he would himself bear the cost of transportation, are comparatively few. They have all been carefully considered in two recent cases, to which we would call attention. These are Griswold v. Railway Co., 53 Conn. 371 (1885), and that of Railway Co. v. McGown, ubi supra (1886), in which the precise question before us was raised, and decided, after a careful examination of the authorities, in a different manner by the highest court of Connecticut and that of Texas. No doubt existed in either case, in the opinion of the court, that the ticket of the passage was strictly a gratuity, and it was held by the former court, that under these circumstances, the carrier and the passenger might lawfully agree that the passenger should bear the risks of transportation, and that such agreement would be enforced, while the reverse was held by the court of Texas. We are brought to the decision of the question unembarrassed by any weight of authority without the Commonwealth that can be considered as preponderating.

It is urged on behalf of the plaintiff, that while the relation of passenger and carrier is created by contract, it does not follow that the duty and responsibility of the carrier are dependent upon the contract; that while, with reference to matters indifferent to the public, parties may contract according to their own pleasure, they cannot do so where the public has an interest; that, as certain duties are attached by law to certain employments, these cannot be waived or dispensed with by individual contracts; that the duty of the carrier requires that he should convey his passengers with safety; that he is properly held responsible in damages if he fails to do so by negligence, whether the negligence is his own or that of his servants, in order that this safety may be secured to all who travel. It is also said that the carrier and the passenger do not stand upon an equality; that the latter cannot stand out and higgle or seek redress in courts; that he must take the alternatives the carrier presents, or practically abandon his business in the transfer of merchandise, and must yield to the terms imposed on him as a passenger; that he ought not to be induced to run the risks of transportation, for being allowed to travel at a less fare, or for any similar reason, and thus to tempt the carrier or his servants to carelessness which may affect others as well as himself; and that, in a few words, public policy forbids that contracts should be entered into with a public carrier by which he shall be exonerated from his full responsibility. Most of this reasoning can have no application to a strictly free passenger, who receives a passage out of charity or as a gratuity. Certainly the carrier is not likely to urge upon others the acceptance of free passes, as the success of his business must depend on his receipts. There can be no difficulty in the adjustment of terms where passes are solicited as gratuities. When such passes are granted by such of the railroad officials as are authorized to issue them, or other public carriers, it is in deference largely to the feeling of the community in which they are exercising a public employment. The instances cannot be so numerous that any temptation will be offered to carelessness in the management of their trains, or to an increase in their fares, in both of which subjects the public is interested. In such instances one who is ordinarily a common carrier does not act as such, but is simply in the position of a gratuitous bailee. The definition of a "common carrier," which is that of a person or corporation pursuing the public employment of carrying goods or passengers for hire, does not apply under such circumstances. The service which he undertakes to render is one which he is under no obligation to perform, and is outside of his regular duties. In yielding to the solicitation of the passenger, he consents, for the time being, to put off his public employment, and to do that which it does not impose upon him. The plaintiff was in no way constrained to accept the gratu

ity of the defendaut. It had been yielded to him only on his own solicitation. When he did, there is no rule of public policy, we think, that prevented the carrier from prescribing, as the condition of it, that it should not be compelled, in addition to carrying the passenger gratuitously, also to be responsible to him in damages for the negligence of its servants. It is well known that, with all the care that can be exercised in the selection of servants for the management of vari ous appliances of a railroad train, accidents will sometimes occur from momentary carelessness or inatten. tion. It is hardly reasonable that besides the gift of free transportation the carrier should be held respon sible for these, when he has made it the condition of his gift that he should not be. Nor, in holding that he need not be under these circumstances, is any countenance given to the idea that the carrier may con tract with a passenger to convey him for a less price on being exonerated from responsibility for the negligence of his servants. In such a case the carrier would still be acting in the public employment exercised by him, and should not escape its responsibilities, or limit the obligations which it imposes upon him.

