that "the benefit of clergy shall not be used or allowed upon conviction of any crime for which the punishment is death," might have been spared without serious detriment.

It certainly could not have been retained to hang a "literary feller" and exempt him from imprisonment for a term of years; or because, by ancient law, the benefit of clergy was given to those "having place and voice in Parliament, even though they could not read, for the crime of horse stealing;" I am inclined to the opinion that it was re-enacted for the reason that "the benefit of clergy" had its origin "from the pious regard paid by Christian princes to the Church in its infant state," a sort of statute to pious uses, on behalf of national legislation, which would lead us to expect better things of them than withholding appropriations from district attorneys.*

I, however, suggest for our State practice, statutes limiting service, as calculated to benefit both litigants and jurymen, by modifying this characteristic of permanence in the panel; litigants, by securing less prejudiced triers; jurymen, by relieving them to some extent of an onerous duty.

Fourth. Two peremptory challenges, I believe the usual number in most States, avail but little. One frequently sees a juryman much less objectionable than others, yet undesirable, after his challenges are exhausted, concerning whom he can only say:

"I do not like you, Doctor Fell,

The reason why I cannot tell;

But this one thing I know full well,
I do not like you, Doctor Fell."

Challenge, at option, of course within proper limits, is, in my judgment, an inseparable incident in securing a trial by one's peers.

By the United States Statutes, in capital cases, or when imprisonment is for life, the defendant has ten challenges, the government five; in felonies the government three, the defendant five; in misdemeanors and civil cases each party three. Such discriminations do harm. The true course is not only to establish the number of peremptory challenges in all cases, but to make it uniform. The right of challenge, however, avails little if the profession hesitates to use it. In some of the counties of my State, we tell the clerk quietly what jurymen to excuse, a very cowardly way, I confess; in all States we hesitate to offend a juryman who may serve in the next case. Nothing moves the average jury man more to the depths of his nature than a challenge of this kind, and it is only from united action among us lawyers that the jury will learn that a peremptory challenge is a right of a party with which they have no concern whatever.

Fifth. The usual per diem of a juror, except in cities, leaves him out of pocket when his expenses are paid in cities, he is out of pocket by the loss of his time. If he is other than scrupulously honest, he is simply led into temptation, by being summoned to court. The late Judge Grover once said to me that a judge, in respect to his salary, should repeat Agar's prayer, “Give me neither poverty nor riches" the rule is applicable to jurors; we do not need to make it an object for them to serve, but we can at least pay them fairly enough to allow them to choose their own hotel without haggling as to price-and relieve, in a measure, the burden of compulsory attendance upon other men's business.

The third and last instance I shall refer to, in which the possession has been conveyed to the use and the use transferred into the possession, and the nineteenth century had its effect thereon, relates to the manner in which lawyers charge for services rendered to clients, which I have elsewhere denominated BreadGetting.

I am aware that I tread on dangerous ground, but I am none the less persuaded that a shifting use exists in our pecuniary relations to the public, which the profession may profitably consider.

It is not my purpose to underrate the value of legal talent, nor to question the worth of the learning and experience, wrought out from years of arduous labor and painstaking research, which necessarily goes before the capacity to earn fortunes by those who have won the silk gown of precedence.

Indeed, I am forcibly reminded at this point of a decision by the Connecticut Supreme Court of Errors. The questions under consideration arose on a quantum meruit count, in an action of assumpsit for professional services. In giving the opinion Judge Foster says: "In the first place, there is a diversity of gifts" to this sentiment we can all say Amen.

And further, it seems to me, that Mr. Jagger's mode, as described in "Great Expectations," had a deal of sense in it: "Now, I have nothing to say to you,' said Mr. Jaggers, throwing his finger at them, 'I want to know no more than I know; as to the result, it is a tossup, I told you from the first it was a toss-up; have you paid Wemmick?' We made the money up this morning, sir,' said one of the men submissively. 'I don't ask you when you made it up, or where, or whether you made it up at all. Has Wemmick got it?' 'Yes, sir,' said both the men together. Very well then, you may go; if you say a word to me I'll throw up the How very convenient to have Wemmicks making sure of the fees on the threshold of our labors.

case.

