author: By the Court, Martin, J.

text:
    Moore vs. Sanborne et al.

    The common law rule that those rivers only aro subject to the servitude of the public interests which are of public or common use, for carriage of boats and lighters, and for transportation of property, has been enlarged in this country, and in nearly all the States has been extended, so as to be adapted to the necessities of trade and commerce, and to embrace rivers upon which, in their natural state, there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. The fact that u> floatable stream has not been used by the public, or has only been used by persons following a particular occupation, docs not deprive such stream of its public character. Although in some of the States usage and custom have been regarded as the foundation of this public right in fresh rivers, in the new States of the Union, from necessity and the nature of tilings, such cannot he the foundation of the public right.
    The true test in determining the right of public use in fresh water streams, as public highways, is whether a stream is inherently and in its nature, capable of being used for the purposes of commerce for the floating of vessels, boats, rafts or logs. Where a stream possesses such a character the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it.
    The Ordinance of 1787 iu declaring “that the navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and forever free,” supercedes the common law doctrine of the necessity of usage or custom to establish a public right, even if that rule would otherwise prevail in the region over which this Ordinance was designed to extend.
    It is not necessary that a stream should be susceptible of navigation by boats, to render it a public highway. The servitude of public interest depends rather upon the purpose for which the public requires the use of its streams, than any particular mode of use.
    The public right of use in streams is not affected by the fact that they have not a capacity for floatage, in their natural and ordinary stage, at all seasons of the year. It is a valuable and not a continual capacity of use, which determines the right.
    To render an employer responsible for the fault or negligence of his employee, the injury complained of must arise in the course of the execution of some service lawful in itself hut negligently or unskillfully performed: for the wanton violation of law by a servant,although occupied about the business of his employer, such servant is alone responsible.
    An employer made a bargain with his employee to cut all the logs the employer had on certain land, and to deliver them to the employer at a place named, the employer having no interest in the running of the logs, until they reached the point of delivery, nor to render any assistance, pecuniary or otherwise, in the cutting or running of the logs: Held, that the relation of master and servant did not exist, and that the employee alone was liable for any injury occasioned to others by his conduct in performing Ms contract.
    Error to St. Clair Circuit.
    The facts are set forth in the opinion of the Court.

      R. P. Eldredge, for plaintiff in error.
    (?. V. M Lothrop, for defendants in error.
   By the Court, Martin, J.

This was an action on the case, to recover damages for an alleged obstruction of Pine River, claimed to be a public highway. From the case presented, we gather that Pine River is a small stream, emptying into the St. Clair. That from its mouth, to a place called the “Deer Licks,” a distance of about six miles, it is navigable at all seasons, for boats, rafts, logs, &c., while above the “deer licks,” and to a point above where the parties used the same, the river was only capable of being used for floatage during the periodical freshets, or at least “not at ordinary times in summer;” and that the usual length of the freshets is from two to three weeks. It appears also, that the river has been used for running logs and lumber for some fifteen or sixteen years; and from the “deer licks” down, over twenty years.

The purpose for which it is alleged the parties to this suit were occupying the river at the time of the injury complained of, was floating logs from points above the “ deer licks” (but how far the ease does not disclose,) to its mouth, and it appears that other individuals had, at the same-time, logs in the river, floating upon the current and driven in connection with those in question, and that the logs of all combined, amounting to some 10,000 to 15,000, framed the jams which occasioned the delay and injury complained of.

Among the several questions presented by the bill of exceptions, two of considerable interest are embraced.

The first is, is Pine River a public highway ?

Upon the trial below, as appears from the bill of exceptions, the Court charged the jury, that, “if they should find Pine River to have been used as a highway for the purpose of floating mill logs, even though, at times, at low water, it was not so capable of floating them, they would find it a public highway, to the use of which the public had a right;” and from the charge, which is made a part of the bill, it appears that the Court also instructed the jury as follows: “It is asserted, and I have no doubt with truth, that this suit is not brought principally to recover dollars and cents, but to obtain a judicial settlement of the important questions to which I have alluded. Now for the purpose of presenting and having determined the whole question, as to how far the public have a right to use our inland rivers, and for the government of your action, I shall rule that Pine River up to that point where you may find that the parties cut and put into it, and from which point logs are run to market, or to the mouth of the river, is a public highway, in which the whole public have an easement; that, although the soil over which the river runs may be owned by the adjacent proprietors, the riparian owner's, the public have a right to the use of tíre river in floating to a market, logs, rafts, &c., found or produced upon its banks.” It further appears that the Court refused the request of the plaintiff in error, to charge, “that if the jury should find that Pine River and its branches above the point on the river known as the “deer licks,” are not of sufficient depth to float mill logs in an ordinary stage of the water, that said river and its branches above said point, is not a public highway, or navigable stream;” and also refused the further request to charge that if they “should find that Pine River above the “deer licks,” is not of sufficient depth to float logs in an ordinary stage of water, and has not been used for floating logs for a period of twenty years, or upwards, it is not a public highway, and defendant is not liable in this action.”

As the river in question is a small stream, and but of limited capacity for floatage, the question is fairly and distinctly presented, as to what streams are to be regarded as public highways in this State, so as to be under the servitude of the public interests.

The doctrine of the English Common Law in relation to navigable waters, can aid us very little in the consideration of this question, as we have no navigable streams within the common law signification of that term. Uor can its doctrine as to rivers not navigable, yet public highways from their adaptation to public use, be fully and literally adopted by us. The length and magnitude of many of our rivers, the occasions and necessities for their use, and the nature and character of our internal commerce all require a liberal adajjtation of those doctrines to our circumstances and wants, and to a condition of things, both as to capability of our streams for public use, and the occasions for such use, entirely different from, and in many respects altogether new to, those which concurred to establish the common law rule, and we accordingly find that in all the States that rule has been enlarged so as to meet the condition and wants of the public and the necessities of trade and commerce. (See Angell on Water Courses, § 546, 550; and cases cited 1 McLean, 350; 2 Ib., 376; 10 John., 237; 2 Fairf, 278; 3 N. H., 321; 31 Maine, 9.)

Most of the cases which are to be found in the books, involve the rights of riparian owners, and concern private interests, as fisheries, <fcc., and I have been, unable to find any case where the distinct question of the right to a passage along a river has been raised and litigated between individuals claiming no riparian right, and depending alone upon the public easement, as is the present. Hence the danger of adhering too •closely to the authority of those eases, or of attempting to deduce from them a rule ¡¡which shall determine the question here raised — for not unfrequently the rights of the public are loosely, or only incidentally mentioned, and generally those of the litigants are determinded by altogether different rules, and upon altogether different principles from those of persons claiming only a right of passage, as between themselves.

Yet, even in those cases where the rights of riparian owners have been litigated, it will be found that the right of the public to a common passage, has been liberally supported and applied. (See cases above cited, also 5 Ohio, 410; 17 John., 195.),

Strictly, at the common law, those rivers only are subject to the servitude of the public interests, which are of common or public use for carriage of boats and lighters, and for transportation of property. “There be some streams or rivers,” says Lord Hale, in his treatise “Ne Jure,” &c., “that are private, not only in propriety or ownership, but also in use, as little streams or rivers that are not a common passage for the King’s people. Again, there be other rivers, as well fresh as salt, that are of common or public use, for carriage of boats and lighters — ■ and these, whether they are fresh or salt — whether they flow and re-flow, or not, are prima facie, publici juris, common highways for man or goods, or both, from one inland town to another.” Like every other rule of the common.law, this, sprang from usage, and immemorial custom, and giving to it its broadest signification, it could only have had application to those rivers which were susceptible of use by the public generally, for navigation, and their adaptation to a particular use by individuals, in the corn-se of their trade, but not to general use, -would not constitute them public highways. But in this country the public right cannot depend upon custom, or upon general use — and we accordingly find that in nearly all the States, this rale has been extended so as to be adapted to the necessities of our trade and commerce, and to embrace all streams upon which in their natural state, there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. A stream which can, only be made floatable by artificial means, can in no sense be deemed a public highway, nor on the other hand, can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character. This principle is one of vast importance to the interests of this and all new States. We have a large territory yet undeveloped, rich in forest and in mineral wealth — washed by vast bodies of water upon three sides, and threaded by innumerable streams which are capable of navigation, many of which are, and many others of which may be made serviceable in developing its resources — and with a commerce already established, rivaling in extent, that of some of the Atlantic States, and. rapidly growing under the influence of increasing popirlation, settlements, and wealth, it is of the first importance that the rights of the public be recognized, to the free use of all streams susceptible of any valuable floatage. In-this commerce, our lumbering interests sustain, and will continue to sustain an important part, and their success depends to a vast, if not entire extent, upon this principle. Indeed, a moment’s reflection will convince us that a liberal application and retention of the common law rule, and its adaptation to our condition and wants, lies at the bottom of this branch of our trade. Although in some of the States usage and custom has been regarded as the foundation of this public right in fresh rivers, yet, in others the application of this doctrine has been denied.. In the new States, from necessity, and the very nature of things, such cannot be the foundation of the public right.

In Brown vs. Chadbourn, (31 Maine, 9,) the Court, after an examination of the authorities, nearly every one of which was cited by counsel in the argument of this cause, deny the application of the doctrine of' prescription to this class of cases. “If,” say the Court, “a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of those rivers which-Nature has plainly declared to be public highways. The true tesi^ therefore, to be applied in such cases is, whether a stream is inherently and in its nature, capable of being used for the purposes of commerce

for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, then the easement exists, leaving to the owners •of the bed all other modes of use, not .inconsistent with it.” .

