SAINT LOUIS, JUNE 21, 1878.

CURRENT TOPICS.

In the Chancery Division of the English High Court of Justice, in Edmunds v. AttorneyGeneral, 26 W. R. 550, it was recently decided by MALINS, V. C., that where an action is shown to be vexatious, and an abuse of the process of the court, it will be stayed. The Vice-Chancellor said: "It is urged very strongly upon me that there is no precedent to be found for an order of this kind made in the Court of Chancery, or now in the Chancery Division of the High Court. And I suppose, as no precedent has been referred to by counsel on either side, that that is so. Then it is urged that, because it has not been done before, it ought not to be done now. But it must be borne in mind that this court is only a branch of the Supreme Court of Judicature. That court is now one, and it would be an extraordinary thing if that which was good practice in one branch of it should not be good practice in another branch. And, if it is right to stay actions on the ground that they are frivolous and vexatious and an abuse of the process of the court in the other branches, I think it would be a reproach to this branch of the court if it had not the power of doing the same. On principle, I am of opinion that where we find a litigant, like Mr. Edmunds, who will go into inquiries, and if they go against him will consider them as mere nullities, who will have recourse to such a series of vexatious and improper litigations as he has had recourse to, who, when a decision is given against him, will persist in considering that decision as a mere nullityfor he has considered the decision of the arbitrators a nullity, he has considered my decision of January, 1876, as a nullity, the decisions of the common law courts as mere nullities, and the decision of Vice-Chancellor Bacon, staying all proceedings, also a mere nullity-when such a litigant is found, I think it is a most wholesome doctrine that any court should have the power of stopping such a litigation. I can not conceive a stronger instance than this, where Mr. Edmunds, for year Vol. 6-No. 25.

on a claim which he has persuaded himself is a good one, worried the public officers, worried the Attorney-General for the time being, the Lords of the Treasury. and all the public servants, with this repeated litigation, which, as the Attorney-General has well said, is not only expensive, but harrassing to public officers, and causes a great consumption of public time, and a great consumption of public money."

In Tatum v. Curtis, decided by the Supreme Court of Tennessee, during its present term, it is held that a judgment based on personal service cannot be vacated in chancery, on the simple unsupported evidence of the judgment defendant that he was not served with process as shown by the officer's return. MCFARLAND, J., for the court, filed a brief opinion as follows: "Bill to enjoin judgment rendered by a justice against complainant upon the ground that he was not served with process. The warrant shows a regular service. The complainant, in his deposition, says he was not served. The officer says he has no recollection, aside from his return, but is satisfied from this, that he did serve the warrant, as he was always particular to make his returns according to the facts. There is no other and very pertinent testimony. The facts and circumstances are not fully developed. The onus of proof is upon the complainant. His own testimony but counterbalances that of the official act and testimony of the officer. It would not do to set aside the judgments of courts and the official acts of officers, upon the simple denial of the service by the party himself, unsupported. Decree affirmed." In Ridgway v. Bank of Tennessee, 11 Hum. 523, the jurisdiction of the Chancery Court was sustained, to entertain a bill to vacate a judgment at law based on a sheriff's return of personal service, the bill averring that such return was not true in fact. The question having been presented on demurrer to the bill, no uling was made as to the quantum or grade of evidence necessary to overthrow the prima facie evidence of the return. But several authorities were cited, supporting the jurisdiction of equity to entertain the case, and to hear averments against the truth of the of

ficer's return, though a matter of record. This in effect overruled, (though without noticing it) Love v. Smith, 4 Yerg. 117, where it was held, under a bill directly attacking the return of a sheriff as to property levied on and included in a delivery bond taken by him, that the surety in such bond could not contradict the truth of such return. In a court of law an officer's return is conclusive, and no averments against it can be heard; McBea v. State, Meigs 122; Baxter v. Erwin, Thomps. Tenn. Cas. 175. But when the proceeding is one directly against the of ficer on account of the same matters involved in the return, it is prima facie evidence in his favor, McCully v. Malcom, 9 Hum. 187 (where the officer was sued for false imprisonment), but it is no longer conclusive, and may be disproved by other evidence, Williams v. The State, 2 Sneed 160 (where the officer was indicted for extortion.)

