negligence of a brakeman.-UNION PAC. RY. Co. v. KELLEY, Colo., 35 Pac. Rep. 923.

87. NEGLIGENCE-Dangerous Premises-Trespasser. -A constable having a civil writ to serve, and entering, by a doorless opening, a tenement house, wherein he wrongly supposes that the person to be served resides or is, is a mere trespasser, and cannot recover for injuries received by falling down a dark stairway. -BLATT V. MCBARRON, Mass., 36 N. E. Rep. 468.

88. NEGLIGENCE - Imputed Negligence.-The negli gence of the owner and driver of a private conveyance is imputable to one who is voluntarily riding with him, and the latter cannot recover damages against a city for injuries caused by its negligence, where the negli gence of such driver contributed thereto.-WHITTAKER V. CITY OF HELENA, Mont., 35 Pac. Rep. 904.

89. NEGLIGENCE Snow Falling from Roof.-A lot owner has no right to erect a building, of no unusual construction, so near the street that snow or ice will fall from it, in the ordinary course of things, so as to endanger travelers in passing; and if he does so, would be liable without further proof of negligence.SHEPARD V. CREAMER, Mass., 36 N. E. Rep. 475.

90. NEGOTIABLE INSTRUMENTS — Checks.-Neither a check nor bill of exchange operates as an assignment pro tanto of the drawer's funds in the hands of the drawee.-EXCHANGE BANK OF WHEELING V. SUTTON BANK, Md., 28 Atl. Rep. 563.

91. NEGOTIABLE INSTRUMENT Discount by BankBona Fide Purchaser.-The president of plaintiff bank, without consideration, obtained defendants' note as a personal loan, and, without disclosing the want of consideration, procured its discount by plaintiff's cashier: Held, that, though the cashier was without authority to discount paper, his agency in discounting the note not having been disavowed by plaintiff, it could recover on the note having been disavowed by plaintiff, it could recover on the note, as the president's knowledge of its infirmity could not be imputed to it. -FIRST NAT. BANK OF GRAFTON V. BABBIDGE, Mass., 36 N. E. Rep. 462.

92. NEW TRIAL-Offer to Bribe Juror.-The fact that a juror was offered a bribe by a person not an agent of the prevailing party, it appearing from the juror's affidavit setting out the fact that he was not influenced thereby, is not ground for a new trial.-CLAY V. CITY COUNCIL OF MONTGOMERY, Ala., 14 South. Rep. 646.

93. PARTNERSHIP.-Where a firm has become a party to an action by a joinder of all the partners, the dismissal of the action as to each or any of the partners deprives the court of jurisdiction of the firm.-FRANK V. TATUM, Tex., 25 S. W. Rep. 409.

94. PARTNERSHIP-Accounting.-When after a careful taking of stock, and a deliberate accounting, aided by an expert, partners have made a settlement of their affairs, each being a capable business man and having no confidence in the other, the court will require strong proof to surcharge and falsify for mistake in such important matters as the amount of capital put in by one partner, and the calculation of the price on one line of the stock in trade, taken by him in the settlement.SCHEUER V. BERRINGER, Ala., 14 South. Rep. 640.

95. PARTNERSHIP AGREEMENT-Rights of Partners.-A partnership agreement provided for "procuring, fencing, stocking, and operating a ranch,"-each partner to share equally all expenses, profits, and losses; that questions as to firm stock should require consent of all the partners; that in stocking the ranch no partner should, except by consent, put thereon exceeding a third of its capacity: Held, that each member could use the ranch for pasturing his individual cattle free of charge for such use, but otherwise at his own expense.-CARHART V. BROWN, Tex., 25 S. W. Rep. 415.

96. PLEADING-Amendment. -Pleading the instrument sued on in haec verba in the declaration is a sufficient compliance with the statute requiring a copy of such instrument to be filed with the declaration.-PHENIX INS. Co. v. STOCKS, Ill., 36 N. E. Rep. 408.

97. PLEADING-Amendment.-Where a plaintiff to an action is designated in the pleading and process by the initials of his Christian name, it is not error for the court to allow him to amend by inserting his full Christian name.-REAL V. HONEY, Neb., 58 N. W. Rep. 136.

