imprisonment, and that it must be the imprisonment
of the justice, who is the immediate and not the re-
mote cause of it. In this State the law makes the same
presumption in favor of the jurisdiction of justices
that it does in favor of the jurisdiction of superior
courts of general jurisdiction. Wright v. Hazen and
Gordon, 24 Vt. 143. But presumptions are indulged in
only to supply the absence of evidence or averment re-
specting the facts presumed. They have no place for
consideration when the evidence is disclosed or the
averment is made.

of trying that question in advance, and that he was
not bound to know at his peril the facts limiting his
jurisdiction. This holding would make the justice lia-
ble if the original writ described the plaintiff as a resi
dent unless the requisite affidavit was filed, for he
would then have knowledge of the facts that limited
his jurisdiction.

In Carleton v. Taylor, 50 Vt. 220, it is said to be a
well-settled rule of law that when the court had no
jurisdiction of the process it is nugatory and void, and
that all persons acting under it are without protection;
When therefore the record states the evidence, or that if under our statute exempting from arrest in
contains an averment with reference to a jurisdic-suits on contracts, the process issues against one not
tional fact, it will be taken to speak the truth on that of the class named, or without compliance with the
point, and it will not be presumed that there was other prescribed condition, it issues without warrant of law,
or different evidence respecting the fact, nor that the and the court has no jurisdiction of the process.
fact was otherwise than as averred. Galpin v. Page, 18
Wall. 350; Wade v Hancock, 14 Reporter, 672; Freem.
Judg., § 125. Hence it cannot be presumed that the
allegation of time in this complaint was a mistake, and
that the evidence may have shown that the offense was
in fact committed within the time limited. The case
must stand on the presumption and ground that the
offense was in fact committed more than six years be-
fore the complaint was exhibited. It does not stand
as it would had the complaint laid the offense within
the time limited, but the evidence had shown it with-
out the time. Magistrates of neither superior nor infe-
rior courts are answerable for a want of jurisdiction
arising from a mistake of fact that they had no means
of discovering nor correcting, nor when they would
have had authority to act had the facts been as alleged
by the party. Lowthor v. Earl of Radnor, 8 East, 113;
Pike v. Carter, 3 Bing. 78; 1Smith Lead. Cas. 1135.

In Morrill v. Thurston, 46 Vt. 732, a justice was held liable where the plaintiff was committed on a warrant issued to bail in a recognizance for an appeal in a liquor prosecution, the recognizance not being one authorizing a surrender of the principal in discharge of bail. That was a stronger case for the defendant than this, for there the facts may fairly be said to have given the defendant colorable jurisdiction, and to have called upon him to decide whether he had jurisdiction and authority to act or not; while here the facts presented had no color of legal value, and the defendant's action in the premises was but the commission of an official wrong.

In Aiken v. Richardson, 15 Vt. 500, it was held-as it has been since in Muzzy v. Howard, 42 id. 23-that under the statute against arrest and imprisonment for debt there was no competent jurisdiction to issue a capias without the requisite affidavit, and that the case was analogous to the cases that proceed on the ground that jurisdiction of the process is as essential as jurisdiction of the person and of the subject-matter. And Smith v. Bouchier, 2 Str. 993, was referred to approvingly, which was trespass and false imprisonment against five, who justified under process of the University of Oxford, for that by the custom, a plaintiff making oath that he had a personal action against any party within the precincts of the university, and that he believed the defendant would not appear, but run away, the judge might award a warrant to arrest him, and detain him till security was given for his answering the complaint; that the defendant Bouchier made a complaint to the defendant Shippen, the vice-chancellor, of a personal action against the plaintiff, and that he suspected the plaintiff would run away; that he took his oath of and upon the truth of the premises upon which a warrant was granted to the other defendants, whereon plaintiff was arrested. The court held that the custom was not pursued, for that by it

the plaintiff was to swear to his belief of the defend-A

ant's design to run away, whereas he only swore that he suspected it, which was not the same thing; and the plaintiff had judgment against all the defendants.

