instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.

In Ramsden v. Boston & A. R. Co., 104 Mass. 117, it was held that the corporation was liable to an action for an assault and battery, for the act of its conductor in wrongfully and unlawfully attempting to seize the parasol of a passenger for her fare. In delivering the opinion of the court, Mr. Justice Gray said:

"If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent, or even if it is contrary to an express order of the master."

In Philadelphia & R. R. Co. v.Derby, 14 How. 468, a servant of the corporation ran an engine on its track contrary to its express order, and thereby caused a collision, in which the defendant was injured, and it was held that the corporation was liable for the injury. In delivering the opinion of the court, Mr. Justice Grier 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."

The authorities to this point might be multiplied indefinitely, but these are sufficient. Tried by them, this defense is clearly bad. It is not alleged that the corporation commanded the porter to do the act which caused the injury to the plaintiff, and therefore if it was not done in the course of his employment it is not liable therefor. But if the act was done in the course of his employment, the corporation is liable to the plaintiff for the injury caused thereby, notwithstanding the order to the porter. The case, so far as appears, must turn on the issue made by the denial of the allegation that the porter was in the discharge of his duty, or the course of his employment, at the time he let the pistol fall. And whether he was acting contrary to his employers' orders or not is altogether immaterial.

out the fire unless the wind was in the west, and the master was responsible.

The cases cited by counsel are not in conflict with this conclusion. They are Whart. Neg., § 168; Tuller v. Voght, 13 Ill. 285; Oxford v. Peter, 28 id. 435; Foster v. Essex Bank, 17 Mass. 508; and Mali v. Lord, 39 N. Y. 381. They are only to the effect, as is said in Oxford v. Peter, that the master is not liable for the willful or malicious acts of his servant, unless it is in furtherance of the business of the master." The contention in these cases was not as to the rule of law, but the application of it, whether the act complained of was done in the furtherance of the business of the master, or rather in the course of the servant's employment. Sometimes this is a very nice question, and difficult to determine, but the rule of law is, I think, undisputed that where the servant is acting in the course of or within the scope of his employment, the master is liable for his acts of commission or omission, as if they were his own; and this, notwithstanding the servant may have acted contrary to his master's orders. Whether the act complained of in this case was within the scope of the porter's employment, on that occasion, will be ascertained from the evidence on the trial of the issue elsewhere made in the case. The demurrer is sustained.

PARTNERSHIP-DEBTS-ESTATE OF DECEASED

PARTNER-PRIORITY.

SUPREME COURT OF ILLINOIS, JANUARY 23, 1884.

DOGGETT V. DILL.*

Every partnership debt, in equity, being joint and several, the holder of the same may, in case of the death of a partner, resort, in the first instance, to the surviving partners, or to the assets of the deceased partner, as he may elect; and a fallure to proceed against the surving partners until their insolvency is no bar to its collection from the estate of the deceased partner.

Where there are individual and partnership creditors having demands against an estate, the individual creditors will have priority as to the individual assets, and partnership creditors a prior claim against firm assets; and the individual creditors will have the right to insist that no part of the separate assets shall be taken and applied in payI ment of firm debts until all separate debts are paid in full.

learned author says:

"That he who puts in operation an agency which he controls, while he receives its emoluments, is responsible for the injuries it incidentally inflicts. Servants are, in this sense, machinery, and for the defects of his servants, within the scope of their employment, the master is as much liable as for the defects of his machines."

And Cooley Torts, 539, says:

"It is immaterial to the master's responsibility that the servant, at the time, was neglecting some rule of caution which the master had prescribed, or was exceeding his master's instructions, or was disregarding them in some particular, and that the injury which actually resulted is attributable to the servant's failure to observe the directions given him. In other words, it is not sufficient for the master to give proper directions; he must also see that they are obeyed."

