has arisen in determining who are co-servants in the common employment, and whether the master is to be charged with the negligence of an employee who in some parts of the employment is strictly a co-servant with the person injured, and in the other parts is discharging a duty incumbent upon the master. The English courts generally hold that where the master has provided a reasonably safe place, machinery, and materials, on and with which the work is to be performed, undertakes to keep the place and machinery in suitable repair through agents and servants, he has fully performed his duty when he has exercised reasonable care and prudence in selecting skilful and careful servants to detect defects and make repairs, and has supplied such servants with suitable help and materials with which to make such repairs; and that the master is not liable to another servant for any negligence of the first servant in detecting and making such repairs. Wilson v. Merry, L. R. 1 Sc. App. 326. This view places the liability of the master upon the duty he owes the workman arising from their relations to each other. It implies that if the master personally attempts to discharge that part of the work which the relation devolves upon him, and his negligence therein causes injury to the workman, the master is liable therefor. The question is naturally suggested: "Why should he not also be liable for the negligence of the agent or servant whom he has appointed to discharge the same duty in his stead, although he has exercised due care to select person competent and skilfull? Is such an agent or servant, while performing the duty cast by the relation upon the master, a fellow workman with the master's servant in such sense that the latter cannot and ought not to recover of the master for injuries sustained through the negligence of the former ?" If 80. the master who performs his part of the duty, as this defendant and all corporations must, by agents and servants secures an immunity from liability which the master who personally enters the service to manage and direct the performance of the work does not enjoy. The doctrine now established by the United States supreme court, and by most of the courts of last resort in the several states. holds the master liable to his workman for injuries sustained from the negligent performance of duties which rest by the relation upon the master, whether the master performs such duties personally or through an agent or servant. Wharton on Neg. § 282; Pierce on Railroads, 370; Hough v. Railway Co. 100 U. S. 213; Hoeden v. Fitchburg R. R. Co. 129 Mass. 268. The American doctrine, holding the master liable for the negligence of his servant while discharging a duty which the If so. master owes to a general workman, is more consonant with reason and the general safety of the travelling public than the English doctrine announced in Wilson v. Merry, supra. The bridge builder and roadmaster, while inspecting and caring for the defectively constructed culvert, were performing a duty which, as between the intestate and defendant, it was the duty of the defendant to perform. Their negligence therein was the negligence of the defendant, being the agents of the defendant for the performance of these duties; notice to them in regard to the defective construction of the stockade as affecting the safety of the culvert was notice thereof to the defendant. Hence the evidence to show such notice to them was properly admitted. The declaration charged that the defendant was negligent in regard to the construction. and repair of the culvert. This bound the plaintiff to prove such negligence. As against the motion in arrest of judgment this was sufficient. It could not be negligence in these particulars unless it knew through those on whom it had cast the duty of inspecting and repairing the culvert, or ought to have known of the defects complained of. The charge of culpable negligence impliedly charged the defendant with knowledge of the defects. Nor do we think that the evidence showed that the evidence showed that the freshet which washed out the embankment was so extraordinary as to excuse the defendant from liability. It showed that the culvert was sufficient in capacity and construction, if it had not been for the improper construction of the stockade, to have discharged all the water that flowed in the brook on that occasion. Under the evidence it was clearly the duty of the court to submit that question, as it did, to the determination of the jury. Hence the defendant's request, asking the court to hold that the defendant was not liable on this account, was properly refused. Judgment affirmed.-Reporter. HEATH V. BATES. (Supreme Court of Errors of Connecticut. 1882. 49 Conn.) ATTORNEY AT LAW-Liability for Fees. An attorney at law, who places a writ in the hands of an officer for service, is personally responsible to the officer for his fees, unless he expressly informs him at the time that he will not be responsible, or there are circumstances which make it clear that that was the understanding of the parties. Action for the recovery of fees due plaintiff as a deputy sheriff for the service of writs placed in his hands by defendant, an attorney at law. The plaintiff had judgment. On motion for a new trial by defendant. A. H. Averill, in support of the motion, contended that in the absence of a general custom, and where the principal is disclosed, as was the case here by the names of the parties appearing on the writs, an attorney is not liable to an officer for his fees for the service of writs placed in his hands by the attorney unless he has expressly agreed to be so liable; citing Eastman v. Bank, 1 N. H. 23; Towle v. Hatch, 43 Ib. 272; Judson v. Gray, 11 N. Y. 408; Bonynge v. Field, 81 Ib. 159; Welch v. Goodwin, 123 Mass. 71; Adams v. Whittlesey, 3 Conn. 566; Ogden v. Raymond, 22 Ib. 379; Hewitt v. Wheeler, Ib. 557; Story on Agency, § 135. L. D. Brewster and H. Scott, contra, cited Weeks on Attorneys, 232, 234; Adams v. Hopkins, 5 Johns. 