Paul, Minneapolis, & Manitoba Railway, 31 Minn. 351; Davis v. Houghtellin, 33 Neb. 582.

There may be cases where injuries result from accepting unauthorized invitations to ride which do not fall within the above rule, and are to be distinguished. Such cases may be found in the books, and need not be considered here, the circumstances being different.

Under the circumstances disclosed in the present case, it was not competent for the jury to find that the invitation given to the plaintiff to ride was within the scope of Frank's employment, and for this reason there must be a new trial. Exceptions sustained.

ILLINOIS CENTRAL RAILROAD CO. v. LATHAM.

SUPREME COURT OF MISSISSIPPI.

[16 So. R. 757.]

1894.

APPEAL from Circuit Court, Panola county: EUGENE JOHNSON, Judge. "To be officially reported."

Action by Lincoln Latham against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Mayes & Harris, for appellant.

G. D. Shauds, for appellee.

WHITFIELD, J. Accepting the plaintiff's testimony as true, it appears that he was riding on top of the coach to avoid the payment of his fare, and did not go back to the caboose because he feared the conductor would say something. He got on at Memphis to go to Sardis. The fare was $1.50. The brakeman did not demand $1.50, but 50 cents. He did not eject him when the demand for 50 cents was first made and declined, and not until the transit was nearly terminated, Under the rules introduced by plaintiff, and as explained by Homer Williams, a witness for plaintiff, it would have been the duty of the brakeman to report to the conductor the presence of plaintiff on the train, and acted, as to his ejection, under the conductor's orders. The brakeman made no report to the conductor whatever, but acted independently of him. Failing to get the money, -the 50 cents, he cursed the plaintiff, and shoved him off the moving train. Surely, in no just and reasonable view can it be held that in the acts of the brakeman, thus done, was he acting in his master's business, or with intent to perform any duty due to the masHe was not demanding fare, but money to put in his pocket. He did not eject him under the orders of the conductor, nor when, aside from any orders of the conductor, he first discovered him, nor at the next station. He was plainly attempting to extort money for

ter.

his private use. We are not prepared to hold that it may not be the implied duty of a brakeman to eject trespassers, on the idea clearly put by Judge Andrews in Hoffman v. Railroad Co., 87 N. Y. 28, that "the implied authority in such a case is an inference from the nature of the business, and its actual daily exercise according to common observation and experience," a statement of the law copied literally and approved in Railroad Co. v. Kelley (Kan.), 14 Pac. 173. It is true the contrary is held in Bess v. Railroad Co., 35 W. Va. 492; 14 S. E. 234, and possibly in other cases; but what may be the better reason is not now before us, and we leave this open, as not necessary now to decide. The question here is whether the brakeman, in doing what he did, as he did it, was acting for the company, or in the accomplishment solely of his own independent, wilful, malicious, and wicked purposes; using his authority to eject trespassers, if any there were, as a mere cover under which to extort money from appellee, not for fare, but for his pocket. The case in 14 Pac. 173 is clearly a case where the injured boy was ejected from the train as a trespasser, simply to get him off, as being improperly on the train, in execution of what the court held the implied duty of the brakeman to eject trespassers. Manifestly, in that case the brakeman acted in discharge of what he deemed a duty to the company. There was no hint in that case of any act done by the brakeman for his own private benefit, or to gratify even private malice. The true rule is thus clearly announced in Rounds v. Railroad Co., 64 N. Y., at page 136.1 . . . We approve this as an admirable statement of the law. It is true that ordinarily the question whether the brakeman's act was within the line of his duty, done for the master and in his business, is one of fact, for the jury, since ordinarily there is conflict in the evidence; but in this case, on the plaintiff's own testimony, the court should have granted the peremptory charge, following the cases of Railway Co. v. McAfee, 71 Miss. 70, 14 South. 260, and Railroad Co. v. Harris, 71 Miss. 74, 14 South. 263.

Judgment reversed and cause remanded.

MCGILVRAY v. WEST END STREET RAILWAY COM

PANY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1895.

[41 N. E. R. 116.]

APPEAL from Superior Court, Suffolk county; JOHN HOPKINS, Judge. Action by Daniel McGilvray against the West End Street Railway Company for an assault committed by one of defendant's employees.

1 The passage appears at pp. 222–223, ante. — ED.

The court ruled that plaintiff had no evidence on which to go to the jury, and he excepts. Exceptions overruled

Plaintiff testified that while he was standing in the street with one foot on the sidewalk and the other on the step to defendant's car-house, waiting for a car, he complained to the conductor of the car which had just been switched into the car-house, because the conductor had not told him that the car was not going through, and that the conductor, after saying that plaintiff had not asked him if it was going further, and after certain other conversation, assaulted him.

L. M. Child, for plaintiff.

Wm. B. Sprout, for defendant.

