the maxim, "interest reipublicae ut sit finis litium." "It is for the public good," says Mr. Brown, "that there be an end of litigation, and if there be any one principle of law settled beyond all question it is this, that whensoever a cause of action, in the language of the law, transit in rem judicatum, and the judgment remains therein in full force and unreversed, the original cause of action is merged and gone forever." Broom Legal Maxim. "It is not only final," said Radcliffe, J., "as to the matter actually determined, but as to every other matter which the parties might have litigated in the cause, and which they might have had decided. The reasons in favor of this extent of the rule appear to me satisfactory; they are found in the expedience and propriety of silencing the contention of the parties and of accomplishing the ends of justice by a single and speedy decision of all their rights. A judgment by default is attended with the same legal consequences as if there had been a verdict for the plaintiff. There exists no solid distinction between a title confessed and one tried and determined." Freem. Judg. and note. "So the neglect of a defendant to answer, and a decree pro confesso, are equivalent to an admission of the allegations of the bill as to all parties against whom such a decree passes." 6 Wait Act. & Def. 771; Brummagim v. Ambrose, 48 Cal. 368. "The judgment is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation, within the purview of the original action, either as a matter of claim or defense." Miller, J., in Jordan v. Van Epps,85 N. Y. 427; see also Barrett v. Failing, 8 Oreg. 152; Bloomer v. Sturges, 58 N. Y. 168; Embury v. Conner, 3 id. 512. Nor is it any objection that "the former suit embraced more subjects of controversy, or more matter than the present; if the entire subject of the present controversy was embraced in it, is res adjudicata. No man is to be twice vexed with the same controversy." Biglow v. Windsor, 1 Gray, 302; Tioga R. v. Blossburg R., 20 Wall. 137. Neil v. Tolman. Opinion by Lord, J. [Decided May 19, 1885.]

OHIO SUPREME COURT COMMISSION AB

STRACT.*

NEGLIGENCE-INFERENCE BOTH WAYS-MININGSUPPORTS FOR ROOF.—(1) Where there is evidence tending to prove negligence on the part of the defendant, and also evidence from which the proper inference to be drawn as to fault on the plaintiff's part is doubtful, it should be submitted to the jury to determine whether the plaintiff was injured by his own fault or that of the defendant. Stockstill v. D. & M. R. Co., 24 Ohio St. 83. (2) A contractor agreed with the owners of a mine to do certain work therein, the owners engaging to furnish and put up such props and supports for the roof of the mine as would render the miners secure, whenever notified by the contractor that the same were necessary. Held, that although such notice from the contractor may not have been received by the owners, the owners, if they had actual knowledge that such supports were necessary, became liable in damages to an employee of the contractor, who without negligence on his own part had been injured while at work in the mine through the want of such supports for the roof. Coughtry v. Globe Woolen Co., 56 N. Y. 124. Kelly v. Howell. Opinion by Dick. man, J.

*To appear in 41 Ohio State Reports.

NEGOTIABLE INSTRUMENT-CO SURETY-CONTRIBUTION.-Renick, the principal maker of a promissory note, desiring to have the same renewed, applied to the sureties thereon, who claimed to have a defense to the note, and who declined to renew, except as sureties for Crouse, if he would go on the paper. Afterward Renick obtained the signature of Crouse, a new surety, on the representations upon which he relied that it was a renewal, and that the former sureties would sign as his co-sureties. Thereupon Renick handed the note to the former sureties, who signed, stipulating as sureties for Crouse without his knowledge, and without any inquiry or information as to the circumstances under which he signed. Held, the stipulation is ineffective, and the sureties are co-sureties. Craythorne v. Swinburne, 14 Ves. 160; Oldham v. Brown, 28 Ohio St. 41. Crouse v. Wagner. Opinion by Martin, J.

