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Mahoning Circuit Court.

There was no evidence or claim of that, and the court erred in submitting it to the jury. The other proposition is, if the contract was made outside of the state of Pennsylvania, whether made in Ohio, or not, then the law of Pennsylvania would not govern, and the plaintiff would be entitled to recover if all other facts and circumstances were properly shown to exist.

Now, construe this charge with reference to the evidence, and what does it mean, and what must it have meant to that jury. It means that if the contract between the general government and the railroad company was made neither in Pennsylvania nor Ohio, but at the seat of the general government, the statutes of Pennsylvania would not apply, nor the law of Pennsylvania, and plaintiff would be entitled to recover, without any inquiry as to what the law of the United States was as to the effect of the contract.

Counsel for the parties presented this case, and their ideas upon it at considerable length, both orally and in writing, and apparently exhausted the books in an attempt to find authorities that would apply to the case.

At first we assumed that counsel had found all authorities bearing upon it, and we considered the question in that light. And I must say that I had arrived at the conclusion that there was no prejndicial error in this charge in any respect, that the statute of Pennsylvania had no application to the case, that it was not within the province of the legislature of the state of Pennsylvania to declare a man to be not a passenger in that state if he entered upon the train in another state to be carried under any contract, to which he was a privy, for the payment of his fare. And, upon subsequent examination, I find the supreme court of the United States has declared, that by the common law, the law of the place where a contract is made governs its nature, obligation, and interpretation, unless it appears that the parties, when entering into the contract, clearly manifest a mutual intent to be bound by the law of some other country or state; and the fact that the contract is to be partly performed in another country or state, is not, of itself, sufficient to prove that intent. Liverpool & Great Western Steam Co. v. Phænix Ins. Co., 129 W. S., 397, 455, 458; in which the rule is fully considered, and the English and American cases examined and commented on, and Cox et al. v. United States, 6 Peters, 172, cited with approval. In that case it was held, that a contract between the United States, through the navy department, and private persons, for services to be performed for the United States, is governed exclusively by the rules of the common law, and not by the statutes of the state where it is to be performed that it is immaterial where the services are to be performed.

I had also assumed that the constitution of the United States protected a citizen thereof, as Bishop was, from having having his privileges and immunities interfered with or abridged by any state. The provisions of the fourteenth amendment of the constitution of the United States provide expressly that no state shall by law abridge the privileges and immunities of any citizen of the United States. And this, too, although he may be a citizen of such state.

As the defendant was bound by its contract with the United States to carry the plaintiff from Youngstown to Pittsburgh, I thought it was bound to carry him safely, as a passenger for hire, and that his privi. leges, or rights, or status as such passenger, could not be abridged or taken from him by the legislature of the courts of Pensylvania on any

Railway Co, v. Bishop.

pretext whatever; that he was a privy to such contract, and had a right to stand upon it.

As illustrative of the last proposition, take the case of Emmitt v. Brophy, 42 O. S., where the court held that where a bridge company sold its bridge to the county commissioners, and, a party, the principal stock. holder to whom the consideration is paid, agreed by bond to pay off all debts and liens against the bridge company, that any creditor or anyone holding a lien is entitled to sue upon the contract, although his name was not mentioned in it, and although he may not have been known to the parties contracting at the time to be a lienholder; that he was privy to it, as it was made in part for his benefit. See. 131, U. S., 371; 155 U. S., 156.

I do not regard it as at all mitigating against this rule that the contract is principally for the benefit of the party making it. It may be principally for his benefit, but if it is incidentally for the benefit of another, that other is privy to it, and would be entitled to sue upon it. 93 U. S., 149.

Section 4000, Rev. Stats. of the U. S., provides: “Every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.”

The government therefore pays for the carrying of the person as well as the mail itself,—the consideration is in solido. One party agrees to pay so much money, and the other party agrees to carry the mails and mail agent. The words “without extra charge therefor” refers more particularly to the mailable matter directed to be carried than to the person in charge thereof.

Again, section 4005: "The length of cars required for such post office railway car service shall be determined by the post office department, and all such cars shall be properly fitted up, furnished, warmed, and lighted for the accommodation of clerks to accompany and distribute the mails.”

Now, with a contract like that, paying for the carriage of the clerk and providing that certain accommodations shall be furnished by the railway company for his personal comfort, that he is not a privy to the contract, I think can not in any sense or reason be maintained.

Supposing the company failed to warm up the car on a zero day, and his health was injured thereby, would such clerk not have a remedy upon the contract ?

