Clement v. Canfield.

there, was struck by an engine, run upon said railroad under the direction and authority of the defendant, and killed.

Plea, the general issue; trial by jury, March Term, 1855,— PIERPOINT, J., presiding.

The plaintiff introduced in evidence a lease from the Rutland & Washington Railroad Company to the defendant, of their railroad, depots, engines, cars, machinery, tools and all other real and personal property belonging to them, for the term of five years, the defendant paying a stipulated rent therefor, and covenanting to use said railroad and property for the transportation of freight and passengers, &c., and testimony tending to prove the other allegations in his declaration; but the only connection which it was attempted to show that the defendant had with the running of the engine by which the plaintiff's horse was struck, was that it was run under his general direction, as lessee, and in pursuance of his lease, the engineers and other hands being employed by him.

The defendant requested the court to charge the jury that the defendant was not, as the lessee of the road, the agent of the R. & W. R. Company, within the meaning of the statute on this subject; but the court declined so to charge, and did charge that the defendant, by reason of running the railroad under his lease, was the agent of the railroad company, and liable for the injury complained of, if the jury found the other parts of the case proved. Verdict for the plaintiff. Exceptions by the defendant.

C. L. Williams for the defendant.

E. Edgerton for the plaintiff.

The opinion of the court was delivered by

REDFIELD, CH. J. The only question here is, whether the defendant, being the lessee of the Rutland & Washington railroad, and running the same, under his lease, no cattle guards at a certain farm crossing adjoining the road being made and maintained according to the requirements of the general railroad act, and injury being sustained by the plaintiff through the defect of such cattle guards, is liable for such injury.

The provision of the general railroad law is, that all railroads shall maintain fences and cattle guards, at all farm crossings, for

Clement v. Canfield.

the security of the landowners, and "until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents, or engines, if occasioned by the want of such fences and cattle guards." The question is, whether a lessee can run a railway in defiance of this provision of the general law of the state. If that is so, it certainly shows the statute very defective, and liable to be evaded by a very hollow device. But it does not seem to us there is any difficulty in extending the statute to every one who runs the road, under or by permission of the company, until such fences and cattle guards are erected. The word agent is a very extensive term, and may be fairly applied to almost any one who performs the office of another. This lessee, in one sense, certainly, is the agent of the company. He is performing their functions, and clothed with their prerogatives, or he could not be allowed to take tolls, or freight and fare upon the road, or to run engines where he does, probably. In this sense he is the agent of the company. And having, as such agent, acquired the powers and prerogatives of the company, is it anything unreasonable that he should, while exercising such powers and prerogatives, be subjected to the same liabilities which the law imposes upon the company and their agents who destroy property? But it is said that a lessee is not of the class of agents referred to in the statute. That the statute probably refers primarily to those agents of the company who are under their control, like engineers and conductors. But does not the very relation in which the term agent is used, in this statute, show that the legislature must have adopted that most extensive term for the very purpose of reaching any and all persons who might acquire the right to run the road, under the powers conferred upon the corporation? Any other construction would seem to be contrary to the fair use of the term agent, with reference to the subject matter. I am well aware that, a lessee is not the agent of the corporation for all, or for most purposes. But in this sense, inasmuch as they execute these important public functions, under and by virtue of the franchises conferred upon the corporation, they may fairly be regarded as their agents, for the purpose of exposing the corporation to liability for allowing their road to be run before it was properly fenced and guarded, as was held in Nelson

Gregory v. Thrall.

v. The Vt. & C. R. Co., 26 Vt. 717; and equally for the purpose of exposing themselves to liability, under the statute, for running engines upon the road and killing cattle, through defect of cattle guards.

The principle of the case is much the same as in Baxter ats. Vermont Central Railroad, 22 Vt. 365, where the defendants are made liable for the acts of the contractor in claiming right of eminent domain.

And the declaration, alleging that the defendant became and was liable for all damages caused by his running the road, through defect of cattle guards, is well enough. This is the very liability which the statute imposes upon the company, and upon all its agents, who run the road, or assist in doing so, whereby damage accrues. It is true that the statute imposes, primarily, no duty upon any one but the corporation, to build fences and cattle guards. But every one is made liable, who runs the road, by or under the authority of the corporation, for all damages caused through defect of such cattle guards. It was, therefore, the duty of the defendant to see to it, that such cattle guards existed, while he run the road, or to accept the other alternative of the statute, by paying all damages caused through the defect. Judgment affirmed.