Wright v. Hazen aud Gordon, supra, was a case for false imprisonment against the party and the justice for an arrest for debt without the requisite affidavit. As to the justice, the pleadings left the case to stand on the fact that the plaintiff was a resident citizen at the time the writ issued, so the plaintiff had judgment on the pleadings; but in view of a repleader being awarded, the court said that all it would be neces sary for the justice to show was that the original writ described the plaintiff as a non-resident, and that he signed it supposing such to be the fact, having no mode

Whatever the decisions elsewhere have been on the subject and they are not uniform-we deem it impossible to sustain this plea without overruling several decisions of this court that have long been recognized and practiced upon as the settled law of the State. Judgment affirmed, cause remanded, and repleader awarded on the usual terms.

Powers and Veazey, JJ., dissent.

MASTER AND SERVANT-" FELLOW SERVANT"
– FOREMAN — BURDEN OF PROOF.

MINNESOTA SUPREME COURT, APRIL 24, 1884.

PARKER V. ST. PAUL, M. & M. Ry. Co.*

The plaintiff, with other servants, was employed to assist in
handling and removing cars in the yards of the defendant,
including also as a part of his duty the removal of dam-
aged or broken cars to the proper place for repairs, under
the direction of a foreman, who was subject to the orders
of a yard-master and division superintendent. Held, that
as respects risks arising from the acts and omissions of
such foreman in the course of such employment, he was
to be deemed the fellow-servant of plaintiff.
The burden rests upon the servant claiming to be injured in
such case to show that the injury is the result of the mas-
ter's default or negligence in respect to some duty belong.
ing to him as master.

PPEAL from order of District Court, Hennepin
county.

Benton and Roberts, for appellant.
Arthur M. Keith, for respondent.

VANDERBURGH, J. For the purposes of this appeal
it must be taken as admitted that the plaintiff, at the
time of the injury complained of, had been for several
months in the employ of the defendant as a brakeman
in the yard of the company at Minneapolis. It was
his duty, in connection with an engineer, foreman and
other employees, to assist in handling and moving
freight cars for different purposes, including damaged
or broken cars, which were required to be transferred
to repair tracks in the same yard. While thus en-

*S. C., 19 N. W.Rep. 349.

gaged with them in the course of his employment, on
the day in question, in removing a damaged car, and
while in the act of uncoupling it from an engine, and
without fault on his part, his hand was severely in-
jured, in consequence of the coupling attachment be-
ing out of repair, of which fact he was not at the time

aware.

It was a matter of daily occurrence for these men to be so engaged in removing cars. As to the particular car in question, it appears that it was promptly inspected by a car inspector after it was broken, and set out upon a side track to be transferred to the repair track, and the inspector at the same time caused "bad order" cards to be fastened on each side of it, in the customary way, which indicated that it was to be so removed for repairs, and the signification of which was well known and understood by the employees in the yard, including the plaintiff. It thereupon became their duty, under the direction of their foreman, to remove the car to the proper place for repairs. The plaintiff had on a previous day observed this car, and that it was so marked, but under the circumstances in which he was ordered to uncouple it, he did not recognize or identify it. The engine had been coupled to it, and the foreman, as we must assume from the verdict, gave plaintiff the wrong signal, indicating that it was to be sent to a track which was not in the direct line or route to the repair track, and ordered the plaintiff to uncouple the car from the engine at the proper time to carry into effect such order, and the latter not understanding that the car was on the way to the repair track, mistook its character, and failed to exercise the proper caution in the process of uncoupling it. The plaintiff's evidence warrants the inference that if he had observed the marks upon the car, which he did not do, being called to act quickly, he would have pro. ceeded more cautiously; and so also if the foreman under whom he acted had given the proper signal to indicate that the car was on the way to the repair track he would in like manuer have protected himself. This foreman was acting under a yard master, who was his superior, and the latter in turn was subject to the orders of the division superintendent of the company.

servant. The duty of handling such cars, after inspection, belonged to these men as the servants of the company in their particular department of duty, irrespective of the particular grade of employment of each in the division of labor necessarily incident to the service. And it was not a duty or service which was being performed by the foreman as master as respects the question of liability to other employees. In other words, it was a servant's, and not a master's duty he was discharging.

