swer from him, requesting that he might be furnished with the date of the transaction, and promising to make the necessary inquiries. The secretary also stated that it was an awkward business, and that the blame would fall upon the clerk at the station who had given the false information; and he also offered to repay to the plaintiff the sum of 2s. 6d. he had been compelled to pay. Held, in an action against the defendant for the arrest, that the circumstances of the case did not afford any evidence that the arrest had been made by the authority, either express or implied, given by the company, or that they had ratified the act. In the case of Eastern Counties Ry. Co. v. Broom, 6 Exch. 314, it appeared that the plaintiff a passenger on the cars of the company, when demanded to deliver up his ticket to the collector, refused so to do. He was requested to quit the carriage, which he also refused to do, whereupon he was, with necessary force only removed. A servant of the company then took the plaintiff before a magistrate for an alleged breach of one of the company's by-laws. The attorney for the company attended before the magtstrate to conduct the charge, which the court held was no evidence that the company ratified the act of their servant. In the case of Mali v. Lord, 39 N. Y. 381, the question was whether a merchant, by employing a clerk to sell goods for him in his absence, or a superintendent to take general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest, detain, and search any one suspected of having stolen and secreted about his person any of the goods kept in such store. The court says: "In examining this question, it must be assumed that by the employment the master confers upon the servant the right to do all necessary and proper acts for the protection and preservation of his property, to protect it against thieves and marauders, and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself, if present. The master would not, if present, be justified in arresting, detaining, and searching a person upon suspicion, however strong, of having stolen his goods and secreted them upon his person." The authority of the defendants to the superintendent could not, therefore, be implied from his employment. The act was not done in the business of the defendants, and they were not, as masters, responsible therefor. We do not think it necessary to pursue the inquiry further. There are many other cases closely analogous to these quoted, among which are Pressley v. Railroad Co., 15 Fed. Rep. 199; Bank v. Owston, 48 Law J. P. C. 25; Danby v. Beardsley, 43 Law T. (N. S.) 603; Edwards v. Railway Co., L. R. 5 C. P. 445; Allen v. Railway Co., L. R. 6 Q. B. 65; Brokaw v. Transportation Co., 32 N. J. Law, 328; Vanderbilt v. Turnpike Co., 2 N. Y. 479.

SET OFF-RIGHTS OF ASSIGNEE.-In Bradley v. Thompson Smith's Sons, 57 N. W. Rep. 576, it is held by the Supreme Court of Michigan that under How. St. § 7365, providing that, in an action on a contract assigned to plaintiff, a demand existing against his assignor at the time of the assignment, and belonging to defendant before notice of

assignment, may be set-off, a creditor cannot set off against the assignee of a chose not due at the time of the assignment a claim which was mature at that time. Hooker, J.,

says:

This raises the question whether a creditor can set off against the assignee of a chose in action not due at the time of the assignment a claim which was mature before that time. Had both claims been mature, i. e., due and payable, at the time of the assignment, no doubt of the right to set off either could be entertained. And it is equally clear that, if the assigned claim had been mature, an immature one could not be set off. We find numerous cases sustaining this proposition, and in one of them (Coffin v. McLean, 80 N. Y. 563) is a dictum which denies the right of setoff under the facts in this case. Mr. Justice Folger says: Nor is a (set-off) permitted, except when the demands are mutual; that is, where both were due and payable before the transfer of either to a third party." In that case the claims sought to be set off were of two kinds. Some fell due before the assignment to the plaintiff and some after. As to the former, we see no reason why it should not have been set off, except that the obligation was joint while that sued upon was several. This is one ground upon which that decision is based, and applies to all of the claims sought to be set off. The other claim was open to the objection that it did not fall due until after the assignment. But the question of the right to set off a claim mature at the time of the assignment against a plaintiff assignee of an immature claim does not arise. Three New York cases are cited to sustain the two reasons for the decision: Beckwith v. Bank, 9 N. Y. 211; Patterson v. Patterson, 59 N. Y. 574; Jordan v. Bank, 74 N. Y. 468. The cases of Beckwith v. Bank and Jordan v. Bank were cases where the claims attempted to be set off matured after the assignment to the respective defendants. That of Patterson v. Patterson was where a bond was taken by plaintiff's testator, in his life-time, conditioned to pay a sum to his executor after testator's death. This was held to be a claim against which a debt due from the testator in his life-time could not be set off. The opinion in this case was also written by Mr. Justice Folger. In demonstrating that the cause of action upon the bord did not arise until after testator's death, he asserts that a cause of action does not arise from the contracting of an indebtedness alone, but out of the non-performance of it as well; and he cites authorities to sus tain the proposition that a cause of action does not run from the making of a promise to do something at a future time, but only from the expiration of that time. Were we to apply this logic to the present case, we should be compelled to admit that at the time of the assignment the plaintiff's assignor had no demand whatever, except a contract to be performed, whereby the defendant might later become indebted. Had the assignment not been made, the obligation would have matured immediately upon the performance of the contract by Doyle, and the right of set-off by either Doyle or the defendant would have been complete. In such case, Doyle's subsequent asignment would not deprive the defendant of the right of set-off. But defendant's contention is that if Doyle assigned his contract before it matured, though it were but an hour before, his assignee could collect the consideration, to the exclusion of the defendant's set-off. Doyle is permitted to sell his claim before it matures. Plaintiff says: "I bought my claim against

the defendant before it was due, and therefore it was not subject of set-off when I bought it. It is true that by the terms of your contract with Doyle you had a right to become Doyle's debtor, and all rights that I have acquired are those which Doyle had under the contract. I own the claim against you because I bought it, and I will collect it from you because when I bought it there was no claim against you. It not being due, there was no debt." The right of set-off has its origin in the injustice of allowing a person to collect a debt when he is at the same time indebted to his debtor in a sum as large or larger than his own claim. And one who buys a claim against another, not negotiable, takes it subject to all rights of set-off due at the time of his purchase. If A buys a claim due to-day, B can set off a debt which is due. If, however, A has bought the claim half an hour before midnight, the rule is said to be otherwise, though it is difficult to see much difference in defendants' equities in the two cases.

It is urged that the assignor had merely a contract, which performance would ripen into a valid demand. This he sold, and plaintiffs took it with all its obligations and equities. As the assignor could not avoid defendant's right of set-off, if he had kept it, and could not convey any greater right than he had, it is said that plaintiffs took no more than the assignor could convey. Until performance, the plaintiffs had no claim against defendant. Coincident with the maturity of the demand, the right of set-off attached. There is apparent force in this reasoning. The case of Atkinson v. Assurance Soc., 6 Cranch, 202, is a case decided by Mr. Justice Johnson, which seems to recognize this doctrine that the assignment of a claim before maturity does not relieve it from set-off. On April 25, 1807, A gave H a note, which came to the hands of plaintiff, S, by assignment, on August 14; being before maturity, the note being due about October 25, 1807. On June 29th, H gave A a note payable in 60 days, i. e., September 1, 1807. Stewart brought an action against A, who was allowed to set off his note against A. It will be observed that Stewart acquired a claim that was not due, yet the set-off was allowed, and this, too, though the note set off was not due; the case differing from, and going further than, this, in that particular. It should be remembered that the act of the Virginia assembly under which this decision was made provided that: "Assignments of bonds . . . shall be valid; and an assignee .. may thereupon maintain an action of debt, in his own name, but shall allow all just discounts, not only against himself, but against the assignor, before notice of the assignment was given to the defendant." It was argued upon the trial that a "claim could not be just discount until it became payable, and that money cannot be offset until it be due." This case appears to support defendant's contention. But it differs from the present case, in that there was a debt to be set off. It was not a case of executory contract, under which a debt might at a future time be created. True, this debt was not due, but the consideration had passed. The sum had been earned, as the giving of the note implies. The maker of such note was a debtor before maturity, and the holder a creditor. Unless by reason of its negotiability, he could only dispose of such note subject to equities; and while we do not find it necessary to hold that the maker had an equity to the right to set off his existing claim, already due, when the note should mature, and do not so hold, we can see that such a conclusion, as in the Cranch case, falls far short of the doctrine that such right should apply to a case of a promise to

