property in the hands of a receiver, and its assets insufficient to pay mortgage bonds. The company contested the validity of the bonds and in the course of the suit moved the court to order the receiver to pay certain sums to its counsel for services rendered and to be rendered and also for its office expenses and its secretary's salary, insisting that these payments were absolutely necessary to enable it to defend and to maintain its corporate existence. Held, that as such bonds were prima facie valid and the assets insufficient to pay them, the nolders were entitled to all the assets, and such payments could not be made, since to make them would be to impair the vested rights of the bondholders. Union L. & T. Co. v. Southern Cal. Motor R. Co., 51 Fed. Rep. 106. Same-Federal and State Courts-Respective Jurisdiction.-A company owning a road running through several states purchased a small road lying entirely within a certain state and afterwards mortgaged its whole system including the road newly purchased. Several years afterwards suit was brought in the federal court to foreclose the mortgage, and a receiver was appointed to take charge of the property. Meanwhile a state court had declared the charter of the small road forfeited and had placed its property in the hands of a receiver. This latter receiver petitioned the federal court for possession alleging that the sale of the road to the interstate company was ultra vires and void and that the federal court had no jurisdiction over it. Held, that this petition merely raised the question of the validity of the sale which might properly be tried in the federal court, and the court would therefore retain possession. The fact that the state statutes provide for the payment of the corporation's debts after its charter is forfeited, and for the distribution of its assets, does not give the state courts exclusive jurisdiction, since these_directions will be complied with in the federal court. Mercantile Trust Co. v. Missouri, etc., R. Co., 48 Fed. Rep. 351. Same-Power to Sell Lands Not Needed-Consent.-On foreclosure proceedings, where a receiver has been appointed, but the relative rights of the various parties have not been established, the fact that the mortgages authorize the sale of lands not needed for corporate purposes, and the application of the proceeds by the trustees to the extinguishment of the oldest liens, will not justify such sale by the court, in the absence of consent by all the parties, and the mere absence of counsel from the hearing of a motion for that purpose will not amount to consent. Bound v. South Car. R. Co., (C. C. D. S. Car.) 46 Fed. Rep. 315. Same-Liens for Supplies-Priorities.-Persons who furnish labor, supplies, and materials to a railroad, in order to keep it a going concern, are entitled to payment out of the earnings thereof before the payment of any interest on the mortgage bonds; and if, in a suit to foreclose, it appears that money due upon claims of this nature has been paid out as an interest on the bonds, or for permanent improvements, whereby the bondholders have been benefited, the court will order an amount equal to the sum so diverted to be paid upon such claims out of any earnings in the hands of the receiver, or, failing these, out of the proceeds of the sale. Finance Co. of Pennsylvania v. Charleston C. & C. R. Co., 48 Fed. Rep. 188. Same-Lien of Attorney Upon Papers for Services-Priorities.-The attorney of a railroad company, who in the course of his regular duties has negotiated conveyances of the right of way and has received conveyances thereof, and has also negotiated donations of property for depot purposes and received conveyances thereof executed in his name as vendee, has a lien upon such papers for his salary and legitimate expenditures about the business, and may retain possession of them until such charges are paid. But in the foreclosure of a mortgage of the railroad such lien will not be held to ex tend to the corpus of the property, or to authorize the payment of his demand out of the funds in the hands of the receiver before the claims of the bondholders are paid. Finance Co. of Pa. v. Charleston C. &. C. R. Co., (C. C. D. S. Car.) 46 Fed. Rep. 426. Mortgage of Consolidated Railroad-Suit to Foreclose--Right of Stockholders of One of the Consolidated Companies to Intervene.