himself be free from negligence. He must furnish the servant the means and appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result, he is as liable to the servant as he would be to a stranger. In other words, whilst claiming such exemption he must not himself be guilty of contributory negligence.

exert some influence over the conduct of the other, and thus to some extent provide for his own security, yet that it could not apply where two or more are employed in different departments of duty at a distance from each other, and where one can in no degree control or influence the conduct of another, it answered that the objection was founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. "When the object to be accomplished," it said, "is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department aud what a distinct department of duty. It would vary with the circumstances of every case." And it added, "that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of provid

connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied." 4 Met. 49, 60.

When the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is necessarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both in this country and in England, that there is implied in his contract of service in such cases that he takes upon himself the risks arising from the negligence of his fellow servants, while in the same employment, provided always the master is not negligent in their selection or retention, or in furnishing adequate materials and means for the work; and that if injuriesing for his safety, when he is employed in immediate then befall him from such negligence, the master is not liable. The doctrine was first announced in this country by the Supreme Court of South Carolina in 1841, in Murray v. Railroad Co., 1 McMullan, 385, and was affirmed by the Supreme Court of Massachusetts the following year in Farwell v. Boston and Worcester R. Co., 4 Met. 49. In the South Carolina case a fireman, whilst in the employ of the company, was injured by the negligence of an engineer also in its em ploy, and it was held that the company was not liable, the court observing that the engineer no more represented the company than the fireman; that each in his separate department represented his principal; that the regular movement of the train of cars to its destination was the result of the ordinary performance by each of his several duties; and that it seemed to be on the part of the several agents a joint undertaking where each one stipulated for the performance of his several part; that they were not liable to the company for the conduct of each other, nor was the company liable to one for the conduct of another, and that as a general rule, when there was no fault in the owner, he was only liable to his servants for wages.

In the Massachusetts case, an engineer employed by a railroad company to run a train on its road was injured by the negligence of a switch-tender also in its employ, and it was held that the company was not liable. The court placed the exemption of the company, not on the ground of the South Carolina decision, that there was a joint undertaking by the fellow servants, but on the ground that the contract of the engineer implied that he would take upon himself the risks attending its performance, that those included the injuries which might befall him from the negligence of fellow servants in the same employment, and that the switch-tender stood in that relation to him. And the court added, that the exemption of the mas ter was supported by considerations of policy. "When several persons," it said, "are employed in the conduct of one common enterprise or undertaking, and the safety of each depends on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity or neglect of duty, and leave the service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other." And to the argument, which was strongly pressed, that though the rule might apply where two or more servants are employed in the same department of duty, where each one can

The opinion in this case, which was delivered by Chief Justice Shaw, has exerted great influence in controlling rhe course of decisions in this country. In several States it has been followed, and the English courts have cited it with marked commendation.

The doctrine of the master's exemption from liability was first distinctly announced in England in 1850 by the Court of Exchequer in Hutchinson v. The York, New Castle and Berwick R. Co., 5 Exch. 343; Priestly v. Fowler, 3 Mees. & Wels. 1, which was decided in 1837, and is often cited as the first case declaring the doctrine, did not directly involve the question as to the liability of a master to a servant for the negligence of a fellow servant. In that case a van of the defendant in which the plaintiff was carried was out of repair and overloaded, and consequently broke down and caused the injury complained of; but it did not appear what produced the defect in the van or by whom it was overloaded. The court in giving its decision against the plaintiff observed that if the master was liable, the principle of that liability would "carry us to an alarming extent; " and in illustration of this statement said that if the owner of a carriage was responsible for its sufficiency to his servant, he was under the principle responsible for the negligence of his coach-maker or harness-maker or coachman, and mentioned other instances of such possible responsibility to a servant for the negligence of his fellows,concluding that the inconvenience of such consequences afforded a sufficient argument against the application of the principle to that case. The case therefore can only be considered as indirectly asserting the doc. trine. At any rate, the Hutchinson case is the first one where the doctrine was applied to railway service. There it appeared that a servant of the company, who in the discharge of his duty was riding on one of its trains, was injured by a collision with another train of the same company, from which his death ensued; and it was held that his representatives could not recover as he was a fellow servant with those who caused the injury; and the court said that whether the death resulted from the mismanagement of the one train or the other, or of both, did not affect the principle. The rule was applied at the same time by that court to exempt a master builder from liability for the death of a

bricklayer in his employ caused by the defective construction of a scaffolding by his other workmen, by reason of which it broke and the bricklayer at work upon it was thrown to the ground and killed. Wigmore v. Jay, 5 Exch. 354.

