fied or designated quality." p. 20. But the printed case discloses nothing from which the law would have implied such an agreement. All that appeared on this point was that the plaintiff was a dealer in iron at Elmira, and that the defendants were manufacturers of agricultural implements at Fowlerville. The defendants sent plaintiff a written order for a defined article. "xx pipe iron." The plaintiff admitted on the trial (57 N. Y. 20) that he knew what defendants' business was, and that the iron to be furnished was to be used in defendants' business. But these facts did not, as was expressly held on a subsequent appeal, raise an implied engagement that the iron was suitable for the defendants' business. Dounce v. Dow, 6 T. & C. 653; S. C., affirmed 64 N. Y. 411; see also authorities under class 1, supra. Dounce v. Dow, 57 N. Y. 16, accord ingly falls within class 3, infra. Class 3. Where there is an express agreement as to quality or fitness importing a greater obligation than the law would imply in the absence of such agree ment. Within this class fall Dounce v. Dow, 57 N. Y. 16. and Gurney v. Railroad Co., 58 id. 358. Such an agreement constitutes a warranty that the article shall be of the designated quality or fitness. (a) Sales by description. Dounce v. Dow, 64 N. Y. 411, and White v. Miller, 71 id. 118, are not directly in point. In the former case "xx pipe iron," and in the latter "Bristol cabbage seed" was ordered, and the article delivered was in each case designated as such in the bill of parcels. Held, that this designation of the article delivered was a representation by the seller that it was the thing so described, and therefore a warranty within Hawkins v. Pemberton, 51 N. Y. 198. See 71 id. 129, 130; 64 id. 415. The warranty in those cases was therefore predicated upon representation, and not on express contract. But in Dounce v. Dow, 64 N. Y. 411, the court also said: "If the defendant had ordered xx pipe iron, which was tough and soft and fit for manufacturing agricultural implements, and the plaintiff had agreed to deliver iron of that quality, a warranty would have been established which probably, within the case of Day v. Pool, 52 N. Y. 416, would have survived the acceptance of the article." See also Benj.Sales (Bennett's ed.), § 600, note p. To the same effect is Gurney v. Railroad Co., 58 N Y. 358, which is thus stated by the court at page 364: "The substance of the arrangement was that Naylor & Co. agreed to procure to be manufactured a quantity of frogs, to correspond with the pattern, and deliver the same to the railroad company as desired; in other words, it was an executory contract for the manufacture and delivery of certain articles of personal property of a specified quality and description." Held, reversing S. C., 2 T. & C. 446, a warranty of such quality and description. So in Brigg v. Hilton, N. Y. Daily Reg., Jan. 20, 1883, the New York Common Pleas held that an express agreement, that goods to be manufactured should be equal in quality and characteristics in every respect to goods exhibited at the time, is a warranty. As pointed out in Gurney v. Railroad Co., supra, an executory sale of an article to correspond with a sample is not strictly a sale by sample, as such a sale contemplates that the goods are in esse, but a sale of goods "of a specified quality and description." 58 N. Y. 364. It is in substance a sale by description, because the article sold is in effect described as corresponding in kind and quality with the sample; while in sales by description the kind and quality are named. Benj. Sales (Corbin's ed.), § 917, note 32; Heydecker v. Lombard, 7 Daly, 19, is not easily reconcilable with the authorities. (b) Sales with stipulation that the article shall possess a certain quality or fitness. In Dounce v. Dow, 57 N.Y. 16 (explained supra, class 2), there was an express stipulation (which on the facts in that case the law would not have implied) by a dealer that the article "should be of a quality suitable and proper for use in said defendants' manufacturing business." Held, "an express agreement or warranty that it should be of that specified or designated quality" p. 20. So of a stipulation that a monument to be made should be of "as good quality as the monument of Scott Campbell." Wells v. Sellwood, 61 Barb. 238. Brown v. Burhans, 4 Hun, 227, cannot be reconciled with the authorities. There it was agreed that the lumber to be sold should be as good as certain lumber previously sold the vendee, part of which was first quality. Held, no warranty. First quality was beyond the legal implication. See class 1, supra. Pomeroy v. Shaw, 2 Daly, 267; S. C., affirmed 4 Alb. L. J. 15, did not raise a question of warranty. The action was for the price of the goods. The defendant, who had retained the goods, did not set up a counter claim for breach of warranty of quality; but set up the