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REPLEVIN-EXCESSIVE TAX.-Repleviu will not lie against the collector of taxes to recover personal property seized to satisfy a tax levied by the proper officer, and it does not matter that the levy is excessive, and that fact is apparent on the face of the tax-book; citing Rubey v. Shain, 54 Mo. 207; and Ranney v. Bader, 67 id. 476, and distinguishing Henry v. Bell, 75 id. 194. Mowrer v. Helferstine. Opinion by Henry, J.
A.DMINISTRATION-ORDER OF SALE OF REAL ESTATE, IMPEACHMENT OF.-An order of sale of real estate is not such a fiual order as will conclude the heirs of the decedent from showing, upon the incoming of the report of sale, that there are no debts, or that there are personal assets sufficient to pay all debts, or any other fact tending to show that the order ought not to have been made. Merritt v. Merritt, 62 Mo. 150; Henry v. McKerlie, 78 id. 416. Fenix v. Fenix. Opinion by Martin, Comr.
CLOUD ON TITLE-CHANGE OF VENUE-VOID DEED. In an action against several defendants, originating in Hickory county, some of the defendants applied for a change of venue, and the court ordered a change, as to them, to Pettis county. The court in Pettis county afterward rendered judgment against one of the defendants who had not joined in the application for the change, and who never appeared to the action and was served only by publication; and his land was sold to satisfy the judgment. In a suit brought by this party to set aside the sheriff's deed, these facts, among others, appearing in the petition, held, that the petition was bad on demurrer; that the court in Pettis county obtained no jurisdiction of this party; that the judgment was therefore a nullity as against him, and the deed was void, and so there was nothing upon which a court of equity could act. Janney v. Spedden, 38 Mo. 396; Odle v. Odle, 73 id. 289. Sherwood, J., agreed that no title passed by the sheriff's deed, but held that it was a cloud upon the plaintiff's title, which ought to be removed by a suitable decree. Holland v. Johnson. Opinion by Ewing, Comr.
EVIDENCE-BOUNDARY OF LAND-DECLARATIONS OF PERSON IN POSSESSION.-In ejectment for a strip of land lying on the dividing line between plaintiff and defendant, defendant had offered evidence of acts and declarations of plaintiff's grautor, since deceased, tending to fix the line as claimed by defendant. Plaintiff in rebuttal offered evidence of declarations to the contrary made by his grantor while in possession. Held, that this latter evidence was competent. The court did not err in admitting the statement of Mrs. Jeffries in evidence. She was the owner and in possession of the land at the time the declarations were made and has since deceased. 1 Greenl. Ev., § 109, and authorities cited in note b; also Hunnicutt v. Peyton, 102 U. S. 333; Darrett v. Donnelly, 38 Mo. 493; State to use, otc., v. Schneider, 35 id. 533; Burgert v. Borchert, 59 id. 80. See note to Deming v. Carrington, 30 Am. Dec. 595; S. C., 12 Conn. 1. In the State of Massachusetts where this subject has been much discussed, it is held that to be admissible such declarations must be made by persons in the possession of land, and in the act of pointing out their boundaries. Bartlett v. Emerson, 7 Gray, 174; Daggett v. Shaw, 5 Metc. 223; Long v. Colton, 116 Mass. 414. The declaration derives its force from the fact that it accompanies and qualifies an act and is thus a part of the act. Bender v. Pitzer, 27 Penn. St. 333. The weight of authority seems to be that in questions of private boundary declarations of particular facts, as distinguished from reputation, are admissible in evidence when made by persons in possession of the land when the declarations are made, or who are on the land at the time, and are shown to have knowledge of that whereof they speak. 102 U. S. 333. Lemmon v. Hartsook. Opinion by Ewing, Comr.
