service, assumes all the risks of that service, which the master, exercising due care, cannot control, including those arising from the negligence of his fellowservants; but that the master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect. This care he can and must exercise, both in procuring and in keeping and maintaining such servants, structures and engines. If he knows, or in the exercise of due care might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them or at any subsequent time, he fails of his duty. For the management of his machinery and the conduct of his servants, he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility, when his own negligence in not having suitable instruments, whether persons or things, to do his work causes injury to those in his employ. He cannot divest himself of his duty, to have suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master who has an extensive business often does, perform this duty through officers or superintendents; but the duty is his and not merely theirs, and for negligence of his duty in this respect he is responsible.. To hold otherwise would be to exempt a master, who selected all his machinery and servants through agents or superintendents, from all liability whatever to their fellowservants, although he had been grossly negligent in the selection or keeping of proper persons and means for conducting his business."

"The obligation of a corporation, so far as respects those in its employment, does not extend beyond the use of ordinary care and diligence. By ordinary care and diligence is meant such as men of ordinary sense, prudence and capacity, under like circumstances, take in the conduct and management of their own affairs. This varies according to circumstances as the risk is greater or less, and must be measured by the character and risks and exposures of the business.”’

Applying the law as stated to the present case, the judge instructed the jury that "the exercise of ordinary diligence and care was required on the part of the defendants, and their proper officers and agents, in providing a suitable engine to be used by the plaintiff upon their road, and in keeping the engine in proper condition for such use; that the plaintiff was also required to exercise ordinary diligence and care in the use of the engine in avoiding danger therefrom; that if neither party was in fault the plaintiff could not recover; that if the injury complained of was occasioned by the fault or negligence of both parties, the plaintiff was not entitled to recover; that if the defendants, acting by their proper officers and servants, exercised ordinary diligence and care in providing a suitable engine and in keeping the same in proper condition and repair, for the use to which it was appropriated, they were not responsible for the injury complained of; but that if they failed so to do, and the injury complained of resulted from their neglect in this respect, then the defendants were responsible therefor, unless it appeared that the plaintiff himself was also wanting in the exercise of ordinary vigilance and care, either in the management of the engine or in improperly exposing himself to danger therefrom, thereby rendering himself guilty of contributory neg

ligence, in which latter case he was not entitled to recover; that the burden was upon the plaintiff to show, not only that the defendants were guilty of negligence in not exercising ordinary diligence and care in providing a suitable engine, and keeping it in proper condition, thereby causing the injury complained of, but that he was himself free from any negligence contributing to the injury; that Rule 28 did not, as a matter of law, release the defendants from their legal responsibility in this case, if any such existed, for the internal and invisible defects in the boiler, by which it was claimed the explosion was occasioned; and that the violation of Rule 42, so far as it stated it to be the duty of the plaintiff to be sure that the engine was in good working order before it was taken from the engine-house, did not, as matter of law, necessarily preclude him from recovering in this case, if otherwise entitled, unless the accident or injury complained of was occasioned in whole or in part by such violatiou."

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

H. B. Staples and F. P. Goulding, for the defendants. G. A. Torrey, for the plaintiff.

COLT, J. This action is founded on the alleged negligence of the defendant corporation, in failing to provide and keep in repair a safe and suitable engine to be run by the plaintiff in his employment as locomotive engineer upon its road. The law applicable to cases of this description, and which defines the rights and duties that belong to the relation of master and servant, is plainly stated in the recent decisions of this court. The principles are discussed and the cases sufficiently reviewed in Coombs v. New Bedford Cordage Co., 102 Mass. 572; and in Gilman v. Eastern Railroad Co., 10 Allen, 233; 13 id. 433; and Huddleston v. Lowell Machine Shop, 106 Mass. 282.

