NOTES OF RECENT DECISIONS.

FEDERAL AND STATE JURISDICTION: FEDERAL WRITS OF HABEAS CORPUS TO RELEASE A PRISONER HELD IN STATE CUSTODY. In the case of Whitten v. Tomlinson,1 which was a writ of habeas corpus sued out in the Circuit Court of the United States for the District of Connecticut, in which the prisoner was in custody of a sheriff of the county of the State of Connecticut under judicial process charging him with a criminal offense, - the Supreme Court of the United States reiterated the conservative doctrine deducible from its more recent holdings,2 that where a person is in custody under process from a State court of original jurisdiction, for an alleged offense against the State laws, and it is claimed that he is restrained of his liberty in violation of the United States constitution, a Federal court has a discretion whether it will discharge him upon habeas corpus in advance of his trial in the State court; that discretion, however, to be subordinated to any special circumstances requiring immediate action; but that, except in such peculiar and urgent cases, the United States courts will not discharge the prisoner by habeas corpus in advance of the final determination of his case in the State courts; and, even after such determination will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from the United States Supreme Court. In the view of the court, no emergency exists which requires Federal interference with State process, in the mere fact that the prisoner was previously tried upon the same charge; or in the fact that the Grand jury of the State court failed to indorse upon the indictment the words a true bill; or in the fact that the grand jury returned the indictment by mistake or misconception; or in the fact that the prisoner had

66

1 16 Supreme Court Reporter, 297. 2 Some of these holdings are: Ex parte Royall, 117 U. S. 241; 6 Sup. Ct. 734; Ex parte Fonda, 117 U. S. 516; 6 Sup. Ct. 848; In re Duncan, 139 U. S. 449; 11 Sup. Ct. 573; In re Wood, 140 U. S. 278; 11 Sup. Ct. 738; In re JugVOL. XXX.

iro, 140 U. S. 291; 11 Sup. Ct. 770; Cook v. Hart, 146 U. S. 183; 13 Sup. Ct. 40; In re Frederich, 149 U. S. 70; 13 Sup. Ct. 793; New York v. Eno, 155 U. S. 100; 15 Sup. Ct. 34; Bergeman v. Backer, 157 U. S. 655; 15 Sup. Ct. 727.

19

been surrendered by the Governor of another State in contravention of his duty in the premises. The sound view of the court is that all such irregularities, in the absence of any circumstances creating a special emergency, are to be left to orderly correction by writ of error. In concluding his learned opinion upon the question, Mr. Justice Gray says: "There could be no better illustration than this case affords, of the wisdom, if not necessity, of the rule established by the decisions of this court above cited, that the prisoner in custody under the authority of the State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the State to test the validity of his arrest and detention. To adopt a different rule would undoubtedly interfere with the exercise of the criminal jurisdiction of the several States, and with the performance by this court of its proper duties."

1

In the subsequent case of Kohl v. Lehlback, the same court, in a learned opinion by Mr. Chief Justice Fuller, apply the same doctrine,— holding that Federal interference with State process by means of a writ of habeas corpus is neither warranted by reason of the mere fact that the prisoner was convicted of murder in the first degree under a common-law indictment for murder which did not specify the degree of murder charged against him; nor by the fact that the State court refused to grant a writ of error to the prisoner after being convicted of murder, he not being entitled to such writ under the laws of the State; nor by the fact that he may have been unlawfully denied such a writ of error by the judicial authorities of the State, since it was for them to determine whether he was entitled to it; nor by the fact that the prisoner may have been denied the right to except to a juror after he had been sworn or affirmed, the statute law of New Jersey denying such right; nor by the fact that one of the jurors was an alien, no objection having been made to him on that ground.

These decisions are wise and conservative, but they do not operate to uproot the evil, which has long been very grevious, the evil of counsel for defense in criminal cases, delaying the just and lawful punishment of criminals by the State courts by means of making appeals, so to speak, to the Federal judicatories under the writ of habeas corpus, thus securing a long delay and defeating one of the main purposes of criminal justice, which is the early punishment of criminals, so that their punishment shall afford a public example before the fact of their crime has been forgotten.

116 Supreme Court Reporter, 304.

NEGLIGENCE: RES IPSA LOQUITUR EXPLOSION IN AN OIL REFINERY.- -The way corporations succeed in litigation in the New York Court of Appeals, against established rules of law which experience has shown to be necessary to justice, ought to arrest the attention of the legal profession. One of the cases which justifies this observation is Cosulich v. Standard Oil Co.,1 decided in that court in 1890. That case nakedly holds that evidence that an oil refinery in charge of the defendant exploded, causing a quantity of burning oil to flow down a pipe used for pumping oil to the works, from vessels moored at a wharf of the company, from which burning oil a lighter moored at the wharf took fire and exploded, communicating the fire to the plaintiff's vessel,is not sufficient to take the question of negligence to the jury, and that upon such a state of evidence the court below erred in refusing a nonsuit. The court hold that the rule of res ipsa loquitur is not applicable in such a case. Exactly the reverse should have been held. If an oil refinery is so dangerous that it cannot be kept from exploding by the exercise of reasonable care, then it is a nuisance per se when carried on in proximity to buildings or vessels. If it is not so dangerous but that it can be kept from exploding by the exercise of reasonable care, then the very fact that it does explode is presumptive evidence that reasonable care was not exercised in its management, sufficient to cast the burden of proof on the defendants. The monstrous injustice involved in the decision is at once seen when the consideration is taken into view that the owner of the vessel is not in the factory, and from the nature of the case cannot know how it exploded, except by getting his knowledge from the defendant or the defendant's servants. As the circumstances attending the explosion, from their very nature, cast a suspicion on the careful conduct of the servants of the defendant, it is reasonably incumbent on him to explain. Otherwise every vessel moored at the wharf of such a concern would have to keep an agent therein for the purpose of seeing that it was carefully managed, or else take the risk of having the vessel burned up through the negligence of those employed in its management, and without any right to indemnity.