Therefore, Mr. President, I beg you to believe me sound on the main question.

In 1742 Lord Chancellor Hardwicke expressed himself as follows (Thornhill v. Evens, 2 Atk. 332): “Can it be thought that this court will suffer a gentleman of the bar to maintain an action for fees, which is quiddam honorarium ?"

In 1841 (Adams v. Cagger, 26 Wend. 452), Mr. Senator Verplanck, giving one of the opinions of the majority of the court, says: "In a land, wedded to old usages, we know that habit or prejudice may still keep up a distinction in form that has long ago passed away in substance, and thus compel the counsellor and the licentiate physician to look only to their honorary fees, whilst the surgeon or solicitor may sue for his bill; but in our bank-note world, on this side of the Atlantic, and in an age when the greatest poets or novelists are willing to confess that they toil for gain, not glory,' it is ridiculous to attempt to perpetrate a monstrous legal fiction, by which the hard-working lawyers of our day, toiling till midnight in their offices, are to be regarded in the eye of the law in the light of the patrician jurisconsults of ancient Rome, when

·

'dulce dici fuit et solemne reclusa, Manu domo vigilare, clienti promeri jura;' and who, at daybreak, received the early visits of their humble and dependent clients, and pronounced with mysterious brevity the oracles of the law." If Mr. Peter Cagger, defendant, was not satisfied with this opinion, he was a very hard man to suit.

In view of these quite diverse precedents, the question I wish to bring before the bar is this: Ought not a limit to be placed upon speculative charges, and restrictions other than "silence" be thrown around the plan of "addition and division?"

Most lawyers' offices, outside of the very large cities, receive, on an average, about once a month, a polite request from some collecting agency for an offensive and defensive alliance, based upon the idea that "if I tickle you, you will tickle me."

Any fee received is to be equitably divided; no charge is to be made unless successful results are obtained, and reliance for remuneration in the long run is placed upon eminent respectability and large influ

ence of the clientage subscribing; while, lest any but the elect may be brought in contact, it is essential that every member of the bar participating in these advantages should be recommended by a judge or by a bank.

This hook is too thinly baited to catch many fish, but the attempt at angling is the legitimate result, in my opinion, of the latter-day tendency to make the profession a trade.

In this speculative age the temptation to bargain is not easily resisted by clients, and the attorney who can shrewdly dicker outstrips those lawyers who regard practice as on a higher plane than a mere selling race. I understand a member of the bar, in a certain city (say Calcutta for locality's sake), is in the habit of sending his card to any person injured on railroads, or to their representatives in case of death, accompanied with a polite intimation that he will bring an action for damages on his own responsibility provided the amount recovered is equally shared. It is growing to be a not infrequent custom to apply a similar rule, though not the same manner of announcement, in all cases whether they sound in damages or not.

I need not refer to the evils which grow up with such a system, they are self-evident; speculation is not troubled with conscience, nor self-interest with afterthought, and when the end justifies the means, the means are apt to adapt themselves to the end.

Where efforts and service are faithfully bestowed, the laborer is worthy of his hire; it is unjust to leave him without compensation should his efforts fail of success, and it is useless to establish bar rules and maintain bar associations, if they are to be mere theoretical abstractions, disregarded in practice.

Neither speculation nor self-interest furnish excuse for departure from the honor of the profession; maintenance is not utterly beyond reproach, though some judges seem to regard it as proper for us to "first endure, then pity, then embrace," and I know of no better rule than that given by Chief Justice Parker, in Thornton v. Percival, 1 Pick. 417: "It sometimes may be useful and convenient, when one has a just demand, which he is not able from poverty to enforce, that a more fortunate friend should assist him and wait for his compensation until the suit is determined, and be paid out of the fruits of it;" but beyond this we cannot safely go.

If it be that sharpness and shrewdness in trade is essential to professional success, a different training is necessary than that which most of us have had, and the sooner we know it the better; the "quiddam honorarium" may be a relic of the past, but I submit to you whether the objects of this association are the better served by adhering to ancient traditions, or by encouraging traffic.

