POPE'S CASE.

169

have been better to have offered this report before the master, but I do not thinE< it was necessary, as it is a part of the record, and within the judicial knowledge of the court. At all events, if the case required it, I should deem, it my duty to recommit the matter to the master, so that it might be offered. As to the amount of compensation, the sum allowed is not excessive, as the evidence shows that the injury to Winbourn was severe, disabling, and permanent. Let the exceptions to the master's report be overruled, arid the report confirmed.
NOTE. RECEIVER-ACTION AGAINST. Whether or not an action for a railway injury can be maintained against the receiver of tbe ,cOlupany in whose it, Qccurred. was questioned in Smith v. Potter, (Mich.) \I N.W. Rep. 2i3. But, under the'provisioIlS of the Iowa Code; an action mal. be maintained against the receiver ofa railroad appointed bya circuit of theUmted States, by an employe of sU,ch railroad WhO has injured py:rll¥,13D of the negligence of a ,and w?ere the of the raIlroad IS, by order of tlie court, transferred to the receiver, SU,bJectto all ·Clal'llIS, debts, and litllbilities,"such yroperty inbis hands is liable for the payment ofsl,lch claims for Centra ,'frust Co. ".Sloan, (Iowa,) 22.N. W. Rep. 916; Sloa!?:"v. Central Iowa Ry. Co., (Iowa,) 16 N. W. Rep. 331. Where a demand against a receIver does not involve the administration of the trust committed to bim, but arises from ,his ,baving taken unlawful possession of property not included, in tbe trust, 'a, suit will lie against him personally as for a tresp¥s, eveJ.l thouJ?:h bEl took possllssion of such ,property under an order of court. Curran v. Craig, 22 Fed. Rep. 101. · The railr0a0. company:is not liable for injuries committl/dwhile the rllad was in the bands of th4j receber, ,all it, was o,ut of the possession of the prov.erty, and had no eontrol over it. v. 19 Fed. Rep. 4i7., But in Illinou It was held that the fencing act authorizes an action for the failure to fence agai.nst either the owner of road or th.eperson actually operating it. An action will therefore lie against the company owning an unfenced road, although iUs in the hands of a federal receiver. Ohio & M. R. Co. v.Russell, S N. E. Rep. 561. A receiver, as such, is no,t pers,onallyliable for the torts of The proceeding against him is in the nature of a :proceeding in rem, and renders the property in his hands"as sllch,liable for compensatIOn for 8uch,torts. Davisv. Duncan. 19 Fp.d. Rep. 477. But ajlldgment against a receiver for personal injuries, recovered after the receiver had settled his accounts, although the action was, the receivership, was held to create no lien against the property wbich could' be enforced WhiteY. Keokuk & D. M. Ry. Co., (Iowa,) 2,N. W. Rep. 1016. against the See, also, LehIgh, C. & N. Co. v. Central R. Co., (N. J.) 8 Atl. Rell.-.

..

POPE'S CASE.' MISSOURI

PAC.

v.

TEXAS PAC. Ry.Co·.

,(Circuit Court. E.

RAILltOADs-LIABILITY,

n. Louisiana.

December 29, 1886.)

Winbowrn'a Case, ante; 167, followed.

mJUlUllls.

In Chancery. In the matter of Mrs. C. C. Pope, praying compensation for injuries. On exceptions to master's report. Henry A. F(YUJlkes, for Pope. W. W. H(YUJ6, for Receivers.
1 Reported

by Joseph P. Hornor, Esq., of the New Orleans bar.

170

FEDERAL REPORTER.