In some cases it has been held that while a carrier cannot limit his liability for gross negligence, which has been defined as his own personal negligence (or that of the corporation itself, where that is the carrier), he can contract for exemption from liability for the negligence of his servants. It may be doubted whether any such distinction in degrees of negligence, and the right of a carrier to exempt himself from responsibility therefor, can be profitably made or applied. The New World v. King, 16 How. 469. It is to be observed however that in the case at bar the injury occurred through the negligence of defendant's servants, and not through any failure on the part of the corporation to prescribe proper rules or furnish proper appliances of the conduct of its business. We are of opinion that where one accepts, purely as a gratuity, a free passage upon a railroad train, upon the agreement that he will assume all risk of accident which may happen to him, while travelling on such train, by which he may be injured in his person, no rule of public policy requires us to declare such contract invalid and without binding force. By the terms of the report there must therefore be judgment for defendant.

trial of this case, that on the 18th day of April, 1887, the plaintiff took passage at St. Louis for Council Bluffs on the Wabash and St. Louis railroad, and purchased a sleeping-car ticket from the defendant's agency at St. Louis, entitling him to a lower berth in the sleeping-car attached to the train which left St. Louis the evening of that day. That the train left St. Louis at 8:25 P. M. That a short time before the train left plaintiff entered the sleeping-car, and, upon doing so, delivered his coat to the porter of the car, who took it, and placed it in the vacant upper berth of the section of which plaintiff had secured the lower berth. That, shortly after the train started, the sleeping-car conductor passed through the car, and took up the ticket which had been purchased by the plaintiff, and gave him in exchange therefor another ticket, known as a berth ticket,' which was in turn taken up by the porter soon afterward, when he prepared the sleeping berth for occupation by the plaintiff. That the next morning, when the plaintiff arose, he took out from the upper berth a portion of his clothing, and then saw his overcoat there, where it had been placed the evening before by the porter, and where he (the plaintiff) left it. That plaintiff was last to leave his berth, and, with the exception of a gentleman and lady, the last of the passengers to leave the car for breakfast that morning. That plaintiff went out to breakfast at the regular breakfast station, which occupied him about fifteen minutes, and that after breakfast he stood on the rear platform of the sleeper about ten minutes smoking a cigar, and then went to his berth in the car, the same having been made up, and then discovered that his overcoat was missing. That he immediately called the attention of the conductor of the sleepingcar to the fact, who, after first disclaiming any responsibility for the care of the coat, after a time caused a search to be made through the car, in company with the porter, for it, but without finding it, and the coat has been entirely lost to the plaintiff, and was of the value at the time of the loss of $50. I also find that the conductor left the car at the breakfast station, and went to his breakfast at the same time as the passengers, including the plaintiff, were at their breakfast, and that during the interval of about twenty-five minutes' absence of plaintiff from his berth in sleepingcar, between the time when he left the car for breakfast and the time when he returned into it, his berth was made up, and his overcoat abstracted. Conclusion of law: I find, as a conclusion of law, that defendant was guilty of negligence in not properly guarding and taking care of property of plaintiff during his necessary absence from defendant's car, and that plaintiff was not guilty of negligence in the matter. I there

fore find that defendant is liable to the plaintiff for the value of the overcoat, to-wit, $50, with interest thereon from April 20, 1887, to the first day of this term, $3.75." The rules of the company were also introduced, in evidence in its behalf, but, as the defendant in error had no notice of them, they do not enter into the case.

The question presented therefore is the liability of a sleeping-car company for the loss of necessary wearing apparel of one who had paid the necessary sleeping-car charges, and was lawfully riding in one of its cars, which apparel had been placed in the care of the em ployees of the company. We find no case exactly in point, and as the question is a new one, not only in this State, but, to a great extent, in the other States of the nation, we are practically without precedents to aid us, and must adopt such rule as may seem just and equitable. It may be well to consider what the company undertakes to perform, and also what it does not undertake. The latter proposition will be considered first. It does not undertake to furnish the railway for its cars to run upon, nor the motive power to propel them, and hence is not entitled to compensation for the ordinary carriage of passengers. It does invite for

