some of the States, as in Wisconsin, Michigan and Iowa, a distinction would appear to have been taken between a public and a private conveyance; and, as an examination of the cases cited will show, it has been there held that when the injured person is riding in a private conveyance by invitation of the driver, and without compensation, the driver will be regarded as his agent, and upon that ground the negligence of the latter is imputed to the former. In Pennsylvania, New York, Ohio, Minnesota and other States, this doctrine of agency is expressly repudiated; and it is held that in such cases the driver's negligence cannot be so imputed. Thus it will be seen that the cases are conflicting. The rulings in England and in this country have been in the greatest confusion, which we think is attributable to the fact that the general rule of Thorogood v. Bryan, which for thirty-eight years was followed in England and in parts of this country, was rested upon wholly indefensible ground. The vain effort to sustain a rule of law which was at variance with reason and common sense has given rise to these various conflicting views and decisions. The English Court of Appeals however in a very recent case (The Bernina, 12 Prob. Div. 58, decided in January, 1887), expressly overrules the case of Thorogood v. Bryan, and holds that one who is a passenger in a public conveyance does not identify himself with the conveyance, or the persons in charge of it, and that their negligence, direct or contributory, can in no respect be imputed to him. In the judgment of the court, Lord Esher, M. R., after an extended review of the English and American cases, said: "After having thus laboriously inquired into the matter, and having considered the case of Thorogood v. Bryan, 8 C. B. 115, we cannot see any principle on which it can be supported: and we think that with the exception of the weighty observation of Lord Bramwell-though that does not seem to be a final view-the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it. We are of opinion that the proposition maintained in it is essentially unjust, and inconsistent with other recognized propositions of law. As to the propriety of dealing with it at this time in a Court of Appeal, it is a case which from the time of its publication has been constantly criticised. No one can have gone into, or have abstained from going into, an omnibus, railroad or ship on the faith of the decision. We therefore think that, now that the question is for the first time before an English Court of Appeal, the case of Thorogood v. Bryan, 8 C. B. 115, must be overruled." In the case of Little v. Hackett, supra, in the Supreme Court of the United States, Mr. Justice Field delivering the opinion, says: "The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world."

Quotations might be given from many cases in the different States illustrating the very firm and emphatic manner in which the doctrine of this celebrated case had been denied. The authorities in England, and the great current of authorities in this country are against it. Nor can I see why, upon any rule of public policy, a party being injured by the concurrent and contributory negligence of two persons, one of them (his common carrier) should be held and the other released from liability. As to this, I speak only for myself. In my opinion, there is no principle con

sonant with common sense, common honesty, or public policy, which should hold one not guilty of any negligence, either of omission or commissiou, for the negligence of another, imputed to him under such cir cumstances. Although in Carlisle v. Brisbane I may appear to have accepted that doctrine, I meant to merely state that the ground upon which this court had rested this rule was better than that taken by the English courts.

But if this were not so, Fields was not a common carrier. Dean was riding in the wagon merely by invitation of Field, who happened to be going in the direction of Dean's home with a load of provisions. He was carried without compensation — merely as an act of kindness on the part of Fields, who had sole control of the team and of the wagon. The case is similar in this respect to Carlisle v. Brisbane, supra, and to the case of Follman v. City of Mankato, 29 N. W. Rep. 317. We are clearly of opinion that if Dean himself was guilty of no negligence, the negligence of Fields cannot be imputed to him; but it is in this respect this case differs from Carlisle v. Brisbane. In the case just cited, Brisbane was a stranger. The accident occurred after night, and after a fresh fall of suow. It was caused from a defect in the street. There was no evidence whatever that Brisbane knew that Cornman was a reckless or unskillful driver, or that he (Brisbane) saw, or by the exercise of reasonable care at the time could see, or ought to have seen, the dangerous condition of the streets. Indeed the jury found that he was not personally aware of either, and no question was raised involving that view of the case. Here however the facts are of a different character. Dean knew the locality well. He had crossed the tracks frequently at this point. He knew that a train was due about that time, and that he was approaching the railroad track at a fast trot; yet he took no precautions. He was certainly responsible for his own negligence. He sat with his back to the driver; and although he might have seen his danger, he confesses that he did not look. He said nothing by way of warning to Fields, nor did he ask him to stop to look and listen, or to permit him (Dean) to get out; and the danger was as obvious to Dean as it was to Fields. The testimony is wholly to the effect that the plaintiff committed himself voluntarily to the action of Fields; that he joined him in testing the danger-and he is responsible for his own act. The case is ruled by Crescent Township v. Anderson, 114 Penn. St. 643. The judgment is affirmed.

