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appeared that a receiver had been appointed by the Circuit Court of the
United States, under an order directing that the receiver ** take full charge of
all the property, income, profits, earnings, and receipts of said Central Rail-
road Company of Iowa; and that the said receiver pay out of the income, re-
ceipts, and earnings of the road no debts or expenses of any kind, without
special order, of which plaintiff shall have notice, except such as shall become
due, belong to, and come within the category and character of operating ex-
penses of the said road: ** and the court below ruled that the action could not be
maintained, leave to bring it not having been obtained from the Circuit Court.
On appeal, the Supreme Court, as to the question whether or not leave should
have been obtained, say, —

" In Kinney v. Crocker, Receiver, 18 Wis. 74, which was an action to recover of
defendant, who was in possession of and operating a railroad as a receiver, under the
orders of the United States District Court, for injuries occasioned to the plaintiff by
the alleged negligence of the agents and servants of defendant in operating a train
of cars, it was held that the court below properly refused to instruct the jury, that,
unless the plaintiff had leave from the United States District Court to bring the suit,
he could not recover. In this case, whilst it was admitted ' that a court of equity
will, on a proper application, protect its own receiver, when the possession which he
holds under the authority of the court is sought to be disturbed,' and that a plaintiff
' desiring to prosecute a legal claim for damages against a receiver might, in order to
relieve himself from the liability to have his proceedings arrested by an exercise of
this equitable jurisdiction, very properly obtain leave to prosecute,' yet it was held
that * his failure to do so is no bar to the jurisdiction of the court of law, and no
defence to an otherwise legal action on the trial ; ' and the court say, * There can be
no room to question this conclusion in all cases where there is no attempt to interfere
with the actual possession of property which the receiver holds under the order of
the Court of Chancery, but only an attempt to obtain a judgment at law on a claim
for damages.' This case, in our opinion, announces the correct doctrine. See also
Paige v. Smith, 99 Mass. 895; HilU v. Parker, 111 Mass. 506; Campr. Barney,
11 N. Y. 878.

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" In all of these cases, the action was bronght against the receiver ; but if, in such
case, it is not necessary to obtain aathority, to commence tlie action, of the court
appointing the receiver, afirtiori is it not necessary to obtain such authority when
the action is against the railroad company itself."

In the United States Circuit Court at St. Louis, however, on motion of the
receivers of the Pacific Railroad, the plaintiff, who had brought suit in the
State court, and obtained an injunction restraining them, as receivers, from
proceeding to her damage with certain work in the street' adjoining her prem-
ises, was enjoined from further proceeding in the State court; the court saying,
** One court having custody of property through its receivers cannot admit
that another court has power tp define what are their duties wiUi reference to
such property. To admit such a principle would be to permit other tribunals
to instruct our receivers in regard to their duties, and to surrender control over
them to the numerous courts within whose jurisdiction they are required to
act.'' Indeed, according to a note in the Central Law Journal^ Judge Dillon
refused the writer leave to bring an action for damages in the State court
against the receiver of the Central Kailroad of Iowa.

The cases cited from Massachusetts are very far from maintaining the
proposition in support of which they are referred to. In Paige v. Smithy the
decision went on the ground that the courts of Vermont, in which State the de-
fendants had been appointed, having decided that it was no defence that they
were receivers, the courts of Massachusetts would not go behind that decision ;
and in Hills v. Parker, which was an action of replevin, the question simply
was, whether the defendants were entitled to the property in dispute in any


Usury under National Bank Act. — Assioneb in Bankruptcy. —
In Crocker, Assignee, v. First National Bank of Chetopa (United States Circuit
Court), the assignee sued- to recover twice the amount of interest taken from the
bankrupts by the defendants, the interest charged by the defendants being at a
greater rate than is allowed by the laws of Kansas. The court (Dillon, J.)
held that the recovery should be for double the whole amount of interest paid,
and not merely for double the amount in excess of the legal rate under the law
of the State. On the question, whether the right of action which the bankrupts
had passed to their assignee, the plaintiff, the opinion continues: —

