not demand any special changes in the modes of electing judges, and that, among the many projects of "Reform" that have recently been suggested and advocated in Bar Associations, legal journals, and newspapers, this is entitled to as little favor as any. Far more important than the mode of his election, is the independence of the judge, and this can be most effectually secured by a reasonably long term of office and a liberal salary.

NOTES OF RECENT DECISIONS.

BURDEN OF PROOF-RATIFICATION OF LEASE -ESTOPPEL-JUDGMENT BY DEFAULT.-In a case1 recently decided in the United States Circuit Court for Oregon there are several rulings which we deem worthy of note. It seems that at a meeting of the directors of a corporation a lease was authorized which its officers proceeded to execute, and upon which the lessee proceeded to act. In the suit under consideration, the lessor corporation denied by answer the validity of the lease, because, at the meeting at which it was authorized, there was not a quorum of the directors present: The plaintiff, also a corporation, replied 'that it had no knowledge or notice of a want of a quorum at the meeting. There is a further reply of ratification by the defendant, of the contract of lease in question.

As to the burden of proof, the court held that it lay upon the defendant to prove the allegation it made, that the lease in question was executed by authority of a meeting of the board at which a legal quorum was not present. It admitted the prima facie case made by the answer, but sought to avoid it by new matter, the illegality of the meeting, and this, it was incumbent upon the defendant to prove.

In view, however, of the further ruling of the court, the questions whether the meeting was legal or illegal, and whether the plaintiff had or had not notice that a quorum was not present at the meeting were, as we think, immaterial issues, for it being conceded that a lease was made by apparent authority, the subsequent ratification of it by authority of the defendant company, real, as

1 Oregonian R. R. Co. v. Railway & Nav. Co., Ore-. onian, Sep. 16, 1886.

well as apparent, was held to be as obligatory upon the defendant, as if the original proceeding had been strictly regular. On this point the court says:

"A corporation, like a natural person, may ratify any act of its agent or any one professing to act by its authority, which it has the power to perform." 2

And it proceeds to define ratification thus: "Ratification takes place when one person adopts a contract made for him or in his name, which is not binding on him because the one who made it was not duly authorized to do so. Ratification is a question of fact and in the great majority of instances turns on the conduct of the principal in relation to the alleged contract or the subject of it, from which his purpose and intention thereabout may be reasonably inferred. And generally, deliberate and repeated acts of the principal with a knowledge of the facts, that are consistent with an intention to adopt the contract, or inconsistent with a contrary intention, are sufficient evidence of ratification."

And for the purposes of establishing a ratification, there is a presumption that whatever is done by the officers of a corporation under its corporate seal, nothing appearing to the contrary, is lawfully done.1

Upon the question how far a defendant is estopped by a judgment by default, the court held that a judgment by default, like a judgment upon contest, is conclusive of all that it professes to decide, as determined by the pleadings, and that such a judgment so rendered, is conclusive, as between the parties to the action, as to every matter well pleaded therein and necessary to the judgment. And it would appear that such a judgment may be replied to a plea in a subsequent action between the same parties involving the same issues, setting up matter that might have been pleaded to the former action.

2 Eureka Co. v. Bailey Co., 11 Wall. 491; Gold Mining Co. v. National Bank, 6 Otto, 644; Witt v. Mayor, 5 Rob. (N. Y.) 259; The E. C. Society v. The Episcopal Church, 1Pick, 375; P. R. M. Co. v. D. S. & G. R. Ry. Co., 7 Saw. 67.

3 Story on Agency, §§ 253-260.

4 Bank v. Dodridge, 12 Wheat. 70; McKeon v. Citizen's etc. Co. 42 Mo. 79.

5 Bigelow on Estoppel, 27.

STATUTE OF LIMITATIONS-IMMUNITY OF THE UNITED STATES-TRUST FUNDS.-The Supreme Court of the United States before its adjournment in the spring of 1886, decided a case of some interest involving the statute of limitations, its application to the United States as to demands held by it against citizens, and the questions whether the immunity of the government from the operation of the statute is affected at all, and to what extent by the time and mode of acquiring such claims, and by the fact that they are held in trust for others.

