amount to negligence. But for this instruction, the jury might have thought, in view of what had already transpired within the plaintiff's knowledge showing the tendency of the engineer to go to sleep, that it was not enough for the plaintiff to see that he was awake, and then seat himself at the place assigned to him, but that he ought to have continued to see to it and assure himself that the engineer kept awake. The charge seems obnoxious to both objections which we have indicated, viz., a too narrow restriction in point of time, and a too wide latitude in drawing to the court and taking from the jury a decision of the question of negligence.

that of several others, embracing engineer, firemen, flagman, brakeman, and another conductor, the plaintiff himself being one of the affiants, was made, and, as we infer, was transmitted through the superintendent, and, along with his report, to the general manager. The report of the conductor cast the whole blame on the engineer, treating all the rest of the crew as faultless. These documents were admitted in evidence on behalf of the plaintiff, over the defendant's objection. Having had their origin many days after the happening of the events to which they related, they were no part of the res gestæ of the cause of action on trial, but were mere narrative touching 3. The request of counsel for the defend- past occurrences. Consequently they do not ant to charge the jury as set out in the sev- fall within the principle of the case cited enteenth ground of the motion for a new from 33 N. W. Rep. 867, (Keyser v. Railway trial was as follows: "If you find that the Co., decided by the supreme court of Michsaid Carroll was an employe of the defend-igan in June, 1887.) Mechem, Ag. §§ 714, ant, and that he subjected himself to any 715; Code, § 2206. Nor is Carlton v. Railgreater danger or risk than his duty and road Co., 7 S. E. Rep. 623, (October term, obligations to said company required, and 1888,) a decision upon the question of their that by reason of said increased danger or admissibility. As far as that case goes is risk he has been injured, then the court to suggest that they were not confidential charges you that he cannot recover. In communications, but, really, even that view of the testimony in the record, we question was not involved so as to render agree with the court in thinking that this a decision of it necessary. Upon principle, charge should have been given in the terms we think it clear that these reports were requested, and without any qualification. inadmissible; and several authorities which If the plaintiff took any improper risk, it we deem sound are to that effect. In was by remaining upon the engine with- Langhorn v. Alinutt, 4 Taunt. 511, it was out doing more than he did in seeing that held that letters of an agent to a principal, the engineer kept awake, or without ap-in which he is rendering him an account pealing to the conductor or reporting by telegraph, as it was contended he should have done. If he was in fault in either of these respects, he was negligent, and, if negligent, he could not recover. The court, in giving the request in charge to the jury, qualified it by adding, after the word “required," the phrase, “by any rules, which rules had been communicated to him." This qualification narrowed the charge to a violation of the rules; whereas the plaintiff's duty to protect himself against his sleepy engineer might be as complete and obligatory without rules on the subject as with them. The jury might have thought that, if he had common sense, he ought not, under the circumstances, to have remained passively upon the engine, with knowledge that the engineer was going to sleep at intervals while in charge of his engine. Due care in keeping the engineer awake, or, if that could not be done, by ceasing to aid in running the train, involved not only the safety of the fireman, but that of others, and also the preservation of the company's property from wreck and de-in evidence against it." 1 Dill. Mun. Corp. struction.

of the transactions he has performed for him, are not admissible in evidence against the principal. A like ruling was made in Reyner v. Pearson, Id. 662. See, also, Kahl v. Jansen, Id. 565. "An official statement or report received by the corporation or board from one acting as officer, and accepted and adopted by them, is competent evidence against the corporation, and those bound by its acts, without further proof of the appointment of the officer; but a report to a corporation or board is not made admissible in evidence against it by the mere fact that it was received and 'accepted' by it, except for the purpose of charging it with notice of the contents." Abb. Tr. Ev. p. 51, § 62. 'An admission by a corporation of a fact or liability, duly and properly made, is, of course, evidence against it; but a municipal corporation, by accepting, that is, by receiving, the report of a committee of inquiry, does not admit the truth of the facts stated therein; and such a report, though accepted by the vote of the corporation, is not admissible

66

(3d Ed.) § 305, (earlier editions, § 242.)