" The next question is. Is the assignee in bankruptcy their ' legal representative '
within the meaning of the statute ? Rev. Stat. sect. 6198. It is our opbiion that
an assignee in bankruptcy is, in respect of snch a claim as this, which has injuriously
affected and reduced the estate in bankmptcy, and which is to be enforced ' by an
action in the nature of an action of debt,' peculiarly and most appropriately 'the
legal representative ' of the bankrupt. Every reason which, in case of the death
of the debtor without bankmptcy, would give the right of action to the administra-
tor or executor as his legal representative, applies with full force to the assignee in
bankruptcy, if bit estate is, during his lifetime, administered in a court of bank-
ruptcy. See Tiffany v. Nat, Bank of Mo., supra / 1 Deac. on Bank. (8d ed.) 528, 624 ;
Beddiam r. Drake, 2 H. L. Cas. 640.

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" In this Tiew, it is uniiaoeMaiy to determioe whether "the right of action would
Test in the assignee under the Bankrupt Act (Rev. Stat sects. 5014-^6047) ; though it
seems not improbal)le that the provisions of these sections are oomprebensive enough
to embrace it Darby's TrusUes y. Boatmen's Sav. Inst., I Dill. 141 ; 8. o. 18 WalL 376.

" Under the English Bankrupt Act, no right of action passes to the assignee for a
mere personal tort to the bankrupt, as for assault or libel ; but it is otherwise in
respect of injuries or torts which result in diminishing the estate of the bankrupt ;
and the distinction is taken between rights of action where personal suffering or in-
convenience is the primary cause of the action (which do not pass), and where
pecuniary loss or damage is the primary cause of action ( which do pass). 1 Deac. on
Bank. (8d ed.) 622 ei seq. This distinction seems to be made in our Bankrupt Act,
which vests in the assignee all such 'rights of action.' "


Negligence. — Charitable Ikstitution. — The rule as to the liability
of commissioners of public works for negligence, where there has been no fault
on their part in the choice or appointment of those who were to perform the
work, has received a new application in McDonald v. The Massachusetts Get^
eral Hospital, The defendants are a public charitable institution, incorporated
for the purpose of erecting, supporting, and maintaining a general hospital for
sick and insane persons. Their funds are derived from gifts from the Com-
monwealth, from gifts, devises, and bequests of benevolent persons, and from
a portion of the profits of the Massachusetts Hospital Life Insurance Co. and
of certain other insurance companies, to be paid over to the defendants accord-
ing to the terms of their several charters. Patients of means are expected to
pay according to their circumstances and the acconmiodations they receive,
though the benefits of the hospital are administered at as low a rate as prac-
ticable; but there are also furnished from the funds of the hospital, and from
gifts and bequests especially for that purpose, a certain number of **free
beds." The trustees have authority to determine who shall be admitted as

The treatment of all cases in the hospital is by the visiting physicians and
surgeons, who act gratuitously, and the house pupils acting under their direc-
tion. Such physicians and surgeons are practitioners in the city of Boston,
outside of the hospital, and are selected by the trustees to treat patients who
come to the hospital for gratuitous treatment. The house pupils are chosen
by the trustees from a ** list of applicants qualified for the service, to be nomi-
nated by the visiting physicians and surgeons."

It appeared that ^e plaintiff, on Deo. 9, 1870, fell from a building and
broke his thigh-bone, and that he was brought the same day to the defend-
ants' hospital for treatment. While there he occupied a ** free bed," and
received gratuitously the surgical care and nursing which the hospital affords
to its patients. The house pupil who set the broken bone and attended to
the case during the plaintiff's stay had been recommended by the attending
physicians and surgeons, and appointed as provided in the by-laws ; and the vis-
iting surgeon under whose direction the pupil acted, was a man of the highest
professional reputation.