SILAS GREGORY v. REUBEN R. THRALL.

Declaration on jail bond.

A declaration upon a jail bond, given upon an arrest on mesne process, is defective and insufficient on demurrer, if it contains no averment that the person arrested was imprisoned in jail at the time of giving the bond.

DEBT on a jail bond. The defendant demurred to the plaintiffs' declaration. The county court, March Term, 1855,-PIERPOINT, J., presiding, overruled the demurrer, and held the declaration sufficient, to which the defendant excepted.

Gregory v. Thrall.

The alleged defect in the demurrer sufficiently appears in the opinion of the court.

R. R. Thrall for the defendant.

J. B. Bromley for the plaintiff.

The opinion of the court was delivered by

ISHAM J. Several objections have been taken to this declaration on this demurrer, but our attention has been directed but to one of them, as we are satisfied that, in that particular, the declaration is defective. The action is brought upon a jail bond, given on mesne process, for the admission of one Sylvanus Bidwell to the liberties of the jail yard. The statute, 575, § 21, provides, "that ev"ery person imprisoned in jail on mesne process, or on execu"tion, &c., may be admitted to the liberties of the jail yard, first "giving a bond to the keeper of the jail in the form prescribed by "law." An actual imprisonment in jail is necessary, under the statute, before a bond of this kind can be taken or required; and such was the construction of the act in the case of the U. S. Bank v. Tucker, 7 Vt. 134. When a person is under an arrest merely, bail to the officer is obtained by the indorsement of their names on the back of the process; and if not so furnished, the officer is directed to commit the person arrested to jail, when a jail bond may be given; Comp. Stat. 248 § 45. This being an official bond, those facts must be stated in the declaration, which authorized the officer to require and take the bond, otherwise the declaration is defective. There is no averment in this declaration, that Mr. Bidwell was imprisoned in jail, and that the bond was given in order to obtain the liberties of the yard; nor is there any fact stated, from which such an inference can be drawn. The averment in substance is, that, by virtue of a writ of attachment in favor of the plaintiff, the sheriff arrested the body of Sylvanus Bidwell, and being so arrested, the said Bidwell and the defendant executed the bond on which this suit is brought. It is consistent with this averment that, at the time of the arrest, this bond was required and taken by the officer instead of taking bail by indorsement on the back of the writ. The fact that it was so given must be treated as stated and

Barnes v. Lapham & Tr.

admitted by the demurrer. Under those circumstances, it is sufficient to observe that this bond is not such a security as the statute requires, or which the officer is authorized to take.

The judgment of the county court is reversed, and judgment is rendered for the defendant.

BENJAMIN BARNES . ELISHA LAPHAM, AND JOSEPH B. LAPHAM; AMASA BANCROFT AND OTHERS, Trustees.

Effect of confession before justice upon a county court trustee suit. A confession of judgment before a justice of the peace, in pursuance of 4 of chap. 115 Comp. Stat., operates as a merger of the original cause of action; and the suit could not, before the act of 1855, (Laws of 1855, p. 13,) thereafter proceed against persons summoned as trustees, even though it was expressly understood that the plaintiff should not be thereby prejudiced in pursuing the trustees.

ASSUMPSIT. The defendants plead the general issue, with notice that they should give in evidence the following special matter, viz: that after the commencement of the suit, and before its entry in the county court, a judgment was rendered by a justice of the peace, in favor of the plaintiff, with his consent, by the confession of the defendants, for the amount of the plaintiff's claim, and the costs then accrued. Trial by the court, March Term, 1855,-PIERPOINT, J., presiding.

Upon the trial it was conceded, that a judgment was confessed by the defendants to the plaintiff, as set forth in the notice, but with the full and express understanding of both parties, before and at the time of said confession, that the said cause would and should be entered in the county court, for the purpose of charging the trustees; and that the plaintiff should in no way be prejudiced or hindered from pursuing and perfecting judgment against said trustees, in said court, in the usual and legal course of proceedings. Upon these facts, the plaintiff insisted that the county court ought to disregard the confession of judgment, and allow the cause to take such course