4. We turn now to the cross-bill of excep- The case of Railroad Co. v. Putnam, 118 tions, in adjudicating upon which we find U. S. 545, 7 Sup. Ct. Rep. 1, was cited and that the court should have granted a new relied on in behalf of the plaintiff. The trial on two other grounds, to-wit, the opinion was delivered by Mr. Justice GRAY, second and third of the amended motion. who devotes but a single sentence to the By a standing rule of the company, as may question, merely saying: "The reports be inferred, reports by its officers and em- made by the superintendent to the board ployes were to be made to it of the facts of directors in the course of his official duty and circumstances attending accidents. were competent evidence, as against the This accident occurred on the 8th of Feb-corporation, of the condition of the road.” ruary, and on the 18th of that month the superintendent prepared a report to the general manager on the subject. On the following day, the 19th, a report by the tonductor, supported by his affidavit and

Looking to the statement of facts prefixed to that opinion, we find it represented that 'the plaintiff offered in evidence two printed reports made by the superintendent of the road to the board of directors,—one in

1877, which stated that, in the portion of was put by the court partly on the ground the road where the heaviest traffic was that the general manager represented the done, there were about 35 miles of iron that corporation in making the statements, had been run over for more than 25 years, | (which, by the way, were not made as reand required the closest attention to pre-ports to the company, or any superior ofvent accidents; and the other, made in ficer, but as mere oral declarations,) partly 1880, stated that there were 25 miles of track upon the ground that they were embraced made of iron 42 years in service, and now in the res gestæ, and partly upon the almost entirely worn out. The defendant ground that they showed his knowledge, objected to the admission of these reports and therefore the knowledge of the corpobecause they were not sworn to under ex-ration, as to the improper construction amination in court; because they had no and condition of the road before the accireference to the place of the accident, but dent. We need not comment upon this only to the general condition of the rails; case further than to observe that its facts because they could not bind the defendant are so different from those of the case in as admissions; and because the informa-hand that the one cannot be a precedent tion of the superintendent as to the condi- for the other. An officer so high in power tion of the road was derived, in part, from and position, and so comprehensive in his the reports of subordinates. But the court duties, as is the general manager of a railoverruled the objections, and admitted the road, might possibly be competent to affect reports in evidence." According to this the company by his admissions or declarastatement, the reports were printed, and in tions when like admissions or declarations all probability had been promulgated by proceeding from subordinate officers or the company as official documents adopted agents, or from mere servants' and emby and proceeding from it. If so, this ployes, of the company, would be attended would make them utterances of, and there- with no such admissible quality. Certainfore admissions by, the company. More-ly, this distinction could well be drawn over, had they not been printed and pro- where the declarations of subordinates, mulgated, they would have tended to show etc., were made to the company some time that the company had notice of the condi- after the transaction to which they relate, tion of its road previously to the occurrence and were elicited for the sole purpose of its of the injury in controversy, and would own information, and for use in guiding have been admissible to charge the com- its own conduct. pany with such notice, under the rule as 5. We see no substantial objection to the above quoted from Abbott. The reports question propounded to the witness Galnow in question do not relate to the con-lagher, as set out in the sixth ground of the dition of the road, and have no bearing upon any question of notice to the company of any fact whatsoever prior to the injury; their contents consisting wholly of historical matter touching past conduct, and its consequences. So far as appears, the truth of the reports was never in any way passed upon, adopted, or affirmed by the corporation; nor were the documents printed, issued, or circulated by it as true. It surely cannot be sound law to hold that by collecting information, whether under general rules or special orders, and whether from its own officers, agents, and employes, or others, a corporation acquires and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter. As well might it be considered that any and every suitor who sends out agents to discover witnesses and collect facts touching his rights or duties regarding a pending or prospective lawsuit is to be met at the trial with the communications made by or to such agents as admissions made by himself. Can it be possible that a collector of historical materials is to be held responsible for the truth or accuracy of them, without himself having indorsed or promulgated them as true?