MAINE SUPREME COURT ABSTRACT.* SALE-CONDITIONAL-MEANING OF WORDS
QUESTION FOR JURY - PRACTICE SUBMITTING CASE WEIGHT OF EVIDENCE.-(1) A sale of a horse to be kept by the seller till a future day, and if then brought to the purchaser to be paid for, there being no payment or formal delivery, and the purchaser obtaining no possession further than that the horse was present when the conversation took place, is not a sufficient sale and delivery against one in the condition of a subsequent purchaser. The first sale was conditional only. (2) It is the province of the jury to find what words were used and the meaning of them, where an oral bargain is made. But the court may inform the jury what interpretations of the language used would be possible and permissible, and the jury must determine the meaning within the limits prescribed. (3) A judge may withhold a case from the consideration of the jury when there is no evidence upon which they can in any justifiable view find for the party producing it, upon whom the burden of proof is imposed. (4) It is not enough to require submission to a jury, that there may be a crumb or scintilla of evidence. It must be evidence of legal weight. Beaulieu v. Portland Co., 48 Me. 291; Brown v. E. & N. A Railway, 58 id. 384, and cases; Rourke v. Bullens, 8 Gray, 549. Connor v. Giles. Opinion by Peters, C. J.
LIMITATIONS- ADMINISTRATOR STATUTE 1872, CHAPTER 85.
CONTRACT-SALE OF LAND-RESCISSION-RIGHTS OF SELLER AND PURCHASER.-A contract was made between two persons for the sale by one to the other of a lot of laud. The purchaser made a part payment and went into the possession and occupation of the premises. Afterward the contract was rescinded and the purchaser brought an action for what he had paid toward the land and recovered without any deduction for the use of the premises. Held, in a writ of entry by the seller, that he was entitled to recover with the land the value of the rents and profits. Harkness v. McIntire. Opinion by Libbey, J.
The limitations of the statute 1872, chapter 85, for presenting claims against an estate to the administrator, aud bringing an action thereon, apply to claims held by an insane person, though such person has no guardian during the two years next after the notice of the appointment of the administrator. Baker v. Bean, 74 Me. 17; Hall v. Bumstead, 20 Pick. 2; Van Steeuwyck v. Washburn, 28 Alb. L. J. 483. Whether sound public policy required an exception from the limitation in favor of insane persons and infants, was a question for the determination of the Legislature. It did not deem it wise to make such exception. A construction by the court making it would be judicial legislation. We know no rule for the construction of statutes which would authorize it. Rowell v. Patterson. Opiuion by Libbey, J.
NEGOTIABLE INSTRUMENT-FAILURE OF CONSIDERATION-PAYMENT IN GOODS-BANKRUPTCY OF MAKER.
-Plaintiff held notes against defendant; defendant delivered goods to plaintiff in payment of the notes; before the notes were surrendered by plaintiff the defendant was declared a bankrupt and the sale became thereby void. Held, that the plaintiff could recover upon the notes upon the ground that the consideration for a promised surrender of the notes had failed. The assignment in bankruptcy, by its retroactive effect, rendered the sale to the defendant void. A vendor in possession impliedly warrants his title to the thing sold. Thurston v. Spratt, 52 Me. 202; Huntingdou v. Hall, 36 id. 501. For the breach of warranty,
*To appear in 76 Maine Reports.
Crom. M. & R. 223; Rideal v. Fort, 11 Ex. 847; Magnay v. Burt, 5 Q. B. 381. In a note to Stokes v. White, supra, in the edition by Hare and Wallace, careful annotators, it is said, upon the authority of the cases determined in the Court of Exchequer Cham
chaser does not get that for which he was to pay. It is the same rule as that which applies in favor of a buyer who buys forged shares in a corporation; or forged bills or notes; or who gets an article different from that which was described in the sale. He can recover back money if he paid money; or recover in specie any property passed over to the seller. Here the buyer has in his own hands the note which he was to surrender for the goods, and can collect the same. Eichholz v. Banister, 17 C. B. (N. S.) 708; Chapman v. Speller, 14 Q. B. 621; see Benj. Sales (3 Am. ed.), § 423, and cases in note. Sup. Ct. of Maine, May 5, 1884. Maxwell v. Jones. Opinion by Peters, C. J. (76 Me. 135.)
or failure of consideration, the purchaser can rescind. Marston v. Knight, 29 Me. 341; Bryant v. Isburgh, 13 Gray, 607. Suing the note rescinds the sale. The defendant contends that the object of the sale was to defraud the seller's creditors. He cannot set up such a defense. Butler v. Moore, 73 Me. 151. The pur-ber, that "an arrest by the sheriff, under a writ from any of the Queen's Courts, of a person privileged from arrest by reason of attendance as a witness under the process of another court, does not form the ground of any action at law for damages, but is only the subject of an application to the court, under whose authority the party had been compelled to appear as a witness; the privilege being, not that of the person, but that of the court, and therefore of discretionary allowance." Smith v. Jones. Opinion by Peters, C. J.
