ing the paper propounded for probate as her last will and testament had full knowledge of the contents of the said paper. Upon the trial of these issues all were answered in the affirmative by the jury. On the 16th of November, 1888, the proceedings upon the trial were returned to the Surrogate's Court, and on that date a decree was entered confirming the probate of the will. The litigants in this action were parties to the proceedings in the Surrogate's Court and appeared on the trial in the Court of Common Pleas. No appeal was taken from the final decree of November 16, 1888, of the Surrogate's Court. October 10, 1888, this action was begun to partition said real estate, pursuant to § 1537 of the Code of Civil Procedure, upon the theory that the plaintiff was an heir at law of Mary T. Hatton, and that her apparent devise of the property to Michael Sweeney and Catherine Gallagher was void. The contesting defendants, Michael Sweeney, Catherine Gallagher and Francis Gallagher, her husband, denied in their answers that the devise was void, and set up as a bar to the action the final decree of the Surrogate's Court admitting the will to probate. The other defendants who answered admitted the allegations in the complaint. In November, 1889, the action was tried at Circuit, before a jury, and the following questions submitted: (1) Did Mary T. Hatten know that the paper she executed was a last will and testament ? 2. Was the said paper writing obtained from said Mary Teresa Hatten by undue influence exercised upon her by the defendants Michael Sweeney, Catherine Gallagher and Francis Gallagher, some or one of them? 3. Was the said paper writing obtained from said Mary Teresa Hatten by a conspiracy entered into by the defendants Michael Sweeney and Catherine Gallagher and some other person or persons for the purpose of fraudulently procuring a will in favor of said Michael Sweeney and Catherine Gallagher, in pursuance of which conspiracy they procured the said paper writing to be signed by the said Mary Teresa Hatten? 4. Was the said testatrix, Mary Teresa Hatten, at the time she executed said paper writing, of sound mind? 5. Is or is not the said paper writing executed by the said Mary Teresa Hatten the last will of the said testatrix ? The first question was answered in the affirmative by the direction of the court, the second and third, in the affirmative, by the jury, and the fourth and fifth, in the negative, by the jury. Upon the ren dition of the verdict a motion was made in behalf (2) Was Mary T. Hatten procured to execute the paper, purporting to be a will, by the conspiracy of Michael Sweeney, Catherine Gallagher and others? (3) Had Mary T. Hatten capacity to make a will? The first two questions were answered in the affirmative and the third question in the negative by the jury. Thereafter the trial was concluded at Special Term, the verdict confirmed and a judg-eighth each. ment of sale ordered, in accordance with which a judgment was entered September 22, 1890. Upon an appeal to the General Term this judgment was reversed, and a new trial granted, on the grounds that the Circuit erroneously allowed the complaint to be amended, and excluded competent evidence. (63 Hun, 224.) In March, 1892, the plaintiff, pursuant to leave granted, served a second amended complaint, and the issues joined thereon were tried at Circuit in June, 1893, and the following questions submitted to the jury: 1. At or immediately after the time when Mary Teresa Hatten signed the said paper writing, dated the 17th day of April, 1880, purporting to be her last will and testament, and mentioned in the complaint herein, did she publish and declare the same to be her last will and testament? In June, 1894, a motion for a new trial was made on the judgment roll and a case at General Term in behalf of Sweeney and Gallagher for a new trial. The motion was dismissed for want of jurisdiction (79 Hun, 349), and an order entered which was affirmed by the Court of Appeals (143 N. Y. 349). February 7, 1895, the property was sold, pursuant to the interlocutory judgment, for $51,000, and on filing the report of sale a final judgment was, March 4, 1895, entered. William H. Arnoux for appellants; Flamen B. Candler for plaintiff, respondent; S. B. Chittenden and William J. Kelly for certain defendants, respondents. FOLLETT, J.