I

diately upon the reception of said receipt, and while plaintiff was there in the office of said company, willfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company said overcharge,” etc. The old doctrine of McManus v. Crickett, that the master is never liable for the willful or malicious act of his servant (like the early doctrine that a corporation was never so liable, which latter doctrine arose out of the early misconception of the nature of a corporation),' has long since been repudiated. Cowen, J., put the whole argument for the opposite view, in a single sentence, when he said in Wright v. Wilcox,3 that "the dividing line was the willfulness of the act." But the whole argument against liability on such reasoning, is definitely and conclusively answered in Thompson on Corporations, where the whole question is exahustively treated. Says this author in § 6298:4 "The courts which have so ruled have proceeded on the theory that authority from the master to the servant to commit a willful wrong * * will not be implied, and that the servant when so acting will therein be deemed to act, not for his master but for himself. If he makes use of his master's property in committing this wrong, he will be deemed, according to the fantastic reasoning of Lord Kenyon,5 borrowed from Rolle's Abridgment, to have acquired for the time being, a special property therein. The fallacy of this reasoning was, that it made a certain mental condition of the servant the test by which to determine whether he was acting about his master's business or not. Moreover, with respect of all individual acts done by a servant in the supposed furtherance of his master's business, it clothed the master with immunity if the act was right, because it was right; and if it was wrong, it clothed him with a like immunity because it was wrong. He thus got the benefit of all his servant's acts done for him, whether right or wrong, and escaped the burden of all intentional acts done for him which were wrong. Under the operation of such a rule it would always be more safe, and profitable for a man to conduct his business vicariously than in his own person. He would escape liability for the consequences of wrong acts connected with his business, springing from the imperfection of human nature, because done by another, for which he would be responsible if done by himself; meanwhile the public, obliged to deal or come in contact with his agents, for intentional injuries done by them, might be left wholly without redress. A doctrine so fruitful of mischief could not long stand unshaken in an enlightened system of jurisprudence." And he states that it is repudiated by eminent text-writers, and the great weight of modern authority, citing quite fully the authorities to date. He then clearly shows the true test to be, not whether the act was committed in pursuance of orders from the master or against orders, whether the master ratified, or not, whether the tort was willful and malicious or not, but whether, and solely whether, the act constituting the tort was done in the master's business. As well said in Passenger R. Co. v. Young:6 .6" If the nature of the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention, it is not perceived how the presence of

* * *

5 In McManus v. Crickett.

6 21 Ohio St. 518.

such intention can be held to excuse the master. He also clearly points out that the rule is not one of logic, but of public policy and necessity, a view concurred in by Judge Andrews in Higgins v. The Waterville Turnpike Co.,2 the reasoning in which case, and in Rounds v. Delaware &c. R. Co.,3 is unanswerable. Judge Thompson is not alone in his criticism of McManus v. Crickett.5 Chief Justice Ryan, in Croaker v. Chicago and N. R. Co.,6 points out the fact that McManus v. Crickett rested on Middleton v. Fowler, the only case cited in its support, and that that case was not a case of malice, but of negligence, and said, with great pertinence and power, that "one employing another in good faith, to do his lawful work, would be as little likely to authorize negligence as malice," and that "either would be equally dehors the employment."

It thus appears that McManus v. Crickett is not now law. Counsel for appellee relies upon and cites this case, and the cases of McCoy v. McKowen, and Railroad Co. v. Harrison. It is true that both these cases are based on McManus v. Crickett. It is also true that both expressly declare that: "It is immaterial whether or not the tortious act be committed while the agent is engaged in the rightful business of his employer which he is attending to by his direction; for if he transcends his authority while so engaged, his acts do not bind his employer unless sanctioned by him;" thus declaring immaterial that which is the very test of liability in this class of cases. So far as this declaration is concerned these cases are hereby overruled, expressly, that they may not further mislead. They have been practically overruled by repeated subsequent decisions of this court. 10 As to Harrrison v. Railroad Co.," it is correctly said by Judge Thompson,12 that "the true reason of the decision was not that the act was willful, or malicious, but that it was plainly outside the line of duty of the servant."

But it is urged that however applicable this doctrine may be to carriers of passengers, it is not applicable to an express company. Doubtless there is a difference in the extent of the application of the principle, as between carriers of passengers and express companies, measured exactly by the difference in the things done by them in the discharge of their duties respectively. But the principle applies to both. An express company does not transport passengers, and cannot be made liable as a carrier of passengers might, for willful torts committed by its agent on passengers in their transportation; but it keeps offices for the transaction of its proper business, a business calling to its offices every day thousands of citizens; and in its dealing with its customers in

its offices, in its business, it is bound, in Judge Story's language," for respectful treatment and for decency of demeanor." It is impossible to say, on the allegations of this declaration, that the tort committed immediately upon the delivery of the receipt to the agent, and because of the demand for the refunding of what was plaintiff's conceded due, was so separated in time or logical sequence as not to have been an act done in the master's business. The whole transaction occurred in the shortest time and was one continuous and unbroken occurrence, the cursing and abusing and maltreatment were all administered in connection with the taking of the receipt, and immediately upon its delivery, and because of the demand for his rights in that matter, and while plaintiff was in appellee's office to transact and transacting this very business. What was said and done thus immediately upon the delivery of the receipt, was part of the res gestæ. As well said by Judge Thompson: "In this view, even under the modern doctrine, the acts or declarations of the servant tending to show his state of mind at the time of the act complained of, would be admissible in evidence as part of the res gestae." We have heretofore quoted from the masterly opinion of Judge Andrews in Rounds v. Delaware R. Co.,2 and from Latham v. I. C. R. R. Co., to show when in this character of case the corporation would not be liable. Complementary to that, we close this opinion with the words of the same great judge, in the same case to show, here, a case of liability: "The master who puts a servant in a place of trust or responsibility, or commits to him the management of his business, or 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 and authority and inflicts an unjustifiable injury upon another." Reversed, demurrer overruled and cause remanded.

