which the notice relates.

The better opinion, says Mr. Wharton (Agency. § 178), is, "that wherever the agent, acting in the scope of his duties for his principal, receives notice in a matter in which he represents the principal, such notice is notice to the principal, although the notice is not received in the identical transaction to which the notice relates. The extent to which the principal is affected by the knowledge of his agent, is not limited by the agent's authority to act upon the knowledge. Thus in Peoria Marine and Fire Ins. Co. v. Hall, Sup. Ct. Mich. (3 Am. Law Reg. N. S., 417), the holder of a fire policy kept gunpowder in his store, which, under the provisions of the policy, would render it void; the agent who effected the insurance knew at the time that gunpowder was being sold on the premises, and verbally assented that the insured should continue to hold and sell it; it was contended by the company that the agent had no authority to give such assent. But the court, per Christiancy, J., held: "This, at first view, would seem plausible and might be sound, but for another principle which lies back of it and defeats its application. The principle to which we allude is, that notice to the agent is notice to the principal."

Error to the Court of Common Pleas, No. 2, of Allegheny County.

Plaintiff's counsel offers to prove by the witness on the stand, Bridget Cauley, that on the morning of the 20th day of September, 1879, she came out of her house on the hill-side opposite the point bridge, and above the defendant's railroad and switches; that she saw the defendant's freight cars being shifted down the road and in motion; that she saw and heard the conductor of the train, standing on the track, and close to the nearest switch in that vicinity, and close to the moving train, calling to and ordering a number of boys that were on the car, to wit, a sand car loaded with sand for the glass-house, and ordering them to get out of the car, in a very authoritative tone of voice; that discovering at the time that this small boy, John H. Cauley, was among the boys on the car, she spoke out and protested against the boys having to get off the car, at least her boy, while the cars were in motion; that she remonstrated with the conductor, and asked that

they should not be put off until the cars should be stopped; that the conductor persisted in ordering the boys to get off while the cars were in motion; that while the conductor was giving such orders to get off, the larger boys jumped off the car on different sides of the track that they were running on, and that her little boy,John Henry Cauley, then seven years two months and six days old, jumped off also, and fell under a wheel of the car, and his leg was bruised so that it had to be amputated. Plaintiff's counsel further offers to prove by the witness that after the cars had started, and while in motion, and when the conductor was giving said orders,that a man,a brakeman on the cars, came towards the boys in a manner which indicated that he was about to enforce the orders of the conductor, and this immediately before the boys jumped off the car.

This. for the purpose of showing, that those in charge of the train of deflant, had acted carelessly and negligently in the premises, and had ordered the boys to get off the train at an improper time, when it was in motion; and also to show negligence on part of defendant. 1. Defendant's counsel object to the offer as incompetent and irrelevant generally. 2. Because the offer discloses the fact that the plaintiff, the boy injured, was a trespasser at the time of his injury, being in a place where he had no right to be, ard it fails to disclose any act of negligence upon the part of any employee of the company, for which the company is itself liable. Objection sustained, testimony excluded,and bill sealed for the plaintiff. The same offer was made in a different shape and refused by the court, and exceptions taken. The plaintiff then rested, and the court directed a verdict for the defendant. The rejection of these offers was assigned for error.

PAXSON, J., delivered the opinion of the court: It was said by Mr. Justice Strong, in Philadelphia, etc. R. Co. v. Hummell, 8 Wright, 378: “It is time it should be understood in this State that the use of a railroad track, cutting, or embankment is exclusive of the public everywhere, except where a way crosses it." The same doctrine has been reiterated again and again in subsequent cases. In Mulherin v. Delaware, etc. R. Co., 31 P. F. S. 366. it was said: "Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes;" and Railroad v. Norton, 12 Harris, 465, was cited in support of this rule. Many other cases might be referred to, were it necessary. We live in an age of steam and rapid development. The world demands quick transportation. Increased speed necessarily involves increased danger. Holding, as we do, such corporations to a strict responsibility for negligence, it is our duty to give them a clear track. This rule is not only proper in itself, but is necessary for the preservation of life. Its propriety is no longer a subject for discussion.