On page 540 the learned author gives an apt illustration of the rule. A farm servant burned over the fallow when the wind was from the west and thereby destroyed the adjoining premises on the east, although he had been directed, on that very account, not to set

District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.

Stiles and Lewis, and R. W. Pike, for appellant.

Dexter, Herrick and Allen, for appellee.

CRAIG, J. William E. Doggett died April 3, 1876, testate, and Kate E. Doggett, appellaut, who was named as executrix, qualified as such in the Probate Court of Cook county. Doggett, at the time of his death, and for many years before, was a member of the firm of Doggett, Barrett & Hills.

In 1871, T. C. H. and Lucy W. Smith executed their two promissory notes for certain sums of money, payable to Charles H. Dill. The two notes, on the date of their execution, were guarantied by Doggett, Barrett & Hills, the firm name to the guaranty being executed by Doggett. No effort was made by Dill to collect the amount due on the notes from the firm assets, or from the surving members of the firm of Doggett, Barrett & Hills, but after the death of Doggett he pre*To appear in 108 Illinois Reports.

sented the claim to the Probate Court, to be allowed against the estate of deceased. The Probate Court, upon the evidence introduced, allowed the claim, and the executrix appealed to the Circuit Court, where a second trial was had, resulting in a judgment against the estate. An appeal was then taken to the Appellate Court, where the judgment of the Circuit Court was affirmed, and this record is brought here by the executrix for the purpose of reversing the judgment of the Appellate Court.

It is insisted by appellant that a partnership demand cannot be allowed against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted.

In Mason v. Tiffany, 45 Ill. 392, which was a proceeding in chancery, by a creditor of a firm, to enforce payment of a firm debt against the estate of Tiffany, a deceased member of the firm, it was held that every partnership debt being joint and several, it follows necessarily, that resort may be had, in the first instance, for the debt, to the surviving partners, or to the assets of the deceased partner. In the decision of the case it is said: "If it was a fact that the surviving partners remained solvent for a long time before the assignment, and the assigned assets were sufficient to pay this claim, still these did not require the complainant to press his claim against them, the estate of the deceased partner being equally a fund on which he had a right to rely." This case seems to establish the doctrine, in plain words, that a creditor, in equity, has the right, where he holds a claim against a firm, one member of which has died, to proceed against the estate of the deceased member or the surviving partners, as he may elect.

In Silverman v. Chase, 90 Ill. 37, the same question arose, and following the doctrine of the case last cited, it was said: "A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner, as held by this court in Mason v. Tiffany, 45 Ill. 392. Nor will the laches of the creditor in following the assets of the firm preclude a recovery. The creditor has the right to proceed against the estate at any time before the Statute of Limitations has run, and a failure to pursue the partnership assets cannot be relied upon as a defense when suit is brought against the

These two cases would seem to be conclusive of the question presented, so far at least as this court is concerned, as they, in terms, decide the same question involved in the record before us, and it would not be deemed necessary to say any thing more on the question were it not for the fact that it is claimed that these cases are in conflict with prior decisions of this court, and the doctrine therein announced is not sound and in harmony with the current of authority on the subject. We have therefore concluded to briefly refer to some of the authorities which have a bearing on the question, with the view of showing that the decisions of this court are fully sustained by the weight of authority.

Story on Partnership, § 362, says: "The doctrine formerly held upon this subject seems to have been, that the joint creditors had no claim whatsoever in equity against the estate of the deceased partner, except when the surviving partners were at the time, or subsequently became insolvent or bankrupt. But that doctrine has been since overturned, and it is now held that in equity all partnership debts are to be deemed joint and several, and consequently the joint creditors have, in all cases, the right to proceed at law against the survivors, and an election also to proceed in equity against the estate of a deceased partner,

whether the survivors be insolvent or bankrupt or not." The same doctrine, but in different language, is declared by Story in his work ou Equity Jur., $ 676.

