REMEDIES.

If the restriction be by way of covenant, the remedy, at law, for a violation is damages, or in equity, an injunction. A clause liquidating the damages in case of breach does not necessarily supersede the equitable remedy by injunction. Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400. Let the restriction take the form of a condition, and the proper remedy is the legal action of ejectment to forfeit the land. Cowell v. Springs Company, 100 U. S. 55. Sometimes the deed is so drawn as to embody both a condition and a covenant, and in this case the grantor has his election of remedies. Stuyvesant v. Mayor, etc., 11 Paige, 414.

WILLIAM H. HAMILTON.

by which the said corporation of Dartmouth College was enlarged and improved and the said charter amended.

The Superior Court of New Hampshire decided that this could be done, whereupon a writ of error was sued out and carried to the Supreme Court of the United States, which reversed the decision of the State court on the ground of its unconstitutionality. private, yet public in their use, receive for their stockWhy should railroad and other corporations which are holders more compensation or percentage on their cost than a fair percentage on money loans? And why should not the Legislature enact that the net earnings of such corporations in excess of a fixed return upon the actual capital invested, shall be paid into the treasury of the State, for the use of the people, and that the rate of charges shall be such as to produce this return of profit as nearly as can be estimated? Among other beneficial results which would arise from such a plan would be a tendency to prevent "strikes" in corpora

A

PROFITS.

JUST compensation for the fruits of labor done by individuals or corporations, is the only basis on which such labor can be successfully done; hence a competition in such labor, which renders it more expensive cannot be continued without a loss to the party supplying the faults of such labor.

This is a law of business which neither the Legislature nor the individual is able to overcome. The question occurs: How can the State so regulate it to produce the best beneficial results and least cost to the consumers?

Competition can never be made profitable to those creating it or to those using the fruits of such competition, until it can be demonstrated by actual experience that competition is in the line of economy.

It was said wisely by the great George Stephenson that when combination is possible, competition is impossible." If the Legislature will refuse charters to competing corporations as far as it is practicable, and at the same time meet the public exigency, and regulate the profits of existing corporations, it will greatly subserve the public.

In 1874, by chapter 372, the Legislature of Massachusetts consolidated the railroad law, which is substantially incorporated into its recently enacted PublicStatutes, and among other provisions is this: "That such rates of fares, tolls and charges and regulations shall at all times be subject to revision and alteration by the Legislature, or such officers or persons as the Legislature may appoint for the purpose, any thing in the charter of any such railroad corporation to the contrary notwithstanding."

Previous to this enactment the Supreme Court of Massachusetts, in the case of the Commonwealth v. Fitchburg R. Co., 12 Gray, 188, decided that “the Legislature has in this view and to this end reserved to itself full power to amend or alter the charter of the railroad companies and regulate the exercise of powers under them." Herein we have sufficient law and statute to prevent and nullify a burdensome competition.

A railroad company is a private corporation, yet is for a public use.

In this connection the great case of Dartmouth College v. Woodward is usually referred to as an important authority, but the doctrine therein has been deviated from by legislative enactment and by subsequent decisions of courts. In this case the question was made whether those acts of the Legislature of New Hampshire were valid and binding upon the corporation without their acceptance or assent, and not repugmant to the Constitution of the United States,

in the possession of the corporation, which might suggest to the laborer in the company that he ought of right to participate in the profits which his own hands have assisted in accumulating.

As the legitimate consequence of such legislation competition would be gradually done away with, by placing all profits on an equal and equitable basis.

If any were unwilling to accept a charter with such limitations and restrictions, then to such it ought not to be granted. But with these conditions in a charter each and every shareholder would be sure of receiving a fixed and fair compensation for his money invested, if such corporation earned enough to meet it.

Competition among all kinds and classes of corporations has proved, almost without exception, a pecuniary failure. The result has usually been consolidation, an agreement not to compete, or an extermination of the competing company; and so long as com. petition continues these pecuniary disasters will arise, and it cannot be otherwise, since there are numerous examples in all our cities, especially the corporations furnishing water and illuminating gas. If one of these companies is only able to supply them at a fixed price, the second, third or fourth company in the same locality cannot supply them as cheaply as the one company. Here the pertinent saying of George Stephenson is applicable: "When combination is possible, competition is impossible."