252; Ousterhout v. Day, 9 Ib. 114; Trustees v. Cowen, 5 Paige Ch. 510; Judson. Gray, 11 N. Y. 408; Campbell v. Cothran, 56 Ib. 279; Tarbell v. Dickinson, 3 Cush. 346; Merriman v. Newman, 20 Weekly Reporter, 369; Scrace v. Whittington, 2 B. & C. 11; Foster v. Blakelock, 5 Ib. 328; Walbank v. Quarterman, 3 C. B. 94; Brewer v. Jones, 10 Exch. 655. Park, C. J., in delivering the opinion of the court, said: While in one sense the client is the principal and the attorney the agent, and while the attorney is professionally and constantly acting for clients, whose names from the records of the courts and other means of publicity are almost always known or may be so, yet there are peculiarities in his case which make it necessary to apply to it with some qualification the general principles of agency. In most cases of agency the principal is what the name imports-the leading person in the transaction. The agent is, as the term implies, a mere subordinate, important only as the representaeive of the principal; often representing only, one principal. An attorney at law, on the other hand, occupies a position of recognized importance in itself, not infrequently of great prominence before the public, in which he often has a large number of clients, his relations to whom are full of detail, and who are little noticed by the public. In these circumstances, if every officer who serves a writ at the attorney's request, if every clerk of court who enters a case for him upon the docket, is to look only to his clients as their debtors, an inconvenience will be wrought that has no commensurate good to counterbalance it. It is true that an officer can refuse to serve a writ unless his fees are paid or secured, but this right is practically of little advantage to him. A writ is sent him by mail. by an attorney of some other town or county. It requires immediate service. The officer desires to be prompt and faithful. It is putting upon him an unnecessary burden to require him to take the risk of losing his fees, or to wait till he can hear from the plaintiff or his attorney at the risk of losing all opportunity to make service of the writ. It is perfectly easy for the attorney, if he does not wish to be personally responsible, so to inform the officer when he gives him the writ. It is to be borne in mind that the attorney knows the plaintiff, while the officer may know nothing of him. It is generally the case that an attorney has a running account with certain officers who serve a large number of writs for him, and who would be put to great inconvenience if compelled to make their charges in each case to the plaintiff, especially when they have no knowledge that the attorney has received actual authority to bring the suit. The attorney has already his account with his client, knows what the fact is as to his authority to bring suit, and could without inconvenience have required a prepayment of the expenses of instituting the suit, and ought to have done so. In every view of the case the rule seems a reasonable one, and the only reasonable one, that an attorney placing a writ in an of ficer's hands for service is to be regarded as personally requesting the service and as personally liable for it, unless he expressly informs him that he will not be personally liable, or there are circumstances which make it clear that that was the understanding of the parties. New trial not advised.-Reporter. NEWTON V. NUTT. (New Hampshire Supreme Court.) GUARDIAN-WARD-How Suit must be brought.-A guardian cannot maintain a suit in his own name on an account for the labor of his.ward. Assumpsit, on an account for the labor of the plaintiff's ward performed for the defendant's intestate. Demurrer, on the ground that the cause of action alleged was a debt due to the ward and not to the plaintiff. ALLEN, J. It is the duty of the guardian to take care of the person of his ward, improve his estate, apply the income to his support, collect his dues, pay his debts and protect his rights. Gen. st., ch. 165. § 3. It is the right of the ward to sue and be sued, prosecute and defend by his guardian. Gen. St., ch. 165, § 4. The relation between the guardian and ward is that of a trustee and cestui que trust, but the trust is not one which gives to the guardian the legal title to the ward's estate, as in case of administrators, executors and trustees appointed by deed, by will, or by the conrt. The guardian's duties entitle him to the possession of the ward's property, but his possession is the possession of the ward in whom the legal title remains. The power of the guardian is a naked trust not coupled with an interest. Tenney v. Evans, 11 `N. H. 346; S. C., 14 id. 343, 350, 351; Granby v. Amherst, 7 Mass. 1, 5; Manson v. Felton, 13 Pick. 206, 211. When the right of action depends upon possession merely, and the possession of the property is actually with the guardian, the suit may be in the guardian's name. Pond v. Curtiss, 7 Wend. 45; Truss v. Old, 6 Rand. 556; Bacon v. Taylor, Kirby, 368; Fuqua v. Hunt, 1 Ala. 197; Sutherland v. Goff, 5 Port. 508; Field v. Lucas, 21 Ga. 447. So, too, if the action is on a contract to be performed with the guardian personally, or for the payment of money to him by name. Boardman v. Roger, 17 Vt. 589; Gage v. Kendall, 15 Wend. 640; Mauram v. Lamb, 7 Cow. 174: Pearce v. Austin, 4 Whart. 