for the transportation of passengers, were not entitled to the rights of passengers; and while such is not the law in this State, it would be unreasonable to require of a carrier of passengers, who at some time may gratuitously or without hire furnish a hand-car, or other vehicle not adapted to or intended for the carriage of passengers, manned by a crew that had been employed simply to work on the track, and run the car for their own convenience, but had never been accustomed to look after the safety of others, and had not been selected or employed for such purpose, a greater degree of skill, care or diligence than would be required in carrying passengers for hire on regular trains, although it might be, in fact, more dangerous to ride on such improvised conveyance than upon regular passenger coaches." In Hoar v. Me. Cent. Ry. Co., 70 Me. 65; S. C., 35 Am. Rep. 299, it was held that one riding as a passenger on a hand-car by invitation of the section foreman has no remedy.

SHIP AND SHIPPING-LIABILITY OF JOINT
OWNERS FOR CARE OF SEAMEN.

COURT OF APPEALS OF NEW YORK, OCT. 18, 1887.

SCARFF V. METCALF.

One of the owners of a vessel made an arrangement with M., the other owner, to sail the vessel for one-half the gross earnings, he to pay from that half the victualing and manning of the vessel, but M. exercising some control over it. Plaintiff, a mate on board, was hurt on a voyage, and sued both owners for injuries resulting from neglect on the part of the captain. Held, that as there was no actual demise of his interest in the vessel by M., he retaining some authority over it, a judgment against both owners was correctly given.

Joseph A. Shoudy, for appellant.

Wm. Sullivan, for respondent.

that the doctor consulted disclosed the true nature of the disease; that he advised the removal of the injured man to the hospital, about fifteen miles distant, or at least to a suitable place on shore; that he pronounced it dangerous to carry the mate back to New York without an operation, if a delay exceeding twelve days was involved; that the plaintiff requested a removal to the hospital or to the shore, with the provision usual in such cases and necessary to his support; but that the master refused these requests, and kept him on board till the home voyage was begun and ended, and more than twenty days after the doctor's warning, landed the mate in New York, and placed him in a hospital, where amputation became necessary because of the long delay and destructive progress of the disease. It is of little consequence to the liability of Yates whether he be regarded as master or owner, for in either character the negligence was his, and drew with it a personal responsibility.

The maritime law is sensitive to the rights of seamen, and sedulous for their protection. When sick or injured, they are entitled to be cared for and cured at the expense of the ship, and not to be turned adrift in strange lands without adequate provision. They are exposed to hardship,confronted with dangers, and grow occasionally reckless by their very familiarity with peril. The master's authority is quite despotic, and sometimes roughly exercised, and the conveniences of a ship out upon the ocean are necessarily narrow and limited. That which on land would be contributory negligence, the maritime law scarcely recognizes, and readily execuses, (The City of Alexandria, 17 Fed. Rep. 395), and in many ways throws its protection around the seaman. When he falls sick or suffers injury, the owners owe to him the duty of rendering such care and medical aid as circumstances permit, and in the performance of that duty the master stands as the agent and representative of the owners, and his negligence is theirs. Petersen v. Swan, 50 N. Y. Super. Ct. 47; The City of Alexandria. supra; Reed v. Canfield. 1 Sum. 195; Harden v. Gordon, 2 Mason, 543. The last cited case considers the effect of the act of Congress requiring the ship to be supplied with a suitable medicine chest, and holds that such requirement does not subvert the general duty imposed upon the owners by the maritime law, but merely regulates a

remain at home, and do not sail upon the ship, can only perform, beyond supplying the medicine chest, through the master, who becomes their agent for its performance. The mate, although an officer, is a seaman. Holt v. Cummings, 102 Penn. St. 212; The Ocean Spray, 4 Sawy. 105; The Minna, 11 Fed. Rep. 759. While both he and the master are servants of the owner, and so fellow-servants, they are not such in respect to the owner's duty to the seamen which the master performs in their behalf, and as their representative, and the contention in this case that the master's neglect was that of a fellow-servant cannot prevail.