The case in brief was this: The United States in 1832, made a treaty with the Chickasaw Nation of Indians, by which the United States Government became the trustee for the Indian Nation to hold an invest for the benefit of the Nation certain funds, the proceeds of the sale of the Indian lands, and subsequently, in 1852 invested a portion of such funds in the bonds (with coupons attached) of the defendant company. Still later, in 1878, the United States accounted with the Indian Nation and closed the trust, satisfying the Indians otherwise, and retaining the coupons in suit as the property of the government. The bands themselves, and later coupons than those in suit, were all duly paid. The defence insisted on was the Statute of Limitations, that, as the United States held the coupons as trustee, at the time of their maturity, the Statute of Limitations then began to run, and that the bar was complete. The Circuit Court of the United States instructed the jury that the plaintiff's action was barred by the statute, and judgment for defendant was rendered accordingly. The Supreme Court reversed this judgment, and in delivering the opinion of the court, Mr. Justice Gray furnished an admissible compendium on the law of the subject. He said:

"It is settled beyond doubt or controversy --upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided-that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless Congress has clearly mani

6 United States v. Nashville, etc. Co., April 26, 1886; 22 The Reporter, 321.

fested its intention that they should be so bound. The nature and legal effect of any contract, indeed, are not changed by its transfer to the United States. When the United States, throngh their lawfully authorized agents, become the owners of negotiable paper, they are obliged to give the same no-tice to charge an indorser as would be required of a private holder.8 They take such paper subject to all the equities existing against the person from whom they purchase at the time when they acquire their title; and cannot therefore maintain an action upon it, if at that time all right of action of that person was extinguished, or was barred by the statute of limitations.9 But if the bar of the statute is not complete when the United States become the owners and holders of the paper, it appears to us, notwithstanding the dictum of Cowen, J., in U. S. v. White, 10 impossibleto hold that the statute could afterwards run

against the United States.11 In the present case, the United States bought the coupons sued on, and the bonds to which they were annexed, long before any of them became payable, or the statute of limitations had begun to run against the right of any holder to sue thereon. The money with which they were bought was money received by the United States from the sale of the lands ceded to them by the Chickasaw Nation of Indians. Those lands, the money received from their sale, and the securities in which that money was invested, were held by the United States, in trust, to be applied for the benefit of those Indians, in performance of the obligation assumed by the United States by treaties with them. The securities were thus held by the United States for a public use in the highest sense, the performance of a quasi international obligation; and they continued to be so held until that obligation had been performed and discharged, after which they were held by the United States, like all other

7 Lindsey v. Lessee of Miller, 6 Pet. 666; U. S. v.. Knight, 14 Ib. 301, 315; Gibson v. Chouteau, 13 Wall.. 92; U. S. v. Thompson, 98 U. S. 486; Fink v. O'Neil, 106 Ib. 272, 281.

8 U. S. v. Barker's Adm'r, 4 Wash. C. C. 464, and 12 Wheat. 559; U. S. v. Bank of Metropolis, 15 Pet. 377, 392, 393; Cooke v. U. S., 91 U. S. 389, 396, 398.

9 U. S. v. Buford, 3 Pet. 12, 30; King v. Morrall, 6 Price, 24.

10 2 Hill (N. Y.), 59, 61.

11 Lambert v. Taylor, 4 B. & C. 138; S. C. 6 D. & R., 188.

12

property of the government, for the ordinary public uses. The necessary conclusion is that the statute of limitations of Tennessee never ran against the right of action of the United States upon these coupons, either while the United States held them in trust for the Indians, or since they have held them for other public uses; and that the decision of the circuit court was erroneous.

This case does not present the question. What effect the statute of limitations may have in an action on a contract in which the United States have nothing but the formal title, and the whole interest belongs to oth

partly because of the number of persons affected by it, and partly by reason of the degree of their interest; for the questions occurring on this subject are not remote and theoretical, but are practical, and frequently of vital moment to the parties.

