the law implies a promise that he will do so. So one ought to pay a judgment rendered against him, or a penalty which he has by his misconduct incurred, and hence the law implies a promise that he will pay. There is no more contract to pay the judgment than there is to pay the penalty; he has neither promised to pay the one nor the other, the promise is a mere fiction, and is implied merely for the purpose of the remedy. Judgments and penalties are, in the books, in some respects, placed upon the same footing; at common law both could be sued for in an action ex contractu for debt, the action being based upon the implied promise to pay, but no one will contend that a penalty is a contract, or that one is really under a contract liability to pav it. McCoun v. N. Y. C & H. R. R. Co., supra.

Suppose a statute gives a penalty to an aggrieved party, with interest, what interest could he recover? The interest allowed by law when the penalty accrued, if the statutory rate has since been altered? Clearly not; he would be entitled to the interest prescribed by by law during the time of the defendant's default in payment; there would, in such a case, be no contract to pay interest, and the statutory rate of interest at the time the penalty accrued would become part of no contract. If therefore a subsequent law should change the rate of interest, no vested right would be interfered with, and no contract obligation would be impaired.

The same principles apply to all implied contracts. When one makes a valid agreement to pay interest at any stipulated rate for any time, he is bound to pay it, and no legislative enactment can release him from his obligation; but in all cases where the obligation to pay interest is one merely implied by the law or is imposed by law, and there is no contract to pay except the fictitious one which the law implies, then the rate of interest must at all times be the statutory rate; the rate existing at the time the obligation accrued did not become part of any contract, and hence the law which created the obligation could change or alter it for the future without taking away a vested right or impairing a contract.

In the case of all matured contracts which contain no provision for interest after they are past due, as I have before said, interest is allowed, not by virtue of the contract, but as damages for the breach thereof. In such cases what would be the effect of a statute declaring that no interest should be recovered? As to the interest which had accrued as damages before the date of the law, the law could have no effect because that had become a vested right of property which could not be taken away, but the law could have effect as to the subsequent interest, and in stopping that from running would impair no contract. A law could be passed providing that in all cases of unliquidated claims which now draw no interest, interest should thereafter be allowed as damages; and thus there is ample legislative power in such cases to regulate the future rate of interest without invading any constitutional right. When a man's obligation to pay interest is simply that which the law implies, he discharges that obligation by paying what the law exacts.

This judgment, so far as pertains to the question we are now considering, can have no other or greater force than if a valid statute had been enacted requiring the defendant to pay the same sum with interest. Under such a statute interest would be computed, not at the rate in force when the statute was enacted, but according to the rate in force during the time of default in payment. A different rule would apply if a judgment or statute should require the payment of a given sum with interest at a specified rate, then interest at the rate specified would form part of the obligation to be discharged.

Here then the defendant did not in fact contract or promise to pay this judgment, or the interest thereon. The law made it his duty to pay the interest, and implied a promise that he would pay it. That duty is discharged by paying such interest as the law, during the time of default in paying the principal sum, prescribed as the legal rate.

If this judgment had been rendered at the date the execution was issued, interest would have been computed upon the original demand at seven per cent to January 1, 1880, and then at the rate of six per cent. Shall the plaintiff have a better position because the judgment was rendered prior to 1880?

As no intention can be imputed to the parties in reference to the clause in the judgment requiring payment "with interest," we may inquire what intention the court had. It is plain that it could have no other intention than that the judgment should draw the statutory interest until payment. It cannot be presumed that the court intended that the interest should be at the rate at seven per cent if the statutory rate should become less.

That there is no contract obligation to pay the interest upon judgments which is beyond legislative interference is shown by legislation in this country and in England. Laws have been passed providing that all judgments should draw interest, and changing the rate of interest upon judgments, and such laws have been applied to judgments existing at their date, and yet it was never supposed that such laws impaired the obligation of contracts.

It is claimed that the provision in section 1 of the act of 1879, which reduced the rate of interest (chap. 538), saves this judgment from the operation of that act. The provision is that "nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act." The answer to this claim is that here there was no contract to pay interest at any given rate. The implied contract, as I have shown, was to pay such interest as the law prescribed, and that contract is not affected or interfered with.