489; Joliffe v. Higgins, 6 Munf. 73; Baker v. Ormsby, 5 Ill. 325. But debts and demands generally, in which the ward has a direct beneficial interest, should be sued in the name of the ward by his guardian. Hutchins v. Dresser, 26 Me. 76; Winslow v. Winslow, 7 Mass. 96; Blanchard Ilsley, 120 id. 487; Bradley v. Amidon, 10 Paige, Ch. 235; Stratton's case, 1 Johns. 509; Totten's appeal, 46 Penn. St. 301; Longstreet v. Tilton, 1 Coxe, 38; Carskadden v. M'Ghee, 7 Watts. & Serg. 140; Stewart v. Crabbin, 6 Munf. 280; Barnet v. Commonwealth, 4 J. J. Marsh. 389; Hoare v. Harris, 11 Ill. 24; Fox v. Minor, 32 Cal. 111; Hanly v. Levin, 5 Ohio, 228; Hines v. Mullins, 25 Ga. 696; 3 Redf. on Wills, title Guardian, § 55, 2; Schouler Dom. Rel. 462, 463. The ward did not perform the labor sued for by the plaintiff as the plaintiff's servant, and the plaintiff had no interest in the claim which entitled him to sue upon it in his own Demurrer sustained. name. VALLEY MUTUAL LIFE INS. CO. v. BURKE ET AL. (Virginia Supreme Court of Appeals. September 1882.) LIFE INSURANCE-Assignability of Policy by assured -Title of beneficiary.-1. If a person insures his life for the benefit of another, who is named as the beneficiary in the policy of insurance, the title of the beneficiary to the insurance-money is vested immediately upon the issuing of the policy, and there is no power in the person procuring the insurance to defeat that title by assigning or surrendering the policy. 2. Although there is no obligation upon the person procuring the insurance, in the absence of any covenant to that effect, to continue to pay the premiums on such policy, yet if he does so, the benefit will ac crue to the beneficiary. 3. In such a case, in a suit on the policy by the beneficiary against the Insurance Company, declarations and admissions of the insured as to the state of his health at the time the insurance was effected, but made four or five months thereafter, are not admissible in evidence to falsify representations made by him in his application for the insurance. 4. But statements made by the insured to his physician, as to the state of his health at the time they were made, and in reference to the cause of his diseased condition, which was apparent to the physician, are admissible in evidence. 5. As to the instructions refused and given by the court below, see the opinion. 6. An appellate court will not set aside a verdict upon the ground that it is contrary to the evidence unless it is plainly so. Writ of error and supersedeas to Circuit Court of Augusta. The facts sufficiently appear in the opinion. ANDERSON J. This case was argued with great earnestness and ability by the counsel on both sides, and presents questions which are comparatively new and difficult. The conclusions which I have reached, upon careful investigation, are not in accordance with my first impressions. We will consider the questions as they are raised by the bills of exceptions. The first bill of exceptions of the defendant below, who is the plaintiff in error here, is to the rulings of the court rejecting its third and and fourth special pleas. The third plea sets out an agreement entered into between the defendant, the Insurance Association, and Thomas N. Burke,the insured, after the certificate of membership-that is the insurance policy-had issued, to the effect that the said policy, for certain considerations set out in said plea, should be cancelled, released and delivered up to said defendant, and that said Thomas N. Burke should be thenceforth released from all obligation and liability to pay to defendant any of the moneys, dues or assessments required and stipulated to be paid by the terms of said certificate of membership, or contract. The fourth plea sets out and avers, in effect that after the issuing of the certificate of membership to the said Thomas N. Burke, and before his death, viz., on the 29th of May, 1880, he entered into a certain contract in writing with the defendant company, which contract is set out hæc verba in said plea, whereby the said parties agreed to submit all questions as to the validity of said policy to the arbitrament of Dr. W. S. McChesney, and that his award should be binding on them respectively, and if adverse to the validity of the said policy, the said Burke should cancel and deliver it to the said defendant; and that, pursuant to the said contract of submission, the said Dr. W. S. McChesney made and delivered an award to the effect that said insurance policy was invalid, of which the said Thomas N. Burke had due notice. The said policy was effected by said Thomas N. Burke on the 20th of December, 1879, for the benefit of the plaintiffs below, his infant children, the defendants in error here, to whom the insurance money, $2,000, was made payable by the express terms of the policy. The premiums and assessments were to be paid by Thomas N. Burke, and he had paid