The Ordinance of 1Y87, would supersede this doctrine of the necessity of usage or custom, to establish a public right over our rivers, even ■were such the established rule of the common law. It declares that • '■the navigable waters flowing into the' Mississippi and St. Lawrence, shall bo common highways and forever free. It was framed without regard, to the common law rule as to what constituted navigable waters, •and was designed to extend over all streams which were capable of being used for any purposes of public utility. This Ordinance, it will be remembered, was established long befdfe any considerable settlement of the Terrritory over which its provisions were to extend, and it was in- • tended to provide for future contingencies, rather than for immediate application — was, in fact, the declaration bf a perpetual reservation of rights to the public, subordinate to which, individual rights should be acquired. Hence, of necessity, it must supersede such doctrine of user, if indeed, it were ever applicable to such cases, for it was designed to extend over streams and waters then'lying in the unbroken wilderness, unnavigated.except by the Indians’ canoe; and as that wilderness should be opened and settled, and its streams be .required for commercial use, the public right attached immediately, and of necessity.

It was contended in argument, in behalf of the plaintiff in error, that the capacity of a stream to float logs and rafts, was no criterion of the public right of servitude; but that to'render a river a public highway, it must be susceptible of navigation by boats. But this, we apprehend, is too narrow a rule upon which, in this country, to establish the rights of the public, and as already intimated, such is not the rule in any of the States. The servitude of the public interest depends rather upon the purpose for which the. public requires the use of its streams, than upon any particular mode of use — and hence, in a region where the principal business is lumbering, or the pursuit of any particular branch of manufacturing or trade, the public claim to a right of passage along its streams must depend upon their capacity for the use to which they can be made subservient. In one instance, perhaps, boats can only be used profitably, from the nature of the product to be tons-ported — whilst, in another, they would be utterly useless. Upon many of our streams, although of sufficient capacity for navigation by boats, they are never seen — whilst rafts of lumber of immense value, and mill logs which are counted by thousands, are annually floated along them to market. Accordingly, we find that a capacity to float rafts and logs in those States where the manufacture of lumber is prosecuted as a branch of trade, is recognized as a criterion of the public right of passage and of use, upon the principle already adverted to, that such right is to be ascertained from the public necessity and occasion for such uae. (See 3 N. H., 321; 2 Fairf., 278; 31 Maine, 9.) The case of Munson vs. Hungerford, (6 Barb. S. C. R., 268,) does not negative this idea, nor does it furnish any principle for our guidance; for the facts upon which it depended repelled the presumption that the public could have had any valuable right of passage, or floatage upon Black River, by reason of its rapid and broken current. In Wadsworth vs. Smith, (2 Fairf, 278,) it was expressly held, that if a stream be naturally of sufficient size to float boats, or mill logs, the public have a right to its free use for that purpose.

But it is urged that conceding such to be the rule, if a stream be not capable of being used to float mill logs, in an ordinary stage of water, it is not subject to the servitude of the public interests. But we have already attempted to show that a capacity for use to meet the public necessities, furnishes the true test in such cases. It is a valuable, rather than a continual use, which determines the public right Any other rule, as remarked by counsel upon the argument, would deprive many of our large rivers of their public character. “The law nowhere defines the character of a stream by admeasurement of its volume.” An ordinary stage cannot be construed as meaning a continual stage, nor an average stage. Such stage, common experience teaches us, varies with the seasons. An ordinary stage in the summer months, is very different from an ordinary stage in the spring and autumn months. The term has relation rather to the susceptibility of a stream for use, in a natural condition, without the application of artificial means, as dams for the purpose of flooding, than to a continuous capacity for floatage, and is used in contradistinction from an extraordinary and unnatural stage. That which occurs periodically, can hardly be said to be unusual, much, less extraordinary. But the case of Brown vs. Chadbourn, (31 Maine, 9,) is so directly apposite to.the case at bar, and establishes principles so perfectly adapted to our condition and interests, that it appeal® almost unnecessary to do more than to refer to and adopt it^ as meeting with our entire approval.

That was an action in case,- for maintaining a dam across Little River, and thereby obstructing plaintiffs logs. That was a fresh water river three miles long, flowing from Boyden’s lake to tide water. Its width varied from seven or eight feet to three or four rods. The defendant owned lands on both sides of this river, at the point where the dam was built, and the obstruction was occasioned. Upon the trial, many of the questions which are fóund in this ease arose, and the Court was requested to charge the jury, amongst other things, that “to constitute Little River a navigj&le or floatable stream, it must be shown to be capable, in its ordinary and natural state, of floating logs, boats, and rafts — and it is not enough to prove that logs may be carried down at certain seasons of the year, when the stream is raised by a freshet ” which was refused; and the Court held, that it was not necessary, in order to determine a stream a public highway, that it should have a capacity for floatage, in .its natural and ordinary stage, at all seasons of the year, and that none of the authorities required this test. “A distinguishing criterion,” (saysthe Court,) “consists in its fitness to answer the wants of those whose business require its use. Its perfect adaptation to such use may not exist at all times, although the right to it may continue to be exercised, whenever an opportunity occurs.” And in further discussion of this question, the Court further says: “Most of the great, rivers of this State in some portions of their passage, are so much impeded by rocks, falls, or other obstructions, that logs cannot be floated in them any great distance, at what may be called an ordinary state of the water. They generally remain in this condition a sufficient length of time to answer the purposes of a common highway, and their fitness, and character as such, cannot be .destroyed, because they cannot be used in their ordinary state. A test so rigid and severe as that required by the instruction requested, would annihilate the public character of all our fresh water rivers for many miles, in their course from their sources toward the ocean. The timber floated upon our waters to market, is of great value, and neither the law nor public policy requires the adoption of a rule which would so. greatly limit their use for that purpose.” It may be difficult in some cases to draw the line between-public and private streams. This must be determined by the jury, from the facts presented in the case, and the rules of law as applicable to such facts.

The next question which arises in this case is, whether the plaintiff in error was liable in any event, to the defendants in this action. It appears that one Stewart, was the person employed in getting out and running the logs in question. Upon the trial, he was produced as a witness in behalf of the plaintiff in error, who offered to prove by him in defense of the action, “ that the plaintiff in error made a bargain with him, Stewart, previous to 1850, to cut all the logs that such plaintiff in error had upon a certain quarter section of land — N E % of Sec. 7, T 6 N, R 16 E, in St. Clair county, and deliver them to the said plaintiff in error, at the mouth of Pine River, in the village of St. Clair, at 12s per M. feet, and that the logs spoken of by defondants in error’s witnesses, as marked “R. M.,” were cut under that contract;” and further, to show that at the time he cut and run the logs in question, he was not the servant or agent of the plaintiff in error, and that plaintiff had no interest in the running of the logs until they reached the mouth of Pine River, nor was he to render any assistance, pecuniary, or otherwise, in the cutting or running of said logs. This proposition was made in several forms, and objected to by the defendants in error, and the testimony excluded. But it appears from the minutes of the trial, that the Court did offer to permit the plaintiff in error to show that] the logs cut and marked “R. M.,” were not cut for him, and that he had no interest in them, until they reached the mouth of Pine River.

The much vexed, and yet unsettled question of the application of the maxim, respondeat superior, is here raised. Perhaps no fixed rule can be established respecting its application, for it must always depend more or less, upon the character of the employment, and the nature of. the contract; which may be under consideration, and which will be as various as the occasions which give rise to them. From a careful examination of all the cases which have been brought to my notice, I think it may be safely said that the doctrine of respondeat superior applies to all cases: 1st. Where the relation of master and servant, in its most familiar signification, exists; 2d. Where the superior is in possession of fixed property, (as real estate,) upon "which some service is to be performed; for in such cases the use of the property is confined by law, to himself, and he should take care that that use and management works no injury to others, and of consequence that he brings no persons there who do any mischief to others; and 3d. Where, although a special contract be entered into respecting personal property, or services, which does not create the relation of master and servant, as more familiarly understood, yet the principal retains a supervisory power over the execution of the contract, and the actual oheonstructive possession of the property remains in him: and that it does not apply to those cases, where 1st. property is entrusted to the care and management of those who are not the servants of the owner, but who exercise employments on their own account, with respect to the care and management of the goods and property of any person who may choose to entrust them to them, to be dealt with according to that employment; 2d. Where a contract is made with another in respect of services upon property, when no power of direction or supervision is reserved by the principal, but the entire discretion as to the mode of execution of the contract, together with control of the property, is confided to th« employee; 3d. In case of a like contract, the contract prescribing the mode of its execution, when possession of the property is surrendered to the employee to enable him to execute such contract; 4th. Where the relation of principal contractor and sub-contractor fexists, in relation to works of public improvement, conducted under a public grant, where, from considerations of public policy, and the very nature of the employment, each sub-contractor is regarded as a principal, pursuing an independent calling, and responsible for the acts of those in his immediate employment.