VERMONT SUPREME COURT ABSTRACT.*

PLEDGE-GUARDIAN-WARD'S BONDS-BANK-BONA FIDE PURCHASER.-A former guardian of the plaintiff's ward pledged to the defendant bank, to secure his own note, two negotiable bonds owned by the ward, on which bonds was an indorsement tending to show the ward's ownership, and which was seen by the cashier at the time of the negotiation. Held (1), that the defendant was not entitled to the protection of an innocent purchaser; that it was put upon inquiry, and that it was not sufficient to only inquire of the guardian; (2) that the plaintiff could recover the bonds in an action of replevin; (3) that the settlement of the guardian's account in the Probate Court did not affect the title to the bonds. Laughlin v. Baxt. Nat. Bank. Opinion by Powers, J.

ATTACHMENT-CHANGE OF POSSESSION-FRAUD IN LAW-AGENT-BAILEE.-The plaintiffs sold on credit four chests of tea and one barrel of molasses to B., which were delivered and kept in B.'s grocery store. Soon after B. sold his grocery business and lease of the store to G., excepting the tea and molasses, which were to remain where they were, B. having control of them. In a short time the plaintiffs repurchased the tea. etc.,and entered into an arrangement withG.to keep the same for them in said store. Subsequently G., without the knowledge of the plaintiffs, sold and gave possession to P., and falsely represented to him that B. was the owner. B., as a favor to the plaintiffs, packed the goods to be reshipped to them, and with their agent had tried to sell the same; but after the repurchase had never exercised acts of ownership. The goods, while in P.'s possession, having been attached by B.'s creditor, held, that there was a sufficient change of possession; that G. was the agent of the plaintiffs, and as such held the goods for them; that P., although a bailee, was a stranger to the title, and any erroneous information given to or by him could not affect the rights of the plaintiffs. Barney v. Brown, 2 Vt. 374; Spaulding v. Austin, id. 555; Wing v. Neabody. Opinion by Walker, J.

HOMESTEAD-WIDOW-R. L., § 1894.-One cannot have a homestead in mere land; nor in land with no buildings but a barn on it; a dwelling-house. owned, used or kept by the housekeeper as a home for himself and family is the first essential of a homestead: thus the defendant's husband, living with her in her house, and owning land contiguous to that of his wife, mortgaged the same without her joining in the deed. A barn was the only building on his land, which land he used in connection with his wife's house as a home for his family. On a foreclosure, held, that the husband *To appear in 57 Vermont Reports.

never had a homestead in his land; and that therefore his widow could not hold oue in it. lu Mills v. Estate of Graut, 36 Vt. 269, it was held that "the object of the exemption is to create a charge upon specific premises, consisting of a house and land, for the support and maintenance of the wife and family of the housekeeper, not subject to be defeated by his separate conveyance or by attachment or levy of execution on his debts." Rice v. Rudd. Opinion by Walker, J.

REPLEVIN

VOLUNTARY ORGANIZATION- TENANTS IN COMMON. The parties to the suit had been members of a band, formed by voluntary association, which divided into two factions. Each organized a new band, and acted under new by-laws, the plaintiffs retaining the name of the old band, and defendant's faction assuming a new name. Held, that the old organization was abandoned, and that the plaintiffs had no authority to act as its trustees; that they could not maintain replevin against the defendants to recover the common property, as the parties are tenants in common. Hewitt v. Hatch. Opinion by Rowell, J.

ABSENCE FROM THE

STATUTE OF LIMITATIONS STATE. A temporary absence does not arrest the running of the statute so long as a residence is retained in the State; thus the defendant, having a residence here, and leaving his family here, went into New York and was absent several years for business purposes, without intending to acquire a new residence or to abandon the old one. He was frequently here with Lis family, and his presence could have been easily ascertained; but his wife was with him in New York a small portion of the time; they kept house there one winter; he paid taxes there, and voted there once. Held, that the running of the statute was not arrested. Rutland Marble Company v. Bliss. Opinion by Royce, C. J.

MAINE SUPREME JUDICIAL COURT ABSTRACT.