It ought also to be equally well understood that parents who permit their children to trespass upon the track of a railroad are guilty of negligence. It is not only gross but culpable negligence, as it imperils the lives of the children so trespassing. as also the lives of the traveling public. A similar view was taken in Railroad Company v. Hummell, supra, where it was said that children "can not be upon the railroad without a culpable violation of duty by their parents or guardians.” It is very clear, therefore, that as to the suit brought by John Cauley in his own right for the injury to his son he can not recover. The child was upon the car, where he ought not to have been, by the negligence and want of care of his father. Nor does the offer of evidence, ruled out by the court below, tend to rebut the presumption of negligence on the part of his parents. On the contrary it strengthens it. Assuming the offer to be true, it shows that the child was not only playing upon the car on the occasion when he received the injury, but that he had done so before. The location was near his parents' house, probably in sight, as his mother saw the accident and called to the conductor. That the child was there without his father's consent is not to the purpose. "To suffer a child to wander upon the street has the sense of permit. If such permission or sufferance exist, it is negligence." Philadelphia. etc. R. Co. v. Long, 25 P. F. S. 265. I apprehend few parents would consent to a child playing upon a railroad track, or any other known place of danger. But many parents might neglect the precautions necessary to prevent it. In some instances it would require more than merely to caution a child against it. Positive prohibition, followed by punishment for violation, may sometimes be necessary. It too often happens that boys are allowed to wander about the streets, and trespass upon railroad tracks with very little care or supervision of their parents. Whilst so engaged injuries of this character are likely to happen. Much as they are to be deplored, and however much our sympathies may be aroused for one so injured, it would be unjust to compel a corporation or individual to make a pecuniary compensation for such accident, where it was the result of the lawful pursuit of a lawful business by such corporation or individual. Aside from this, the defendant company owed the father of this child no duty. The father owed his child the duty of protection. The company did not. The evidence was properly rejected.

In regard to the suit brought for the child by his father, as his next friend, it is sufficient to say, that the child being unlawfully upon the car, the defendant company owed it no duty, and is not liable for the injury. This was the principle upon which Railroad Co. v. Hummell, was ruled. In the recent case of Duff v. Allegheny R. Co., 27 Pittsburgh Legal Journal, 58, it appeared that a conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train. By the alleged negligence of the com

pany the boy was killed. The right of his mother to recover was denied, upon the ground that the boy was a mere trespasser, and the company owed him no duty. It is useless to multiply authorities. The rule is well settled and is sustained by reason and authority. Moreover, it is demanded by humanity. There are many unfeeling parents, who not only neglect, but maltreat their children. It would be cruel to such children to lay down a rule which would make it an object for unprincipled parents to expose them to injury and death upon a railroad track.

Upon the merits these judgments ought to be affirmed. But we notice that one writ of error has been taken to the two cases. There is no authority for this. It is a practice that we will not encourage. Besides, the Commonwealth loses the tax upon one writ. There should have been a separate writ of error to bring up each case. We have expressed our opinion upon the merits to avoid having our time occupied with the cases again. But we will not enter judgment. Writ quashed.

We concur in quashing the writ, but not in the opinion, to which we dissent:-TRUNKEY and STERRETT, JJ.

English Court of Appeal, February 24, 1881.

The mistress of a female servant, believing her to be enceinte, sent for a doctor to examine her Upon the doctor's arrival, the servant remonstrated, but ultimately, upon being told that she must do so, submitted reluctantly to the examination. The servant subsequently brought an action of assault against her master and mistress and the doctor. Held, that there was no evidenceto show that what was done was against the plaintiff's will, and that, in the absence of any evidence of force, violence, or coercion, neither the mistress nor the doctor was liable; that the case as against the former was rightly withdrawn from the jury, and that the verdict found for the latter was

eorrect.

Appeal by the plaintiff from a refusal of the Common Pleas Division to make absolute a rule nisi for a new trial, on the ground of misdirection, and that the verdict was against the weight of evidence. On the motion to make the rule absolute, the Divisional Court (LOPES and LINDLEY, JJ.) were divided in opinion, and consequently the rule dropped. The plaintiff appealed.

