action was a contrivance on the part of the plaintiff, by which he obtained more than seven per cent for the loan or forbearance of money; whether it was a fraud upou the statute to cover usury; whether the plaintiff bought the note of the bank at which it was payable, or whether the bank acted as the agent of the plaintiff in committing the fraud, are not questions of law independent of the facts upon which the propositions are based. And if the jury find, correctly. against the defondants, upon them, the court cannot reverse their findings. Ib.

VENDOR AND PURCHASER.

1. Fraudulent purchase of goods; right of vendor to receive and reclaim property; admixture of goods; loss of identity. —A. & Co., who were insolvent at the time, purchased of the plaintiff a quantity of wool, on credit, with a preconceived design not to pay for it, and a portion of it having been delivered, it was immediately put into the mill of the purchasers, and a part thereof was in process of being manufactured when A. & Co. made an assignment of all their personal property, in trust for the benefit of their creditors, and the defendant, claiming under the assignees, took possession of the wool at the said mill. The plaintiff, claiming the right to rescind the sale on the ground of fraud, demanded a return of the property. Held, that the purchase of the wool by A. & Co. having been fraudulent, the delivery of the property to them gave them no title to it. That the assignment was fraudulent and void as against the plaintiff. That the assignees, not being bona fide purchasers, their title was no better than that of their assignors. That the defendant was not a bona fide purchaser, and could claim no protection as such. That the plaintiff had a right to have the original sale rescinded. That the wool had not, by the acts of A. & Co. in mixing the same with other wool, and commencing the manufacture thereof, lost its identity and become changed into a new product before the transfer by the assignees to the defendant, so as to prevent the plaintiff from rescinding the sale and reclaiming the property. Joslin v. Corvee.

2. Fraudulent representations of vendor.-In an action by a purchaser against the vendor to recover damages for fraudulent representations of the latter, upon a sale and purchase of land, the evidence showed that during the negotiations the plaintiff informed the defendant that he would not purchase lands held under a tax title; and that the defendant represented that he "had good title, and the best kind of title," to the lands in question; that they had been selected as choice lands many years before by one who had great opportunities of locating choice lands; and that such person had conveyed some of them to his brother, and the latter had conveyed them to the defendant. The falsity of the representations was clearly proved, and the judge charged the jury that there was no dispute that the lands were held by the defendant under tax titles; and that if the defendant made the representations proved, knowing that the title was a tax title, it would be a fraud. Held, that the charge was correct; and that a verdict having been rendered for the plaintiff, in accordance with it, and upon the weight of evidence, a new trial was improperly granted. Updyke v. Abel.

3. Vendor's liability to return purchase-money or give possession. - An agreement by parol having been made between the plaintiff and the defendants, for the sale of a dwelling-house by the latter to the former, and the possession thereof, the plaintiff paid the purchasemoney. A writing was subsequently executed by the

defendants and delivered, but it did not contain all the agreement. And upon the plaintiff objecting to it and returning it, on the ground that it did not provide for giving him the possession, the defendants virtually admitted the fact, by not denying it, and agreeing to make it all right. Held, that the defendants, having received the plaintiff's money upon an agreement to give him possession, equity and common justice demanded that they should make him good by returning the money, or giving possession according to the agreement. Hoag v. Owen.

4. Held, also, that the jury having found that the writing was not a conveyance to the plaintiff, he was not bound to reconvey the building to the defendants before bringing an action to recover back the purchasemoney he had paid. That it was sufficient for him to demand possession or a return of the purchase-money. Ib.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.*

INSURANCE.

1. Life and accident insurance. -Power to make contracts or declarations to bind generally a foreign mutual life insurance company is not within the apparent scope of the authority of a sub-agent employed by the general agent of the company in this commonwealth to solicit and receive applications for insurance and forward them to the company, and to deliver policies issued by the company and collect premiums thereon; nor is it to be inferred by virtue of the statute of 1861, ch. 170, or the statute of 1864, ch. 114. Markey v. Mutual Benefit Insurance Company, 78.

2. In an issue of the binding force of a foreign mutual life insurance company, of transactions had by agents of the company in this commonwealth with a woman and her husband, in reference to a policy of insurance on his life for her benefit, for which he had applied to the company, instructions and rules of the company, not referred to in the application or the policy, nor notified to him or to her, are inadmissible to prove limitations of the agent's authority. Ib.