The foregoing was written as my opinion in the case of Prouty v. Lake Shore & Michigan Southern R. Co. The only difference between that case and this is that there the judgment was by its terms payable "with interest." Here the judgment contains no direction as to interest. The reasoning of the opinion is applicable to this case and is therefore ready to justify my vote in this. Since writing the opinion we have decided in the case of Sanders v. Lake Shore & Michigan Southern R. Co., 18 Weekly Dig. 160, the law to be as laid down in the first paragraph of the opinion.

The orders of the General and Special Terms should be reversed and the motion granted, without costs in either court, the parties having so stipulated.

ANDREWS, J. (concurring) My conclusions are: 1st. The exception in the act of 1879, "nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act," applies only to contracts or obligations resting upon the voluntary, mutual agreement of parties. A judgment is not a contract or obligation made between the parties, and only such contracts or obligatious are within the exception. Salter's case, 8 N. Y. 401.

2d. Interest post diem on a contract for the payment of money is given, not on the principle of implied contract, but as damages for breach of contract. Interest on a judgment, which is an obligation of record to pay the sum adjudged, is given as damages for delay in performing the obligation.

3d. In both cases the measure of damages is the statutory rate. This rule does not rest on the basis of

Upon the analogous question whether the sureties upon the official bond of a sheriff, a coroner or a constable are responsible for his taking upon a writ directing him to take the property of one person, the property of another, there has been some difference of opinion in the courts of the several States.

The view that the sureties are not liable in such a case has been maintained by decisions of the Supreme Courts of New York, New Jersey, North Carolina and Wisconsin, and perhaps receives some support from decisions in Alabama, Mississippi and Indiana. Ex parte Reed, 4 Hill, 572; People v. Schuyler, 5 Barb. 166; State v. Conover, 4 Dutch. 224; State v. Long, 8 Ired. 415; State v. Brown, 11 id. 141; Gerber v. Ackley, 32 Wis. 233, and 37 id. 43; 19 Am. Rep. 751; Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 id. 183; Brown v. Moseley, 11 Sm. & Marsh. 354; Jenkins v. Lemonds, 29 Ind. 294; Carey v. State, 34 id. 105.

But in People v. Schuyler, 4 N. Y. 173, the judgment in 5 Barb. 166, was reversed, and the case of Ex parte Reed, 4 Hill, 572, overruled by a majority of the New York Court of Appeals, with the concurrence of Chief Justice Bronson, who had taken part in deciding Reed's

case.

The final decision in People v. Schuyler has been since treated by the Court of Appeals as settling the law upon this point. Mayor, etc., of New York v. Sibberns, 3 Abb. App. Dec. 266, and 7 Daly, 436; Cumming v. Brown, 43 N. Y. 514; People v. Comstock, 93 id. 585. And the liability of the sureties in such cases has been affirmed by a great preponderance of authority, including decisions in the highest courts of Pennsylvania, Maine, Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Nebraska, Texas and California, and in the Supreme Court of the District of Columbia. Carmack v. Commonwealth, 5 Binn. 184; Brunott v. McKee, 6 Watts & Serg. 513; Archer v. Noble, 3 Greenl. 418; Harris v. Hanson, 2 Fairf. 241; Greenfield v. Wilson, 13 Gray, 384; Tracy v. Goodwin, 5 Allen, 409; State v. Jennings, 4 Ohio St. 418; Sangster v. Commonwealth, 17 Grat. 124; Commonwealth v. Stockton, 5 T. B. Mon. 192; Jewell v. Mills, 3 Bush, 62; State v. Moore, 19 Mo. 369; State v. Fitzpatrick, 64 id. 185; Charles v. Haskins, 11 Iowa, 329; Turner v. Killian, 12 Neb. 580; Holliman v. Carroll, 27 Tex. 23; Van Pelt v. Littler, 14 Cal. 194; United States v. Hine, 3 MacArthur, 27.