MINNESOTA SUPREME COURT ABSTRACT.
ARREST-PRIVILEGE OF WITNESS FROM-ACTION FOR DAMAGES DOES NOT LIE MOTION TO DISCHARGE
NEGLIGENCE -RAILROAD COMPANY DEFECTIVE MACHINERY - PRESUMPTION OF DUTY TO INSPECT.—(1) In the operation of a freight PROPER.-Au action for damages does not lie against train in the night the train broke apart, and the fora plaintiff for the arrest upon civil process of a defend- ward part of the train, being afterward stopped, was aut who was at the time privileged from arrest as a run into by the detached rear cars, including the cawitness returning home from court. The precise ques-boose, and the conductor, who was in the caboose, was tion here presented has not received very much attention from courts, and there is an almost total absence of judicial expression in favor of the plaintiff's position where the privilege is at common law and not by statute. The remedy by action was established long ago in New York by statutory enactment, which is an implication that the remedy did not exist there at common law. And this accounts for intimations in cases in that State that damages for a breach of the privilege are recoverable. Paine and D. Prac. Arrest; Snelling v. Watrous, 2 Paige, 314; Salhinger v. Adler, 2 Robt. 704. Some Euglish statutes give a right of action in some cases, or establish other special remedy, for a violation of the privilege of freedom from arrest; from which an implication arises that no such remedy exists at the common law in that country. Tidd's Practice lays down the various remedies that are available for a violation of the privilege from arrest belonging to witnesses and all other persons or parties in necessary attendance upon courts, and omits all mention of a right of action for damages. Text writers generally are silent upon the question. In 2 Add. Torts (4th Eug. ed.), 796, it is said however that "the privilege does not form the ground of any action at law." And in Cooley's Cou. Lim. (5th ed.) 162 (*135), it is said, in note: The arrest is only voidable; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus." Not many decided cases touch the point. The early experimental actions were against officers, and all of them failed. But much of the reasoning of the courts really went against any action, disregarding any distinction between officer and party. The early cases are cited and commented upon in Carle v. Delesdernier, 13 Me. 363. See Chase v. Fish, 16 id. 132. Some phases of the question are touched in later cases. Wilmarth v. Burt, 7 Metc. 257; Aldrich v. Aldrich, 8 id. 102; Edward Thompson's Case, 122 Mass. 428; Person v. Grier, 66 N. Y. 124. Several English cases take strong ground against the maintenance of such an action. In Yearsley v. Heane, 14 M. & W. 322, it is said: "The protection is limited to the fact of the individual so arrested being entitled to be discharged." In the same case it was said by Pollock, C. B., "Did the Legislature mean to give more than this, that if the party was arrested he might be discharged, whereby he has the full benefit of the protection? I think not." Ewart v. Jones, 14 M. & W. 774; Stokes v. White, 1
killed by the collision. Evidence considered as showing that the immedate cause of the breaking apart of the train was the letting off of a brake on one of the rear cars from the jar of the car in its motion, the brake being so worn that it would not remain wound up when the car was in motion. The fact that a sudden increase of the speed of the locomotive may have contributed with the defective brake to cause the train to break apart does not prevent the defective brake being deemed a legal and proximate cause of the result. Considered further that the stopping of the forward part of the train, and the subsequent collision and injury, may be referred to the defective brake as a proximate cause, within the principle that the wrongdoer is responsible for injuries which might reasona bly have been anticipated as a result of his miscouduct. Griggs v. Fleckenstein, 14 Minu. 81 (Gil. 62); Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. 488; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Campbell v. City of Stillwater, 20 N. W. Rep. 320. The subsequent collision is further removed from that cause in the order of events, but is it so in its causal relation? The answer, upon principles recognized as being within the scope of the maxim causa proxima non remota spectatur, is not difficult. The principle is well settled that a wrong-doer is at least responsible for all the injuries which resulted as natural consequences from his misconduct-such consequences as might reasonably have been anticipated as likely to occur. Griggs v. Fleckenstein, supra; Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74; Jobuson v. Chicago, M. & St: P. Ry. Co., supra; Martin v. North Star Iron Works, 18 N. W. Rep. 109; Savage v. Chicago, M. & St. P. Ry. Co., id. 272; Railroad Co. v. Kellogg, 94 U. S. 469; Lane v. Atlantic Works, 111 Mass. 136; Hill v. Winsor, 118 id. 251; Fairbanks v. Kerr, 70 Penn St. 86; Sheridan v. Brooklyn City, etc., R. Co., 36 N. Y. 39: Lake v. Milliken, 62 Me. 240; Weick v. Lander, 75 Ill. 93. And whether the injury in a particular case was such natural and proximate result of the wrong complained of, is ordinarily for the determination of the jury. (2) The use by a servant of defective and unsafe machinery delivered to him for use by the master, although the servant may have been guilty of negligence in using it, does not relieve the master from responsibility to a fellow servant injured thereby ou account of the unsafe condition of the machinery furnished. Drymala v. Thompson, 26 Miun.
