doubt. If the act of the conductor, in putting plaintiff off the car, was a wanton and malicious act, committed out of the course of his agency, the defendant cannot be held responsible for the manner in which he did it, unless, however, the defendant expressly authorized the act. Was the act, then, either within the authority of the conductor, arising from his general relation to the defendant,-or if not, within any express authority shown by the testimony? If either, the plaintiff is not, on the score of remedy, confined to the conductor, but may look to his master. And in this respect we cannot assent to the conclusion which was reached by the court below. In our judgment, the act was within the scope of the conductor's general authority; and the testimony also shows that, aside from his general authority, he had special authority for what he did; and hence, upon both grounds, the defendant must be held responsible for the manner in which he acted. The truth of the first proposition is established by that which follows from what has already been said as to the authority and power of the conductor to put the plaintiff off the cars. We have said that, under the circumstances of this case, he had authority to prevent the plaintiff from getting upon the cars in the first instance, and to put him off in the second. This authority was incident to his position as chief officer of the train, and necessarily came, by implication, from defendant, with his appointment to the place. It is the duty of the defendant, arising from the nature of its business, to admit into its cars all persons who seek admission as passengers, and are willing and offer to pay legal fare, provided they are fit persons to be admitted, and there is room for their accommodation. To itself and its stockholders it owes the contrary duty of excluding all persons who do not come as passengers, or are not fit persons to be admitted; and the conductor is charged, by virtue of his position, with the performance of both, and is necessarily vested with the requisite power. It cannot be said that he is acting outside of his authority while he is engaged in the performance of either duty; on the contrary, he is acting strictly within the scope of his employment. In a conductor's excluding a person who is not entitled to be admitted or to remain in the cars, the relation of master and servant is as clear and apparent as it is in his receiving and providing for those who are entitled to admission. The relation being established, all else is mode and manner, and as to that, the master is responsible.

i

But if there was any doubt as to the act in question being within the scope of the conductor's employment, when considered by the light of his general relation to the defendant, it is dispersed by the testimony in relation to the special instructions which he received from the defendant in relation to boys trespassing upon the cars.

There is nothing in the case of Turner v. North Beach etc. R. R. Co., 34 Cal. 594, which runs counter to this view. Judgment reversed, and new trial granted.

LIABILITY OF RAILROAD COMPANY FOR NEGLIGENCE OF ITS SERVANTS: See Toledo etc. R. R. Co. v. Harmon, 95 Am. Dec. 489, note 494, where other cases are collected; Sheridan v. Brooklyn & N. R. R. Co., 93 Id. 490, note 494.

SICK PERSON OR CHILD SHOULD HAVE MORE CARE EXERCISED TOWARD HIM by carrier than person in good health and under no disability: Sheridan ▼. Brooklyn & N. R. R. Co., 93 Am. Dec. 490, note 494, where other cases are collected.

CONDUCTOR OF RAILWAY TRAIN, IN REMOVING FROM CARS PERSONS not lawfully entitled to remain in them, is acting within the scope of his authority, and the company is responsible to persons injured by his wrongful or negligent acts: See Toledo etc. R. R. Co. v. Harmon, 95 Am. Dec. 489, note 494; New Orleans etc. R. R. Co. v. Harrison, 48 Miss. 118; S. C., 12 Am. Rep. 358; Perkins v. Missouri, K., & T. R. R., 55 Mo. 213; Rounds v. Delaware, L., & W. R. R. Co., 3 Hun, 334, all citing the principal case. But if the conductor acts wantonly and maliciously, out of the course of his agency, the company is not responsible for his act, unless it expressly authorized it: Goddard v. Grand Trunk Railway, 57 Me. 255, also citing the principal case. RULE RELEASING DEFENDANT FROM RESPONSIBILITY FOR DAMAGES BECAUSE OF PLAINTIFF'S NEGLIGENCE is limited to cases where the act or omis sion of the plaintiff was the proximate cause of the injury: See Wilmot v. Howard, 94 Am. Dec. 338, note 345, where other cases are collected; Flynn v. San Francisco & S. J. R. R. Co., 40 Cal. 19, citing the principal case. The words "immediate" and "proximate" are used indiscriminately to express the same meaning: Longabaugh v. Virginia City & T. R. R. Co., 9 Nev. 294, aiting the principal case.

THE PRINCIPAL CASE IS CITED in Baker v. Kinsey, 38 Cal. 634, to the point that if the servant can justify his act to his master, as being within the line of his duty to him, the act is the act of the master, and not other. wise.

THE PRINCIPAL CASE AGAIN CAME BEFORE THE COURT, and is reported in 39 Cal. 587, where it was decided that in an action for damages for injuries sustained by a forcible ejection from a railroad car while in motion, proof that the conductor ordered the plaintiff to get off, and accompanied such order with a show or demonstration of force sufficient to impress him with the belief that it would be employed, and thereby compelling him to jump from the car, is equivalent to proof of the employment of actual force.

AM. DEC. VOL. XCIX-19

WALLS v. WALKER.

[37 CALIFORNIA, 424.]

WHERE CHARGES IN FAVOR OF ADMINISTRATOR IN HIS ANNUAL ACCOUNT HAVE BEEN REJECTED, by reason of his failure to produce the necessary vouchers required by statute, he may include the charges in a subsequent account, and have them allowed on production of the vouchers. SETTLEMENT OF ANNUAL ACCOUNT OF ADMINISTRATOR IS NOT CONCLUSIVE, even as against the heirs, legatees, and creditors, except as to such items as are included in the account, and actually passed upon by the probate

court.