EVIDENCE-CHARACTER FOR CAREFULNESS.-The intestate's sleigh collided with a train at a railroad crossing. He thereby received an injury, and very Soon afterward died. He never was conscious enough after the injury to tell how the accident happened. No one was with him at the time. No one saw him at the moment of the collision. As evidence that he could not have been guilty of any negligence which contributed to the accident, witnesses who had been his neighbors for some time were permitted to testify to their opinion of his general character for carefulness. We think this was overstepping the limit allowed to collateral evidence in this State. Our belief is that such a rule would be fraught with much more evil than good. The question is not a new one in this court. The sole question considered in the case of Scott v. Hale, 16 Me. 326, was whether similar evidence was admissible. The defendant there was sued for damages for the loss of a building by fire, the allegation being that the fire was occasioned by the negligence of the defendant. In that case the same arguments were presented as here. The evidence received in that case came nearer the point at issue than the evidence here. At the trial the court permitted witnesses to testify that the defendant was very careful with fire, and that they never discovered any carelessness in him about taking care of his fires during the time they were at his house just before the event complained of. It was held that this evidence was inadmissible, and the verdict was set aside. The same rule has been maintained in subsequent cases. Lawrence v. Mt. Vernon, 35 Me. 100; Dunham v. Rackliff,

71 id. 345. The case of Morris v. East Haven, 41 Conn. 252, cited by the defendants, is an especially pertinent and sustaining decision. See Baldwin v. Railroad, 4 Gray, 333; Eaton v. Telegraph Co., 68 Me. 63. Chase v. Maine Cent. R. Co. Opinion by Peters, C. J. [Decided Jan. 19, 1885.]

80.

NEGLIGENCE-FAILURE TO LOOK AND LISTEN-LAW OF THE ROAD-ABSENCE OF FLAGMAN.-The rule is now firmly established in this State, as well as by courts generally, that it is negligence per se for a person to cross a railroad track without first looking and listening for a coming train, if there was a chance for doing State v. Maine Central, 76 Me. 357. •No neglect of duty on the part of a railroad company will excuse any one approaching such a crossing from using the senses of sight and hearing, where these may be availExable." 1 Thomp. Neg. 426, and cases in notes. perience has taught men that there are and can be no safeguards against injuries at railroad crossings nearly as efficacious as to look and listen for an approaching train. In Continental Imp. Co. v. Stead, 95 U. S. 161, the law of the road is expressed as follows: "Of course these mutual rights (of railroad and traveller) have respect to other relative rights subsisting between the parties. From the character and momentum of the railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. The train has the preference and the right of way. But it bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way." In Pierce on Railroads, 342, it is said: "The obligations of the company and of the traveller are mutual and reciprocal, and the same degree of care to avoid a collision is incumbent on each. It is the duty to give the warnings required by the statute, or in the exercise of ordinary care, and it is his duty to have his attention alive to them and to heed them. The company, having a fixed place of movement and a particular momentum, has the right of precedence in crossing highways, and he must wait till the train, the coming of which he knows, or ought to know, has passed." In Whitney v. Railroad, 69 Me. 208, Virgin, J., says: "On account of the motive power used by railroads, and the difficulties attending its management, and the noises incident thereto, the statute has prescribed means particularly adapted to give notice of the approach of a train, the object being to warn all persons of such approach in season to enable them to stop at a safe distance, and thus avoid the risk, not only of collision, but also of alarm to horses." For the defense, it is contended that the plaintiff could not give in evidence the fact of a failure to station a flagman at the crossing, because no such ground of recovery is alleged in the writ. It need not be alleged. Neither the statute nor any municipal proceed. ings imposed such a requirement at the place in question. Therefore a failure in that regard would not constitute negligence per se negligence in law. If the jury found that such a caution was indispensable, its omission would be at most only evidence of negligence, one circumstance to be taken in connection with all other circumstances upon the main or central question whether the defendants at the particular time and place prudently managed their road. Thomp. Neg. 419, and cases; McGrath v. Railroad, 63 N. Y. 528; Com. v. Railroad, 101 Mass. 201; Houghkirk v. D. & H. Canal Co., 92 N. Y. 219; S. C., 44 Am. Rep. 370. Leasan v. Maine Cent. R. Co. Opinion by Peters, C. J.

