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Noyes v. Smith & Lee.

a risk which the servant has assumed, as an incident to his employment, and for which the master is not responsible. This general rule, however, has no application to either of those cases when there has been actual fault or negligence on the part of the master, either in the act from which the injury arose, or in the selection and employment of the agent which caused the injury. The case of Couch v. Steel, above cited, recognizes both the general rule and that qualification. In that case it was held, that, as there was no actual knowledge of the defective condition of the ship, and no personal blame was imputed to the owner, a seaman could sustain no action for an injury sustained in consequence of its unsafe condition. The language of the court implies, that, had there been actual knowledge or if personal blame had otherwise been imputed to the ship-owner, a liability would have existed. The case of Hutchinson v. Railway Company, 5 Wels., Hurls & Gord. 352, is a strong illustration of the principle. In that case, Alderson, B., after recognizing the general rule, that a master is not, in general, responsible to one servant for an injury occasioned to him by the negligence of a fellow servant, observed, that “this must be taken “ with the qualification that the master shall have taken due care not to expose his servant to unreasonable risks. The servant,” he observed, “ when he engages to run the risks of his service, including " those arising from the negligence of fellow servants, has a right * to understand that the master has taken reasonable care to pro“ tect him from such risks, by associating him only with persons of “ ordinary skill and care.” There can be no doubt in relation to the doctrine of those cases, or the general principles on which they are founded. The master, in relation to fellow servants, is bound to exercise diligence and care that he brings into his service only such as are capable, safe and trust-worthy, and for any neglect in exercising that diligence he is liable to his servant for injuries sustained from that neglect. It is not necessary that he should know that they are unsafe and incapable. It is sufficient that he would bare known it, if he had exercised reasonable care and diligence. The same doctrine is sustained in this country. 1 Am. L. C. 620; 5 Wels., Hurls & Gord. 357, note; Coon v. U. & S. Railroad Co., 6 Barber 231. There is no distinction in principle between those cases and the one under consideration. Upon the facts admitted

Noyes v. Smith & Lee.

by this demurrer, whatever may be the agent which the master brings into his service, whether animate or inanimate, the master is bound to exercise care and prudence that those in his employment be not exposed to unreasonable risks and dangers ;—and the servant has a right to understand that the master will exercise that diligence in protecting him from injury, and also in selecting the agent from which it may arise. It is only such injuries as have arisen after the exercise of that diligence and care on the part of the master, that can properly be termed accidents or casualties, which the servant has impliedly agreed to risk, and for which the master is not liable. The doctrine is not controverted, that the defendants would be liable to the plaintiff for the injury he has sustained, if they had had notice in fact of the defective condition of the engine. It was so expressly decided in the case of Keegan v. Western Railroad Corporation, 4 Selden 175. There is no propriety, therefore, in saying that the defendants may be relieved from that liability by a want of such knowledge, when it has arisen from their gross neglect: for the neglect is gross, when the fact is, as is admitted by the demurrer, that but for the want of all proper care and diligence, the unsafe condition of the engine would have been known to them. We think, upon the facts admitted by the demurrer, the plaintiff can sustain this action, and that the declaration is sufficient.

The judgment of the county court must be reversed, and judgment rendered for the plaintiff.










DECEMBER Teru, 1855 ;





} Assistant JUDGES.


Principal and surety. A joint action may be maintained by two several suret'es, against their principal, if

the demand upon which they were sureties was taken up or discharged by their joint note, or with the money obtained upon such a note. Where such a joint right of action exists, money received by either surety upon

securities given to indemnify him for his liability for the principal, will enure to the equal benefit of his co-surety, and be, pro tanto, a satisfaction of their claim against the principal.

Whipple & Jones v. Briggs.

ASSUMPsit for money paid. Plea, the general issue; trial by jury, September Term, 1853,-Peck, J., presiding.

