notes when the car was delivered to the defendant, it is plain that the plaintiff failed to sustain the burden of proof. Sawyer v. Spofford, 4 Cush. (Mass.) 598; Fisher v. Alsten, 186 Mass: 549, 72 N. E. 78; Field

v. Fletcher, 191 Mass. 494, 78 N. E. 107; Wylie v. Marinofsky, supra.

The trial judge rightly directed the jury to return a verdict for the defendant.

Exceptions overruled

The defendant was prosecuted for a violation of the Michigan Blue Sky Law. The complaint charged that the defendant had offered for sale to Noah

J. Plamondon and Severn Belanger

stocks of the San Antonio & Gulf Oil Co., "in the course of continued and successive transactions of a similar nature."

A number of witnesses testified to different sales made by the defendant. The latter contended that the testimony should have been confined to sales made to the persons named in the complaint. It was held that the testimony was properly admitted as bearing upon the charge of continued and successive transactions of a similar nature.

It was also held that the sales made by the defendant were not privileged on the ground that he, as the owner of the stock had the right to sell. The court

so held because the evidence showed that the defendant purchased the greater part of the stock for the purpose of reselling it. A conviction of the defendant was affirmed.

Jasper Weese was convicted of a violation of the Blue Sky Law, and brings exceptions before sentence. Affirmed and remanded.

Parm C. Gilbert, of Traverse City, for appellant.

C. L. Dayton, Pros. Atty., of Traverse City, and Andrew B.

Dougherty, Atty. Gen., for the People.

Opinion of the Court, Written by Judge Moore

MOORE, J.-The defendant was convicted of a violation of the "Blue Sky Law," so called. The case is here on exceptions before sentence. The complaint reads, in part, as follows:

"On the 14th day of May, A. D. 1920, and on divers other days between that day and the first day of May, A. D. 1921, at the townships of Leland and Suttons Bay, in the county and state aforesaid, one Jasper Weese, late of the city of Traverse City, Mich., was then and there a dealer within the meaning of Act 46 of the Public Acts of the State of Michigan for the year 1915, and did then and there offer for sale to one Noah J. Plamondon and Severn Belanger, and to divers other persons to complainant unknown, the stocks of a certain company known and designated as San Antonio & Gulf Oil Co.

It, the said investment company, not having filed in the office of the Michigan Securities Commission a statement showing in full detail the plan upon which it, said company, etc., . . he, the said Jasper Weese, offering said stocks, as aforesaid, of the San Antonio

& Gulf Oil Co. in the course of continued and successive transactions of a similar nature, and not being then and there the issuer of said stocks, etc., . . . contrary to the form of the statute in such case made and provided and against the dignity of the people of the state of Michigan."

The complaint was supplemented by a number of affidavits showing sales of stock by defendant.

The defendant was bound over to the circuit court, where an information following the complaint was filed, except that the names of more persons to whom sales had been made appeared in the information than appeared in the complaint.

The defendant upon arraignment stood mute and the plea of not guilty was entered.

Upon the close of all of the testimony the jury by the direction of the court returned a

guilty.

"Q. Mr. Weese, when you obtained the stock, you gave a note for it? A. Yes, sir.

"Q. And you had it issued in convenient denominations for sale? A. Not necessarily.

"Q. Well, as a matter of fact, you did, didn't you? A. Well, not always. I had some $500, some $1,000, and some $100.

Two claims are made: First, that the testimony should have been confined to sales made to the persons named in the complaint; and, second, that the stock belonged to Mr. Weese, and that he had a right to sell it.

As to the first of these contentions, the complaint charged sales not only to the persons named, but also to "divers other persons," and also charged that the stock was offered for sale in the course of continued and successive transactions of a similar nature.

A number of witnesses were sworn on the part of the people, who testified to different sales made by the de-. fendant. The names of all these witnesses were indorsed upon the information. The testimony was competent as bearing upon the charge of

Take it on March 27, 1920you had two certificates of $500 and 10 certificates of $100 and 10 or 11 certificates of $50, didn't you? A. I suppose so.

"Q. And on April 4th you had another lot issued to you, and they were issued, one five hundred, a good many hundreds, some fifties, and some twentyfives, isn't that true? A. That is the way they came, yes.

"Q. And so every one purchased you had split up in that fashion, didn't you? A. Yes, sir.

"Q. Well, then, you had them split up that way for convenience in selling, didn't you? A. Not all of it, no.

"Q. Most of it you expected to sell, and you had it split up this way to sell, didn't you? A. No, I didn't have it split up to sell all of it.

"Q. Well, you expected to sell most of it, didn't you? A. I expected to keep about $10,000 worth for myself,

"Q. Thirty per cent. of $50,000? A. It is not all profit. You have to do a lot of traveling around and your expenses take some of this.

"Q. But you expected to sell part of this stock, didn't you? A. Absolutely.

"Q. The greater part of it, all but about $10,000, you say? A. Yes, sir.

"Q. And when you bought the stock in these denominations on April or March 27th, you expected to sell this stock that you bought March 27th? A.

sir.

Part of it, as I said before; yes,

"Q. And when you got the money you expected to send it down and get more stock, didn't you? A. No, oh no. I expected to pay my notes first.

"Q. Pay notes first? A. Yes, sir "Q. And take 30 per cent. discount on it, didn't you? A. No. sir; I didn't take 30 per cent. discount.

"Q. Didn't you get a 30 per cent. discount? A. Yes, sir; they sent me that, sometimes in stock and sometimes in cash.