The plaintiff alleged that the fractured bone had not been properly set,

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either by leaBon of the inoompetency or n^;ligeiioe of the pupil, or of the
Deg^genoe of the surgeon ; and that, in oonsequence, he was permanently dis-
abled. Dbveks, J., in his opinion, says, —

" The corporation has no capital stock, no provision for making dividends or
profits ; and whatever it may receive from any source it holds in trust, to be devoted
to tlie olitiect of sustaining the hospital, and increasing its benefits to the public by
extending or improving its accommodations and diminishing its expenses. Its funds
are derived mainly fix>m public and private charity. Its affairs are conducted for a
great public purpose, — that of administering to the comfort of the sick, — without any
expectation on the part of those immediately interested in the corporation of receiv-
ing any compensation which will inure to their own benefit, and without any right
to receive such compensation. This establishes its character as a public charity.
Jadcaon v. PhiUipe, 14 Allen, 689. The fiuit that its ftmds are supplemented by such
amounts as it may receive from those who are able to pay wholly or entirely for the
accommodation they receive does not render it the less a public charity. All sums
thus obtained are held upon the same trust as those which are the gifts of pure
benevolence. Gooch v. Association for EeUef of Aged Females, 109 Mass. 668. Nor
does the fact that the trustees through their agents are themselves to determine who
are to be the immediate objects of the charity, and that no person has individually
a right to demand admission to its benefits, alter its character. All cannot partici-
pate in its benefits. The trustees are those to whom is confided the duty of selecting
those who shall enjoy them, and prescribing the terms upon which they shall do so.
If this trust is abnsed, the trustees are under the superintending power of this
court, as a court of equity, by virtue of its authoriQr to correct all such abuses; and
the interest of the public therein — that is to say, of the indefinite objects of the
charity — may be represented by the Attorney-General. Sanderson v. White, 18 Pick.
820; Attorney-General y. Old South Society, 18 AUen, 474.

** It might well be questioned whether any contract could be inferred between
the plaintiff and defendant. It has offered to him freely those ministrations, which,
as a dispenser of a public charity, it has been able to provide for his comfort ; and he
has accepted them. It has no funds which can be charged with any judgment which
he might recover, except those which are held subject to the trust of maintaining
the hospitaL If, liowever, any contract can be inferred from the relation of the
parties, it can be only on the part of the corporation that it shall use due and reap
sooable care hi the selection of its agents. Where actions have been brought against
commissioners of public works serving gratuitously for negligence in carrying on
the work by which injury has occurred, it has been held that they were not hable, if
proper care had been used by them in selecting those who were actually to perform
the work. HalUday v. Vestry and Parish of St. Leonard, 11 C. B. n. s. 192. The
Uability of this defendant corporation can extend no farther than this : if there has
been no neglect on the part of those who administer the trust and control its man-
agement, and if doe care has been used by them in the selection of their inferior
agents, even if injury has occurred by the negligence of such agents, it cannot be
made responsible. The funds intrusted to it are not to be diminished by such casu-
alties, if those immediately controlling them have done their whole duty in reference
to tliose who have sought to obtain the benefit of them. There was no attempt to
show that the trustees had in any respect failed in the perfi>rmanoe of their duty.
If they bad made suitable regulations, and had selected proper persons to fill the
podtion of surgeons, then, whether those persons neglected to perform (heu* duty, or
whether another person, as the house pupil, not selected for the office of surgeon,
sssuned without authority to act as such, and iiguiy has thus resulted, the plaintiff
bss no remedy against the corporation."

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Messrs. A. L. Soulb of Springfield, F. W. Hurd of Boston, and C. W.
Clifford of New Bedford, have been appointed a commission to inquire into
the expediency of revising the judicial system of the State, under the follow-
ing resolve of the legislature, approved April 26, 1876: —

" Reiolved, That the Governor and Council be, and they are hereby, authorized to
appoint a oommlMion, consisting of three suitable persons learned in the law, to sit
during the recess of the legislature, with authority to call witnesses to inquire into
the expediency of revising the judicial system of the State, with a view to securing
greater economy, efficiency, and promptness in the administration of justice, espe-
cially by justices of the peace, trial-justices, and police, district, and municipal
courts. Said commission shall submit its report in writing, with bill or bills if prac-
ticable, to the Secretary of the Commonwealth, on or before the twentieth day of
December next, on which day the commission shall expire. The Secretary of the
Commonwealth shall cause the report to be printed as a document of the public
series to be laid before the next General Court, and a sufficient number of copies to
be printed to allow the secretary to transmit one to each member of the present
legislature, in addition to the distribution of such documents now prescribed by

