ance of duties towards the inferior servant which the law imposes upon the master.

The rule is ably discussed by Chief Justice Church in Flike v. Boston & A. R. Co., 53 N. Y. 549, where he says: "The true rule, I apprebend, is to hold the corporation liable for neg ligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. to such acts, the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed."

As

adopted the rule of the English courts. Other States followed this rule, until it has become the general doctrine in all the American States. The reason of this rule as held by the Massachussetts court in the early case above cited, is that, "where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity or neglect of duty, and leave the service if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the If an agent whose duty it is to employ servsafety of each will be much more effectually ants or provide materials for the company acts secured than could be done by a resort to the negligently in that capacity, his fault is that of common employer for indemnity in case of the company, because it occurred in the perloss by the negligence of each other. Regard-formance of the principal's duty, although only ing it in this light, it is the ordinary case of one an agent himself. sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer."

In Malone v. Hathaway, 64 N. Y. 5, Mr. Justice Allen makes the distinction between natural and artificial persons, and lays down the rule that it is only where the master withdraws from the management of the business, intrusting it to a middleman or superior servant, or where, as in the case of a corporation, the business is of such a nature that the general management and control thereof is necessarily committed to agents, that the master can be held liable to a subordinate for the negligent acts of one thus placed in his stead. Under this rule, a foreman who had no delegation of power or control, but who was merely charged with special duties, was held to be a fellow servant. 7 Am. & Eng. Cyclop. Law, 834.

The rule thus adopted did not, however, relieve the master from a duty and obligation to his servants, whether the master be a natural person or a corporation, to furnish safe machinery or other apparatus, and to observe all the care which the exigencies of the situation reasonably required, as well as to employ com petent servants. It is the duty of the master, also, to make such regulations or provisions for the safety of employés as will afford them reasonable protection against the dangers incident to the performance of their respective duties. This duty extends to the selection of competent persons, to whom the master may delegate his authority, to take charge of and control the business in which the servants are employed. There is no diversity of opinion upon these propositions. The difficulties arise when courts are called upon to determine wholy true that the master is held to a much stricter are and who are not fellow servants in given cases, and this difficulty is made apparent when we note the hundreds of cases which in the last few years bave found their way to the courts of last resort in the different States of the Union The courts are not in harmony upon this question.

Mr. Wharton, in his work on Negligence (229), says this doctrine is in harmony with the American cases.

As before stated, it is difficult to lay down any general rule which shall determine all cases. In some of the States, it is undoubted

accountability and responsibility for the acts and omissions of those who are classed by some of the other courts as fellow servants; and the tendency of modern adjudications is more and more to relax the rule that those who are engaged in the same common enterprise or business are fellow servants, especially In Massachusetts it is said that this rule "is if it can be pointed out that the one in fault not confined to the case of two servants work- occupies some higher grade or more power ing in company, or having opportunity to con- than the party injured. Especially is this trol or influence the conduct of each other, but the case where parties are servants of corporaextends to every case in which the two, deriv- tions. If parties are fellow servants while ening their authority and their compensation from gaged in the business of a natural person, the the same source, are engaged in the same busi- same rule and reasoning, under like circumness, though in different departments of duty; stances, ought to place them in the same catand it makes no difference that the servant egory while engaged in the business of a corwhose negligence causes the injury is a sub-poration; and if one is the agent or superior manager or foreman of higher grade or greater authority than the plaintiff." Holden v. Fitch burg R. Co. 129 Mass. 268; 7 Am. & Eng. Cyclop. Law, 835.