3. At an interview with an applicant for a policy of insurance on his own life for his wife's benefit, an agent of the insurance company said that he had brought the policy, and the applicant replied that he was glad of it, and that he had been expecting it for some time, took it from the agent, looked at it, passed it to his wife, saying: "Here wife, here is your policy," and she then took it and looked it over. The applicant then said to the agent that he was not well enough to attend to the business that day, but had made arrangements with J. S. to "do it" for him, or to "take the policy," and to his wife, that there was money due to him in the shop where he rked, and

J. S. would "pay it for him," or "make arrangements to get it for him." After some more words between the applicant and the agent, the latter arose to leave, saying, that he should go to J. S., and the wife saying that he might want the policy if he was going to J. S., passed the policy to him, and he took it, withdrew with it, and without applying to J. S. in relation to it returned it to the general agent of the insurers, through whom he had received it from them, and on whom the next day the applicant made a demand for it, with a tender of the premium, which was refused. Held, that evidence of these facts would not warrant a finding of a delivery of the policy, either actual or

*From 103 Massachusetts.

constructive, and a waiver or postponement of payment of the premium; or of an open and continuing proposal to contract with the appellant by means of that policy, accepted by his tender and demand. Ib.

4. Under a policy of insurance in the sum of $2,000 against loss of life from accidental injuries occasioning death within nineteen days from the accident, and in the sum of $10 a week for a period not exceeding twenty-six weeks against personal injury, "for any single accident in which the assured shall sustain any personal injury which shall not be fatal," the weekly sum is due for injury by an accident which does not occasion death within twenty days, although it is finally fatal. Perry v. Provident Insurance Co., 242.

5. Marine insurance. - In a policy of insurance on a ship, a warranty "not to load more than her registered tonnage" with either or all of certain articles, including coal, applies only to articles laden as cargo; and is not broken by taking on board, besides that amount of the prohibited articles as cargo, a quantity of coal for dunnage, when a suitable material, actually and in good faith used, and no more than is reasonably necessary for that purpose, even if freight is received for its carriage. Thwing v. Great Western Insurance Co., 401.

6. A vessel insured for a year by a policy which provided that if she was "on a passage at the end of the term," the risk should continue until arrival at "a port of destination," sailed from the Chincha islands on a voyage to Europe, and put into Callao on the main land, one hundred and twenty miles from the islands, but which is the port of entry for the islands, and where vessels bound from the islands obtain the necessary clearance, water and crew for the further voyage. While there the year expired. Held, that the vessel was not on a passage within the meaning of the policy, and that the risk ended with the year. Washington Insurance Company v. White, 238.

LARCENY.

1. Evidence that a man, by falsely personating a discharged soldier, with intent to steal his bounty money, received from an officer, by whom the bounty was payable, a discharge paper, which was incident to and inseparable from the bounty, and converted it to his own use, or deprived the owner of it, will warrant his conviction of larceny of that paper. Commonwealth v. Dawley, 425.

2. On the trial of an indictment for larceny evidence is competent that the signature of a receipt for the stolen goods, made by a person who, by falsely personating their owner, and giving the receipt, obtained possession of them, is the handwriting of the defendant. Ib.

MONEY HAD AND RECEIVED.

A. in Boston sent to a bank in Maine a check for $200, drawn on the bank by one who had funds therein, in a letter saying: "Please send on a check on some Boston bank for the inclosed check." The bank thereupon mailed to him a letter inclosing $428 in currency and the check of C. on a Boston bank for $95.72. This letter was never received. A. endeavored in vain to obtain a duplicate check from C., who subsequently became bankrupt. The usage of the bank and of banks generally in Maine was to charge one-quarter of one per cent for drafts on Boston. Held, that the bank should have sent the whole amount in one of their own checks on Boston, and that A. could recover it in an action against the bank for money had and received. Ames v. York National Bank, 326.

MORTGAGE.

1. A mortgage is not discharged by its assignment to one of two tenants in common of the equity of redemption, and may be foreclosed by the assignee. Barker v. Flood, 474.

2. An entry to foreclose a mortgage is not waived by the mortgagee's bringing a writ of entry against a tenant at will of the mortgagor, and obtaining judgment for possession, but not seeking conditional judgment, nor causing the writ of possession to be served until after three years have elapsed from the recording of the certificate of entry. Fletcher v. Cary,

475.

NAME.

In a criminal trial, it is sufficient to sustain an averment of a name charged, if the jury find that the name proved, though differently spelled, is "substantially identical" in pronunciation. Commonwealth v. Stone, 424.

NEGLIGENCE.