FINCH, J. The verdict of the jury requires us to adopt the plaintiff's version of the facts, since the judg-single detail of its exercise. This duty the owners who ment was in his favor, and the negligence of the master thereby established. If that judgment was against him alone, very little question would arise; but it involves another owner, not on board the vessel, but remaining at home, and so situated in his relation to the facts as to make necessary their careful consideration. The barkentine upon which plaintiff was injured while employed as mate was owned by Yates and Metcalf. She was sailed by Yates as master, on shares, by virtue of an agreement with Metcalf to that effect. The agreement was not in writing, and is detailed solely by the two owners, each of whom testified to its existence. The vessel started on a voyage to Sagua la Grande in Cuba, and when some distance at sea, the plaintiff received an injury in the performance of his duty which developed into an aneurism of the popliteal artery, causing him great pain, and largely incapacitating him for active service. The vessel was provided with a proper medicine chest, and no complaint is made, that before arriving at the port of destination, the master treated his mate otherwise than with kindness and care, and with such means as his limited knowledge and opportunity enabled him to use. But on reaching port and consulting a physi-Mosely v. Scott, 14 Am. Law. Reg. 599; Tomlinson v. cian, it was made apparent to the master that surgery, and not medicine, was needed to cure the injury. At this point of the case the contradictions become plentiful; but we must asssme, in support of the verdict,

Where the duty of the owner to the seaman is performed, the cost of nursing and medical attendance falls upon the ship, (The North America, 5 Ben. 486,) and that has been ruled even where the patient had been removed to his own house, (Holt v. Cummings, supra). But where that duty is not performed, and the seaman suffers injury from the neglect, the ship in a proceeding in rem, and the owners in a suit against them, are liable for the damages suffered. Couch v. Steel, 77 E. C. L. 402; Brown v. Overton, 1 Spr. 463;

Hewett. 2 Sawy. 278; Petersen v. Swan, supra. These principles settle the liability of Metcalf, unless he is discharged by force of his arrangement with the master, to which attention must now be directed.

$50,000, and an application of the proceeds to such
payment. The assignment and delivery of the 361
shares of stock, and execution of the power of attor-
ney by Seeley to Reed, no more express their inten-
tion in the transaction than an absolute deed to real
property from the former to the latter would, where a
defeasance was given back. The deed by itself would
constitute a complete conveyance of the property, but
in connection with the defeasance, would be no con-
veyance at all; would be no more than a charge or
lien upon the property. So the assignment and power
of attorney, considered by themselves, would consti-thorizing him to make the sale.
tute a sale of the stock, with an immediate right upon
the part of the purchaser to have a transfer made,
from the vendor to himself, on the books of the com-
pany; but considered in connection with the agree-
ment made and entered into, by and between the
parties at the same time, might have an entirely dif-
ferent character.

shares of stock. No authority was given him in the
agreement to surrender them to the company and re-
ceive other certificates in his own name. He could
not become the owner of the stock by a transfer to
himself, and no more, in my opinion, had he the right
th clothe himself with the apparent ownership of it.
He had authority to sell it, in case the note and inter-
est were not paid when due, and make a transfer to the
purchaser upon the books of the company. The
power to make such transfer, it seems to me, was only
to complete the sale, in case the event transpired au-

It is certain that the assignment was not intended to have any effect except as a pledge of the stock, coupled with a right to sell it in case the note was not paid at its maturity; and I concluded, when the case was heard, that the power of attorney could have no operation until such sale was made; that it was only executed for the purpose of enforcing the security in case Reed was compelled to resort to it in order to obtain payment of the note; and I therefore characterized Reed's act in having the transfer made to himself upon the books of the company, by surrendering up the stock, and having new certificates issued to himself before the note became payable, as a wrong. Whether that conclusion was correct or not must be determined by an ascertainment of the intention of the parties to the transaction, and that must be gathered from the assignment and transfer of the stock, the power of attorney, and agreement entered into between them at the time. The said agreement coutains a recital that Reed was about to advance to the "Oregon Iron & Steel Company an amount of money, so that the total amount of his advances would aggregate $150,000; that Seeley was willing to take an interest of $50,000 in the total advances made by Reed, and had given his note, of even date with the agreement, to Reed for said sum, payable two years from date, with interest, etc., and had delivered as collateral security, for said note and interest, 361 shares of the capital stock, full paid, of said company. Therefore Reed undertook, upon the full payment of the note and interest, to redeliver to Seeley said shares of stock, together with one-third of such bonds, etc., as he should receive from said company, in consideration of his said advances; and Seeley, in consideration thereof, authorized and empowered Reed upon default of the payment of said note, at the maturity thereof, together with the accumulated interest thereon, to sell or dispose of, at public or private sale, and in such manner and on such terms as to the said Reed should seem best, the said 361 shares of stock. Any one having any knowledge whatever of business affairs would know at once that this agreement was the substratum of the transaction between the parties, and that the assignment and transfer of the stock, and execution of the power of attorney, which it appears was signed it blank, were for the sole purpose of carrying out the provisions of the agreement; and it seems to me that to term this assignment and transfer of the stock any thing other or different than a pledge would be a misnomer.

