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chargeable with his servant's acts save when they are authorized, which would exclude negligent as well as willful acts. A reporter's note to Jones v. Hart (1698) Salkeld 441, appears to contain the first positive enunciation of the rule. A hundred years later, in refusing either case or trespass as a remedy against the master for a willful injury, the courts denied, obiter, the substantive right: Savignacy v. Roome (1794) 6 T. R. 125; McManus v. Crickett (1798) 1 East 106.
The dicta of McManus v. Crickett were followed in England and America for a time: Lyons v. Martin (1838) 7 L. J. Q. B. 214; Wright v. Wilcox, (1838), 19 Wend. 343. The present rule in England is, however, as follows: The master is liable for all torts of the servant, whether negligent or willful, even if expressly forbidden, if committed within the general scope of the servant's employment and for the master's benefit: Greenwood v. Seymour (1861) 7 H. & N. 355; Ward v. General Omnibus Company, (1873) 42 L. J. Exch., 265. The rule has been laid down in many American jurisdictions accordingly: Hoffman v. New York Central Railway (1881), 87 N. Y. 25; Levi v. Brooks (1877) 121 Mass. 501; I. & G. N. Ry. Co. v. Cooper, (1895) 88 Texas 607. The rule thus laid down rests the liability upon the servant's intention in acting. If the tort is committed with a view to the master's benefit, then, express commands to the contrary notwithstanding, the master is liable. In the language of Turberville v. Stamp (supra), “it shall be intended that the servant had authority, the act being for the master's benefit." That is, the liability rests upon the fiction of an implied command, which the master is not permitted to deny.
A line of American decisions refuses to limit the master's liability to willful acts done for his benefit, where the servant is entrusted with agencies which may probably become means of injury to third persons. T., W. & W. R. R. v. Harmon (1868), 47 III. 298; Regan v. Reed (1901) 96 III. App. 460; Railway Co. v. Shields (1890) 47 Ohio St. 387; Texas & Pac. R. R. v. Scoville
, (1894) 62 Fed. 730; Alsever v. Railroad Co., (lowa 1902) 88 N. W. 841, agree with the principal case on this point. The theory of these cases seems to be that the scope of an employment involving the use of dangerous agencies includes a duty of safe custody, and that even a willsul perversion of such agencies by the servant, in sport or malice, to his own end, is not a sufficient departure from the scope of the employment to excuse the master. Cf. Dixon v. Bell, (1816) 5 M. & S. 198.
BANKRUPTCY-ACT OF BANKRUPTCY-APPOINTMENT OF RECEIVER. A partnership being insolvent, one of the partners brought a bill to have the firm dissolved, and with the consent of the other members procured the appointment of a receiver. Held, no act of bankruptcy had been committed. In re Varick Bank (D. C., S. D. N. Y. 1903) 119 Fed.
Such a transaction as occurred here might have been considered as equivalent to a general assignment, but the courts have construed section za very strictly. In re Gilbert (1902) 112 Fed. 951 ; In re Empire Metallic Bedstead Co. (1899) 98 Fed. 981. The words of section 3a (1) are so like the words of Statute 13 Éliz. Chap. 5, that it seems only such acts were meant to come under the section as would come under that statute. Githens v. Shiffler (1902) 112 Fed. 505. A transaction in the nature of the one above is generally held not to be a fraud upon creditors, as the delay is considered merely incidental. Vaccaro v. Security Bank (1900) 103 Fed. 436. By the Amendment of Feb. 5, 1903, there would seem to be an act of bankruptcy in this case. CONSTITUTIONAL LAW-BANKRUPTCY-STATE TAXATION BANKRUPT EsTATE. Held, the funds in the hands of a trustee in bankruptcy are subject to state and county taxes up to the time of distribution. In re Sims (D. C., W. D. Ga. 1902) 118 Fed. 356.