defective quality as a defense. Testimony in support of this plea was held to have been properly excluded. This was right, for the breach of condition and consequent non-fulfillment of the contract of sale were waived by acceptance; while no counterclaim on the warranty, if any, was pleaded. As to remedies on sales with warranty of quality or fituess, see class 4, infra. Class 4. Where a certain quality or fitness for a particular purpose, whether intra or ultra the legal implication, is warranted in express terms. This class of cases is represented, among others, by Day v Pool, 63 Barb. 506; S. C., 52 N. Y. 416; Parks v. Morris, etc., Axe Co., 4 Lans. 103; S. C., 54 N. Y. 587; McParlan v. Boynton, 8 Hun, 449; S. C., 71 N. Y. 604; Zuller v. Rogers, 7 Hun, 540. The principle applicable here is that in addition to the mere contract of sale on an executory sale as well as on a sale in presenti, the buyer may protect himself with warranty that the article shall bave certain qualities. The agreement to warrant in an executory contract of sale is just as obligatory as a warranty on a present sale, and the vendee may rely thereon to the same extent. Day v. Pool, 52 N. Y. 416. While an express agreement that an article to be furnished shall be of a quality implied by law does not constitute a warranty (class 2, supra), yet an express warranty may be given in respect of such quality. In Day v. Pool, 52 N. Y. 421, Peckham, J., said: "Reed v. Randall would have been decided the other way had there been an express warranty. The court held that there was no warranty, and that was the ground of the judgment." Thus in Quinn v. Weed, 5 Hun, 350, the vendor said he would warrant the flour good fam. ily flour. Held, a warranty of quality. See also Nichols v. Townsend, 7 Hun, 375. Remedies on an executory sale, with warranty as to quality or fitness: (a) Before the property has passed. Here the warranty operates as a condition, and if broken, entitles the buyer to reject the goods. On a sale in presenti of goods with warranty it seems to be regarded as settled in this State, though perhaps not necessarily determined in any case, that the vendee has no right to reject the goods for breach of warranty unless there was fraud in the sale. Day v. Pool, 52 N. Y. 416, 418, and cases cited. But a warranty is an incident only of a consummated or completed sale, and has no place as an independent contract, having present vitality and force, while the sale remains executory. Osbron v. Gantz, 60 N. Y. 540. Generally ་་ PRESPASS for false imprisonment. Pleas, general TRE issue, and special plea in bar. Heard on demurrer to the special plea, September Term, 1881, Rutland county. Veazey, J., presiding, sustained the demurrer. The plea alleged that at the time of the supposed trespasses the defendant was a justice of the peace, duly commissioned and qualified; that the acts complained of were done by him as such justice without malice; "that heretofore, to wit, on the 12th day of November, A. D. 1880, W. H. Bond, the grand juror of the town of Danby, in the county of Rutland, exhibited to the defendant as justice of the peace as aforesaid, his complaint in writing," etc.; and that "it be speaking when the contract is as to any goods, such a clause, i. e., a warranty, is a condition going to the essence of the contract; but when the contract is as to specific goods the clause is only collateral to the contract." Blackburn, J., Heyworth v. Hutchinson, L. R., 2 Q. B. 447. Until the property has passed-until the subject-matter of the executory sale has been ascertained, a warranty is therefore not an independent agreement, collateral to the contract of sale, but is part of the contract of the sale itself, operating as a condition. Benj. Sales (Bennett's ed.), § 895. The existence of the quality warranted, being part of the description of the thing sold, is essential to its identity, and the vendee cannot be obliged to receive paying made to appear to said justice that the larceny of for a thing different from that for which he contracted. Benj. Sales, ubi supra; Marcus v. Thornton, 12 J. & S. 411; Voorhees v. Earl, 2 Hill, 288, 291. (b) After the property has passed. After acceptance the warranty as to quality or fitness ceases to operate as a condition, and becomes an independent agreement, collateral to the sale, on which the vendee has his remedy for defects covered by it. Day v. Pool, 63 Barb. 506; S. C., 52 N. Y. 416; Parks v. Morris, etc., Axe Co., 4 Lans. 103; S. C., 54 N. Y. 587; Dounce v. Dow, 57 id. 416; S. C. again, 6 T. & C. 653; S. C., 64 N. Y. 411; Gurney v. Railroad Co., 58 id. 358; McParlin v. Boynton, 8 Hun, 449; S. C., 71 N. Y. 604; Walling v. Schwartzkopf, 44 Supr. Ct. 576; Marshuetz v. McGreevy, 23 Hun, 408; Conor v. Dempsey, 49 N. Y. 665. But by acceptance the vendee waives in like manner as on a sale of a specific chattel with warranty, all defects known to him or apparent ou simple inspection, and requiring no skill to discover them. Day v. Pool, supra; Dounce v. Dow, 57 N. Y. 16; McPherson v. Boynton, supra; Fox v. Everson, 27 Hun, 358; Brown v. Burhans, 4 id. 227; Benj. Sales (Bennett's ed.), § 616, n. ANDREW GILHOOLY. FALSE IMPRISONMENT-VOID WARRANT BY VERMONT SUPREME COURT, OCTOBER TERM, 1883. VAUGHN V. CONGDON.