light company and upon its stockholders; and the latter can not, as we said when the injunction asked for was denied, afterward draw the litigation into a federal court in a suit between themselves and the litigants in the State court. If this could be done there would be no end to a suit against a private corporation so long as any stockholder should see fit to re-litigate the same controversy in his own name.

The exceptions to the answer are disallowed.

Ordered accordingly. Chaffin vs. City of St. Louis.-Central Law Journal.

SUPREME COURT OF MICHIGAN.

Loss OF BAGGAGE CARRIED FREE.

June Term, 1877.

1. ACTION.-Damages for the loss of baggage can not be recovered in assumpsit against the carrier, if the baggage was carried free. An action of tort, however, will lie for negligent loss.

2. FREE BAGGAGE.-A railway company carrying baggage free is held to no greater diligence than any other gratuitous bailee.

3. FREE CARRIAGE OF PERSONS.-Public policy requires that common carriers should exercise the same extreme care in carrying persons free as in carrying them for hire.

COOLEY, C. J., delivered the opinion of the court.

The manner in which this case is submitted makes the record present substantially this question: Whether, in the court below, there was any evidence tending to prove the plaintiff's case? The action was begun in a justice's court, and the declaration is as follows:

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Saginaw County, ss. John B. Weir, plaintiff herein, complains of The Flint & Pere Marquette Railway Company, defendant herein, in a plea of trespass on the case upon premises; for that whereas the said defendant, before and at the time of the delivery of the goods and chattels to said defendant, as hereinafter mentioned, was, and from thence hitherto hath been and now is, a common carrier of passengers and baggage, and goods and chattels, for hire, to and from Detroit, in the State of Michigan, to East Saginaw, Jackson Landing, and Saginaw Railroad Crossing, and Saginaw City, in the State of Michigan; and as such common carrier, the said plaintiff, on the 9th day of November, A. D. 1875, took passage on the railway and cars of said defendant, from Grand Trunk Station, in the county of Wayne, to Saginaw, in the county of Saginaw; and did then and there deliver to said defendant, and the said defendant then and there accepted and received of and from the said plaintiff, certain goods and chattels of the said plaintiff, to wit: One trunk, one silk-finished dressing-gown, etc. [naming several other articles], of great value, to wit, of the value of three hundred dollars, to be safely and securely carried and conveyed by the said defendant from Grand Trunk Junction, aforesaid, to Saginaw, aforesaid, and then, to wit, safely and securely to be delivered to said plaintiff, for certain reasonable hire and reward paid to sai defendant in that behalf, and the said defendant, then and there, in consideration of said hire and reward, undertook and faithfully promised the plaintiff

to safely and securely carry and convey the said plaintiff and said goods and chattels from Grand Trunk Junction, aforesaid, to Saginaw, aforesaid, and to take good and proper care of said goods and chattels, and in and about the carriage and conveyance of the same and the delivery thereof as aforesaid ; yet the said defendant, not regarding its said promise and undertaking in that behalf, did not safely and securely convey and deliver the said goods and chattels to the said plaintiff, but so carelessly and negligently conducted itself, with respect to said goods and chattels, that by and through the negli gence, carelessness, and improper conduct of said defendant and its servants in that behalf, the said goods and chattels being of great value, to wit, of the value of three hundred dollars, became and were wholly lost to the said plaintiff, to wit, at Saginaw, aforesaid; by means whereof the said plaintiff hath sustained damages in the sum of three hundred dollars, which said sum of money the said defendant there, to wit, at Saginaw, aforesaid, undertook and promised to pay the said plaintiff," etc.

The evidence was put into the case by stipulation, and, in the main, the facts are undisputed. It appears that the plaintiff took passage upon the cars of the defendant, from Detroit to Saginaw, and that he had with him a trunk which he avers contained the articles of personal property described in the declaration. This trunk had been lost, but whether through any fault of the railway company is in dispute. It is, however, shown, by the sheriff himself, that both he and his trunk were being carried, not for hire and reward, but gratuitously. There was, consequently, no contract for carriage by the railway company, and this action, which is in assumpsit, can not be maintained. Nolton vs. Western R. R. Company, 15 N. Y., 444, 446.