Upon a careful consideration of the evidence and the instructions given, we find no error in law for which this verdict should be set aside. The legal principles which govern the case were accurately stated. They were well adapted to the whole evidence in its different aspects, and they were all that the case required. The jury, who are presumed to have been controlled by these instructions and the evidence before them, must have found, in arriving at their verdict, that the defendant corporation, by its agents intrusted with that duty, did not exercise ordinary care and diligence, in supplying and maintaining an engine, safe to be used for motive power upon their road, in the performance of that part of the plaintiff's work in which he was engaged at the time; that this neglect was the cause of the injury; and that the plaintiff was himself in the exercise of ordinary care and diligence, in the use of the engine and in avoiding danger therefrom. They must have further found, that the plaintiff did not know, or have reasonable cause to believe, that the engine was unsafe at the time of the explosion, and also that the injury was not, in whole or in part, caused by any violation of the terms of his contract of employment, as expressed in the rules of the road assented to by him.

This establishes the defendant's liability. It is enough that there was evidence in support of these several findings sufficient to justify each. It is not a question of the weight of evidence, or whether the verdict ought not to be set aside on a motion for a new trial. When the question is raised by exceptions, the

the church. When plaintiff demanded his commissions of defendant the latter refused to pay, claiming that he had withdrawn the property from the market. When this action was commenced no contract in writing had been made, and no part of the purchasemoney had been paid. The sale was afterward consummated and the property was conveyed to the society. At the close of the plaintiff's case defendant's counsel moved for a nonsuit on the ground that plaintiff could not recover unless a contract of sale had been executed, or some note or memorandum thereof in writing made before the commencement of this action, and that there was no evidence that a sale had been made, or that there was any note or memorandum in writing of any contract of sale. This motion was denied. Held, no error; that plaintiff was entitled to his commissions upon the production of a purchaser, ready and willing to purchase upon defendant's terms, a though defendant was unable or refused to consummate the contract; that the parol contract was prima facie evidence that such a purchaser had been produced; that defendant not having based his refusal to pay upon the ground that the parol contract was invalid, but on the ground of the withdrawal of the property, could not thus shield himself from liability. Mooney v. Elder. Opinion by Grover, J.

CONTRACT.

For sale and purchase of gold: statute of frauds: New York Gold Exchange. This action was brought to recover damages for the alleged breach of a contract for the sale of $40,000 in gold coin. The defense was the statute of frauds. It appeared that defendant entered into a parol contract to purchase of plaintiff $40,000 of gold for $50,000 currency; both parties were members of the New York Gold Exchange. The constitution and by-laws of that association provided, that the officers of the New York Gold Exchange Bank, unless otherwise expressed, were to be the agents of both parties for the consummation of the contracts of members, and such contracts were to be performed the next day at a specified hour. Upon the next day, before the hour specified, plaintiff received from defend. ant a paper subscribed by the latter and directed to the cashier of said bank, advising that defendant would settle through the clearing department with plaintiff, "$57,000 currency for $49,000 gold," on the margin were the words, "receive gold." Plaintiff delivered a similar paper subscribed by him, save that currency and gold were transposed, and upon the margin was "deliver gold." Held, that the two papers were to be construed together, and also in the light of the constitution and by-laws, and that so construed there was a sufficient memorandum of the contract to meet the requirements of the statute of frauds, and that defendant was liable thereon. Also held, that in an action upon a gold contract between members of the New York Gold Exchange, its constitution subscribed by them, and the by-laws made by the members, are competent evidence, and the provisions thereof prescribing the mode of performing such contract between members for this purpose becomes part of the contract.

When gold is the subject of a contract of sale, it is not regarded as money but as a commodity, and a contract for the sale thereof exceeding $50 is within the statute of frauds, and to be valid must be made in compliance therewith (2 R. S. 136, § 3). Peabody v. Speyers. Opinion by Grover, J.

DURESS OF PROPERTY.

This action was brought to recover back moneys alleged to have been extorted by defendants from plaintiffs by duress of the latter's goods. It appeared that the defendants received a quantity of whisky from the plaintiffs to sell on commission, for receiving, caring for, and selling the property, defendants were to charge a commission of two and one-half per cent on the sales. They sold a portion of the whisky, a portion of it was sold by plaintiffs' agent, and a portion remained unsold, plaintiffs demanded this and defendants refused to deliver it, claiming a lien thereon for the full amount of their commissions and on that portion sold by plaintiffs' agent. Plaintiffs paid the claim (under protest) in order to obtain the whisky. The case was tried before a referee who found that plaintiffs were entitled to judgment for the whole amount so paid, and defendants excepted. Held, that plaintiffs could not rescind the contract and take the property without paying for the service already rendered by the defendants, which, in the absence of a contract or usage fixing it, was as in other cases what the services were fairly worth; that the burden of showing that they did not owe the money paid, but that it was extorted from them unjustly was upon the plaintiffs, and that the exception to the conclusion of the referee, as to the amount due, sufficiently raised the question, and that as it appeared that defendants were entitled to, at least, a portion of their claim the finding was error. Briggs et al. v. Boyd et al. Opinion by Grover, J.