98. QUO WARRANTO-Annulment of Charter.-In quo warranto to annul the charter of a water company of a city because it had willfully failed for three years to furnish such city with a sufficient supply of water, an answer by respondent that it had enlarged its works and increased its water supply up to a certain date, and was then negotiating for other wells which would supply all necessary demands, and that it ceased such negotiations because the city had declared its intention to exercise its option to purchase such waterworks, is insufficient to constitute a defense.-STATE V. CAPITAL CITY WATER CO., Ala., 14 South. Rep. 652.

99. RAILROADS-Killing Stock.-When the engineer and fireman have testified that the cattle did not come within the radius of the headlight till too close to allow a stoppage of the engine, and were then walking obliquely towards the track, on level ground, but many witnesses testify that they were killed in a cut 500 yards long, that the carcasses were found three-fourths of the way through the cut, and that they had apparently run some 200 yards along and by the track, and the wounds inflicted were in the rear, a finding that the railroad has not overcome the presumption of negli gence (Code 1886, §§ 1144-1147), is justified.-MEMPHIS & C. R. Co. v. DAVIS, Ala., 14 South. Rep. 643.

100. RAILROADS-Persons on Track-License.-Since Rev. St. § 1811, makes it unlawful for any one uncon nected with a railroad to walk along its track unless laid in a public street, no mere user of a track by the public will raise an implied license to walk over a trestle, 120 feet long, unplanked, and so narrow as to leave no room to avoid a passing train, which is on a main track, and is crossed daily by a dozen regular trains besides specials.-ANDERSON V. CHICAGO, ST. P., M. & O. RY. Co., Wis., 58 N. W. Rep. 79. COMPANY 101. RAILROAD Electric Street Cars. Plaintiff, without noticing whether any car was ap proaching, turned his team in the middle of a block to cross a street railroad track, and was struck by an electric car traveling in the direction he had been going. He was familiar with travel on the railroad, and, when at the preceding street crossing, saw, a car 900 feet in front, on a switch, waiting for a car coming in the same direction he was. He testified that at point he looked back, and saw no car, but a car could be seen for three-quarters of a mile, and the one which struck him, had it not been in sight, would not have reached the point of collision till three minutes after he had crossed. Held, that he was guilty of negli gence.-DAVIDSON V. DENVER TRAMWAY Co., Colo., 35 Pac. Rep. 920.

102. RAILROAD COMPANIES-Fencing Track.-The fact. that a railroad passes through an addition to a city, which is plotted into lots, streets and alleys, does not, of itself, absolve the railroad company from fencing its track.-TOLEDO, ST. L. & K. C. R. Co. v. CUPP, Ind., 36 N. E. Rep. 445.

103. RAILROAD COMPANIES-Injury to Railroad Employee.-A brakeman thrown from a car while releas ing a brake cannot recover for the resulting injuries in the absence of evidence of any defect in the break that would cause it to "stick," or of proof of any fact aċcompanying its release that would tend to throw him off.-LOUISVILLE, & N. R. Co. v. BINION, Ala., 14 South. Rep. 619.

105. RAILROAD COMPANIES Negligence - Fires.-A complaint which alleged that K's premises were fired by sparks from a passing engine, that defendant negli gently omitted to equip the engine with a proper spark arrester, and that fire spread from K's premises to plaintiff's premises without his negligence, was demurrable for want of an allegation that the sparks were negligently permitted to escape to K's premises. -LAKE ERIE & W. R. Co. v. MILLER, Ind., 36 N. E. Rep. 428.

106. RAILROAD COMPANY Personal Injuries-Negli gence. In an action to recover damages for injuries charged to have been inflicted by a street railway com. pany, an instruction designed to embrace all elements essential to a recovery sufficiently met requirements as to the absence of contributory negligence by requiring the use of ordinary care and diligence" by plaintiff; the term "ordinary care and diligence," being subsequently by instructions, fully defined.— OMAHA ST. RY. Co. v. CLAIR, Neb., 58 N. W. Rep. 98.