INSURANCE-ACCIDENT-"EXPOSURE OF THE INSURED TO OBVIOUS RISK." ENGLISH COURT OF APPEAL, AUGUST 9, 1889. CORNISH V. ACCIDENT INSURANCE CO., LIMITED.*

A policy of insurance against accidental death or injury excepted accidents happening "by exposure of the insured to obvious risk of injury." The insured met his death through attempting in broad daylight to cross the main line of a railway in front of an approaching train, by which he was run over and killed. There was no evidence that he was short-sighted or deaf. At the place where the accident happened there was no station, or proper crossing; and there was no obstruction to prevent a person about to cross from seeing an approaching train. Held, that the case came within the exception.

to oue of the plaintiffs certain stock and goods which the said plaintiff accepted in full satisfaction and discharge of the boud. The defense of the defendant Beauchamp was that the accord and satisfaction pleaded by Steeds released him, as surety, from all liability under the bond. The plaintiffs made an application to have the whole of the defense struck out on the ground that it disclosed no reasonable answer or defense to the claim. The application having been dismissed by the master and the judge in chambers, the plaintiffs appealed.

J. G. Wood, for plaintiffs.

E. W. Bullen, for defendants.

WILLS, J. The plaintiffs in this case sue for a sum of mouey alleged to be due for principal and interest on a bond made in their favor by the two defendants.

One of the defendants pleads that he delivered to one of the plaintiffs certain stock and goods which were given by him and accepted by the said plaintiff in satisfaction and discharge of the money due upon the boud. The other defendant pleads that he executed the bond as surety and was discharged by the transaction set up by the first defendant.

The plaintiffs apply to have this defense struck out, as being no answer to their claim. The same question arises as to both defendants, and is shortly whether in respect of a bond given by C. to A. and B., accord and satisfaction made by C. to A. after the cause of action had arisen, and accepted by A., is an answer to the claim of A. and B.

On behalf of the plaintiffs two objections are raised. 1. That in respect of a specialty debt, accord and satisfaction of the cause of action by the person or persons liable is no more an answer to the action in equity than it is at law. 2. That even if it would be so, were the bond made in favor of A. alone, accord and satisfaction with A. is no answer in equity to the action by A. and B.

It is clear that at law accord and satisfaction of a debt due upon a bond is no bar to the action. This is however purely the result of a technicality absolutely devoid of any particle of merits or justice, viz., that a contract under seal cannot be got rid of except by performance or by a contract also under seal; so that supposing it had really been the case that in satisfaction of an overdue bond for £1,000 the person liable had given property worth £2,000, which had been accepted in discharge of the obligation, still at law the obligee of the bond might recover his £1,000 without returning the property.

One would have thought that if the courts of equity ever interfered at all to prevent a man from enforcing an unconscientious and dishonest demand to which there was no answer at law, they would perpetually restrain an action brought under the circumstances described. Mr. Wood however, who is an equity lawyer, contended before us that this was a case in which equity would follow the law, and would refuse to interfere, and he laid great stress upon a case of Webb v. Hewitt, 3 K. & J. 438, which he said established that proposition. We are glad to say that we are unable to agree with him, and that we think he has done injustice to a system of which one recommendation has been supposed to be that it was, sometimes at all events, competent to correct some of the worst and most odious technicalities of the common law. case cited appears to us to lead to the opposite conclusion to that contended for, and we think it perfectly clear that the ratio decidendi of the learned vice-chancellor was, that when the plaintiff had accepted money's worth in place of money in discharge of the bond, the debt in equity was gone and there was an end of it.

The

Upon the first point therefore we are against Mr.

Wood, and have no doubt that if payment to one of the plaintiffs would have been an answer, the delivery to him and acceptance by him of goods in satisfaction of the debt would be equally an answer.

But Mr. Wood is, we think, right in saying that, as the defense is an equitable one, it is equally necessary to establish that payment by C., the obligor, to A., the latter being joint obligee with B., would in equity be an answer to the claim by A. and B. on the bond. We cannot follow Mr. Bullen's argument that as equity would treat the satisfaction as equivalent to payment, having got so far, he is at liberty to discard any further reference to equity, and say that as at common law payment to or release by A. would prevent A. and B. from suing, he is now in a position to treat A. as having been paid, and say that as this is a common-law action there is the equivalent to a common-law defense. If he is obliged to resort to equity for his defense, he must take the equitable principles applicable to the circumstances in their entirety; and we must therefore inquire what is the rule in equity with respect to payment to one of two co-obligees or co-creditors.