The injury complained of in the present case, was in the nature of a nuisance, and was not the necessary consequence of Stewarts employment. To render the doctrine of “respondeat superior,” applicable, the injury must arise in course of the execution of some service lawful in itself but negligently or unskiflfully performed; for a wanton violation of law by a servant, although occupied about the business of his employer, such servant is alone answerable. The general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems tobe too large. His liability depends upon the nature of the employment, the occupation of 'the person employed, and the control or authority of the employer over the person employed, as well as over the manner of the execution of the employment, and also upon the occasion and nature of the injury.

In examining this question, the testimony offered to be given through the witness Stewart, must be regarded as having been given, and as fully establishing the facts which it was offered to prove; for it was clearly competent for the plaintiff in error to show, if within his power, the contract under which the logs were cut and run, as well as the conduct of Stewart in performing that contract, and his control over the mode of its execution, in order that the jury might determine the question of his liability.

This testimony would have established the factRhat the logs in question were in the possession of Stewart, under a contract, where no power of direction or supervision was reserved by Moore; but the entire discretion as to time, and manner of execution, was confided to Stewart, and that the whole risk and expense of executing it rested upon him. Under such circumstances, it cannot be contended that he would not be answerable to Moore for any breach of such contract, or for any loss which Moore should sustain by his'negligent execution of it. The relation of master and servant, or of principal and subordinate, did not exist between them; the facts are inconsistent with it, and Stewart could alone be held liable for any injury which he occasioned to the plaintiff by his conduct in running the logs.

The consideration of these questions renders a further review of the case, unnecessary.

The judgment of the Court below must be reversed, and a new trial granted.


source: Caselaw Access Project

author: By the Court, Green, J.

license: Public Domain

text:
    Battelle vs. Parks.
    A testator by Hs last will directs bis executors or administrators to sell bis real estate to tbe best advantage, and invest the proceeds. Tbis is a general power in trust, and tbe executors or administrators are authorized to sell and deed such real estate, without a license from the Judge of Probate.
    Case reserved from Saginaw Circuit Court.

      J. G. Sutherland., for plaintiff.

      iT. Moore, for defendant.
   By the Court, Green, J.

The plaintiff in this cause claims title under a deed of conveyance executed to him by MaryJ. Ladd and Ira Merrill, administratrix and administrator, with the will annexed, of Herman Ladd, deceased. The deed was executed by" the grantors, by virtue of the power and authority given to them by the last will and testament of the said Herman Ladd, deceased, and of the letters of administration to them granted thereon, and the question, is, whether they had the power by virtue of this will and their letters of administration to execute the deed. The clause of the will under which the power is claimed, is as follows:

“Fourth. I order and direct my executor’s or administrators to sell all my real and. personal estate to the best advantage, and invest the proceeds in good securities on unincumbered real estate, at not more than half its value, under the advice and direction of the surrogate of Livingston County, and I hereby authorize them to sell my real estate, and to execute good and sufficient deeds for the same to the purchasers-thereof.”

No beneficial interest is given by the will to the donees of the power, but the proceeds of the property are given to certain persons and classes of persons therein named. This is a general power in trust, and is imperative. ■ (JR. S. ch. 64, § 5, 22, 24.) The objection to the validity of the deed in the Court below, was, that it did not appear that the sale of the land had been authorized by the license of any probate court, but purported to be executed solely by virtue of the power given to the administrators by the will, and of the letters of administration.

In the case of Conklin vs. Egerton’s administrator, (21 Wend., 430,) the question arose upon the construction of a clause in the will of Manuel Myers, by which he gave to his wife, during her natural life, the' rents, issues, and profits of all his real estate; and after her decease, divided all his real estate in fee, to two sisters, two nephews, and five nieces, to take, share and share alike; and for the more easy and equal division of his said real estate, he authorized and empowered his executors thereinafter named, after the decease of his wife, to sell and dispose of the said estate for the most money that could he gotten for the same, and in due form of law, to execute deeds of conveyance for the same in fee simple, and to divide the money arising from the sale,. among his sisters, nephews, and nieces. The testator nominated his wife executrix, and his friend Ephraim Hart, executor, of his last will &B. After the decease of the testator, the executrix and executor named in the will, took upon themselves the burthen of the administration. After the death of the widow of the testator, (Ephraim Hart, the executor, having previously died,) administration with the will annexed, was granted to Alpheus Sherman, the public administrator of the city of New York. The question was, whether Sherman, as such administrator, could execute the power.

That case differed from this in two particulars. The executor to whom the power was given, was named in the will, and after his death, administration de lonis non, with the will annexed, had been granted. But the material question involved in this case, was also involved in that, and was very fully and ably discussed by the learned Judge who delivered the opinion, and who, with his usual industry and research, has collected and collated the authorities bearing upon it, and developed, as I think, with great accuracy and clearness, the trae principle upon which they rest. He arrives at the conclusion as the result of his analysis of the cases, that the office of an executor is entirely separate and distinct from that of the donee of a power in trust, and that the latter is an authority which, so far from having any reference to the office of executor, might just as well have been conferred by the will upon any other not named as executor,' and one who might have executed the power without probate, or letters testamentary; and consequently, that where such power is given to the executors, they do not exercise it in their capacity of executors; for the term executors used in the devise, is hut a designation of the persons who are to execute the power, which is a mere warrant of attorney to sell the land.

In that case the executor to whom the power was devised, was named in the will; but in the case before ús no executors were nominated in the will, but the power is given to the executors or administrators of the testator. The distinction between that case and the one under consideration is, that in the former the donee of the power being named, upon his death his successor in the office of executor had no authority to exeeuteit; in the latter, the persons holding the office of administrators, being the persons designated by the testator to make the sale, are the ■donees of the power, and are authorized to execute it, not by virtue of their office as administrators, but by reason of such office, because thereby they answer the designation contained in the will. In the former ease the particular person having been designated to execute the power, he could have done so without probate of the will or letters testamentary, and upon his death its execution would devolve upon the Court of Chancery. In the latter ease, there was no one to take the power until probate of the will and administration granted; but when that was done, the administrators, being the persons designated by the testator, by reference to their office, and in case of their death or removal, them successors corresponding to the same designation, are authorized to sell the property and execute the trust, separately and aside from their office of administrator.

At the common law, recognized by our statute, as weE as that of New York, which is the same, a power may be created either by deed or by will. (R. S. Ch. 64, § 34; Sugden on Powers, Ch. 2, § 2.) ThewEI in this case is the power of attorney, and the letters of administration ascertain tho persons who are to execute it. The donees of the power being thus ascertained, and aE of them having joined in the conveyance several vexed questions in regard to the authority of surviving or acting executors, in relation to which the decisions are very contradictory, do not arise in this case.

In Roseboom vs. Mosher, (2 Denio, 61;) the Supreme Court of New York held, a power given by a clause in the wiE to the executor and executrix thereinafter named, and by a subsequent clause appointing the wife of the testator and Abraham Yan. Yechten to be executrix and executor of the will, was properly executed by the executrix alone, Mr. Yan Yechten having neglected to take upon himself the execution of' the will. This appears to be contrary to the decision in the 21st of Wendell before referred to, and Chief Justice Bronson, in delivering the opinion of the Court, does not refer to that case, nor does it appear to have been cited by counsel. The case of Roseboom vs. Mosher, however, does not conflict with the principle that the authority to execute the power is derived from the will, and may be exercised without the intervention of a probate court, but strongly fortifies it. It appeared in that case, that immediately after the testator’s death, Mr. Yan Yechten united with Mrs. Roseboom in executing one of the powers conferred on them by the will, by making a conveyance of a house and lot conformably to the testator’s directions, and it is not disputed that he had authority to do so, although he never qualified as executor, and the conveyance made afterwards by the executrix, the validity of which was litigated in that suit, and held to be good as an execution of the power, was not authorized by any license or decree of any Court.

Had the lands been devised by Ladd, the testator, to his executors or administrators in trust, with a power to sell, &c., without nomin'ating executors in the will, then the question would have arisen, whether the devise would not have been void, there being no persons at the death of the testator in whom the estate could vest under the will. But it is conceived that no difficulty of this kind arises in this case. It was said by Kent, C. J., in Bergen et al. vs. Bennett, (1 Caine’s Cas., 16,) that “if a man, by his will, directs his executors to sell his land, this is but a bare authority without an interest, for the land, in the mean time,, descends to the heir at law, who, until the sale, would at common law be entitled to the profits,” &c. “But if a man devises his lands to Ms executors to be sold, then there is a power coupled with an interest, for the executors in the mean time take possession of the land and the profits.” Mr. Hill, in his valuable treatise on the law relating to trustees, remarks, that “it not unfrequently happens that a testator merely gives his trustees a poiuer of disposing of an estate, without making an express devise to them. In this case, it is clear that the trustees will not take the legal estate, although the exercise of the power may be imperative, but tbe legal estate will descend to and remain vested in tbe heir of the testator, until divested by the execution of the power. For instance, where a testator devises that his executors or other persons shall sell, or let; or mortgage, or otherwise dispose of his estate for payment of his debts,” &c.; “ or directs that his executors shall raise his debts out of his estate, it has been decided that no estate vests in the devisees, but simply a power of disposition.” (See Hill on Trustees, 235 & 236;; and cases there cited in note 6.)