ESTOPPEL.

Petition for local improvement: when petitioner not estopped from contesting assessment.-The petitioner was the owner of property fronting on a street in the city of Brooklyn, which was paved with cobble-stone pavement; he signed a petition asking for the repaving of said street with Nicholson pavement, which was presented to the board of water and sewerage commissioners. It appeared that a majority of the property owners fronting on said street did not join in the application as required by the act of 1870 (§ 2, chapter 652, Laws of 1870). The street was repaved and an assessment was made therefor. Held, that the petitioner was not estopped, by his signing the petition for repaving, from questioning the authority of the board, and moving to set aside the assessment, that he had a right to rely upon a performance of its duty by the board, which required it, before basing any action upon the petition, to ascertain whether a sufficient number had signed to confer jurisdiction. (Affirming decision of General Term, 1 N.Y. Sup. 427.) In re Petition of Sharp. Opinion by Grover, J.

EXECUTION.

Limitation of time to issue. — Defendant moved to have an execution herein set aside, on the ground that more than five years had elapsed after the judgment had been entered, before the execution was issued. Defendant appealed from the judgment and the General Term reversed it and granted a new trial; the order of the General Term was reversed on appeal to this court and the original judgment affirmed. More than five years had elapsed between the orders of reversal and affirmance, before the issuing of the execution; omitting this period, the five years had not expired. Held, that the provision of section 264 of the Code, limiting the time within which an execution may issue, as, of course, to five years, applies to a case where a right to issue has continued during that time; that the

time which elapsed between the reversal and the restoration of the judgment in this case, is not to be reckoned as any portion of the five years.

An order denying a motion to set aside an execution is not reviewable in this court. Underwood v. Green. Opinion by Andrews, J.

FRAUD.

Statute of: change of possession on sale: evidence. · This action was brought to recover damages for the alleged conversion of a mare purchased by plaintiff of C. Defendant T. justified under a judgment and execution in favor of defendant A., which was placed in his hands as constable, by virtue of which he levied upon the mare then in the actual possession of C. Plaintiff testified he purchased the mare of C., paying a good consideration for her, that she was delivered to him, and he had her in his actual possession for a year, that she was kept for him for about a year by a third person, and that he then returned her to C., to be kept for him. Defendants made various offers on the trial to prove declarations of C., after the mare was returned to him, as to his title and his interest in disposing of her. These were excluded under objection and defendants excepted. Defendants asked to go to the jury on the question of fraud, but the court declined to submit any question to the jury, save that of damages; to which defendant excepted. Held, error; that the question of fraud was one of fact for the jury, and should not have been passed upon by the court as a question of law.

Also held, that the declarations of C., after regaining and while in possession of the mare, were not competent against plaintiff.

The statute of frauds (2 R. S. 136, § 5) is imperative that a sale of chattels must be accompanied by a continued change of possession to avoid the presumption of fraud, although the sale is accompanied by immediate delivery, and followed by an actual change of possession, yet, if thereafter, however long may be the interval, it comes again into the possession of the vendor by the act or with the vendee's knowledge and assent, with no intermediate change of title, the presumption of fraud arises, and it devolves upon the vendee to show that the transaction was in good faith and without intent to defraud. The length of time between the sale and the coming again of the chattel into the vendor's possession is not material, except as a circumstance to be considered by the jury on the issue of good faith and absence of intent to defraud. Tilson v. Terwilliger et al. Opinion by Folger, J.

SHERIFF- ATTORNEY.