"Q. And then on the payments of the notes you got more stock? A. Yes. "Q. Did you write and get more

Owing to the fact that four bandits were robbing freight trains of the defendant railroad company, the company specially assigned two detectives to apprehend the offenders, and instructed the detectives specifically, if the four men came to rob a train or did rob one, to arrest them if they could. Each of the detectives was instructed "not to use his gun except in defense of life"

One night while the detectives were searching for the bandits near the railroad's right of way, four men entered a shanty located near the property of

the railroad company. Thereafter the detectives saw three men leave the shanty, and believing them to be the bandits, ordered them to stop and throw up their hands. Because the men failed to obey the command quickly, one of the detectives shot off his gun. The charge entered the plaintiff's arm, causing an injury which made amputation necessary. The detectives then arrested the three men, who proved to be inno

cent.

The plaintiff sued the railroad company to recover for false arrest and for

the assault and battery committed by its servants. It was held that the plaintiff was entitled to recover, for the reason that the detectives through a mistake made in the performance of a duty, to which they had been assigned by the defendant, arrested and inflicted an injury upon the plaintiff, an innocent man. The court found that the mistake amounted to negligence for which the defendant was responsible, since it occurred while the defendant's servants were engaged in the performance of their duty.

In Error to the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.

Action by Albert Pittinger against the Delaware, Lackawanna & Western Railroad Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Frederic B. Scott, of New York City, for plaintiff in error.

Horton & Tilt and Frederick W. Van Blarcom, all of Paterson, N. J., for defendant in error.

unarmed and in no way shown to be bandits or bent on criminal action, went to a shanty situate about 90 fect from the property of the railroad company to drink a jug of wine. Toward midnight one of the men left the party and the others, desiring to learn where he had gone, came out of the shanty. When they had walked about 10 feet, the detectives threw open the door of the sandhouse and, believing the men to be the bandits for whom they had been sent in search, ordered them to stop and throw up their hands. Being slow to do so, one of the detectives shot his riot gun. The load went into the arm of the plaintiff causing injury which resulted in amputation. Thereupon the detectives arrested the three men.

The plaintiff brought this suit against the defendant railroad company declaring on two causes of action: First, false arrest; and, second, assault and battery by its servants, charging liability under the doctrine

Judge Woolley

WOOLLEY, C. J.-Four bandits had been operating in the vicinity of Boonton, N. J., robbing freight trains of the defendant railroad company. To stop these depredations, the company specially assigned two detectives with "specific instructions... that . . . if these four men came to rob a train, or did rob one, to arrest them if they could". Each was instructed "not to use his gun except in defense of life". Pursuant to these instructions the detectives, on the night in question, concealed themselves in a sandhouse near the railroad company's right of way. It so happened that four men,

tiff had a verdict on both counts for different amounts. The case is here on the defendant's writ of error.

Speaking of the parties as they stood in the trial court, the defendant does not complain of the verdict on the first count. Its assignments of error are addressed solely to the action of the court under the second count and are based on the somewhat conflicting contentions, first, that the court erred in refusing to grant its motion to direct a verdict in its favor on the ground that the defendant's servants were not acting within the scope of their authority; second, that it erred in failing to submit the question of scope of au

thority to the jury; and, third, in submitting to the jury the question whether the defendant's servants were acting in defense of their lives or of their master's property and were, for this reason, justified in shooting.

There was no dispute about the facts. The learned trial judge, therefore, regarded the question of scope of authority as one of law, evidently under the cases of Keeney v. D., L. & W. R. R. Co., 87 N. J. Law 505, 94 Atl. 604; Whitehead v. Mock, 87 N. J. Law 725, 94 Atl. 812; Finnie v. Kelsey, 95 N. J. Law 163, 112 Atl. 308; Ryle v. Manchester B. & L. Ass'n, 74 N. J. Law 840, 67 Atl. 87; Vandergrift Construction Co. v. Camden T. & R. Co., 74 N. J. Law 669, 65 Atl. 986, and instructed the jury as matter of law that the detectives were acting within their authority and that the railroad company, their master, was responsible for their action.

To this instruction the defendant had an exception. The question of the validity of the instruction therefore is properly here.

The question has two aspects: These arise from the fact that the evidence is wholly uncontroverted. Such a record gave the court (under the cases cited above) the right to instruct the jury as matter of law that the detectives were acting within the scope of their authority and that, in consequence, the defendant railroad company, their master, was responsible for their action-if the undisputed facts sustain that conclusion and would not sustain a verdict based on any other conclusion.

The law on the question is familiar. The Supreme Court of the United States, in Philadelphia & Reading Railroad Co. v. Derby, 55 U. S. (14 How.) 468, 486, 14 L. Ed. 502, said:

"The rule of 'respondeat superior,' or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment."

To the same effect the Court of Errors and Appeals of New Jersey expressed itself in Klitch v. Betts, 89 N. J. Law 348, 98 Atl. 427:

"The general rule is a very clear one, that the master is liable for any act of his servant done within the scope of his employment, and if a servant is acting in the execution of his master's orders, and by his negligence causes injury to a third party, the master will be responsible, although the servant's act was not necessary for the proper performance of his duty to his master or was even contrary to his master's orders. McCann v. Consolidated Traction Co., 59 N. J. Law 481, 487.

"The application of the rule respondeat superior does not depend upon the obedience of the servant to his master's orders, nor upon the legality of

he servant's conduct; where a servant is acting within the scope of his employment, and in so acting does some-thing negligent or wrongful, the employer is liable, even though the acts done may be the very reverse of that which the servant was actually directed to do. Driscoll v. Carlin, 50 N. J. Law, 28, 80."