40; Madden v. Minneapolis, etc., R. Co., 20 N. W. Rep 317; Cone v. Delaware, etc., R. Co., 81 N. Y. 206; Booth v. Boston, etc., R. Co., 73 id. 38. (3) There is no legal presumption that it is the duty of the con. ductor of a railway freight train to inspect the cars and machinery of his train, or that he is chargeable with negligence for using cars if the defect was such that it might have been discovered by inspection. Rusier v. Minneapolis, etc., R. Co. Opinion by Dickinson, J.
[Decided July 21, 1884.]
SALE-PARTICULAR USE-WARRANTY Where a chattel is to be made or supplied to the order of the purchaser, it is the general rule that there is an implied warranty that it shall be fit for the purpose intended. But where the article ordered and agreed to be furnished is to be of a particular design, pattern or model, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to such design or model, there is no such warranty implied, but only that it should be of good material and workmanship. Cunningham v. Hall, 4 Allen, 274; Mason v. Chappell, 15 Gratt. 586; Chanter v. Hopkins, 4 Mees. & W. 399; Prideaux v. Bunnett, 87 E. C. L. 613. C. contracted to manufacture and deliver to B. " one of the Cosgrove Cascade Roller Mills, machine to have a capacity of 100 barrels
warranty, and that such contract of warranty was not satisfied by delivering a machine of a certain size or description, if there proved to be such inherent defects in the mill as to prevent its successful operation, so that ordinarily under proper management it could not turn out the stipulated amount of flour. The express warranty distinguishes this case from Haase v. Nonnemacher, 21 Minn. 490. Here there is a written contract obligating the parties to do certain things, and binding upon both. The receipt of a mill otherwise answering the description in the contract was not a waiver of defendant's right to sue upon the warranty on a subsequent discovery of its breach. Polhemus v. Heiman, 45 Cal. 573; Maudel v. Buttles, 21 Minn. 397; Scott v. Raymond, 18 N. W. Rep. 274. Cosgrove v. Burnett. Opinion by Vanderburgh, J. [Decided July 29, 1884.]
the absence of all intelligent parliamentary procedure as one great cause of the failure of the revolutionary
Thanking you most sincerely for your kind attention.
Very respectfully yours,
Moreover the body for whose benefit Dr. Lieber thought of translating Cushing's Manual was, as I stated in my paper, the revolutionary Parliament which met in St. Paul's church at Frankfort in 1848, and of which Bismarck never was a member. Dr. Lieber's hard common sense would never have allowed him to seriously propose influencing or controlling the German Diet (Bundestag), to which Bismarck was ap. pointed ambassador from Prussia in 1852, by any parliamentary rules. He was right however in considering
as to the capacity of the mill amounted to stiluxpress THE following decisions were handed down Tues
day, Feb 10, 1885:
Judgment affirmed with costs-Daniel P. Barnard and others, respondents, v. John T. Barnard and others, Horatio G. Onderdonk, appellants; Sarah B. Aikman, respondent, v. Blaize L. Harsell and another, trustees, appellants; In re Will of Ann Martin; Willy Wallach and another, executors, respondents, v. Commercial Fire Ins. Co., appellants; Daniel Defreest, respondent, v. Samuel S. Warner and others, appellants; G. Bruce Brown, adm'r, etc., respondent, v. George L.Landon, appellant; Sophie Schmid, adm'x, respondent, v. N.Y., L.E. & W. R., appellant; Johanna Donahue, respondent, v. Susan R. Kendall and others, appellants; Catherine Murphy, adm'x, respondent, v. N. Y., L. E. & W. R. Co., appellant; Susan Lenhart, adm'x, respondent, v. N. Y., L. E. & W. R. Co., appellant; Ida Deweese, adm'x, respondent, v. Boston and Albany R. Co., appellant; Martha A. Beales, executor, etc., respondent, v. James Lyons, appellant; In re Final Accounting of Stephen T. Hopkins, executor, etc.; Jos. Blumenthal, respondent, v. Julia A Riley, adm'x, appellant.