servant while engaged in the business of a corporation, and through whose negligent conduct another engaged in the same common enterprise is injured, and for whose injuries the This rule is substantially followed in Maine, corporation is held liable, then, under like cirthough it is said that an exception to the rule cumstances, if it was the business of a natural exists if the master has delegated to the fore- person, the master should be so held. Some man or superintendent the care and manage- general rules may, however, be laid down ment of the entire business, or a distinct depart- which in many instances may serve as a guide ment of it, the situation being such that the in the determination of the question. It is not superior servant is charged with the perform-to be determined solely from the grade or rank

of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant. If it is an act that the law imposes the duty upon the part of the master to perform, then the offending employé is not a fellow servant, but a superior or agent, for whose acts the master is held liable. Again, if the master has delegated to a servant or employé the care and management of the entire business, or a distinct department of it, the situation being such that the superior servant is charged with the performance of duties towards the inferior servant which the law imposes upon the mas ter, then such superior servant stands in the place of the master, and the rule of respondeat superior applies. Whether or not the servant has power to employ and discharge other serv ants is also important in determining whether or not he is deemed to be a superior servant, for whose acts the master is held liable. Chapman v. Erie R. Co. 55 N. Y. 579; Kansas Pac. R. Co. v. Salmon, 11 Kan. 83.

the master is responsible for it, whether the supervision be by the master in person, or by some manager, superintendent or foreman to whom he delegates it. In other words, while the servant assumes the risk of the negligence of fellow servants, he does not assume the risk of negligence in the master himself, or in anyone to whom the master may see fit to intrust his superintending authority. In support of this doctrine the following cases are cited: Albro v. Agawam Canal Co. 6 Cush. 75; McAndrews v. Burns, 39 N. J. L. 117; Malone v. Hathaway, 64 N. Y. 9; Hard v. Vermont &C. R. Co. 32 Vt. 473.

In Ryan v. Bagaley, 50 Mich. 179, it appeared that the defendant resided at Pittsburgh, and was proprietor of the Palmer Iron Mines. Decedent, while working as a laborer in the mine, was killed. The defense was that the casualty was owing to the negligence of Whitesides, who was a fellow servant. It appeared that Kirkpatrick was the agent of defendant first in station. He knew nothing of the business, and appointed Whitesides as mining captain, and with whom the defendant, on his visits to the mine, consulted. Upon the question whether Whitesides was the fel

When the offending servant, having general power and authority to employ and discharge servants, and having authority to direct and control the injured servant, orders him to do an act not within the scope of the injured serv-low servant of the deceased, the circuit judge ant's employment, whereby he is exposed to danger not contemplated in his contract of service, and he is injured in so doing; or where the master has charged a servant or employé with the sole duty of providing proper materials and appliances for carrying on the work in which he is personally engaged, and a servant is injured by his neglect so to do, the master is held liable to the injured servant while acting under the orders of the superior sərvant. Gilmore v. Northern Pac. R. Co. 18 Fed. Rep. 8656.

charged the jury: "Now, what was the position of Captain Whitesides? He was a min ing captain. I think it appears from the testimony that he had the entire charge and control of the under ground work, and all the work generally of the mine, and that he employed and discharged men. Now, I charge you that Captain Whitesides, if he had this power delegated to him-to manage and control the mine-negligence on his part would be the negligence of the owners or managers of the mine.' This court, in considering that part of These rules are in line with the remarks of the charge, says: "Under this charge, and in Mr. Justice Cooley in Quincy Mining Co. v. view of all the facts, it was settled by the jury Kitts, 42 Mich. 39, though the learned justice, that Whitesides' position and power were as in finally deciding the case, held that Wag indicated by the judge. We are consequently ner did not stand, in respect to the company, to consider that he was intrusted with the in such position. It was, however, remarked management of the mine, without direction or by him that, when a servant demands from interference. He was not, in any true sense, his master compensation for an injury received a mere foreman or department leader or subin his service, it is necessary that he trace some chief, in a given sphere of the mining operadistinct fault to the master himself. The tions. His agency covered the entire mine, mere fact of such injury is no evidence of and his capacity and discretion dominated. such fault; neither is the mere fact that it re The defendant and his agent, Kirkpatrick, sulted from the carelessness of some other per- equally regarded him, and looked to him, as son in the same employment. The servant the one person to contrive and execute; and assumes all the usual risks of his employment, they were guided by his intelligence, not he and among these is the risk that fellow serv-by theirs. In respect to legal accountability, ants will sometimes be careless, and that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after unfitness or Many cases have been presented to this court negligence shall be discovered, and has been involving the questions as to who were and communicated to him. This duty of due who were not fellow servants, but in no incare in the employment and retention of com-stance has the question been presented under petent servants is one the master cannot re circumstances exactly like the present case; so lieve himself of by any delegation; and, if it that we must determine it upon its own pebecomes necessary to intrust its performance culiar facts, being guided by the rules here to a general manager, foreman or superinlaid down. Applying, therefore, the foregotendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the risk of his negligence. The same is true of the general supervision of his business. If there is negligence in this,