It may be further observed in regard to the will under consideration, that the object of the testator in creating the power to sell, was simply to carry into effect the devises to his children and grand-children. In such a case, if the power were extinguished, it is well established that equity would interpose to prevent the conveyances. “This,” says Mr. Hargrave, has long been the practice of our Courts of Equity, these rightly deeming the purposes for which the testator directed the money arising from the sale to be applied, to be the substantial part of the devise, and the persons named to execute the power of selling to be mere trustees, which brings the case within the general rale of equity, that a trust shall never fail of execution for want of a trustee, and that if one is wanting, the Court shall execute the office. The relief is administered by considering the land, in whatever person vested, as bound by the trust, and compelling the heir, or other person having the legal estate, to perform it.”

It must be certified to the Circuit Court for the County of Saginaw, that the objection made by the defendant to the deed of conveyance, under which the plaintiff claims title to the land in question, is not a good and valid objection, but that the said deed is a good and valid deed of conveyance under and in pursuance of the power of sale contained in the last will and testament of Herman Ladd, deceased, and the letters of administration with the will annexed granted thereon.


text:
    Draper et al. vs. Williams.
    The charter of the Detroit and Pontiac Railroad Company, empowers the Company to settle with any owner Ms claim of damages for the occupation of land; therefore a grant to the Company by one ot several tenants in common, of the right of' way as to his interest* over the common estate, although it passcs¡no fee, and confers no right as against the other tenants, is nevertheless valid, and operates as to the tenant executing it, as a release of his damages.
    ©ase .reserved from the Oakland Circuit.
    The two plaintiffs were tenants in common of certain premises in Oakland county. One of them conveyed to the defendant, for the use of the Detroit and Pontiac Railroad, the undivided half of the right of way over the common estate. The defendant having entered upon the premises in which such interest had been granted, an action was brought in the name of both tenants, for trespass upon the common close. The Court proforma instructed the jury that the deed by the one tenant in common, was void,-and on this instruction a verdict was rendered for plaintiffs.
    A motion for new trial was made on this and other grounds, and this point was reserved for the opinion of the Supreme Court.

      Q. Draper, for plaintiffs.

      J. V. Qamplell, for defendant.
   By the Court, Martin, J.

Under the charter of the Detroit and Pontiac Railroad Company, for the use of which, the premises in question were apjuopriated, the corporators were invested with all the prmleges, rights, and powers, necessary for the location, construction, and keeping in repair such railroad, &c., not exceeding-100 feet in width, and were authorized to enter upon, use, and'excavate any land which might be wanted for the site of such railroad, or any other purpose which should be necessary in the construction-or repair of such road, and its works, so soon as the amount of damages should- be ascertained and tendered, as thereinafter provided.

Authority was also given to the company to agree with the owner or owners of land which might be so required; and in case the parties could not agree, or if the owner or owners, or any of them, were»under age, or under certain other disabilities, as therein mentioned, then provision was made for the empanelling of a jury to inquire of such damages, &e. Under this charter the defendants entered upon the lands of the plaintiffs, and constructed their road across the same. Before doing .this, however, it appears that they agreed with the plaintiff, Farnsworth, respecting his damages, and took from him a grant of a right of way over the" premises, so far as his interest was concerned, for the consideration of sixty-seven dollars, as appears from the instrument of grant.

This instrument, the Court below charged the jury was void, and must be disregarded by them, except in mitigation of damages, and upon the correctness of this charge our opinion is asked.

By the terms of the charter, the Company had a right to agree with any ofimer for his claim for damages for occupation of his land. The grant from Farnsworth is evidence of such agreement with him, and •operates as a release of all claim for damages upon his part. It passed mo fee, nor did it confer any right as against Draper, in respect to his damages. There is no law requiring an amicable adjustment, as in this case, to be joint to render it, valid. One may be negotiated with to-day, and another to-morrow.

We can perceive no analogy between this case and those read upon the argument. There are cases of a conveyance by one tenant in common of a certain specified portion of the joint estate held in common. Whether such a conveyance would be valid, is a question upon which the Courts of the several States are not agreed. At the farthest, however, such conveyance is only held as voidable as to the co-tenants, while it operates as an estoppel against the grantor, and those claiming under him.

Nor can the instrument executed by Farnsworth be regarded as in •and 'of itself establishing a servitude upon the common property. That was established by the charter and the survey. The right of entry was suspended until payment of damages, but was not created by it. That ’this is so, is apparent from a consideration of the fact that the entry might be by compulsion, as soon as the damages should be ascertained and tendered. The case in (11 Pick, 269;) is readily distinguishable from this, as there the servitude was attempted to be created by agreement with one co-tenant. The law relative to the laying out and establishing highways, under which that case arose, can hardly be said to furnish any, even the slightest analogy by which to determine a case like the present.

It is true as a general rule, that in an action of trespass brought by tenants in common, in relation to their land, or in any action merely persona], they must all join as plaintiffs. But in trespass, the breaking and entry is the gist of the action; expulsion or ouster is a mere aggravation of the trespass. If the original entry be lawful, trespass will not lie. In the present case an adjustment of damages was made with Farnsworth, upon which the right of entry as to him, was perfected under the charter; and if a joint action can be maintained, after such adjustment, it must be upon the ground that such adjustment is void unless concurred in by the co-tenant. We cannot believe that such was-the intention of the Legislature in framing the charter, for it would operate oppressively upon the company, and prevent what the law encourages, amicable adjustments of conflicting rights.

It must therefore be certified to the Circuit Court for the county of' Oakland, as the opinion of this Court, that such instrument is valid, for the purposes above indicated, and. there was error in the charge of the-Court in that particular.


author: By the Court, Johnson, J.

text:
    Michigan Central Railroad Company vs. Ward.
    Common carriers by railroad are excused from a personal delivery of goods carried by them;* but in lieu of delivery, are required to notify tbe consignee, and tbeir liability as carriers continues until the consignee has bad a reasonable time to remove tbe property.
    Section 16 of the act to incorporate tbe Michigan Central Raiboad Company, providing that when a certain time has elapsed after notice to consignee of tbe receipt of property, storage-may be charged and that in all cases tbe Company shall be responsible for goods in deposit in any of tbeir depots awaiting delivery, as warehousemen, and not as common carriers, does not exonerate the Company from liability as such carriers, incases where the notice-of receipt of property has not been given the consignee. The language awaiting delivery,” held to apply to the goods, only after the notice given.

      The charter of the M. C. R. R. is in the nature of a contract between the Company and the State, permanently binding upon each, and the principal engagement on the part of the Company is, that they shall become and continue to remain common carriers. Their liability' as common carriers, consequent upon the contract, and the law appertaining thereto, becomes irrevocably fixed. They cannot alter or modify this liability by any stipulation or contract.
    Error to Kalamazoo Circuit Court.

      Lothrop & Luffield, and A. L. Fraser, for plaintiffs in error.

      O. Qurney, for defendant in error.
   By the Court, Johnson, J.

On the 16th of November, A. D. 1850, the plaintiffs in error received of F. Dennison, at Kalamazoo, seven hundred and thirty-three and a half bushels of wheat, to he transported to Detroit, and there to be delivered to the defendant or to his order.

On the 18th of the same month the wheat arrived at Detroit, and on? the evening of that day was elevated from the cars into- the warehouse of the plaintiffs, and deposited in bins with other wheat. Early on the following morning the warehouse was consumed by fire. Some portion of the wheat was destroyed, and a greater part of the balance materially injured. Subsequently there ,was a demand of the wheat, and on refusal, this action was brought.

.Upon the investigation of this cause it becomes material to inquire whether the plaintiffs at the time of the destruction of the property in qirestion, held the same in the capacity of a common carrier, or in that of a warehouseman, for the liability of each is distinct and materially different at common law. The one can only discharge himself from the-liability incurred by the non-delivery of property intrusted to his carer by showing that he is prevented by the act of God, or the public enemy; while the other may do so, by showing ordinary care and diligence exercised in the preservation of the same.

The record in this case does not show how, or by what means, the warehouse was burned; whether it occurred in consequence of the negligence of the agents of the plaintiffs, or otherwise; and, perhaps, it may not be material to inquire; but if it should we presume there will be nothing found in this case to distinguish it from those falling within ■the general rule, that he who charges a breach of duty must prove it.

The plaintiffs received the property in question as common carriers, ■and unless it shall appear from an examination of the ease that the relative situation of the parties was changed before its destruction, they must bo held responsible in that capacity; and this leads us directly to the inquiry, what have the plaintiffs undertaken to do ? and what are the legal obligations growing out of that undertaking ?

The express agreement is to transport the wheat in question to Detroit, and to deliver it to the defendant, or to his order. In doing all 'this, the plaintiffs act in the capacity of a common carrier; hence, it becomes material to know what constitutes a delivery.

In the absence of any spécial contract, or local custom, or usage of particular trades, governing or controlling the action of the parties, it is incumbent upon a common carrier, by the rules of the common law, to deliver the goods intrusted to his caro, to the consignee, personally, and, until such deliveiy, he does not discharge himself from the obligations and duties the law imposes upon him.