2. It is the duty of the master to use reasonable diligence in the employment of servants to secure such as are competent and reliable, and to provide them safe and suitable machinery, appliances and equipment, and also to establish and promulgate suitable and needful regulations for the safe and proper conduct of its business, having reference to its risks and exigencies; and these are duties which belong to the master as such, and in the performance of which he is bound to exercise such diligence for the protection of his employees; and if they are performed through an agent, of whatever grade, he must be deemed to represent the master, and the latter is accordingly responsible for their negligent performance. Slater v. Jewett, 85 N. Y. 73, 74; Fuller v. Jewett, 80 id. 52. But where there has been no lack of diligence on the part of the master in the performance of these duties, it is manifest that the use and operation of the machinery, and the execution and management of the details of the business, must necessarily be committed to those who from the nature of their employment, for a common master and a common purpose, are co-servants, who must each, among the hazards of the employment, be deemed to assume the risk of the negligent acts, omissions or mistakes of fellow servants, just as he takes the risk of imperfections in machinery which may prove unsafe in fact, though selected and inspected with due care. Rose v. Railroad Co., 58 N. Y. 217; Besel v. Railroad Co., 70 id. 171; Wright v. Railroad Co., 25 id. 566; De Graff v. Railroad Co., 76 id. 125; Ladd v. Railroad Co., 119 Mass. 412; Holden v. Railroad Co., 129 id. 276. In this case the car had been withdrawn from actual service in the business of the company, and duly inspected and marked for repairs. That it was a damaged car in process of removal implied no negligence on the part of the company, and there is no contention that the defendant did not exercise due diligence in the matter of the employment and retention of its servants, or that the appliances and arrangements for the transfer of such cars, apart from the question of notice to plaintiff, were not adequate and suitable. Flanagan v. Railroad Co., 45 Wis. 105; Watson v. Railroad Co., 58 Tex. 438.

It does not appear that the foreman had any other responsibility than as above indicated. The plaintiff was employed to assist him in the matter of handling cars in the yard, as well damaged or broken cars as those for ordinary service and use.

1. As respects the discharge of such duties by the parties so employed, and any risks incident thereto, including the acts and omissions of the foreman, the latter must be regarded as the co-servant of plaintiff. Brown v. Railroad Co., 27 Minn. 162; 6 N. W. Rep. 484; McCosker v. Railroad Co., 84 N. Y. 82; Lawler v. Railroad Co., 62 Me. 466; Weger v. Railroad Co., 55 Penn. St. 460; Brown v. M. & St. L. R. Co., 18 N. W. Rep. 834. The foreman was not deputed to act as the authoritative representative of the master, as superintendent or middle-man, vested with a discretion to control and manage a division or department of the business. Whart. Neg. (2d ed.), § 235. And therefore ⚫as to fellow servants, his negligence in the discharge of such duties is not attributable to the master. We think therefore the court erred in refusing defendant's ninth request, to instruct the jury "that the defendant was not liable for any negligence of its servants in the manner of removing the car, nor for any directions given by any one of them as to the manner of removal." So The vice of this instruction, as thus modified and also, we think, the court erred in assuming in the second given, is, we think, that it makes the question of the and third instructions, given at plaintiff's request, that defendant's liability turn upon the fact of actual nothe foreman, in the course of his employment in the tice, directly or indirectly, to the brakemen, leaving matter of removing and handling damaged cars, was out of view the question as the exercise of due dili representing the master, and engaged in the perform-gence by the company in the matter of providing and ance of duties pertaining to the master, and not to a publishing suitable regulations for the transfer of