Nor is the topic free from perplexity. Owing to the complex relations of the employees of large corporations, it is often difficult. to decide who are fellow-servants, to the intent of exempting the master from liability. But the obscurity and apparent confusion in which this doctrine has hitherto been involved, have arisen largely from a prevailing misapprehension of the principles upon which it is founded. In view, therefore, of its importance and difficulty, the subject is worthy of close and thoughtful attention.

The legal proposition in question, known as the doctrine of "common employment." may be stated as follows: When a master uses due care in selecting competent and trustworthy servants, and in furnishing suitable means for the service, he is not responsible to one person in his employ for a personal injury occasioned by the negligence of another in the same service, unless the latter was occupying the position, or performing a duty of the principal.

It shall be the object of this paper to point out the fundamental principles and rules of law involved, and thus to reduce this branch of the law of master and servant to a more logical and consistent whole; to show that there are sound legal maxims in accordance with which, questions that arise under this head may be definitely solved; and, finally, to state the law as it exists, as clearly, concisely and accurately as may be.

II. In considering the question of a master's liability to a servant for an injury to the latter, occasioned by the negligence of a coservant, the first and most elementary principle to be borne in mind is, that primarily a man is liable for his own acts only, and not for those of others. It has been common to assume that the master would be liable in the absence of any rule of law to the contrary, and then to seek to explain away his liability. This is an error which has rendered the subject needlessly difficult and obscure. Instead of starting, as is generally done, with the maxims respondeat superior and qui facit per

alium facit per se, a more accurate and logieal method of treating the subject, would be to regard these as the exceptions to the general proposition above stated.

Though the principle may be supposed to have existed in the bosom of the law from time immemorial, the doctrine of common employment is the result of modern legislative and judicial action; the earliest case in which the doctrine was declared, Priestly v. Fowler,' was decided in 1837. Nevertheless, to understand thoroughly the present law governing a master's liability, it is necessary to trace the history of the principles involved, and especially of the maxims respondeat superior and qui facit per alium facit per se, though the latter applies to principal and agent, rather than to master and servant.

3

The relations of master and slave, under the Roman law, and of lord and vassal, under the feudal system, were such that no question of the kind under consideration could arise under those systems. By the English common law the master is liable to his servant for his individual wrong; 2 a servant is likewise liable to his fellow-servant. Such was not the case under the Roman law, where neither son nor slave was sui juris; the pater familias was the only one who could sue or be sued. The doctrine of respondeat superior, therefore, was a natural development of the latter system. The rule qui facit, etc., is derived from the same source.

These maxims were first introduced into the English law on grounds of public policy, about the time of Lord Holt; the earliest recorded case being, it is said, the old case of Michael v. Allestree. From the days of Charles II. such has been the rule of the common law of England, though we have high judicial authority for saying that, before that time, "there is no instance of a master being liable for the negligence of his servant. That a man should be liable for an injury occasioned by his own act or neglect

13 Mees. & Wels. 1.

2 Ashworth v. Stanwix, 3 El. & El. 701; Flike v. Boston, etc. R. R. Co. 53 N. Y. 550.

3 Swanson v. Northeastern Ry. Co., 3 Exch. Div. 341, 343; Osborn v. Morgan, 130 Mass. 102.

Turberville v. Stampe, 1 Lord Raym. 264. (By Lord Holt, 1698.)

2 Levinz' 172, (1688).

Austin's Lect. on Jurisp. (3rd Lond Ed. 513.) 7 House of Com. Docu. 1877, No. 285, p. viii,

is obviously just. That he should be liable for the act of another which he not only did not command, but, perhaps, even forbade to be done, must be justified upon the ground of public policy rather than of natural justice. Such, however, is the well established and eminently satisfactory and salutary exception as to a master's liability to a stranger injured by a servant acting in the line of his duty. Should the same exception be extended to the case of a servant injured by a fellow-servant?