-As all of the litigants assume that Mary T. Hatten died seized in fee simple of the whole of the premises, we shall rest our judgment on that assumption, without considering its validity. a court of equity to be tried by a jury in a court of law to determine the validity of a will. (Rogers v. Rogers, 3 Wend. 505.) Vanderheyden v. Reid (1 Hopk. 408) was an appeal from a surrogate's decree admitting a will to probate, which related to real and personal property, and turned upon the question of the sanity of the testator. The question arose as to whether this issue could be sent by the Court of Chancery to a court of law to be determined by a jury. In discussing this question the learned chancellor said: "Thus, a will of personal and real estate may be there adjudged both valid and void by different tribunals. This result of an artificial division of jurisdictions can never he proper where it may be avoided. That a will should be adjudged valid, because the testator who made it was of sound mind, and that the same will should be adjudged void, because the same testator was insane, is a result which should never take place under one system of laws. But still more singular would be the anomaly, if the same court were, in the case of a contested will of real and personal estate, bound to send the disputed question to a jury, in respect to the land, and also bound to decide the same disputed question, without a jury, in reference to another species of property. All of the litigants in this action were parties to the proceedings in the Surrogate's Court to probate the wili, to the appeal to the General Term and to the trial before the Common Pleas. The first question presented is whether the decree of the Surrogate's Court, affirming the original probate, entered on the verdict rendered in the Court of Common Pleas, is a bar to this action. At common law the probate of a will in an ecclesiastical court was not conclusive against the heir, and a judgment in an action at law, at the suit of the heir, that the testator was incapable of making a will, was not conclusive against the executor as to the personalty, who, notwithstanding the judgment at law respecting the realty, might, if he could, establish the will as to the personalty in an ecclesiastical court. (Montgomery v. Clark, Atk., 378; Hume v. Burton, 1 Ridg. P. C., 277; Bogardus v. Clarke, 1 Edw. Ch, 266; 4 Paige, 623.) Lord Hardwicke said, in Montgomery's case: "I have often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated upon paper depositions only in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it.” By chapters 77, 20 and 21 Victoria (1857), the rule of the common law has been changed in England, and a decree of a probate court admitting a will to probate, which relates to realty and personalty, is binding on the heir in case he had notice. (Sec. 62, chap. 77, 97 Pick. Stat. at Large, 420-437.) The rule of the common law arose from its tenderness to heirs and from the idea that none should be deprived of land, except by a judgment of a court of law after trial of the issues of fact before a jury. Under the first Constitution of this State, wills re-going quotation. lating to realty might be proved in the Court of Commom Pleas (1 R. L., 1801, 178), and after 1813 in the Supreme Court or in the Court of Common Pleas (1 R. L., 1813, 364), and surrogates had the power to admit to probate wills relating to personalty and to real estate so far as it was necessary to authorize the issuing of letters testamentary. (1 R. L., 1801, 317; id., 1813, 444.) Persons aggrieved by any decree of a surrogate were authorized to appeal to the Court of Probates (1 R. L., 1801, 325; id., 1813, 454). Under the second Constitution the Court of Probates was abolished, and persons aggrieved by the decree of a surrogate were authorized to appeal to the chancellor (chap. 70, L. 1823). But the Court of Chancery could not by its decree bind the heir in respect to the validity of a will unless the question of fact had been determined in a court of law on the issue devisavit vel non-an issue directed by "Such an incongruity is avoided by taking one course of investigation, whether the bill is of real or of personal estate, or of both comprised in one instrumeut. This court now having jurisdiction of wills of personal goods, and also of wills of land, it may most fitly apply the same method of investigating facts to both cases." This language seems to indicate that the chancellor was of the opinion that a decree entered upon the verdict would be conclusive upon the heirs. This judgment was, however, reversed (5 Cow., 719); but not upon the point discussed in the fore In Brick's Estate (15 Abb. Pr., 12) and in 1 E. D. Smith's Rep. XVII, will be found a learned and instructive history of the Probate Courts of this State, prior to the Revised Statutes, by Charles P. Daly, the accomplished chief judge of the Court of Common Pleas. Under the Revised Statutes wills of real and personal property, or both, were provable before the surrogate of the proper county (2 R. S., 57, sec. 7; id., 60, sec. 23). Any person deeming himself aggrieved by the decree of a surrogate was authorized to appeal to the circuit judge of the Circuit (2 R. S., 66, sec. 55), who, in a case of a reversal upon a question of fact was required to formulate issues of fact and order them tried before a jury (sec. 57), which were to be tried in the same manner as issues awarded by the Court of Chancery, and new trials could be granted by the Supreme Court (sec. 58). By section 59 (2 R. S., 67) it was provided: "The final determination of such issue shall be conclusive as to the facts therein controvered in respect to wills of personal estate only, upon the parties to the proceedings." In case