[Decided Jan. 26, 1885.]

1

INSURANCE LAW.

FIRE-MISDESCRIPTION WAIVER-WRITTEN ASSENT.-The plaintiffs made their application through one Holman, believing him to be the agent of the company. He assumed to act as its agent, wrote the application, sent it to the company with his name as its agent upon it; the company received it, acted upon it, issued the policy in pursuance of it, wrote Holman's name upon the back of it, sent it to him for delivery, and received the premium through him. Thsreupon the presiding justice ruled that Holman was the agent of the company. The testimony showed that the application contained a misrepresention as to the contiguity of other buildings; and that an alteration of the building insured was afterward made, causing a material increase of the risk. Holman knew of the misdescription in the application written by him, and that the alterations were made with his knowledge and consent. Whereupon the presiding justice ruled, that notwithstanding the misdescriptions, the company was bound; and that Holman's verbal consent to the alterations were obligatory upon the company under the statute. We perceive no error in these rulings. To be sure the mere fact that Holman signed the application as agent was not enough ta show him to be the company's agent. Campbell v. Mon. F. Ins. Co., 59 Me. 430. The defendant could not prevent such an act on his part done in his absence. But that fact, carried home to the company's knowledge by sending to it the application with his assumed official signature thereon, combined with its subsequent acts, including the indorsing of his name on the policy, might well be construed by the plaintiffs as an official recognition of his assumed character at common law, but also to bring his authorization within Rev. Stat., ch. 49, § 18. Dunn v. G. T. Ry., 58 Me. 187; S. C., 4 Am. Rep. 267; Ins. Co. v. McCain, 96 U. S. 84. The company could doubtless have written assent to the material alterations. Adams v. McFar. lane, 65 Me. 152; Wood v. Poughkeepsie Ins. Co., 32 N. Y. 619. In the absence of any known restrictions of authority the agent could do the same. It is common knowledge that the authority of an agent comprises not what is expressly conferred, but also as to third persons, what he is held out as possessing. Hence the principal is frequently bound by the acts of his agent performed in excess or even in abuse of his actual authority; but this is only true as between the principal and third persons, who believing, and having a right to believe, that the agent was acting within the scope of his authority, would be prejudiced if the act was not considered that of the principal. Barnard v. Wheeler, 24 Me. 412, 418; Clark v. Metropolitan Bank, 3 Duer, 248. This doctrine is established to prevent fraud, and proceeds upon the ground that when one of two innocent persons must suffer from the acts of a third, he shall sustain the loss who has enabled the third person to do the injury. Story Ag., § 127. Of course when restriction of authority is brought home to the knowledge of those with whom he deals, his acts in excess of such restricted authority will not bind the principal. Ins. Co. v. Wilkinson, 13 Wall. 222. Thus where one of the express conditions of a policy was that "no officer, agent, or representative of the company shall be held to have waived any of the terms and conditions of the policy, unless such waiver shall be indorsed hereon in writing," it was held that this limitation of power of the agent to waive the conditions was brought to the knowledge of the insured by the policy itself, and any attempted waiver otherwise than therein stipulated was not binding upon the company. Walsh v. Hartford F. Ins. Co., 73 N. Y. 5, 9, There is no such clause in the policy now

-KNOWLEDGE OF AGENT

before us. Sup. Jud. Ct. Me., March 5, 1885. Packard v. Dorchester Mut. Fire Ins. Co. Opiniou by Virgin, J. (1 East Rep. 138.)

NEW BOOKS AND NEW EDITIONS.