Poundage of sheriff: when attorney liable for sheriff's fees.-Plaintiff, the sheriff of Monroe county, brought this action to recover poundage upon an execution issued on a judgment by defendant, who is an attorney. Plaintiff levied upon property sufficient to satisfy the execution. The judgment was afterward modified and plaintiff collected the amount of the judgment as modified and received his fees thereon; he now seeks to recover the difference between the amount of fees collected by him and the amount he would have col lected if the judgment originally rendered had not been modified. Held, that plaintiff was not entitled to fees ou the whole sum directed to be collected, but only on the sum actually collected. That a sheriff's poundage is in the nature of commissions and upon a money execution he is not entitled thereto until the money is collected, and his commissions are to be measured by

the sum realized, except where, after a levy, he is prevented from fully executing the writ by the act and interference of the party in whose favor it is issued.

An attorney issuing an execution upon a judgment is liable to the sheriff for his fees thereon. Campbell v. Cothran. Opinion by Andrews, J.

WILL.

This was an action of ejectment brought by one of the heirs of F. V., to recover her proportion of a certain piece of woodland. It appeared that A. V., the defendant, was the son of F. V., and claimed title to the land in suit under a devise in the will of F. V., which was as follows: "I give and devise to my son Abraham the farm on which I now live and cultivate,

**** and the meadow and woodland attached to it, together with the messuages thereon." The testator owned two farms, one the homestead and the other occupied by his sons; a piece of woodland was embraced within the boundaries of the homestead farm. The testator owned another piece of woodland, the land in suit, a short distance from the farm and connected privilege had been procured for that express purpose, with it by a private way over intervening land, which and it had always been used with the farm to supply it with fuel and fences. About one and three-fourths acres of this lot was cleared and a small house erected thereon. Held, that this piece of woodland was included in the devise and passed to the defendant, A. V. Also held, that when a testator's intent is to be ascertained and surrounding circumstances, about which there is from the language of his will alone, or from the language no dispute, a question of law for the determination of dervoort, impleaded, etc. Opinion by Rapallo, J. the court alone is presented. Underhill et al. v. Van

UNITED STATES SUPREME COURT ABSTRACT.

The following decisions were announced in the Supreme Court of the United States on the 23d inst.:

BANKRUPTCY.

Mayo et al. v. Fritton; writ of error to the Supreme Court of Pennsylvania.- The property of the bankrupt having been sold under a mortgage, there remained a surplus after satisfying the mortgage. The assignee appeared before the auditor, who was directed to distribute the fund, and claimed it, and audited the claims of the other lien creditors. Justice Hunt delivered the opinion, holding, that by his voluntary appearance and submission to the order of the State court, referring it to the auditor for distribution, he did not raise the question of the exclusive jurisdiction of the bankrupt court over the surplus in controversy; also, that to render a coufession of judgment by a bankrupt void under the 35th section of the bankrupt law, the plaintiff in the judgment must have had knowledge of the insolvency of the bankrupt. Affirmed.

DEPOSITION.

Doane et al. v. Glenn et al.; writ of error to the Supreme Court of Colorado Territory: a replevin suit.The only question decided was as to the refusal of the court to admit a deposition. Justice Swayne delivered the opinion, holding that where the only objections to a deposition are such as relate to irregularity in taking and not to the competency of the evidence, it is too late to raise such objections. When raised for the first time on trial, it should have been taken on motion to suppress before the jury was sworn. Reversed.

DISTILLER's bond. Clinkinbeard et al. v. The United States; error to the Circuit Court of the United States for the Southeru District of Ohio; suit on a distiller's bond for failure to pay a special assessment for defenses made by assessor. Justice Bradley delivered the opinion, holding that it was competent for defendant to show that his distillery was stopped by accident, and also by a voluntary delivery of the key to the proper officer for eight days after the time at which the assessment was made; also, that in a suit on assessor's bond it is not necessary to show an appeal to the commissioner to let in a valid defense. Reversed.

JURISDICTION.

Stickney, assignee, v. Wilt; appeal from the Circuit Court of the United States for the Southern District of Ohio.-Justice Clifford delivered the opinion, holding that a petition of the assignee filed in the District Court to have the lien of defendant's mortgage on bankrupt set aside and held void, was a bill in chancery in that court, and that the decree of that court could only be reviewed by appeal as provided in the eighth section of the bankrupt law; that therefore the Circuit Court had no right to review that decree in any other manner than by such appeal, and had no jurisdiction under the second section of the act, by petition or otherwise. Decree of the Circuit Court holding that it had, reversed.