In State v. Jennings, above cited, Chief Justice Thurman said: "The authorities seem to us quite conclusive that a seizure of the goods of A. under color of process against B. is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond where that is that he will faithfully perform the duties of his office. The reason for this is that the trespass is not the act of a mere individual, but is perpetrated colore officii. If an officer, under color of a fi. fa. seizes property of the debtor that is exempt from execution, no one, I imagine, would deny that he had thereby broken the condition of his bond. Why should the law be different, if under color of the same process, he take the goods of a third person? If the exemption of the goods from the execution in the one case makes the seizure official misconduct, why should it not have the like effect in the other? True, it may sometimes be more difficult to ascertain the ownership of the goods than to know whether a particular piece of property is exempt from execution; but this is not always the case, and if it were, it would not justify us in restricting to litigants the indemnity afforded by the official bond, thus leaving the rest of the community with no other indemnity against official misconduct than the responsibility of the officer might furnish." 4 Ohio St. 423.

So in Lowell v. Parker, 10 Met. 309, 313, a constable, authorized by statute to serve only writs of attachment in which the damages were laid at no more than $70, took property upon a writ in which the damages

were laid at a greater sum. In an action upon his official bond, it was argued for the sureties that they were no more answerable than if he had acted without any writ. But Chief Justice Shaw, in delivering the opinion of the Supreme Judicial Court of Massachusetts, overruling the objection, and giving judgment for the plaintiff, said: "He was an officer, had authority to attach goods on mesne process on a suitable writ,professed to have such process, and thereupon took the plaintiff's goods; that is, the goods of Bean, for whose use and benefit this action is brought, and who therefore may be called the plaintiff. He therefore took the goods colore officii, and though he had no sufficient warrant for taking them, yet he is responsible to third persons, because such taking was a breach of his official duty." Upon the weight of authority therefore, as well as upon principle, the judgment of the Circuit Court in the case at bar is right, and must be

(See article ante page 404.-ED.

Affirmed.

EXPULSION OF PASSENGER-DAMAGES.
MICHIGAN SUPREME COURT, MARCH 6, 1884.

HUFFORD V. GRAND RAPIDS, ETC, R. Co.* As between conductor and passenger the ticket must be the conclusive evidence of the passenger's right to travel; but if the ticket is apparently good, the passenger has a right to refuse to leave the car.

If medical expert testimony is to be admitted in cases of tort, as to the possibility of injurious consequences to the plaintiff's health from mere words, or from the vexation caused by the tort, the parties putting their question to the expert should at least be required to take into account, when considering the possible consequences, the contemporaneous, or nearly contemporaneous,facts that may also conduce to the disturbance of health.

rror to Kent.

Error

E. S. Eggleston, for plaintiff.

D. D. Hughes, for defendant and appellant.

COOLEY, C. J. The plaintiff sues for being wrongfully threatened with expulsion from the cars of defendant, and compelled to pay fare a second time after he had bought a ticket which the conductor refused to take. It appears that on September 19, 1882, the plaintiff and one Goodyear were at Manton, on the road of defendant, and about to proceed to the north. They had then been together some days. At Manton they bought tickets for Traverse City from the agent of defeudant. Plaintiff noticed that the ticket given to him was not like that given to Goodyear, and called the agent's attention to the fact, and inquired if it was good, and was told it was. In this the agent was mistaken. The ticket was one part of an excursion ticket from Sturgis to Traverse City, and had been cancelled from Sturgis to Grand Rapids. The evidence is conflicting as to whether it had not also been cancelled from Grand Rapids to Walton, a station north of Manton. When the ticket was presented to the conductor he told plaintiff it wns not good separated from the other part. He also claimed that it had been used by another person to Walton, and he told the plaintiff he must pay his fare to Walton or he should put him off the cars. The plaintiff at first refused, and was advised by Goodyear to persist in his refusal, but when the conductor took hold of the bell-rope to stop the train, and as plaintiff says, put his hand on plaintiff's shoulder, he consented to pay the fare and did so, taking the conductor's receipt therefor. The fare paid was twenty-five cents. The plaintiff then proceeded on his journey.

*S. C., 18 N. W. Rep. 580.