The doctrine assumes that the servant causing the injury is in the same employment with the servant injured, that is, that both are engaged in a common employment. The question in all cases therefore is, what is essential to render the service in which different persons are engaged a common employment? And this question has caused much conflict of opinion between different courts, and often much vacillation of opinion in the same court.

In Bartonshill Coal Co. v. Reid, and the same company v. McGuire, reported in 3 Macqueeu, 266 and 300 H. L. Cases, decided in 1858, the parties injured were miners employed to work in a coal pit, and the party, whose negligence caused the injury, was employed to attend to the engine by which they were let down into the mine and brought out, and the coal was raised which they had dug; and it was held that they were engaged in a common work, that of getting coal from the pit. The miners," said the court in the latter case, "could not perform their part unless they were lowered to their work, nor could the end of their commou labor be attained unless the coal which they got was raised to the pit's mouth, and of course at the close of their day's labor the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the per. son intrusted with the machinery might be occasionally negligent and fail in his duty." Lord Chancellor Chelmsford, who gave the principal opinion in the latter case, referred to previous cases in which the master's exemption from liability had been sustained, and said: "In the consideration of these cases it did not become necessary to define with any great precision what was meant by the words 'common service' or 'common employment,' and perhaps it might be difficult beforehand to suggest any exact definition of them. It is necessary however in each particular case to ascertain whether the servants are fellow laborers in the same work, because although a servant may be taken to have engaged to encounter all riske which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Where servants therefore are engaged in different departments of duty, an injury committed by one servant upon another, by carelessness or negligence in the course of his peculiar work, is not within the examination, and the master's liability attaches in that case in the same manner as if the injured servants stood in no such relation to him." The lord chancellor also commented upon some decisions of the Scotch courts, and among others that of McNaughton v. Caledonian R. Co., 19 Ct. of Sess. Cas. 271, and said that it might be sustained without conflicting with the English authorities on the ground that the workmen in that case were engaged in totally different departments of work; the deceased being a joiner or carpenter, who at the time of the accident was engaged in repairing a railway carriage, and the persons by whose negligence his death was occasioned, were the same engine driver and the persons who arranged the switches." And in the same case Lord Brougham, after mentioning the observations of a judge of the Scottish courts, that an absolute and inflexible rule releasing the master from responsibility in every case where one servant is injured by the fault of another was utterly unknown to the law of Scotland, said that

it was also utterly unknown to the law of England, and added: "To bring the case within the exemption there must be this most material qualification, that the two servants must be men in the same common employment, and engaged in the same common work under that common employment."

Later decisions in the English courts extend the master's exemption from liability to cases where the servant injured is working under the direction of a foreman or superintendent, the grade of service of the latter not being deemed to change the relation of the two as fellow servants. Thus in Wilson v. Merry, decided by the House of Lords in 1868 on appeal from the Court of Session of Scotland, the sub-manager of a coal pit, whose negligence in erecting a scaffold which obstructed the circulation of air underneath, and led to an accumulation of fire-damp that exploded and injured a workman in the mine, was held to be a fellow servant with the injured party. And the court laid down the rule that the master was not liable to his servant unless there was negligence on the master's part in that which he had contracted with the servant to do, and that the master, if not personally superintending the work, was only bound to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work; that when he had done this he had done all that he was required to do, and if the persons thus selected were guilty of negligence, it was not his negligence, and he was not responsible for the consequences. L. R., 1 H. L. Scotch App. 326. In this case, as in many others in the English courts, the foreman, manager or superintendent of the work, by whose negligence the injury was committed, was himself also a workman with the other laborers, although exercising a direction over the work. The reasoning of that case has been applied so as to include, as contended here, employees of a corporation in departments separated from each other; and it must be admitted that the term common employment," under late decisions in England, and the decisions in this country following the Massachusetts case, is of very comprehensive import. It is difficult to limit it so as to say that any persons employed by a railway company, whose labors may facilitate the ruuning of its trains, are not fellow servants however widely separated may be their labors. See Holden v. Fitchburgh R. Co., 129 Mass. 268.

But notwithstanding the number and weight of such decisions, there are in this country many adjudications of courts of great learning, restricting the exemption to cases where the fellow servants are engaged in the same department, and act under the same immediate direction; and holding that within the reason and principle of the doctrine, only such servants can be considered as engaged in the same common employment. It is not however essential to the decision of the present controversy to lay down a rule which will determine, in all cases, what is to be deemed such an employment, even if it were possible to do so.