The facts as stated by LOPES, J., in his opinion below, were as follows: The plaintiff was a housemaid in the service of Mr. and Mrs. Braddell. Mr. and Mrs. Braddell had been absent from home, and returned on the 23d of December. From some information given by a charwoman, Mrs. Braddell came to the conclusion that the plaintiff

was in the family way. On the 27th of December Mrs. Braddell told the plaintiff to pack up and leave before twelve o'clock, as she was in the family way. This the plaintiff denied. Mrs. Braddell replied the doctor would be there directly (the doctor had been previously sent for unknown to the plaintiff). Mrs. Braddell told the plaintiff to go to her bedroom. The plaintiff cried. Mrs. Braddell forbade her to speak. The plaintiff went to her bedroom. The doctor came and went to the plaintiff's bedroom. The plaintiff cried and said she never had such treatment before; she asked the doctor what he was going to do, and said she did not like to be examined. The doctor said he was a professional man, and told the plaintiff to take off her dress. The plaintiff said she did not like to do so. The doctor said never mind, it would satisfy Mrs. Braddeil and him. The doctor told the plaintiff to take off her petticoat. The plaintiff cried, and said she did not like to take off her other things. The doctor said she must. The plaintiff took off her stays. The doctor said she must take off her chemise. The plaintiff said she did not like to do so. The doctor said she must, and told her to slip her arms through. The doctor then told her to lie on her back on her bed, and to loosen the strings of her drawers. He then pinched her breasts and stomach and sounded it. The plaintiff cried all the time. The doctor, after examining her, said she was all right. and he must speak seriously to Mrs. Braddell about it. The plaintiff then dressed. During the examination the plaintiff and the doctor were alone; there was no female in the room. Mrs. Braddell refused to give her a character. The plaintiff, in answer to a questiou put by her learned counsel, swore that what was done was not with her consent.

Murphy, Q. C., and Morten, for the plaintiff; Addison, Q. C., and French, for the defendants, were not called upon.

BRAMWELL. L. J.-I think my brother Lindley was right in this case. I think his direction was right, and that the jury found a right verdict. I daresay the woman thought that her master and mistress had a right to have her examined. But what she did was to submit under the influence of other considerations. The truth is that it is impossible to say the jury was wrong in finding that she submitted, not in consideration of violence, but for some other reason. It is not like the case put by Mr. Murphy of a boy holding out his hand to be struck, for the boy knows that if he does not submit he will be compelled to submit to something worse. There is no ground here to suppose

that to be the case, and 1 am satisfied that she did not submit under any fear of violence.

I doubt whether Mr. Justice Lindley might not have withdrawn the case altogether from the jury. If the verdict for the doctor was right, the others were entitled to a verdict also. The jury would have been wrong if they had found against all three defendants. I think Mr. Justice Lindley was right, because the master and mistress could

only be liable if force had been used, or reasonable apprehension of violence excited in the woman's mind by them, or if that had been done by their order. But there was no evidence of that. Even if the verdict had been against the doctor, it ought to have been in favor of the others. The doctor, however, seems to have behaved most kindly. If the master and mistress thought they had a right to have the girl examined, they were very much mistaken.

BAGGALLAY, L.J.-I am of the same opinion. The argument was supported on the ground that there was misdirection in withdrawing the case from the jury, and that with regard to the doctor, the verdict was against the weight of evidence. I think the verdiet was right. It appears to me that the girl voluntarily led the way upstairs. She went into the room and, following out her statement, her objection was not so much to be examined as to strip off her clothes one by one. The doctor was in the performance of his ordinary duty. She might have resisted if she had pleased, but she did not resist. There can be no doubt that if there was no verdict against the doctor, there could be none against Mr. and Mrs. Braddell. The doctor did nothing more than was necessary to ascertain whether the girl was in the family way.

BRETT, L.J.-I think the learned judge did nothing wrong this case. It seems to me the doctor could only be liable if he acted without the consent or submission of the plaintiff, and that the other defendants could only be liable if the doctor so acted, being authorized by them to act without such consent or submission. It seems to me there was no evidence to be left to the jury that they authorized him to do it without the consent of the girl. I am of opinion, therefore, that the judge was right in saying there was no case to go to the jury against Mr. and Mrs. Braddell.

There might be a case against the doctor without there being a case against Mr. and Mrs. Braddell. If he had examined the girl without her consent, but without having been authorized by them to do it without her consent, he would be liable and not they. I think there was no case to go to the jury against the doctor. I think he did not act in any way so as to make the girl think force would be used to her. If she had so supposed, but without any such reason as would make a reasonable person think so, he would not be liable. It must be shown that he did use aetual force, or that she acted under conduct of his which would make her think he was going to use violence.

The law laid down in the judgment of Mr. Justice Lindley was the true law. If there was no threat and she submitted, there was no assault. There was no misdirection. The jury were right in finding the verdict, and the judgment mus stand.