pay at a subsequent date, when the promisee should have earned the amount. It is a difference between an existing obligation to pay money already earned, at a future date, and an existing contract, where the debt does not exist, and will not, unless the consideration, whatever it may be, shall be performed. In the one case the holder of the promise to pay has an existing liquidated demand, contingent upon nothing, which he will inevitably have the right to demand and collect at the end of a specified time. In the other, he has no such demand, but an executory promise to pay upon the performance of something else. His right of action, when it accrues, may be a mere action for damages for a breach of contract. He could not set off such right, if the promisee should sue him upon the cross demand, and it is a matter which may never become a debt. The case in Cranch, under the Virginia statute, seems to have permitted set-off in the former case, but we have found no authority that extends the rule to the latter. Furthermore, there is no opportunity to enlarge the doctrine of set-off. It is a statutory right, in derogation of the common law, and must be strictly construed. Woods v. Ayers, 39 Mich. 348; Robbins v. Brooks, 42 Mich. 63, 3 N. W. Rep. 256. Section 7365 of Howell's Statutes provides that, "in the following cases, .. a defendant may set-off demands which he has against the plaintiff." First, then, it must be a demand, as contradistinguished from a right of action. Hanna v. Pleasants, 2 Dana, 269; Gould v. Kelley, 16 N. H. 560; Drew v. Towle, 59 Amer. Dec. 380; Hepburn v. Hoag, 6 Cow. 614. If the demand has been assigned to the plaintiff, a demand existing against his assignor at the time of the assignment, and belonging to such defendant before notice of assignment, may be set off, if it was such as might have been set off against the assignor while it belonged to him. How. Ann. St. § 7365, Subd. 8. The language of this subdivision is a little blind, by reason of the use of the word "by," instead of "to," in the second line, but we think that its meaning is unmistakable. This claim of defendant's was a proper subject of set-off against the plaintiff assignee only if it was such against the assignor while he was the owner of it. That it was not is plain, because this claim, i. e., that assigned, was not then due; and subdivision 5 provides that "it can be allowed only in actions founded upon demands which could themselves oe the subject of set off according to law." Under these provisions,defendant's claim, though due, did not become a subject of set-off before the assignment, because the assignor never had a right upon a demand subject to set-off. As there never was a time, while Doyle owned the contract, when, under this statute, it might have been set off against him, it is not such a demand as can be set off against the assignees. Subdivision 8; Richards v. La Tourette, 53 Hun, 623, 6 N. Y. Supp. 937; Richards v. Village of Union, 48 Hun, 263.

stated the reason for his making it to be the absence of the plaintiff in Massachusetts, and that his belief was based upon the statements made to him by the plaintiff and by his Boston attorney. Accompanying the complaint, and sworn to upon the same day, was an affidavit by the same attorney, in which he stated that, as he was informed and believed, the plaintiff was entitled to recover the sum claimed as damages for the breach of an express contract, over and above all counterclaims known to the plaintiff, upon a cause of action existing in his favor against the said defendants, upon the facts set out in the annexed complaint, and that as deponent was informed and believed, the said defendants are not residents of the State of New York, but that both reside at Gardiner, in the State of Maine. The affidavit then proceeds to state that the "deponent's belief as to the facts above stated" is based upon statements of the plaintiff and the plaintiff's Boston attorney, "who have both talked to deponent this morning over the telephone from Boston," and that "they narrated the facts to deponent exactly as they have been set forth in the complaint," etc. The affiant asked for an attachment "without waiting for affidavits to be obtained from Boston," upon the ground that the property was "likely to be removed." A warrant of attachment having been issued upon the complaint and affidavit, an application to vacate it was granted. Upon appeal to the General Term, the order vacating the attachment was reversed and the attachment reinstated. The Court of Appeals through Gray, J., say:

In this case the writ was applied for upon statements made upon the information and belief of the deponent, and the question is whether the information concerning the material facts appeared to have been acquired in such a manner as to justify the judge in acting upon it. Was the source of the information such as the judge could accept as satisfactory? The afliant, in such cases, is not required to have a personal knowledge of the facts required to be stated; but it is essential that his information must appear to have been competently derived; as otherwise the judicial officer whose action has been invoked, is without jurisdiction to proceed. It is clear that the attorney in this case obtained his information by a communication made through the telephone upon the morning of the day upon which the complaint and affidavit were sworn to, and that his belief was based upon it, in making his statements concerning the facts constituting the cause of action, the absence of counterclaims, and the non-residence of the defendants. Those were the material facts required to be proved to the satisfaction of the judge, and we do not think

that the proof as to the source of the information concerning them was sufficient, for the reason that there was lacking any degree of certainty that the plaintiff himself ever made the communication to the affiant. There would be no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff, and recognized his voice, or if it had appeared in some satisfactory way that he knew it was the plaintiff who was speaking with him. None of these facts however were averred. There was absolutely nothing upon which the judge could pass to show that it was the plaintiff who was speaking, and not some undisclosed person who, in the plaintiff's name, furnished to the attorney the information made use of. The perfection to which the invention of the telephone has been brought has immensely facilitated the intercommunication of individuals at distant points, and inasmuch as the voice of the speaker is heard, in most, if not in all cases, the identification of the speaker should be possible. The very facility of communication and of identification permits, and therefore imposes a duty upon the party who invokes judicial action upon the strength of information so received, to state his knowledge or his grounds for believing that it actually came from the party required to furnish it. To authorize an attachment to issue upon the affidavit furnished here was in disregard of the rule which requires that the source of information shall be disclosed in such a way as to enable the court to decide upon the probable truth of the statements and the authenticity of the jurisdictional facts. Judicial action upon such a source of information as was here disclosed was justified below by analogy with telegraphic communication. The analogy is incomplete. If the information comes through the telephone it is quite possible to identify the speaker. Then, too, there is not in the case of a telephonic communication any record, like the message which, in the case of the use of the telegraph, remains for reference and verification.

For these reasons, as well as for those stated in the opinion of Mr. Justice Barrett, at special term and of Mr. Justice Van Brunt, dissenting, at general term, the order of the general term should be reversed and that of the special term should be affirmed, with costs in all the courts.

MASTER AND SERVANT-CONTRACT OF EMPLOYMENT- -WRONGFUL DISCHARGE.-In Van Winkle v. Satterfield, 25 S. W. Rep. 1113, the Supreme Court of Arkansas decide that a contract for services of a salesman in a store does not imply a covenant by him to violate the law by working on Sunday. The court said inter alia:

The following facts show how the discharge occurred. A post office was in the rear end of the store. Tho entrance to it was the front door of the store, which was kept open on Sundays from 8 to 9 A. M., from 12 to 1 P. M., and 4 to 5 P. M., to enable citizens to get their mails. Satterfield was in the employ of Van Winkle before the written contract was entered into, and had been in the habit of remaining in the store, and watching the goods, while it was open on Sundays. Van Winkle undertook to make railings to protect the goods so that it would not be necessary for Satterfield to remain on Sundays. They were to be made so that they could be put up and taken down