The case of Krogg v. Railroad Co., 77 Ga. 202, was also cited and relied upon. The evidence held competent in that case consisted of declarations made by the general manager, some of them relating to the condition of the track, and some to the cause of the accident, which he attributed to too much elevation of the superstructure on one of the curves of the road. It would seem that the admissibility of this evidence

amended motion, the object being to show what, according to the usage and practice of the company, would have been the result had the plaintiff reported by telegraph to the train dispatcher that the engineer was falling asleep at intervals while on his engine. In order for the jury to determine whether such a report would have been available to terminate or lessen the plaintiff's danger, it would be necessary for them to know what action would probably have been taken upon such a report. Perhaps the question to the witness could have been better shaped; but, on the whole, we think the court erred in not allowing the witness to answer it.

6. As there has to be another trial, we forbear to express any opinion on the correctness of the verdict; and, as to the grounds of the motion not already discussed, we merely say that we have discovered in most of them no error whatsoever, and in none of them anything sufficiently material to require correction. Several of the grounds involve, directly or indirectly, the question of duty, on the part of the plaintiff, to inform himself of the rules of the company, and abide by them, whether they had been communicated to him or not. We agree with the trial judge that the undertaking of the plaintiff, in his written application to the company for employment, to "study the rules governing employes, carefully keep posted and obey them," did not extend to any unknown rules not promulgated to him by the company. Railway Co. v. Clem, 80 Ga. 540, 541, 7 S. E. Rep. 84, fifth head of the opinion. The rules of a railway company stand to its employes as laws for the regulation of their conduct, and all such laws ought to be promulgated in some reasona

ble, practical way. If they are written or depositions of witnesses, yet the date on printed, each employe should either be fur- which these papers are certified to by the nished with a copy, or informed where to judge and clerk of the probate court of apply for it, or, at least, where he might Hartford,-namely, the 13th day of Februcall and read the rules, or hear them read. ary, 1888,-shows that they were not introOf course, actual knowledge otherwise ac-duced into the record until after the decree quired would suffice; but it is clear to us had been rendered; and the failure of the that an employe is bound by no rule of his decree to allude to the depositions, while it company which has neither been commu- expressly states that the evidence was nicated to him by it, nor brought to his heard, would seem to indicate that the depknowledge otherwise. Judgment in the ositions at least were not read or considmain case affirmed; on the cross-bill of ex-ered by the court upon the trial of the issue ceptions reversed.

EQUITY-ATTACHMENT-RECORD ON APPEAL. In an attachment suit in equity, in which defendant's trustee for benefit of creditors filed a petition alleging that he was entitled to whatever was due to defendant from the garnishee, a decree rendered after trial of the issue thus presented, dismissing the petition because the trustee had no title to, lien on, or interest in the funds, debts, turbed on appeal, when there is no bill of exceptions, no certificate of evidence, no authenticated copy of the trustee's appointment, and no intimation of what documents were read or rejected; but it appears from the authentication that sundry depositions were inserted in the record after the decree was rendered, and the decree fails to allude to them, and states that "the evidence was heard. "

and effects attached in the cause, will not be dis

Perrin & Cocke, for appellant. Phlegan & Johnson, for appellee.

at law. In this state of the record,—with no bill of exceptions, no certificate of evidence, and no intimation of what documents were read, or what were offered and rejected,-is it not plain that we cannot undertake to say that the decree of the lower court is wrong? Indeed, on the contrary, perceiving what the action of the court was, and not being able to discover that it is wrong, must we not presume that it was right? This is the rule adopted by the appellate court in such cases. "The judgment of a court of competent jurisdiction," this court said in Harman v. City of Lynchburg, 33 Grat. 43, "is always presumed to be right until the contrary is shown, and a party in the appellate court, alleging error in the court below, must show it in the regular way, or the presumption in favor of its correctness must prevail."