hire all passengers holding first-class tickets to occupy its cars. In effect, it says to all such passengers: We will furnish you safe, pleasant, commodious cars, with all possible facilities to prevent weariness and fatigue, with comfortable sleeping accommodations, and the necessary toilet facilities, if you pay the price demanded in addition to the ordinary fare." The nature of this undertaking is the question for consideration. On the one hand, it is claimed, that so far as the company holds itself out as performing the duties of an inn-keeper, so far it should be charged with the strict liability of the same. On the other, it is sought to make the liability of the company merely that of a lodging-house keeper. In the very able and carefully prepared briefs of the attorney for the plaintiff in error, we find the following objections to charging the company with the liability of an inu-keeper. He says: "It undertakes (1) to furnish accommodations to 'first-class' passengers exclusively; (2) to furnish toilet accommodations to such passengers; (3) to furnish a certain specified seat or bed to such a passenger; (4) to furnish a servant who will respond to all proper demands on his service by such passengers, promptly and politely; but to do these four things for a limited time, which is agreed upon between it and each passenger in advance. It does not make even this agreement with all those who travel by rail. It makes this agreement with first-class passengers exclusively. The distinction between an inn-keeper and a lodging-house keeper is set forth in many cases, but is very well drawn in the case of Cromwell v. S'ephens, 2 Daly, 15 (1867), from pages 21 to 26, inclusive. After quoting the definition of an "inn,” as given by Chief Justice Oakley in Wintermute v. Clark, 5 Sandf. 247, to-wit, "where all who come are received as guests, without any previous agreement as to the duration of their stay or as to the terms of their entertainment;" and from Willard v. Reinhardt, 2 E. D. Smith, 148, in which the distinctions between a boarding-house and an inn were declared to be this: "In a boarding-house the guest is under an express contract, at a certain rate, for a certain period of time, but in an inn there is no express engagement; the guest, being on his way, is entertained from day to day, according to his business, upon an implied contract;" and from Carpenter v. Taylor, 1 Hilt, 195, as follows: "Mere eating-houses cannot be considered as inns. They are wanting in some of the requisites necessary to constitute them inns "—it will be seen that a distinction is attempted to be drawn between the sleeping-car company aud an inn-keeper, because only a certain class can occupy such cars, viz., persons holding first-class tickets, whereas, at an inn, all who conduct themselves properly may be entertained. There is great confusion in the decisions as to what constitutes an "inn." In Calye's Case, 8 Coke, 32, it was held that inns were instituted for passengers and wayfaring men. In another case an "inn" is defined to be a house where the traveller is furnished all he has occasion for while on the way. Thompson v. Lacy, 3 Barn. & Ald. 283. Bouvier defines "inn-keeper" to be "the keeper of a common inn for the lodgment and entertainment of travellers and passengers, their horses and attendants, for a reasonable compensation." The inn-keeper is bound to take in and receive all travellers and wayfaring persons, and entertain them, if he can accommodate them, and the same is true of a sleeping-car company as to all passengers holding a first-class ticket. The fact that persons holding second or third-class tickets agree, in effect, in consideration of lower fare, to waive their right to enter a sleeping-car, does not enter into the case any more than that of a traveller who, to avoid the expense of an inn, should stop at a private house. In any event, the company which sells sleeping-car tickets to all first-class passengers that may pay the price, to that extent stands in the same

which defendant was the beneficial owner, and after suit had been brought on it against the judgment | debtors by the holder of the legal title, plaintiff paid defendant a certain sum, and took from him a bond conditioned to save him harmless against all claims ' in the suit then pending, and "against all costs and damages" which plaintiff might be compelled to pay by reason of said action, or "claims upon which the same is based." Held, that the bond was to indemnify plaintiff, not only against the action mentioned in it, but also against any costs and damages resulting to him from the subsequent prosecution of any claim founded on the judgment. (2) The fact that plaintiff afterward, in a suit on the bond, recovered from defendant a judgment for costs and expenses incurred by him in a subsequent suit against him on the judgment by an assignee thereof, is conclusive, as between plaintiff and defendant, that defendant's liability on the bond was not limited to costs and expenses which plaintiff might incur by reason of the action mentioned therein. (3) In an action on the bond to recover costs and expenses incurred by plaintiff in defending an action against him by defendant, who had afterward acquired the legal title to the judgment, a counter-claim by defendant for damages resulting from fraud and misrepresentation of plaintiff in inducing him to execute the bond is within the meaning of a counter-claim, as defined by the Code of Civil Procedure of New York, section 501, providing that a counter-claim must be a cause of action against the plaintiff, arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject of the action. (4) Such counter-claim being founded solely on alleged fraud on the part of plaintiff in procuring the bond, for which defendant seeks damages, can be set up without defendant's restoring to plaintiff the amount paid by him on the judgment as consideration for the bond. Second Division, Jan. 14, 1890. Thomson v. Sanders. Opinion by Bradley, J. Reversing 44 Hun, 622. CONTRACT-CONSTRUCTION.- (1) Plaintiff entered into a contract by which he sold defendant the exclusive right to give performances of certain plays for thirty consecutive weeks during the theatrical season, one performance each night to be given during such period, and defendant agreed to pay plaintiff $200 "each week for thirty consecutive weeks, commencing on the first Saturday after said performance begins." Held, that plaintiff is entitled to recover $200 a week after the first performance, whether defendant continued to produce the plays each week or not. (2) A contract was entered into between N. & L., a theatrical author, of Germany, by which the latter assigned to the former the exclusive right of performance of all plays which were or might be composed by him, also all property rights in such plays for the United States, so that N. exclusively should have the right to give to other stages in America the permission to perform said plays, to fix and determine the royalties for the same, and collect such royalties from the other managers; "in short, that Mr. N. is authorized to act as the sole proprietor of the same." L. reserved to himself certain royalties on the plays that should be performed by N., and a per cent of the royalties N. might receive from other managers. The contract was to last for a certain time, after which it was to continue from year to year, unless revoked by one of the parties. Held, that there being evidence to show that the parties to the contract did not intend that N. should be any thing more than the agent of L., he did not, under the clause of the contract giving him authority to act as the sole proprietor" of the plays, acquire any absolute title thereto, but his power to make any disposition of the right to perform the plays ceased on the termination of the contract. Second