The reason why the defense is a good one at law is that the two creditors are treated as having a joint interest in the debt, with its incident of survivorship, and the satisfaction to one of the parties of a joint demand due to himself and others puts an end to the joint demand, and he cannot afterward, by joining the other parties with him as plaintiffs, recover the debt; nor can a right of action be supposed to exist which, if it existed, might survive to the very person who had already received full value. Wallace v. Kelsall, 7 M. & W. 264.

In equity however it would appear as if the general rule with regard to money lent by two persons to a third was that they will prima facie be regarded as tenants in common, and not as joint tenants, both of the debt and of any security held for it. Petty v. Styward, Eq. Ca. Abr. 290; Rigden v. Vallier, 2 Ves. Sen. 258, cited in the notes to Lake v. Craddock, 1 White & Tudor (5th ed.), 208. "Though they take a joint security," says Lord Alvanley, M. R, "each means to lend his own money and to take back his own." Morley v. Bird, 3 Ves. 631. Where a mortgage debt has been paid to one of the mortgagees, accordingly, it was held that the land was not discharged, and that the concurrence of the other mortgagees was necessary to make a good title. Matson v. Dennis, 10 Jur. (N. S.) 461. This is on the ground that the debt is held by the two in common and not jointly, and the principle seems to us equally applicable whether the debt is secured by a mortgage or is merely the subject of a personal contract. The principal right of a mortgagee is to the money; the estate in the land is only an accessory to that right.

It is obvious however that this proposition cannot be put higher than a presumption capable of being rebutted. If the money, supposing it to have been lent, were trust money, the presumption of a tenancy in common on the part of the two trustees could not, as it seems to us, arise. Survivorship is essential for the purposes of trusts, and so there may be a variety of circumstances which may settle the question either one way or the other. In the present case we do not even know whether the bond was for money lent, or what was the groundwork of the obligation, and it is clear that if the presumption is that the interest in this obligation belonged in equal portious in severalty to the two plaintiffs, the plaintiff who was settled with by the accord and satisfaction has been paid his half, at all events, and it cannot be recovered again in this action.

We think therefore that we cannot strike out this defense as we are invited to do. It seems to us that it must be good for a part of the claim at all events. But

we think the statement of defense defective, and that Mr. Bullen ought to amend by a further statement of the material facts, and our order is that the statement of defense be amended accordingly, and if that be not done within ten days, the plaintiff be at liberty to sign judgment for half the amount claimed. We trust that upon the amended pleading being delivered the plaintiffs will, if possible, meet it by any necessary addition to or correction of the facts alleged, and not repeat a motion of this kind, which asks the court to do what is to the last degree unsatisfactory, give judgment for a defect of pleading and in ignorance of all the facts which ought to be known before the rights of the parties are definitely adjudicated upon. Both parties are partly responsible for the present motion and the costs of this appeal will be costs in the cause. Order accordingly.

NEW YORK COURT OF APPEALS ABSTRACT.