MARINE INSURANCE.

1. Hearne v. The New England Mutual Marine Insurance Company; appeal from the Circuit Court for the District of Massachusetts.-This was a bill to reform a policy of insurance on the bark Maria Henry, chartered to go from Liverpool to Cuba and load for Europe via Falmouth, for orders where to discharge. On this representation the policy of insurance was issued, "At and from Liverpool to a port in Cuba, and at and thence to port of advice and discharge in Europe." This policy was accepted without objection by the insured. The bark touched at two ports in Cuba and was subsequently lost. The company treated the use of two ports as a deviation of the contract and declined payment of the insurance. Evidence of a usage in the trade allowing a vessel to use two ports in Cuba was offered and rejected and judgment was given for the company. This judgment is here affirmed, the Court holding that such evidence was not admissible to vary a contract. Mr. Justice Swayne delivered the opinion.

2. The Equitable Safety Insurance Compang v. Hearne; appeal from the Circuit Court of the United States for the District of Massachusetts: bill to reform policy of insurance bought after loss.-Justice Swayne delivered the opinion, holding that the correspondence pending the insurance showed that both parties contemplated a voyage from Liverpool to Cuba, with liberty to a port of discharge and a port of loading in that island, and that as the policy described a voyage which did not allow of a visit to two ports in Cuba, it must be reformed. Decree below affirmed.

NAVIGABLE RIVER.

The United States v. The Steamer Monticello; appeal from the Circuit Court for the Eastern District of Wisconsin. The question for decision in this case was whether the Fox River in Wisconsin was a navigable water of the United States, and it is held to be such, applying the doctrine laid down by this

court in the case of The Daniel Ball, 10 Wallace, that those rivers must be regarded as navigable in law which are navigable in fact, being used or susceptible of being used in ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water, and as a navigable water of the United States when it forms by itself or by its connections with other waters a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes, etc. A steamboat navigating that river is therefore subject to the laws which require that a license shall be taken out and other laws of Congress complied with. Reversed. Opinion by Mr. Justice Davis.

STALE CLAIM -LACHES.

Marsh v. Whitmore; appeal from the Circuit Court of the United States for the District of Maine. Plaintiff placed in the hands of defendant certain railroad bonds of little market value, and notes as security for indebtedness and liability. Defendant sold the bonds at public auction and bought part of them himself.-Justice Field delivered the opinion, holding that as they were sold at a fair price, and as the plaintiff knew of the sale and took no steps to avoid it until more than ten years afterward, when the bonds had become valuable, he cannot now hold defendant responsible. Affirmed.

UNITED STATES SUPREME COURT AB-
STRACT.*
APPEAL.

1. Bond.- Under the eleventh section of the act of June 1, 1872, "to further the administration of justice" (and which allows any person desiring to have a judgment, decree, or order, etc., reviewed on error or appeal, and to stay proceedings during the pendency of such writ of error or appeal, to “give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order," etc.), it is not necessary to make it a supersedeas that the writ of error be served as was required by the twentythird section of the judiciary act, or the supersedeas bond be filed, within ten days (Sundays excepted) after the rendering of the judgment complained of. The supersedeas bond may be executed within sixty days after the rendition of the judgment, and the writ may be served at any time before or simultaneous with the filing of the bond. Telegraph Co. v. Eyser.

2. Confederate money: judgment in State court. Where the judgment of a State court was annulled by the decree of a court of the same State, on the ground that the notes on which the judgment was rendered were given for a loan of coufederate money, and that the transaction which resulted in the acquisition of the notes were had between enemies during the late civil war, in violation of the proclamation of the president forbidding commercial intercourse with the enemy, this court cannot review the ruling in these particulars. It conflicts with no part of the constitution, laws or treaties of the United States, and presents no federal question. Stevenson v. Williams.

BANKRUPTCY.

Appeal.-When, after opposition by a creditor to the discharge of a petitioner in bankruptcy, the District Court discharges him, and the opposing creditor * From advanced sheets of 19 Wallace.