The Supreme Court of Appeals of West Virginia, in City of Wheeling v. Campbell, 17 Am. L. R. 386, hold that the statute of limitation, in the absence of an express provision to the contrary, runs against a municipal corporation the same as against a private person— the common law maxim nullum tempus occurrit regi, applying to sovereignty only, which means, in this country, the United States and the states themselves in their public capacity: In Dillon on Municipal Corporations, the author says: "Municipal corporations, as we have seen, have, in some respects, a double character. One public, the other (by way of distinction) private. As respects property not held for public use, or upon public trusts, and as respects contracts and rights of a private nature, there is no reason why such corporations should not fall within limitation statutes, and be affected by them. For example, in an action on a contract or for tort, a municipal corporation may plead or have pleaded against it the statute of limitations. But such a corporation does not own and can not alien public streets or places, and no laches on its part, or on that of its officers, can defeat the right of the public thereto, yet there may grow up in consequence private rights of more persuasive force in the particular cause than that of the public. It will perhaps be found that cases will arise of such

a character that justice requires that an equitable estoppel shall be asserted even against the public, but if so, such cases will form a law unto themselves, and do not fall within the legal operation of limitation enactments. The author can not assent to the doctrine that, as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle; but there is no danger in recognizing the principle of a estoppel in pais as applicable to such cases, as this leaves the court to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not as right and justice may require." The courts of Pennsylvania, New Jersey, Rhode Island and Louisiana have held that the maxim nullum tempus occurrit regi is not restricted in its application to sovereignty, but that it applies to municipal corporations as trustees of the rights of the public. Cross v. Mayor, etc., 18 N. J. Eq. 311; Jersey City v. State, 1 Vroom. 521; Simmons v. Cornell, 1 R. I. 519; City of Philadelphia v. Phil. & Read. R. R., 58 Penn. 263; Com. v. McDonald, 16 S. & R. 401; Rung v. Shoenberger, 2 Watt. 23; Mayor, etc. v. Morris Canal & Banking Co., 1 Beas. 561; Mayor v. Magner, 4 Mart. 1. On the other hand, the courts of Vermont, Massachusetts, New York, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Mississippi, Texas, Missouri, Kentucky, Ohio, Illinois and Iowa, have restricted the application of the maxim to sovereignty alone, and most of them have held in cases requiring the decision that municipal corporations, like natural persons, are subject to the statutes of limitation. Kelly's Lesse v. Greenfield, 2 Har. & M. 138; Knight v. Heaton, 22 Vt. 481; Vanck. v. Cor. of New York, 4 Johns. 53; Inhabitants of Litchfield v. Wilmot, 2 Root, 288; Armstrong v. Dalton, 4 Dev. 368; State v. Rich, 7 Rich. 390; Bowen v. Team, 6 Rich. 298; City of Galveston v. Menard, 23 Tex.; Rowan's Exrs, v. Town of Portland, 8 B. Mon. 232; Dudley v. Trustees of Frankford, 12 B. Mon. 610; Alvin v. Town of Henderson, 16 B. Mon. 131; Clements v. Anderson, 46 Miss. 581; County of St. Charles, v. Powell, 22 Mo. 525; School Directors v. George, 50 Mo. 194; City of Cincinnati v. Evans, 5 Ohio St. 594; Lake v. Kennedy, 13 Ohio St. 42; City of Peoria v.

Johnston, 56 Ill. 45; Ch. R. I. & P. R. R. v. City of Joliet, 79 Ill. 40; City of Richmond v. Poe, 24 Gratt, 149; City of Pella v. Scholte, 24 Ia. 283. The West Virginia court, in the principal case, in giving the reason for their conclusion, say: "In Virginia, it has always been held that the maxim nullum tempus occurrit regi applies to sovereignty, and Lee, J., in Levasser v. Washburn, 11 Gratt. 572, in giving the reason for the maxim, said: 'The reason sometimes assigned why no laches shall be imputed to the king, is that he is continually busied for the public good and has not leisure to assert his right within the period limited to subjects. A better reason is the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. This reason certainly is equally if not more cogent in a representative governa ent where the power of the people is delegated to others, and must be exercised by them if exercised at all; and accordingly the principle is held to have been transferred to the sovereign people of this country when they succeeded to the rights of the king of Great Britain and formed independent governments within the respective states.' This principle we approve and regard the exemption from the effect of limitation statutes as essential to the well being of the government of the states; but this exemption belongs and appertains to sovereignty alone. The reason for it is very apparent; if the statutes of limitation would run against the state, her public lands, if she had any, would he liable to be taken possesison of by squatters, who would hold them for the time required by the statute and defy the state; and the state in that portion being sparsely populated there would be few or none to complain, as it would be the cheapest way to obtain lands from the state. The highways of the state would be liable to be impaired or destroyed by encroachments, and the country not being thickly settled, and the neighbors all acquainted with each other, and the state officers being remote from these highways, there would perhaps be little complaint. But in a city or town, where so many people are to suffer inconveniences by such encroachments, and the officers of the city or town are on the spot, such encroachments are not apt to be tolerted for a long period, and they would be

less likely to be tolerated, if it was known that an uninterrupted possession of a street, alley, or square would, in a certain number of years, give title to the occupier."