* A grand juror's complaint was exhibited to the defendant, a In an action for false imprisonment: Held, that the complaint *To appear in 56 Vermont Reports. said * * *by said Vaughn complained of as above had not been discovered until, to wit, the day said complaint was made to said defendant as justice of the peace as aforesaid, issued his warrant directed to any sheriff, etc., commanding him, etc., to apprehend," etc. The complaint was set out in full in the plea; and it was alleged in the complaint that the grand juror on his oath of office complaint makes that Warren H. Vaughn * * * on the 20th day of September, A. D. 1874, at * * *took, carried away and stole," etc. It also appeared by the plea that the plaintiff was arrested on the said warrant by a sheriff, that he was brought before the defendant as such justice; that such proceedings were had that the defendant ordered the plaintiff to " find good and sufficient sureties in the sum of $300 for his appearance before the County Court." etc.; that the defendant as a justice on the failure of plaintiff to procure bail, issued a mittimus, and that the plaintiff was committed to jail on said mittimus by a sheriff. Redington & Butler, for plaintiff. W. C. Dunton and Edward Dana, for defendant. ROWELL, J. The statute provides that complaints and prosecutions for theft shall be commenced within six years after the commission of the offense, and that if a complaint, an information or indictment is brought, had, commenced or prosecuted after the time limited as aforesaid, "such proceeding shall be void and of no effect." The complaint exhibited to the defendant on November 12, 1880, alleged the offense to have been committed on September 20, 1874, more than six years before the bringing of the complaint, and the question is whether the defendant had any authority to cause the plaintiff to be apprehended and committed to prison. It is an elementary rule in criminal pleading that when the time for prosecuting an offense is limited the indictment must lay the offense within the time limited, or it will be fatally defective, even after verdict. 1 Am. Crim. Law, § 445; State v. G. S., 1 Tyler, 295; State v. Rust, 8 Blackf. 195; People v. Miller, 12 Cal. 291; People v. Gregory, 30 Mich. 371. In this case the complaint showed on its face that the statute had run on the offense charged, and thus the defendant had notice that it was "void and of no effect." He had no authority to issue a warrant on such a complaint; and the fact that it was made to appear to him at the time the complaint was exhibited that the larceny had not been discovered till then makes no difference, as the statute began to run from the commission of the offense, not from its discovery. There was no complaint in law. It is the same as though there had been none in fact. He had no jurisdiction of the process, and jurisdiction of the process is as essential as jurisdiction of the person and the subject-matter. In Morgan v. Hughes, 2 T. R. 225, it is said that when a person is committed to prison by the warrant of a justice without accusation some one is guilty of false imprisonment, and that it must be the imprisonment of the justice, who is the immediate and not the remote cause of it. In this State the law makes the same presumption in favor of the jurisdiction of justices that it does in favor of the jurisdiction of superior courts of general jurisdiction. Wright v. Hazen and Gordon, 24 Vt. 143. But presumptions are indulged in only to supply the absence of evidence or averment respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When therefore the record states the evidence, or contains an averment with reference to a jurisdictional fact, it will be taken to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, nor that the fact was otherwise than as averred. Galpin v. Page, 18 Wall. 350; Wade v Hancock, 14 Reporter, 672; Freem. Judg., § 125. Hence it cannot be presumed that the allegation of time in this complaint was a mistake, and that the evidence may have shown that the offense was in fact committed within the time limited. The case must stand on the presumption and ground that the offense was in fact committed more than six years before the complaint was exhibited. It does not stand as it would had the complaint laid the offense within the time limited, but the evidence had shown it without the time. Magistrates of neither superior nor inferior courts are answerable for a want of jurisdiction arising from a mistake of fact that they