed the property to the plaintiff, Plum, who paid therefor the full value. These deeds and deeds of trust were put to record at their respective dates.

Whatever rights the defendants as second mortga gees have must be determined from the face of the recorded deeds, for there is no evidence in the case which impeaches the fairness of any of the deeds or sales through which the plaintiff derives his title. The claim of the defendants is and must be that when Amanda Bates acquired the property back from Atherton, the purchaser under the first deed of trust, their deed of trust became a subsisting charge on the property, and continued such as against Plum.

The general rule is stated in Jones Mort., § 1887 (3d ed.), as follows: "A mortgagor may purchase at a sale under his own mortgage, but if he has given a subsequent mortgage upon the same property, his purchase will not defeat this, but will operate for the benefit of it in the same way as a discharge or a transfer of the mortgage to himself."

In Hilton v. Bissell, 1 Sandf. Ch. 407, B. purchased the premises subject to two mortgages, both of which he assumed to pay. The senior mortgagee foreclosed his mortgage, making the junior mortgagee, the mortgagors and B. defendants. B. became the purchaser at the sale for the amount payable on the first mortgage under the decree of foreclosure. The second mortgagee subsequently sought to foreclose his mortgage, and B. set up his purchase under the first foreclosure sale, and claimed to hold the premises discharged of the second mortgage. This plea the court disallowed, and said, looking beyond the form through which B. effected the arrangement, it was a payment of the first mortgage; that he was bound by his covenants to make such payment, and would not be permitted to take advantage of his own wrong, and that he would be considered the owner of the land subject to the second mortgage. The cases of Tompkins v Halstead, 21 Wis. 118, and Steger v. Mahone, 24 N. J. Eq. 426, are like Hilton v. Bissell. In all these cases the purchaser of the equity of redemption had assumed and agreed to pay the mortgages as a part of the consideration of the purchase. So in Otter v. Vaux, 6 DeG. M. & G. 638, it was the debtor himself, as well as mortgagor, who sought to defeat the second mortgage by a purchase indirectly under a power contained in the first mortgage.

In some of these cases, as also in Thompson v. Heywood, 129 Mass. 401, there was also an element of fraud on the part of the purchaser under the first mortgages. Taking no special account of this element of fraud in those cases, and which is not found in the case at bar, still the present case is essentially different from them. Here Amanda Betts did not undertake to pay the debts secured by either of the deeds of trust. They were the debts and obligations of other persons, and in no event could she be held liable for their payment. She made no such undertaking, express or implied. She being a married woman, and the property being her general estate, she was not lia

ble on any covenants contained in the second deed of trust with respect to the title to the property, if any there had been. But the second deed of trust was in express terms made subject to the Mary Atherton deed of trust. She owed no contract duty to the defendants to pay off the first deed of trust, and we see no reason why she might not have become the purchaser at the trustee's sale under the first deed of trust, and have thus acquired the property discharged of the lien of the second deed of trust.

But in this case the transaction stands on still firmer grounds, for under our system of deeds of trust, the trustee's sale operated as a complete foreclosure, and cut off the second deed of trust as completely as if there had been a decree of foreclosure with all the parties before the court. Atherton got a perfect title as against the defendants, and it was entirely competent for Amanda Betts to acquire that title, for she owed no duty inconsistent therewith. Plum took the title freed from any lien, legal or equitable, of the second deed of trust.

In Otter v. Vaux, supra, it was said if the purchase had been strictly from a third person, who had for himself purchased under the power contained in the first mortgage, that might give rise to a different question. It was there coutended that the purchase by the mortgagor should be treated as a purchase from a stranger, and that contention gave rise to the suggestion.

In Episcopal Church v. Mack, 93 N. Y. 488; S. C., 17 Cent. L. J. 372, the church owned the lot subject to a mortgage to Bell, and then sold the same to Mack, reserving an easement in the lot for light and air to their adjoining property. Mack had assumed to pay the mortgage, and sold the property to his wife through a third person, but without any liability on her part to pay the mortgage. Upon the foreclosure of the mortgage she became the purchaser, and it was held she acquired the title divested of the easement to which the property was subject in the hands of the husband. The mortgage sale was made under a statute which provided that the deed should vest in the purchaser "the same estate (and no other) that would have vested in the mortgagee if the equity of redemp tion had been foreclosed."