There can be no question that a railway company which receives property for a gratuitous carriage, assumes, like any other gratuitous bailee, certain duties in respect to it, and that a suit will lie for a failure to perform these duties. But the obligation in such cases is quite different from the obligation of a bailee, who, for a consideration, received or promised, undertakes to carry or to perform any other service, with respect to the subject of the bailment. In the latter case, the terms of the contract, if an express contract 'was made, will be the measure of the duties performed, and, in the absence of any express contract, the law itself will impose upon the bailee a higher degree of care and watchfulness than it demands from him who, for the mere accommodation of the bailor, undertakes the charge of his goods. The gratuitous bailee must not be reckless; he must observe such care as may reasonably be required of him under the circumstances; but it is not the same care which is required of the bailee, who for his own profit assumes the duty. This is elementary, and is so reasonable that it requires no discussion. When care is bargained for and compensated, something is expected and is demandable beyond what can be required of him who undertakes a merely gratuitous favor.

Reliance is placed by the plaintiff upon certain cases which are supposed to have decided that the obligation of a railway company to carry safely is unaffected by the fact that no fare was paid. None of them so decides. Todd vs. Old Colony, etc., R. R. Co., 3 Allen, 18, was an action for an injury to a person who was riding without payment of fare. The court recognized

the obligation of the carrier to observe due and reasonable care, but expressly said that it did not appear that the facts proved at the trial rendered it material to consider whether a less degree of care was demandable than in cases where fare is paid. In Nolton vs. Western R. Corporation, 15 N. Y., 444, 450, which was an action for injury to a mail agent, carried on the cars under contract with the Government, it is said that "the matter of compensation may have a bearing upon the degree of negligence for which the company is liable,” but no decision on that point became necessary. In Perkins vs. N. Y. Central R. R. Co., 24 N. Y., 196, the question was how far it was competent for a carrier of persons to contract for an exemption from liability for injuries caused by negligence. Incidentally it was remarked (p. 200) that a carrier undertaking to carry one gratuitously "must do it carefully, as with other passengers." By this we understand that, as in other cases, they must carry with care; not necessarily that they must carry with the same degree of care as in other cases. The court does not even by dictum go so far as that. In Ohio & Miss. R. R. Co. vs. Selby, 47 Ind. 471, the action was for a personal injury, and it was found by the court that the plaintiff was being carried for hire. In Jacobus vs. Paul R. R. Co., 20 Minn. 125, Cent. L. J., which also involved the question of the right to contract for exemption for liability from injuries arising from negligence, there is a doctrine that "the same extreme care is required," where a passenger is carried gratuitously as in other cases. For this the cases already referred to are cited as authority, and also the two which follow: Philadelphia & Reading R. R. Co. vs. Darby, 14 How. 468. In this case the jury found the injury to have been the result of gross negligence, and the court (p. 485-6), expressly decline to express any opinion, whether the care demandable by one who is being carried gratuitously is the same that is due to those carried for hire. Steamboat New World vs. King, 16 How. 469. same remark may be said of this case as of the last.

The

But we do not care to comment upon these cases, or to say more of them than this: that the right of recovery in each of them where the carriage was gratuitous was based upon the duty of one who undertakes to carry persons— to carry them safely; a duty independent of any contract, and which the carrier owes not exclusively to the person being carried, but also to the State itself. In such a case, especially if the mode of carriage is peculiarly subject to dangerous and destructive accidents, the carrier may well be required to observe a high degree of care and diligence. But where only property is in question, there is no reason why any different rule should be applied to a railroad company taking charge of property gratuitously from that which governs the relation in the case of any other gratuitous bailment. Nor is it material that the gratuitous carriage of a trunk was accompanied by the gratuitous carriage of a person; the duty to carry the trunk safely was only the same that the law would have imposed had the trunk been taken upon a freight train gratuitously; and no greater degree of care could be demanded in one case than in the other. It may therefore be conceded that the same extreme care is demandable of carriers of persons, in all cases where injuries to persons are in question, and the concession will not in any manner affect the present suit.