It is understood that the real matter for investigation is the anomalous
condition of the courts of local jurisdiction. For the last few years the
legislature has been making the experiment of establishing, from time to time,
« district courts " in different parts of the State (a certain number of towns
generally being a judicial district) ; courts intended within the reach of their
jurisdiction to supersede the older machinery of justices' and police courts.
Some twenty-three district courts, in all, have thus far been erected. While
it has been dear that improvements in this direction were needed, the efforts
of the legislature have not pursued any well-arranged plan; and the result
seems to be want of uniformity, some confusion, and altogether an anomalous
condition of the inferior courts.

In re Sears' Will. — In this case, which has attracted a good deal of at-
tention on account of the enormous property involved, — supposed to amount
to eight or nine millions of dollars, — a decision has just been rendered by the
Supreme Court. The testator, Joshua Sears, died Feb. 7, 1857, leaving a
will, containing among others the following provisions: —

** All the rest, residue, and remainder of my estate I give to said Alpheus Hardy,
Horatio Harris, and Hugh Montgomery, their heirs and assigns, as joint-tenants in
trust, to hold, invest, manage, and take care of the same, according to their best
knowledge and discretion ; and I wish them to invest one-half part of my estate in
favorable purchases of real productive estate, stores to be preferred, looking well to
the value and titles thereof; and I wish them to invest one-half part of said estate in
bottom-mortgages on estates which shall be considered of twice the value of the
money loaned thereon, the titles of such estates to be well examined. I give to my
son, Joshua M. Sears, the sum of thirty thousand dollars, to be paid to him at the
age of twenty-one years.

*' All such parts of the income of my estate which may be necessary for the
support and education of my son I dh^ect to be used for that purpose; and, when he
shall be twenty-one years old, I direct that four thousand dollars be paid to him

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annually ; when he ehall be twenty-flye yean old, six tbonsand per year ; and ten
thousand dollars per year when he shall he thirty years.

" And in case of the death of my son before he arriTes to the age of twenty-one
years, then I direct that ten thousand dollars be paid to said town of Yarmouth for
the purpose of a library, and six thousand dollars for free lectures in said town.

" And the residue and remainder of said estate I direct to be paid and dirided,
one-third thereof to my brother Charles, one-third to my brother Willard, and one-
third to the children of my brother Thomas W* Sears."

The son named in the will, the only child of the testator, reached his
majority the 25th December last, and at once claimed as sole heir all the prop-
erty in the hands of the trustees, except so much as they needed to raise the
annuities given in the will. The trustees filed thei^bill for instructions, mak-
ing the brother of the testator, and the children of his deceased brothers,
parties. The court has sent down the following rescript, ordering a decree in
favor of the son : —

" 1. The last qlause of the will was intended to take effect only in case the son
of the testator should die before he arrlTcd at the age of twenty-one years. As this
contingency has not happened, this clause is inoperative; and the town of Yarmouth
and the testator's relatives named therein take nothing under it.

" 2. The provision, that ' all such parts of the income of my estate which may be
neceesary for the support and education of my son I direct to be used for that
purpose/ is applicable only during the minority of the son, and ceased when he
became of age ; and in the further provision in the same clause for the payment to
the son of annuities of four thousand, six thousand, and ten thousand dollars, said
annuities are not cumulative, but are substitutes of each other.

" 8. It follows that the trustees hold the residue of the estate in their hands for
the sole purpose of supporting a trust and paying an annuity which can never
exceed ten thousand dollars.

" The intention of the testator requires that the trustees should retain in their
hands so much of the estate as is needed to support this trust; but the surplus
beyond this is property undisposed of by the will, and devolves to the son by way
of resulting trust As he alone is beneficially interested in such surplus, it should
be transferred to him by the trustees."