In the ease of Hyde vs. Trent and Mersey Navigation Company, (5 Term. R. 387;) this question (though not involved in the case,) was much discussed, and three of the four judges were of the opinion that carriers by land were required to make an actual delivery to the consignee. This doctrine has been sustained by numerous subsequent decisions of that country. (Smith vs. Horn, 8 Taunt, 144; Bodenham vs. Bennet, 4 Price Ex., 31; Garnet vs. Willan, 5 Barn, & Ald., 53; Duff vs. Budd, 3 Brod. & Bing. R., 177; Muschamp vs. Lancaster Railroad Company, 8 Mees. & W., 421.) Such is the current of decision in this country. In the case of Gibson vs. Culver, (17 Wend. R., 305;) the Court assumes this to be 'the general doctrine established in this country. The defendant in that case sought to relieve himself from the obligations of a common carrier by showing a particular custom, thereby admitting and conceding the general rule, and Cowen, J., in that case, remarked: “The offer of the defendant pre-supposed what is now conceded, and is, indeed, extremely well settled, that, prima fa■cie, the carrier is under an obligation to deliver the goods to a consignee ■personally.”

All the elementary authors fully concur in this proposition. (See 4 JKent,y>. 604, '5, notefF.;) Angelí on the Law of Carriers, § 295; Story on Bail., § 543.)

But to this general rule there will be found many exceptions — it is-competent for a party to discharge himself from this implied undertaking by a special contract, or by showing a local custom, or a particular usage, when such custom or usage is of such a character as to fairly raise the presumption that both of the contracting parties acted in reference to it.

With great force and reason the law implies an exception to another large class of common carriers, including all those whose mode of transportation is such as to render it impracticable to comply with this rule; it embraces all carriers by ships and boats, and cars upon railroads. These must necessarily stop at the wharfs and depots of their respective routes, and consequently personal delivery would be attended with great inconvenience, and therefore the law has dispensed with it. But, in lieu of personal delivery, which is dispensed with in the last class of cases mentioned, the law requires a notice, and nothing will dispense with that notice. Price vs. Powell, (3 Comstock, 323.) In that case-it became a matter of importance to know whether the marble was injured before or after delivery; and Bronson J. said: “That no evidence-concerning the usage at Wilmington, had been given at the time the question about proving this conversation was made; and cleai’ly, landing the property on the wharf, was not a good delivery without at least giving notice to the consignee;” and in proof of this doctrine, he cited (Ostrander vs. Brown, 15 J. R., 39; Gibson vs. Culver, 17 Wend., 305; Fish vs. Newton, 1 JDenio, 45.)

It is useless to multiply authorities upon this point. There cannot be found, it is believed, a single case in the books, to the contrary. The rule then seems to be this, that in all cases carriers by ships, and boats, and cars, who are exempt from the general doctrine of personal delivery,, must in lieu thereof give notice to the consignee, and they are not discharged from then responsibility as such, until notice be given, and the consignee have a reasonable time to receive and remove his goods,. (Story on Bail., § 544.) '

Let us' apply this rule to the case at bar.' Here was an agreement to transport to Detroit, and deliver to the consignee the goods in question. No special contract, or usage, or custom, was shown; and it must stand upon the rule laid down, stripped of every circumstance which by any possibility could qualify its application. On the trial of this cause, the plaintiffs in error Vere content with showing the destruction of the property in the manner before stated; they did not show, or attempt to show any notice given to the consignee, and indeed, scarcely sufficient time had elapsed from the receipt, to the destruction of the property, •to have enabled them to have done so; and certainly not sufficient to have enabled the defendant to have removed his property, had he re- • ceived such notice.

If, then, such be the law, that common carriers by railroads and water craft are required in lieu of personal delivery, to give notice to the consignee before they can discharge themselves from liability as such carriers, then the plaintiffs in this case, not having given such notice, must, ■unless there is something further in the case to qualify that liability, be held responsible for the properly in question, as carriers, and not as warehousemen; nor can it make any difference that the plaintiffs act in ■the double capacity of carriers and warehousemen; they are separate and distinct occupations, attended with separate and distinct liabilities, which the law affixes, and which cannot be changed at pleasure; and though one man may act in both capacities, it will hardly be contended he may throw off the more onerous duties of the one, and assume the lighter duties of the other, at such time as it may suit his convenience; or that the law imposes less rigorous terms upon the common carrier, because he may find it for his interest after having discharged the duties of the one, to act in the capacity of the other.

We have been thus particular in our preliminary examination of this case, for the purpose of aiding us in the more important question involved in this branch of the case, viz: in the construction of section 16 the act incorporating the Michigan Central Railroad Company, (Sess. Laws, 1846;) which section reads as follows: “The said Company may charge and collect a reasonable sum for storage, upon all property which shall have been transported by them, upon delivery thereof at ■any of their depots, and which shall have remained in any of their depots more than four days: Provided, That elsewhere than at their Detroit depot the consignee shall have been notified, if known, either personally or by notice left at his place of business or residence, or by notice sent by mail, of the receipt of such property, at least four days before any storage shall be charged; and at the Detroit depot such notice shall be given twenty-four hours, (Sundays excepted,) before any storage shall be charged; but such (storage may be charged after the ■expiration of said twenty-four hours, upon goods not taken away: Provided, That in all cases the said Company shall be responsible for goods in deposit in any of their depots, awaiting delivery, as warehousemen, and not as common carriers.”

This section settles the question as to the necessity of notice, or, at least, provides that they cannot charge for storage before notice is given in the manner therein provided. But it is insisted that though the Company cannot charge for storage before the expiration of the time therein specified, yet, in fact, they become warehousemen from the time the property is deposited in the warehouse. That is to say, the Company may receive property for transportation as earners; they cannot be permitted to change their relation with the contracting party, or assume a new character until the happening of a given event, but in the meantime are allowed, in view of this construction, to divest themselves of all responsibility pertaining to the character in which they received it. This must follow, unless they become warehousemen from the time it is deposited in the warehouse; for, upon the assumption of a now character, certain legal consequences immediately follow; certain relations exist, and certain legal liabilities grow out of that relation. These consequences cannot certainly take place until within a specified time after notice is given, and does it not inevitably follow that the relation itself does not change until that time % To say that the statute must be so construed as to make the Company, warehousemen, from the time of depositing the goods in then warehouse, and yet not allow them to charge storage from that time, would require very clear and positive language to that purport. The express language of the charter is: “Provided: That in all cases the said company shall be responsible for goods in deposit in any of then depots, awaiting delivery, as warehouse-men, and not as common carriers.” But for this proviso no pretensions could be set up for such a construction; but for this they stand like other carriers subject to that liability the law affixes. Does this aid them? "What is to be understood by awaiting delivery? Can the property in a legal or practical sense be awaiting delivery before the consignee has an opportunity to receive it? and can he be deemed to be in a condition to receive it, until he shall have been notified of its arrival? Awaiting delivery, presupposes the consummation of every prehminary requisition to delivery; therefore it presupposes notice to the consignee, and the elapsing of sufficient time preparatory to its reception. That time, at common law, is a reasonable time. But to save any practical difficulty that might grow out of that somewhat indefinite term, the Legislature have very wisely said what that reasonable time shall be, and during that time it may be said with great reason, wo think, that the property is awaiting delivery.

In determining this question, we should seek the intention of the Legislature. We have before shown that common carriers are liable as such, until notice to the consignee, and until he shall have a reasonable-time to remove his property. Did the Legislature intend to innovate upon this well established principle of law in so important a particular,, and that, too, without any adequate consideration or possible motive, so far as can be perceived? It is fairly presumable that so important a concession would not have been made, without some well-grounded . considerations. Is it not more reasonable to presume that they intended simply to make certain that, which under some circumstances, might lead to difficulty in determining, in some instances, what might be a reasonable time for the consignee to receive and remove his property? This view of the case is much strengthened from the fact that the Legislature have designated different periods of time in different localities on their route. We can see, in this construction, a clear, distinct, and rational object, harmonizing with the well established principles of law, securing to the public and the commercial interests of the country, those rights which the Legislatures and judicial tribunals have ever been solicitous to maintain and uphold.

Before we can justify ourselves in giving the other construction to this proviso, which we think would be against the letter of the law, we should see some justifiable objects to be attained; we should be satisfied that it was reasonable in its nature, or that some reasonable consequences would flow from it.

Let us see what the consequences would be: a common carrier re* ceives goods for transportation, upon the receipt of which, certain legal liabilities, extraordinary in their character, attach to him: and why ? Because long experience has established that certain interests, beneficial to the public, have resulted from it. And what follows ? Before he has discharged the duties pertaining to that character which he has thus voluntarily assumed, he becomes absolved from all his liabilities — not all, indeed, but all that are valuable to the public. No such inconsistency could result from any principle of law, founded in reason and justice, nor in the law as it exists; but we are asked to thus construe the statute, in derogation of the common law, for the purpose of discharging the Company from a responsibility, well known and well defined, and voluntarily assumed, upon a good and adequate consideration.

Such, we deem to be the fair construction of this statute; and it may not be out of place here to remark, that such seems to have been the construction that the Company themselves have given it. The record in this case furnishes most incontrovertible proof that they did not so regard it at the time they made this contract with the defendant, for in that contract it is provided, '“That all goods and merchandize will be at the risk of the owners thereof, while in the Company’s warehouses, except such loss or injury may arise from the negligence of the agents of the Company.”

How can we reconcile this, with the idea that the Company did not understand that they were liable beyond mere warehousemen, after the deposit of goods in their warehouses; for it will be perceived that the liability here assumed by this stipulation is precisely what the law affixes to a warehouseman, in the absence of all contracts. There must have been some object in this contract; but we can hardly perceive any, if their construction be the true one; in that case it could be of no account, unless it may be said that this was designed as a protection to them ■ before transportation, and while in transitu; this may be, but it is not so expressed; and if that was intended why not have it include the whole time that the property was in their possession, without reference to its condition?