FUNDS IN HANDS OF ADMINISTRATOR, NOT NEEDED TO PAY EXPENSES OF FUNERAL and last sickness of the intestate, and the allowance to his family, should be applied to the payment of debts, upon an order obtained by the administrator at his next annual settlement. ADMINISTRATOR WILL BE CHARGED WITH INTEREST, where he uses the funds of the estate in his private business, or retains them in his hands for an unreasonable length of time, to the prejudice of the heirs and creditors. He must prosecute the settlement of the estate with all reasonable diligence.

UNDER LAWS OF CALIFORNIA, ADMINISTRATOR IS VESTED with right to possession of the real estate of his intestate, as well as the personal, and his duties and liabilities in respect thereto are of the same general char

acter. ADMINISTRATOR WHO OCCUPIES AND USES REAL ESTATE of his intestate becomes the tenant of the estate, and liable for the value of its use and occupation; and if he makes a profit, he is liable for that also. If he sustains a loss, the loss is his; he must, in any event, account for the rental value of the land.

ADMINISTRATOR CANNOT BE CHARGED WITH RENTAL VALUE of land of the

estate after a foreclosure sale of the premises by the sheriff. From that time, the purchaser at the sale is entitled to the value of the use and occupation.

THE opinion states the case.

William S. Wells, for the administrator.

George A. Lamont and Joseph McKenna, for the creditors.

By Court, SANDERSON, J. This is a contest between an administrator and creditors, in relation to the settlement of an annual account of the former. Both parties were dissatisfied with the result in the probate court, and have appealed. The appeal by the creditors will be first considered.

The case shows that at a former annual accounting, two items contained in the present account-one for cash paid the register and receiver of the land-office at San Francisco, amounting to the sum of $37.16, and the other for cash paid to an attorney at Washington, for professional services rendered in the interest of the estate, amounting to the sum of

$25-were rejected, or not allowed by the court, not upon the ground, however, that they were not legal charges against the estate, but because the administrator was unable or failed to produce the vouchers required by section 231 of the statute by which the settlement of estates of deceased persons is regulated; that at the present accounting the administrator produced the requisite vouchers, and the items in question were allowed by the court. This allowance constitutes the first error assigned, it being claimed that the result of the former accounting was conclusive against the administrator as to such items.

In support of this view, section 237 of the statute is cited, and also the case of Clarke v. Perry, 5 Cal. 58; but we fail to see how the point is sustained by either. Section 237 prescribes the effect of a settlement of an administrator's account as against "all persons in any way interested in the estate"; viz., heirs, legatees, and creditors. We find nothing in this provision of the statute which precludes the administrator from bringing forward, in a succeeding annual account, or in his final account, such charges in his favor as may have been refused allowance at some former accounting, merely because the administrator failed, from any cause, to produce the technical proof required by the statute. On the contrary, the settlement of an annual account is not conclusive, even as against the heirs, legatees, and creditors, except as to such matters as were actually included in such former account, and directly passed upon by the court: Sec. 235. The fact that the heirs, legatees, and creditors are thus expressly permitted to contest matters not included and passed upon in any former account, necessarily implies that the administrator is not precluded from going behind a former account, and bringing forward charges which, through inadvertence or oversight, may have been omitted. Charges admitted to be legal, but not allowed, merely because not proved in the appointed mode, certainly do not stand upon less meritorious grounds, and if the administrator may go behind a former account for the purpose of bringing forward charges of the former character, by parity he may do the like in respect to the latter; and we find nothing in the statute which expressly precludes him from doing so.

The only remaining error assigned by the creditors presents the question whether the administrator ought to be charged interest upon certain funds belonging to the estate, which, as

is claimed, were retained in his hands an unreasonable length of time, and used in his private business, and therefore not applied to the payment of the debts against the estate as soon as they might and ought to have been. We find ourselves, however, unable to reach the merits of that question, by reason of the failure of the appellant to furnish us with the necessary facts.

The case merely shows that letters of administration were issued in May, 1863; that in September following, the administrator filed a report and account of sales of personal property, from which it appears he thereby received the sum of $5,982.48; that in May, 1864, at his first annual accounting, he had in hand the sum of $4,420.85; that in May, 1865, at his second annual accounting, he had the sum of $3,284.06; and in May, 1866, at his last annual accounting, he had the sum of $5,097.92. The present account was filed on the 7th of June, 1867. Why the estate has been kept so long in the hands of the administrator-nearly six years - and is still unsettled, the record fails to show. None of the annual accounts of the administrator, except the one under review, have been brought up; nor does the record contain any other matter by which this delay can be explained; nor does it appear, in any form, what was or has been the condition of the estate during all this time, or why the administrator has kept these funds in his hands, and not, by leave of the court, applied them in satisfaction of claims against the estate. The record fails to show either the value of the estate or the amount of the claims against it. If the estate is not insolvent, it is not perceived how the creditors can be interested in this question of interest. If it is solvent, the heirs would seem to be the only persons interested in pressing that question, for the creditors would get their money in either event. It is suggested in the brief of counsel for the creditors that the estate is insolvent, but that such is the fact nowhere appears in the record.

The only light thrown upon the question of interest is found in the testimony of the administrator and one Frisbie as to how the money was kept and used; from which it appears that it was kept by the former on general deposit with the lat ter, but it does not satisfactorily appear whether the adminis trator used any portion of it in his private business, or in any way derived any benefit from it. The court found, however, that he did not use it in his private business, and received no