It is well understood that property of such character is capable of being pledged as well as sold, and that the general law relating to that subject applies to such a pledge. Reed's duty in the matter, under the law and under the agreement, was, upon full payment of the note and interest, to redeliver to Seeley the 361

Counsel however claim that it was necessary in order to protect his security, that the transfer upon the books be made to him at once; that otherwise Seeley's creditors might come forward and attach the stock, and cut off the security. They do not explain how Seeley was to be protected against Reed's creditors in case the stock is registered in the latter's name. I do not see how Seeley, especially under the view of counsel that the registry of the stock passes the legal title, could not have any protection. Reed would have the title, and his creditors, if he had any, could sequester it with impunity. It would not be necessary for them to prove that they trusted him upon the faith that he was the owner of the stock, as he would be owner in fact. But I do not think that "unless Reed had the right to transfer the stock to himself upon the books of the company under said power of attorney, his collateral security would be of no more value to him than a chattel mortgage unrecorded and coucealed in his pocket; " or that "prior to the time when the transfer was made upon the books of the company, any creditor of Seeley might have attached the stock, or have seized it upon execution, or Seeley might have sold it to a bona fide purchaser."

There have been, I confess, a number of decisions to that effect, but the weight of authority is the other way. Mr. Cook, of the New York bar, in a late work on the law of stock and stockholders, says (sec. 487): "The decided weight of authority holds that he who purchases, for a valuable consideration, a certificate of stock, is protected in his ownership of the stock, and is not affected by a subsequent attachment or ex ecution levied on such stock, for the debts of the registered stockholder, even though such purchaser has neglected to have his transfer registered on the corporate books, thereby allowing his transferer to appear to be the owner of the stock upon which the attachment or execution is levied." And this author cites a large number of authorities in support of that rule.

The decision upon the question in the different States, and in many of the States themselves, have not been in harmony. The language of Chief Justice Shaw in Fisher v. Bank, 5 Gray, 373, quoted in the counsel's petition, "that shares in a bank whose charter provides that they shall be transferable only at its banking house, and on its books, cannot be effectually transferred as against a creditor of the vendor who attaches them without notice of the transfer, by a delivery of the certificates, together with an assignment and blank power of attorney from the vendor to the vendee, even if notice of the transfer be given to the bank before the attachment," instead of being authority in favor of the counsel's position upon the point, is considered, in the light of the other decisions in that State, directly against it.

In Sibley v. Bank, 133 Mass. 515, it was shown that Judge Shaw's decision in Fisher v. Bank was controlled by the statutes of that State expressly applicable to bank shares. Judge Allen, who delivered the opinion of the court in Sibley v. Bank, 521, says: "In Fisher v. Bank the question was, what was the intention of the Legislature of this State in using similar

words [referring to the provisions of the Federal
Banking Act, that the stock shall be transferable on
the books of the bank in such a manner as may be
prescribed by its by-laws], and the court found in the
general spirit and scope of the legislation of this Com-
monwealth, as to the attachment of shares in corpo-
rations, and in the particular legislation as to the at-
tachment of bank shares, evidence that the Legisla-
ture intended by the words, the stock of said bauk
shall be transferable only at its banking-house and on
its books,' to enact that an assignment not so re-
corded should not be valid against attaching creditors
of the assignor. * * 93
Those statutes not only
made the shares of any stockholder liable to attach-
ment, but made it the duty of the officers of any cor-
poration keeping its records to give a certificate of the
shares or interest of any stockholder, on request of
any officer having a writ of attachment or execution
against such such stockholder. But he says: "The
statute under consideration for construction is a stat-
ute of the United States, in whose legislation no such
policy existed, and whose legislative acts contained
no provisions such as were referred to from the legis-
lation of Massachusetts."