The plaintiffs were severally sureties for the defendant upon two notes for $500 each, one payable to the Bank of Montpelier and the other to the Farmers and Mechanics' Bank in Burlington. One half of the note to the Bank of Montpelier was paid by the defendant at its maturity, and, some time after, a note for $100, signed by the plaintiffs and one Rolla Gleason, as surety, was discounted at said, bank, and with it the other half of the note was paid and the note taken up. The $400 note was, at its maturity, paid in money by Whipple, and the cashier, by whom the payment was proved, testified that he had no knowledge of any of this money being furnished by Jones. At the maturity of the other $500 note, on the 19th of June, 1852, a note for $500, signed by the plaintiffs, and also by Rolla Gleason, as surety, was delivered by Jones to the Farmers and Mechanics' Ba and received by said bank; and the evidence of the cashier tended to show that this note was received in payment of the defendant's note, upon which the plaintiffs were severally sureties, or that it was discounted by the bank and the proceeds applied in payment of the defendant's note; it also tended to show that the note of June 19, 1852, was treated in the books of the bank as the note of Jones, he being the first signer and the person who asked the discount; and that it was of common occurrence that men frequently signed notes to that bank without adding surety to their names who were really sureties to the same. The evidence of the cashier also ter.ded to show that Jones paid the note at maturity. The plaintiffs claimed, from this evidence, that they were entitled to recover the amount of the note to the Farmers and Mechanics' Bank, and the half of the note to the Bank of Montpelier, making about $750, exclusive of interest, and also the interest.

It appeared that soon after the attachment of his property on the 22d of September, 1851, the defendant gave the plaintiff Jones, to secure him for liabilities incurred by him for the defendant, a deed of all his lands in the town of Worcester, being about two thousand acres, of which said Jones had sold seven hundred acres for the sum of $1,400 cash, which he received.

The plaintiffs then read in evidence a note signed by the defend

Whipple & Jones v. Briggs.

ant, as principal, and by the plaintiffs as sureties, to John Morse, for $175, and a note for nearly $500 to the town of Richmond, signed by the defendant, as principal, and the said Jones as surety, upon both which notes, it appeared, suits had been brought, and the defendant Briggs' property attached, which suits were still pending,

There was no evidence tending to prove, nor was it claimed that Jones had paid anything for Briggs, either before or since his receipt of the $1,400, excepting what he might have paid upon the bank notes in question, $30 upon the Morse note and $50 to Briggs, after the receipt of the $1,400.

The defendant requested the court to charge the jury that there was no evidence in the case of any contract, express or implied, by the defendant to plaintiffs jointly to pay this claim, or any portion of it; and he also insisted that, if Jones had money in his hands belonging to the defendant, he should have a,plied it on these debts, not only to pay his part of the suretyship, but Whipple's also, unless he could show that he had other individual claims or liabilities on which, in equity, it ought to apply.

The court refused to charge the jury as requested, but charged them, among other things that, in order to maintain this action, it was necessary for the plaintiffs to prove an indebtedness or liability of the defendant to the plaintiffs jointly ;—that these notes, being signed by each of the plaintiff's severally and individually, and not jointly as partners or in an associate joint capacity, created no obligation on the defendant to the plaintiffs jointly to indemnify them against the notes, or to repay to them jointly what they might be, compelled to pay, but only created an obligation on the defendant to each of the plaintiffs severally and individually, and that the plaintiffs in this suit, by showing that they signed the notes, as surety for Briggs, in the manner indicated by the notes, and showing merely that they had been compelled to pay and had paid them, would not be entitled to recover in this joint action; but that if the plaintiffs signed the notes as sureties for the defendant, and the jury found it proved not only that the plaintiff's paid them, but also that such payments were made out of funds belonging to the plaintiffs jointly, that is, funds which were, at the time of such payment, the joint property of the two plaintiffs, the plaintiffs could, so far as this point is concerned, recover in this joint action the amount

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