PARDEE, J,. The petitioner was seriously injur<¥1 while Ii passenger on the Rio Graqde division of the Texas & Pacific Railwl,1y, by the derailment of the .car in which sh,e, was traveling, on the twenty-fifth of January ,.1886. The derailment was caused by the breaking of a rail about fOUf· feet from one end. The master has reported that the accident was 'the'il'esult of the known insecurity ana bad condition of the track; that the receivers are liable; and that the petitioner ought to receive $2,000 as pompensation·. The receivers. have excepted on the grounds that the evidence does not show the negligence of the receivers or their employes, and that the allowance is extravagant, because the evidence' dioes, not show that the injuries are permanent. 1. At the time of the' accidentthe,milway property had Just come to the hands of the, receivers. The Rio Grande division was known to them to be" in bad' condition as to rails and ties. In February following the they' reported to the court that said division requires extenon that part between Fort Worth and Baird, in replacement of rails, new 'ties, and widening cuts and embankments, not only as a "matterof safety in the transportation of freight and passengers, but alsoindevelbpIilent and increase of business;" It was between Fort Worth and Baird that ,the petitioner wasjpjured. The evidence takenbefoi'e tlie master ia to the effect that the rail broken was as good as the average rails,but tollh'owthat the broken mil was properly laid, or sufficiently supported by good ties. I have no doubt t;pat) this is a sufficient'sh,owing to warrant the presumption of negligence against the Texas & Pacifie Railway Company, had that com,been in possession .of¥riil its ow·)i property. Thereceivers operating the railway: property should be held to the same responas officers of the court, they may not be lia.ble for puni1:,Ory or exemplary damages.. "2.:On· the'question ofdamagElS; I have examined the evidence,and it supports the master's finding, to-wit: . "Temporary bruises upon her back and hips, and protrusion of part of the abdominal viscera through th.e umbilicus, to cure which an operation would be difficult and dangerous in a woman as obese and old as the claimant, and would entail a cost to which her slender means are unequal; that said hernia is to her a permanent injury, impllirs her general health, disables her, as a seamstress, from earning support for herself and four children, constrains her often to reJl).ain in ,bed for several days, and W1JpIly to forego housework, and is Mcolll'panted wi'th'constallt pain in some degree, and with a running from the nayel." The allowance is not excessIve. Let an order be eniered overruling the exceptions, andoonfirming the, master's report. See Winbourn'8 Case, ante, 167.
I ' 11 I

'. :

COOPER V. BANK oj? BR.iTISH 1\ORTH AMERICA.

171

CoOPER,

Jr., v.

BANK OF BRITISH NORTH AMERICA.

(OVreuit Oourt, S. D.NewYork. March' 9,1887.)
CARRIERS-CONSIGNOR KNOWN TO BE OWNER OF GOODS CARRIED-RIGHTS OP CONSIGNOR.

Plaintiff, desiring to pay a draft which he had drawn on A. at Glasgow, 'Scotland, made an arrangement with the defendant bank by which it agreed to cable the money to London, and to forward it in the form of a check, through their London agent, from London to Glasgow, to A. Instead of do , ing this, defendant, without plaintiff's knowledge, paid the money over to a bank in London, to the credit of A., who failed and closed his doors the next day, being indebted to the London bank where the deposit was Ulade. Had defendant forwarded the money by check to A., as it agreed to do, he would have used it topll.Y plaintiff's draft. Held, plaintiff is'entitled to recover the amount ,from def\·ndant. Where a consignor is· known to the carrier to be the owner, the C8uier must be understood to contract with him only, for his interest, and upon the terms he dictates in regard to the delivery, and the consignees are to be regarded simply as agents selected to receive the money.

At Law. Motion for a new trial. This action is by William B. Cooper, Jr., to recover of the defendants the sum of £5,000, with interest, amounting in the aggregate to $28" 502.56. At the time ofthe transaction in question, in thespring of 1884, the plaintiff was a commission merchant in the city of New York. The defendants were engaged in the business ofbanking in the city of London_ with a briineh office in New York. During the same period, Maron, Turner & Co., of Glasgow, Scotland,. were in the East Indian trade,having a branch office in London. Their banking business was transacted at the Bank of Scotland, which also had a branch office in London. On the fourteenth of December;, 1883, the plaintiff It credit permitting him so to do, drew'a draft upon the Glasgow firm 'of Martin, Tumer& Co. for £5,000, payable in London to the order of himself. This draft was due February 29, 1884. It was the plaintiff's'duty to take it up at maturity. On the twenty-sixth of Febrllllryhe went to the office for the, defendants, in New York, and purchased a cable exchange fbr £5,000, which was sent by them to London, reaching there the next day, February 27th. The money waSon that day deposited il1' the Bank of Scotland, London, to the credit orMartin, Turner & Co. At the same time a dispatch was sent by the defendants, in London, to Martin, Turner & Co., at Glasgow, announcing that at that moment they were paying to their credit at the Bank of Scotland' the sum aforesaid. On the same day they wrote to the Glasgow firm that the amount had been paid to their credit. The letter reached Glasgow on the 'morning of the 28th. It is undisputed that if a draft had been inclosed, that also would have reached there at the same time. The payme,nt to the Bank of Scotland was made pursuant to written instructions received'by the: defendants, at London, from Martin, Turner & Co.. Upon'the 28th, Martin, Tumer & Co. having received advices from their East Indian correspondelits, became convineed that it was idlElfor them 'toconiinue longer ih business, and upon morning of the: 29th -they closed their