In the suggestions made, brethren of the bar, I have endeavored to call your attention to some of the needs of the profession, in the hope that at least they may 80 far commend themselves to your favor that each may ask himself the question: "What are you going to do about it?" I have perfect faith that the answers will be for our common good. I might have limited myself to less general topics, and individualized my subject, for we all have our specialties, even if we never have a chance to practice them. My unfinished treatise on my favorite theme rests secure, abiding "the more convenient season," which so seldom is found in the bustle of our active lives, destined, I fear, to no better fate than awaited Mr. Pembroke's sermons in Waverly the permanent seclusion of the author's desk. But had I read to you my graver thoughts, it would, perhaps, have been out of place, for when the "master bowmen" are so soon to enter the lists, it suffices me to "pierce an outer ring."

Evils grow about every system; barnacles fasten upon the proudest ship; the sharpest blade gathers

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rust; the surest rifle will sometimes foul; but the best evidence of care is in the curing, and if so be that the ship must be scraped, or the blade burnished, or the rifle cleansed, even if barnacles, rust and foulness yield only to heroic treatment, the more earnest the effort, the surer the result.

So with our profession. At times we find it needing care and thought, lest things extraneous gain a foothold; but it is always the better, if we honestly acknowledge our fault and honestly correct it. I recognize no calling more noble, none more worthy, none where veneering is so seldom mistaken for solid wood, and none where the reward of ambition is more surely given to desert and merit.

LIABILITY OF PUBLIC CHARITABLE INSTITUTION FOR NEGLIGENCE IN PERFORMING DUTY.

SUPREME COURT OF RHODE ISLAND, JULY 26, 1879.

GLAVIN V. THE RHODE ISLAND HOSPITAL.

A, who had been for some three weeks a patient in the Rhode Island Hospital, paying $8.00 per week, brought an action against the hospital for damages, alleging severe injuries caused by the unskillfulness and negligence of the surgical interne, a house officer of the hospital. At the trial a verdict for the defendant was directed by the presiding judge, on the ground that the hospital, being a public charity, was exempt for reasons of public policy from the liability charged. On exceptions brought by A, held, that, in the absence of legislative provisions granting such exemption, the exemption could not be allowed, public policy requiring that duty assumed should be faithfully performed.

Held, further, that although the attendant physicians and surgeons could not be considered the servants of the hospital, yet the hospital was responsible for the exercise of reasonable care in selecting them. Held, further, that the surgical internes acting as surgeons under the rules of the hospital held the same relation to the hospital as the attending surgeons. Held, further, that in cases where the hospital rules required the interne to summon an attendant surgeon, the interne was the agent of the hospital for this purpose, and the hospital was liable for his omission or negli

gence.

Held, further, that if an incompetent interne was appointed by the negligence of the managers of the hospital, the hospital was responsible for the results of such negligence and of the incompetence of the interne. The general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or servants. Holliday v. St. Leonard, 11 C. B. (N. S.) 192, and McDonald v. The Massachusetts General Hospital, 120 Mass. 432; S. C., 21 Am. Rep. 529, discussed.

PLAINTIFF'S petition for a new trial. The opin

ion states the case.

Charles E. Gorman, for plaintiff.

Charles Bradley and Charles Hart, for defendant. DURFEE, C. J. This is an action on the case to recover damages for unskillful and negligent surgical treatment. The declaration sets forth that the plaintiff, having received an injury in his hand and fingers for which he was in need of surgical and medical treatment and care, gave himself into the charge of the defendant corporation, who were owners of a large hospital where they were in th habit of receiving persons needing such treatment and care, and of treating and caring for them for hire: and that, in consideration of being so received and treated with skill and care, he promised to pay the defendant corporation a reasonable compensation therefor, and that the defendant corporation, in consideration thereof, received him and promised to supply him with such surgical and medical treatment, skill and attention as were necessary for the care and cure of his injuries. The

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declaration also sets forth that the corporation, its officers, agents and servants, regardless of its and their duty, neglected properly to care for the plaintiff and his injuries, or to supply such medical and surgical treatment as was needed for their care and cure; but on the contrary conducted so carelessly, improperly and unskillfully, that his hand and fingers by reason thereof became ulcerated and gangrenous, and likewise his arm, so that his life was endangered and his arm had to be amputated at or near the shoulder, etc. declaration also contains counts charging the defendant corporation with a neglect of duty in other ways, and especially in that, regardless of the obligation incumbent on it, it neglected to provide careful, competent and skillful officers, agents and servants to care for, attend to and treat him and his injuries.