Division, Jan. 14, 1890. Daly v. Stetson. Opinion by Haight, J. Affirming 54 N. Y. Super. Ct. 202.

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(1) A

EASEMENT-CREATION BY PAROL-LICENSE. right in the nature of an easement cannot be created by a parol agreement for the partition of land. It is not open to discussion in this State that a parol partition may be made of lands owned by tenants in common, provided each party takes and retains exclusive possession of the portion allotted to him. Wood v. Fleet, 36 N. Y. 499; Mount v. Morton, 20 Barb. 123; Ryerss v. Wheeler, 25 Wend. 434; Jackson v. Livingston, 7 id. 136; Jackson v. Christman, 4 id. 277; Jackson v. Vosburgh, 9 Johns. 270; Jackson v. Harder, 4 id. 202; Freem. Co-Tenancy, § 398; Knapp Partit. 465. A tenancy in common exists when there is nearly unity of possession, either with or without a union of other interests. The result of a parol partition, when carried into effect by each tenant taking exclusive possession of his own share and surrendering possession of all the other shares according to the allotment, is to destroy the unity of possession; and thus the parties by their acts only, without a deed, cease to be tenants in common of the whole, and each becomes a tenant in severalty of a part. The unity of possession is severed and the partition is effected by the acts of the parties in taking exclusive possession of their respective shares by common consent. While the form of the transaction is a parol agreement followed by the act of taking exclusive possession, each of his part, the substance is the act itself. A parol agreement simply cannot terminate the unity of possession. Standing alone, it would be ineffectual for any purpose. The partition springs from the act of each tenant, with the consent of the others. Although practically a substitute for, it is not equivalent to, mutual conveyances, which would sever the unity of possession, even if not followed by actual possession. No title is transferred by a parol partition, even when it is carried into effect, as it acts only upon the unity of possession, and by ending that, accomplishes the object in view. It ascertains and defines the limits of the respective possessions. Possession under a tenancy in common is per mie and not per tout; and as each tenant owns an undivided fraction, he cannot know where that fraction is until a division has been made. 4 Kent Com. 367-371; 2 Bl. Com. 191, 194. While his title remains the same after partition as it was before, his part is separated and identified by the division. Alln. Partit. 124, 129; Corbiu v. Jackson, 14 Wend. 621, 625. It follows from these views, which are supported by the authorities already cited, that a right in the nature of an easement cannot be created by a parol agreement for the partition of lands, because that involves something besides a severance of the unity of possession. It implies a grant, by which the right is either reserved or conveyed. Wiseman v. Lucksinger. 84 N. Y. 31. It is something carved out of one parcel of land, the servient, for the benefit of another, the dominant. "It is an interest in or over the soil," and can only be acquired by grant, and ordinarily by deed, * a parol license being insufficient for the purpose." ." Washb. Easem. 3-7. If the right to enter and take away apples, as contended for, was merely a parol license, it was revocable at pleasure, and the conveyance of the one hundred acres without reference thereto effected a revocation. Cronkhite v. Cronkhite, 94 N. Y. 323; Shepherd v. Oil Co., 38 Hun, 37; Washb. Easem. 7. (2) But whatever the nature of the right, as claimed was, we agree with the learned General Term, that as it was not, and could not be, made a matter of record, the Recording Act supervened, and protected the plaintiff. Subsequent to the parol partition the parcel of one hundred acres was twice conveyed by deeds duly recorded, neither of which contained any reference to the right or claim in question. There

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