had no means of discovering nor correcting, nor when they would have had authority to act had the facts been as alleged by the party. Lowthor v. Earl of Radnor, 8 East, 113; Pike v. Carter, 3 Bing. 78; 18mith Lead. Cas. 1135. In Aiken v. Richardson, 15 Vt. 500, it was held-as it has been since in Muzzy v. Howard, 42 id. 23-that under the statute against arrest and imprisonment for debt there was no competent jurisdiction to issue a capias without the requisite affidavit, and that the case was analogous to the cases that proceed on the ground that jurisdiction of the process is as essential as jurisdiction of the person and of the subject-matter. And Smith v. Bouchier, 2 Str. 993, was referred to approvingly, which was trespass and false imprisonment against five, who justified under process of the University of Oxford, for that by the custom, a plaintiff making oath that he had a personal action against any party within the precincts of the university, and that he believed the defendant would not appear, but run away, the judge might award a warrant to arrest him, and detain him till security was given for his answering the complaint; that the defendant Bouchier made a complaint to the defendant Shippen, the vice-chancellor, of a personal action against the plaintiff, and that he suspected the plaintiff would run away; that he took his oath of and upon the truth of the premises upon which a warrant was granted to the other defendants, whereon plaintiff was arrested. The court held that the custom was not pursued, for that by it the plaintiff was to swear to his belief of the defendant's design to run away, whereas he only swore that he suspected it, which was not the same thing; and the plaintiff had judgment against all the defend ants. Wright v. Hazen and Gordon, supra, was a case for false imprisonment against the party and the justice for an arrest for debt without the requisite affidavit. As to the justice, the pleadings left the case to stand on the fact that the plaintiff was a resident citizen at the time the writ issued, so the plaintiff had judgment on the pleadings; but in view of a repleader being awarded, the court said that all it would be neces sary for the justice to show was that the original writ described the plaintiff as a non-resident, and that he signed it supposing such to be the fact, having no mode of trying that question in advance, and that he was not bound to know at his peril the facts limiting his jurisdiction. This holding would make the justice liable if the original writ described the plaintiff as a resi dent unless the requlsite affidavit was filed, for he would then have knowledge of the facts that limited his jurisdiction. In Carleton v. Taylor, 50 Vt. 220, it is said to be a well-settled rule of law that when the court had no jurisdiction of the process it is nugatory and void, and that all persons acting under it are without protection; that if under our statute exempting from arrest in suits on contracts, the process issues against one not of the class named, or without compliance with the prescribed condition, it issues without warrant of law, and the court has no jurisdiction of the process. In Morrill v. Thurston, 46 Vt. 732, a justice was held liable where the plaintiff was committed on a warrant issued to bail in a recognizance for an appeal in a liquor prosecution, the recognizance not being one authorizing a surrender of the principal in discharge of bail. That was a stronger case for the defendant than this, for there the facts may fairly be said to have given the defendant colorable jurisdiction, and to have called upon him to decide whether he had jurisdiction and authority to act or not; while here the facts presented had no color of legal value, and the defendant's action in the premises was but the commission of an official wrong. Whatever the decisions elsewhere have been on the subject-and they are not uniform-we deem it impossible to sustain this plea without overruling several decisions of this court that have long been recognized and practiced upon as the settled law of the State. Judgment affirmed, cause remanded, and repleader awarded on the usual terms. Powers and Veazey, JJ., dissent. MASTER AND SERVANT-" FELLOW SERVANT" - FOREMAN- BURDEN OF PROOF. MINNESOTA SUPREME COURT, APRIL 24, 1884. PARKER V. ST. PAUL, M. & M. Ry. Co.