3. The court modified the defendant's sixth request by inserting the words we have italicized, so that as given it would read as follows: "Sixth. The peril incident to the coupling of damaged cars is one to which every railroad brakeman may be exposed by the very nature of his employment, and one which at times must necessarily be incurred. The existence of such peril while such car is being taken to the place of repair implies no negligence whatever upon the part of the railway company, and is no ground for recovery by an injured brakeman if he is either directly or by the circumstances notified that the car is damaged or is being moved to a place for repairs. It is a risk he assumes for himself." To such modification defendant excepted.

damaged cars, or the existence or effect of any usage which might be deemed equivalent thereto. It is clear that the arrangements and regulations made and in operation for the transfer of such cars might be reasonably suitable and proper for the purpose, and yet through some accident or misfortune, or some negligent act or omission of a fellow servant in carrying them out, a brakeman or other laborer might be misled or misdirected, so as to mistake the character of the car or its destination, and mistakes or confusion in giving orders may be reasonably expected to occur without the fault of the defendant, or its superior or managing officers.

4. The question as to the existence or sufficiency of such regulations or usage on the part of the company does not seem to have been considered in this case; nor does the want of them appear to be shown. In the absence of proof the master will hardly be presumed to be in default; nor will it be presumed that regulations or precautions are insufficient because the foreman failed to do his duty. Rose v. Railroad Co., 58 N. Y. 222; Wood, Mast. & Serv., §§ 419-346; Davis v. Railroad Co., 20 Mich. 122; Wright v. Railroad Co., 25 N. Y. 566; Whart. Neg., § 243; Thomp. Neg. 1053. In any event, if there was a regulation or usage established and existing and known to plaintiff, amounting to a direction as to the disposition of damaged cars, and under which it was the duty of this crew of men to remove them to track No. 8, plaintiff must be deemed to have undertaken and continued in his employment subject to all the risks incident to such particular duty, and no liability would attach to the company on account of the mistakes or omissions of the foreman. Flanagan v. Railroad Cc., 50 Wis. 472; 7 N. W. Rep. 337; Watson v. Railroad Co., 58 Tex. 438; Railroad Co. v. Ward, 61 Ill. 131; Haskins v. Railroad Co., 65 Barb. 134; 56 N.Y. 608; Wright v. Railroad Co., supra, 570. Fay v. Rail. road Co., 30 Minn. 231; 15 N. W. Rep. 241, has no application to the facts of this case. There a freight car was negligently continued in actual use in the business of the company, without examination or repair, which were held to be duties belonging to the master. And as respects the company's rules for coupling cars, it was held merely that an employee could not be charged with contributory negligence in not observing a rule of which he had no notice, and which had fallen into disuse.

Order reversed and new trial granted.

A'

PPEAL from judgment of the General Term of the Supreme Court, in favor of defendant, in the first department, entered upon an order made overruling plaintiff's exceptions and directing judgment on a verdict.

NEW YORK COURT OF APPEALS, APRIL 29, 1884.
MCCARTHY V. MAYOR, ETC., OF NEW YORK.

An employer is not made liable under and by the "Eight-
Hour Law" (Ch. 385, Laws of 1870), to an employee hired
by the day, for labor beyond the statutory time, unless it
was provided for in the contract of employment.
Plaintiff entered into defendant's employ in the department
of docks at an agreed price per day, with knowledge that
the custom of the department and the nature of the ser-
vices required ten hours work each day. He continued
in such employment two years, laboring ten hours, each
working day and sometimes more; he received his wages
at the agreed price at regular periods without objection
or claim for extra compensation, giving receipts purport-
ing to be in full up to date. In an action to recover com-
pensation for the extra work over eight hours per calen-
dar day, held, the circumstances justified a finding that
the extra services were rendered without any expectation
or understanding, express or implied, that extra compen-
sation was to be paid therefor, and that plaintiff was not
entitled to recover.

This action was brought to recover for work, labor, and services alleged to have been rendered by the plaintiff for the defendant.