107. SALES-Contract-Damages. -In an action on a note, defendant cannot claim set off for damage caused by plaintiff's failure to deliver certain goods as agreed, when defendant fails to show the value of the goods at the time and place for delivery, as this is necessary to ascertain the amount of such damage. -HARWELL V. LEHMAN, Ala., 14 South. Rep. 622.

108. SALE-Warranty-Damages.-One who has bought from an experienced maker the best appliance made by him for the use intended, which appliance should have lasted for years, but broke, at a hidden flaw, after a proper usage of two months, cannot recover from the maker, as part of his damages for breach of warranty, money he has paid without suit, to his servant, for bodily injuries caused by the breakage.-ROUGHAN V. BOSTON & LOCKPORT BLOCK CO., Mass., 36 N. E. Rep. 461.

109. SPECIFIC PERFORMANCE-Resulting Trust.-A resulting trust does not arise where a person, after buying land, tells another that he has bought it for him, and that he can have it for the amount paid and an additional sum, though the proposition is accepted and the money paid.-MILNER V. STANFORD, Ala., 14 South. Rep. 644.

110. STATUTES-Amendment.-The governor's call of a special session having asked for legislation to reduce by one-half the rate of penalties and interest on delinquent taxes, a bill introduced in the house for that purpose, and entitled "To amend section 124 of chapter 94," was amended in the senate so as to attain the same object by amending that and other sections of the chapter: Held, that there was no change in the bill's original purpose (Const. art. 5, § 17), and the title could be amended to cover such purpose as extended.-IN RE AMENDMENTS OF LEGISLATIVE BILLS, Colo., 35 Pac. Rep. 917.

Penal Statute

111. STATUTE Indefiniteness.-Act Feb. 12, 1887, § 3, providing that one who shall take away with intent to steal, or hold for a reward, a dog registered under that act, "shall be punished on conviction as in other cases of larceny," is void for uncertainty, since it does not make dogs Iroperty, or give them any value, nor does it state whether the punishment of grand or petit larceny shall be imposed.JOHNSTON V. STATE, Ala., 14 South. Rep. 629.

112. TAX SALE-Validity.-Where, in the tax record, the items of taxes, interest, collection fees, and amounts sold for are in figures, without dollar marks, or any signs to indicate what the figures mean, except that a line appears at the left of the last two figures, the tax sale is void.-MILLARD V. TRUAX, Mich., 58 N. W. Rep. 72.

113. TAXATION-Tax Deed.-An equitable action will lie to set aside a tax deed as a cloud on plaintiff's title, where the proceedings are in fact void, since Laws 1873, ch. 620, § 9, makes such deed conclusive evidence of the regularity of the sale, and presumptive evidence of the regularity of all prior proceedings. -SANDERS V. DOWNS, N. Y., 36 N. E. Rep. 391.

114. TELEGRAPH COMPANIES Proximate Cause.-A mistake in the transmission of a telegram requesting the services of a veterinary surgeon cannot be deemed the proximate cause of the death of the horse belong ing to the sender of the telegram, where the evidence is merely conjectural as to whether the life of the horse might have been saved had a veterinary come at once, pursuant to a correct transmission.-DUNCAN V. WESTERN UNION TEL. CO., Wis., 58 N. W. Rep. 75.

115. TRESPASS TO TRY TITLE-Identity of Grantor.Where, in trespass to try title, both parties claimed title from E, and an affidavit was made attacking the deed to plaintiff as a forgery, and defendant offered evidence that the person who signed the deed to plaintiff was not the E who had title, the burden was on plaintiff to show the identity.-STEINER V. JESTER, Tex., 25 S. W. Rep. 411.

116. TRIAL-Necessity of Instructions.-Civ. Code, § 187, which provides that the court "shall" give such instructions as may be necessary, does not require the giving of instructions in an action, tried in the absence of defendant, to recover a balance due on an account. -HAMILL V. HALL, Colo., 35 Pac. Rep. 927.