A boy bougnt some gunpowder, and, in the absence of his parents, put it in a cupboard in his father's house, with the knowledge of his aunt, who bad charge of him and of the house while the parents were away. A week afterward his mother gave him some of the powder, and he fired it off with her knowledge, and some days later he took, with her knowledge, more of the powder out of the cupboard, fired it off and was injured by the explosion. Held, that the injury was not the direct or proximate, natural or probable result, of the sale of the powder, and the seller was, therefore, not liable to the child for the injury. Carter v. Towne 507.

PRINCIPAL AND AGENT.

An agent who has settled with his principal an account in which he has credited himself with the amount of a debt owed by the principal, as having been paid by himself to the creditor, is liable therefor to the creditor on account for money had and received. Putnam v. Field, 556.

RENT.

If the owner of land leased for a rent, payable quarterly, dies between two quarter-days and devises the land to trustees "to receive and collect the income and produce thereof, and after deducting all needful and proper costs, charges and expenses to pay the residue of said income" to A. during her life, and on A.'s death the capital to B., the rent which falls due on the quarter-day next after the death is not apportionable between the income and capital of the fund, but goes to the life tenant. Sohier v. Eldredge, 345.

SALE.

One who agreed to sell "Manilla sugar to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation or warranty, recover the agreed price, though the article delivered contained more impurities than sugar known under that name usually does. Gorseer v. Eagle Sugar Refinery, 331.

STAMP.

In an action on a promissory note, duly stamped, which is barred by a discharge in insolvency, letters from the defendant may be put in evidence as containing new promises to pay the note, although they are unstamped. Cook v. Shearman, 21.

DUNN V. GRAND TRUNK RAILWAY CO. OF CANADA.

SUPREME JUDICIAL COURT OF MAINE.

COMMON CARRIER.

If a person enters the saloon-car of a freight railway train, and, when the train starts, without being requested or directed to leave, remains there as a passenger, contrary to the rules of the company, but with the knowledge of the conductor, who receives from him the usual fare of a first-class passenger,- the corporation incurs the same liability for his safety as if he were in their regular passenger train.

On exceptions to the rulings of Goddard, J., of the superior court for the county of Cumberland.

Case for an injury alleged to have been received in July, 1868, while being transported from South Paris to Danville Junction, through the alleged insufficiency of the track and cars of the defendants, and the careless and negligent manner in managing them.

There was evidence tending to show that the plaintiff entered the saloon-car attached to the defendants' freight train, at South Paris station, for the purpose of going to Danville Junction; that the conductor saw him when the train started, and they conversed together; that he paid the conductor the usual fare of eighty-five cents; that the saloon-car was thrown from the track and dumped; that the plaintiff was thereby injured; that the car was thrown off by a broken rail, and that the fare was thereupon paid back.

There was evidence on the part of the defense, tending to show that the conductor notified the plaintiff when the train started that he had no right to carry passengers on the freight train, which was denied by the plaintiff.

It also appeared that the defendants issued a notice on May 23, 1866, that after that date "passengers would not be allowed to travel by freight trains on that part of the line between Portland and South Paris." On Sept. 8, 1868, they issued notice that "no passengers will be carried in the brake vans attached to freight trains without written authority from the superintendent.✶✶ Any conductor allowing a passenger to travel in the brake van, or on any part of the freight train, will be dismissed."

The defendants requested the presiding judge to instruct the jury:

1. That the plaintiff was not entitled by law to be carried in the freight train of defendant company, as a passenger, unless by permission obtained before he entered the train from some authorized agent of defendants: and that if the jury find that plaintiff entered the freight train at South Paris without such permission, then that plaintiff is not entitled to recover for the alleged injury, and their verdict should be for defendants.

2. That if the jury find that the defendant company, before the time of the injury received as alleged by the plaintiff, had established and published a regulation by which passengers were not allowed to travel by freight trains on that part of the line between Portland and South Paris, and that such regulation was in force at that time, then the plaintiff is not entitled to recover in this action, and their verdict should be for the defendants.

The judge did instruct the jury, inter alia, as follows: "I understand that the defense is substantially this, that inasmuch as notices had been issued and published by the directors of the company, prohibiting passengers from riding on freight trains, therefore, this passenger being upon a freight train, the company was not liable

for the injury that he received, though the company would have been liable if he had been in a passenger train. If there is any other defense, you have noticed it, and of course you will give them the benefit of it.