The decision seems sound, in view of the principle that both State and federal statutes should be construed as preserving to the national Government and to the States, respectively, the necessary powers of government. West River Bridge Co. v. Dix (1848) 6 How. 507 ; Prov. Bank v. Billings (1830) 4 Pet. 514. The State decisions refusing to extend the federal Internal Revenue Acts to requiring documentary evidence in the State courts to be stamped, People v. Gates (1870) 43 N. Y. 40, Carpenter v. Snelling (1867) 97 Mass. 452, are not in point. There the requirement would binder the due progress of causes, whereas the object of bankruptcy statutes is an honest distribution and the satisfaction of all sound claims. Leidigh Carriage Co. v. Stengel (1899) 95 Fed. 637. It has been held that an action in the State courts for taxes due up to the time of the commencement of bankruptcy proceedings will not be stayed, beca ise taxes do not constitute provable debts, but only claims which it is the State's option to present to the bankruptcy court. In re Duryee (1880) 2 Fed. 68. This tax could not have been presented, because it arose subsequently to the commencement of bankruptcy proceedings. In re Burka (1900) 104 Fed. 326. CORPORATIONS—CONSOLIDATION-CITIZENSHIP. The defendant, a corporation, formed by the consolidation of five corporations of as many different States, under the consolidating acts of all these States, was sued in one of them by a citizen thereof. Held, the federal courts had no jurisdiction on the ground of diversity of citizenship, as the defendant in each of these States was to be treated as a domestic corporation. Winn v. Wabash R. Co. (C. C., W. D. Mo. 1902), 118 Fed. 55.
Several corporations existing in different States may be consolidated by legislation in each of the States; Muller v. Dows (1876) 98 U.S. 447, Morawetz on Private Corporations, $ 1000; but as the legislatures of different States cannot unite in joint legislation, the result cannot be a single corporation. A corporation, being but a creature of the law, exists as a distinct creature in each State of which the law gives it a franchise to be. Accordingly, though the incorporating acts may be the counterparts of one another, there will be several distinct entities, existing in as
many States, under the same name, chartered for the same purposes, etc. Missouri Pac. Ry: Co. v. Meek (1895) 69 Fed. 753; Quincy Bridge Co. V. Adams County (1878) 88 Ill. 619. But when the combination is sued in one of the States, it should not be allowed to say, in order to create federal jurisdiction, that not the entity in that State, but the entity in one of the other States is being sued. CORPORATIONS–CONTRACT FOR OFFICE-PUBLIC Policy. The defendant, a stockholder in a bank, agreed that the plaintiff should be elected cashier and continued in that capacity for five years, he to purchase fifty shares of its stock and the defendant to repurchase it at a named price whenever the plaintiff ceased to be cashier. The plaintiff was discharged after four years' service. Held, the contract was not void as against public policy, there being no evidence that it was not entered into for promoting the interests of the bank. Bonta v. Gridley (N. Y. 1902) 77 App. Div. 33.
The court distinguishes the case from Guernsey v. Cook (1876) 120 Mass. 501, and Fennessy V. Ross (1896) 5 App. Div. 342, on the ground that here the contract had been partly executed. The result reached would largely destroy the principle of invalidity for violation of public policy. If the contract is void for that reason, it is difficult to see how a party can gain rights through part performance. This is the view of the dissenting justices, and finds support in many decisions. A contract by a stockholder which gives him any interest in the retention of any particular individual as an officer, other than the welfare of the corporation, is considered void notwithstanding any part performance. Noyes v. Marsh (1877) 123 Mass. 286; Wilbur v. Stoepel (1890) 82 Mich. 344; West v. Camden (1890) 135 U. S. 507.
46-924 CORPORATIONS_STATUTES—INTERCORPORATE CONTROL. An ordinance required the giving of transfers where one street railway company, trolled, owned, leased, or operated' another. The stock of the C. company was held in trust for the stockholders of the U. company,
whose president was empowered to name proxies to vote thereon. The C. company retained corporate existence, but the two were operated practically as one. Held, there was legal control within the meaning of the ordinance and the U. company was under obligations to issue transfers over the lines of the C. company. Chicago Union Traction Co. v. City of Chicago (Ill. 1902) 65 N. Ē. 470. See Notes, p. 203. CRIMINAL LAW-FALSE PRETENCES. In a charge to the jury in a trial for obtaining money by false pretences-held, it was not necessary to show that the offence was one against which common prudence and care would be insufficient to guard. The People v. Ozboda (1903) N. Y. Law Jour. Jan. 15. Contra, State v. Hood (Del. 1901) 53 Atl. 437. See NOTES, p. 204. CRIMINAL LAW-PERJURY- FOREIGN LAW. N. Y. Penal Code, $ 96, provides that any one who swears falsely that any affidavit subscribed by him is true, when an oath is required by law or may be lawfully administered, is guilty of perjury. The president of a Delaware corporation was required by Delaware laws to make an affidavit in regard to the corporation stock. He made a false affidavit before a notary in New York, which affidavit was accepted and filed in the office of the secretary of state of Delaware. Held, he was guilty of perjury in New York. People v. Martin (N. Y. 1902) 77 App. Div. 396.