all that were required by the policy prior to his death, which occurred on the 30th of August, 1880. he will pay the premiums and the assessments and keep alive the policy, and that he may pay them or not at his pleasure, and may abandon the policy if he chooses. The decis ions seem to turn on that point. But that does not appear to be our case. On the contrary, Thomas N. Burke, in his application by articles A and B, obligates himself to pay into the treasury of the company sixteen dollars in cash and all the annual payments during life, and upon the death of each and every member of the Association, within thirty days after the date of the notice of such death, to pay his pro rata mortality assessment. The main question raised by these pleas is, Was the policy beyond the control of T. N. Burke after its issuance to the plaintiffs? Upon this question there is some diversity in the decisions. In Bliss on Life Insurance, 2d Edition, a valuable recent work on the subject of Life Insurance, the doctrine is stated, in section 318, thus: "On issue of policy, title is vested in beneficiary named in it." The author says, "We apprehend the general rule to b that the policy and the money to become due under it, belong, the moment it is issued, to the person, or persons, named in it as the beneficiary, or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his, by will or deed, to transfer to any other person the interest of the person named." And again, in section 337, he says, "No one, other than the beneficiary named in the policy, can assign, devise or surrender it. The person who procures the insurance is under no obligation to continue to pay the premiums, unless he has covenanted so to do, but if he does so, the person originally designated in the policy will derive the benefit. If the policy is for the benefit of a woman and her children, the children, as well the woman, must concur in the change." In support of these views, he cites authorities from several of the States-Ohio, New York, Massachusetts, Louisiana, Connecticut, Maine-extent the transaction was finished and exeand text-writers. So likewise, May, another standard writer on Insurance, in section 392, says, where the policy was for the sole benefit of children, the children in such case become vested immediately upon the delivery of the policy with the entire beneficial interest, and it is then beyond the control of the insured." So, where the policy is issued to the wife, payable to her, or, in case of her death before her husband, to her children, the husband cannot, after her death, surrender and take out a new one for his own benefit. He cites authorities in support of these positions, but we have, not now access to the books. And he says, " All the above cited cases proceed upon the ground that when the policy is issued, the rights are vested, and cannot be divested without the consent of those to whom they are secured." Bliss, in section 347, refers to some decisions which have taken a different view. The courts of Wisconsin, he says, have held that the person procuring the policy, may dispose of it without the consent of his nominee. He says such a view may avoid many difficulties, but is hardly consistent with legal principles. He cites Kuman v. Howard, 23 Wis. 108, and Clark v. Derrand, 12 Wis. 223, as so holding. In those decisions the court lays great stress upon the fact that there was no covenant or agreement on part of the insured that In Landrum v. Nowles, 22 N. J. Eq., 594, also referred to by Bliss as holding a contrary opinion to his, a policy of insurance was taken by a wife on the life of her husband, in favor of and made payable to her children. After the payment of several premiums, she assigned the policy in payment of a debt of her husband; and the assignee paid the subsequent premiums. After the death of the husband the children sued for the whole of the insurance money. But the chancellor held that they were only entitled to the proportionate value of the policy at the date of the assignment, and the decision was affirmed on appeal. The appellate court said, "to this cuted. But beyond this value nothing could pass to the appellants (the children) but by a further act of the mother, and which act was entirely voluntary. She had not even agreed to perform such act. Whatever premiums she might have paid beyond those actually paid would have been entirely gratuitous." Again, "the mother of these appellants gave to them the entire interest in this policy, which she herself had paid for; that to this extent the gift was executed, and consequently could be. enforced in equity; but the acquisition of a further interest by the payment of subsequent premiums was altogether executory and voluntary, and such interest was not acquired by her, and cannot be claimed by her beneficiaries." According to the principles of that case, the children of Thomas N. Burke were entitled to the whole insurance money at his death. And at the date of the contracts alleged in the third and fourth pleas the gift to his children had been fully executed, for he had then paid up all in the shape of premium and assessment, which was necessary to be paid, to render the obligation of the insurance company to pay to the plaintiffs after his death the whole insurance money. And there was nothing of title or interest in the said Burke, in relation to the policy, at the date of the contracts alleged in