his negligence was the negligence of the defendant. The case is within the principle stated and recognized in Quincy Mining Co. v. Kitts, 42 Mich. 34."

ing rules, so far as the same can be made applicable to this case, is Light to be treated as a superior servant, for whose negligence, if any is shown, the defendant company can be held liable? He had general charge of the entire

length of about 150 miles of defendant's road, and had under his control all the section gangs along that line; and there is nothing in the record showing that Doyle, the general roadmaster, in any way interfered with him in the manner in which the work of that division was being conducted. He in fact controlled that entire division absolutely, so far as employing and discharging the men was concerned. The order came from Doyle to remove these poles, because they were to be taken to another division or branch of the same road. Doyle was not present at the time

RROR to the Circuit Court for Wexford
ER
County to review a judgment reversing a
judgment of a justice of the peace dismissing
a replevin suit because plaintiff's full Christian
name did not appear in the proceedings. Re-
versed.

The case sufficiently appears in the opinion.
Mr. I. C. Wheeler, for defendant, appel-

There is no provision for commencing or maintaining a suit where the name of the plaintiff is unknown, except in partnership cases, where, if the names of all of the several parties are unknown, suit may be commenced in the partnership name.

of the injury, and the fair inference is that
whatever power Doyle would have had, if
present, Light had like power, and represented
the defendant company as fully as Doyle would
have done. He did no manual labor himself,
but had the full oversight, care and manage-
ment of it. It is apparent that the business of
the railroad could not be carried forward with-lant:
out this division of labor and responsibility.
It was necessary that these beads of depart-
ments and divisions should be made, and
power delegated to each head. Under such
circumstances, and well-settled rules of law, it
must be held that Light represented the Com-
pany; and for his negligence, while in the line
of the duties so assigned and delegated to him,
the Company must be held responsible. It is
evident that the plaintiff and the other section
hands there looked upon Light as the respon-
sible head, from whom they received their
orders, and whom they were bound to obey,
or else they would receive their "red tickets,"
or discharges from their employment. Any
other rule than this would enable the master to
escape all liability, by parceling out his work
to different heads of departments or divisions,
and retiring from any management or control
of it; and the more he abandoned it to others
-the more he neglected it—the less would he
be liable.

When the master appoints a middleman with such powers as were delegated to Light in this case, or where the business is of such a nature that it is necessarily committed to agents, with full power to employ and discharge those acting under them, and full and absolute control of the work, the principal is liable. The master is in a position to select such middlemen and agents with care, and in regard to their fitness for the place, and is responsible for their negligence. Laning v. New York Cent. R. Co. 49 N. Y. 521; Malone v. Hathaway, 64 N. Y. 9.

For the errors pointed out, the judgment below must be set aside, with costs, and a new trial granted.

The other Justices concurred.

H. C. FISHER

V.

Charles E. NORTHRUP, Appt.

(....Mich.....)

How. Stat. § 6872.

The name of the plaintiff should be given in full, both the Christian and the surname.