There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation, exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact and should be treated as the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. This view of his relation to the

corporation seems to us a reasonable and'just one, and it will insure more care in the selection of such agents, and thus give greater security to the servants engaged under him in an employment requiring the utmost vigilance on their part, and prompt and unhesitating obedience to his orders. The rule which applies to such agents of one railway corporation must apply to all, and many corporations operate every day several trains over hundreds of miles at great distances apart, each being under the control and direction of a conductor specially appointed for its management. We know from the manner in which railways are operated, that subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and every thing essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow servant with the fireman, the brakemen, the porters and the engineer. The latter are fellow servants in the running of the train under his direction, who, as to them and the train, stands in the place of and represents the corporation. As observed by Mr. Wharton in his valuable Treatise on the Laws of Negligence: "It has sometimes been said that a corporation is obliged to act always by servants, and that it is unjust to impute to it personal negligence in cases where it is impossible for it to be negligent personally. But if this be true it would relieve corporations from all liability to servants. The true view is, that as corporations can act only through superintending officers, the negligence of those officers with respect to other servants are the negligences of the corporation." § 232 a. The author in a note refers to Brickner v. New York Cent. R. Co., decided in the Supreme Court of New York, and afterward affirmed in the Court of Appeals; and to Malone v. Hathaway, decided in the latter court, in which opinions are expressed in conformity with his views. These opinions are not, it is true, authoritative, for they do not cover the precise points in judgment; but were rather expressed to distinguish the questions thus arising from those then before the court. They indicate however a disposition to engraft a limitation upon the general doctrine as to the master's exemption from liability to his servants for the negligence of their fellows, when a corporation is the principal, and acts through superintending agents. Thus in the first case the court said: "A corporation cannot act personally. It requires some person to superintend structures, to purchase aud control the running of cars, to employ and discharge men, and provide all needful appliances. This can only be done by agents. When the directors themselves personally act as such agents they are the representatives of the corporation. They are then the executive head or master. Their acts are the acts of the corporation. The duties above described are the duties of the corporation. When these directors appoint some person other than themselves to superintend and perform all these executive duties for them, then such appointee, equally with themselves, represents the corporation as master in all these respects. And though in the performance of these executive duties he may be, and is, a corporation, he is not in those respects a co-servant, a co-laborer, a co-employee, in the common acceptation of those terms, any more than is a director who exercises the same authority." 2 Lans. 516. Affirmed in 49 N. Y. 672.

And in Malone v. Hathaway, in the Court of Appeals, Judge Allen says: "Corporations necessarily acting by and through agents, those having the superintendence of various departments, with delegated au

thority to employ and discharge laborers and employees, provide materials and machinery for the service of the corporation, and generally direct and control under general powers and instructions from the directors, may well be regarded as the representatives of the corporation, charged with the performance of its duties, exercising the discretion ordinarily exercised by principals, and within the limits of the delegated authority, the acting principal. These acts are in such case the acts of the corporation, for which and for whose neglect the corporation, within adjudged cases, must respond, as well to the other servants of the company as to strangers. They are treated as the general agents of the corporation in the several departments committed to their care." 64 N. Y. 5, 12. See also Corcoran v. Holbrook, 59 id. 517.

In Little Miami R. Co. v. Stevens, the Supreme Court of Ohio held that where a railroad company placed the engineer in its employ under the control of a conductor of its train, who directed when the cars were to start, and when to stop, it was liable for an injury received by him caused by the negligence of the conductor. 20 Ohio, 415. There a collision between two trains occurred in consequence of the omission of the conductor to inform the engineer of a change of places in the passing of trains ordered by the company. Exemption from liability was claimed on the ground that the engineer and conductor were fellow servants, and that the engineer had in consequence taken, by his contract of service, the risk of the negligence of the conductor; and also that public policy forbade a recovery in such cases. But the court rejected both positions. To the latter it very pertinently observed that it was only when the servant had himself been careful that any right of action could accrue to him, and that it was not likely that any would be careless of their lives and persons or property merely because they might have a right of action to recover for injuries received. "If men are influenced," said the court, "by such remote considerations to be careless of what they are likely to be most careful about, it has never come under our observation. We think the policy is clearly on the other side. It is a matter of universal observation that in any extensive business where many persons are employed, the care and prudence of the employer is the surest guaranty against mismanagement of any kind." In Railway Co. v. Keary, 3 Ohio St. 201, the same court affirmed the doctrine thus announced, and decided that when a brakeman in the employ of a railroad company, on a train under the control of a conductor having exclusive com mand, was injured by the carelessness of the conductor, the company was responsible, holding that the conductor in such case was the sole and immediate representative of the company upon which rested the obligation to manage the train with skill and care. In the course of an elaborate opinion the court said that from the very nature of the contract of service between the company and the employees, the company was under obligation to them to superintend and control with skill and care the dangerous force employed, upon which their safety so essentially depended. "For this purpose," said the court, "the conductor is employed, and in this he directly represents the company. They contract for and engage his care and skill. They commission him to exercise that dominion over the operations of the train which essentially pertains to the prerogatives of the owner, and in its exercise he stands in the place of the owner, and is in the discharge of a duty which the owner, as a man and a party to the contract of service, owes to those placed under him, and whose lives may depend on his fidelity. His will alone controls every thing, and it is the will of the owner that his intelligence alone should be trusted for this