the decree of the surrogate was affirmed or was reversed on questions of law, by the circuit judge, an appeal could be taken to the Court of Chancery (2 R. S., 609, secs. 97, 100). Under these statutes it is clear that a judgment entered on a verdict, establishing a will, after a trial of issues of fact before the Circuit, was not conclusive upon the heir, to whom the right remained to contest the validity of the devise in an action of ejectment, and by chapter 238, L. 1853, he was authorized to contest the validity of a devise by an action in partition. Under the Constitution of 1846 the statute authorizing an appeal to a Circuit judge was changed and an appeal was authorized to be taken to the Supreme Court, and in case the decision of the surrogate was reversed upon a question of fact, the questions were directed to be tried before a jury (sec. 12, chap. 280, L. 1847). The statutes remained in this condition until the adoption of the Code of Civil Procedure, by which the Surrogate's Court is made a court of record and is vested with the power to probate wills relating to realty and personalty. By section 2626, C. P., the decree admitting a will to probate is conclusive as to the personalty, unless it is reversed on appeal or revoked by the surrogate; but the decree is not conclusive upon the heir, but is presumptive evidence only of the validity of the devise. (Code Civil Procedure, section 2627.) When an appeal is taken to the Supreme Court it may affirm or reverse the decree, and, if modified or reversed upon a question of fact, a trial before a jury of the issues of fact must be awarded. The provision of the Revised Statutes, that the decision to be entered upon the issue so awarded shall be conclusive as to the personalty only, is not continued by this code, nor do we find any provision stating the effect of a judgment so rendered. By section 1537 of the Code of Civil Procedure the provisions of chapter 238, L. 1853, were continued in force, an and heir of a devisor is authorized to maintain an action for the partition of land apparently devised to another upon the ground that the devise is void. In addition to these provisions any person interested in a will which has been admitted to probate in this State may maintain an action to cause the validity thereof to be determined (Code of C. P., sec. 2653A, enacted in 1892; Long v. Rodgers, 79 Hun, 441). It is apparent that under our boasted reformed procedure a will relating to realty and personalty may be declared void be cause of the insanity of the testator, or for any other cause, in respect to one species of property and valid in respect to the other kind of property, upon the ground that the testator was sane, and so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the Surrogate's Court and the decision is reversed by the Supreme Court and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate's Court decreeing the probate to be valid, the heir may, notwithstanding, retry the question as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure by which judgments diametrically opposed to each other may be recovered in respect to the same will, does not lie with the courts but with the LegislaWe are compelled to hold that the decree entered upon the verdict of the jury in the Court of Common Pleas is not a bar to this action. ture. This action was not brought under section 2653A, Code of Civil Procedure, enacted in 1892, but was brought four years prior to its enactment, under section 1537 of the Code, and the provision of section 2653A, that "the party sustaining the will shall be entitled to open and close the evidence and argument," is not applicable to this case, and the court did not err in denying the appellant's motion to be given the right to open and close the case. It is urged that the court eired in refusing to direct the jury to find the second, third, fourth and fifth issues of fact in favor of the contesting defendants. Upon reading the evidence, we are of the opinion that it required the court to submit every one of these issues to the jury, and that no error was committed in refusing to direct a verdict, or in denying a motion for a new trial on the ground that it was contrary to the evidence. The learned trial judge instructed the jury fully and carefully in respect to the law relating to the issues submitted, and it was not error after the delivery of his charge to refuse to reinstruct the jury on these issues in the language of counsel as expressed in nearly fifty requests. The ninth and tenth requests, at folios 1020 and 1021, are typical of all. By these requests the court was asked to instruct the jury in respect to the rules of law relating to undue influence, which requests were declined. The court had already carefully instructed the jury upon this issue at folios 966 et seq., and it was not error to refuse to reinstruct the jury on the same subject in the language of counsel. Under sections 970 and 1544 of the Code of Civil Procedure the verdict of the jury was not merely for the informa tion of