*

rect opposite of the holding set out in the petition; that under the statutes of this State upon the subject it may reasonably be supposed he would have decided the same way the court did in Music Hall v. Cory, supra. Such has been the current of decisions of the Federal courts. And I am of the opinion that in the best considered cases the same result has been reached. In support of that opinion I cite with great confidence Smith v. Crescent City, etc., Co., 30 La. Ann. 1378, and Cornick v. Richards, 3 Lea, 1. Judge Davis, in Bank v. Lanier, 11 Wall. 377, 378, stated explicitly what kind of security Reed had when Seeley deposited said certificates of stock with him, when he said, that "although neither in form nor character negotiable paper, they approximate to it as nearly as practicable. If we assume that the certificates in question are not different from those in general use by corporations, and the assumption is a safe one, it is easy to see why investments of this character are sought after and relied upon. No better form could be adopted to assure the purchaser that he can buy with safety. He is told, under the seal of the corporation, that the shareholder is entitled to so much stock, which can be transferred on the books of the corporation, iu person or by attorney, when the certificates are surrendered, but not otherwise. This is a notification to all persons interested to know that whoever in good faith buys the stock, and produces to the corporation the certificates, regularly assigned, with power to transfer, is entitled to have the stock transferred to him. And the notification goes further, for it assures the holder that the corporation will not transfer the stock to any one not in possession of the certificates. In this state of the case Lanier and Handy made their purchase of Culver. They bought for value, without

And in Music Hall v. Corey, 129 Mass. 436, 437,Judge Colt, in delivering the opinion of the court, says: "In the next place, it is strenuously urged, that by force of the various statutes of this Commonwealth relating to the ownership and transfer of stock in corporations, authorizing the attachment of shares, requiring returns to the secretary of the Common wealth, and imposing a personal liability on stockholders for the debts of the corporation, there can be no transfer of stock, valid against the claims of an attaching creditor, unless such transfer be recorded in the books of the corporation;" citing the statutes. "The inten-knowledge of any adverse claim, in full faith that the tion of the Legislature, it is said, must have been to provide for the owners of stock a convenient and uniform method of transferring title on the books of the corporation, which should be the only valid transfer as to creditors and others interested; and although the statutes have not provided in express terms, that as to creditors, transfers shall not be valid till they are so recorded, yet such, it is contended, is the necessary implication, for otherwise the design of the statutes, requiring registration and making the shares liable to be taken for debts, would be defeated. But the consideration is not sufficient to control the law, as long since settled by the decisions of this court. It requires clear provisions of the charter itself, or of some statute, to take from the owner of such property the right to transfer it in recordance with known rules of the common law. And by those rules the delivery of a stock certificate, with a written transfer of the same, to a bona fide purchaser, is a sufficient delivery to transfer the title as against a subsequent attaching creditor;" citing several cases, including Fisher v. Essex Bank. The learned judge further adds that "it would not be in accordance with sound rules of construction to infer from the provisions of several different statutes, passed for the purpose of obtaining information needed to secure the taxation of such property, or for the purpose of subjecting stockholders to a liability for the debts of a corporation, or for protecting the corporation itself in its dealings with its own stockholders, that the Legislature intended thereby to take from the stockholder his power to transfer his stock in any recognized and lawful mode. If a change in the mode of transfer be desirable for protection of creditors, or for any other reason, it is for the Legislature to make it by clear provisions enacted for that purpose."

It is evident from these cases that Judge Shaw, in the absence of the peculiar provision of the Massachusetts statutes referred to, would have held the di

bank would observe its engagements, and pursued in all respects the directions given in the certificates. They were not told to give notice to the bank of their purchase, nor was there any necessity for notice, because by the rules of the bank, Culver could not transfer the stock in the absence of the certificates, and these they had in their possession." Reed being a pledgee instead of a purchaser of the stock, did not render it more necessary that it should be registered in his name in order that his rights in the transaction should be protected. Holding the certificate without such registry would be more consistent, and less liable to the imputation of fraud, in the case of a pledge than of a sale. But I am satisfied that in neither case could his rights be affected by any act done or suffered by Seeley subsequent to the delivery over to him of the stock, although no transfer were made upon the books of the company. Reed cannot therefore claim that it was necessary to his protection against the creditors of Seeley, or against the acts of Seeley himself in selling the stock to a purchaser without notice, that such transfer be made. The former had a right to have a transfer made upon the books of the company, but it seems to me that it was only a conditional right; that the parties did not intend that it should be exercised except in the event of non-payment of the note. They seem to have acted in accordance with such intention. Reed did not have the transfer made for more that a year and a half after the execution of the assignment, and in the meantime Seeley voted the stock. The transfer upon the books would put it out of the power of the latter to receive the dividends that might accrue thereon, and at the same time he had obligated himself to pay the interest upon the note semi-annually, at the rate of seven per cent per annum.

I can see no justice in the right which Mr. Reed sets up. Counsel have cited a number of authorities to show that he had a right, as pledgee of the stock, to