NEGLIGENCE: COMPULSORY PILOTAGE-INJURY TO PIER THROUGH Negligence OF PILOT.-The decision of Hon. Wm. G. Choate, referee in the case of Homer Ramsdell Transp. Co. v. Compagnie Générale Transatlantique, published in a recent number of the New York Law Journal,1 is an important contribution on the subject of the liabilty of a ship-owner at common law for the negligence of a pilot, whom he is compelled by law to employ in order to conduct his vessel out of a port. As the damage was to a pier which was a part of the land, the case was outside the jurisdiction of a court of admiralty, and the action was accordingly a common law action in the Circuit Court of the United States. The learned referee holds, following a number of English decisions, that, independently of any statutory exemption, a shipowner who is compelled by the law of the port to employ such a pilot as may be detailed for that purpose to conduct his ship in or out of port, is not liable for damages for an injury that may be done by the negligence of the pilot, unless the master of the ship or the crew co-operate therein. The obvious reason is that a pilot imposed upon a ship-owner by compulsion or law, is not his servant, because not under his command.

2

NEW TRIALS: NUMBER OF NEW TRIALS APPEALED FROM ORDER GRANTING NEW TRIALS EXPRESSING REASONS OF THE JUDGE FOR GRANTING IT.- The decision of one of the departments of the Supreme Court of Missouri, in the case of Millar v. Madison Car Co.,3 if allowed to stand is likely to complicate and embarrass appellate procedure in that State. The decision is rendered under the following statute: "Only one new trial shall be allowed to either party, except, first, where the triers of fact shall have erred in matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds of which said new trial is granted." The case was a suit for personal injuries. Upon the trial the jury found a verdict for the defendant. A new trial was granted plaintiff on the ground of error in instructing the jury. The order of

4

1 63 Fed. Rep. 845.

2 The principal English cases are the following: The Maria, 1 W. Rob., 102; The Protector, 1 W. Rob. 54; The Agricola, 2 W. Rob. 19; The Neptune 2d, 1 Dods. 467; The Christiana, 7 Moore P. C. C., 171; The Geraloms, 3 Hagg. 169; Bennett v. Morta, 7 Taun

ton, 258; Attorney-General v. Çase, 3 Price; The Annapolis, Lush. 312; Caruthers v. Sydebotham, 4 M. & S. 77; The Halley, L. R. 2 Ad. & Ec., 3 S. C. L. R. 2 P. C. 201.

3 31 S. W. Rep. 574.

Rev. Stat. Mo., 1889, § 2241.

the lower court, granting the new trial, states that the motion therefor is "sustained for the reason that there was error, prejudicial to the plaintiff, in giving instructions Nos. 5 and 6, in the form in which they were asked and given, — these should have been modified or not given at all, — and for the reason that instruction No. 9 should not have been given." On appeal from this order setting aside the verdict and granting the new trial, the second division of the Supreme Court1 found that there was no error in the instructions mentioned, and that, therefore, the trial court erred in granting a new trial on that ground, and that, since the court had specified the grounds of its ruling, the Supreme Court would look no further to see whether the new trial was not in fact properly granted, because of other errors, than those specified in the order; but, as to everything beyond the specific grounds set forth, would "proceed upon the salutary presumption indulged in favor of the correctness of the rulings of the Circuit Court, that, as the trial court had under consideration ten different grounds for a new trial, and adjudged, in effect, that none of these were sufficient save those which it sustained, and which, as required by statute, it entered upon the record, the Supreme Court, indulging the presumption, must hold that there is, prima facie, no ground for disturbing the verdict of the jury except those specified in the order granting the new trial, and that, as to the other grounds, the burden is shifted to the respondent, to show that the ruling of the trial court, in granting the new trial, was right."

As we understand this and previous decisions of the same court, the court have adopted the rule in such cases, of splitting up the question upon a theory analogous to that of the burden of proof,- by holding that on such an appeal the presumption is in favor of the correct action of the trial court in granting the new trial, but only for the reasons given by the judge in so granting it; so that, primarily, there is a burden upon the appellant of overthrowing those reasons; which when done, there is a burden cast upon the respondent of showing that there are other good reasons furnished by the record for upholding the action of the trial court in granting the new trial. This seems to be a refinement not favorable to the best administration of justice. It would seem that on such an appeal, as on every appeal or writ of error, the propriety of the order or judgment appealed from should be tested and judged of by the whole record, and that the burden ought to be upon the appellant throughout, of overthrowing the action of the trial court, and that there ought to be correspondingly a general burden on the respondent of sustaining it. The Supreme Court of Missouri seem