But it is useless to discuss this question further, as this court is not in condition to upset the Supreme Court of the United States. I examining the decisions and reports of the Supreme Court of the United States, I find that the case of the Pennsylvania Railroad Company v. Price, went to that court, and was there decided in conformity to the holding of the Pennsylvania court, that a postal clerk in cars carried under contract with the government is not a passenger. Price v. Pennsylvania R. R. Co., 113 U. S., 218.

The syliabus is: “A person traveling on a railroad in charge of mails, und the provisions of section 4000, Revised Statutes, does not thereby acquire the rights of a passenger, in case he is injured on the railroad through negligence of the company's servants.”

Mr. Justice Miller delivered the opinion of the court. He recited the facts and continued :

“The plaintiff argues here, and insisted ihroughout the progress of the case in the state courts, that by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the de

7 Dec. 6

Mahoning Circuit Court.

cidert was a passenger, and the supreme court erred in holding otherwist.

"These laws are thus cited in the brief of plaintift's counsel:

“Act March 3, 1865, Sec. 8, 13 Stat., 506, provides that for the purpose of assorting and distributing letters, and other matter in railway post offices, the post-master general may, from time to time, appoint clerks who shall be paid out of the appropriation for mail transportation.

"Section 4000, Rev. Stat. requires that every railway company carrying the mail shall carry cu any train which may run over its road, ani without extra charge therefor, all mailable matter directed to be carriea thereon, with the person in charge of the same.

"We do not think these provisions either aid or govern the construc. tion of the proviso in the Pennsylvania statute.

"The person thus to be carriedwith mail matter, without extra charge. is no more a passenger because he is in charge of the mail, nor bec u no other compensation is made for his transportation, than if he had . such charge, nor door the fact that he is in the employmest of the U:1:9 States, and the defer dant is bound by contract with the government * carry him, affect th question. It would be just the same if he compar had contracted with any other person who had charge of freight on the train to carry him without additional compensation."

And with that I perfectly agree. If a party makes a contrac: with a railroad company to transport his freight and his servant, I hav understood that the proper holdirg should be such servant is a par cenger; the consideration is paid in his interest and for his benefit, 2.0 is a privy to the contract and titled to all the rights of a passenger. so far as being carried safely is concerned. And I cannot compro hend the application made of this doctrine to the case in question, when ) consider that the same court had previously held, in Railroad Com. pany v. Lockwood, 17 Wall, 357-384, that a drover traveling on a free pass, for the purpose of taking care of his stock on the train, is passenger for hire, and in Railroad Company v. Derby, 14 How., 486. and The Steamboat New World v. King, 16 How., 469-474, that a per: son lawfuly on the cars or boat riding on invitation of an officer, vi or on a free pass, is a passenger, and entitled to all the rights and priv. ileges of a passenger, “as resting not only on public policy, but or sound principles of law."

Justice Miller proceeds: The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so erployed any right, as against the railroad company, which would not belong to any other person in a similar employment, by others thau. the United States.

“We are therefore, of opinion that no question of federal authority was involved in the judgment of the supreme court of Pennsylvania, anc. the writ of error is accordingly dismissed."

That setties for us the whole question in this case, holding as we de that "he contract made with the general government is governed by 1. law of the United States. And although the point was not lived et any lengtn, and it is apparently a first blush decision, we le joi in a position to overrule it, and therefore we are compelled to void it was error for the court in this case to charge that if the contract was made outside of Pennsylvania, the statute of Pennsylvania

ex

Boyd v. Robinson et al.

would pot apply; and the case is reversed and remanded to the court below.

J.P. Wilson, for Plaintiff in error.
R. B. Murray and Wm. S. Anderson, for Defendant.

SURETIES-CONTRIBUTION.

(Seneca Circuit Court, December Term, 1896.)

Day, Price and Finley, JJ. VIRGINIA E. Boyd v. JOSEPH T. ROBINSON ET AL. 1. PRINCIPAL OF CONTRIBUTION RESTS IN GENERAL PRINCIPLES OF EQUITY. The right of one surety to contribution from his co-sureties, does not res

upon contract, but arises from the application of general principles of equity and it exists, whether such sureties are on the same or different bonds for the same purpose, and whether such bonds are of the same, or different dates and amounts, and also whether such sureties are jointly or jointly and

severally liable. 2. RIGHT OF PLEDGOR TO CONTRIBUTION FROM SURETIES ON BOND OF TRUSTEE. A trustee of non-resident minor gave bond with sureties according to the laws of Ohio, for the faithful administration of his trust; and at a later period of time, such ward and trustee, by parol contract, without the knowledge of the sureties on the bond, procured and induced a third party to assign to and place in possession of the ward valuable personal property in pledge, as additional security for the trustee to said ward. The trustee afterwards died insolvent and largely indebted to his ward, to the satisfaction of which liabil. ity, the ward applied the property so pledged: Held, That the pledgor has a right to contribution from the sureties on the bond of the trustee.