117. TRIAL-Sending Instruction to Jury Room.-Instructions must be given in open court in the presence of the accused, and of his counsel if practicable; and an instruction sent to the jury room in answer to a written question by an individual juror is erroneous.— JOHNSON V. STATE, Ala., 14 South. Rep. 627.

118. TRUSTS-Enforcement-Jurisdiction.-A contract between defendant's testator and complainant's intestate provided that the latter should plat and sell designated lands, all moneys to be furnished by testator; he to be reimbursed by moneys received from sales of the first lots, after which the parties should divide the proceeds equally: Held, that a breach of the agreement by testator would not give rise to a claim against his estate of which the probate court had jurisdiction, but that complainant's remedy was in equity for an accounting of the trust.-FoWLE V. BARNES, Mich., 58 N. W. Rep. 63.

119. VENDOR'S LIEN Enforcement.-A vendor who retains title and has the right to possession, but binds himself to convey on payment of price, can maintain a suit to enforce his lien against the assignee for benefit of creditors of the purchaser, and this right cannot be affected by a decree obtained by the assignee in a pro ceeding to which the vendor was not a party.-JANNEY V. HABBELER, Ala., 14 South. Rep. 621.

120. VENDOR'S LIEN-Statute of Frauds.-The statute of frauds is not ground for demurrer to a bill to enforce a vendor's lien unless the bill affirmatively shows that the contract of sale was not in writing.-HARPER V. CAMPBELL, Ala., 14 South. Rep. 650.

121. WILL- Construction-Right of Legatee.-Under a will directing the trustee to pay the income to testa tor's wife, providing that, if she should wish to use for her own purposes all or any of the property, she should have such power, and providing that she should, during her life, be entitled to possession of all his es tate, without security, where the income is insufficient to meet her necessities she is entitled to have the deficiency made up out of the principal.-IN RE MARTIN'S ESTATE, Penn., 28 Atl. Rep. 575.

122. WILL-Testamentary Capacity.-One who, at the time of executing a will, has mind and memory suflicient to remember the property he is about to bequeath the objects of his bounty, and the disposition he wishes to make of it, and to know and understand the business he is engaged in, and the consequences of the business to be performed, has a sound and disposing mind and memory.-BURNEY V. FORREY, Ala., 14 South. Rep. 685.

123. WITNESS - Credibility Instructions.-Where a witness is impeached by proof of contradictory statements, an instruction that such proof should "weigh heavily" against the witness invades the province of the jury.-PAUL V. STATE, Ala., 14 South. Rep. 634.

Central Law Journal.

ST. LOUIS, MO., MAY 25, 1894.

Those interested in Texas adjudications would do well to make note of the recent case of Alliance Milling Co. v. Eaton, 25 S. W. Rep. 614, wherein the Supreme Court of that State hold that a deed of trust on a firm's property giving the trustee power to sell in the usual course of trade, enough property to pay the firm debts to four creditors named in the deed, and providing for the return of the residue of the property to the grantors, is not valid without the assent of the four creditors secured thereby; in other words, that preferred creditors in a deed of trust must accept under the same, and in case they fail to do so before the levy of an attachment upon the trust property such preferred creditors would be cut off from their security. This decision will undoubtedly, to a great extent in that State, do away with deeds of trust preferring creditors, especially nonresident creditors, as it would be in many cases impossible to get preferred creditors to accept before attachments are filed, and will at least require foreign creditors to be more prompt than they have heretofore been in appearing upon the scene of action. The opinion of the court will reveal the difficulties in the way of the conclusion reached but which the court very ingeniously evaded. In view of the decisions, which, it must be admitted, are apparently conflicting upon the subject, the conclusion of the court is not by any means without doubt. The cases which hold that the creditor will be presumed to assent to such an assignment as is manifestly for his benefit are numerous. Such cases as Brashear v. West, 7 Pet. 613; Tompkins v. Wheeler, 16 Pet. 118; Marbury v. Brooks, 7 Wheat. 556, together with numerous State decisions, have been always understood and repeatedly cited by elementary writers as sustaining the proposition that assent of creditors is not necessary to bind them by an assignment made for their benefit, though the Texas court claim that such is not the effect of those decisions.