I think persons have no right to make such an examination; it was absolutely wrong. Appeal dismissed.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES

October Term, 1880.

ALTERATION

AND

RAILROAD CHARTER AMENDMENT BY LEGISLATURE - CONTRACT BY RAILROAD COMMISSIONERS.-The New Haven and Northampton Company is a Connecticut corporation, authorized to construct and operate a railroad from New Haven, through the town of Southington, to the Massachusetts State line. It has full power to erect and maintain toll-houses and other buildings for the accommodation of its concerns, as it may deem suitable for its interest, but its charter may be altered, amended or repealed at the pleasure of the General Assembly." In 1848, after the road was built, three stations were established in the town of Southington, named respectively Southington, Plantsville and Hitchcock's, at which trains stopped for freight and passengers. In 1866, the legislature passed a law forbidding the abandonment and removal of established railway stations, except with the approval of the railway commissioners, given after a public hearing. In 1873 the company, desirous of abandoning its stations at Southington and Plantsville, obtained the assent of the commissioners with the appropriate formalities, and abandoned them. The legislature of 1875 passed an act establishing a depot at Plantsville," providing that, if the petitioners and others who should erect a depo: at that place, and convey it and the land on which it was situated to the company, it should become the duty of the company to stop its trains at that place for the purpose of receiving and discharging freight and passengers, and ordering the company so to do. The act further provided that the order should be enforceable by mandamus. The petitioners named complied with the provisions of the act,and having tendered the company a conveyance of suitable depot grounds and buildings at Plantsville, demanded that the regular passenger and freight trains running on the road be stopped there. This the company refused to do, and the attorney for the State for the County of Hartford now seeks by mandamus to enforce the law. The court below gave judgment against the company, holding, among other things, that the act of 1875 did not impair the obligation of any contract rights which the company had acquired from the State. Upon the argument of the writ of error, it was conceded that nothing in the charter prevented the passage of the law of 1875, but it was urged that, the action of the commissioners operated as a contract on the part of the State not to exercise its legislative power to require the establishment of a depot at Plantsville. The court said: "As it seems to us, the Court of Errors of the State took the right view of the statute under which the commissioners acted, when they said, in State v. N. H. & N. Co., 37 Conn. 163, its object was 'to prevent railroad companies from arbitrarily

changing their places of business on the road, to the prejudice of those who, relying on the permanency of such places, shape their business accordingly.' The powers of the commissioners, as agents of the State, in this particular, are confined to such as are necessary for the accomplishment of that object. They may, after a public hearing, approve of, that is to say, give the assent of the State to the abandonment of a station which has been established twelve months or more, and that is all they can do. They may, as was held by the Court of Errors in State v. N. II. & N. Co., 42 Conn. 59, direct that their approval take effect only when the company shall have provided suitable accommodations for the public at some other place, but that is only a conditional approval of the abandonment. When the new accommodations have been provided, and the old station abandoned, nothing more has been accomplished, so far as the company is concerned, than a lawful abandonment of an old place of business. The powers of the State over the carter remain just as they were before. Until the act of 1866 the company could abandon its stations at will, and the State by charter amendment, or even by a general law, might require their restoration. After that act the power of abandonment by the company was restricted, but the State retained all its old authority. The commissioners were given no power to contract for the State or the public. All they could do was to say yes, or no, to a simple request by the company for leave to abandon an old station. If they said yes, the abandonment might be made; if no, the station must be continued. In this case the commissioner said yes, when the new accommodations are furnished. The new accommodations were furnished and the station was abandoned accordingly. Such was the view taken of what was done by the Court of Errors in the case last cited (42 Conn. 59), and we think it is correct. The commissioners entered into no agreement with the company. They simply said: Complete your proposed accommodations at the new station and we will assent for the State to your abandonment of the old one. It follows that the new law impaired no contract obligation of the State, and the judgment of the Court of Errors is consequently affirmed." In error to the Supreme Court of Errors of the State of Connecticut. Opinion by Mr. Chief Justice WAITE.—New Haven, etc. R. Co. v. Hamersly. TAXATION ASSESSMENT BY THE STATE OF CAPITAL EMPLOYED IN EXPORTS.-The plaintiff in error, being a resident of the City of New York, was assessed for taxation as of January 1st, 1876. upon his personal estate, exclusive of bank stock, to the amount of $60,000. The law of the State provides, that, "All lands and all personal estate within this State, whether owned by individuals or by corporations, shall be liable to taxation." 1 Rev. Stat. N. Y. ch. 13, t. 1, sec. 1. The statute also declares that "the terms 'personal estate' and 'per