Collyer on Partnership, § 580, declares the law in the following language: "It is now established beyond controversy, that in the consideration of courts of equity, a partnership debt is several as well as joint, and that upon the death of a partner a joint creditor has a right in equity to proceed immediately against the representative of the deceased partner for payment out of his separate estate, without reference to the question whether the joint estate be solvent or insolvent, or to the state of accounts amongst the partners."

Dixon on Partnership, 113, says: "When a liability exists the creditor may, at his option, either pursue his legal remedy against the survivor, or resort in equity to the estate of the deceased, and this altogether without regard to the state of the accounts between the partners themselves, or to the ability of the survivor to pay."

Lindley on Partnership, 1053, says: 'Whatever doubt there may formerly have been upon the subject, it was clearly settled before the judicature acts, that a creditor of the firm could proceed against the estate of the deceased partner without first having recourse to the surviving partners, and without reference to the state of the accounts between them and the deceased." See also Parsons on Mercantile Law, 192; Adams Eq. 173; Smith on Mercan. Law, 48; 3 Kent Com. 63, 64, and note.

From the citations made, it would seem that the law as declared in Mason v. Tiffany, and Silverman v. Chase, supra, is fully sustained, at least by text writers of high authority, both in this country and in England. But it will not be necessary to rely alone on the text books for a solution of the question, as the decisions in England and many of the States are in harmony with the rule declared in the text books.

In England, as early as 1816, in Devaynes v. Noble, 1 Mer. 529, it was decided, that in equity parnership debts are joint and several, and a creditor holding a firm debt could resort to the estate of the deceased partner for payment, without showing the insolvency of the survivor. The rule adopted in the case cited was subsequently adhered to and followed in Wilkinson v. Henderson, 1 M. & K. 582, and since the decision of these cases the doctrine there announced has been regarded as the settled law of England.

In Nelson v. Hill, 5 How. 127, the Supreme Court of the United States held that the creditor of a partnership may, at his option, proceed at law against the surviving partner, or go in the first instance into equity against the representatives of the deceased partner; that it was not necessary to exhaust his remedy at law against the surviving partner before proceeding in equity against the estate.

In support of the rule announced, Story on Partner. ship, § 362, note 3, is cited. In a later case (Lewis v. United States, 92 U. S. 622), Nelson v. Hill is cited with approval.

In Camp v. Grant, 21 Conn. 41, the Supreme Court of Connecticut, in an able opinion, adopt the rule of the courts of England.

In Weyer v. Thornburgh, 15 Ind. 124, the question arose, and the Supreme Court of that State adopt the rule in the language of Story on Partnership, cited supra, and this decision was followed in a number of subsequent cases. Dean v. Phillips, 17 Ind. 406; Hardy v. Overman, 36 id. 549.

In Freeman v. Stewart, 41 Miss. 141, the question arose, and the Supreme Court of that State held in equity all partnership debts are joint and several, and a creditor has the right to proceed in law against the survivor, and an election also to proceed against the

separate estate of the deceased partner, whether the survivor be solvent or not. See also Irby v. Graham, 46 Miss. 428, where the English rule is fully approved. The same doctrine has been adopted in Vermont, in Washburn v. Bank of Bellow's Falls, 19 Vt. 278. In Tennessee, in Saunders v. Wilder, 2 Head, 579. In Arkansas, in McLain v. Carson, 4 Ark. 164. In New Jersey, in Wisham v. Lippincott, 1 Stockt. Eq. 353. In Alabama, in Travis v. Tartt, 8 Ala. 577. In Florida, in Fileyau v. Laverty, 3 Fla. 72. In Texas, in Gant v. Reed, 24 Texas, 46. In New Hampshire, in Bowker v. Smith, 48 N. H. 111. In New York and Georgia a contrary rule has been adopted, as will be found in the following cases: Trustees v. Lawrence, 11 Paige, 80; Voorhis v. Childs, 17 N. Y. 354; Bennett v. Woolford, 15 Ga. 213. Upon an examination of the New York cases, it appears that the rule there adopted was supposed to be predicated on the old English cases, and when the courts of England established the doctrine which is laid down as the law in Devaynes v. Noble, and Wilkinson v. Henderson, supra, the New York courts refused to follow the English rule, but adhered to what was supposed to be the law in England as declared in that court prior to that time. Georgia seems to follow the New York rule.