-Judgment affirmed and record remitted to the court below, with directions to proceed according to law-People, respondent, v. George H. Mills, appellant.- Judgment affirmed without costs in this court to either party-Rector, etc., of Trinity Church, etc., appellant, v. Jacob H. Vanderbilt, respondent.- -Order affirmed and judgment absolute ordered for the defendant on the stipulation with costs-Henry G. Crouch, appellant, v. William M. Hayes, treasurer, etc., respondent.-Judgment reversed, new trial granted, costs to abide the event— Cynthia A. Tolman, adm'x, etc., respondent, v. Syracuse, Binghamton and New York Railroad, appellant; Eugene Lewis, executor, respondent, v. Enos Merritt, appellant; Mary A. Brick, adm'x, etc., respondent, v. Rochester, New York and Pennsylvania Railroad Company, appellant. -Motion for reargument denied with costs-Stephen D. Pringle, respondent, v. Charles D. Leverich, appellant.- -Motion to amend remittitur denied with costs-People ex rel. James S. Stranahan and others v. Hubert O. Thompson, commissioner, etc. -Granted with costs-Mary F. Stoughton, respondent, v. Samuel A. Lewis, appellant.Motion to vacate order dismissing appeal granted, without costs-Elizabeth Welch v. John T. Wilson. -Motion to put on preferred calendar denied without costs-In re Accounting of C. A. Waldron, assignee.
The Albany Law Journal.
ALBANY, FEBRUARY 21, 1885.
CURRENT TOPICS. ·
[R. CLEMENT BATES, in the Cincinnati Law Bulletin, has the following on text-books: "If codification is really necessary as a relief from an intolerable load of precedents, there must be, in my opinion, years of preliminary work done before any body of lawyers, however accomplished, or any Legislature, however free from ignorance or indolence, can succeed in it or any part of it. To thresh a field sown with different kinds of grain, by threshing one stalk of each at a time before separation and gathering into shocks, would be easier and more possible. The present generation of wordy and inexplicit text-books must first pass away, and with them disappear the present system of teaching law. It is not only necessary before codification, but also highly desirable for other purposes, and far from impossible, that now, at the present time, treatises on the best known legal subjects should be constructed by formulating settled and universal propositions into the shape of categorical rules, like the sections of a statute, and printing them, perhaps, in large type. These then stand as legal axioms of ultimate postulates. Then under each of these axioms, in smaller type, follow its sub-rules or inferential branches, as corollaries; and finally, in still smaller type, under each of these latter deductions, will naturally fall the anomalous and doubtful decisions, and extreme and inconsistent applications of the principles, all the primary or secondary being accompanied, of course, by their illustrative and historical authorities. * * This leads to the only other alternative in the preparation of material for codification, and that is, for the men engaged in instructing in the elements of law to formulate the law somewhat in the manner of the text-books above described, but on smaller scale, and thus furnish the profession and the world with the raw material of codification." We do not assent to this. The best text-book writers would prove poor codifiers. A writer on a special subject has a hobby which he must ride, and the importance of which he will exaggerate. He cannot take the broad view of the man trained to look at principles as separated from cases, and to express them concisely. It is indeed disheartening if we have to wait a generation for codification in order to have our text-books improved.