reason and humanity, and have tended to interpose NEW YORK COURT OF APPEALS ABSTRACT. an unwarrantable shield between the conduct of railway employees and the just responsibility of the company. We trust that the reasonableness and justice of this construction will at no distant day induce its universal adoption." Vol. 1, 554.

OF FRAUDS-COLLATERAL.-Defendants guaranteed, in writing, the return in six months of certain bonds loaned by plaintiffs to the R. I. M. Co. The bonds not having been returned, and defendants having been informed that plaintiffs intended to sell them upon the guaranty, verbally agreed that if plaintiffs would recover a judgment against the company, they would take an assignment thereof, return to them the bonds and pay the costs. Plaintiffs in pursuance of the agree. ment, immediately brought suit against the company, recovered and perfected judgment, and tendered a written assignment thereof to plaintiffs, and demanded a performance of the agreement, which was refused. In an action upon the agreement, held, that it was supported by a sufficient consideration; that the performance by plaintiffs of the acts upon which defendant's promise was conditioned supplied the place of a previous promise to perform. The contract was not within the statute of frauds and was valid and biuding. The agreement was not collateral to any obligaentered into by the defendants for their own benefit, tion of the company, but was an original undertaking and for the purpose of settling the claim the plaintiff's had against them on their original guaranty, and obtaining such indemnity as they could by a judgment against the company. Beckwith v. Brackett. Opinion by Rapallo, J.

[Decided Oct. 7, 1884.]

SPECIFIC PERFORMANCE-PURCHASER OBJECTING TO TITLE-DEFECTS IN RECORDS CURED BY PAROL.-A purchaser cannot justify his refusal to perform his contract by a mere captious objection to the title tendered him; nor is it sufficient for him when the jurisdiction of an equity court is invoked to compel him to perform his contract, merely to raise a doubt as to the vendor's title. Before he can successfully resist performance of his contract on the ground of defect of title, there must be at least a reasonable doubt as to

the vendor's title-such as affects its value, and would interfere with its sale to a reasonable purchaser, and thus render the land unmarketable. A defect in the record title may, under certain circumstances, furnish a defense to the purchaser. But there is no inflexible rule that a vendor must furnish a perfect record or paper title. It has frequently been held that defects in the record or paper title may be cured or removed by parol evidence. Seymour v. Delancey,Hopk.ch.436; Miller v. McComb, 26 Wend. 229; Fagen v. Davison,2 Duer, 153; Brooklyn Park Com. v. Armstrong, 45 N. Y. 234; Murray v. Harway, 56 id. 337; Shriver v. Shriver, 86 id. 575. In this action the records in the county clerk's office showed a deed of the lands to" Electa Wilds," and a subsequent deed, executed in 1867, from "Electa Wilder" to one S., which deeds were in plaintiff's claim of title; the defect alleged was that the records showed no conveyance from Electa Wilds. It appeared that under the last deed, the title was held and the land occupied up to the trial of the action in 1881; that the deed to S. had been destroyed, but a mortgage given by him for purchase-money was produced, in which Electa Wilds was named as mortgagee. The commissioner who took the acknowledgment to said deed and S. both testified that the grantor was Electa Wilds, and that said grantor and the grantee in the former deed was the same person. Held, that there was no defect in the title, and defendant was not justified in refusing to perform. Hellreige v. Manning. Opinion by Earl, J.