--In a suit to foreclose a mortgage of a railroad certain persons petitioned to be made parties defendant, alleging that the defendant company was made up of an illegal consolidation of three other companies, in one of which they were stockholders; that they never consented to, or recognized the validity of, the consolidation, and were not bound by it or by the act of the new company creating the mortgage; that the new company " is perhaps concluded by its conduct in the premises from making defense" to the suit; that the original company, of which they were members, had no officer or representative upon whom they could call to make defense for them; and that the counsel for the consolidated company declined to set up the defense which they desired to make. Held, that these facts gave no right to intervene as defendants, especially as there was no charge of fraud or collusion; the proper remedy in such a case is by an independent suit. Central Trust Co. v. Marietta, etc., R. Co., 48 Fed. Rep. 14. WHITE V. WOOD et al. (New York Court of Appeals, Jan. 20, 1892.) Railway Mortgage Bonds-Re-organization by Trustees-Issue of Stock to Bondholders. Under an agreement between the trustees in a railroad mortgage and the bondholders, the former were authorized to purchase the road at the foreclosure sale and to organize a new corporation, "the stock of such (new) company to be issued to and divided among" the bondholders in proportion to the number of bonds deposited by them with the trustees. The trustees formed the new corporation with a capital stock of $2,000,000 but the laws of the state creating this new corporation forbade the issue of paid up stock beyond the amount of the accrued cost of the road and such sum as might be necessary to complete it. the The trustees issued to the bondholders paid up stock to the amount. of the cost of the part of the road completed, retaining the remainder for completion of the road. In an action to compel the distribution of the remainder of the stock, it appeared from the record that the trustees had acted in good faith. Held, that the residue of the stock was properly retained by the trustees. APPEAL from general term of Supreme Court, first department. Wheeler H. Peckham, for appellants. William F. Gaynor, for respondent. O'BRIEN, J.-The judgment in this case is based upon tion to do must be regarded as done by the superior himself, and his responsibility is the same as if he had done it in person. The maxim covers acts of omission as well as of commission, and embraces all cases in which the failure of the servant to observe the rights of others in the conduct of the master's business has been injurious," (Cooley, Torts, 534,) as well as those cases in which the servant has failed to perform, refused to perform, or has negligently performed, the duties due from the master to others in the conduct of such business; and the master is primarily liable to others for his own negligence in employing servants who are wanting in the requisite care, skill, or prudence for the business intrusted to them, when, by the exercise of ordinary care, it would have been known; and in regard to passengers whom the carrier has bound itself to carry safely, whether such want of care, skill, and prudence could have been ascertained or not; for, between the two, the carrier, who has made the wrong possible, though innocent in other respects, must pay the damage or suffer the loss. But what the servant thus does without authority must be done in the master's service; must be in the line or within the scope of his employment. Masters "are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them." Lord KENYON, C. J., in Ellis v. Turner, 8 Term R. 531-533, as quoted in Bishop on NonContract Law, § 612." So, when a railway company puts a conductor in charge of its train, and he purposely and wrongfully ejects the passenger from the cars, the railway company must bear the blame and pay the damages. As between the company and the passenger, the right of the latter to compensation is unquestionable." Cooley, Torts, (2d Ed.) p. 626, and cases cited. Why? Not because the company authorized it expressly or impliedly, but because it was the duty of the company to treat him properly, and carry him safely; and it makes no difference what was the conductor's motive for doing the act, how exclusively personal it may have been, or how foreign to the master's business then in hand, of transporting the passenger, if the act was in violation of the master's duty to the passenger, which it was the conductor's duty to discharge and perform as the master's servant and in the master's place. And the same principle applies to other acts in the same circumstances, such as assault and battery. Stewart v. Brooklyn & C. R. Co., 90 N. Y. 588, 12 Am. & Eng. R. Cas. 127; Bryant v. Rich, 106 Mass. 180; Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 8 Am. & Eng. R. Cas. 354; Wabash R. Co. v. Savage, 110 Ind. 156, 28 Am. & Eng. R. Cas. 288. See Thomp. Carr. notes to Pendleton v. Kinsley, p. 363. Harris v. Louisville N. O. & T. R. Co., 35 Fed. Rep. 116, was a case of false imprisonment. See case of Corbett v. Twenty-third St. R. Co., 42 Hun (N. Y.) 587, (1886,)-also a case of assault and false imprisonment. Mechem, in his work on Agency, 8740, gives the general rule as follows: "While, as has been seen, it is well settled that the principal is liable for the negligent act of his agent committed in the course of his employment, it has been held in many cases that he is not