To show that he was entitled to something more than merely nominal damages the plaintiff gave evidence that he was not well at the time of the occurrence; that he had a chronic diarrhoea, and he thought the trouble was greater afterward than before. It does not seem however to have interfered with his business, which was that of a commercial traveler, nor had it kept him from visiting the houses of ill-fame at Cadillac a day or two before. A physician was put upon the stand as an expert, and was asked whether, if a man afflicted with chronic diarrhoea, and riding upon a public railroad car, should be taken hold of by the conductor, and under a threat to eject him from the car, the person excited under the influence of it, it would have any effect upon his health. The reply was that it would be likely to cause a relaxation of the bowels temporarily.

In submitting the case to the jury the judge instructed them that if they should find from the evidence that the plaintiff purchased the ticket in question in good faith, and had paid for the same, and only refused to leave the train under an honest belief of having paid his fare,and that the ticket was good from Manton to Traverse City, and that this belief was induced by the assurances of the agent of the company of whom he purchased the ticket, and if there was nothing upon the face of the ticket which would apprise him of any infirmity in it, then any attempt of the conductor to remove the plaintiff from the car by the actual taking hold of his person, or laying his hands upon him for that purpose, was an assault and battery, for which the plaintiff had a right to recover any and all damages naturally and legitimately resulting therefrom. Under this instruction the plaintiff had a verdict for $366.61.

In Frederick v. Marquette, etc., R. Co., 37 Mich. 342; S. C., 26 Am. Rep. 531, it was decided that as between the conductor and the passenger the ticket must be the conclusive evidence of the extent of the passenger's right to travel. No other rule can protect the conductor in the performance of his duties or enable him to determine what he may or may not lawfully do in managing the train and collecting the fares. If when a passenger makes an assertion that he has paid fare through, he can produce no evidence of it, the conductor must at his peril concede what the passenger claims, or take all the responsibilities of a trespasser if he refuses. It is easy to see that his position is one in which any lawless person, with sufficient impudence and recklessness, may have him at disadvantage, and where he can never be certain, if he performs his apparent duty to his employer, that he may not be subjected to severe pecuniary responsibility. Such a state of things is not desirable, either for railroad companies or for the public. The public is interested in having the rules whereby conductors are to govern their action certain and definite, so that they may be enforced without confusion and without stoppage of trains; and if the enforcement causes temporary inconvenience to a passenger, who by accident or mistake is without the proper evidence of his right to a passage, though he has paid for it, it is better that he submit to the temporary inconvenience than that the business of the road be interrupted to the general annoyance of all who are upon the train. The conductor's duty, when the passenger is without the evidence of having paid his fare, is plain and imperative, and it can serve no good purpose and settle no rights to have a controversy with him. The passenger gains nothing by being put off the car, and loses nothing by paying what is demanded and staying on.

The plaintiff therefore in this case, if it was found that the ticket he held was not good by reason of former use and cancellation, should have paid his fare

when it was demanded, and looked afterward to the railroad company for the refunding of the money, and for compensation for any trouble he might be put to in obtaining it. And it would have been very prudent and proper for him to adopt his course, even though there was nothing on the face of the ticket to apprise him of the invalidity. If the conductor, who was manager of the train, informed him that for any reason the ticket was one he could not receive, a contest with him over it must generally be very profitless, aud therefore nnadvisable; but we are all of opinion that if the plaintiff's ticket was apparently good he had a right to refuse to leave the car.

The following cases support Frederick v. Marquetle, elc., R. Co., and some of them in their facts closely resemble the one before us: Townsend v. N. Y. C. & H. R. R. Co., 56 N. Y. 295; 15 Am. Rep. 419; Chicago, etc., R. Co. v. Griffin, 68 Ill. 499; McClure v. Philadelphia, etc., R. Co., 34 Md. 532; 6 Am. Rep. 345; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. 214; Downs v. N. Y. & N. H. R. Co., 36 Conn. 287; 4 Am. Rep. 77; Petrie v. Pennsylvania R. Co., 42 N. J. L. 449; Yorton v. Milwaukee, etc., R. Co., 54 Wis. 234; 11 N. W. Rep. 482; 41 Am. Rep. 23; and 6 Am. & Eng. Ry. Cas. 322. Whether the ticket the plaintiff held was fair upon its face was a disputed question in the case, and must depend for its solution upon the view taken by the jury of the credibility of the witnesses who testified respecting it.