The effect thus given to such a sale is not materially different from that which is to be accorded to sales under deeds of trust. We have held, where by the terms of an ante-nuptial contract the wife took an estate in fee in her husband's lands in lieu of dower, and after marriage he satisfied a mortgage which existed upon the land at the date of the ante-nuptial contract, with money raised by a new mortgage, that the wife's estate was discharged from the first mortgage. Anglade v. St. Avit, 67 Mo. 434.

While these authorities are not decisive of the question in hand, we think they in a general way support the conclusions before announced in this case. There being no other question here for consideration, the judgment is affirmed.

All concur.

MASTER AND SERVANT - INJURY TO SERVANT
-MASTER DIRECTING WITH KNOWLEDGE
OF DANGER.

MASSACHUSETTS SUPREME JUDICIAL COURT.
JULY 3, 1886.

HALEY V. CASE.

Plaintiff, a servant in defendant's employ, had driven a load of hay to defendant's barn, when he was personally directed by defendant to drive through a gateway for the

purpose of unloading. In doing so, plaintiff was struck by a sign over the gateway and injured. There was evidence tending to show that defendant was familiar with driving such loads through the gateway, and that the plaintiff was not; that it was not apparent to the plaintiff from his position, and while managing the horses, that he could not drive through with safety, and that the defendant from his position had a better opportunity than plaintiff of personally observing the fact.

Held, that the questions of negligence and of defendant's liability were properly left to the jury.

ACTION of tort to recover damages for personal in

juries. The plaintiff, on the day of the accident, was in the employment of the defendants, and had driven a two-horse caravan, loaded with hay, from Boston to defendant's stable, and was undertaking to back up his team to defendant's stable abutting on Perry street, for the purpose of unloading it. Perry street rises somewhat in a grade from the defendant's stable to the end of the street, across which is a gateway with the sign of James Mead & Son over it.

The defendant Dodge assumed the personal direction and control of the plaintiff in determining where the team should be driven for the unloading of the hay, and while driving through the gateway under the sign which had on it the name of James Mead & Son, the plaintiff was struck in the back by the sign and injured.

The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.

W. Gaston and J. F. Dore, for plaintiff.

R. M. Morse, Jr., and B. E. Perry, for defendants. FIELD, J. It is not denied that if Dodge was personally negligent in giving directions to the plaintiff in the performance of his work, and if the plaintiff used due care, both the defendants are liable. Ashworth v. Stanwix, 3 Ell. & Ell. 701. As the plaintiff was of full age and an experienced teamster, if the danger of driving the horses with the van under the gateway was well known to him, he cannot recover, although he was acting under the immediate personal direction of Dodge. The fear of the plaintiff that he would be discharged from his employment if he did not obey the orders of Dodge, his employer, would not justify him in running a risk which was well known to him, and then if injured, in recovering damages from his employer. Russell v. Tillotson, 140 Mass. 201; Taylor v. Carew Manuf. Co., id. 150; Leary v. Boston & Albany R. Co., 139 id. 580; Moulton v. Gage, 138 id. 390; Williams v. Churchill, 137 id. 243.

The principle is said to be that "where the servant has as good an opportunity as the master of ascertaining and obviating the danger for himself, he will have no recourse against the latter." Frazer Trustee & Serv. (3d ed.) 186; Woodland v. Metropolitan District Ry. Co., 2 Exch. Div. 384; Ogden v. Rummens, 3 F. & F. 751.

From the testimony it was competent for the jury to find that the defendant Dodge assumed the personal direction and control of the plaintiff in determining where the team should be driven, and that he was familiar with the practice of drawing loaded vans under the gateway; that the plaintiff had never driven under the gateway before; that the danger was not obvious from the place where the plaintiff started his team, in any such sense that it was not a reasonable opinion, from observation at this place, that he could drive through the gateway in safety; that the plaintiff's attention was necessarily chiefly devoted to the management of the horses, and that he did not discover the danger until it was too late to save himself; and that the defendant had better means of observation and of seasonably appreciating the danger, and

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