In a late case in Wisconsin (Sherman v. Kreul, 42 Wis. 33) the Supreme Court say: "We are disposed to adopt the New York rule, that in order to recover against the administrators the plaintiff should allege and show that the surviving partner is insolvent." It is also claimed by appellant that the New York rule has been adopted in North and South Carolina, Ohio and Pennsylvania; but without stopping to determine precisely what the rule of the courts of these States may be, we are satisfied that the decided weight of authority is in harmony with the rule adopted in this State, and we are not inclined to change the rule heretofore adopted in this State, and follow the doctrine established by the courts of New York and Georgia, although we fully recognize the great ability of those courts.

It is also claimed that Silverman v. Chase is in conflict with Moline Water Power and Manf. Co. v. Webster, 26 Ill. 233, and Pahlman v. Graves, id. 405. This position is, in our judgment, based upon a misapprehension of those cases. In those cases there was a controversy between partnership and individual creditors, and the principle of marshaling assets was applied, as it should have been. Where there are individual creditors and partnership creditors, there is no doubt in regard to the law that all individual creditors have a prior claim against the individual assets, and partnership creditors have a prior claim against firm assets, and an individual creditor would have the right to insist that no part of the separate assets should be taken and applied in payment of firm debts until all separate debts had been paid in full. This familiar rule was applied in the two cases referred to, and also in the case of Ladd v. Griswold, 4 Gilm. 25. But there is no contest between individual and partnership creditors here, and hence the doctrine of marshaling assets does not apply. In this case no claims had been presented or allowed against the estate of any character, except the one in controversy, and no individual creditor is resisting the allowance of the claim.

But independent of the authorities, we are satisfied that the rule holding the estate of a deceased partner primarily liable in equity, is sound in principle. Doggett, in his life time, was individually liable for his debt, and if he had been sued, and a judgment obtained against him, any of his individual property would have been liable to be taken and sold in satisfaction of the debt. It is true, if he had been sued at law in his life-time, it would have been necessary to join

his partners as defendants in the action; but after judgment, it was not necessary to exhaust the partnership assets before individual property could be taken, but the creditor could resort to such property in the first instance, if he saw proper. Did the death of Doggett in any manner change the liability which existed on this contract before his death? We think not. The liability continued as before, but the remedy to enforce that liability was changed from a court of law to a court exercising equitable powers. Before his death the liability could only be enforced by a joint action against Doggett and his partners; after his death the liability continued, but could only be enforced in the Probate Court, which in the allowance of claims exercises equitable powers. The death of a debtor may extinguish a legal remedy on a joint contract, but we are not aware that it has ever been held that the death of a debtor could extinguish the debt or discharge the estate of the deceased.

In conclusion, we are satisfied, under the facts as dis closed by this record, appellee's claim was a proper one to be allowed against the estate of the deceased, and that it was properly allowed by the Probate Court.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