1 Sec. 6299, top of p. 4929 (Com. on

Corp).

2 64 N. Y., at p. 136.

4

3 16 So. Rep. 757.

• At p. 134.

CORRESPONDENCE.

POWER OF THE STATE'S ATTORNEY TO ENTER A NOLLE PROSEQUI.

To the Editors of the American Law Review:

At page 302 of the March-April number of the AMERICAN LAW REVIEW is a note upon three recent decisions of the Supreme Court of this State.

My knowledge of your willingness to be corrected, when wrong, must be my excuse for inflicting you with this letter. I am confident, that one who censures error in another with a free hand, is one who is willing his own errors should be called to his attention. This is not said in any spirit of cajolery or with any motive to flatter. If you were other than you are, I probably would not address you.

You say the weight of judicial authority, and if you do not say it you intimate it, is against the position of the Supreme Court of this State; that Dr. Bishop gave an opinion in opposition to the ruling of Judge Moïse; and that opinion, it is probable, was not even read by the Supreme Court of this State. You say you have seen a letter of Dr. Bis hop stating his belief it was not read. You are doubtless aware of the fact, without the necessity for my stating it, that a lawyer's opinion in a given case has value dependent upon the learning and intelligence of the man, the thoroughness of his examination of the case, his knowledge of that case, and that these hold equally good as applicable to judges, coupled with one fact, that judges' opinions have increased value owing to having heard argument upon both sides of the controversy. You probably will agree with Judge Dillon, that the best method of insuring a correct conclusion, is to have the case hammered out at bar.

Now, let me take up the statements in that short note of yours and correct them. The Supreme Court of this State did see and read Dr. Bishop's letter. Counsel for Beer submitted the letter in a formal communication to the Chief Justice and Associate Justice of the Supreme Court. The letter was read, and was studied; was discussed; and its doctrine virtually held inapplicable to the facts of the case then at bar. The letter was well advertised, the press here publishing it, and copies were circulated among the members of the bar.

Dr. Bishop's opinion must not be regarded as the opinion of a text-writer, any more than Judge Dillon's arguments at the bar of the court would be held with the same respect as a quotation from his work on Municipal Corporations. Dr. Bishop did not act in a judicial capacity nor express an opinion in such capacity, and this, despite the tone, the color and the apparent character of his communication. He did not put aside all of his work to express an opinion of this kind without being paid a fee for his services. To give Dr. Bishop's opinion, under such circumstances, the value which would be given to the deliberate and carefully expressed opinion of a text-writer is not just to the learned Doctor, any more than it would be to treat Judge Dillon's arguments

with the same consideration as we would the expression of his opinion in his works.

Permit me to again say that Dr. Bishop did not hear both sides of the question, nor were both sides of the question submitted to him. I seriously doubt if he read Judge Moïse's answer. I am positive he did not see the brief of one

of Judge Moïse's counsel, as it was printed after his letter was received by the Supreme Court. He probably gave the subject an ex parte examination, and this assertion is stronger than mere probability.

Dr. Bishop's letter does not cite one single, solitary authority to sustain his position.

You say the weight of judicial authority is with Bishop. An examination of the decisions of the Supreme Court of the State of Louisiana would show that the weight of judicial authority is against Bishop, who, as a matter of fact, did not appear to appreciate the issue which was before the court. It is not improbable that the failure to meet that issue on the learned Doctor's part, was due to the fact that he was not posted correctly, but probably was told the issue that Beer's counsel assumed was before the court, a not infrequent error for counsel to make.

The question before the Supreme Court for decision in the Beer case was: Can the District Attorney do by indirection that which he cannot do directly? The pardoning power, under the constitution of this State, is not lodged in the District Attorney. It is in the Governor, restricted by a recommendation from the Board of Pardons, a condition precedent to the exercise of the power.

The attempt to nolle prosequi Beer after conviction and before sentence, so as to release him from custody and further prosecution, was virtually the exercise of the pardoning power. There can be no logical difference between the entering of a nolle prosequi after sentence and the entering of one after conviction, after motions for a new trial and in arrest of judgment have been overruled. The nolle prosequi goes to the indictment, not to the offense. It is not a bar to a further prosecution. In some jurisdictions new processes may be awarded on the indictment nolle prosequied. If the nolle prosequi is a bar to further prosecution, it then goes to the offense and necessarily is practically and really a pardon in the Beer case.

The effective difference otherwise between a pardon and a nolle prosequi cannot be shown. In this State a nolle prosequi is never used as a means of exercising executive elemency. Under our constitution if it were, it could only be so used when ordered by the Governor upon the recommendation of the Board of Pardons. The District Attorney cannot usurp this function, delegated by the people, the sovereign, to the Governor, and a Board of Pardons, under the guise of entering a nolle prosequi.

The pardoning power is vested exclusively in the chief executive, conditioned upon the recommendation of the Board of Pardons. The nolle prosequi in Beer's case would have operated as an absolute discharge. It would have been a complete bar to any further prosecution whether upon this indictment or a new one. Beer would have been as free as if pardoned.

The nolle prosequi is used after verdict and for the following purposes:(1) Curing a defective count. being pronounced on the valid counts. The prisoner is not released; one count of the indictment being nolle prosequied he is held under the others.

Saving the prisoner from discharge, sentence