But as the plaintiff has brought his action, not in tort, but upon contract,

there can be no recovery under his declaration; and the extent of the duty which, under the circumstances, was imposed upon the railway company, becomes immaterial. The judgment must be reversed with costs; but as the facts are not embodied in a finding by the Circuit Judge, so as to permit of our entering final judgment in this court, a new trial must be ordered. Flint and Pere Marquette Railway Co. vs. Weir.-Central Law Journal.

Abstract of Decisions.

FROM THE NEW YORK COURT OF APPEALS.

SURROGATE.

1. Costs in Surrogates' Courts: allowances may be made to all parties appearing.—Under the provisions of the statutes regulating the award of costs and allowances in Surrogates' Courts (2 R. S. 223, § 10, Laws 1870, chap. 359, § 9, Code of Procedure, §§ 308, 309), the surrogate is not limited to an allowance to the party technically successful, but may give it to any and all parties or their counsel deemed to be equitably entitled thereto. Decision of General Term overruled, but order affirmed on another ground. Noyes vs. Children's Aid Society. Opinion by Folger, J.

2. Review of decree of surrogate by General Term: discretionary order not appealable to the court.—A decree of a surrogate granting allowances is the subject of appeal to the General Term on the merits (Lain vs. Lain, 10 Paige, 191; Wilcox vs. Smith, 26 Barb. 316), and may be reviewed by that court, and if without justification on the facts and circumstances of the case, reversed entirely, or modified and reduced, and an order thereon resting in the discretion of that court cannot be reversed in this court. Order affirmed. Ib. [Decided Sept. 25, 1877.]

WITNESS.

Action against executor: old Code, section 399.—The provision of section 399 of the old Code, which prohibits all parties to actions from testifying to personal transactions with a deceased person against his executor, etc., makes no distinction between cases where parties are called as witnesses in their own behalf, and in behalf of a co-defendant, in cases where they are jointly and severally liable. Judgment below affirmed. Alexander vs. Dutcher. Opinion by Rapallo, J.

[Decided Sept. 18, 1877. Reported below, 7 Hun, 439.]—All any Law Jour.

POWERS OF JUSTICE'S COURTS - ACT OF FEBRUARY 4, 1874, UNCONSTITUTIONAL. - -Notwithstanding the action under the statute is designated a proceeding in rem, it is in substance and effect a proceeding in equity to enforce a lien, and such powers can not be conferred upon a Justice's Court. PRACTICE AND PLEADINGS

How A JUDGMENT IN BAR OF ANOTHER ACTION SHOULD BE PLEADED.-Jurisdictional facts need not be stated, but the statute excusing it must be pursued strictly-the phrase "judgment duly rendered" not equivalent to judgment "made or given."

This was an action to recover damages for the seizure and detention of certain sheep, by the defendant Wright, belonging to the plaintiff Young.

Wright attempted to justify the taking and detention under the Act of February, 1874, authorizing the owner or occupant of land to take up and safely keep, at the expense of the owner, any animal found trespassing thereon, and to give notice, and, if no one appears, to file a complaint with a Justice, setting forth the amount of damages claimed, and to issue summons, etc.

If judgment should be for plaintiff, upon this complaint, the property is to be sold, and the damages paid out of the proceeds.

In his answer Wright pleaded a judgment in his favor under the statute. Young demurred, claiming that the Act is unconstitutional; therefore the judgment could not be pleaded; the point was also raised that the judgment was not properly pleaded in bar.

CROCKETT, J., delivered the opinion of the court.

The demurrers to the original and supplemental answers of the defendant, John Wright, Jr., should have been sustained. The attempted justification for the seizure and detention of the sheep, set up as a defense in these answers, is founded on proceedings commenced and prosecuted before a Justice of the Peace, under the Act of February 4, 1874 (Statutes 1873-4, p. 50). The plaintiff contends that the jurisdiction attempted to be conferred, by the statute in question, upon Justices' Courts in this class of cases, is essentially a proceeding in equity to enforce a lien of which the District Courts have exclusive jurisdiction under the Constitution; and we think the point is well taken. The statute authorizes the owner or occupant of land to take up and safely