It was admitted that the words “law” and “lawfully” refer to the law of New York; therefore the question was whether the oath was lawfully administered. That it was, follows from $ 85 of the executive law, which authorizes notaries to take affidavits and exercise such powers and duties as may be performed by notaries by the laws of any other State; for the acceptance of the affidavit in Delaware showed that the Delaware law authorized the New York notary to administer the oath. The same principle was acted on in Com. v. Smith (Mass. 1865) 11 All. 243, and in Stewart v. State (1872) 22 Oh. St. 477.
DAMAGES-DELAY IN DELIVERY-CARRIAGE BY SEA. Goods were shipped from New York to Algoa Bay. The carrier, without the consent of the shipper, put on board other goods that were contraband of war. The ship was seized by the British naval authorities and detained for some time at Cape Town. When the goods finally reached their destination, the market price had fallen. Held, the carrier was liable for the delay, and the measure of damages was the difference between the market value at the time the goods should have been delivered and that when they were delivered. Dunn v. Bucknall Bros. (1902] 2 K. B. 614. See Notes, p. 198. Domestic RELATIONS-ALIENATION OF HUSBAND'S AFFECTIONS. In action by a wife against her husband's parents, an instruction that if at the time of the abandonment the husband had no affection for the plaintiff she could not recover, was refused. Held, error, the idea conveyed by the request not being sufficiently presented by the charge that the plaintiff must establish that her husband was alienated and induced to abandon her by the active interference of the defendants. Servis v. Servis (1902) 172 N. Y. 438.
The charge should have emphasized the point that parents may give money and sympathy to a son who refuses to perform his marital duties, so long as they are not inducing him to neglect those duties. Huling v: Huling (1889) 32 Ill. App. 519. The instruction refused, however, would have been misleading. The gist of this action is the deprivation of the “consortium,” that is, the conjugal society, aid, comfort, and protection of the spouse. Bennett v. Bennett (1889) 116 N. Y. 584. If a third person induce a husband to neglect to afford this “consortium,” which he otherwise would have afforded, the presence or absence of affection in an untechnical sense should be held immaterial. Direct decision on the point is wanting, but there are intimations to this effect in Prettyman v. Williamson (Del. 1898) 39 Atl. 731; Fratini v. Caslani (1894) 66 Vt. 273. Domestic RelaTIONS—INJURY TO Minor EMPLOYED WITHOUT PARENTS' CONSENT. The defendant, knowing or having cause to know, that plaintiff's son was a minor, employed him in dangerous work without the knowledge or consent of plaintiff. The son was injured. Held, the defendant was liable to the plaintiff for the loss of services during minority and for expenses incurred, even though the son had been guilty of contributory negligence. Ill. Cent. R. Co. v. Henon (Ky. 1902) 68 S. W.456.
A parent has a right to the services of his minor child, unless the child is emancipated. Kennedy v. Shea (1872) 110 Mass. 147. The infringement of that right was by an act illegal at common law, and to-day often regulated by statute, and the child's contributory negligence is no defence. R. R. Co. v. Willis (1885) 83 Ky. 57; N. Y. Laws 1889, c. 560. A double right of action exists; the father may sue for loss of services, and the child for the injury received. Wessel v. Gerkin (1901) 36 N. Y. Misc., 221. But contributory negligence would bar the child's right of action unless the child were too young to be guilty of contributory negligence. Merchant v. Lumber Co. (La. 1902) 31 So. 878; Queen v. Iron Co. (1895) 95 Tenn. 458. EQUITY—Good Will-RIGHT TO TELEPHONE NUMBER. Defendant sold her business and good will to plaintiffs and then resumed business near by under the old name. Held, defendant might use the old name and have mail, addressed in such name, delivered at the new place of business, but she was not entitled to have her former telephone number. Ranft v. Reimers (I11. 1902) 65 N. E. 720.