Mr. Nicholas St. John Green, Professor at the Boston Law School,
and formerly lecturer at the Harvard Law School, died at Cambridge on the
8th of September last. Although his name was only beginning to be known
to the public, his loss cannot be mentioned by those who knew him, and who
have the improvement of the law at heart, without bitter regret. He was as
important a figure in the field of jurisprudence as his equally lamented friend
Chauncey Wright was in that of science and philosophy. In his early prac-
tice, he acquired a critical knowledge of the criminal law; and he undoubtedly
started with a superstitious respect for the technical element which still pre-
vails in that part of the law. In fact, it would seem evident, that, as a younger
man, he must have held a good many of the prejudices, legal and political,
which are natural to a strong nature imchastened by learning and reflection.
But his reason was stronger even than his temperament; and as time went on,
and he became a student of history, political economy, psychology, and logic,
prejudice gave way to philosophy, and his convictions, without losing in

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strength, were tempered by an appreciation of the other side whidi powerful
men do not alwa3rs acquire. He handled a question of law not only with the
mastery of a logician who easily reduced a case under established principles,
but also, and with equal power, in the light of the history which explains
those principles, and the considerations of political science and human nature
which justify them. The evidence of his ability was not confined to the
lecture-room; for it is not too much to say, that no man at the Suffolk bar
produced a greater effect upon the opinions of the Supreme Court, in the cases
which he presented, than he. His arguments, in addition to the qualities of
substance which we have mentioned, had a terseness and simple beauty of
form which it is impossible to compare with any less-distinguished models
than those of Judge Curtis. Mr. Green did not live long enough to construct
a systematic work; but as, with him, theory was not an excuse for ignorance
of details, but was based as much on exact and practical knowledge as it was
on broad and careful study outside the law, those who knew him best hoped
and expected, that, when he was satisfied with his patient preparation, he would
produce results worthy of his talents. A few notes to his two volumes of crim-
inal cases, and two or three articles in this Remeto, are all that the profession
can judge him by; and they are, perhaps, enough. But those who have had
the great benefit of his conversation and criticism know, that, although he
had justified the opinion of his friends, the world has lost work which it
could ill spare, and which it would certainly have known.


USB OP Highway. — An interesting point touching the use of highways
arose in Macomber v. Nichols, The action was brought by Nichols to recover
for an injury occasioned by his horse taking fright as he was driving on the
highway. The fright was caused by an engine mounted on wheels, which the
defendant was running along the road by means of the steam-power by which
it was operated. The engine, which was used mainly for threshing, was
moved from place to place for that purpose. Among other things, the jury
were instructed, at the request of Nichols, that if they found that " the plain-
tiff was driving a well-broken and gentle horse in the public street, that the
defendant, by running a steam-engine along said highway, caused plaintiff's
horse to run away, and that plaintiff was thereby injured either in person or
property, and that such steam-engine was well calculated to frighten horses of
ordinary gentleness, then the plaintiff is entitled to recover; ** that ** a party
placing upon the highway any vehicle unusual, and calculated from its appear-
ance, and mode of locomotion, to frighten horses of ordinary gentleness, is lia-
ble for all damages resulting therefrom; '' that ** the defendant had no right to
run his steam-engine on the public street or highway, if such engine was cal-
culated to frighten horses of ordinary gentleness."

The Supreme Court held these rulings erroneous. Coolsy, J., says in the
opinion, —

'* The instruction, that any one placing upon the highway a vehicle unusual,
and calculated from its appearance and mode of locomotion to firighten horses of

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ordinary gentteness, is liable for all damages resultinf therefirom, it not onljr
erroneous, but it could not fail to mblead. It was an instruction, in substance,
that the placing of such a yehicle in the bighwaj is always, and under all cirenm-
stances, an illegal act ; a wrong in itself, for which an action will lie on behalf of

Online LibraryJames Marcus BandyThe American law review → online text (page 20 of 97)