WILLFUL ACTS OF SERVANTS.

By the civil law, an owner was answerable for all misdeeds of his slave, Grotius, Ch. 17, § 11, and a principal was liable for all acts of his agent in the line of such agent's authority. Just. Inst. B. 4 Title 7 § 2. The French Constitution of 1453 provided that the sovereign was not responsible for injuries done by his subject outside of such subject's allegiance (Cons. Tom. 3, Title 2), and Pothier, Part 2 Ch. 6 F., 8 Art 2 § 4 states the doctrine of the civil and French law to be that "masters are responsible if servants commit acts in the functions to which they were appointed; for instance, if your coachman, in driving your carriage, has through brutality or unskillfulness caused any damage, you are civilly responsible." It is therefore beyond question that this was a well settled point in the Roman law. The jurisconsults were governed by principles, not by precedents, and the student will find a rich fund of reasoning in the responses and the treatises of Ulpian and Paulus, by which the above doctrine was determined to be an underlying principle, founded in reason and right, and which could not be safely narrowed or broadened. A synopsis of the wide ethical discussion which resulted in this determination would occupy too much space.

It was declared to be law by Annual Praetorian Edict, a sure sign that it had been subjected to violent and distinguished criticism and had emerged triumphant. As the foremost judicial officer saw fit to declare its worth by promising through the Edict that it should be law during his tenure of office, it must of necessity have been subjected to suggestions of qualification by many of the eminent scholars of that wonderful empire. also came to the Romans from Greece, and graced and invested as it was by the charms and prestige of the philosophy underlying the Greek law of nature, it became one of the jewels of Roman jurisprudence, and has enjoyed an uninterrupted recognition on the continent for over two thousand years.

It

No authoritative decision involving this doctrine could be found in England until abou

two centuries ago, when Lord Holt stated in Middleton v. Fowler, 1 Salk. 282 that "no master is responsible for the acts of his servant but when he acts in the execution of the authority given him." Thus this principle was grafted into the body of the English law, and when adopted, was one of the many instances where texts of the civil law were so transplanted without the source being acknowledged. See Maine's Ancient Law, Ch. on "Law of Nature and Equity." For a whole century this clear language of Lord Holt remained an undisputed part of the common law of England. Then came the decision of McManus v. Crickett. We find from the report in 1 East. 106, and the reference to it in Sleath v. Wilson, 9 C. & P. 612, that Crickett's coachman had a private spite against McManus, who was out riding in his chaise, and such coachman seized the time and opportunity to gratify such spite and maliciously used the defendant's horses and coach to overthrow the chaise and injure the plaintiff, who sued Crickett in trespass. Lord Kenyon rightly held that as the action should have been trespass on the case, and was therefore wrong in form, the plaintiff should not

recover.

Impressed with the leading feature in the case of the coachman's manifest malice and ill-will, (which does not appear in the reporter's statement of facts) Lord Kenyon went beyond the necessity of the case, and said, obiter: "Now where a servant quits sight of the object for which he was employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and according to the doctrine of Lord Holt, his master will not be responsible for such acts." It is this language which "C. H. B." at page 412 of the present volume of this Journal, calls luminous, exact, unquestioned, never repudiated or even doubted.

It is clear that while Lord Holt held the master chargeable when the servant acted in the execution of the authority given, he did not say under what circumstances the servant would be so acting. Now a servant may quit sight of the object for which he was employed, disregard his master's orders and pursue that which his own malice suggests, and still act in pursuance of the authority given him. See Limpus v. The London Gen.

Om. Co., 1 H. & C. 526, where defendant's omnibus driver, contrary to express orders, maliciously drove the omnibus in front of a rival omnibus and upset it. The full bench of the Court of Exchequer decided that it could not be held as matter of law that the act was outside the scope of the employment.

Hence, if a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he will not of necessity be acting otherwise than in pursuance of the authority given him, and it does not therefore follow of necessity that the master will not be liable for such acts.

A second objection to Lord Kenyon's dictum is that it leaves an erroneous impression on the mind that Lord Holt decided something more than that the master is never liable but when the servant acts in the execution of the authority given him. And a third objection to the report is that the reporter's statement of facts utterly fails to show the previous private malice and spite cherished against McManus by Crickett's servant, but shows only that the collision was intentional at the time, thus leading a casual reader to suppose that Lord Kenyon's dictum was intended to apply to the facts as stated in the report, and not to a case where there were really the additional but unmentioned facts of existing spite and active desire to gratify it.