"I have been requested to give you a number of instructions touching this particular point, all of which I decline to give, except this:

I

"I do instruct you for the purposes of this case, that the plaintiff was not entitled by law to be carried on the freight train of defendant company, as a passenger, unless by permission obtained before he entered the train from some authorized agent of defendants. give you that one, and no more. But I also instruct you, that if you find that the plaintiff was allowed by the conductor, upon his entering that car, and upon the starting of the train, to remain as a passenger on that train, in a saloon-car; that, on a full knowledge of the facts, the conductor on that train allowed and authorized that man to remain there without directing him to get off, or any attempt to put him off, and that afterward he received from him pay as a first-class passenger, not only to the next station where the freight train was to stop, but beyond that station to Danville Junction, a further point on the road where the plaintiff desired to go (for I understand the evidence is that he was going to Lewiston, and Danville Junction was the furthest possible point in that direction on this road), then I instruct you that the defendant company cannot plead their regulation in release of their ordinary legal abilities, but they are just as liable as if it had been a passenger train, and as if there had been no notices, provided that the plaintiff was not guilty of any fault or want of ordinary care himself.” The verdict was for the plaintiff, and the defendants alleged exceptions.

P. Barnes, for the defendants.

I. The law of the case is with the defendants. Lygo v. Newbold, 9 Excheq. 302. Plaintiff, without defendant's authority, but by permission of defendant's servant, rode in a cart, with her goods, which defendant had contracted to carry for her. Upon suit for personal injury occasioned by the cart's breaking down, held, that the defendant was not liable for that injury, the plaintiff not being rightfully in the cart.

This case is cited as authority in the case of Lucas v. Taunton & N. B. Railroad Company, 6 Gray, 70.

2 Redfield, 114, 3d ed. "Where an agent of a railway company assumed to make a contract, in relation to the business of the company beyond the line of his ordinary employment, and especially when it is in contravention of the common course of the business of the company, or of their published rules and regulations, it will not bind the company."

Cites Elkins v. Boston & Maine Railroad Co., 3 Foster, (N. H.) 275, which was a case of goods promised by agent, to be sent by passenger train, and lost.

The present case is the converse, — passenger going by goods train.

And stronger, in the circumstance that plaintiff entered the freight train without previous permission from any one, the conductor not knowing it until after the train had started. The conductor was not under obligation to stop the train to put him off, and had a justification, in a qualified sense, for taking plaintiff's money for the distance he was to go, it not appearing that this freight train had any nearer, regular stopping place. Under such circumstances the plaintiff must be held, notwithstanding the payment, as taking upon himself the consequences of his unlawful not.

Robertson v. N. Y. & E. R. R. Co., 22 Barb. 91, was a case of a person riding on an engine, with consent of the driver, but against regulations; held, that the consent of the driver gave no legal right; held, also (as might have been insisted on, in the case at bar), that the onus of showing the driver's authority was on the plaintiff, "the presumption being, that plaintiff had

no right to ride on the engine, whether he paid fare or not."

C. C. & C. R. v. Bertram, 11 Ohio, 457, cited in 2 Redfleld, 219, was a case where regulations existed permitting passengers to go upon certain freight trains, under prescribed conditions; held, that payment of fare to the office agent, or procuring a ticket before entering the train, was not an unreasonable condition.

Held, also, "that an offer to pay fare to an employee on the train not authorized to receive it, is not an offer to the company, and does not entitle the party to a place on such train as a passenger."

II. That part of the requested instruction, which was given by the court below, fully concedes the legal right of the defendant to exclude passengers from its freight trains, and to adopt regulations for that purpose. The proof clearly establishes that the defendants had adopted and published such a regulation.

The inconsistency between the instruction as first given, and those which follow, is obvious.

The whole amounts to this, that a railway company may lawfully establish a regulation excluding passengers from its freight trains, but that conductors of such trains may break these regulations at their pleasure.

The payment of money makes no difference, for this is one of the principal mischiefs to be guarded against, and testimony, drawn out on the plaintiff's side, shows the necessity of such a guard. Other reasons are obvious, such as the exposure of merchandise, if passengers are allowed to go on freight trains, at their own choice, even with consent of conductors.

The case finds that this company, having in view both their own protection and the accommodation of the public, had adopted, as a part of this very regulation, on this portion of its line, an arrangement for an increased number of passenger trains, and an important reduction of fares.

General disregard of the regulation would tend to an abrogation of these facilities. The plaintiff was, therefore, doing a wrong, not only against the company, but against the public.

It is immaterial whether the plaintiff knew of the regulation or not. It was lawful and reasonable, and he was bound by it.