ANNUITY APPORTIONMENT.-When an annuity is granted by a will made before the act of New York in 1875, chapter 542, making annuities created by instruments made after the passage of the act apportionable, but no time is fixed for the payment thereof, it is payable annually after the death of testator, and is not apportionable, and on the death of the annuitant his legal representatives are not entitled to a proportionate part of such annuity for the time elapsed since the last annual payment. We are not at liberty to decide the question in this case upon our notions of natural equity or justice, provided the settled rule of law fixes the rights of the respective parties and determines the question presented. At common law, annuities were not apportionable, subject however to two exceptions, viz., where given by a parent to an infant child (Hay v. Palmer, 2 P. Wms. 501; Reynish v. Martin, 3 Atk. 330), or by a husband to his wife living separate and apart from him. Howell v. Hanforth, 2 W. Bl. 1016. These exceptions were founded on reasons of necessity, and the presumption that such annuities are intended for maintenance, and are given in view of the legal obligation of a parent to support his infant children, and of a husband to maintain the wife. But with these exceptions it was the uniform and unbending rule of the common law, recognized both by courts of law and equity, that annuities, whether created inter vivos or by will, were not apportionable in respect of time. This rule, it has been said, "proceeds upon the interpretation of the contract by which the grantor binds himself to pay a certain sum, at fixed days, during the life of the annuitant, and when the latter dies, such day not having arrived, the former is discharged from his obligation." Luml. Ann. 291. It resulted from the general rule that if the annuitant died before, or even on, the day of payment, his representatives could claim no portion of the annuity for the current year. We refer to some authorities on the general subject: Ex parte Smyth, 1 Swanst. 337, note; Pearly v. Smith, 3 Atk. 260; Irving v. Rankine, 13 Hun, 147; affirmed, 79 N. Y. 636; Wiggin V. Swett, 6 Metc. 194; 3 Kent Com. 470; 1 Wms. Exrs. 835; Hayes & J. Wills, 172, note. In England statutes have been enacted from time to time changing the harsh and rigorous rule of the common law. The statute 4 and 5 William IV, chapter 22, was the first statute making annuities apportionable in respect of time. In construing this statute some of the courts held that the statute covered continuing annuities only; that is, annuities not terminating with the life of the first taker. Reg. v. Lords of the Treasury, 16 Q. B. 357; Lowndes v. Earl of Stamford, 18 id. 425. This led to the enactment of the comprehensive statute, 33 and 34 Victoria, chapter 35, which made all annuities apportionable, and declared that annuities should, “like

interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly." There can be no doubt that in a case like the present one, arising in England after the passage of these statutes, it would be held that the annuity was apportionable. But no statute was enacted in this State changing the rule of the common law, and making annuities apportionable, until the passage of chapter 542, Laws of 1875; and as this statute, by its terms, only applies to annuities created by instruments executed after the passage of the act, and in case of wills, where the will takes effect thereafter, it does not affect the question in this case. There can be no doubt that if the testator bad in his will directed that the annuity of Mrs. Reed should be payable at the end of each year after his death, or in quarterly or half-yearly payments, or in other words, if he had in terms fixed the day of payment, the claim of the representative of Mrs. Reed, that he was entitled to an apportionment, would, upon the settled rule of the common law, be rejected. The case of Irving v. Rankine, supra, is a precise authority that the rule of the common law was, prior to the act of 1875, the law of this State, and that an annuity payable by the terms of a will on a fixed day was not apportionable. The rule was applied in that case to an annuity given to the wife of the testator, payable semi-annually from his decease, who died eight days before the semi-annual payment became due. The learned counsel for the plaintiff insists that the common-law rule of the nonapportionability of annuities only applied where the day of payment was specifically fixed in the instrument creating it, and had no application to the case of an annuity given in general terms, as in this case, no day of payment being specified. It is quite difficult to see any ground for the alleged distinction. The ordinary and natural meaning of a direction by one person to pay to another a specified sum "annually," or "each year," is that the specified sum is to be paid in an annual or yearly payment. The word or phrase, naturally interpreted, would be regarded as fixing both the measure and time of payment. It would, we think, be contrary to the well-understood meaning and characteristics of an annuity, and to the settled rule that in the absence of a different direction in the will or instrument creating an annuity it is payable annually or yearly, at the end of the year, to restrict the application of the common-law rule of non-apportionability of an annuity to cases where the date of payment is explicitly declared in the instrument creating it. The term "annuity " has been variously defined, but the definitions, although differing in form, are substantially alike in meaning. In general terms, it is "a yearly payment of a certain sum of money granted to another in fee, for life or for years." 2 Wins. Exrs. 809. See also Luml. Ann. 1; Bac. Abr., tit. "Annuity." It has long been the settled rule that in case of a will, if no time is fixed, an annuity given thereby commences from the day of the testator's death, and the first payment is to be made at the end of twelve months from that time. 2 Wms. Exrs. 1288; Gibson v. Bott, 7 Ves. 89; Houghton v. Franklin, 1 Sim. & S. 392. This accords with the definition of an annuity, its inherent character, and the language of the testator as naturally construed. We have no case where the distinction is made that where no time is expressly fixed by the will for the payment of an annuity it grows due like interest de die in diem, and in case of the death of the annuitant within the year, is apportionable. The authorities are opposed to this view. In Carter v. Taggart, 16 Sim. 447, a testator directed a fund to be formed for the purchase of bank annuities, and charged them with the payment of £150 a year to his wife during her life. The question was as to the right of apportionment, the wife having died during the year. The will did not fix the time for the pay