Tiffany, Justice's Guide, pp. 25, 26; Franklin v. Talmadge, 5 Johns. 84; Roosevelt v. Gardinier, 2 Cow. 463; Milk v. Christie, 1 Hill, 102. Messrs. Pratt & Davis, for plaintiff, appellee:

The affidavit having been made and the writ issued in the name of H. C. Fisher, the presumption would be that that was his true name, until the question was raised, and the proof established the contrary by plea and abatement stating the true name.

Cowen, 1002; Tiffany, Justice's Guide, 4th ed. 29; Watson v. Watson, 47 Mich. 427; 1 Greene, Pr. p. 206; Fewlass v. Abbott, 28 Mich. 270.

If there was a mistake in the plaintiff's name, it was the duty of the justice to permit an amendment in harmony with the facts.

How. Ann. Stat. §§ 6817, 7631; Tiffany, Justice's Guide, pp. 28, 29, 161; Baldwin v. Talbot, 43 Mich. 12; Phelps v. Town, 14 Mich. 381; Van Sickle v. Kellogg, 19 Mich. 49; Webber v. Bolte, 51 Mich. 113.

Morse, J., delivered the opinion of the

court:

One Eli H. Salisbury made affidavit in behalf of plaintiff, and procured the issue of a writ of replevin against the defendant. The requisite bond was also filed. On the return day of the writ, Salisbury appeared for plaintiff. The defendant answered in person, and moved to dismiss the writ, because plaintiff's full Christian name did not appear in affidavit, writ or declaration. The justice returns that he asked Mr. Salisbury if he could amend, and insert full Christian name of H. C. Fisher, and Mr. Salisbury replied that he could not, as he

1. A motion in justice's court to dismiss did not know the full Christian name of said

NOTE.-Pleading; initial letters of name.

name; for example, that "C. B. & Q. R. R. Co." Courts cannot take judicial notice that a well-means the Chicago, Burlington & Quincy Railroad known railroad company is popularly known by Company. Accola v. Chicago, B. & Q. R. Co. 70 the initial letters of the words constituting its full Iowa, 185,

NEW JERSEY COURT OF ERRORS AND APPEALS.

Mingus v. Condit, 23 N. J. Eq. 313; De Witt v. Van Sickle, 29 N. J. Eq. 209; Basset v. Nosworthy, 2 Lead. Cas. in Eq. 82.

Not being a bona fide purchaser for value, he must take the property subject to the equities of respondent, which, being prior, take precedence.

Wheeler v. Kirtland, 24 N. J. Eq. 552; Kerr, Fraud and Mistake, 322; Basset v. Nosworthy, 2 Lead. Cas. in Eq. 45.

A mortgagor will not be permitted to commit waste upon the mortgaged premises to the extent of rendering them an insufficient security for the mortgage debt.

Coggill v. Millburn Land Co. 25 N. J. Eq. 87. Equity will redress the injury of past waste in favor of a mortgagee where he has no legal remedy. He may follow and take the part severed from the realty wherever he can find it.

Jones, Mortg. 453; Hoskin v. Woodward, 45 Pa. 42; High, Inj. § 481.