UNITED STATES CIRCUIT COURT ABSTRACT.*

FRAUD-ANTICIPATING-EQUITY-FORGED MARRIAGE CONTRACT.-Courts of equity may inquire into and annul a forged or fraudulent instrument of writing claimed to be a contract of marriage before it is sought to be put into effect, in order to disarm the fraudulent beneficiary of a dangerous power that might hereafter be exerted to the detriment of innocent parties. We think this case is within the rule that is often laid down on this subject. Story in his work on Equity Juris., $700, after speaking of various instruments that may be used for fraudulent or improper purposes, and which may be canceled by a court of equity on the ground of fraud, says: "If it is a mere written agreement, solemn or otherwise, still while it exists it is always liable to be applied to improper purposes, and it may be litigated at a distance of time when the proper evidence to repel the claim may be lost or obscured, or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present time." Story says further, in section 701: "The whole doctrine of courts of equity on this subject is referable to the gen. eral jurisdiction which it exercises in favor of a party quia timet. It is not confined to cases where the instrument, having been executed, is void upon grounds of law and equity, but it is applied, even in cases of forged instruments which may be decreed to be given up without any prior trial at law, on the point of forg ery." If this instrument is not void upon its face, then its validity depends upon testimony aliunde, and testimony which rests wholly in parol, which is liable at any time to be wholly lost, or placed beyond the reach of the parties injured by the fraud. In case of the death of complainant, the contract, and the means of enforcing it, honest or otherwise, would be wholly in the control of the alleged forger and fraudulent claimant. She would be mistress of the situation, and the heirs of a large estate might be wholly at her mercy. There is a charge of forgery and fraud; and we think the instrument, if a forgery and fraud, ought to be canceled. If there be no remedy in equity for *Appearing in 20 Federal Reporter.

such a wrong as is charged, then the law is indeed impotent to protect the community against frauds of the most far-reaching and astounding character. If there is no precedent for a case upon the exact state of facts disclosed by the bill, it must be because no instance exactly like it has ever before arisen. The principle however is established, and the occasion has arisen for making a precedent, if none ever existed before. Cir. Ct., Dist. Cal., March 3, 1884. Hill. Opinion by Sawyer, J.

Sharon v.

WHEN AT

JURISDICTION-OF FEDERAL COURT TACHES-TRUST ESTATE--TRUSTEE REFUSING TO SUECESTUI QUE TRUST.-(1)The jurisdiction of a court attaches upon the service of process, and the court whose process is first served upon the defendant will retain the cause. Union Mutual Life Ins. Co. v. Chicago, 6 Fed. Rep. 443; Riggs v. Johnson Co., 6 Wall. 196; Union Trust Co. v. Rockford, 6 Biss. 197. (2) A court having gained prior jurisdiction of a cause by the service of its process is not deprived of its jurisdiction by reason of the actual seizure of the property in controversy by the officer of a court having concurrent jurisdiction. To avoid such a result, the broad rule is laid down that the court first invoked will not be interfered with by another court while the jurisdiction is retained. The jurisdiction thus acquired is exclusive, and it is the duty of all other tribunals, both by law and comity, not to interfere with it. Chief Justice Marshall, in the case of Smith v. McIver, 9 Wheat. 532, says "that in all cases of concurrent jurisdiction the court which first has possession of the subject must determine it conclusively." This rule the Supreme Court of the United States has approved in several subsequent cases, notably, Buck v. Colbath, 3 Wall. 341; Riggs v. Johnson Co., 6 id. 166. (3) The jurisdiction of a court of the United States to which a cause has been removed from a State court relates back to the time of

the original service of process, and the jurisdiction thus acquired is not only prior, but is complete and exclusive over the defendant company's property. Miller v. Tobin, 18 Fed. Rep. 609; Osgood v. Railroad Co., 6 Biss. 330; Armstrong v. Mech. Nat. Bank, id. 524; 12 Chi. Leg. N. 176; Bills v. Railroad Co., 13 Blatchf. 227. (4) The court first gaining jurisdiction of a part of a trust estate is entitled to administer the whole, even though some portion of the property lies within the domain of another court. (5) When the trustees of a mortgage deed, executed for the security of bondholders, refuse to institute proceedings to enforce the security, the bondholders themselves are entitled to prosecute a suit for that purpose. Cir. Ct., D. West Va., 1884. Owens v. Ohio Cent. R. Co. Opinion by Jackson, J.