The medical evidence which was given in the case respecting the effect of the alleged assault upon the plaintiff's health, seems to call for some comment. As the assault was a battery only in a technical sense, and there was no pretense of injury except such as might come from mere words-from the mere expression on the part of the conductor of a determination to put the plaintiff off the car unless he paid his fare — the proposition that it was proper to call expert witnesses to show the possibility of injurious consequences from such words to the plaintiff's health is suggestive of possibilities in the trial of causes which the trial judge may well contemplate with some solicitude. If expert evidence of the sort was admissible in this case, it is difficult to conceive of a case of assault and battery, or of any other case in which vexing or provoking words are made use of, where the expert witness may not become an important factor in determining the result. But the field for his operations could by no means be restricted to cases in which disturbing words had been made use of. Nearly every case of tort is accompanied by some circumstance which is calculated to annoy and vex the party entitled to sue for it; and if the possible effects upon the mind, and through the mind upon the health, are to be the subject of expert investigation and testimony in a case like this, they must be so at the discretion of the parties in all cases, and the medical witness may become as much an incident to the session of a trial court as the jury itself. Should this ever come to be the case, the parties, in putting their questions to the expert witnesses, should at least be required to take into account-when considering possible consequences such contemporaneous, or nearly contemporaneous, facts as may also conduce to the disturbance of health; such, for example, as some which appeared in this case, and have been mentioned above. The judge in his instructions evidently attached importance to this expert testimony, and it no

doubt conduced to swell the damages awarded. The case should go back for a new trial. Sherwood and Campbell, JJ., concurred.

STATION AGENT IS" FELLOW-SERVANT.”

MINNESOTA SUPREME COURT, MARCH 31, 1884.

BROWN V. MINNEAPOLIS AND ST. L. R. Co. In the absence of controlling evidence to the contrary, the presumption is that an ordinary railway station agent has general charge of the tracks in and about his station. As respects such charge he is the fellow-servant of an engineer engaged in running a locomotive upon any of such tracks, and hence the common master of the two is not responsible to the engineer for injury which he may receive in consequence of the negligence of the station agent, as respects the charge of such tracks.

Α'

PPEAL from an order of the District Court, Hennepin county. Opinion states the case. Merrick & Merrick, for appellant.

J. D. Springer, for respondent.

BERRY, J. While plaintiff was running a regular passenger train upon defendant's railroad as a locomotive engineer, his engine (without apparent fault on his part) ran into some box cars standing upon the main track at Winthrop station and he was injured. The main track was that to which plaintiff's train was entitled. The freight cars had been placed there by persons not in defendant's employ, for their own convenience, and without other authority than the assent of the station agent. They were placed there about 3 P. M., and the collision occurred at 7:35 P. M., so that they had then been there more than four hours. The train was due at the station at 7:27. The plaintiff put in evidence a rule of the company as follows.

"Station agents are responsible for safety of switches which must always (except when a man is standing by) be kept right for trains running on main track. They must see that no cars are moved on side track so near the switches as not to properly clear the main track. Cars must not be allowed on the main track to load or unload, unless permission is obtained from train-master."

There was no evidence of any other rule or regulation, express or implied, as to the management of the tracks at or about the station, or as to the duties of a station agent. But we agree with the plaintiff's counsel, that in the absence of controlling evidence to the contrary, an ordinary railway station agent is to be taken as having general charge of the tracks at and about his station. This is a reasonable presumption of fact, founded upon the ordinary course of business, the common understanding of the public, and the nature and necessities of the case. Of course, the station agent is always subject to the control of his superiors, and his general charge may be limited by rules and regulations; as in this instance, by the prohibition to place cars upon the main track to load or unload without permission from the train-master or by the assignment of some portion of what would ordinarily be his duties to some other person. The presumption spoken of appears to be assumed by the rule put in evidence.