T. H. Haskell, for the plaintiff.

APPLETON, C. J. The defendants are common carriers of passengers and freight. They may carry freight in their passenger train, or passengers on their freight train. They have a right to make all reasonable rules and regulations in the management of their business, with which those in their employ, or those making use of their means of conveyance, are bound to conform when informed of their existence.

By one of the regulations of the defendant corporation, after May 23, 1866, passengers were not "allowed to travel by freight trains on that part of the line between Portland and South Paris." The regulation was a reasonable one, and the defendants were authorized to make it. It is, however, fairly inferable from the regulation itself that previously passengers had been permitted to travel by the freight train. By the notice

of Sept. 8, 1868, dated at Montreal, no passengers were to be carried in the brake vans attached to freight trains "without written authority from the superintendent." And "any conductor allowing a passenger to travel on the brake van, or any part of the freight train, will be dismissed."

The plaintiff went aboard the freight train, in the saloon-car, and was there with the knowledge of the conductor. It was the duty of the conductor to inform him of this regulation, if it was to be enforced, and request him to leave. If no notice was given of this rule, and no request to leave, but instead thereof the usual fare was received, he had a right to suppose himself rightfully on board, and entitled to all the rights of a passenger. Every one riding in a railroad car is, prima facie, presumed to be there lawfully as a passenger, having paid or being liable, when called on, to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser. Penn. R. R. Co. Books, 57 Penn. 346. If not being rightfully on board, and being advised thereof, the plaintiff neglected or refused to leave, the conductor had a right to remove him, using no more force than was necessary to accomplish that object. Fulton v. G. T. Railway, 17 Up. Can. 428; Hilliard v. Goold, 34 N. H. 230; State v. Goold, 53 Me. 279.

V.

The regulations of the defendant corporation are binding on its servants. Passengers are not presumed to know them. Their knowledge must be affirmatively proved. If the servants of the corporation, who are bound to know its regulations, neglect or violate them, the principal should bear the loss or injury arising from such neglect or violation, rather than strangers. The corporation selects and appoints its servants, and it should be responsible for their conduct while in its employ. It alone has the right and the power of removal.

A passenger goes on board a freight train, enters the saloon-car, and remains there when the train starts, against the rules of the company, but with the knowledge of the conductor, and is not directed or requested to leave, but pays the usual fare of a first-class passenger to such conductor, and is injured on his passage by the negligence or carelessness of the railroad corporation. Is he entitled to compensation for such injury? If inert matter be injured or destroyed by the negligence or carelessness of a common carrier, its owner can maintain an action and recover damages as a recompense for such injury. Is the traveler entitled to the protection of the law, when the negligence of the carrier destroys his goods; and without its protection, when the same negligence injures his health or breaks his limbs? If any extraordinary danger arises from the violation of the known rules of the company, as by standing on the cars when in motion, the passenger violating the rules assumes the special risks resulting from such violation. But if the act of the passenger in no way conduces to the injury received, the carrier must be held responsible for the necessary consequences of his negligence or want of care. Baker v. Portland.

In Zump v. W. & M. R. R. Co., 9 Rich. (S. C.) &, there were two cars on the train, and the plaintiff's seat was in the forward car. Near the door on the inward car was a notice that passengers should not stand on the platform. The train was running over an unfinished part of the road. The cross ties were too far apart, and were insufficiently spiked, and the accident arose from "the breaking of the cleat at the