The writer states with some confidence that this sentence of Lord Kenyon, joined with the reporter's misleading statement of facts, has caused more trouble and confusion than any other sentence ever penned by a judge. It has taken the major portion of a century to work back to the simple and pure Roman doctrine of the master's responsibility in all cases within the scope of the employment. Even now the vast majority of lawyers will assert that a master is never liable for a servant's willful act.

This dictum in McManus v. Crickett is "repudiated" by Judge Reeve in a lenthy argument, and he says: "The decision in 1 East. 206, is, I apprehend, in opposition to all former received opinions on the subject." Reeve's Dom. Rel. 519, 360. In The Druid 1 Wm. Rob, 403, the court says it is not an express decision; it is stated in South Carolina to have been modified by Seymour v. Greenwood, 7 H. & N. 354, (see Redding v.

S. C. R. R. Co., 16 Am. R. 681), and is silently ignored by such English judges as Cockburn and Mellor in several recent decisions to the effect that the dividing line is not the willfulness of the act but the pursuance of the authority and scope of the employment. It is criticised by the entire bench of the New York Court of Appeals as unsound and not in harmony with the later authorities. Isaacs v. The Third Ave. R. R. Co., 47 N. Y. 127. It is not approved in Rounds v. D. L. & W. R. R. Co., 64 N. Y. 134, but on the contrary the court holds the master responsible for acts done by the servant from infirmity of temper or under the influence of passion and done beyond the strict line of his duty or authority, and that, as to third persons, the servant can not be said to be acting without the true line of his duty, by doing willful acts where he is authorized to use force. The master was held for a servant's willful act in Shea v. Sixth Ave. R. R. Co., 62 N. Y. 180. In Mott v. The Consumers Ice Company, decided May 22, 1878, by the same court, the master's liability was held not inconsistent with the proposition that the servant "willfully, and not negligently or carelessly," drove an ice cart against plaintiff's buggy and injured him. And the court says: "There are intimations in several cases of authority that for the willful acts of the servant the master is not responsible. McManus v. Crickett, 1 East. 106; Wright v. Wilcox, 19 Wend. 343 But these intimations are subject to the material qualification that the acts designated willful are not in the course of the employment." The same court held the master liable for a malicious overturning of plaintiff's buggy by a cursing street-car driver, Cohen v. Dry Dock R. R., unreported; and in the Mott case supra, has laid down a clear statement of the law. The opinion of Judge Allen is well worthy of its position as the last legal work of that deceased jurist.

In Wisconsin Lord Kenyon's doctrine is regarded as unsafe. Croker v. C. & N. W. R. R., 17 Am. R. 504. And in Indiana the servant's "malice and wantonness" will not necessarily excuse the master. Jeffersonville, &c. R. R. Co. v. Rodgers, 38 Ind. 116. He is liable for the servant's malicious use of a locomotive. T. W. &. W. R. R. Co v. Harmon, 47 Ill. 298; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Phil. & R. R. R. Co. v.

Derby, 14 How. U. S. 568; 34 N. Y. 87. And in Hames v. Knowles, 114 Mass. 518, a servant wantonly and maliciously drove defendant's coach against plaintiff's wagon, and it was held that the wantonness and mischief not only did not absolve the master from liability, but enhanced the damages. So in Shirley v. Billings, 8 Bush, 147, the clerk of defendant's steamer assaulted plaintiff and put out his eye. The master was held. The same rule is found in Hawkins v. Riley, 17 B. Mon. 101. In Duggins v. Watson, 15 Ark. 118, the servants intentionally run defendant's steamer into plaintiff's boat; the master was held. And the gun case, 50 Missouri Reports, 104, asserts the master's liability for damages caused by a special violation of orders.

It is submitted that Lord Kenyon's dictum in McManus v. Crickett is not law. It has been repudiated, doubted and shunned. It shows the danger of attempting to add to the Roman rule. All confusion and dissatisfaction over the subject have been caused by a single inexact proposition of an eminent jurist, joined with a reporter's neglect to mention material facts which existed in the case.

1. WHERE AN INSOLVENT DEBTOR PURCHASES PROPERTY with his own means, and places the title in the name of his wife, equity considers her a trustee in invitum, and will fasten a charge upon the property for the payment of his debts.

2. THE CREDITORS HAVE NO CLAIM upon the rents and profits of the property conveyed to the wife.

3. IF THE PROPERTY HAS BEEN SOLD BY THE WIFE, chancery will lay hold of the proceeds for the benefit of his creditors.

4. INSURANCE IS NOT AN INCIDENT TO THE PROPERTY, and where the wife insures the property, and it is burnt, the insurance money belongs to her, and is not liable to the creditors of her husband.

The bill in this case alleged that the partnership of C. & P. Beers was indebted to complainants in the sum of $565.65, due on a bill of exchange;