whereon the house was erected; that in Febru- | existing debt, without parting with anything ary, 1887, without his knowledge or consent; of value, is not entitled to the character of a Muench removed the dwelling-house to another bona fide purchaser for value. lot, about forty feet northward; that at the time of removal this other lot belonged to E. A. Armstrong, trustee for an association, who by deed dated July 29, 1887, conveyed the land to Muench, and Muench and wife, by deed dated August 3, 1887, conveyed to Henry Verner. He further claims that the removal of the house, the purchase and sale of the property, were fraudulent; that the security of his mortgage is thereby diminished; that it is still subject to the lien of his mortgage, and should be returned to the land described therein; that Muench has erected partly on the mortgaged lot of land a two-story frame building, used as a dancing hall and bowling alley, twenty-four feet in width and fifty-eight feet in length, and the part thereof erected on the mortgaged premises is four feet in width and fifty-eight feet in depth; that other persons claim building liens on the building, and the lot whereon it stands; and the title to the land on which the building is erected, adjoining the mortgaged land, is now in other parties. He also sets forth that the lot of land, without the building, is worth about $250, and inadequate to secure and raise the amount of his mortgage; and that Muench is insolvent. He therefore prays a foreclosure and sale of the mortgaged premises, that Muench and Verner may be decreed to return the frame dwelling-house to and upon the lot of land described in this mortgage, and that they may be restrained from conveying or creating any lien on the same. The defendant Verner denies all fraud; claims to be a bona fide purchaser for full value, and without notice of complainant's mortgage, or of the removal of the dwelling house from the mortgaged premises. Upon the proofs taken, a decree was made that, unless Verner pay the complainant's debt and costs within twenty days, a receiver be appointed to take charge of the dwelling-house, and move it back to the lot whence it was removed, and that the mortgaged prem-tended over on the lot of land from the adjoinises be sold to satisfy the debt secured by the mortgage, with other incumbrances, and costs. The defendant Verner appeals from this de

cree.

Mr. John W. Wartman for appellant.
Mr. William S. Casselman, for respond-

ent:

A purchaser who has obtained a legal title as a mere security for, or payment of, a pre

Falls Co. 41 N. H. 16; Blake v. Williams, 36 N. H. 40; Ladd v. Wiggin, 35 N. H. 421; Johnson v. Brown, 31 N. H. 405.

As against the mortgagee he is the absolute owner for all purposes except the security of the mortgage debt. Morrison v. Manchester, 58 N. H. 560; Smith v. Moore, 11 N. H. 55; Glass v. Ellison, 9 N. H. 69.

Protection of mortgagee.

The court will see to it that the rights of the parties are secured and protected, and will give direction to the proceedings accordingly. Van Doren v. Dickerson, 33 N. J. Eq. 392; Lansing v. Goelet, 9 Cow. 361; Ellis v. Craig, 7 Johns. Ch. 7; Lyman v. Sale, 2 Johns. Ch. 487; Campbell v. Macomb, 4 Johns. Ch. 534; American L. & F. Ins. & T. Co. v. Byerson, 6 N. J. Eq. 9.

Equity will complete the remedy by a return thereof to the realty. Jones, Mortg. 453.

Scudder, J., delivered the opinion of the court:

The exact form in which this decree is made for the removal of the house back to the mortgaged premises from which it was taken is, so far as my examination of the authorities has gone, without precedent; but this may be not objectionable, if, in administering equitable relief, it be found necessary to apply a remedy which is unusual. The design of the bill is to restore to the mortgagee his security, which he alleges has been taken from him by the severance of the dwelling-house from the land covered by his mortgage, and its annexation to land owned by another. The defense is that the house was removed on another lot, to make room for a larger building which was to be ex

ing premises; that the defendants acted in good
faith; that the complainant had notice, and, if
he did not consent, did not object; that a full
money consideration was paid, without any
actual notice of the lien of the mortgage on the
land from which the building was removed,
and that the defendant Verner, who appeals,
is a bona fide purchaser of the building.
facts are not as fully proved as they might have
been, and are thus likely to mislead the court.

The

A mortgagee will have the security of his lien protected by injunction. Emmons v. Hinderer, 24 N. J. Eq. 39; Brady v. Waldron, 2 Johns. Ch. 148; Pasco v. Gamble, 15 Fla. 566.

A mortgagee may sue for damages for permanent injury impairing his security, as for flowage from a reservoir maintained by a municipality; and settlement in good faith by arbitration is binding on the mortgagor. James v. Worcester, 2 New Eng. Rep. 354, 41 Mass. 351.

A purchaser of land subject to a mortgage, who removes a building therefrom to other lands belonging to him, thereby rendering the security inadequate, is guilty of waste, and is liable, in case of deficiency, for the value of the building so removed. Edler v. Hasche, 67 Wis. 653. See note to Cook v. Cooper (Or.) 7 L. R. A. 279.