[Decided Oct. 7, 1884.]

common-law certiorari improperly issued in a case not reviewable by certiorari is appealable to this court. It is claimed that order is not appealable and the case of Jones v. People, 79 N. Y. 45, is referred to as an authority to that effect. That case simply decides that where a certiorari has been lawfully issued, it is discretionary with the court whether or not to quash it. The question presented in that case was whether the Supreme Court might lawfully issue a certiorari to remove an indictment into that court from the Court of Oyer and Terminer, at the instance of the prosecution. This court held that the Supreme Court had power to issue the writ, and therefore it was within its discretion whether to quash it, or remand the case to the Oyer and Terminer, or proceed to its disposition in the Supreme Court, and that no appeal would lie from an order denying a motion to quash. The case is not an authority for the proposition that an order denying a motion to quash a certiorari irregularly or improperly issued, in a case not reviewable on certiorari, is not appealable. In such a case this court might of its own motion direct the writ to be quashed. Such a writ lies only to inferior tribunals or officers exercising judicial powers to correct errors of law affecting materially the rights of parties. The fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action or powers judicial in their character. People v. Walter, 68 N. Y. 403. The board of commissioners of the department of public parks of the city of New York, claiming authority by statute, Laws 1871, §§ 1, 3, ch. 534; ch. 613, Laws 1873; § 14, ch. 329, Laws 1874, consented to the construction of an elevated bridge over the Harlem river by the S. R. I. Co., and entered into a contract with that company for the building of the bridge at its expense under certain regulations and conditions. Held, that the proceedings of the board were not reviewable by certiorari, as if they had the power they acted as public agents, and their action was not subject to review in that manner; if they had no power, their consent was a nullity and affected the rights of no one. A writ of certiorari was directed to the board as such. Held, that as the board was a mere department of the city government (Laws 1873, ch. 335), and uo action could be brought against it by its official name, the writ was irregular; it should have been directed to the members of the board "by their names."

BANK-TRANSFORMED FROM STATE INTO NATIONAL -RIGHT TO ENFORCE CONTRACTS.-Where under the provisions of the National Banking Act, and under authority of the Act of 1865, ch. 97, a State bank is transformed into a National bank, it is but a continuance of the same body under a change of jurisdiction, and between it and those who have contracted with it, it retains its dentity and may, as a National bank, enforce contracts made with it as a State bank. Where therefore a State bank, at the time of its change to a National bank, held a continuing guaranty of loans made by it to defendant's firm, upon the strength of which it had made loans, and after the change further advances were made, held, that an action was maintainable by the National bank upon the guaranty, and that guarantor was liable for the loans made both be-Section 2129 of the Code of Civil Procedure provides fore and after the change. The general scheme of the National Banking Act is that State banks may avail themselves of its privileges and subject themselves to its liabilities, without abandoning their corporate existence, without any change in the organization, officers, stockholders, or property, and without interruption of their pending business or contracts. All property and rights which they hold before organizing as National banks are continued to be vested in them under their new status. Great inconveniences might result if this saving of their existing assets did not include pending executory contracts, and pending guarantees, as well as vested rights of property. Although in form their property and rights as State banks purport to be transferred to them in their new status of National banks, yet. in substance there is no actual transfer from one body to another, but a continuation of the same body, under a changed jurisdiction. As between it and those who have contracted with it, it retains its identity, notwithstanding its acceptance of the privilege of organizing under the National Banking Act. City Nat. Bank of Poughkeepsie v. Phelps. Opinion by Rapallo, J. [Decided Oct. 7, 1884.]

CERTIORARI-MOTION TO QUASH DENIED-ORDER APPEALABLE.-An order denying a motion to quash a

that where the writ is brought "to review the deter
mination of a board or body other than a court, if an
action would lie against the board or body in its asso-
ciate or official name, it must be directed to the board
or body by that name; otherwise it must be directed
to the members by their names." People ex rel. Sec-
ond Ave. R. Co. v. Board of Com. of Dept. Pub. Works.
Opinion by Rapallo, J.
[Decided Oct. 7, 1884.]

TRIAL ISSUES IN EQUITY CASES-VERDICT OF JURY MERELY ADVISORY-CODE, §§ 972, 1003-EVIDENCEADMISSIONS FAILURE TO ANSWER LETTER NOT BOUND BY STATEMENTS THEREIN.-The provisions of the Code Civil Pro., §§ 972,1003, providing for the determination of the other issues of fact in an equity case, where one or more specific questions have been submitted to a jury, and also for the review of the verdict of the jury upon the questions submitted, does not change the old practice, and under the Code the verdict of the jury, although a motion for a new trial has been denied, is not conclusive upon the court, and can only be read on the hearing with full power in the court to follow or to reject as it may deem fit and proper. It is only a part of the evidence, and if for any reason it is deemed unauthorized, it can be rejected, and is not obligatory upon the court. The object of