Counties with dilapidated court houses should be interested in the decision of Board of Commissioners v. Gwin, 36 N. E. Rep. 237, Vol. 38-No. 21.

by the Supreme Court of Indiana, wherein it is held that the statute which authorizes the Circuit Court to order repairs for the court house does not violate Const. art. 3, sec. 1, prohibiting courts from exercising other than judicial functions, since the power to order necessary repairs, though administrative, is inherent in the court and was so when the court was first created. The power of the court in the premises, however, is limited and confined to repairs in the sense of the necessity out of which the power springs and it does not exist to the extent of practically rebuilding the court house or to the construction of permanent improvements such as extensions and additions. The court in the case noted held that the decree of the Circuit Court which under the guise of ordering repairs of the court room in reality requires the building of a new court house retaining only a portion of the old walls to furnish a nucleus around which repairs can be made is subject to collateral attack in proceeding to enjoin the construction of the building though the decree recites that every part of the repairs is necessary, that the old court house is in a dilapidated and dangerous condition and that the county commissioners will take no steps to repair it.

Rhodes' Banking Journal calls attention to an important bank decision which has just been rendered by the Supreme Court of the United States in the case of Western National Bank v. Armstrong, wherein it is held that while a national bank has power under certain circumstances to borrow money temporarily, yet such transactions being outside of the general scope of the bank's business the officer acting for the bank therein must have special authority, and that the vice-president even though he is the proper executive officer of the bank has no implied authority to borrow large sums on time. In that case the amount borrowed was two hundred thousand dollars, which was not a very large sum, considering the size of the bank for whose account the loan was supposed to be made. The decision is thought to be contra to the common practice of banks in that regard and to what bankers have ordinarily understood the law to be. It will be noted that the court intimates that national banks have not the power to borrow money under all circumstances.

NOTES OF RECENT DECISIONS.

CONTRIBUTORY NEGLIGENCE INJURY ΤΟ WIFE IMPUTED NEGLIGENCE HUSBAND'S RIGHT OF ACTION.-Judge Shiras of the United States Circuit Court for the Southern District of Iowa holds in Honey v. Chicago, B. & Q. Ry. Co., 59 Fed. Rep. 423, that contributory negligence in a wife does not defeat her husband's right of action for medical expenses, loss of society, and of aid in household affairs, in a State where she had been relieved of all common-law disabilities and he of all responsibility for her torts, that to render the contributory negligence of a wife, regarded as the agent or servant of her husband, imputable to him, the circumstances must be such that he would be liable for her negligent act if it had resulted in injury to a third person and that where a wife is struck by a train while crossing the tracks to the depot, whither her husband has preceded her for the purpose of purchasing tickets, her contributory negligence is not imputable to him, either on the theory that she was his agent or servant, or that he was bound to care for and protect her.

MALICIOUS PROSECUTION-FALSE ARREST LIABILITY OF CORPORATION FOR ACTS OF AGENT.-In Central Ry. Co. v. Brewer, 28 Atl. Rep. 615, it is held by the Court of Appeals of Maryland that a street railway company is not liable for a malicious prosecution and false arrest of an individual by its president and superintendent on a charge having passed counterfeit money, by dropping a "lead nickel" in the fare box, unless such officers have express authority for such action or it is ratified by the company. Plaintiff, on boarding a street car, dropped into the car a coin resembling a five-cent piece, which the driver immediately discovered was a counterfeit. Plaintiff's attention was called to it, and he was asked to redeem the coin, which he said he would do if it was returned to him. The driver told plaintiff that he could not open the box, but that the coin could be obtained by calling at the company's office. Plaintiff continued in the car, which passed the company's office without redeeming the bad coin, and soon after the superintendent and other employees had him arrested for passing counterfeit money. He

was brought before the United States commissioner, who discharged him. It was held, that there was probable cause for the arrest and prosecution. Roberts, J., says:

At the trial below there were two exceptions taken, one relating to the court's action on the prayers, and the other to the admissibility of certain testimony. The liability of corporations aggregrate for torts committed by them through their agents has, in recent years, received a good deal of attention from the courts. It may indeed be said that the question of corporate liability for torts has been in a progressive stage; but step by step have the limits of such liability been enlarged and extended, until now there is but little difference between corporate liability and individual liability, with respect to torts. In consequence, however, of the fact that a corporation must, of necessity, act through its agents, courts have almost invariably held that, to hold a corporation liable for a tortious act committed by its agent, the act must be done by its express precedent authority, or ratified and adopted by the corporation. Nor is a corporation responsible for unauthorized and unlawful acts, even of its officers, though done colore officii. To fix the liability, it must either appear that the officers were expressly authorized to do the act, or that it was done bona fide, in pursuance of a general authority in relation to the subject of it, or that the act was adopted or ratified by the corporation. Ang. & A. Corp. (10th Ed.) § 311; Carter v. Machine Co., 51 Md. 296.

When the plaintiff was arrested and held to bail, in the manner already stated, the affidavit was made by the superintendent of the defendant. It is asserted in the brief of the appellee that the president of the defendant was also present at that time. We fail, however, to discover the fact in the record. But in our view of the case, it is immaterial whether he was or was not. The president was but the agent of the defendant, as were the other officers and employees. There is nothing in the record which directly or indirectly tends to show that the superintendent was acting in pursuance of express precedent authority from the defendant (Carter v. Machine Co., 51 Md. 298), in causing the arrest of the plaintiff, nor had he any implied authority for so doing, arising out of the scope of his employment, so far, at least, as the testimony in the record discloses. The fact that he had general authority to look after and manage the affairs of the defendant, in running its cars on the streets of Baltimore city for the carriage of passengers, in no manner suggests that he had, unless expressly au thorized so to do by his principal, any authority to arrest a passenger for placing in the fare box a leaden nickel in payment of his fare. He may have a general authority to look after and protect the property of the defendant, and he may possess all the powers properly pertaining to such employment; and yet he would not be empowered to invoke the aid of the criminal law on behalf of his company, unless he had express precedent authority. And, if this be true of the superintendent, it is equally true of the other agents and the employees of the defendant. As to the subsequent ratification or adoption by the defendant, the testimony is very meager and inconclusive. At the hearing of the charge, the president, the superin tendent, and the driver testified, and the impression made upon the mind of the commissioner is described by him in his testimony, when he says that there is nothing in the conduct or manner of the officers or employees of the railway company before him to in

dicate that they wanted to do anything more than tell the facts which were within their knowledge, and which appertained to their examination. The fact that the president, superintendent, and driver testified before the commissioner affords no legally suffi cient evidence of ratification or adoption, for, if they were without authority in causing the arrest, the subsequent testimony given for the government by them, or the manner in which they demeaned themselves in delivering their testimony, in no way supports the theory of adoption or ratification. Improvement Co. v. Steinmeier, 72 Md. 320, 20 Atl. Rep. 188. There was not, we think, any legally sufficient evidence given at the trial below, from which the jury could have properly inferred either express precedent authority to justify the agents of the defendant in causing the arrest of the plaintiff, nor was there any legal evidence which establishes the adoption or ratification by the defendant of the acts of its agents. It was certainly not within any of the usual objects or powers of the defendant company to prosecute offenders against the criminal laws of the United States, and it has not been contended that any such powers ever were specially conferred upon the defendant. While courts of some of the States have held corporations to strict liability in actions of like character with the one now under consideration, we are following the doctrine which we think this court has correctly announced in the case of Carter v. Machine Co., 51 Md. 290. To hold differently would, we think, be opening wide the door to a class of cases which courts do not look upon with favor. Public justice has its claims, as well as the individual citizen, and it is no part of the privileges of the latter that he can with impunity ignore the reasonable demands of the former. We do not, however, sanction the idea that the rights and liberties of the citizen can be trifled with, and unfounded charges preferred, without holding the accuser to just responsibility. And when corporations authorize their agents to maliciously commit wrongs against the citizen, or ratify or adopt such acts when done, they should be held responsible therefor. The right and the duty of the citizen are reciprocal. He should conduct himself in such manner as not to excite a well-founded suspicion that he is a wrongdoer. If he does not, he has no just cause to complain of the consequences. Carl v. Ayers, 53 N. Y. 14. This case now under consideration illustrates our meaning. If the plaintiff, when charged with passing a counterfeit coin with intent to defraud, had exercised a reasonable degree of prudence, which he could have done by dropping a good coin into the box for the bad one, or by going a few steps to the office of defendant, which he was then nearing and about to pass, and redeemed this bad coin, there could have been no possible cause for trouble, but he declined to do either. Having paid no fare for the ride which he took, he quietly walks off, ignoring the obligation he was under to the defendant to pay his fare, and paying no attention to the complaint of the driver that he had dropped a leaden nickel in the fare box. We take it to be very clear from the testimony, as already stated in this opinion, that the plaintiff did deposit the leaden nickel in the box, and that it was a counterfeit coin. The plaintiff himself has not sought to disprove either fact. Under these circumstances; he should have pursued a different course, if he desired to relieve himself from the consequences which reasonably followed. He had ample time to consider and determine upon the course which he thought proper to pursue, and we think he acted in such manner to at least justify the agents of the defendant in

