THIRD DEPARTMENT, DECEMBER TERM, 1874. vest; and it would not have vested in this case, if the legatee had survived, except upon the condition that it was accepted in absolute payment. And, as already stated, this acceptance could be given as effectually by the personal representatives of the legatee after his decease, as by him in person during his life. Where it is the intention of the testator that the legacy shall be deemed a satisfaction of a pre-existing debt, the acceptance of the legacy will extinguish the debt.* The legacy is the price, or value, put by the testator upon the opposing claim, which is submitted for acceptance at his decease. The final acceptance of the proposal involves the relinquishment of the claim, and forms a good consideration for the legacy. A contract is thus completed by which the legatee or his representatives become entitled to the legacy; not as a bounty, but as the purchase-price of the claim which has been canceled or abandoned. This exception to the ordinary rule, that a legacy must lapse whenever the legatee has died before the death of the testator, has been repeatedly recognized in the English courts; and provisions of this character have invariably been sustained. It is, doubtless, true that the legal definition of a legacy embraces "a thing given either as a gratuity or as a recompense,' and therefore includes "as well one made in lieu of dower and in satisfaction of an indebtedness," as one which is wholly the bounty of the testator. But it is equally true that different rights attach to these different classes of legatees, both as between themselves and with reference to the estate. In case of a deficiency of assets, legacies founded on a previous indebtedness or other valuable consideration, do not abate ratably with other general legacies, but must be first paid in full. These legatees take their legacies as purchasers, and they are only liable to abatement as between themselves. § Upon the same principle such a legacy must be enforced when accepted by the representatives of a deceased legatee, not * Williams v. Crary, 4 Wend., 444. Williamson v. Naylor, 3 Younge & Collyer's R., 208; Philips v. Philips, 3 Hare's Ch., 281; Turner v. Martin, 7 De Gex, McN. & Gor., 429; In Matter of Trustees of Will of Peter Somerby, 2 Kay & Johns., 630. Orton v. Orton, 3 Keyes, 486. § Wood v. Vandenburgh, 6 Paige, 278; Williamson v. Williamson, 6 id., 298. THIRD DEPARTMENT, DECEMBER TERM, 1874. withstanding his death occurred before the death of the testator. The judgment of the Special Term must be affirmed, with costs. Present-BOCKES, P. J., LANDON and COUNTRYMAN, JJ. GEORGE M. ROUNDS, BY HIS GUARDIAN, ETC., PLAINTIFF, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Defendant. Trespasser-rights of — Acts of agent — when principal bound by 'maliciously" — meaning of. Willfully" and This action was brought to recover damages for injuries sustained by the plaintiff in being pushed from one of the defendant's cars. Upon the trial it appeared that the plaintiff, in violation of the rules of the company, got upon the rear platform of the baggage car of a train, standing in the depot at Norwich, in order to ride down to the round-house, to which place the cars were to be backed to make up a new train. Along the west side of the track there was a pile of wood, over 100 feet long. Just as the cars arrived at the wood-pile, the baggage master, who was in charge of the train, discovered the plaintiff and ordered him off; the plaintiff replied that he could not get off on account of the wood, whereupon the baggage master kicked him, so that he fell, first against the wood-pile and then under the cars, which passed over and crushed one of his legs. The court charged that, although the plaintiff was a trespasser, yet, if the baggage master, in pushing him from the train, acted as the employe of the defendant, in good faith and in the discharge of a duty he owed it, the company would be responsible for his carelessness and negligence, but that if he acted willfully and maliciously, then he alone would be responsible. On appeal, held, that the charge was correct; and that, as the jury had found a verdict for the plaintiff, he was entitled to judgment thereon. Semble, that, in law, the words “willfully" and "maliciously" have essentially, if not precisely, the same meaning. Semble, that a principal is responsible for all acts of his agent performed in the line of his duty, whether the agent was acting in good or in bad faith, negligently or willfully; the act, and not the manner in which it is performed, or the mental condition of the actor, determines its relation to the service in which he is employed. MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Term. This action was brought to recover damages for an injury received by the plaintiff in being HUN-VOL. III. 42 THIRD DEPARTMENT, DECEMBER TERM, 1874. thrown or pushed off one of the defendant's cars. Upon the trial of the action at the circuit, the plaintiff recovered a verdict of $5,000 The accident occurred at Norwich, May 3, 1872. The defendant operated a broad-guage railway from Binghamton to Norwich, and a narrow-guage road from Norwich to Utica. The passenger train from Binghamton on this occasion, as usual, ran to the depot at Norwich, and transferred the passengers and freight to the Utica train, and then backed south on a switch a distance of about sixty rods to the round-house, to make up the new train, which was to run back to Binghamton. The train consisted of the engine, an express car, a baggage and smoking car (one car divided into two compartments), and one passenger car. The conductor of the train got off with the passengers at the depot, and left it in charge of the baggage-man, to run back on the switch and make up the new train. While the train was unloading and transferring the passengers