Having thus disposed of this branch of the ease, we come now to the consideration of the remaining question involved therein, viz: can the plaintiffs restrict then- common law liability as carriers, by a special contract; for'it will be seen by the record in this case that they have attempted to do so. *

Much has been said by counsel for plaintiffs, and many authorities cited to show that a carrier at common law may restrict his liability by a speeial’eontract, and it is but fair to concede that such seems to be the current of authorities. Still, however, it is shown quite conclusively by Cowen, J., in the case of Cole vs. Goodwin, (19 Wend., 251;) that such was not originally the doctrine of the common law, but the Courts of that country gradually slid into that doctrine in the endeavor to mollify the severity of the rule in particular instances of hardship, but that after seeing the evil consequences resulting to the public from such a relaxation of the rule, they took all proper occasions to express their unqualified disapprobation, until finally, in 1830, Parliament, by an act restored in a great measure the common law, making the carrier responsible (with the well known exceptions,) for the property intrusted to his care.

But if this rule ever did prevail; if it ever acquired the sanction of any Court, it must have been upon the principle laid down by Bronson, J., in the case of Hollister vs. Nowlen, (19 Wend., 247;) in which he says:

“If the doctrine be well founded, it must, I think, proceed on the ground that the person intrusted with the goods, although he usually exercised that employment, does not, in the particular case, act as a common carrier. The parties agree that in relation to that transaction he shall throw off his public character, and like other bailees for hire, only be answerable for negligence or misconduct. If he act as carrier it is difficult to understand how he can make a valid contract to be discharged from a duty or liability imposed upon him by law.”

A common carrier, then, acts in a public capacity, and the law affixes and determines his liability. He cannot, by a special contract, change the law, but he may change his character. Being under no obligation to the public or to any person to act in that capacity, he is at liberty to divest himself of it at any time he may choose, and by a special contract define with certainty the character of his undertaking, and the obligation and duties which are to grow out of it. If then, this doctrine is sustainable at all, it is upon the principle that the party is at liberty, and accordingly does divest himself of his' public character, and acts under his contract.

And now let us see how it is with this Company; let us examine into then situation and ascertain if they are at liberty to make this contract, or see whether they have not made some other contract paramount in its nature, and wholly inconsistent with the one they have attempted to make in the cash before us.

The plaintiffs are an incorporated company; all the powers, franchises, and privileges which they enjoy are derived from this government, through their charter; the government have exercised in their behalf, and for their use and benefit, the highest prerogative of their sovereignty ; they have, in the exercise of that power, appropriated the private property of the citizen for the benefit of the company; and that appropriation has been expressly upheld by the recent decision of this Court in the case of Swan vs. Williams, (ante 427;) and solely upon the ground that these corporate bodies are public functionaries, exercising a public trust, and carrying out one of the principal objects of government, extending and facilitating the commercial, manufacturing, and agricultural interests of the country — in view of these great interests they have guarantied to this Company a perpetual protection, by prohibiting the construction of a parallel road within a given distance.

All these extensive grants, made in perpetuity, with ample laws and provisions, protecting them in the full enjoyment of these rights and privileges, is what the State has engaged to do on its part. Is there any corresponding undertaking on the part of the Company? They did undertake to construct and complete the road within a given time: and what for ? That they might become public common carriers. Every single grant and privilege conferred and secured to this Company, is incidental to this one object and purpose of their undertaking; and in express language they have engaged to transport freight and passengers over said road.

The fifteenth section of their charter, after fixing and regulating the tolls and charges for the transportation of persons and property, provides that “said Company shall transport merchandize and property on said road, without showing partiality or favor, and with all practicable dispatch, under a penalty,” &c.

This charter, like other private charters for public uses, is in the nature of a contract; and for the inviolable fulfillment of all the undertakings on the part of the State, it has plighted the public faith.. Equally so, are the Company bound to fulfill the engagements on their part; and the principal engagement on their part is, that they shall become, and continue to remain, common carriers; they have engaged to transport over their road the merchandize and property of eveiy man, without partiality or favor, and with all practicable dispatch.

What is the difference between the undertaking of this Company and and ordinary carrier? A common carrier, says Chancellor Kent,is one' “who undertakes generally, and for all people indifferently, to carry goods and deliver them at a place appointed, for hire, and with or without a special agreement as to price.” (2 Kent Com., 498.) So long as he acts in that capacity, he is a public carrier, and bound to cany for every one, indifferently, but, as we have before said, owing no obligation to the public, to act in that capacity any longer than it shall suit his convenience; he is at liberty to divest himself of it at any time he may choose; and therefore it is, that he may divest himself of the responsibilities of that character, and rely upon his special contract. But this Company we submit, have no such power; they have bound themselves as permanently as contracts can bind them, to act in this public-capacity, and the law determines the extent of that obligation.

In the case of Hyde vs. Trent & Mersey Navigation Company, Lord Kenyon said: “Where a man is bound to any duty, and chargeable to-any extent, by operation of law, in such case he cannot by any act of Ms, discharge himself.” Apply this rule to the plaintiffs in this case,, and their liability as common earners, consequent upon their contract and the law appertaining thereto, becomes certainly and irrevocably-fixed, and they cannot be permitted by any provisos,, stipulations, or-contracts, to modify, change, or alter that liability.

If this is not the plain, just, and equitable construction of this charter,, if they have not by its conditions undertaken to become common car- ■ riers, then there is not a single undertaking or obligation on the part off the Company that is of any value to the public, and all these valuable privileges have been conferred upon them without any consideration; for, if they can be permitted to restrict their liability in one respect, they may in another, and so may they discharge themselves from every responsibility that can afford any guaranty or protection to the business community.

It may be said that it would be against the policy of .the law that they should be allowed to discharge themselves by contract from damages resulting from negligence or dishohSsty, but they could, by special contract, throw the burden of proof of such negligence or dishonesty upon the public, which would, in ordinary cases, ■ result in the same ■thing.

The government, in conferring this charter upon the Company, and the rights and privileges therein contained, acted in a representative capacity for and in behalf of the. public at large. Almost every benefit anil privilege secured were for their interest directly, and of the same force and binding effect as if made with them individually. If this Company had made a contract with the defendant individually, to the effect that they would, as common carriers, during his natural life, carry and transport all his. merchandize and property over said road, it would hardly be contended that they would be permitted subsequently, upon the receipt of each parcel, to impose upon him such restrictions and limitations to their liability as to essentially change the obligations of their original contract; and yet, the difference between the two undertakings is not susceptible of any well grounded distinction.

Such, then, is the construction we have felt ourselves bound to give to this charter; that the Company have thereby engaged to become common carriers in the transportation of goods over their road, and the conclusions drawn therefrom are irresistible, that they cannot, by a special contract, limit that liability which they have thus voluntarily assumed.

The opinion of this Court is, there is no error in the record, and that the judgment below must be affirmed.

Pratt, J., Copeland, J., and Green, J., dissented from so much of the opinion as denied the competency of the Michigan Central Railroad Company to restrict their liability as common carriers, by special contract.


author: By the Court, Whipple, J.

text:
    The People vs. Brigham et al.

    The presentation of a forged draft or order for money, to the person to whom it purports to be directed, for payment thoreof, knowing &c., although payment is refused and the draft returned to the presenter, is an uttering and publishing, within the meaning of section 2, Ch. 155, B. S.
    The uttering a forged instrument, being punishable by imprisonment in the State Prison, is made a felony by the provisions of Sec. 18, Ch. 161, E. S.
    A draft made payable to the bearer, no payee being named therein, is nevertheless an order for money, in the meaning of the statute.
    Error to the Macomb Circuit.
    The facts of this case are fully presented in the opinion of the Court.

      Terry d Robertson, for the people.

      R. P. Eldredge, for defendants.
   By the Court, Whipple, J.

The defendants were tried and convicted in the Circuit Court of the county of Macomb, upon an indictment, the third count of which charges that Jones did falsely and feloniously utter and publish, as true, with the intent to injure and defraud the President, Directors & Company of the Bank of Macomb county, &c., a certain false and counterfeit order, for money,” &c. The fourth count contains the same charge, and only differs from the third, in describing the instrument as a draft. In each of the counts, Brigham is charged as an accessory. The bill of exceptions shows that Jones presented the order or draft to the teller of the bank, who asked him if he wanted it cashed. Jones replied that he did: at this time the cashier came into the bank, when the teller handed him the draft, in the presence of Jones. The cashier then asked Jones if he wanted it cashed, who replied in the affirmative. Upon being interrogated as to the time when he received the draft from Ives & Co., who purported to be the drawers, Jones replied that he got it the Saturday previous. Thereupon, the cashier told Jones that Ives & Co. had no funds in the bank; that when the mail arrived, he would probably receive such advice as would authorize the payment of the draft: Jones replied that he should not leave until morning: whereupon, the cashier handed the draft to him, when he left the bank. The defendants having been convicted, they now seek a new trial, upon several distinct grounds, now to be considered. And first, it is said that the Court erred in charging the jury that the foregoing facts, if believed by them, were an uttering and publishing of the draft, within the meaning of the statute.-

It was urged by the counsel for the plaintiffs in error, that the facts show an incomplete uttering, and that, therefore, the offense charged, was not made out; that to constitute an uttering and publishing, it was necessary that the defendant below, Jones, should have parted with the draft for value, or put it in circulation. This proposition cannot, I think, be supported, either upon principle or authority. We must intend, from, the verdict of the jury, that Jones knew that the draft was a forgery; by presenting it to the bank officers he asserted its genuineness ; by demanding its payment he did all that was necessary to constitute an uttering, within the meaning of the statute. That the payment of the draft was refused, and subsequently re-delivered to Jones, in no respect affects the transaction. If the draft had been actually paid, it is admitted that the offense would have been complete. Can it make any difference in reason or morals, that it was not paid ? It seems to me not. Jones did all that could have been done to accomplish his illegal purpose; that he was foiled in the attempt to peipetrate a gross fraud, does not help his case.