the court, but was conclusive until set aside or a new trial granted, and the Special Term, upon its continuation of the trial, had no power to set aside the verdict and find the facts contrary thereto. (Jones v. Jones, 120 N. Y. 589.) Our attention is called to thirteen exceptions to the admission and exclusion of evidence in the appellants' twelfth point. To discuss each one of them and show why they were not well taken would unnecessarily prolong this opinion, and it is, we think, sufficient to say that none of them calls for the reversal of this judgment, entered upon the conclusion of a pro-268-'that if the employe, while acting within the longed and carefully conducted trial. applies to natural persons who are guilty of such misconduct. It is confined, however, to abuses perpetrated in the line of duties assigned to them, and does not extend to any tort, wantonness, or wrongful act the employes may commit in matters not connected with the service of the railroad corporation. In the line of their assigned duties they | stand in the place of the corporation; without that line the corporation is bound by nothing they may do.' Railroad Co. v. Whitman, 79 Ala. 325. The same principle had been differently but very clearly expressed in Gilliam v. Railroad Co., 70 Ala. scope of the authority of the employment, do an act The judgments and order should be affirmed, injurious to another, either through negligence, with costs. All concur. LIABILITY OF COMMON CARRIER FOR TORTS OF SERVANTS. A Goodloe v. MeMPHIS & C. R. R. Co., 18 S. R. 166. CASE in which a general discussion of the liability of a common carrier for torts of its employes is decided by the Supreme Court of Alabama in Goodloe v. R. R. Co. The facts in substance were that the plaintiff was injured, after having purchased a ticket at the defendant's office for transportation over its line, by a servant of the defendant who was scuffling on the platform of the depot. A the action of the defendant's servants was not incident to the employment, the court held that the company were not liable. The opinion contains an interesting discussion on this subject of the liability of a master for the torts of his servant, and the material part is as follows: "The question presented has been well considered by this and many other courts. It was recently before us in the case of Lampkin v. Railroad, 17 South. 448, in which, as the result of the authorities there cited, it was stated, as the well settled rule, that the carrier's obligation was to protect its passengers against the violence and insults of its own servants and of strangers and co-passengers; that a contract exists between a common carrier and its passengers to use all reasonable exertion to protect them from injury from fellow passengers and its agents in charge of the train. In an earlier case it was said that the clearly established doctrine now is that railroad corporations are liable for all acts of wantonness, rudeness, or force done or caused to be done by their agents or employes, if done in and about the business or duties assigned to them by the corporation; and the rule of vindictive or punitive damages against such corporations for abuse by their employes of the duties and powers confided to them is the same as that which wantonness or intention, then for such abuse of authority conferred upon him or implied in his employment, the master or employer is responsible in damages to the person thus injured. But if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master is not. The principle settled in these and many other similar adjudications is not disputed, but its application to the cases as they occur gives rise to continued disputations. What is meant by the words while acting within the range of the authority of the employment of the servant,' is made the ground for contention in each case. But that seems, also, to be well settled on authority; and while it is often a matter of nice adjustment to the facts of a case, it has been made clear enough not to be of very difficult application. It is said, on the point under consideration, that the rule of the responsibility of the master for the acts of his servants, 'does not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which is fairly incident to the employment; in other words, an act which the master has set in motion. * * * And generally, where the injury results from the execution of the employment, the master is liable.' (2 Wood RR., Sec. 316.) In explanation of the rule, this court long ago held, as the result of the authorities examined and cited, that when the servant is in the performance of his master's orders, or authorized acts, and in the doing thereof, conducts himself so negligently or unskillfully, that injury results to another, then the doctrine of respondeat superior applies, and the master will be liable in an action on the case; but that for the acts of the agent, willfully and intentionally done, without the command and authoriza tion of the master, the servant, and not the master, is liable; and