liable for the agent's willful or malicious act. In the language of Judge COWEN which fairly states the doctrine of these cases, 'the dividing line is the willfulness of the act.' Wright v. WilCox, 19 Wend. (N. Y.) 345. The tendency of modern cases, however, is to attach less importance to the intention of the agent, and more to the ques ion whether the act was done within the scope of the agent's employment; and it is believed that the true rule may be said to be that the principal is responsible for the willful or malicious acts of the agent if they are done in the course of his employment, and within the scope of his authority; but that the principal is not liable for such acts, unless previously expressly authorized or subsequently ratified, when they are done outside of the course of the agent's employment, and beyond the scope of his authority, as, where the agent steps aside from his employment to gratify some personal animosity, or to give vent to some private feeling of his own." See cases cited. Such seems to be the present modern doctrine as to passenger carriers, and founded upon public policy, if not upon the principle already stated. "False imprisonment is any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere." Bish. Non-Cont. Law, & 206, and cases cited. "False imprisonment is a wrong akin to the wrongs of assault and battery, and consists in imposing by force or threats an unlawful restraint upon a man's freedom of locomotion. Prima facie, any restraint put by fear or force upon the actions of another is unlawful, and constitutes false imprisonment, unless a showing of justification makes it a true or legal imprisonment." Cooley, Torts, 196. "An abuse of a lawful arrest is also false imprisonment; as cruelly treating the arrested person, insulting him, imposing on him undue hardships." Bish. Non-Cont. Law, § 210. "In false imprisonment proper, as distinguished from malicious prosecution, malice is not required," (Id. § 212;) but want of reasonable and probable cause is sufficient. "When the officer, acting however honestly, arrests the wrong person, not being misled thereto by the person him self, it is a case of false imprisonment." Id. § 213. The mistake may be shown in mitigation of damages. See cases in note. We have seen that it is the duty of the common carrier of passengers to treat his passengers properly and respectfully, and to carry them safely, and, though not an insurer, yet the law, based upon principles of public policy, is strict and exacting in requiring their performance; and surely in this day, when all the world is carried to and fro daily by instrumentalities vast in power and force, and, without constant vigilance and great care and skill, almost as dangerous as forceful, owned by mere corporate entities, public policy is not likely to exact any less stringent rule. The carrier is not only bound to safely carry and properly treat the passenger, but, as far as may be, to keep an orderly and well-regulated house, for such in fact it is in these days, "protecting the passengers from the assaults of fellow-passengers or trespassers during the subsistence of the contract of transportation." Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 53 Pa. St. 512; Thomp. Carr. 295, and notes. See, also, opinion of SHAW, C. J., in Com. v. Power, 7 Metc. (Mass.) 596-601, citing Markham v. Brown, 8 N. H. 523. And to enable the company to discharge these duties the more efficiently through its conductor, put as a living, intelligent person to act as its representative in the flesh for that purpose, our statute has enacted that "the conductor of every train of railroad cars shall have all the powers of a conservator of the peace while in charge of such train." Section 31, chap. 145, Code, p. 906, (Ed. 1891,) thus giving him as conductor the shield and protection as well as the authority and power of the state in keeping and enforcing law and order, and protecting persons and property. This is a great thing for him, for his company, for his passengers, for the public at large. For him, not only because he can, in the discharge of his various and often perplexing duties, now speak and act with more confidence with the state at his back, but, as such conservator of the peace, may properly be treated with more indulgence because he is specially charged with a duty in the enforcement of the laws. If by him an arrest is made with reasonably probable cause for belief, he will be excused even though it appear afterwards that in fact no offense had been committed. See Cooley, Torts, 202. For the corporate master and owner, not only for these reasons, but for the superadded one that its duties to its passengers, its servants, and the public can now be more efficiently performed through its living representative, put in charge for the purpose, as well as making more safe and secure its widely extended property. For the passengers, because their safety |