When we hear the cry of monopoly by the citizens, then springs up a competition, and when competition exhausts its capital they look for relief in consolidation, an agreement not to compete, or an extermination of one of the companies. So that the result would be, if companies are chartered with the provision limiting profits, then competition would cease to exist. E. S. WHITTEMORE.

George T. Brown and William H. Sweetland, for plaintiff.

Francis W. Miner, for defendant.

DURFEE, C. J. This is case for negligence. The defendant is a horse railroad company, having its rails laid in the streets of the city of Providence. On the afternoon of July 7, 1883, a driver in the employ of the company took two empty passenger cars belonging to it from the stable in Elmwood to the repair shop on Thurber's avenue. The two cars were fastened together, one behind the other, and drawn by a single horse. They were driven slowly along, the driver occupying the platform in front of the forward car, looking beside and before him. In their passage they were driven along Broad street on the track close by the sidewalk of Grace Church cemetery. The plaintiff, a boy six years old, was on the sidewalk with a boy named Hall, eleven years old. Hall was riding a velocipede, and the plaintiff was racing with him. The plaintiff, to get ahead of Hall, jumped on the rear platform of the front car, and after remaining there a little while, either fell off or jumped off and fell. The mother of the plaintiff, who was permitted to relate what her boy told her about the accident, testified at first that he told her that he fell off, but on being asked in cross-examination if he did not tell her that he was afraid the driver would see him and jumped off, replied, "Yes, sir, I think probably he did, but am not quite sure he told me he fell off." The accident occurred between two and three o'clock. The driver did not see the boys and knew, nothing of the accident when it happened, and heard nothing about it until nearly 7 o'clock.

The plaintiff was badly injured, doubtless by collision with the second car. The plaintiff offered in evidence, for the purpose of proving the negligence of the company, an ordinance of the city of Providence containing rules and regulations for railroads in the city. The defendant objected on the ground that the company had not consented to the ordinance, and that without consent it was not bound by it. The court sustained the objection and the plaintiff excepted. The defendant moved the court, after the plaintiff's testimony was in, to nousuit him. The court granted the motion and the plaintiff excepted. The plaintiff now petitions for a new trial for error in these two rulings.

The ordinance was offered for the purpose of put. ting in proof the following rule, to wit: "Cars driven in the same direction shall not approach each other within a distance of three hundred feet, except in case of accident, when it may be necessary to connect two cars together, and also except at stations." We do not think the rule is applicable in the case at bar. It applies when two cars, going in the same direction, are driven separately, so that the distance between them may be increased or diminished. It requires that the cars so driven shall be kept at least three hundred feet apart. If the two cars were driven close together there would be danger of collision, when the forward car stopped, particularly if the two cars were on a descending grade. The rule was obviously intended to prevent the occurrence of any such casualty. The rule itself permits the cars to approach for the purpose of being connected in case of accident. This shows that the rule was designed for cars separately driven. Of course if the rule was inapplicable, the refusal to admit it in evidence is not a ground for granting a new trial.

The reason given by the court for granting the nonsuit was that it appeared from the evidence submitted for the plaintiff that his own fault contributed to his injury. The court announced that the child jumped from the platform because he was afraid the

driver would see him, and that he must therefore have known that he was a wrong doer. It is contended for the plaintiff that he cannot be charged with contributory negligence, if he exercised as much care as could be expected of him considering his age, and that whether he did exercise that degree of care was a question for the jury. The cases cited to this point are some of them very strong. The plaintiff however was nonsuited not because he was simply careless, but because he was knowingly committing a wrong or trespass which directly contributed to his injury. Whether in this view his youth would entitle him to the same leniency, may perhaps not be beyond question, but if it would, we are nevertheless of opinion that the nonsuit was rightly granted, for the plaintiff, however excusable his own fault, was not entitled to recover without proof of fault on the part of the defendant, and we think there was no evidence tending to show that the defendant was guilty of any negli gence toward him.

The plaintiff was injured, because having got on the rear platform of the forward car, he jumped off or fell off before the following car.

Now in order to show that the negligence of the defendant contributed to the injury, it is necessary first to show that the defendant owed the plaintiff a duty of care, which if it had duly observed, the injury would not have happened. Where no care is due there can be no liability for neglecting it.