Plaintiff continued in such employment from June 27, 1874, to March 4, 1876. Periodically and at the end of every two weeks during that time he received payment for his services at the rate of $2.50 per day. At the time of receiving each payment, the plaintiff signed a pay-roll containing a receipt in full. In 1879, three years after the plaintiff ceased to work for the defend. ant, he made a demand upon the comptroller for payment for extra work sought to be recovered in this action.

Denis A. Spellissy, for appellant.

D. J. Dean, for respondent.

RUGER, C. J. We quite concur in the views expressed by the learned judge writing the opinion of the court below, and could perhaps well rest the decision of the case upon the consideration there given to it were it not that the novelty of the provisions contained in the so-called "eight-hour statute," and the large number of persons interested in their construction, render it proper that we should also express our views with reference to their legal effect. The section under which the claim in this case is made reads as follows:

"

'On and after the passage of this act, eight hours shall constitute a day's work for all classes of mechanics, workingmen, and laborers, excepting those engaged in farm and domestic labor, but overwork for extra compensation by agreement between employer and employee is hereby permitted." Section 1, ch. 385, Laws of 1870. The second section makes the law applicable to persons in the employ of municipal corporations, and undoubtedly brings the appellant within the benefits intended to be conferred by the act.

It is well to premise that this act was not intended
to affect or regulate the rate of wages which should
govern as between employer and employee. That sub-
ject is left by the act, as it must always remain open
to be fixed by the agreement of the parties intending
to enter into those relations. Experience has shown
“EIGHT-HOUR that legislation on the subject must always be futile

and ineffectual, for the reason that it is controlled by
the natural laws determining the value of labor and
property, and which are as much beyond the power of
statutes to affect as they are above the control of the
wishes of the parties interested therein.

Legislation which tends to reduce the hours of labor to be rendered in a calendar day will by the operation of a silent but inevitable law also reduce correspondingly the rate of the per diem compensation to be paid for such labor, and will thus always maintain the same relation between the services rendered and the price paid which existed previous to the enactment of, such statutes. Any attempt to affect artificially the rate of compensation for labor, whether it be sought in the halls of legislation or in the forum of judicial tribunals, must necessarily lead to the same result, and produce either a cessation of employment by reason of its unprofitableness, or an adaptation of the price paid to the actual market value of the services rendered.

It seems to us therefore quite obvious that the Legislature did not attempt by the statute in question to interfere with the question of the rate of compensation to be paid for labor, but left it in terms to the

with a knowledge and understanding of the custom of the department of public works requiring ten hours labor in each calendar day's employment, and that his services as a scowman were to be rendered mainly upon the water, which made the duration of the hours of labor necessarily depend, to a certain extent, upon the action of the wind and tide, causes which would often prolong those hours beyond the control of either party to the contract.

A practical and apparently iusuperable obstacle is thus presented to the termination of the hours of labor at any fixed and arbitrary period.

agreement of the parties. It was one of the avowed statute, was to be paid for by an extra per diem com-
objects of the act in question, by establishing a limita-pensation. The plaintiff entered into the employment
tion upon the hours of labor, and referring the control
of their time, beyond those hours, to the persons em-
ployed, to confer a benefit upon the classes protected,
and afford them in the employment of their leisure
time an opportunity for physical and intellectual im
provement which they had not previously enjoyed;
but it did not make labor beyond the statutory time,
if performed with their consent, illegal, or require
compensation to be made therefor unless it was pro-
vided for in the contract of employment. It was no
part of the design of the act, and indeed it would be
contrary to its avowed object and intent to so construe
it as to authorize two statutory days' labor to be
crowded into one calendar day, or to give the price of
two for one calendar day's labor, as that would operate
to the manifest social detriment of the classes intended
to be benefited. Any construction which should hold
out to the laborer extraordinary inducements to pro-
long his hours of labor and to shorten those of rest and
recreation would directly conflict with the spirit and
meaning of this legislation and the benefits intended
to be furnished by it. Its plain and obvious intent
was to place the control of the hours of labor within
the discretion of the employee and give him the priv-
ilege at his option of declining to work beyond the
time fixed by the statute, or if he did so work, to au-
thorize him to secure extra compensation for extra
work by stipulating for it, in the contract of employ-
ment. In the absence of any special provision in such
a contract, as to the number of hours constituting a
day's labor, the act would be held to apply and fix
them at eight hours.