VON HOLST'S CONSTITUTIONAL HISTORY. In these two volumes Dr. Von Holst, continuing his great work, reviews the political affairs of our country from 1850 to 1856, embracing the compromise of 1850, the Kansas-Nebraska bill, and Buchanan's election; a period of vast importance, indeed, the most fateful years of our republic. The book is one of intense interest, but on the whole we see no reason to change the opinion we expressed of the first volumes, in 20 Alb. L. J. 60, that the author lacks the judicial calmness essential to a constitutional historian. Not that the work is any less interesting on that account. It is as interesting as a novel. But it is the work of a zealous (we think right-minded) advocate, like Macaulay, rather than of an unfeeling and impartial judge, like Hallam. The author's zeal sometimes leads him to offend against good taste. The work is published by Callahan & Co., of Chicago.

IT

NOTES.

T is seventy years since Thibaut and Savigny marshalled the opposing hosts of learned Germany in the great contest as to the desirability of codification. A similar debate now divides the jurists of New York, and it rages round a practical question. In accordance with a provision of the State Constitution, Mr. D. Dudley Field and others were appointed in 1847, and again in 1857, as commissioners to codify the whole law of the State. Of the five Codes prepared by these gentlemen, the Code of Civil Procedure, the Penal Code, and the Code of Penal Procedure have become law. The Civil Code has twice passed the Legislature, but has been vetoed on each occasion by the governor. It has lately been brought forward, and on the 9th of April was read in the Assembly a second time by 62 votes to 35. The lawyers of the State are, it seems, as a body, opposed to the Code, indeed to any Code, and Mr. Carter's pamphlet has been written at their request. Mr. Fowler writes on the other side, and his pamphlet has been widely circulated by a committee, which apparently represents the views of an important minority of the profession, as well as those of the lay public. Quite apart from the merits of Mr. Field's Code, Mr. Fowler appears to us to have the best of the argument. He slays once more, secumdum artem, many an objection to codification which one might have supposed had long since been finally disposed of. The relation of a Code to the common law is well described in the following passage: "What the lawyer does in his daily practice the codifier does on a larger scale; both seek for the law in the reports, but in the reports unfortunately burdened with the scholia of the text-writers and with the wearisome utterance of many a commonplace or undiscriminating official. When the codifier has found these laws he lodges them between single covers, that common people, and not logicians and experts alone, may better apply them to the myriad, shifting phases of human affairs."-Law Quarterly Review. -The Albany Evening Journal says: "The attorney-general is of the opinion that section 164 of the Revised Statutes is completely repealed." This is startling but vague.

The Albany Law Journal.

ALBANY, AUGUST 22, 1885.

CURRENT TOPICS.

T is hoped that all our readers have read Judge

I andrews admirable address on Judge Folger,

which we printed in full recently. Lest all may not have done so we desire to call special attention to his remarks on our law-making judges, than which we have seldom seen any thing more excellent. He says: "Judge Folger, as I have intimated, had the doubting conservative spirit in dealing with legal questions, and I venture to say that this is one of the best equipments for a judge. The originating quality of genius, rare and estimable as it is, is least suited to the judicial function. Scarcely more fitting is the innovating spirit, which hesitates at no change, with no reverence for the past or respect for authority. I recognize the debt of gratitude the world owes to men of extreme notions, striving for what may have been an unattainable ideal; those who, impatient of the wrongs which afflict society, pursue with the energy of passionate conviction, a single purpose, ready to destroy every institution, however hoary with age, or inwrought into the habit of society standing in the way of its attainment. They are the pioneers and prophets of progress, and it frequently happens that in the end, by their persistent energy and enthusiasm, they force upon society and government a recognition of political and social wrongs, and of the necessity of applying a remedy. But on the whole the most useful judge is the one who seeks to do justice according to established rules, who contents himself with searching to find out what has been decided, and if he finds a fixed rule, to follow it. Law, it is true, is an organism, and has the elements of growth, adaptation and improvement, and there is sometimes scope for great abilities in adapting and improving it." After adverting to the great examples of Lord Mansfield and Chief Justice Marshall, he continues: "But the principle that a judge should not undertake to make the law, but only to declare it, is of the utmost importance. Precedents become rules of property and the muniments of personal rights. The certainty of a rule is often of more consequence than the reason of it. No man,' said Sir William Jones, 'who is not a lawyer, would ever know how to act, and no man who is a lawyer would in many instances know how to advise, unless courts were bound by authorities firmly as Pagan deities were supposed to be bound by the decrees of fate.' There doubtless may be a too blind and servile adherence to precedent, but an original judge is the most dangerous of all judicial characters." We fully assent to the statement italicized by us. We would however have the judges excused from adhering to stupid, inconvenient and absurd preceVOL. 32-No. 8.