at the depot, the plaintiff, a boy twelve years old, living near the depot, got on the platform of the baggage and smoking car, at the rear end, to ride down to the round-house. A quantity of wood was piled at one point along and near the west side of the track for a distance of over 100 feet. While the train was backing down the track, and when it arrived at the wood-pile, the baggage-man in charge of the train discovered the plaintiff on the platform, and ordered him off. According to the plaintiff's testimony, he replied, "I can't, the wood is right here; I want you to help me. He (baggage-man) said, no, damn you, I will kick you off sooner than I will help you. I had my overcoat on, and he hit that, and I fell over against the wood-pile, and fell back, and one leg went under the cars." Cross-examined: "How long after he stepped out of the baggage car before he kicked you off? He did it right after we had the talk. Where did he hit you with his foot? A little below the seat of my breeches. Did it land you right against the wood? Yes, sir." Re-direct: "When he hit you with his foot, he hit you under the overcoat? Yes, sir. I had it buttoned up pretty tight, and his toe went under that, and he hit it and gave me a shove." A printed notice was posted up in the baggage car, and another one near where the plaintiff was standing on the platform, as follows: No person will be allowed to ride on this baggage car, THIRD DEPARTMENT, DECEMBER TERM, 1874. except the regular train men employed thereon. Conductor and baggage-men must see this order strictly enforced." Another printed notice was contained in the posted time-cards, as follows: "Train baggage-men must not permit any person to ride in the baggage car, except the conducter and news agent connected with the train. Conductor and baggage-men will be held alike accountable for a rigid enforcement of this rule." At the close of the plaintiff's evidence, the defendant's counsel moved for a nonsuit, upon the grounds: 1. That the plaintiff was a trespasser, or wrongfully on the cars of the defendant, and was not entitled to recover. 2. That the plaintiff by his own negligence, contributed to the accident. 3. That upon. the evidence the defendant was not guilty of any negligence or wrongful act in reference to the plaintiff; that the acts of Gow (baggage-man) which caused the injury, were not authorized by the defendant, but were a willful and wanton assault by Gow upon the plaintiff, and that for these acts and their consequences the defendant was not responsible to the plaintiff. The court denied the motion, and ruled that it was a question for the jury whether the baggage-man was there acting within the authority of the company, in putting the boy off, or whether he acted willfully and wrongfully; to which the defendant excepted. After the defendant had given evidence contradicting the plaintiff's testimony, and at the close of the case, the defendant's counsel renewed his motion for a nonsuit on the same grounds, and also on the ground that no right of action was made out against the defendant, and that the evidence did not warrant a submission of any question of fact to the jury which would authorize a recovery. The motion was denied, and the defendant excepted. The court then submitted the following questions to the jury, to which the defendant also excepted: 1. Did Gow put the boy off the cars? 2. Was he acting within the authority given him by the defendant? 3. Was he acting maliciously and in excess of his authority? The court then charged the jury, among other things, that the plaintiff was a trespasser on the car; but if the baggage-man, nevertheless, in the discharge of his duty, pushed him off the train in an improper manner, and at a dangerous place, the defendant was THIRD DEPARTMENT, DECEMBER TERM, 1874.. liable; to which the defendant excepted. The court also charged the jury, that if the baggage-man pushed the boy off the train, and in doing so was acting as the employe of the defendant, in good faith, in the discharge of a duty he owed the company, the defendant would be liable for his careless and negligent discharge of his duty (to which the defendant also excepted); but if he was acting willfully and maliciously toward the plaintiff, outside of and in excess of his duty, then the baggage-man, alone, would be responsible, in law, for the consequences. To which the defendant excepted. The court further charged as follows: "If you hold the defendant liable, the remaining question will be the amount of damages to which the plaintiff is entitled. This should be compensation for the injury and loss which he has sustained, as well as for the suffering he has endured. This sum is in your discretion, but should be arrived at by the exercise of your good sense. The defendant, though a corporation, is entitled to the same treatment as an individual. You should not allow any prejudice or hostility toward railroads, to warp your judgment or aggravate the damages. Your verdict should be the unbiased and deliberate expression of your honest judgment; such a verdict as a sound public sentiment will approve and sustain." To which last expression, in reference to a sound public sentiment, the defendant excepted. E. H. Prindle, for the plaintiff. F. Kernan, for the defendant. COUNTRYMAN, J.: The point is clearly presented on the various rulings at the trial, to which exceptions were taken, whether any relation existed between the defendant and the plaintiff at the time of his misadventure, which imposed on the defendant any duty or obligation of care or protection toward him, at least as against personal injury directly caused by the positive acts of its own agents or servants. It must be allowed that the plaintiff had no right to be on the car at the time and place, and under the circumstances disclosed by the evidence. He was not a |