The language of the act does not authorize any inference that it was intended to confer the right upon persons employed to charge for more than one day's labor for the services rendered in any calendar day; but on the contrary such an inference is plainly repelled by the express provision authorizing extra compensation for overwork when the agreement provides for it.

Under these circumstances the court below have

Under a contract which does not specify the hours
of labor, the employee named therein is lawfully en-
titled to refuse to labor beyond the statutory time in
any calendar day of his employment; but he may law-found that the extra services in question were not ren-
fully contract to labor beyond that period and stipu
late for extra compensation for the labor rendered in
excess of that time.

dered by the plaintiff or received by the defendant
with the expectation or understanding on the part of
either party that they were to be paid for by extra
compensation; and that no promise for their payment
can be implied from the circumstances. We think this
finding was justified by the evidence, and cannot be
disturbed.

By settled rules of construction this provision must be held to mean that neither extra labor can be required, uor extra compensation demanded, except in the case of an agreement therefor previously made by the parties.

So when the exigencies of his employment, or the requirements of his employer, call upon the laborer for a greater number of hours of labor than those specified in the statute, it is optional with him, either to refuse to perform them, or to insist, as the condition of their performance, upon the payment of extra compensation for the extra work; but in the absence of such an agreement, the provisions of the act do not authorize a demand for the extra compensation.

There is of course no foundation in this case for a claim that any such agreement has been made, and in fact none is put forward by the appellant.

If it should be held under this statute, as it doubtless may, that such an agreement might be implied from circumstances, those existing in this case do not tend to raise such an implication, but on the contrary, quite conclusively tend to repel it.

It seems quite clear that it could not have been within the contemplation of either of the parties to this contract that the labor rendered by the plaintiff in each calendar day, beyond the time fixed by the

In the absence of evidence to the contrary, it must be presumed that the plaintiff entered into the contract with knowledge of the established usages of the employment, and the exigencies of the services in which he engaged, and that the contract price was intended to be graduated to compensate him for the excess of time which those usages and exigences might require him to render in excess of the hours specified by the statute. It is quite obvious that this was his understanding of the contract, as appears by his subsequent conduct. During the whole period of two years' employment he applied for his wages at regular periods of two weeks, and was paid at each of such periods at the rate of $2.50 per calendar day without objection on his part or claim for extra compensation. At each of these semi-weekly periods he executed receipts to the department of public works purporting to be in full for his wages up to the date of the receipt. No claim was made by him for extra wages until about three years after the date of the last payment, and no adequate reason is rendered for this delay in the presentation of the claim now urged.

The general rule by which a promise to pay for services is implied from the circumstances of the case does not afford any assistance to the appellant in this

|

case.

Such an implication arises only when the services aro rendered under circumstances authorizing an expectation of compensation therefor, or the inference that they would not otherwise have been rendered. Livingston v. Ackeston, 5 Cow. 531; Williams v. Hutchinson, 3 N. Y. 312; Griffin v. Potter, 14 Wend. 209.

The distinction between an express and an implied contract is that the first is proved by an actual agreement and the other by circumstances and the course of dealing between the parties. Hill. on Cont. (1st ed.) 54; Add. on Cont. 22.

The course of dealing between these parties shows conclusively that the whole compensation intended to be paid for the services in question was actually paid at regular intervals of two weeks each.

The particular question arising under a statute limiting the number of hours constituting a day's work, when a laborer has served more than the number of statutory hours has frequently been the subject of investigation in the tribunals of the United and neighboring States, and the result, under statutes more favorable to the claims of the laborer than those of this State, has uniformly been against the implication of a promise for the payment of such labor. United States v. Martin, 4 Otto, 403; Luske v. Hotchkiss, 37 Conn. 219; Brooks v. Cotton, 48 N. H. 50.