1 Opinion by Gantt, P. J.

to have converted this peculiar kind of statutory appeal into an appeal from the reasons given by the trial judge, instead of an appeal from the order made by him. Beyond all question, the general, if not universal rule of appellate procedure, is that the reasons given by the court from whose judgment an appeal or writ of error is prosecuted are matters with which the appellate tribunal has nothing to do. The statute, above quoted, has really made no innovation on this rule Notwithstanding the statute, the appeal is still an appeal from the order, and not an appeal from the reasons given by the judge for making the order; and this being so, the question arising on the appeal must be whether the order is proper and valid, and not whether valid reasons were given for it. The object of the statute was to reach an abuse, which had previously existed, of judges setting aside verdicts and granting new trials without adequate grounds, because of their dissatisfaction with verdicts; and the statute sought to attain this object by compelling the judges to state upon their records their reasons for their actions. It does not seem to have been intended to change any rule of appellate procedure. Especially it does not seem to have been intended to convert an appeal from an order granting a new trial into an appeal from the reasons given for making the order. We do not understand how the appellant is to assign errors on the record, under the very peculiar rule of the Supreme Court of Missouri. Is he merely to assign that the court below erred in the reasons given for granting the new trial? Or that it erred in granting the new trial for the reason given? Or merely that it erred in granting the new trial? We throw these queries out to show the embarrassment and incongruity of the rule of procedure adopted by the Supreme Court of Missouri.

PUBLIC OFFICERS: LIABILITY TO THIRD PERSONS FOR THEIR NEGLIGENCE. In the case of Brabant v. King,1 the judicial committee of the English Privy Council affirm the doctrine that the rule which exonerates public officers from personal liability for injuries to third persons, done in the discharge of the duties of their offices, in consequence of their mere nonfeasance, has no application to a case in which the officer charged with nonfeasance is under an obligation to an individual member of the public to perform the duty which he has neglected to the prejudice of the latter, in consideration of being remunerated by the latter for its performance. In the particular case a judgment was

1 72 L. T. Rep. 785.

reversed which denied a recovery against the keeper of a government storehouse for injuries to goods through a defect in the house. readers will recall that the principle is constantly put in force in respect of such officers as sheriffs, constables, recorders of deeds, and the like, who, under compulsion of law, undertake the discharge of certain duties in behalf of, and upon the request of private individuals, for fees paid or to be paid by the latter. The distinction lies between duties performed for the public and those performed for individuals. In the former case there is no liability to individuals, because the duty in respect of which the public officer has failed was not owing to individuals; in the latter case there is a liability, because the duty was undertaken for the person damaged by its non-performance, or by its imperfect performance.1

1 See, for illustration, 2 Thomp. Neg. (1st ed.), p. 825.

CORRESPONDENCE.

THE OPINION OF THE ATTORNEY-GENERAL AS TO THE LIABILITY OF THE UNION PACIFIC AND CENTRAL PACIFIC DIRECTORS.1

To the Editors of the American Law Review:

There are one or two propositions advanced in the published opinion of the Attorney-General relating to the liability of the directors of the Pacific Railroads which I think are open to the most serious criticism.

The first question relates to the rights of the government as to stock "unlawfully issued." The word " unlawful" is indefinite in this connection, but I assume that by it is meant a stock issue without value; and as to that the Attorney-General says, "the United States as a creditor have no rights." This is new law to me. Since the case of Sagory v. Dubois,2 the law has been that corporate creditors could compel the persons receiving such stock to pay the face value thereof. In Scoville v. Thayer,3 the Supreme Court of the United States say that such a stock issue is fraud in law, and corporate creditors may intervene and compel the stockholders to pay their stock in full. I have never seen or heard that doctrine questioned in a State or Federal court in this country; and I believe it to be the law now in England.

It is true that the question is limited to the remedy against the "officers and directors;" but even in that case no reason is perceived, on principle, why the creditor would not have his remedy against such officers and directors for their fraudulent or ultra vires act in frittering away the property of the corporation.

In this particular case, however, I believe that the directors, either directly or indirectly, got the stock for themselves. Of course, in that event, they are liable, as hereinabove stated.

The answer to the second question as given by the Attorney-General is not the law and never was the law in this country. Directors cannot make contracts with themselves or with persons representing them, to their own profit, even though such contracts "were knowingly authorized or ratified by a majority of the directors having no interest therein." I understand the law to be that a single stockholder can set such contracts aside and have the profits turned into the corporate treasury.

In this opinion by the Attorney-General nothing is said as to the solvency of the corporations. I take it that they are insolvent. The answer to the first question assumes insolvency, because it speaks of the rights of the United States as a creditor. If these corporations are insolvent, then are the directors trutsees for the creditors, and any profit which they may make directly or

1 See the text of the opinion, ante, p.

2 3 Sandf. Ch. 466 (1848).

3 105 U. S. 143.