seem not very carefully considered, appear to lay down a somewhat different rule, but without much discussion or reference to the authorities. This court has itself recognised the same distinction. In Brown v. Minneapolis & St. L. Ry. Co., 31 Minn. 553, we held that a station agent who had general charge of the tracks in and about his station, and whose duty it was to keep them clear and in safe condition for passing trains, was a fellow-servant with an engineer on such a train. In Roberts v. Railroad Co., 22 N. W. Rep. 389, decided at the present term, we held that a switch-tender and a baggage-master were fellow-servants. The Drymala Case, 26 Minn. 40, is not in conflict with this distinction. That case was decided upon the ground that the "section foreman," to whom was intrusted the duty of repairing or "furnishing" the track, was the representative of the master; and this was at the time, and is yet, generally considered what might be termed a "border case. 66 The management of an extensive business, like that of operating a railroad, includes so many departments and so many grades of service that it may not always be an easy matter to draw the line between those who are to be deemed "vice-principals," or representatives of the master, and those who are to be deemed "fellowservants," as to other employees; but the fact of such a distinction. is everywhere recognised. To hold that the master is responsible to his servants for the negligence of every employee of the most subordinate rank who is engaged in the department of repairing, examining, watching or guarding the instrumentalities used by other employees, would virtually abrogate the whole doctrine of common employment." There is hardly an employee in the service of any railroad whose duties do not, in part at least, relate to the matter of maintaining in safe condition the track or rolling stock. If the rule be that all these pro hac vice represent the master, and are performing his duty, the same rule must be applied to all masters alike. Such a rule, if applied to farmers, manufacturers, and others, would, I think, effect a radical change in what has been supposed to be the law. And yet this is, I think, the logical result to which the opinion in this case would seem to lead; for I can see no distinction in principle between these " car inspectors" and switch-tenders, station agents, guards, watchmen, and the like, in so far as their duties relate to maintaining in safe condition the machinery and other instrumentalities of the master, designed to be used by his employees. ABSTRACTS OF RECENT DECISIONS. SUPREME COURT OF VERMONT. ACTION. See Corporation. When Local-Trespass-Practice.-Trespass on the freehold will not lie in this state for a trespass committed on lands in Massachusetts: Niles v. Howe, 57 Vt. Objection to the jurisdiction may be raised at any stage of the proceedings by motion to dismiss: Id. AGENT. See Partnership. ATTACHMENT. See Mortgage. BILLS AND NOTES. See Contract; Executors and Administrators. Seal of Corporation-Effect of—A promissory note in the ordinary form given by a corporation had on it when produced in court a paper seal. No vote of the corporation authorized the seal; the note did not purport to be under seal; the seal was not the corporate seal; and the treasurer of the corporation who was a witness in the case did not admit putting it on the note: Held, that the seal must be disregarded as " mere excess:" Mackay v. Saint Mary's Church, 15 R. I. CONFLICT OF LAWS. See Mortgage. CONTRACT. Consideration-Guaranty-Endorsement of Note after MaturityStatute of Frauds.-After a note had matured, but was still held by the payee, two sons of the maker, for the purpose of inducing the payee not to pass the note into the hands of a third person, and to give further time for payment, placed their names under that of their father already upon the note: Held, 1. That there was a good consideration to support their contract, which was to pay the amount of the note upon demand. 2. That their contract was not within the operation of the Statute of Frauds Frech v. Yawger, 18 Vroom. What not an Abandonment of Estoppel.-By a written memorandum A. agreed to buy, and the B. company to sell, 1000 tons of old rails, delivery to be before August 1st, and also two to six hundred tons for delivery between August 1st and October 1st. The contract was dated January 31st 1880, and was signed by the vice-president for the company, 1 Prepared expressly for the American Law Register, from the original opinions filed during October Term 1884. The cases will probably appear in 115 U. S. Rep. 2 From G. D. W. Vroom, Esq., Reporter; to appear in 18 Vroom. From Arnold Green, Esq., Reporter; to appear in 15 R. I. Rep. From Edwin L. Palmer, Esq., Reporter; to appear in 57 Vt. Rep. and he had full authority to make it. On February 17th the vice-president wrote to A, inclosing a minute of a resolution purporting to have been passed at a meeting of the directors of the company on February 16th, confirming the contract, but specifying 2000 lbs. as the ton contemplated. On February 28th, A. replied to this letter saying that the sale was "an absolute and final unconditional sale," and that the number of pounds per ton was to be 2240. This was the number understood between the parties at the time of making the contract. No reply was made to the last letter, which ended with "we hope to hear from you at your early convenience," until June 14th, when the company wrote tendering 1000 tons of 2240 lbs. By that time the price of old rails had fallen Held, that the contract was in full force, and that the company was not estopped from setting it up against A.: Wheeler v. New Brunswick, &c., Railroad Co., S. C. U. S., Oct. Term 1884. : CORPORATION. See Bills and Notes. Tort-Defences-Ultra Vires-Tortious Act of Employee.—A corporation cannot defend itself, in an action for a tort done by it, on the ground that the business in the prosecution of which the tort was done was ultra vires: N. Y., L. E. and Western Ry. Co. v. Haring, 18 Vroom. The plaintiff was injured by the mismanagement of a street horseThe defendant contended that even if the jury found that it ran such horse-cars that, as it had no franchise so to do, it could not be liable to the action: Held, such defence was untenable: Id. car. An agent of the railroad company ejected, with unnecessary violence, a passenger from the cars: Held, the company was liable for the hurts to the passenger done in the course of such ejection: Id. Liability of, for a Claim against the Corporation it succeeded.