The issue in a case like the present, where a party interpleads and claims the property, is analogous to the ordinary issue out of chancery; and in such case the law is HINTON, J. This is an appeal from a de- well settled that the judgment of the court cree rendered at the December term, 1887, of is conclusive, unless there be a bill of excepthe hustings court of Roanoke city, in an tions spreading the evidence in the record, attachment suit in equity in which the and showing the exact ground of comState Bank of Hartford, Conn., was com- plaint. And in this respect there can be no plainant and George M. Bartholomew and difference between the case where there has others were defendants. In this suit the been a verdict and the case where the whole appellant, Charles M. Joslyn, pursuant to matter of law and fact has been submitted the provisions of section 25, c. 148, Code 1873, to the court; for, properly speaking, the filed his petition, claiming that he was the appeal is always from the judgment of the duly appointed and qualified trustee of the court, and not from the verdict of the jury. estate of the said Bartholomew, under the Wickham v. Lewis, 13 Grat. 446. In each insolvent laws of the state of Connecticut, case there must be a hill of exceptions and that he was entitled, as such trustee, pointing out the alleged error, and a certiffor the benefit of the general creditors of icate of evidence showing what testimony Bartholomew, to whatever debts may was before the court or jury. Paul v. have been due from the garnishee in said Paul, 2 Hen. & M. 525; Lee's Ex'r v. Boak, suit, or any of them, to said Bartholomew, 11 Grat. 182; Bart. Ch. 857 et seq. And in on the 29th day of September, 1886, the date such cases, inasmuch as depositions cannot of his appointment. Thereupon, as appears be regularly read, even on the trial of an from the recitals in the decree, a jury was issue directed by the chancellor himself, unwaived by both parties, the evidence was less by his special order, it cannot be asheard, and the court rendered its decree ad-sumed that such depositions were read, aljudging and decreeing that the said Charles though they may appear as a part of the M. Joslyn, trustee, had "no title to, lien printed record of the chancery cause. upon, or interest in, the funds, debts, and effects attached in the cause," and dis-ive of the case. There being no exception missed his petition.

With the petition there seems to have been filed a certificate of the clerk of the court of probate for the district of Hartford, in the state of Connecticut, but no record of his appointment authenticated as our statute directs; and this constitutes, so far as we have been able to discover, all of the record which relates to the original judgment. For, while the printed record contains sundry other papers as well as the

These views are, in our judgment, decis

to the judgment of the court, and no certificate of evidence showing what was before the court, the decree rendered on the judgment of the hustings court of Roanoke city must be presumed to be right, and must be affirmed.

FRENCH et al. v. GRIFFIN et al. (Supreme Court of North Carolina. Nov. 4, 1889.) PARTNERSHIP-DISSOLUTION.

Where a partner orders goods of plaintiffs, 'Publication delayed by failure to receive copy. and the order is countermanded by him after plain

tiffs receive notice of the dissolution of the partnership, but the countermand is afterwards with drawn, the subsequent delivery of the goods is a completion of plaintiffs' contract with the partner ship, and entitles them to recover the price agreed

on.

Aycock & Daniels, for appellants. I. F. Dortch, for appellees.

167

and as is above said, the assortment will To this the defendnot suit our stock.' ant C. F. Griffin replied on July 1st: "It will be all right. Send them on. I think I ordered them shipped October 1st. However, that will be early enough." The goods were accordingly sent, and this action is to recover the price therefor. The order was given and the contract entered SMITH, C. J. This was an action on ap- into some day before the dissolution, and peal from the court of a justice of the peace, was binding upon all the members of the tried before Judge GRAVES at spring term, firm, so that it was unaffected by the no1889, of Wayne superior court, upon the fol- tice of the fact given to the plaintiffs soon lowing case agreed: "On the 10th day of after. Such notice would protect against March, 1887, the defendants were copart- future dealings in the name of the firm by ners under the name and style of C. F. any member of it to whom credit was Griffin & Bros., and on that day the plain- given. The future delivery was in consumtiffs, by F. A. Mowbray, their agent, agreed mation of the partnership contract, and to deliver to the defendants merchandise degave it efficacy as the act of all the memscribed and at the prices named, in Exhibit bers of it, and involving a common responA, about September 1, 1887, amounting sibility. This result follows, unless, upon to $146.48, to be paid for in 90 days after countermand, the plaintiffs should have date of bill for the same, to-wit, on the stopped, and been content with compensa12th day of January, 1888. That the order tion for damages sustained at that point. for said merchandise marked 'A,' was an But the countermand given by C. F. Griffin, importation order, and the custom of the who continued to act for all in the executrade on such orders is that they cannot be tion of the common contract, upon the countermanded; but this custom was then plaintiff's representation of the nature of unknown to the defendants. Said goods their undertaking to fill the order, as unwere delivered in good order to the defend-derstood among business men, and the ant C. F. Griffin on or about the 10th day impracticability of their countermanding of October, 1887, and no part of the same their orders in getting the assorted articles, has been paid for, nor did the defendants, was withdrawn, and they were directed except C. F. Griffin, know that said order had been made. That on the 22d day of March, 1887, the firm dissolved, and on or about the 25th day of March, 1887, a copy of the notice marked 'B' was mailed to plaintiffs. That on the 22d day of June, 1887, the postal card marked 'C' was writ ten by the defendant C. F. Griffin, and was duly received by plaintiffs. That the letter marked 'D' was duly mailed and received according to its tenor, and also the writing on the bottom of the same, duly signed by the said C. F. Griffin,-copies of all which exhibits are hereunto attached, and made part of this case agreed." His honor, upon the case agreed, rendered judgment in favor of plaintiffs, and against defendants. Defendants W. H. Griffin and J. R. Griffin excepted, and appealed from said judgment to the supreme court. Notice waived. Bond fixed at $25. Bond given and approved. The paper marked DEPOSITION-ARBITRATION AND AWARD-ACTIONS A." and referred to in the case, was in the following form:

March 10, 1887. Sold by Mowbray. Terms, 90 days.

A.

Send by Norfolk.
Care A. C. Line, R. R.

to proceed in furnishing the goods under the defendants' order, as was done on or about the 10th day of October. Without, therefore, giving undue effect to this special contract, according to the course of trade, upon general principles its obligation rests upon all the partners who assumed it, and was not removed or impaired by the dissolution which soon after took place, and which prevented the formation of new contracts on behalf of the firm by one or more members of it. The delivery, then, completed the contract, and entitled the plaintiffs to the price of the goods. There is no error, and the judgment is affirmed.

BRYAN V. JEFFREYS. (Supreme Court of North Carolina. Nov. 4, 1889.)

-BONDS.

1. Under Code N. C. § 1357, providing that depositions shall be returned to the court, and opened and passed on by the clerk, after having first given the parties or their attorneys at least one day's notice; and that all depositions when allowed by the clerk, or by the judge upon appeal from the clerk's order, are legal evidence, if the Deliver about Sept. 1st. witness be competent,-a deposition without such notice, and which was not passed on by the clerk, Wilson, N. C. is properly excluded.

IMPORTATION ORDER.

C. F. GRIFFIN & Bro.,

2. In an action for failure to perform an award, a request to charge that if the submission was to two persons, "with leave to select a third only in case they disagree," then the award is void, is properly refused, as it was discretionary with the arbitrators to make the appointment before or after disagreement.

523-2 crates, &c., &c. On June 22, 1887, the partner, C. F. Griffin, wrote to the plaintiffs requesting them to countermand the order, to which an answer was returned under date June 28th, in which plaintiffs say: "This was an order for importation, sent out according to your assortment desired, and assorted entirely different from anything we can use. 4. Where the submission is under seal, the apIt is not customary for us to accept coun-pointment of the umpire need not be under seal, termands for importation orders made, as unless it is required to be so by the terms of the we are unable to countermand the orders submission. Ourselves after once having placed them;

3. Though the umpire cannot act before a disagreement occurs, his joining in the award does not vitiate it.

5. Though the bond executed to secure the

6. Where the submission recites that whereas, matters have arisen between the parties, "touching the amounts and sums due between them on account of the rental" of certain premises, "which said matters they are unable to settle and decide between themselves, * * now, therefore, all matters in dispute are hereby referred, " etc., an item which was the result of a settlement of the previous year, and which was necessary to consider in determining the "amounts and sums due between them, was properly taken into account by

award is very inartificially drawn, yet where the | Cooke, 17 E. C. L. 407." The defendant's context clearly shows the character in which the counsel, however, takes the distinction parties signed, and their respective liabilities, it that, while the umpire may be appointed is valid. before the disagreement, he has no right to act until a disagreement occurs. If the latter had no right to act, his joining in the award did not vitiate it. "The award in our case is either the award of the umpire or the award of the arbitrators. Take it either way, and it is good. If the appointment of the umpire by the arbitrators was proper at the time he was chosen, then it is his umpirage, and their joining with him will not vitiate; for a mere stranger may join in an award or umpirage without invalidating the proceeding. But if, on the other hand, the arbitrators had no right to choose an umpire before disagreement, then it would be their award; and the fact of the umpire's joining in it would not vitiate it." Stevens v. Brown, supra.

the arbitrators.