dents, by legislative amelioration. In short, we would have our laws made by the proper law-making power, the Legislature, rather than by the administrative power, the bench. We hope that Judge Andrews will stay on the bench, and continue to afford a shining example of the discreet and able magistrate, and not be seduced into the thorny and dangerous paths of politics. He can do the State more good where he is than in the governor's chair, and we hope he will lay to heart the pitiful example of the noble man whom he eulogized.

Our recent contributor, "M. H.," in his article on "The Law's Delays," attributes the failure of the Court of Appeals always to follow its own decisions to "the fact that the court is overtasked." Another contributor now suggests that "perhaps the court takes the view expressed in a recent case in the English Court of Appeals by Brett, M. R., that there is no law, either at common law or by

statute, by which a court is bound by a former judgment of its own,'" The Vera Cruz, 5 Asp. Mar. L. C. 272.

That the Illinois Supreme Court agree with this opinion is evident from the case of Chicago, etc., R. Co. v. Hans, 111 Ill. 114, holding that a railroad company is not bound under the statute to fence its road at a station. Scott and Walker, JJ., dissented, on the ground that the court had decided the contrary in Chicago, etc., R. Co. v. Dumser, 109 Ill. 402. In the Hans case the prevailing opinion said of the Dumser case: "We hold therefore that the railroad company was not bound to fence in its road at a station. The contrary doctrine is not established by the case of Chicago, Milwaukee and St. Paul R. R. Co. v. Dumser, 109 Ill. 402. The judgment in that case was properly affirmed, as the railway company had failed to fence its road at the point where the animal got upon its track and was killed, that point being some distance from its depot or station. It was not necessary in that case to decide that the company was derelict in duty in failing to fence its track at the depot, where it received and discharged passengers and freights." In his dissenting opinion, Scott, J., who wrote the prevailing opinion in the Dumser case, said: "I dissent in toto from this opinion, and for an expression of my views on the questions involved reference is made to the opinion of this court in Chicago, Milwaukee and St. Paul R. R. Co. v. Dumser, 109 Ill. 402. The same section of the statute was construed in that case, and was directly involved. It is so stated in the opinion of the court, and no one expressed any dissent from that statement." And yet in the Dumser case Schofield, Dickey and Craig, JJ., refused to concur, to the extent that this opinion may be regarded as holding that the law imposes the obligation upon railroad companies of fencing their tracks" at stations. We give it all up, and we turn the court

แ

over to the tender mercies of that merciless critic, Mr. Gilbert.

We think that the "editorial notes" of The Independent can hardly be the work of our accomplished legal-theological Doctor Spear. We find it there stated that "the Supreme Court of Texas recently set aside the verdict of a jury and granted a new trial, because the lawyer on one side soundly abused the client on the other side when summing up the case before the jury. This, as a reason for granting a new trial, is decidely a new idea in the jurisprudence of this country." This is a very common reason for new trials. A great many instances are pointed out in a note in 48 American Reports, 337. For example, in a case in 28 American Reports, 338, a new trial was granted because counsel for the plaintiff likened the defendant to the upas tree, shedding pestilence and corruption all around him." In another case, 49 American Reports, 826, a new trial was granted because counsel alluded, in summing up, to the applause which his opening had elicited from the audience, as a "spontaneous burst of approval.". It is necessary for lawyers to be civil and modest.