at will. In the event they had been made and used, it would have been necessary to put them up on Satur day nights, and carry them to the cellar on Monday mornings. Upon his undertaking to make them, Satterfield proposed to remain in the store while it was open on Sundays, saying that he preferred doing so to putting them up and carrying them in and out of the store. They were not made, and Satterfield continued to watch the goods on Sundays, with few exceptions, until he was discharged on his refusal to do so any longer. At the time of his discharge he offered to perform his contract-insisting, however, that it was no part of his duty to remain in the store on Sundays -and notified Van Winkle, in writing, that he elected to work for him under his contract until the 1st of January, 1893, and thereby offered to do so. But Van Winkle refused to allow him to remain in his employ. ment unless he would stay in the store on the Sabbath, and take care of the goods, as he had been doing, which Satterfield declined to do, and he was thereupon discharged. On the 7th of January, 1891, Satterfield commenced this action against Van Winkle, on their contract, to recover the damages caused by its breach. Van Winkle admitted the discharge, but denied that it was wrongful. In April, 1891, the issues in the cause were tried by a jury. The foregoing facts were proved, and evidence tending to prove that Satterfield was out of employment, after he was discharged and before the trial, for 52 days, and that he was in business on his own account for the remainder of the time, was adduced. What the value of his labors in his own

business-which were performed after his discharge was, does not appear. The jury returned a verdict in favor of the plaintiff for $104. The court rendered judgment accordingly, and the defendant appealed.

Two questions are presented for our consideration: (1) Was the discharge wrongful? And (2), if so, what damages were recoverable? 1. Was Satterfield wrongfully discharged? In general a contract to labor by the month or year does not bind the laborer to work on Sunday. The presumption is, men do not intend to violate the law, until the contrary appears (Johnston v. Com., 22 Pa. St. 109). Where an instrument of writing is susceptible of two conflicting construc. tions, one of which would render the contract unlaw. ful, and the other lawful-to carry this presumption into effect-the latter should be adopted (Gauss v. Orr, 46 Ark. 129). Necessity, which can be availed by the exercise of reasonable precaution, cannot excuse or justify labors on the Sabbath which are forbidden by the statutes (State v. Goff, 20 Ark. 289). The contract sued on did not require the parties to labor on Sunday. Satterfield only bound himself by it to discharge the duties of a salesman or clerk. The violation of the Sabbath was not among those duties. The work which the appellant demanded of him could not be lawfully done on the Sabbath. The evidence does not show that there was any necessity for it, or that it could not be avoided by means which would have subserved the purpose for which it was required. On the contrary, it does show that railings would have served the same purpose. Satterfield was, quently, wrongfully discharged.

ASSAULTS BY SERVANTS.

conse

I propose to consider some of the phases of the master's liability for assaults committed by his servant. It is a universally recognized application of the rule respondeat

superior that the master is liable even for the malicious and ill-advised acts of the servant in the general scope of his employment,1 or, as it has been expressed, when the act done by the servant was something which his employment contemplated and which if properly and lawfully done would have been within the scope of his functions.2 It is not essential of course to the liability of the master for his servant's assault that it should be committed by the master's orders. The wrongful act may well be in the scope of the servant's employment, and the master liable in damages, although the immediate cause of the injury was the servant's violation of his master's express orders. In such a case the master cannot relieve himself from liability by showing that his servant exceeded his authority and violated his instructions. For instance, where defendant instructed his sons to drive out plaintiff's cattle which were trespassing on his field, but cautioned them not to chase them with dogs, he is notwithstand❘ing liable for injury to the cattle caused while so driving them out, with dogs in violation of his instructions. In McClung v. Dearborn,5 the Supreme Court of Pennsylvania held that while a master is not liable for the willful and independent trespass of his servant, yet he is responsible civilly for the manner in which the servant does the work that he is employed to do, and it is the character of the employment when an act is done, and not the private instructions to the servant, by which the master's liability is to be determined. In that case, the master claiming ownership of an organ in the possession of another sent his servants to the house where the organ was, to take possession of it him

1 Pittsburgh, etc. R. Co. v. Kirk, 102 Ind. 399; Phelan v. Stiles, 43 Conn. 426; Adams v. Cost, 62 Md. 264; Howe v. Newmarch, 12 Allen, 49; Golden v. Newbrand, 52 Iowa, 59; Rounds v. Delaware, etc. R. Co., 64 N. Y. 129; Quinn v. Power, 87 N. Y. 535; Wood on Master and Servant, pp. 593, 594; Garretson v. Duenckel, 50 Mo. 104. Though, manifestly, a master cannot be held liable for the act of a servant who uses his position to protect him in the prosecution of a purely private purpose unconnected with the business of the former. Evansville, etc. R. Co. v. Baum, 26 Ind. 70; Gilliam v. South, etc. R. Co., 70 Ala. 268; Rounds v. Deleware, etc. R. Co., 64 N. Y. 129.