As a consequence of these views it is clear, that upon the facts before stated, it was the duty of the station agent, as respects the plaintiff, to see to it that the main track was unobstructed and ready for his train, and that, in suffering it to be obstructed as it was, the agent was guilty of negligence through which plaintiff was injured. As respects the defendant, this negli gence of the station agent is the only negligence of which plaintiff can or does complain. In this state of facts the trial court dismissed the action, being of opinion that the station agent was plaintiff's fellowservant, and that therefore (no charge of incompetence being made against him) plaintiff cannot recover for

the injuries resulting from his negligence. It remains to consider whether this opinion is correct.

Prima facie the plaintiff and the station agent were fellow-servants, for they were acting together under one master in carrying out a common object. Gilman v. Eastern R. Co., 10 Allen, 233. They were engaged in the same common employment, under the same general control. Cooley Torts, 544, and cases cited. They were subject to the same general control, coupled with an engagement in the same common pursuit. Wood Mast. & Serv., §§ 426, 435, and cases cited. McGowan v. Railroad Co., 61 Mo. 528; Thomp. Neg. 1037, § 38. Is there any thing to except the station agent from this prima facie relationship of fellow-servant to the plaintiff? He would be excepted only if he stood in the place of the master as a vice-principal, or as it is sometimes expressed, as the master's alter ego. Malone v. Hathaway, 64 N. Y. 5. But one employed becomes a vice-principal as respects another only when he is intrusted with the performance of some absolute and personal duty of the master himself, such as the providing of proper instrumentalities with which the service required of an employee is to be performed, or the general management and control of the master's business, or of some branch of it. Drymala v. Thompson, 26 Minn. 40; S. C., 1 N. W. Rep. 255, and cases cited; Wood Mast. & Serv., §§ 390, 438; Mullan v. P. & S. M. S. Co., 78 Penn. St. 25; Malone v. Hathaway, supra.

In such cases the negligence of the vice-principal is the negligence of the master. Drymala v. Thompson, supra; Fay v. Railroad Co., 30 Minn. 231; S. C., 15 N. W. Rep. 241; Cooley Torts, 560, 563; Corcoran v. Holbrook, 59 N. Y. 517; Quincy M. Co. v. Kitts, 42 Mich. 34; S. C., 3 N. W. Rep. 240; Booth v. Railroad Co., 73 N. Y. 38.

But the general management or control of the master's business, or some branch thereof, does not include the case of one simply charged with special duties performing them under the direction of the master, or under the control of superior officers. Malone v. Hathaway, supra.

Applying the rule that the facts being undisputed, the relation of the station-master to the plaintiff is a question of law (Marshall v. Schricker, 63 Mo. 309), in our opinion the station-master in this case does not fall within the exception to the rule making him prima facie plaintiff's fellow-servant. Here there was no neglect to furnish or maintain suitable instrumentalities for the performance of plaintiff's proper service; and herein this case differs essentially from Drymala v. Thompson, supra, relied upon by plaintiff. There the track itself was defective. Here no complaint is made that the track was improperly constructed or in bad order. But the complaint, in effect, is that a proper track was improperly used or attended to by the station agent. A master is not, by reason of any absolute or personal duty on his part, liable to one employee for the improper use of proper instrumentalities by another. Floyd v. Sugden, 134 Mass. 563; Summersell v. Fish, 117 id. 312; Griffiths v. Gidlow, 3 Hurl. & N. 648; Gibson v. Pacific R. Co., 46 Mo. 163; Wood Mast. & Serv., § 371; Brown v. W. & St. P. R. Co., 27 Minn. 162; S. C., 6 N. W. Rep. 484; Heine v. Chicago & N. W. R. Co., 17 id. 420.

Any other doctrine would obviously lead to most astonishing consequences. Neither is the stationagent's case that of an officer exercising general control or management of the defendant's business, or of a branch thereof. He is simply charged with special duties as to his station, as a switchman sometimes is as to a particular switch or an engineer as to a particular engine. His duty is simply that of an operative. Farwell v. B. & W. R. Co., 4 Metc. 49; Gilman v. East