It is settled law everywhere that when a trade or business is sold with the good will, the vendor, if he continues in the business, cannot pretend that it is the same which he has sold. To sell a magazine and the good will and then to publish another as a continuation of the old, using the same numbering, is a fraud and will be enjoined. Hogg, v. Kirby (1803) 8 Ves. Jr., 214. And a vendor may not pretend that a business carried on at a new establishment is the same business he carried on before the sale. Hall's Appeal (1869) 60 Pa. St. 458. See also Cottrell v. Babcock
(1886) 54 Conn. 122. In so far as the attempt to use the same telephone number was an act tending to accomplish such a deception, it was properly enjoined. Evidence-TRANSACTIONS with DECEDENT. In an action by executors to determine the rights of the defendants, the issue was whether the testator had received a certain fund. If he had, it would be divided among the defendants, each of whom claimed a part of the estate. The defendants L. and P. were sworn as witnesses, and each offered testimony, solely on behalf of the others, in regard to conversations with the decedent. Held, the testimony was not inadmissible under & 829 N. Y. Code Civ. Proc., which excludes testimony by a party on his own behalf in regard to transactions with a decedent. Jones v. Thomas (N. Y. 1902) 76 App. Div. 596.
The evidence was clearly inadmissible under $ 399 of the old code. Alexander v. Dutcher (1877) 70 N. Y. 385. But the present section has been commonly interpreted as changing the law. In this case the interest of each witness was separate. Each would have been competent to testify in a separate action against any of the others, and having such a right to the testimony, the fact that they were co-defendants could make no difference. Ely v. Clute (1879) 19 Hun 35; Hill v. Alvord (1879) 19 Hun 77. Church'v. Howard (1880) 79 N. Y. 415 and Matter of Eysaman (1889) 113 N. Y. 62 are distinguishable on the ground that the interests of the witnesses were not severable.
MASTER AND SERVANT—INJURY TO EMPLOYEE-FELLOW SERVANTS. The plaintiff was employed on a dumping car belonging to the defendant. A broken chain on this car was negligently repaired by another servant of the defendant. By the breaking again of the same link the plaintiff was injured. Held, the blacksmith, who repaired the link, was the fellowservant of the plaintiff, hence the plaintiff could not recover.
Burk v. New Jersey Zinc Co. (Pa. 1902) 53 Atl. 740.
The court satisfactorily proves that the plaintiff and the blacksmith were fellow-servants, but ignores the fact that the defendant was bound to provide for its servants a safe place in which to work. This is pointed out by MESTREZAT, J., in a dissenting opinion, and scarcely needs a citation of authority to support it. Bannon v. Luts (1893) 158 Pa. St. 166. The defect in the construction of the car caused the injury to the plaintiff, and it is difficult to see on what ground the defendant was allowed to shift to another the burden imposed upon it by law. MASTER AND SERVANT—WILLFUL AND WANTON ACTS OF SERVANT. A railroad engineer placed a torpedo upon the track, and then ran over it with the sole object of frightening bystanders. A child was injured. Held, the railroad company was liable. Euting v. Chicago & N. W. R. Co. (Wis. 1902) 92 N. W. 358. See Notes, p. 206. MUNICIPAL CORPORATIONS_VALIDITY OF ORDINANCE_CLOSING OF STORES. An incorporated town passed an ordinance requiring bar-rooms and grocery and dry goods stores to be closed during the summer months at 7.30 P. M. except on Saturdays, and imposed a penalty. The defendant was the owner of a dry goods store. Helit, the ordinance was unlawful, in the absence of any other authority than that “ to make by-laws for the better government of the town." State v. Ray (N. C. 1902) 42 S. E. 960. See Notes, p. 202. NEGOTIABLE INSTRUMENTS_LIABILITY OF ONE SIGNING NOTE AS TRUSTEE. By consent of the creditors the defendant was appointed trustee of an insolvent firm. He gave a note signed “Charles G. Peterson, Trustee." On suit by the payee, the evidence tended to show an understanding that he was not to be liable personally. Held, the question should have been left to the jury. McGowan v. Peterson (1902) 173 N. Y. 1.
Under $ 39 of the Negotiable Instruments Law, N. Y. Laws 1897, c. 612, one who adds to his signature words indicating that he signs for another,