We shall give in full next week the report of the committee of the American Bar Association on the Delay and Uncertainty in Judicial Administration. It will require a great deal of space, but it is full of interest, and it is a most important topic, both for suitors and for lawyers.

IN

NOTES OF CASES.

'N Field v. Field, 15 Abb. N. C. 434, General Term, First Department, where a final decree had been made in an action for divorce on the ground of adultery, directing the payment of alimony by the defendant during the life of the plaintiff, held, that the obligation to pay such alimony was a personal one, and upon the death of the defendant the right to the same was at an end, and no action could be maintained by the wife against the representatives of the husband's estate for alimony which might subsequently accrue. Brady, J., said: “In Francis v. Francis, 31 Gratt. 283, it was said that alimony was a proportion of the husband's estate allowed to the wife for maintenance and support during the period of their separation, and ended with the death of either. also Gaines v. Gaines, 9 B. Monr. 299; Wallingsford v. Wallingsford, 6 Har. & J. 485, for similar views. Burr v. Burr, 10 Paige, 20, affirmed. 7 Hill, 238, is not in conflict with these views." In Miller v. Miller, 64 Me. 484, it was held that a decree made in a divorce suit that the mother shall have the care and custody of her minor children, and that the father shall pay a certain sum quarterly toward their support, which by its terms is to continue in force till the further order of the court,

See

is not discharged by his death; and a bond given to secure the performance of such a decree is binding upon the surety, notwithstanding the death of the principal obligor. See also Beach v. Beach, 29 Hun, 181; Carson v. Murray, 3 Paige, 483.

In Randlette v. Judkins, Maine Supreme Court, February 13, 1885, 1 East. Rep. 129, it was held that a railroad conductor who permits a passenger to travel on his train, taking with him goods known by the conductor to be stolen, is not liable to an action therefor by the owner of the goods. The court said: "The main question is whether the defendant is liable for permitting the four men to travel over the road with the property as their baggage, upon the facts averred in the declaration. If liable, upon what grounds does the liability rest? It is not claimed that there was a privity of contract between the plaintiffs and defendant, by reason of which the defendant owed any duty to the plaintiffs. Did the defendant owe the plaintiffs any duty as conductor of the train or otherwise? If not, he cannot be liable for a negligent performance or omission of it. 'A legal duty is that which the law requires to be done or foreborne, to a determinate person, or to the public.' Whart. Neg., § 24. No such duty on the part of the defendant is averred, unless the law implies it from the facts alleged. The defendant was conductor of the train. As such it was his duty to direct and control the running of the train in accordance with the regulations prescribed by the corporation and the requirements of law. The railroad is a public highway, over which all members of the public who are in a proper condition to travel in a public car, who pay the established fare, and conduct themselves properly, have a legal right to travel with luggage. It is the legal duty of the conductor to permit all such persons to enter the cars and travel over the road. For sufficient cause he may stop the train and eject a traveller from the train. He owes no legal duty to the public to stop his train and eject a traveller who is guilty of a felony; or to arrest such traveller and hold him as a prisoner, and seize the property he may have in his possession. As a citizen he may have the right, if he see fit, to arrest a traveller guilty of a felony and hold him till he can be properly prosecuted; but not being an officer, charged with the duty and having no legal warrant therefor, he is under no legal duty to do so, and thereby take upon himself the burden and hazard of justifying his act. Nor does he owe any duty to any member of the public to arrest a thief and seize and hold the stolen property he may have in his possession. Or to seize and hold for the owner, whoever he may be, goods which a traveler on the road may have taken and is carrying away as a trespasser. At most, under the plaintiffs' averments in this case, the four men were mere trespassers, carrying away the plaintiffs' property, the defendant having no authority from the plaintiffs to interfere with the property in any way.