This question seems seldom to have been examined in a thorough, unprejudiced and comprehensive manner. Justice Story, with his usual breadth of view in speaking of the doctrine of common employment, says, that in attempting the solution of the new cases which will arise on this subject, "It would be well to settle more definitely than has yet been done, the grounds upon which a master is in any case made liable for the negligence of his servant toward a stranger to the agency; and to see what and how many of such reasons apply, and with what force, to such new cases. This seems never, as yet, to have been attempted.' 98

In analyzing the reasons for the present rule, it is, perhaps, best to examine first the early cases in which it was first enunciated. Although the case of Priestley v. Fowler, did not distinctly declare the doctrine, it is generally referred to as the first recorded case on the subject. A butcher's servant was sent to deliver meat on a van which had been loaded by a fellow-servant, but loaded too heavily, in consequence of which the van broke down, and the man's thigh was broken.

In deciding that the butcher was not liable, Lord Abinger, admitting that there was no precedent for the action, and basing his decision upon general principles, said that the plaintiff must have known as well as the master, and probably better, whether the van was sufficient; and that the consequences of a decision in favor of the servant would be alarming, subjecting the master to unknown and unreasonable responsibilities, and encouraging the servant to omit the diligence and caution due to his master, "which diligence

8 Story on Agency, 8th ed. p. 564, note. 93 M. & W. 1.

and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse for damages could possibly afford."

Priestley v. Fowler is the earlier authority, but the case of Hutchinson v. York, Newcastle and Berwick Railway Co.,10 has been regarded as the leading English case upon the subject. In this case it is laid down that there is no implied contract of indemnity between employer and employed; but that, on the contrary, there is an implied contract on the part of the servant to run the ordinary risks of the service. Baron Alderson, in delivering the opinion of the court, said: "The principle is, that a servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow-servant whenever he is acting in discharge of his duty as a servant of him who is the common master of both."

11

The earliest American case involving the doctrine of common employment was Murray v. South Carolina R. R. Co., a South Carolina case decided in 1841, in which the carelessness of an engineer resulted in injury to the fireman. The court reached substantially the same conclusion as in Priestley v. Fowler. But in this country, as in England, a later and more ably and thoroughly considered case is regarded as the leading authority. This is the case of Farwell v. Boston & Worcester R. R. Co.,12 in which the opinion of the court was pronounced by Chief Justice Shaw. This opinion has been regarded as one of the most profound and able to be found in our reports, and has been extensively cited on both sides of the Atlantic.

This was an action brought by an engineer to recover for damages caused by a misplaced switch. "The general rule," says Shaw, C. J., "resulting from considerations as well of justice as of policy is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural

105 Exch. 343 (1850).

11 McMullan's Law, 385.. 12 4 Metc. 49.

and ordinary risks and perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment."

It will be seen from the foregoing cases, that the authorities base the master's exemption first, upon public policy, and, second, upon an implied contract.

(1) The decisions have been justified upon grounds of public policy, because the oppo. site doctrine "would subject employees to unreasonable and often ruinous responsibilities," 18 and would be an encouragement to the servant to omit that diligence and caution which are the best protection alike to the master, to the servant and to the public.

(2) It has been objected to the argument of an implied contract, that such a contract is rarely in the mind either of master or servant, when the contract of employment is made. Those who urge this objection, overlook the fact that this is but one of a large class of cases in which relations and duties imposed by law are set forth under the disguise of fictitious agreements and promises, a custom which permeates whole branches of the common law; and, although the expression is, perhaps, an unfortunate one, there is nothing peculiar in its employment here.

(3) In addition to this, the rule seems to be in accordance with natural justice. If it is true that primarily a man is liable only for his own wrongful acts, conversely it is equally true that every man must bear his own misfortunes. If the sufferer would have the law interfere for his relief, it must be upon the ground that the injury was caused by the wrongful act or neglect of the defendant, while the plaintiff himself was free from blame. This, extended by the maxims re

spondeat superior and qui facit, etc., may be taken as a general statement of the law, if we except the Illinois doctrine of comparative negligence. Now, applying these principles to the case of a servant injured by a fellow servant, if he would recover from the master, the burden is upon him to show good reason why the latter should be liable. If

18 Cooley on Torts, p. 541.