that the rule has no application when the servant actually wills and intends the injury, or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. (Cox v. Keahey, 36 Ala. 340.) So we find it held, that where a slave, being a passenger on a steamboat, was wounded by a gun negligently discharged by the second engineer of the boat, the captain, in an action against him for the injury, was held not to be liable, because the discharge of the gun by the engineer was not an act done in the course of his employment or in the discharge of any duty connected with the service. (McClenaghan v. Brock, 5 Rich. Law, 17.) And where a servant employed to light fires in a house, lighted furze and straw in order to clean a chimney that smoked, and the house caught fire therefrom and was destroyed, it was held, that the act of cleaning the chimney in the manner stated was one outside the scope of her employment, and the master was not liable. (McKenzie v. McLeod, 10 Bing. 385.) And still again, in a recent case, where an employe who, being behind in his accounts, was suspected of setting fire to the building in which he was employed, in order to destroy the evidence of his default, we said that there was no evidence tending to show, if the employe did set fire to the building, that it was a negligent act of his, done while in the performance of his duty; and that, if he did it at all, it was his own tortious, wicked act, done outside the line of his employment, in which the defendant did not participate, or, afterwards, in any manner ratify, and for which it was not in any manner responsible. (Collins v. Railroad Co. (Ala.), 16 South. 142.") Abstracts of Recent Decisions. BANKS AND BANKING-VOLUNTARY ASSESSMENT. The F National Bank suspended business for lack of funds, and was placed in charge of a bank examiner, who required that $50,000 should be raised and placed in the bank before it could resume business. The stockholders, including one B, the president, thereupon raised this sum in amounts equal to 50 per cent of their stock, and placed it in the bank. The examiner caused entries to be made on the books indicating that this contribution was a voluntary assessment subject, after one year, to the liabilities of the bank, and permitted the bank to resume. B, at a meeting of the directors subsequently held, protested against these book entries, but afterwards signed reports in which the $50,000 was included as surplus. At the time of the advance the bank held two notes of B, and discounted another note of his a few days before the expiration of a year from the advance. Shortly after the expiration of the year, the bank again suspended payment: Held, that the advance to the bank was a voluntary assessment and not a loan, and could not be set off by B in an action against him on the notes by the receiver of the bank. (Brodrick v. Brown [Cal.], 69 Fed. Rep. 497.) CONTRACTS COLLUSIVE BIDDING. A secret contract between persons proposing to bid upon the construction of a public work, by which their bids are to be put in, apparently in competition, but really in concert, with the intention of securing as high a price as possible, and dividing the profits, is illegal, and contrary to public policy, and will not be enforced, though one of the parties to it has secured the contract for the public work, and has executed the same, and received the profits. (McMullan v. Hoffman, U. S. C. C. [Oreg.], 69 Fed. Rep. 509.) CRIMINAL LAW -MURDER AND MANSLAUGHTER. — Defendant was tried for murder, in killing one of two persons who attempted to arrest him without a warrant, and when there was no charge against him— probably mistaking him for another. The court, at defendant's request, charged that if such were the case, and the killing was done while resisting such arrest, it would be, not murder, but manslaughter, but added that if the killing was done in such a way as to show brutality, barbarity, and a wicked aud malignant purpose, it would still be murder: Held, that the modification was erroneous, as permitting the jury to return a verdict of guilty of murder merely because of the manner of the killing, even if they believed that otherwise the case was one of manslaughter only, whereas the proper inquiry was whether, at the time of the shooting, such circumstances were present, taking them altogether including the mode of killing - as made it a case of manslaughter, and not of murder. (Brown v. United States [U. S. S. C.], 16 S. C. Rep. 29.) FEDERAL COURTS -- ACTIONS BY NATIONAL BANK RECEIVERS. --- The Federal courts have jurisdiction of actions brought by the receiver of an insolvent national bank to realize its assets, irrespective of the citizenship of the parties; and it is immaterial to such jurisdiction whether the action is brought in the receiver's own name, as receiver, or by him in the name of the bank. (Linn County Nat. Bank v. Crawford, U. S. C. C. [Oreg.] 69 Fed. Rep. 532.) FEDERAL COURTS CONCLUSIVENESS OF STATE DECISIONS.--A single verdict and judgment in ejectment in Pennsylvania not being conclusive in |