sonal property,' whenever they occur in this chapter, shall be construed to include all household furniture, moneys, goods, chattels, debts due from solvent debtors, whether on account, contract, note, bond or mortgage, public stocks, and stocks in moneyed corporations. They shall also be construed to include such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate." 1 Rev. Stat. N. Y. ch. 13, t. 1, sec. 3. Haneman made application, supported by affidavit, for the reduction or remission of the assessment on the ground that, on January 1, 1876, and during the period covered by the assessment, all his personal estate, except $5,500, being nearly $120,000, was continuously employed in the business of exporting cotton from the United States of America to foreign countries, through the customs department of the United States aforesaid, and that said employment consists in purchasing and paying for the cotton in different States of the United States, and actually exported by deponent in said business, and for the payment of all the expenses of shipping the same as such exports," and that the only portion of his estate upon which he is liable to be assessed and taxed, is the sum of $5,500. It appeared from his examination before the tax commissioners, that "his said capital is invested uniformly and continuously in cotton, the product of, and having a situs in, various States outside of New York, and in transit to the port of New York, and other Atlantic ports, for the sole purpose of exportation, and no portion of such cotton is intended to be, or is, sold in New York, or any other United States market; that deponent purchases cotton largely upon credit, and that of his capital as much as $115,000 is continuously invested in cotton of the growth of the United States, which has been cleared at a customhouse, and is on shipboard in course of exportation to some foreign State or country.” The reduction and remission were both denied. Upon writ of certiorari the proceedings of the tax commissioners were affirmed in the Supreme Court of the State, and its judgment was affirmed by the Court of Appeals. Upon its being urged that such tax and assessment were unconstitutional, because products of the United States, which have passed the customs department and are on shipboard in the course of exportation, have become exports, and are no longer within the taxing power of the State; and because a tax on capital invested in products of the United States, in transit from one State to another for purposes of exportation, or on money used and employed in exporting such products, is an unauthorized interference by the State with the regulation of commerce, the court said: "Although these propositions are deemed by counsel to be very easy of solution, we do not feel obliged to determine them in this case. The plaintiff in error was assessed, upon his personal property, as of January 1st, 1876. If the capital, which he claims was uniformly and continuously

employed in the business of purchasing cotton for exportation from the United States to foreign countries, through the custom department, was, in fact, in money on the first day of January, 1876, he could not escape a subsequent assessment of that money upon the ground that, at the time the assessment was made, it was invested in cotton for exportation to foreign countries. Neither in his affidavit, nor in his examination before the tax commissioners, does he distinctly claim (and, perhaps, could not), that the capital which he thus employed in the business of purchasing cotton for exportation was, in fact, so invested on the first day of January, 1876. His capital may have been, in a business or mercantile sense, continuously so employed, and yet it may not have been, in fact, so invested at the date to which the assessment, whenever made, relates. We have no occasion, therefore, in the present case, to consider or determine the questions of constitutional law discussed by counsel. It will be time enough to consider them when they come before us in such form as to require their determination." Affirmed. In error to the Supreme Court of the State of New York. Opinion by Mr. Justice HARLAN.-People, ex rel. v. Commissioners.

BANKRUPTCY FRAUD.- Eldredge was sued with Henry and Betsey Moyer to subject to the debts of complainants certain real estate, which he was charged with having conveyed to the Moyers to defraud his creditors. In the court below the case was sent to a referee, who found that the transaction was fraudulent, and that although Eldredge had become a bankrupt and been thereby released from his debts, he had afterwards confessed judgment on the complainants' debts. Held, that the discharge in bankruptcy is personal to Eldredge, and does not release the other defendants from liability for fraud committed by them, but that the right to bring such an action as this,to subject property fraudulently conveyed, is vested in the assignee alone, and if it appeared by the record that an assignee in bankruptcy had been appointed. complainants could not recover in this action. But as it does not appear that the existence of an assignee or his right to sue for the property is raised by this record, the judgment of the court below in favor of complainants is affirmed. Affirmed. In error to the Court of Appeals of the State of New York. Opinion by Mr. Justice MILLER.-Moyer v. Dewey.