* The plaintiff, with other servants, was employed to assist in handling and removing cars in the yards of the defendant, including also as a part of his duty the removal of damaged or broken cars to the proper place for repairs, under the direction of a foreman, who was subject to the orders of a yard-master and division superintendent. Held, that as respects risks arising from the acts and omissions of such foreman in the course of such employment, he was to be deemed the fellow-servant of plaintiff. The burden rests upon the servant claiming to be injured in such case to show that the injury is the result of the master's default or negligence in respect to some duty belong. ing to him as master. A PPEAL from order of District Court, Hennepin county. Benton and Roberts, for appellant. Arthur M. Keith, for respondent. Vanderburgh, J. For the purposes of this appeal it must be taken as admitted that the plaintiff, at the time of the injury complained of, had been for several months in the employ of the defendant as a brakeman in the yard of the company at Minneapolis. It was his duty, in connection with an engineer, foreman and other employees, to assist in handling and moving freight cars for different purposes, including damaged or broken cars, which were required to be transferred to repair tracks in the same yard. While thus en *S. C., 19 N. W.Rep. 349. gaged with them in the course of his employment, on the day in question, in removing a damaged car, and while in the act of uncoupling it from an engine, and without fault on his part, his hand was severely injured, in consequence of the coupling attachment being out of repair, of which fact he was not at the time aware. It was a matter of daily occurrence for these men to be so engaged in removing cars. As to the particular car in question, it appears that it was promptly inspected by a car inspector after it was broken, and set out upon a side track to be transferred to the repair track, and the inspector at the same time caused "bad order" cards to be fastened on each side of it, in the customary way, which indicated that it was to be so removed for repairs, and the signification of which was well known and understood by the employees in the yard, including the plaintiff. It thereupon became their duty, under the direction of their foreman, to remove the car to the proper place for repairs. The plaintiff had on a previous day observed this car, and that it was so marked, but under the circumstances in which he was ordered to uncouple it, he did not recognize or identify it. The engine had been coupled to it, and the foreman, as we must assume from the verdict, gave plaintiff the wrong signal, indicating that it was to be sent to a track which was not in the direct line or route to the repair track, and ordered the plaintiff to uncouple the car from the engine at the proper time to carry into effect such order, and the latter not understanding that the car was on the way to the repair track, mistook its character, and failed to exercise the proper caution in the process of uncoupling it. The plaintiff's evidence warrants the inference that if he had observed the marks upon the car, which he did not do, being called to act quickly, he would have pro. ceeded more cautiously; and so also if the foreman under whom he acted had given the proper signal to indicate that the car was on the way to the repair track | he would in like manuer have protected himself. This foreman was acting under a yard master, who was his superior, and the latter in turn was subject to the orders of the division superintendent of the company. It does not appear that the foreman had any other responsibility than as above indicated. The plaintiff was employed to assist him in the matter of handling cars in the yard, as well damaged or broken cars as those for ordinary service and use. servant. The duty of handling such cars, after inspection, belonged to these men as the servants of the company in their particular department of duty, irrespective of the particular grade of employment of each in the division of labor necessarily incident to the service. And it was not a duty or service which was being performed by the foreman as master as respects the question of liability to other employees. In other words, it was a servant's, and not a master's duty he was discharging. 2. It is the duty of the master to use reasonable diligence in the employment of servants to secure such as are competent and reliable, and to provide them safe and suitable machinery, appliances and equipment, and also to establish and promulgate suitable and needful regulations for the safe and proper conduct of its business, having reference to its risks and exigencies; and these are duties which belong to the master as such, and in the performance of which he is bound to exercise such diligence for the protection of his employees; and if they are performed through an agent, of whatever grade, he must be deemed to represent the master, and the latter is accordingly responsible for their negligent performance. Slater v. Jewett, 85 N. Y. 73, 74; Fuller v. Jewett, 80 id. 52. But where there has been no lack of diligence on the part of the master in the performance of these duties, it is manifest that the use and operation of the machinery, and the execution and management of the details of the business, must necessarily be committed to those who from the nature of their employment, for