RESPONDEAT SUPERIOR:

PERSONS FOR NEGLIGENCE

LIABILITY OF AGENT OR SERVANT TO THIRD DISTINCTION BETWEEN LIABILITY FOR MISThe well-known rule of law is that a servant is not liable to a third person for acts of nonfeasance, that is to

FEASANCE AND NONFEASANCE.

1 122 N. Y. 118; s. c. 19 Am. St. Rep. 475; 25 N. E. Rep. 259; 33 N. Y. St.

Rep. 287; reversing s. c. 55 N. Y.
Super. 385.

say, for failing to execute his master's orders, or to discharge the duty which he owes his master; but that, if injury accrues to a third person through such failure of the servant, the master alone is answerable to the third person therefor. A correlative rule is that, for acts of affirmative or positive misfeasance, whereby the third person is injured, the servant may be liable to such third person, notwithstanding the fact that the master may also be liable. The master and servant may both be liable as joint trespassers or joint tortfeasors. There is no difficulty in understanding this principle. The rule itself and the reasons which underlie it are perfectly obvious. The real difficulty consists in applying it,-in determining what acts of the servant are to be classed as misfeasance, and what as mere nonfeasance. The best discussion of this subject which we are now able to recall will be found in the opinion of Mr. Justice Sherwood in Steinhauser v. Spraul,1 which was an action by a domestic servant against the wife of her employer for an injury alleged to have been received by the servant by the fact of being ordered to use a dangerous ladder. The plaintiff alleged that, at the time when the injury happened, the plaintiff was under the direction and control of the defendant, "the wife and agent of the said Irwin Spraul." The question therefore was, whether a wife, in law the agent or servant of her husband, in ordering a person, who is in law also the servant of her husband, and not the servant of the wife, to use an implement which has been left in a dangerous condition through the negligence of the husband, is an act of misfeasance on the part of the wife, or a mere act of nonfeasance in executing her duty to her husband. Mr. Justice Sherwood, in the course of his very learned discussion of this question, concedes that "there are cases where an order, when given by an agent, results in direct injury to a third person, and the agent there will be held liable to the person injured; " 2 but he concludes that the wife is not liable, because, being under the coercion of her husband she does not, as an ordinary agent might, act in an unfettered way. He says: "And certainly the non-liability of the defendant wife ought to be determined to be the dominant principle in surroundings such as this record presents. Here defendant was environed by the confines of a narrow and limited authority. She was 'subdued to the very quality of her lord.' She was the mouthpiece of her husband, as much so as if she had said: go up and get down the pigeons,' in which case it would hardly be contended that defendant could have been held liable to an action." 3 These views do not stand as the opinion of the court. The case was

'Anna, my husband says

1 127 Mo. 541.

2 Ibid., p. 558.

s Ibid., p. 561.

reheard in banc, and of the seven judges, Robinson, J., alone concurred in them. The case was decided upon the ground that the plaintiff had taken the risk of a seen danger and patent defect. Barclay, J., concurred, on the ground that the injury did not arise from a defect in the ladder, but only from the manner in which the plaintiff had seen fit to use it. Three of the judges,- Brace, C. J., and Gantt and Burgess, JJ.,― dissented.

HABEAS CORPUS IN CASES OF MILITARY CUSTODY: ARREST OF RETIRED ARMY OFFICERS.- In a former number of this publication 1 we drew attention to the arrest of Captain Armes, a retired officer of the army, by an order of Lieutenant-General Schofield, Acting Secretary of War, and to his subsequent discharge by Judge Bradley, of the Supreme Court of the District of Columbia. We commented upon the severe language used by Judge Bradley in criticising the action of General Schofield,-language which, in our judgment, was not properly used with reference to that action, and was wholly inappropriate in a judicial decision where the sole question was that of power to order the arrest and confinement. We now have before us an opinion of the Court of Appeals of the District of Columbia delivered on the 6th of January, reversing the order of Judge Bradley, and remanding Captain Armes to the custody of the commander of the military barracks, in which his confinement, pending his trial by court-martial, had been ordered. The opinion of the Court of Appeals is written by Judge Morris, and is a very clear, and it would seem conclusive vindication of the power to detain a retired officer of the army in actual military arrest pending his trial before a court-martial on charges and specifications. The opinion is necessarily long, and we regret that we have not room to publish it in full. The learned judge rightly draws attention to the fact that no better illustration than the case before the court could be given of the reasons which may have actuated Congress in holding a retired officer of the army to be tried by court-martial for infractions of military law. He also makes it clear that the court can only deal with the question of the power of General Schofield, either in his character of Commanding General of the Army or of Acting Secretary of War, to order the arrest and confinement of Captain Armes pending the preferring of charges

1 28 Am. Law Rev. 883.

2 It will be recalled (28 Am. L. Rev. 883), that we stated that Gen. Schofield had incarcerated Capt. Armes

"in a prison." We made this statement on the authority of several newspaper reports of the matter. The vital error contained in that statement