Appeal from superior court, Granville county; JOHN G. BYNUM, Judge.

"(2) That, the submission being under seal, the selection of the umpire must be under seal of the arbitrators." This was not required by the terms of the submission, and we think was unnecessary. "At all events, it is too late to interpose that ground after the award is made." Knowlton v. Homer, 30 Me. 552. And especially is the party estopped when, as in this case, he has partly performed the award. Morse, Arb. 174.

Action by Bettie J. Bryan against A. B. Jeffreys, as surety on the bond of R. M. Jeffreys, who, it is alleged, agreed to submit all matters in dispute to arbitration, and afterwards failed to pay plaintiff the amount of the award. By the terms of the submission, the award of the arbitrators in writing was to be final and conclusive, "and, if they cannot agree, to have the power to call in a third party; the award of any two of them in writing to be final and conclusive." Code N. C. § 1357, provides that depositions shall be returned to the court, and opened and passed upon by the clerk, after having first given the parties or their attorneys at least one day's notice; "(3) That the bond sued upon is void." and that all depositions when allowed by It must be admitted that the bond is very the clerk, or by the court upon appeal from inartificially drawn, but the context clearly the clerk's order, are legal evidence, if the shows the character in which the parties witness be competent. Judgment for plain-signed, and their respective liabilities. This tiff, and defendant appeals.

T. T. Hicks and A. A. Hicks, for appellant. Graham & Winston, for appellee.

SHEPHERD, J. In the course of the trial, the defendant offered in evidence the deposition of R. M. Jeffreys. It appeared that no notice was ever given to the plaintiff, and that the deposition had not been passed upon by the clerk, as provided in Code, § 1357. His honor very properly refused to admit it, and the defendant's exception in this respect must be overruled.

The defendant asked certain special instructions, which, being refused, are made the subjects of three exceptions:

"(1) That if the jury believe that the submission was to two, with leave to select a third only in case they disagree, then the award is void, and the defendant is not bound." This request was based, we suppose, upon the testimony of R. F. Crews, one of the arbitrators, to the effect that Mr. Hayes, the umpire, was appointed before they commenced the investigation, or had any disagreement. The refusal of the court to give the instruction is fully sustained by the case of Stevens v. Brown, 82 N. C. 462, where it is said that "it matters not at what time during the progress of an arbitration the umpire is appointed. It is within the discretion of the arbitrators to appoint him before or after disagreement. Where a submission to the award of two persons authorized the appointment of an umpire by them if they disagree, it was held they might choose an umpire before they entered upon the inquiry. Bates v.

is unlike the case of Osborne v. Calvert, 83 N. C. 367, because there all of the contending parties were obligees, and all were answerable for the default of each; so that the person to whom any sum might have been awarded would himself have been liable for its payment. The bond in our case shows very plainly that the defendant signed as surety for R. M. Jeffreys, the condition being that said R. M. Jeffreys should abide by and perform the award. The exception is without merit.

*

(4) The remaining exception is that the arbitrators should not have considered the item of $545.76; that being the result of a settlement for the year 1885, and not being a matter in "dispute." We cannot give the terms of the submission such a restrictive meaning. The articles of submission recite that whereas matters have arisen between Mrs. B. J. Bryan and R. M. Jeffreys * touching the amounts and sums due between them on account of the rental of her Governor Bell place, which said matters they are unable to settle and decide between themselves, now, therefore, all matters in dispute are hereby referred," etc. The balance, $545.76, due Mrs. Bryan for the year 1885, was left in the hands of R. M. Jeffreys, to be accounted for by him; and it was clearly necessary for the arbitrators to consider it, in order to arrive at the “amounts and sums due between them."

+

+

Upon examining the whole record, we have been unable to perceive any error in the rulings of his honor, and the judgment, therefore, must be affirmed.