a common master and a common purpose, are co-servants, who must each, among the hazards of the employment, be deemed to assume the risk of the negligent acts, omissions or mistakes of fellow servants, just as he takes the risk of imperfections in machinery which may prove unsafe in fact, though selected and inspected with due care. Rose v. Railroad Co., 58 N. Y. 217; Besel v. Railroad Co., 70 id. 171; Wright v. Railroad Co., 25 id. 566; De Graff v. Railroad Co., 76 id. 125; Ladd v. Railroad Co., 119 Mass. 412; Holden v. Railroad Co., 129 id. 276. In this case the car had been withdrawn from actual service in the business of the company, and duly inspected and marked for repairs. That it was a damaged car in process of removal implied no negligence on the part of the company, and there is no contention that the defendant did not exercise due diligence in the matter of the employment and retention of its servants, or that the appliances and arrangements for the transfer of such cars, apart from the question of notice to plaintiff, were not adequate and suitable. Flanagan v. Railroad Co., 45 Wis. 105; Watson v. Railroad Co., 58 Tex. 438. 3. The court modified the defendant's sixth request by inserting the words we have italicized, so that as given it would read as follows: "Sixth. The peril incident to the coupling of damaged cars is one to which every railroad brakeman may be exposed by the very nature of his employment, and one which at times must necessarily be incurred. The existence of such peril while such car is being taken to the place of repair implies no negligence whatever upon the part of the railway company, and is no ground for recovery by an injured brakeman if he is either directly or by the circumstances notified that the car is damaged or is being moved to a place for repairs. It is a risk he assumes for himself." To such modification defendant excepted. 1. As respects the discharge of such duties by the parties so employed, and any risks incident thereto, including the acts and omissions of the foreman, the latter must be regarded as the co-servant of plaintiff. Brown v. Railroad Co., 27 Minn. 162; 6 N. W. Rep. 484; McCosker v. Railroad Co., 84 N. Y. 82; Lawler v. Railroad Co., 62 Me. 466; Weger v. Railroad Co., 55 Penn. St. 460; Brown v. M. & St. L. R. Co., 18 N. W. Rep. 834. The foreman was not deputed to act as the authoritative representative of the master, as superintendent or middle-man, vested with a discretion to control and manage a division or department of the business. Whart. Neg. (2d ed.), § 235. And therefore ⚫as to fellow servants, his negligence in the discharge of such duties is not attributable to the master. We think therefore the court erred in refusing defendant's ninth request, to instruct the jury "that the defendant was not liable for any negligence of its servants in the manner of removing the car, nor for any directions given by any one of them as to the manner of removal." So The vice of this instruction, as thus modified and also, we think, the court erred in assuming in the second given, is, we think, that it makes the question of the and third instructions, given at plaintiff's request, that defendant's liability turn upon the fact of actual nothe foreman, in the course of his employment in the tice, directly or indirectly, to the brakemen, leaving matter of removing and handling damaged cars, was out of view the question as the exercise of due dili representing the master, and engaged in the perform-gence by the company in the matter of providing and ance of duties pertaining to the master, and not to a publishing suitable regulations for the transfer of damaged cars, or the existence or effect of any usage A which might be deemed equivalent thereto. It is clear that the arrangements and regulations made and in operation for the transfer of such cars might be reasonably suitable and proper for the purpose, and yet through some accident or misfortune, or some negligent act or omission of a fellow servant in carrying them out, a brakeman or other laborer might be misled or misdirected, so as to mistake the character of the car or its destination, and mistakes or confusion in giving orders may be reasonably expected to occur without the fault of the defendant, or its superior or managing officers. 