Now it appears, that before the accident, the driver did not know that the plaintiff had got upon the platform or that he had jumped or fallen off. The driver therefore is not chargeable with any want of care, unless it was his duty to have known that the plaintiff had got on the car.

We think it was clearly the duty of the driver to look forward to his horse and to the road before him, rather than back to the empty cars behind him. The company is therefore not liable on account of any neglect on the part of the driver. If it be liable at all, it is liable either because it ought not to have permitted the cars to go coupled together, or because it ought to have provided a second man to have charge of them while en route, so as to prevent the children on the streets from getting on the platforms. We do not see how the company can be held to have done wrong in permitting the two cars to go coupled together. Driven slowly they were neither dangerous nor unreasonably inconvenient. The only question is therefore whether it was the duty of the company to employ a second man to have charge of the cars and guard them from intrusion.

It is well settled, that as a general rule, an owner of property which has been trespassed upon is not liable to the trespasser for any injury resulting from the trespass merely because he might by care have guarded against it. For instance, a man who digs a pit on his land is not liable to a trespasser who is injured by falling into it, because it has been left unfenced or unguarded. Hargreaves v. Deacon, 25 Mich. 1; Hounsell v. Smyth, 7 C. B. (N. S.) 731. But the rule has its exceptions. If the pit be dug on the edge of a public way, where it endangers the safety of the public travel, a traveler who accidentally straying falls into it can recover for the injury. In such a case the pit is a common nuisance.

In Lynch v. Nurdin, 1 Q. B. (N. S.) 29, the defendant's servant left his cart and horse in the public street, unattended, for half an hour. After a while the plaintiff, a boy between six and seven years old, and other children, began to play with the horse and climb into the cart and out of it. While the plaintiff was getting out, another boy started the horse, so that the plaintiff fell and broke his leg. A verdict in his favor was sustained by the Court of Queen's Bench

sitting in banc. The court thought that the child was merely indulging a natural instinct in playing with the empty cart and deserted horse, being tempted to it by the most blamable carelessness on the part of the defendant's servant.

In Birge v. Gardiner, 19 Conn. 507, the defendant, who put a heavy gate on his own land, beside a passway which was used by children, going to and from the public road, but left it so carelessly that it fell upon a child, between six and seven years old, who shook it in passing, was, held to be liable for the injury.

In Railroad Company v. Stout, 17 Wall. 657, the plaintiff, a child six years old, was injured while playing with the turn-table of a railroad company. The table was on the company's land, but near two public roads, without visible separation from them, and was left unattended and unlocked, and easily revolved on its axis. The injury happened by the table being set in motion by other boys. It appeared that the boys of the neighborhood were in the habit of resorting to the place for play. A verdict for the injured child against the railroad company was sustained by the Supreme Court of the United States. See also same case before Dillon, J., and a jury, Stout v. Sioux City & Pacific R. Co., 2 Dill. 294.

We know of no cases more favorable to the plaintiff than the three cases last cited, but in all three of them the object which caused the injury was a dangerous object left exposed, without guard or attendant, in a place of public or common resort for children. An object so left is a standing temptation to the natural curiosity of a child to examine it or to his instinctive propensity to meddle and play with it.

In Keffe v. Milwaukie & St. Paul R. Co., 21 Minn. 207; 18 Am. Rep. 393, which was precisely like Stout v. Sioux City & Pacific R. Co., this peculiarity was specifically stated and commented on as the ground of liability. "The defendant knew," say the court, “that by leaving this turn table unfastened and unguarded, it was not merely inviting young children to come upon the turn table, but was holding out an allurement which acting upon the natural instincts by which children are controlled, drew them by those instincts into hidden danger." These cases seem to reach the limit of liability. They go beyond what was thought to be the limit in Mangan v. Atterton, L. R., 1 Exch. 239. In that case the defendant left a dangerous machine, which might be set in motion by any passer by, unguarded, in a public place. The plaintiff, a boy four years old, put his fingers in the machine at the direction of his brother, seven years old, whilst another boy was turning the handle which moved it, and his fingers were crushed. The court held that the plaintiff could not maintain any action for the injury. And see Hughes v. Macfie, 2 H. & C. 744. The case at bar differs very much from the three cases previously stated, for in the case at bar the cars, instead of being left unattended, were in the charge of the driver who was in the act of driving them, so that there was nothing done to encourage the trespass, which was merely the result of a momentary impulse. Ordinarily a man who is using his property in a public place is not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such vehicle to keep an outrider on purpose to drive such boys away, and that if he does not, he is liable to any boy who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred. See Lygo v. Newbold, 9 Exch. Rep. 302; and the remark of Blackburn, J., in Austin