But it is said that the draft continued in the legal possession of Jones, and that, therefore, it was not “uttered or published” In this the counsel is in error. When he handed the draft to the teller for payment, he did part, at least temporarily, with its possession, for the purpose of ascertaining its genuineness; the teller had the right to examine the draft; the delivery of it to the bank for payment, was an act necessary to be done before payment could be legally demanded. If payment is refused, the law, it is true, makes it the duty of the bank to reton the draft to the holder, if it is genuine; if it is a forgery, the bank has a right to retain the possession, and trover could not be maintained by the fraudulent holder. The case of Rex vs. Shukard, (Russ, Cr. Ca. Reserved, 200,) cited by counsel, does not support the doctrine for which he contends, but, oh the contrary, fully sustains the ruling of the Circuit Court. The defendant, in that case, was indicted under the statute of 13 George III., chapter 79, with uttering a certain promissory note, containing the words, “five hundred;” expressing the sum of the said promissory note, “in white letters on, a Hack ground" without being authorized by the Bank of England. The facts were, that the defendant had introduced himself to an innkeeper upon a fabricated story, and to persuade him that he was a man - of substance, showed him a £500 and a £50 note, of the above description, of which he only saw the sums and general form. The defendant then asked the inn-keeper to take charge of the notes, as he-did not like to carry so much property about his person. The inn-keeper accordingly took charge of the notes, which were put into a cover and sealed up. The Court held that these facts did not amount to an uttering: “That in order to make. it an uttering, they seemed to be of opinion that it should' be parted with, or tendered, or offered, or used-in some way to get money or credit upon it.” The facts in this case veiy clearly show that Jones did part with, tender, offer, and use the draft to obtain money upon it. The case of Rex vs. Palmer and Hudson, (1 Cr. Ca. Reserved, 71,) is not in point. The principle decided in that case', is, that “if a person knowingly delivers a forged bank note to another, who knowingly utters it accordingly, the person who delivered such note to he put off, may be convicted of having disposed of and put away the same, under the statute 15 Geo. II., Ch. 13, § 11." The facts in that case were that Palmer employed one Sarah Hudson to assisthim in “putting off" forged bank notes; that she came to the shop of one Shaw and bought two handkerchiefs, for which she offered in payment a two pound bank nóte; the shopman told her he suspected it to be bad, and sent it to the bank for inspection; the note was proved to be forged. Subsequently Palmer returned to the shopkeeper and demanded the note or the change. The judge held the conviction against Palmer as right upon the count for “disposing and putting away." Sarah Hudson was acquitted by the jury. The conviction of Palmer was founded on the fact, that the delivery by him of the notes to Sarah Hudson, was, under the circumstances, a disposing and putting away within the statute, although the guilty agent received neither money or other valuable thing, when she parted with, its possession.

In illustrating the difference between the' words uttered scañ. publish^ed, and the word passed, Chief Justice Tilghman says: “To utter and publish, is to declare or assert directly or indirectly, by words or actions, that a note is good. To offer it in payment would be an uttering or .publishing; but it is not passed until it is received by the person to whom it is offered.” To the same effect is the opinion of Mr. Justice Baldwin, in the case of the United States vs. Mitchel & Fisher, (1 Baldwin, 366.) The .learned Judge, in his charge to the jury in that case, remarked as follows: “The passing or delivering a paper, is putting it off or giving it in payment or exchange; uttering it, is a declaration ■that the note or order is good: to merely show it, without an offer to pass it, or depositing it for safe keeping, is not an uttering; there must be an intent to pass it as good.” In Rex vs. Martin, (1 Moody’s Cr. Ca. R., 483,) it was held that “if a person gives his employer a forged receipt for money, with intent to make the employer believe that money had already been obtained and applied in a certain way, he is guilty of uttering, though there is no such .person as that whose receipt it purports to be.” The case of Rex vs. Sarah Morris and John Morris, (1 Russ. & Ry. Cr. Ca. R., 270,) affords an apt illustration of the rule I :am now seeking to establish. In that case, it appeared that the wife, by her husband’s order and procuration, but in his absence, knowingly uttered a forged order and certificate for the payment of prize money. It was the opinion of all the Judges that Sarah Morris was properly ■ convicted of uttering the forged order and certificate, and John Morris :as an accessory before the fact of the felony of uttering. The facts • show that Sarah Morris presented the order and certificate for payment; but the money was not paid, it having been discovered that they were -forged. To the same effect is the case of Rex vs. Soares, Atkinson and Brighton, (1 Russ. & Ry. Cr. Ca. R., 25.) Brighton, one of the defendants, offered the note alleged to have been forged, in payment, to one Henry Newland, and he was convicted of uttering. In the case of the Queen vs. Green, (Jebbs Cr. Ca. R., 281,) it appeared that the prosecutor and prisoner entered into their accounts, when the latter produced ■documents to vouch the credits he claimed: among them was a receipt -charged to have been forged. The prosecutor asked the prisoner to ■•.show him his vouchers; but he declined, saying that he would not show his papers to any man but his attorney. The prisoner then called out the sums which he alleged they vouched, and in this way claimed credit for the amount of the receipt in question. The Judge who tried the cause, thought these facts constituted an uttering, (See also, Regina. vs. Cooke, 8 Car & P., 582; Rex vs. Arscott, 6 Car & P., 480.) In Regina vs. Welch, (Law & Eq. R., 588,) it was ruled that the. prisoner having put down on a counter a counterfeit shilling, in payment, for some goods, was guilty of “uttering and putting off,” within the-meaning of the statute, although, both the money tendered and the. goods were left by the prisoner. The Supreme Court of South Carolina, in the case.of the State vs. Holly, (2 Bay., 262,) held that it is. not necessary that goods should be delivered, in order to complete the offense; that the presentment of an order and handing it to the person to whom it is directed, is an uttering, within the meaning of the law.. I am unable to discover that the opinion of the Supreme Court of New York, in the case of the People vs. Rathbun, (21 Wend., 509,) sup.ports the doctrine attempted to be maintained by the counsel for the. plaintiff in error. Mr. Justice Cowen, in delivering the opinion of the Court, says: “The word uttering, would seem tobe more accurately defined by negotiation, which means in popular use, an intercourse of business, trafficking or treating. Accordingly, not only a sale or paying away a counterfeit note or indorsement, but obtaining credit on it in any form, as by leaving it in pledge, or indeed offering it in dealing,., though it be refused, amount to an uttering and publishing.” To offer and utter, means nothing more (says Mr. Archbold) than that the party tendered, or attempted to pass, or make use of, the forged instrument,., with the intent charged in the indictment. (Arch. Cr., P., p. 294) If these views be correct, they establish to its fullest extent, the ruling, of the Circuit Court.

It is in the second place objected, that the Court erred in refusing to charge, that the uttering of a forged instrument is not a felony under our. statute.

Sections 1 and 2, chapter 155, title SO, of the revised statutes, make forgery and the uttering of forged instruments, punishable' with imprison- ■ ment in the State Prison for fourteen years, or in the county jail not more than one year, See. 1, chap. 161, title 80, makes an accessory before tbe fact to any felony, punishable in the same manner as may be prescribed for tbe punishment of the principal felon.

The term “felony,” when used in title 30, is, by section 18 of the same chapter, construed to mean any offense, for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in the State Prison. The accessory, then, upon conviction, being liable to be punished in the State Prison, it follows, by necessary legal implication, that the principal, by uttering and publishing was guilty of a felony within the statute.

The third objection to the charge is equally untenable. The refusal to charge “that the instrument mentioned in the second count of the indictment was not an order for money within the meaning of 'the statute,” was clearly correct. The ground assumed, is, that there is no payee mentioned in the instrument alleged to have been forged and littered. The draft was made payable to bearer, and was therefore negotiable by delivery only. The cases cited by tbe counsel in the argument are not pertinent. They simply affirm that a bill payable to-blank, or order, would not support an indictment for forgery and uttering" because there is no payee.

The judgment of the Circuit Court is therefore affirmed.


author: By the Court, Copeland, J.

text:
    Wetherwax vs. Paine et al.

    An affidavit by an agent or attorney, made to procure a garnishee summons, need not state affirmatively the character of the affiant. The use of the words agent or attorney, by way of recital or description, is sufficient.
    "Where two indorse a note at its making and before delivery to the payee, to enable the drawer to purchase with it certain property of the payee, they are to he considered joint original promisors with the drawer. Accordingly, where, at the instance of a creditor of the payee’of such note, a garnishee summons was issued, and judgment rendered against the drawer alone, the judgment was held void, as being against one of three joint promisors, and no bar to a subsequent suit on the note against the three.
    In a garnishee suit, the jurisdiction of the justice does not depend on the amount due from, the garnishee to the principal debtor, but upon the sum claimed to be due from the latter to the plaintiff.