the pleas, which he could assign or surrender, according to the decision just cited. His gift to his children was then fully executed, without any further payments by him of premiums or assessments. And he had no interest or title in the policy in reference to which he could contract. But the rule, as it is stated by Bliss and May, seems to be supported by high authority, which they cite, and is approved by the court. And they are supported by several very recent decisions by the Supreme Courts of Minnesota and Louisiana. Ricker v. Charter Oak Life Ins. Co., cited in Sloan's Legal and Financial Register, of April, 1881. And Pilcher v. N. York L. Ins. Co., Louisiana National Bank v. Same, Supreme Court of Louisiana, Ins. L. J., April, p. 312, noticed in Southern Law Review of June-July, 1881, p. 328. Upon these authorities the circuit court was right in rejecting the third and fourth pleas. The second, third, and fourth bills of exception present the question whether the declarations and admissions of Thomas N. Burke, made some four or five months after the issue of the policy, as to the state of his health at the time the insurance was effected, were admissible in evidence. The plain inference from what has been said on the subject of the first bill of exceptions is, that the evidence of the declarations and admissions of Thomas N. Burke, proposed to be given by the defendant below, was inadmissible. The subject of inquiry was the health of the person whose life was insured, at the time the insurance was effected, and declarations made by him to his physician as to the state. of his health, at the time he was under his examination would be admissible, to show what was the state of his health at that time, as medical men arrive at their conclusions in respect to the health of their patients in part from what their patients tell them. And as the state of the insured's health before and after the insurance was effected is a legitimate subject of inquiry as tending to show what was the state of his health at the time the insurance was effected, provided it is sufficiently near in point of time, such evidence would be admissible. But the state of the insured's health, four or five months after his insurance was effected, could in general throw but little light on the state of his health at the time he applied for and obtained the insurance. But the inquiry which was excluded was not in relation to the state of his health in the month of April, 1880, when he was examined by the physician, but as to the state of his health in December, 1879, when he effected the insurance, and was designed to falsify the representation he made in his application. As was said in the Fraternal Life Ins. Co. v. Applegate, 7 Ohio State, 292, they were the statements of a stranger, who was neither a party to the suit, nor, at the time when they were made, acting as the agent of the assured-the plaintiffs. They were not the declarations of a sick person in relation to his condition at the time of making them, but related to transactions and a state of facts long past. They were not admissions against interest, for he had no interest in the policy; and they could only affect injuriously the interest of the assured. Nor were they the statements of one who had been a witness the trial, and which were offered to impeach his testimony. And although they were the declarations of one who best knew the facts, this would only go to their weight when their competency had been established. The court is therefore of opinion that there is no error in the rulings of the circuit court, as set out in the second, third, and fourth bills of exceptions. on The fifth bill of exceptions presents an entirely different question. The statements of Thomas N. Burke, which the defendant company move to exclude from the jury, were statements made to his physician in relation to his state of health at the time they were made, and in reference to the cause of the diseased condition of his person which was apparent to the physician,-a kind of testimony which all the books say admissible. The sixth bill of exceptions is to the refusal of the court to give the second instruction tendered by defendant's counsel, and to the instruction which the court gave. The instruction tendered, and which was refused by the court, is predicated of the postulate that the statement of Burke in his application, that he had never been afflicted with any disease of the heart, is a warranty, and therefore the court was asked to instruct the jury, in effect, that if the jury believed from the evidence that the said Burke, at the time he made his application, or any time previous thereto, had valvular or other disease of the heart, and failed to disclose the same in answering the tenth question in his said application, although they should believe from the evidence that said Burke never knew that he had any disease of the heart, they must find for the defendant. Without expressing any opinion upon the question, whether the statements of Burke, in answer to the tenth question in his said application, were warranties or not, we are of opinion that no such issue was made by the pleadings, and the court was right in refusing to give the instruction as tendered, and very properly gave the following instruction instead: "If the jury are satisfied from the evidence that Thomas N. Burke, at the time he made his application as aforesaid, or |