Nearly every one will agree with Mr. Bates however that our text-books might be improved. They should gradually be written after the method above pointed out, which we believe was originated by Vice-Chancellor Wigram in his unrivaled treatise on Extrinsic Evidence as to Wills, and which has VOL. 31- No. 8.
been very successfully followed in a few instances,
we are to undertake codification. It would be un
just to disparage too much present systems of in-
Governor Hoadley, of Ohio, who is an earnest and
Judge Freedman has adjudged ex-Mayor Edson guilty of contempt in disobeying Judge Beach's in
junction restraining him from filling certain municipal offices in the city of New York. He says: "The defendant, as mayor, was the chief executive officer of the corporation of New York. He was elected to that high office by the votes of a majority of the electors of this great city. He, above all others, should have set an example of devotion and submission to the supremacy of the law as administered by the tribunals created by the sovereign power of the State for that purpose. Occupying such a high position, his willful and public disobedience to the positive mandate of a court of general jurisdiction, is an act of far-reaching consequences. Under these circumstances, and inasmuch as neither the sentence by this court in the Compton case of Alderman Sturtevant to imprisonment for fifteen days, and to payment of a fine of $250 into the city treasury, and of a further fine of $102.07 to the relators for their costs and expenses, nor the sentence by the Supreme Court in the Dwyer case of each of
the seventeen aldermen to imprisonment for thirty
days and the payment of a fine of $250 deterred the defendant from defying the authority of this court; the case demands the infliction of the highest punishment anthorized by law, unless mitigating circumstances can be found that can properly be considered. Upon this point I have, after due deliberation, come to the conclusion that some of the matters urged as an excuse, but rejected as insufficient in law for that purpose, ought to be accepted in mitigation. The fact cannot be denied that the order of injunction was granted under circumstances which made it difficult to ascertain whether there was or was not jurisdiction, and upon being advised by counsel that the order was void, the defendant may well have believed it. Moreover the practice of the plaintiffs themselves in obtaining the injunction was so faulty and irregular as to lend color to the theory that the order was invalid. Upon the whole, I am charitable enough to think that the defendant actually believed that the order was void. But after giving to the defendant the fullest benefit of every extenuating consideration that can be presented, the case still remains one which calls for substantial punishment. I therefore direct that for the willful disobedience and the contempt of which the defendant stands adjudged guilty, he be imprisoned in the county jail for the period of fifteen days, and that in addition thereto, he pay a fine of $250." This is as much as to say that although an injunction may be contemptible, it is still contempt to disobey it, when there was colorable jurisdiction to grant it. And this is probably the law. We have great confidence in Judge Freedman's judgment, impartiality and integrity. He is one of the city judges who is above suspicion, and we do not believe that any order of his will ever need to be made the subject of legislative inquiry.
Next to codification the relief of our Court of Appeals calendar is the most vital subject to our
profession and the public in this State. We call attention to a communication on this subject in another column, which suggests some novel expedients, well worthy of serious consideration. In regard to two of them we can at once express our own opinion. We have long believed that there are a good many appeals manifestly taken for delay in which the court ought to exercise its power to impose damages. As to increasing the costs of appeal generally, we are decidedly opposed to it. Litigation should be made cheaper rather than dearer, and many sound lawyers are even in favor of abolishing costs cept as penalty In regard to the other and main expedient suggested, we must reflect with our readers.
NOTES OF CASES.
N Geismer v. Lake Shore and Michigan Southern Ry. Co., 34 Hun, 50, it was held that the defendant was liable in damages for delay in transportation of goods caused by a strike of its employees, although assisted by outside persons. The court said: "This precise. question does not appear to have been passed upon in the courts of this State. In the case of Blackstock v. New York and Erie Railroad Co., 20 N. Y. 48, the damages sustained were for a delay in the carriage of a quantity of potatoes. The delay was occasioned by reason of a strike of the engineers of the railroad company. In that case it was held that although the officers of the company were without the slightest fault, the corporation was responsible for the damages caused by a delay in transporting the property, which resulted from the strike. In that case there does not appear to have been any violence used on the part of the striking engineers. It does not appear however that the railroad company was unable to find other competent men with whom they could safely intrust the running of their engines. The court laid down the rule that the railroad company is liable for the misconduct of its servants, and that it makes no difference whether such misconduct was willful or from carelessness, if their action was within the scope of their employment. In the case of Weed v. Panama Railroad Co., 17 N. Y. 362, the action was for damages sustained by a passenger by reason of the willful act of the conductor in stopping the train and detaining it over night. It was held that the company was under contract to transport the passenger with reasonable dispatch to his place of destination, and that by its failure to do so it was guilty of a breach of contract, and that the plaintiff could recover, notwithstanding the act of the conductor in stopping the train was willful; that he was acting within the scope of his employment. The rule, as laid down in this case, is sufficiently broad to cover the case under consideration. The employees of the defendant were engaged in running the trains of the