The

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

The plaintiff also submitted testimony to show that his injury was such, especially in view of the hemorrhage, that some one of the experienced surgeons, attendant on the hospital, should have been immediately summoned, but that, in fact, no one of them was sent for until after nearly nine hours, and no one came until after nearly seventeen hours, though there were four, subject to call, residing and having their offices within a mile of the hospital. Further testimony was introduced by the plaintiff, showing the treatment which he received both while he was in the hospital and after he left; showing the degree of care which was used in selecting the interne, and showing the charter of the corporation and the rules and regulations in force in 1873. It appeare, that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and that when he left, October 22, 1873, a bill for board and attendance at $8.00 per week, amounting to $21.71, was presented to him in behalf of the defendant corporation, which was subsequently paid.

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

After the introduction of the testimony and the ar

gument of the case to the jury, the court instructed the jury that no testimony had been submitted which entitled the plaintiff to a verdict for damages, and directed the jury to return a verdict for the defendant corporation. The ground of the instruction was, that the defendant corporation being the dispenser of a public charity, and being dependent for its support, in a great measure, on voluntary grants and contributions, was, for reasons of public policy, exempt from liability for any negligence or unskillfulness on the part of its trustees, agents, servants, physicians or surgeons, or of its medical or surgical internes; and that if any patient in the hospital suffered injury in consequence of any such negligence or unskillfulness, his remedy, if any he had, was to prosecute the person or persons who were directly chargeable with the negligence or unskillfulness, and not to bring his action against the defendant corporation.

The plaintiff contends that this instruction was erroneous, and that he was entitled to recover, first, because the defendant corporation delivered him over to an incompetent and unskillful interne, in selecting whom for his place the corporation did not exercise proper care; second, because the interne, acting within the scope of his appointment, unskillfully and negligently cared for him; third, because the interne caused his hemorrhage by his unskillfulness and negligence. and fourth, because the plaintiff being in a critical condition, it was the duty of the interne, under one of the rules of the hospital, to send immediately for some one of the attending surgeons, and the duty of the corporation, under its charter, having established the rule, to put it in execution.

The court, in giving its charge to the jury, was guided by McDonald v. Mass. Gen. Hosp., 120 Mass. 432; S. C., 21 Am. Rep. 529. In that case a hospital patient sued the corporation for unskillful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil, and the court held that without such evidence the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained even with such evidence, for the reason that the corporation could not be held to have agreed to do more than furnish hospital accommodations, which the plaintiff had had, and also for the further reason that any judgment recovered against the corporation could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it.

The Supreme Judicial Court of Massachusetts, in the case above cited, referred to Holliday v. St. Leonard, 11 C. B. (N. S.) 192, decided by the Court of Common Pleas in 1861, as authority for the point that the corporation was not liable to be sued for the tort of the house pupil without proof of negligence in selecting him. The doctrine enounced in Holliday v. St. Leonard is, that a corporate or quasi-corporate board or body, having a public trust or duty to discharge gratuitously, is not liable for the torts of its servants or employees if it is personally without fault. The plaintiff calls our attention to cases in which Holliday v. St. Leonard has been qualified or impugned. Mersey Docks v. Gibbs, 11 H. L. 686; L. R., H. L. 93; Foreman V. Mayor of Canterbury, L. R., 6 Q. B. 214; Coe v. Wise, L. R., 1 Q. B. 711; 5 B. & S. 440, 458. These cases hold that a board or body having work to do for the public gratuitously are liable for the torts of their servants or employees, the same as a private business corporation, provided they have funds or are in receipt of an income out of which a judgment against them can be satisfied. Winch v. The Conservators of the Thames, L. R., 7 C. P. 458; 9 id. 378. The authority of McDonald v. The Massachusetts General Hospital, in so far as it rests upon Holliday v. St. Leonard, is seriously impaired by these cases; and the question arises

whether it might not have been better decided on the other grounds suggested in the opinion of the court.