ERROR to the Court of Common Pleas of Seneca county. Price, J.

The plaintiff filed her petition in the court below and states, in substance, as her cause of action against the defendants, that on the 5th day of April, 1879, James T. Boyd was appointed trustee of the estate of Stella Everett, a minor non-resident of Ohio, which appointment was made by the probate court of this county, and that Boyd accepted and qualified by giving bond as such trustee in the sum of $6,000.00, with Joseph T. Robinson and William H. Free, the defendants, as his sureties, which bond was conditioned for the faithful preformance of such trust and the accounting for and payment of all money by him received in his trust capacity. The bond was approved and the trustee entered upon the discharge of his duties and a large amount of money, property and credits belonging to his ward, Stella Everett, came into his hands as such trustee, and when he filed his final account with the probate court there was found due the ward as a balance the sum of $2,304.00, with interest froin December 13, 1887, which amount, on the 5th day of June, 1888, the probate court ordered paid over according to law.

It further appears in the petition that after the filing of the final account and before the order to pay over was made, to-wit, on the 11th day of August, 1887, the trustee, James T. Boyd, now deceased, executed and delivered to defendant Robinson a mortgage deed on certain real estate owned by the trustee to indemnify and save Robinson harmless as surety on said bond.

On the 29th day of December, 1888, about six months after Robinson

Seneca Circuit Court.

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had received his mortgage : 'ndemuity, and about six months after the order to pay over had been mad by the probate court, the plaintiti ca s she was the owner of a paid up policy of insurance on the life of saic. James T. Boyd, issued wy a certain insurance company, in the sum of fifteen hundred dollars, which was payable to her at the death of "he insured, and that said sum so found due from said trustee to his ward, who had become of age, still remaining unpaid, in order to further secure the payment of said sum to said ward by said trustee, at the request of the trustee, Stella Everett, the ward, and the defendant, Joseph T. Robinson, the plaintiff was induced to and did, on said 29th day of December, 1888, assign, transfer and deliver said life insurance policy to Stella Everett, the ward, to be held as collateral security for the payment of the sum so found due from said trustee to said ward and for which the sureties on said bond stood liable, and for which also the indemnity mortgage was liable.

She avers that she so assigned, transferred and delivered said insurance policy in pledge as collateral, to secure said ward, but that the transfer was without any other consideration, but as surety for said trustee, and that to the extent of the policy she became and was co-surety with the defendants for the payment of said trust funds.

It further appears in the petition that as a result of a foreclosure of the indemnity mortgage hel by defendant. Robinson, the sheriff of this county, on the 26th day of June, 1889, paid of the proceeds of the sale of mortgaged lands of the trustee, $1,236.95, which was applied on what the probate court found due from him.

In September of this same year the trustee died. This was about nine months after she transferred and pledged the insurance policy as before alleged. The trustee died insolvent, leaving a balance due an, unpaid the ward of about $1,200.00, whereby the sureties on the bond became liable; and the policy pledged and tansferred by the plaintiff became subject to and was appropriated for the payment of said balance. The defendants paid no part of the liability of the truster

It is also alleged that defendant, Free, was and still is insolvent, and that on the 15th day of August, 1895, the plaintiff notified defendant Robinson of said payment out of the proceeds of said policy and demanded contribution from Robinson, and on his refusal, brought this action to enforce contribution,

A demurrer to this petition was overruled by the court below, and the defendants answered separately, but there is very little in the answer of either as to any important facts in the case.

Robinson says he denies the plaintiff assigned or transferred the policy to Stella Everett, at his request, denies that it was made with his consent or procurement, and that whatever was done regarding the transfer and its purpose was done and completed before he had any knowledge of the same; and he denies that plaintiff was co-surety with him. Defendant Free simply says that he had no knowledge of either the execution of the indemnity mortgagor of the transfer of the insurance policy, and says that the ward has been fully paid, but how or by whom it was paid, he fails to show.

It will be observed that there is no denial of the insolvency of defendant Free; no denial that the ward and trustees induced and pro. cured the assignment of the insurance policy as further surety or security to the ward, but a mere denial that the defendants induced or had knowledge of the transfer.

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