—A steamship company transferred its ships and other property to another company organized to succeed it. and the officers of the old company became officers in the new company, and the business went on under their direction. After the transfer a man was killed by a collision between canal boats and one of the steamships transferred to the new company. His widow sued the old company and obtained a judgment against it: Held, that the property transferred to the new company could not be subjected in equity to the payment of this judgment: Gray v. National Steamship Co., S. C. U. S., Oct. Term 1884. DIVORCE. Effect of Articles of Separation-Domicile.-Articles of separation by husband and wife which contain no express stipulation against divorce are not per se a bar to a divorce prayed for by the injured party for causes existing prior to the execution of the articles: Fosdick v. Fosdick, 15 R. I. That the liberal divorce law of this state influenced a petitioner for divorce to come here does not make him any the less a domiciled inhabitant of the state, if he came here bona fide to reside permanently and not merely to obtain a divorce and then return to his former home: ld. EQUITY. Bill to remove Cloud on Title- Complainant out of Possession.— Equity will not interfere to remove a cloud upon title in favor of a party VOL. XXXIII.-86 out of possession, claiming under a legal title, against his antagonist who is in possession under the written title which makes the cloud. The remedy at law is sufficient: Weaver v. Arnold, 15 R. I. Practice Decree against a Co-complainant-Proceedings on New Issues after final Decree.-If one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter: Smith v. Woolfolk, S. C. U. S., Oct. Term 1884. After a decree disposing of the issues and in accordance with the prayer of a bill has been made, it is not competent for one of the parties, without a service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subject-matter of the original litigation, by merely giving the new proceedings the title of the original cause: Id. ERRORS AND APPEALS. Creditor's Bill-Appeal to the Supreme Court of the United States -Separate Decrees for less than $5000 each.-Where on final hearing on a creditor's bill defendants were adjudged to pay to the complainants respectively certain sums of money, some of which were less than $5000, and defendants appealed, Held, that the decrees were several, and the appeal must be dismissed as to all of the appellees to each of whom the amount adjudged to be paid did not exceed $5000: Stewart v. Dunham, S. C. U. S., Oct. Term 1884. EVIDENCE. See Partnership. Party as Witness-Previous Conviction of Felony.-A defendant in proceedings, civil or criminal, who testifies in his own behalf may be impeached like any other witness by showing his previous conviction of a felony State v. McGuire, 15 R. I. Contradictory Declarations-Foundation for the Introduction ofContradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it: The Charles Morgan, S. C. U. S., Oct. Term 1884. If the contradictory declaration is in writing, questions as to its contents, without the production of the instrument itself, are ordinarily inadmissible. Circumstances may arise, however, which will excuse its production. All the law requires is that the memory of the witness shall be so refreshed by the necessary inquiries as to enable him to explain, if he can and desires to do so; whether this has been done is for the court to determine before the impeaching evidence is admitted: Id. EXECUTOR AND ADMINISTRATOR.. Authority as to Property in Foreign Jurisdiction-Endorsement of Note-Transfer by one only.-A. died in Connecticut and letters of administration on his estate were taken out in Connecticut. There were no claims in Rhode Island against the estate of A.: Held, that the Connecticut administrator could transfer and endorse a promissory note duc the estate of A. so as to enable the endorsee to bring suit on the note in Rhode Island: Mackay v. Saint Mary's Church, 15 R. I. Promissory notes given to two joint administrators for a debt due to the estate of the intestate may be transferred and endorsed by one of the administrators: Id. FORMER RECOVERY. Negligence-Defeat of Plaintiff in Former Action against Others for same Tort.-A. claiming to be injured by collision with certain teams left in a highway by B. brought an action against B. to recover damages for his injuries. In this action B. obtained judgment. A. then brought an action against the town in which the highway was situated to recover damages for his injuries, charging the town with negligence in permitting the highway to be unsafe. The town pleaded in bar the judgment recovered by B. against A. alleging that B. caused the defect complained of. To this plea A. demurred: Held, that the plea was good and that the demurrer should be overruled: Held, further, that A. by the judg ment which B. recovered against him was estopped from suing the town: Hill v. Bain, 15 R. I. Avoidance of Contract.-The defendant while an infant executed the note in contention for a horse; and before he attained his majority rescinded the contract, tendered the horse to the payee-which was refused and demanded the note: Held, in an action on the note, that the defendant could avoid his contract while under age and that the avoidance and tender annulled it on both sides ab initio: Hoyt v. Wilkinson, 57 Vt. LANDLORD AND TENANT Duty of Tenant to repair adjoining Fence--Nuisance on Premises when Leased.—It is the duty of a farm tenant by force of law to make all needed current repairs on the fences; and if they are not kept in lawful condition it is his fault, and not the landlord's; and an action cannot be maintained against the landlord by an adjoining land owner, whose colt escaped through an insufficient division fence, and strayed. on the railroad track, and was there injured. And this is so although, the fence was in the same condition at the time of the accident as when the tenant went into possession: Blood v. Spaulding, 57 Vt. LIBEL. Charges against Public Officer-Malice-Presumption.-Certain citizens presented to the town council of their town a request that K. might be removed from his office of constable because: "firstly, said K. is a man utterly devoid of principle, and uses his office more for the purpose |