      Case reserved from Calhoun Circuit.
    This was a suit against A. H. Paine, M. H. Crane, and D. Peabody, ■on a note in these words: “Fifteen days from date, I promise to pay Martin Wetherwax one hundred and ninety dollars, value rac’d, and use.” Signed, “A. H. Paine.” (Indorsed,) “M. H. Crane, D. Peabody.” Plea, general issue, and notice that the defendant, Paine, had been garnisheed in two suits, before a justice of the peace, in respect to said note by ■creditors of the payee, Wetherwax, and that upon his, defendant’s answer, judgment had been rendered against him, in each suit before said justice. The execution of the note was proved, and also that the consideration was a span of horses, purchased by defendant Paine, of the plaintiff, and that defendants Crane and Peabody, signed the note in the manner they did, to enable Paine to consummate the purchase. The defendants offered proof of the proceedings and judgment against defendant Paine, as garnishee, to which the plaintiffs, among other things, objected that the affidavit upon which the garnishee summons, set forth in defendant’s notice, was issued, did not state affirmatively that the person making such affidavit was the agent or attorney of the plaintiff but his agency was only set out by way of recital. Also, that the note mentioned in defendant’s notice, was described as the note of Paine alone, whereas, it appeared that the note referred to was the joint note of Paine and the other two defendants, and that gamisheeing Paine, •even though judgment might pass against him, would not estop the plaintiff from suing the three defendants. One other point raised at the trial was, that at the time the garnishee suit was commenced, the amount of the indebtedness of the garnishee to the principal debtor •exceeded the jurisdiction of a justice of the peace, as then fixed by the constitution. Upon these questions the case was reserved for the opinion of this Court.

      Messrs. F. Ferguson and Grary & Hughes, for plaintiff!

      Brown & Van Arman, for defendants.
   By the Court, Copeland, J.

The principal questions reserved for our consideration, are:

First. Was the affidavit made by Bothwell, purporting to have been made as the agent of the plaintiff in the garnishee suits, sufficient to authorize the justice to issue the garnishee summons.

Second. Can the defendants, Crane and Peabody, be regarded and proceeded against, together with the defendant Paine, as original makers of the note in suit ? and if so,

Third. Should all the defendants have been summoned in the garnishee suits, to constitute those proceedings a bar to this action?

The first section of the act authorizing proceedings against garnishees,. Session laws, 1849, page 153, provides, that if the plaintiff, his agent, or attorney shall make and file with the justice an affidavit, &c., the justice shall issue a summons. In the garnishee suits involved in this case, Bothwell, who made the affidavits, described himself as the agent-of W. P. & L. Kassick, the plaintiffs, in the body of the affidavits, and also subscribed his name thereto, as their agent, but does not swear specifically to the fact. Now, the inquiry is, was that a question of jurisdiction. Must there be affirmative proof of agency before the justice wifi, be authorized to issue a garnishee summons. We are inclined to think not. Under the provisions of the revised statutes of 1846, page 153, authorizing the issuing of garnishee process in eases of attachment, the affidavit may be made by “the plaintiff or other credible person.” Under this last provision, to require the person making the affidavit, if made by a person other than the plaintiff himself, to swear that he is a credible person, in order to give the justice jurisdiction, might-well be regarded as an absurdity, and it would be little less to require other affirmative proof thereof. The statute of 1849, as we have seen, only differs from that of 1846, in that it authorizes the affidavit to be made by an “ agent or attorney” of the plaintiff, instead of some “other credible person.” If an attorney of this Court had appeared and made the affidavits, I presume no one would have questioned their sufficiency. And here it may be observed, that by a provision of law, adopted at the same legislative session — that of 1849, parties were authorized to commence and prosecute suits in the County Courts by agent or attorney. If, in such case, the defendant should appeal and question the authority of the person assuming to act as agent, evidence of Ms authority might he required. But until questioned, the Coiut might well assume that ■a person who appears and acts as agent, is duly authorized- so to act.

The second proposition involves a question that has long been a fruitful theme of discussion in our State Courts, and yet even up to this ■present time, it can scarcely be regarded as definitely settled in but few of the States.

In Massachusetts, the doctrine obtained at an early period, that a party who indorsed a note in blank, at the time of its inception, and before it passed into the hands of the payee, might be regarded and proceeded, against as an original promisor. (Josselyn vs. Ames, 3 Mass., 273; Hunt vs. Adams, 5 Ib., 538; Moies vs. Bird, 11 Ib., 435; White vs. Howland 9 Ib., 314.)

In the case of Tenney vs. Prince, (8 Pick, 385;) Parker, C. J., observes: “The principle by which all our decisions have been regulated ■from Josselyn vs. Ames, downwards, is, that where the indorsement is made at the time of making the note, the person indorsing the note is to be treated as an original promisor.” The same doctrine is adhered to in subsequent decisions. (Oxford Bank vs. Hughes, 8 Pick, 423; Austin vs. Boyd, 24 Pick, 64.)

In Vermont, the law is well settled, that where a person indorses his name upon a promissory note in blank, he, not being the payee, will, prima facie, be held as a joint promisor. (Flint vs. Day, 9 Ver., 345; Nash vs. Skinner, 12 Ib., 219; Story vs. Ricker, 16 Ib., 554; Sanford vs. Norton, 17 Ib., 285.)

The same general doctrine prevails in New Hampshire and Ohio. In the case of Carpenter vs. Bright, (9 Ohio, 137,) the Court held that if a person not a party, give his name to a note already existing, his engagement is collateral only, and he is to be held as guarantor; but if such indorsement be made at the time of the execution of the note, without prescribing the limits of his responsibility, he authorizes the holder to treat him as a maker, and is as much boimd as though hisname was ■written under that of the principal. The same principle is recognized •in Stage vs. Olds, (12 Ohio, 158,) and Leonard vs. Sweetzer, (16 Ib., 1.)

It seems that in the above States the rule prevails, whether the paper is negotiable or not. The decisions in New York, upon this subject, have not been uniform. Formerly they differed little, if at all, from the decisions in Massachusetts. (Leonard vs. Vredenburg, 8 John., 28; Nelson vs. Dubois, 13 Ib., 175.) Now, the question in New York is made to depend, as it wordd seem, entirely upon the fact of negotiability. In Seabury vs. Hugerford, (2 Hill, 80,) the Court held that an indorsement of a negotiable note in blank, is in legal effect, an agreement to pay, on the usual conditions of demand and notice. (Hall vs. Newcomb, 3 Hill, 233; 7 Ib., 416; Spies vs. Gilmore, 1 Comstock, 321.)

It is unnecessary for this Court now to determine whether they will adopt the doctrine, as it now seems tobe well established in New York, for the note in controversy falls within the most narrow rule we have been considering. It is not only a non-negotiable instrument, executed by all the defendants before delivering to the payee, but the case shows that the defendants Crane and Peabody, indorsed the note-for the very purpose of enabling Paine, the principal, to purchase the property for which the note was given. The credit was given to the defendants jointly; and the indorsers stand in the same relation to the payee, or his assignees, that they would have done had they written their names upon the face of the note, under that of the principal. It was an original- undertaking; and clearly, they may be proceeded against as original makers.

Thirdly. Should all of the defendants have been summoned in the garnishee suits ? They undoubtedly should have been. The authorities upon this point are uniform and explicit, so far as I have been able to find any, treating upon it. The reason that they are not more numerous, probably arises from the fact that this kind of process has, at least till recently, been in force in but few of the States out of New England. But there the Courts have all held, that where a debtor holds a joint contract against two or more, and his creditor would avail himself of the benefit of this contract under a trastee process, as our gami-shee process is there called, he must summon all the parties liable by law to discharge it. (Jewett vs. Bacon and Trustee, 6 Mass., 59; Rix vs. Elliott and Trustee, 1 N. H., 184; Hudson vs. Hunt and Trustee, 5 Ib., 538; Atkins vs. Prescott, 10 Ib., 120; Hutchinson vs. Eddy and Trustee, 16 Shepley, 485.)

In Atkins vs. Prescott, Upham J., says it is well settled that one of two joint debtors cannot be charged as a trustee, in a suit where the-other debtor is not joined. Another, and an equally fatal objection isr that neither the defendant’s notice, nor the answer of Paine as garnishee,, describes the note upon which this suit is brought. This suit was brought upon a note executed by Paine the garnishee, and two other persons, Crane and Peabody, all the defendants in this case. The notice and the answer describe a note or due-bill, executed by Paine alone and although of the same-date and for the same amount, and given for a similar species of property, it may still have been another indebtedness. Can we legally assume that it is the same 1 Paine’s disclosure or answer, for aught that appears, may have been upon a separate individual indebtedness. The objection that the indebtedness of the garnishee to the principal debtor, exceeded the amount of the jurisdiction of a justice of the peace, is not, I think, a valid one; the jurisdiction of the justice depending, not upon the sum due from the garnishee to the principal debtor, but upon the sum claimed to be due from the latter to the plaintiff in the garnishee suit.

The case presents some other questions, which, in view of the foregoing, it becomes unimportant to consider.

Upon the whole, we are of the opinion that the garnishee proceedings, as set out in the defendants’ notice, are not a bar to a recovery by the plaintiff.

Let it be certified accordingly.