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

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

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

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do it cost him his arm. He also contends that the corporation did not use proper care in selecting the interne, who was incompetent for his position, and thereby he suffered the injury complained of. He contends that he was entitled to recover on both these grounds, and if the evidence was sufficient to establish them, we think that he was entitled to recover on both grounds, unless the hospital enjoys some peculiar immunity.

This brings us to the important question whether the hospital does enjoy any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds, to wit: on the ground of public policy, and on the ground that the hospital has no funds except such as are exclusively dedicated to the charitable uses for which it was established, and which, therefore, cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or surgeon, or of a medical or surgical interne.

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

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

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

We have previously, in this opinion, cited the cases

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

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

"It is

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

In view of these later decisions the question here is, whether a charitable corporation, like the Rhode Island Hospital, which holds its property for the charity, is more highly privileged than a corporation created for public purposes, which holds its property for such purposes; whether, in fact, because it holds its property for the charity, it is relieved from all responsibility for the torts or negligences of its officers, trustees, agents, or servants. We have come to the conclusion, after much consideration, that it is not. We understand the doctrine of the cases which we have just been consid

ering to be this: that where there is duty, there is, prima facie at least, liability for its neglect; and that when a corporation or quasi corporation is created for certain purposes which cannot be executed without the exercise of care and skill, it becomes the duty of the corporation or quasi-corporation to exercise such care and skill; and that the fact that it acts gratuitously, and has no property of its own in which it is beneficially interested, will not exempt it from liability for any neglect of the duty, if it has funds, or the capacity of acquiring funds, for the purposes of its creation, which can be applied to the satisfaction of any judg ment for damages recovered against it. We also understand that the doctrine is that the corporate funds can be applied, notwithstanding the trusts for which they are held, because the liability is incurred in carrying out the trusts and is incident to them. We do not understand, however, that the corporate property is all equally applicable. For instance, in the case of Mersey Docks v. Gibbs it was not decided that the docks themselves could be resorted to, but only the unapplied funds which the board then had or might afterward acquire. So in the case at bar: it may be that some of the corporate property-the building and grounds for example-is subject to so strict a dedication that it cannot be diverted to the payment of damages. But however that may be, we understand that the defendant corporation is in the receipt of funds which are applicable generally to the uses of the hospital, and, following the decision in Mersey Docks v. Gibbs, we think a judgment in tort for damages against the corporation can be paid out of them. Indeed, we cannot see why these funds are not as applicable to the payment of damages for tort as to the payment of counsel for defending an action for such damages. Both payments are to be regarded as incident to the administration of the trust.

POTTER, J., wrote a concurring opinion.

TITLE TO NON-NEGOTIABLE PROMISSORY NOTES.

SUPREME COURT COMMISSION OF OHIO.*

COMBES V. CHANDLER.

1. A bona fide purchaser, for value, of a non-negotiable chose in action, from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting title thereto. 2. B. makes and delivers his non-negotiable promissory notes to C., from whom they are obtained by fraud, misrepresentation, and without adequate consideration. The assignee having thus obtained them, transfers them to W., who is a bona fide purchaser, for value, before due, without notice. Held, C. cannot reclaim the notes from W.

RROR to the District Court of Summit county.

Ε'

The action, having been appealed to the District Court, was there tried, and the following are the material facts: Benjamin Thompson, who is one of the defendants, made his four promissory notes, for $2,000 each, dated May 22, 1868, and payable March 20, 1870, 1871, 1872 and 1873. These notes were made "to Frank A. Combes, as guardian of Hiram A. Combes and Samuel M. Combes," and were non-negotiable. Frank A. Combes, thus having the notes, in a trade with Samuel F. and William E. Chandler, defendants, turned over three of them to the Chandlers. It is an admitted fact that this trade was a fraud on the part of the Chandlers, and that they obtained the notes by fraud and without adequate consideration. The indorsement, when the paper was transferred, was merely,

* To appear in 33 Ohio St. Rep.