v. Great Western R. Co., L. R., 2 Q. B. 442, 446, and yet such a case is very much like the case at bar. There are some risks, in regard to which a child ought to be enlightened, before he is committed to the chances of the street.

In Hestonville Passenger R. Co. v. Connell, 88 Penn. St. 520; 32 Am. Rep. 472, the plaintiff, a boy between six and seven years old, was injured in an attempt to climb upon the front platform of a horse railroad car while the car was in moderate motion. The car was a car used for suburban travel, and according to custom, was in the charge of no one but the driver, who at the time of the accident was engaged on the rear platform. The court held that the railway company was not liable for the injury, the injury having resulted not from any neglect of the person in charge, "but from the sudden and unanticipated act of the child itself." 'It may be assumed," say the court, "that a child, old enough to be trusted to run at large, has wit enough to avoid ordinary danger, and so persons who have business on the streets may reasonably conclude that such a one will not voluntarily thrust itself under the feet of their horses or under the wheels of their carriages, and a fortiori may they conclude that they are not to provide against possible damages that may result to the infaut from its own willful trespass." The doctrine of this case is well supported by other cases. Morrissey v. Eastern R. Co., 126 Mass. 377; 30 Am Rep. 686; Gavin v. City of Chicago, 97 Ill. 66, 71; 37 Am. Rep. 99; McAlpin v. Powell, 70 N. Y. 126; 26 Am Rep. 555; 55 How. Pr. 163; Snyder v. Han. & St. Jos. R. Co.,60 Mo. 413. These are all cases of injury to intrusive or trespassing children, in which the defendants were held to be exempt from liability, although they might have prevented the injury, because the kind of care which would have been required to prevent it was not obligatory upon them. And see Zoebisch v. Tarbell, 10 Allen, 385. The case at bar is in our opinion a case of the same class. The defendant company is not liable for the injury to the plaintiff, because it never incurred any duty or obligation of care to him. If the driver had seen the boy on the platform it might have been his duty, notwithstanding the boy was a mere intruder, to stop the car and put him safely off. If the driver had stopped the cars, so as to afford the boy an inviting opportunity to get on them, thus tempting his childish instinct, it might have been his duty to look through the cars before starting, and if he found the boy, to remove him. The case presents no such circumstances. We think therefore that on this point there was no evidence on which the case could have been properly left to the jury, and that if it had been left to them, and they had found for the plaintiff, it would be our duty to set the verdict aside. Therefore the nonsuit was rightly granted. Brown v. European & N. A. R. Co., 58 Me. 384.

Petition dismissed.

WILL-ACCUMULATIONS OF INCOME.

NEW YORK COURT OF APPEALS, FEBRUARY 8, 1884.

BARBOUR V. DE FOREST.

the first department, affirming a judgment entered upon a decision of the court on trial at Special Term. This action was brought to obtain a judicial construction of certain provisions in the will of Burr Wakeman, deceased, and in a codicil thereto. The opinion states the case.

Frederick H. Man, for appellant.

Henry W. De Forest, for respondents.