2 Cooley on Torts, 536.

3 Garretson v. Duenckel, 50 Mo. 104; McClung v. Dearborne, 134 Pa. St. 396.

4 Schmidt v. Adams, 18 Mo. App. 432, citing and re lying on Garretson v. Duenckel, supra.

5 134 Pa. St. 396.

self. The servants entered and took possession of it by force and violence. The court held the master liable for their trespass, though in committing it they violated his express instructions, which were not to commit any assault, nor to break the law. The case of Garretson v. Duenckel, cited above, although a case of negligence and not of willful assault, happily illustrates this principle. There the defendant, the proprietor of a gun store, was held liable for an injury occasioned to plaintiff by the accidental discharge of a rifle which a clerk had loaded while exhibiting it to a customer, in direct violation of defendant's orders which prohibited the loading of any fire-arms in the store. In that

case, Judge Wagner said: "In determining

whether a particular act is done in the course of a servant's employment, it is first proper to inquire whether the servant was at the time engaged in serving his master. If the act was done while the servant was at liberty from his service, and pursuing his own ends exclusively, there can be no question that the master is not responsible, even though the injuries complained of could not have been committed without the facilities afforded by the servant's relations to his master." After reviewing the authorities he concludes that in this case Brewer, the clerk, "was unquestionably aiming to execute the order of his principal or master. He was within the scope of authority and engaged in furtherance of his master's business. There is no pretense that he was endeavoring to do anything for himself. He was acting in pursuance of authority, and trying to sell a gun, to make a bargain for his master, and in his eagerness to subserve his master's interests he acted injudiciously and negligently. It makes no difference that he disobeyed instructions. Innocent third parties who are injured in consequence of his acts cannot be affected thereby." Perhaps the most numerous group of cases of assaults by servants are those where the servant is charged by his master with the duty of keeping order or of enforcing reasonable and proper regulations. The very nature of such a duty presupposes the possibility of a contest and even of a physical conflict and we are not surprised to find the courts ruling, in such cases, that the master is liable even for the wrongful,

6 50 Mo. 104.

unnecessary and malicious assaults,committed in the course of the discharge of such duty. Thus in the recent case of Oakland City A. & I. Soc. v. Bingham, recently decided by the Indiana Court of Appeals, it was held that, where the gatekeeper of the defendant fair company, being authorized to keep order and eject those who were not rightfully on the fair grounds, wrongfully ejected plaintiff, and, for some fancied violation of the rules of demeanor, inflicted malicious injury on him, defendant fair company was liable in damages. Said the court, Crumpacker, J.: "Where a master employs one in a vocation requiring him to act under certain conditions and commits to his discretion the duty of determining when and what action may be necessary, the employer will be responsible for the misjudgment, as well as the misconduct of the servant, and if he acts when there is no occasion for it at all, though intending to accomplish some end of his employment, such responsibility will still exist.

If in the exercise of such judgment, he wrongfully ejected appellee from the ground,

or if a fancied violation of some rule of demeanor so excited the gatekeeper's anger that he inflicted a malicious injury in attempting to enforce its observance, the appellant should be held for the result." In the case of Rounds v. Delaware, etc., R. Co. which may be regarded as a leading case on this subject, the rule is thus expressed: "The master who puts a servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another.

* If he is authorized to use force against another when necessary in executing his master's orders, the master commits it to him to decide what degree of force he shall use; and if, through misjudgment or violence of temper, he goes beyond the necessity of the occasson, and gives a right of action to another, he cannot, as to third persons be said to have been acting without the line of

7 4 Ind. App. 545, 31 N. E. Rep. 383.

8 64 N. Y. 134.