Page:Harvard Law Review Volume 8.djvu/73

NOTES. 57 is no answer to say that there are complete precautions against this risk, for there is no reason why he should be compelled to take such precautions. "The contention is that the two . . . had a right to create a right in themselves, which, if observed, must derogate from the plaintiffs right, and then to say that it is inequitable in the plaintiff to act in derogation of this right so created. Surely the inequity begins earlier, and is in the defendant's derogating from the plaintiffs right without his consent." I Q. B. D. 536. This is the view of two of the Lords Justices, for Lindley, L. J., although he does not think Swire v. Redman to be law, says lie should follow if he were free to do so. If the Texas court is correct, the creditor must at his peril remember to state that he reserves all his rights against the retiring partner, and, further, must be able to prove that he did so. Fisher, C J., seems to hit the truth when he says, 24 S. VV. Rep. 866 : " An Act of the Legislature, or a judicial decision, that reaches to this extent, would unquestionably be opposed to the spirit of the fundamental law that protects the inviolability of contracts." An interesting article in support of this view may be found in 14 Cana- dian Law Times, 57 ; but it umst be admitted that the preponderance of authority is the other way. " Superior Servants " and Vice-Principals. — A year ago a sum- mary investigation of the fellow-servant rule would have shown that in about ten States, and in the Supreme Court of the United States, there was recognized, to a greater or less extent, a judicial doctrine, wholly distinct from the rule everywhere prevalent as to a master's duty to have fit appliances, safe premises, and competent servants, to the effect that where there is a superior servant to whom another owes obedience, the master is absolutely responsible to the subordinate for the negligence of the superior, at least within the sphere as to which there is subordina- tion ; and the same investigation would have shown that Chicago, Mil. &* Sf. Paul Ry. v. Ross^ 112 U. S. 377, decided Dec. 8, 1884, had done much to help toward wider acceptance of this doctrine, indifferently known as the " superior servant," or the " vice-principal " doctrine. To- day this doctrine stands in a different position, and its future depends, perhaps more than on any other one thing, upon the effect which Balti- more 6f Ohio R. R. Co. v. Baugh, 149 U. S. 368, decided last May, shall be deemed to have had on the Ross case. In the Ross case, a railway company was held to be responsible to a locomotive engineer for an in- jury resulting from the negligence of the conductor of his train. In the Baugh case, the company was held not to be responsible to a fireman for an injury resulting from the negligence of one who was acting as both conductor and engineer of a train consisting of engine and tender only ; but two judges dissented, on the ground that to decide for the railway company was to overrule the Ross case. The majority thought that the two cases could be reconciled by considering a complete train as a distinct department of the company's business put in the conductor's charge. There is, however, a great difference of opinion as to the real effect of this Baugh Case. In Harley . L. &* N. R. R. Co., 57 Fed. R. 144 (C. C. Dist. Tenn , June 2, 1893), the doctrine of the Ross case was treated as so niodified by the Baugh case that a new trial was granted, 8