believing that, even though he may have unintentionally deposited a bad coin in the box, he was afterwards willing to avail himself of his position, and apply the counterfeit nickel to the payment of his fare. He failed to better his position when he subsequently, at the instance of the commissioner, gave a good nickel to the president of the defendant. The agents of the defendant were unskilled in the refinements of the law, and we think, in what they did, they acted bona fide, and with reasonable and probable cause for their conduct. The plaintiff, by his course, excited suspicion, and invited the charge, and thus brought upon himself the unpleasant consequences that followed, which we think could have been averted by a reasonable regard for the duty incumbent upon him under the circumstances. Wilmarth v. Mountford, 4 Wash. C. C. 79, Fed. Rep. Cas. No. 17,774.

In this case we have failed to discover, by implica tion or otherwise, the slightest degree of malice. None could be inferred from the want of probable cause, because its absence has not been shown. The plaintiff, in his testimony, speaking of the agents of the defendant, said that he knew of no reason why they should have had any feeling against him, and he really had no right to think that they had. The question of the presence or absence of probable cause for a criminal prosecution does not depend upon the guilt or innocence of the accused, or upon the fact whether or not a crime has been committed. Baldwin v. Weed, 17 Wend. 224; Bacon v. Towne, 4 Cush. 218. And if a person act upon appearances in making a criminal charge, and the apparent facts are such as to lead a discreet and prudent person to believe that a crime has been committed by the party charged, although it turns out that he was deceived and the party accused was innocent, yet he will be justified. Carl v. Ayers, supra.

The well-settled doctrine is that an agent has implied authority to do only such acts as relate to his own particular duties. This theoretical principle is easily enough expressed and comprehended, but it is just here that the greatest difficulties arise in defining the extent of the principal's liability. The decided cases which illustrate this view are numerous, and we will refer to some of them as explanatory of the doctrines maintained in this opinion, and which we think correctly state the law. In the case of Roe v. Railway Co., 7 Exch. 36, it appears "that a passenger being desirous of going by an excursion train from Monk's Ferry (the defendant's station) to Bangor and back, inquired of the clerk at the former station by what train he could return. The clerk informed him that his ticket would be available by the evening train from Bangor. The plaintiff accordingly obtained an excursion ticket, and returned by the train mentioned by the clerk. On arriving at the platform near the Chester station, a railway servant, who had charge of the train, upon receiving the plaintiff's ticket, told him that he had come by the wrong train, and that he must pay 2s. 6d. more. This the plaintiff refused to pay, and he was thereupon taken into custody by a railway servant, under the direction of a superintendent; but, after having been a short time in custody, he paid the money under protest, and was released. It appeared that the Chester station was occupied by the defendant's company and by several other railway companies, but one of the witnesses stated that he believed that the person who took the plaintiff into custody was one of the servants of the defendant's company. The plaintiff's attorney, having written to the secretary of the defendant's company for compensation, received a written an