EARL, J. Burr Wakeman died in July, 1879, leaving a last will and testament, in which he gave and devised a portion of his residuary estate, consisting of real and personal property, to his executors in trust, to receive and apply the income thereof to the use of his great granddaughter, the plaintiff, then an infant, during her life; and after her death to pay and transfer the principal to her children; and if she died without leaving any child, then to other persons as mentioned in the will. By a codicil subsequently executed he directed that so much of the income of the share thus put in trust for the benefit of his great granddaughter as should not be needed, in the judgment of his executors, for her support, should be retained and invested by them during her minority, and any accumulation of income should be treated and dealt with as part and parcel of the principal of such share. The will and codicil were admitted to probate, and the executors qualified and took upon themselves the trust. It turned out that the income was more than in their judgment was needed for plaintiff's support, and the claim is made on her behalf, that the direction for the accumulation of such income is invalid, while the executors claim that it is valid. This action was commenced for the construction of the will and codicil, so far as they relate to the plaintiff. At the trial term it was held that the direction for the accumulation of the income was invalid, but that it was invalid only so far as it required the accumulated income to be added to the principal; and the court held that the surplus income could be accumulated for the benefit of the minor during her minority, the accumulation at all times to belong to her, and to be paid to her upon her reaching her majority. Upon appeal to the General Term, it was there held, reversing the judgment of the Special Term, that the direction for accumulation contained in the codicil was valid, and from the decision of the General Term the plaintiff appealed to this court.

The matter for our determination depends upon the construction of the provisions of the Revised Statutes in reference to the accumulation of the rents and profits of lands and the income of personal property. 1 Rev. Stat. 726, §§ 37, 38; id. 773, § 3. By the thirtyseventh section cited, an accumulation of the rents and profits of land for the benefit of one or more persons may be directed by will or deed for the benefit of minors in being when the accumulation commences, and to terminate with their minority, subject to the proviso in the second subdivision of the section, that when the accumulation is directed to commence at any time subsequent to the creation of the estate, it shall commence within the time permitted by the statute for the vesting of future estates. By the thirtyeighth section all directions for the accumulation of the rents and profits of real estate, except as allowed by the prior section, are declared to be void. The statute regulating the accumulation of the income of personal property is substantially the same as that relating to the accumulation of the rents and profits of land.

The question is whether the accumulation directed by the codicil of this will was for the benefit of the plaintiff, a minor, within the meaning of these provisions. If it was not, then it was invalid. The case of Pray v. Hegeman, 92 N. Y. 508, is an authority con

trolling the decision of this case. There a certain specified portion of the income of property was required to be applied by executors to the support and education of a minor, and the balance of the income was to be added to the share producing the income and accumulated, as principal, until the minor arrived at the age of twenty-one years, after which period the whole of the income was to be applied to that child for life, and upon the death of the child was to go to other persons. In that case it was held that under the provisions of law referred to, the accumulation was to be for the benefit of the minor solely and during his minority, and that a direction for accumulation during a minority, accompanied with a gift of the income of the accumulated fund after the expiration of the minority, to the minor for life, and of the principal, upon his death, to other persons, is void. That case is not distinguishable from this from the fact that only a specified portion of the income was to be paid to the minor during his minority, and that the undefined balance was to be accumulated. Here the direction to accumulate applies to so much of the income as in the judgment of the executors should not be needed for her support. The balance above that sum was to be accumulated and become a part of the principal, and when it thus became a part of the principal it could never again be taken therefrom and applied to her support as an infant. After it was once accumulated and added to the principal it was no longer solely for her benefit, but for the benefit as well of the persons who should succeed to the principal after her death. It was further decided in the case referred to, that in such a case the direction to accumulate must be stricken from the will so as to leave the income to go immediately to the party entitled to the life estate. The result by applying the principles of that case to this is that the plaintiff is entitled to a judgment declaring the direction to accumulate, contained in the codicil of this will, to be void, and that she is entitled to the whole income of the share put in trust for her.

The judgment of the General Term should therefore be reversed, and that of the Special Term modified according to this decision, and costs of both parties should be paid out of the estate of the testator. All concur.

Judgment accordingly.

FEDERAL AND STATE COURTS-CONFLICT OF

JURISDICTION.

SUPREME COURT OF THE UNITED STATES. MARCH 31, 1884.

COVELL V. HEYMAN.

The State and Federal Courts do not belong to the same system so far as their jurisdiction is concurrent; and although they co-exist in the same space they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. Where a United States marshal, acting under the authority of a United States court, wrongfully seizes the property of a person by virtue of a levy under an execution, the remedy of such person must be sought for in the Federal court, the State court has jurisdiction in the premises. N error to the Supreme Court of the State of Michigan. Opinion states case. Roger M. Butterfield, for plaintiff. Lyman D. Norris, for defendant.