4. The question as to the existence or sufficiency of such regulations or usage on the part of the company does not seem to have been considered in this case; nor does the want of them appear to be shown. In the absence of proof the master will hardly be presumed to be in default; nor will it be presumed that regulations or precautions are insufficient because the foreman failed to do his duty. Rose v. Railroad Co., 58 N. Y. 222; Wood, Mast. & Serv., §§ 419-346; Davis v. Railroad Co., 20 Mich. 122; Wright v. Railroad Co., 25 N. Y. 566; Whart. Neg., § 243; Thomp. Neg. 1053. In any event, if there was a regulation or usage established and existing and known to plaintiff, amounting to a direction as to the disposition of damaged cars, and under which it was the duty of this crew of men to remove them to track No. 8, plaintiff must be deemed to have undertaken and continued in his employment subject to all the risks incident to such particular duty, and no liability would attach to the company on account of the mistakes or omissions of the foreman. Flanagan v. Railroad Cc., 50 Wis. 472; 7 N. W. Rep. 337; Watson v. Railroad Co., 58 Tex. 438; Railroad Co. v. Ward, 61 Ill. 131; Haskins v. Railroad Co., 65 Barb. 134; 56 N.Y. 608; Wright v. Railroad Co., supra, 570. Fay v. Rail road Co., 30 Minn. 231; 15 N. W. Rep. 241, has no application to the facts of this case. There a freight car was negligently continued in actual use in the business of the company, without examination or repair, which were held to be duties belonging to the master. as respects the company's rules for coupling cars, it was held merely that an employee could not be charged with contributory negligence in not observing a rule of which he had no notice, and which had fallen into disuse. Order reversed and new trial granted. And PPEAL from judgment of the General Term of the Supreme Court, in favor of defendant, in the first department, entered upon an order made overruling plaintiff's exceptions and directing judgment on a verdict. This action was brought to recover for work, labor, and services alleged to have been rendered by the plaintiff for the defendant. Plaintiff continued in such employment from June 27, 1874, to March 4, 1876. Periodically and at the end of every two weeks during that time he received payment for his services at the rate of $2.50 per day. At the time of receiving each payment, the plaintiff signed a pay-roll containing a receipt in full. In 1879, three years after the plaintiff ceased to work for the defend. ant, he made a demand upon the comptroller for payment for extra work sought to be recovered in this action. Denis A. Spellissy, for appellant. D. J. Dean, for respondent. RUGER, C. J. We quite concur in the views expressed by the learned judge writing the opinion of the court below, and could perhaps well rest the decision of the case upon the consideration there given to it were it not that the novelty of the provisions contained in the so-called "eight-hour statute," and the large number of persons interested in their construction, render it proper that we should also express our views with reference to their legal effect. The section under which the claim in this case is made reads as follows: "On and after the passage of this act, eight hours shall constitute a day's work for all classes of mechanics, workingmen, and laborers, excepting those engaged in farm and domestic labor, but overwork for extra compensation by agreement between employer and employee is hereby permitted." Section 1, ch. 385, Laws of 1870. The second section makes the law applicable to persons in the employ of municipal corporations, and undoubtedly brings the appellant within the benefits intended to be conferred by the act. It is well to premise that this act was not intended to affect or regulate the rate of wages which should govern as between employer and employee. That subject is left by the act, as it must always remain open to be fixed by the agreement of the parties intending to enter into those relations. Experience has shown “EIGHT-HOUR that legislation on the subject must always be futile and ineffectual, for the reason that it is controlled by the natural laws determining the value of labor and property, and which are as much beyond the power of statutes to affect as they are above the control of the wishes of the parties interested therein. NEW YORK COURT OF APPEALS, APRIL 29, 1884. MCCARTHY V. MAYOR, ETC., OF NEW YORK. An employer is not made liable under and by the "Eight- Legislation which tends to reduce the hours of labor to be rendered in a calendar day will by the operation of a silent but inevitable law also reduce correspondingly the rate of the per diem compensation to be paid for such labor, and will thus always maintain the same relation between the services rendered and the price paid which existed previous to the enactment of such statutes. Any attempt to affect artificially the rate of compensation for labor, whether it be sought in the halls of legislation or in the forum of judicial tribunals, must necessarily lead to the same result, and produce either a cessation of employment by reason of its unprofitableness, or an adaptation of the price paid to the actual market value of the services rendered. It seems to us therefore quite obvious that the Legislature did not attempt by the statute in question to interfere with the question of the rate of compensation to be paid for labor, but left it in terms to the |