AGENCY-CONCEALED-RESPONSIBILITY OF PRINCIPAL-RATIFICATION.-(1) A party selling goods to another and taking his individual acceptance therefor, may upon the discovery that the latter was really acting in the interest of and under authority from a third party, hold that third party responsible for payment. (2) A party who, without the authority of another, purchases goods for him, which the other, knowing the purchase has been so made, accepts, becomes thereby an agent, and the other as principal may be required by the seller of the goods to pay the consideration. Cir. Ct., E. D. Wis., Apr. 12, 1884. Pope v. Meadow Spring Distilling Company. Opinion by Dyer, J.

not merely for the amount paid by him for them at the foreclosure sale. The property, as well after foreclosure as before, is held for the benefit of both pledgor and pledgee, and must be disposed of for the benefit of both. The price bid at such sale does not operate as payment upon the debt for which the mortgage was pledged. Brown v. Tyler, 8 Gray, 135; Montague v. Boston & A. R. Co., 124 Mass. 242; Stevens v. Dedham Inst., etc., 129 id. 547; Slee v. Manhattan Co., 1 Paige, 48; Hoyt v. Martense, 16 N. Y. 231; Dalton v. Smith, 86 id. 176; Smith v. Bunting, 86 Penn. St. 116; Jones Pledg., §§ 659, 683. The evident principle upon which these cases were decided is that the assignor or pledgor of the collateral in each instance had an interest in the mortgage which could not be extinguished by a procedure to which he was not a party, and it seems clear that in this respect there can be no distinction between the position of an assignor of notes secured by a mortgage upon real estate, and that of an assignor of notes secured by the pledge of bonds or other like securities. Cir. Ct., D. Ind., Jan. 9, 1884. First Nat. Bk. v. Ohio Falls Locomotive Works. Opinion by Woods, J.

NEBRASKA SUPREME COURT ABSTRACT.

STATUTE OF FRAUDS-DEBT OF ANOTHER-WHEN WITHIN STATUTE-CONTRACT OF LABOR.-M. employed S. to do the carpenter work in and about the construction of certain buildings. S. employed K. to labor for him on said work. K. quit work and stated to M. that he would work no more until he knew where his pay was coming from. M., in reply, told K. that he wanted him to keep on with the work, and that he would see it paid, provided S. did not pay for it, and K. continued to work. Held, that the promise of M. was void under the statute of frauds. In Young v. French, 35 Wis. 116, it is said: "Where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration makes the prom. ise, this distinguishes the case of an original undertaking from one within the statute." And a large majority of the cases which we have examined seem to follow the rule; but none of them are upon a case similar to the one at bar. In fact our attention has not been called to a similar case. In Clapp v. Webb, 52 Wis. 641; 9 N. W. Rep. 796, it is said the Supreme Court of that State has repeatedly decided that "the alleged promise is within the statute unless it was founded upon a new and independent consideration passing between the newly contracting parties." We conclude that if this case is taken out of the statute, it must be by virtue of a new and independent consideration passing between the parties, or by reason of some benefit and advantage accruing to the promisor and that they, on that consideration, made the promise. It is claimed by the plaintiffs in error that the decision in Rose v. O'Linn, 10 Neb. 364, virtually disposes of this case in his favor. Although there is, as we think, a difference between that case and this, as in that a part of the services had been rendered, and it was claimed that the plaintiff in error agreed to "see" the whole bill paid, yet the difference is so slight as not to be material, and the rule laid down in that case must govern this. The defendant in error claims that this case is similar to the case

of Fitzgerald V. Morrissey, 14 Neb. 198; and the case of Clopper v. Poland, 12 Neb; 69; and that they are decisive of this. In the first case named, Morrissey had been working for a subcontractor on the grading of a railroad for Fitzgerald. The subcontractor had failed to pay Morrissey, and he, Morrissey, had determined to abandon the work. Fitzgerald, who had a large amount of grading to do, then promised Morrissey, if he would continue