BARKER, J. If we assume in favor of the plaintiff that, upon the evidence, the jury might find that he had paid his fare through to Prospect Street, and that, in addition to his right to remain unmolested upon the public street, he had the right, upon leaving the car which had been switched into the stable, to inquire of the conductor why the contract to carry him to Prospect Street was not carried out, and to enter the stable to ascertain when and how he could be carried to his destination, yet the verdict for the defendant was rightly ordered. The only reasonable inference to be drawn from the whole evidence is that while waiting in the public street to take one of the defendant's cars, he saw fit to engage in an altercation with a person who was in fact one of the defendant's servants, and received from him an assault which was not made for any purpose which the jury could find to be part of the defendant's business. The defendant had no control over the place where the plaintiff was, and no duty to protect the plaintiff there from any assaults, although it would be responsible to him for assaults committed upon him there, as elsewhere, by its servants in the scope of their employment. The suggestion that it could be found within the scope of that employment for a servant to punish him for asserting his rights against the defendant is of course untenable; nor is there sufficient ground in the suggestion that the assault was for the purpose of putting him out of the defendant's premises to warrant submitting the case to a jury. Exceptions overruled.

Ir was held by LEE, C. J., that though a factor has power to sell, and thereby bind his principal, yet he cannot bind or affect the property of the goods by pledging them as a security for his own debt, though there is the formality of a bill of parcels and a receipt. And the jury found accordingly.

HAZARD v. TREADWELL.

NISI PRIUS, Pratt, C. J., 1768.

[1 Str. 506.]

THE defendant, who was a considerable dealer in iron, and known to the plaintiff as such, though they had never dealt together before, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards.

1 Cases on undisclosed principals are found in Chapter V. -ED.

2 "It is manifest that when a man is dealing with other people's goods, the difference between an authority to sell, and an authority to mortgage or pledge, is one which may go to the root of all the motives and purposes of the transaction. The object of a person who has goods to sell is to turn them into money, but when those goods are deposited by way of security for money borrowed it is a transaction of a totally different character. If the owner of the goods does not get the money, his object and purpose are simply defeated; and if on the other hand, he does got the money, a different object and different purpose are substituted for the first, namely, that of borrowing money and contracting the relation of debtor with a creditor, while retaining a redeemable title to the goods, instead of exchanging the title to the goods for a title, unaccompanied by any indebtedness, to their full equivalent in money." Per Lord SELBORNE, in City Bank v. Barrow, 5 App. Cas. 664, 670 (H. L., 1880).

In England the doctrine of the principal case has been largely abrogated by the Factors Acts. See 4 Geo. IV. c. 83 (1823); 6 Geo. IV. c. 94 (1825); 5 & 6 Vict. c. 39 (1842); 40 & 41 Vict. c. 39 (1877); 52 & 53 Vict. c. 45 (1889). And so in many of the United States. For examples of the American statutes as to factors and other persons entrusted with possession or with bills of lading, warehouse receipts, and the like, see Public General Laws of Maryland (1888), art. 2 (from Laws of 1825, c. 182, and of 1849, c. 293); Revised Statutes of New York (eighth ed.) 2517-2518 (from Laws of 1830, c. 179); Brightly's Purdon's Digest of Pennsylvania Statutes (twelfth ed.), 867 (from Act of Apr. 14, 1834); Revised Statutes of Ohio (1880), secs. 32143220 (from Laws of 1844, p. 49); Public Statutes of Massachusetts (1882), c. 71 (from Statutes of 1845, c. 193).-ED.

He sent the same waterman a second time with ready money, who received the goods, but did not pay for them; and the CHIEF JUSTICE ruled the sending him upon trust the first time and paying for the goods, was giving him credit, so as to charge the defendant upon the second contract.

FENN v. HARRISON.

KING'S BENCH, 1790.

[3 T. R. 757.]

ON a motion for a new trial, the facts appeared to be these: This was an action for money lent, money paid by the plaintiffs to the use of the defendants, and money had and received by the defendants to the use of the plaintiffs. A bill of exchange was drawn by Livesay and Co. on Gibson and Johnson in favor of one Norman, which came by indorsement to the defendants; who, being desirous of getting it discounted, employed Francis Huet for that purpose, telling him to carry it to market and get cash for it, but that they would not indorse it. F. Huet applied to his brother James Huet to get the bill discounted, informing him that it was the defendants' bill, and that though they did not choose to indorse it, yet he added (as a reason of his own) that, as their number was on the bill, it was equivalent to an indorsement; and that he (F. Huet) would indemnify him if he indorsed the bill. On an application by James Huet to the plaintiffs, and on his indorsing the bill, without which indorsement he could not have got the bill discounted, the plaintiffs discounted it; chiefly relying on the credit of Gibson and Johnson, for at that time they did not know that the defendants had had any concern with the bill. Afterwards however, on the failure of Gibson and Johnson, the plaintiffs, having heard that the bill had passed through the defendants' hands, applied to them for payment, who at first refused, but afterwards promised to take it up; and, on their not doing so, this action was brought to recover the amount of it. Lord KENYON, before whom the cause was tried, after reporting the above facts, said that he had told the jury that, if they were of opinion that James Huet had made himself answerable to the plaintiffs, as agent for the defendants, that was a sufficient consideration for the defendants' promise; and that they were of that opinion, and found a verdict1 for the plaintiffs.

A rule having been obtained to show cause why the verdict should not be set aside, and another trial granted, on the ground that this was nudum pactum ;

1 This was a second verdict: the plaintiffs had obtained a former verdict; but the Court granted a new trial (without much discussion) for the purpose of having the subject better considered.

REP.