end of one of the rails." All the other passengers were inside the cars, and none of them injured. The defense was, that the injury arose from the plaintiff's own fault in standing upon the platform while the cars were in motion. The verdict was for the plaintiff, which the court refused to set aside, holding that whether the plaintiff had notice that the platform was a prohibited place, and, if so, then whether under the circumstances his own act so contributed to the injury as to exonerate the railroad, who were guilty of negligence, were for the jury. The plaintiff's seat, "it will be recollected," observes O'Neale, J., “was in the forward car; the notice proved was in the rear car, on the platform on which he was standing when the accident occurred. That such notice is not enough to change the liability of the company to a passenger, is, I think, clear from Story on Bailment, § 558. If the conductor had said to the plaintiff, as was his duty, 'you are in an improper place,' and he had then persisted in remaining, it might have been that this would have excused the company from any consequences which might have followed." An action was brought against a railroad company by a passenger, while traveling in one of its gravel trains. The defendant asked the court to instruct the jury that a railroad company was not liable for an injury which might happen to one taking passage in a gravel train, and not engaged in carrying passengers. This requested instruction was held to be properly denied in Lawrenceburgh & Up. Miss. R. R. Co. v. Montgomery, 7 Porter (Ind.), 475, the court holding that in a suit brought against a railroad for an injury occasioned by a collision, it was not sufficient for the company to show that the plaintiff was acting at the time in disobedience of a proper order to secure his safety, but that it should also appear that the injury was occasioned by such disobedience. In Watson v. Northern Railway Co., 24 Up. Can. (Queen's Bench) 98, the plaintiff, traveling in the defendants' train on a passenger ticket, went into the express company's compartment of a car. While there, owing to the negligence of the defendants' servants, the train, which was stationary, was run into by another train coming up behind it, and the plaintiff's arm was broken. No person in the passenger cars was seriously injured. It was proved that notice that the passengers were not allowed to ride in the baggage car was usually posted upon the inside of the door of the passenger cars, but it was not distinctly shown that it was there on that day. The jury found that the plaintiff was wrongfully in the car, but that he was not told where to go when he bought his ticket, nor did the conductor order him out, and so he was not to blame. "In my opinion," observes Draper, C. J., "the jury were warranted in finding that the plaintiff did not so contribute (to the injury) as to deprive him of the right to recover. Giving the fullest weight to the considerations urged in the defense, such as the ticket which the plaintiff had, the notices stated to have been kept up in the cars, conceding the plaintiff saw them, though it is not proved,—I do not think they preclude the plaintiff from recovering, when the injury he sustained was occasioned by collision resulting entirely and directly from the gross negligence of the defendants' servants." In O'Donnel v. Alleghany Valley R. R. Co., 59 Penn. 239, in a suit by an employee of a railroad company, who held the relation of a passenger, the court charged that the baggage car is an improper place for a passenger to ride, whether the rule against it was communicated to him or not, if he left

his seat in a passenger car and went into the baggage car, it was negligence which nothing less than a direction or an invitation of the conductor could excuse, and such invitation should not be inferred from his having ridden there frequently with the knowledge of the conductor without his objection, -Held, to be

error.

That a railroad corporation cannot repudiate the acts of its agents so as to free themselves from responsibility for their negligence, was held in the Lackawanna & Bloomsburgh R. R. Co. v. Chesewith, 52 Penn. 383, when the agents of a railroad company, contrary to the instructions and rules of the company, at the request of the owner of a freight car, attached it to a passenger car, the plaintiff agreeing to run all risks, the plaintiff having sustained a loss by the negligence of the defendant, brought his action for compensation. The same defense was attempted as in the case at bar. The plaintiff was not a trespasser, "for," observes Thompson, J., "he was there by permission, and under the contract of parties competent to give him authority to be there. **When, therefore, they (the defendants) consented to hitch on his (plaintiff's, car to the passenger train, even at his urgent solicitation, and we have not a particle of evidence that other inducements to do the act were held out, excepting freedom from responsibility as a consequence of the attachment, we must presume it was done with a view to the compensation to be paid on the one hand, and the usual care to be exercised on the other. The argument, however, is, that the plaintiff was guilty of such a wrong in asking permission for his car to be attached, that whether the act contributed to the disaster or not, he is to be treated as a trespasser, and not entitled to any compensation for injuries not willfully done. We think this is not the law, unless in a case when the will of an agent is controlled and subverted by improper influences, he is induced to do that which is manifestly beyond the scope of his powers. That there was a regulation against running freight trains with passenger cars may be admitted, although it was not properly proved, yet that neither proved that it might not be safely done, nor that if the company undertook to do it they might lay aside the duty of care, and commit such cases to the guardianship of chance."

When a railroad company admits passengers into a caboose car attached to a freight train, to be transported as passengers, and takes the customary fare for the same, it incurs the same liability for the safety of the passengers as though they were in the regular passenger coaches at the time of the occurrence of the injury. Edgerton v. N. Y. & H. R. R. Co., 39 N. Y. (12 Tiff.) 227. In Carrol v. N. Y. & N. H. R. R. Co., 1 Duer, 578, the plaintiff, remarks Bosworth, J., "took a seat in the post-office apartment of the baggage car. The position was injudiciously chosen, and may be assumed to have been known to him to have been a far more dangerous one than a seat in a passenger car. He took it with the assent of the conductor. He was not there as a trespasser, or wrongfully as between him and the defendants. So far as all questions involved in the decision of this action are concerned, he was lawfully there." His being there was not such negligence as would exonerate the defendants from the consequences of their negligence or want of care.

The plaintiff was not entitled by law to be carried on the freight train, contrary to the regulations of the defendant company. They might have refused to