usual course of employment, the defendant was not responsible; but, if the injury was committed by the defendant's doorkeeper or ticket taker, then it was in the course of their employment."

In

In the case at bar it was the ticket agent, Joseph Gordon, who called out to have appellee arrested, and it was not a ruffian bystander who put him out, but it was appellants' doorkeeper, acting in the course of his employment. In this case, also, the evidence shows, and the jury so found, that appellee was without fault. The trouble was occasioned entirely by a dispute as to the purchase of tickets, and both the ticket seller and the doorkeeper acted within the business of their employment, maintaining that side of the controversy which was in their master's interest. Higgins v. Turnpike Co., supra, it was claimed that no authority had been given to turn out an inoffensive passenger, and that, therefore, there was no liability for the servant's acts; but the court held that the authority to remove an offensive passenger necessarily carried authority to determine whether any passenger was offensive or not. So, here, the matter was about the master's business, and the servant, of necessity, must be the judge as to whether the conduct of appellee was such as to require his removal; and if a mistake was made, and an inoffensive patron of the theater was unjustly attacked and in, jured, the master must respond. "It is not convenient for the master personally to conduct the [business of keeping order in his theater], and he puts his guard in his place. Therefore, if the guard forms a wrong judgment, the master is responsible." See, also, Goff v. Railway Co., 3 El. & El. 673. But this case is even stronger; not only was the master here represented by his ticket agent and his janitor or doorkeeper, but his special agent, John Dickson, "deputized to act in his absence," was present in the theater ticket office, and looking out through the window upon the whole transaction. He testifies that he said and did nothing in the premises, and his silence can be taken only as his and appellants' approval of what was done. Indeed, no rule is better established than that a principal is responsible for the acts of his agent, performed within the line of his duty, whether the particular act was or was not directly authorized, and whether it was or was not lawful. Railroad Co. v. McKee, 99 Ind. 519; Pennsylvania Co. v. Weddle, 100 Ind. 141; Express Co. v. Patterson, 73 Ind. 430; Railway Co. v. Foster, 104 Ind. 293, 4 N. E. Rep. 20. But common carriers, innkeepers, merchants, managers of theaters, and others who invite the public to become their patrons and guests, and thus submit personal safety and comfort to their keeping, owe a more special duty to those who may accept such invitation. Such patrons and guests have a right to ask that they shall be protected from injury while present on such invitation, and particularly that they shall not suffer wrong from the agents and servants of those who have invited them. Railroad Co. v. Flexman, 103 Ill. 546; Craker v. Railway Co., 36 Wis. 657.

NUISANCE-OVERHANGING TREES-ABATEMENT-NOTICE.-In Hickey v. Michigan Cent. R. Co., 55 N. W. Rep. 989, decided by the Supreme Court of Michigan, it was held that where branches of a tree overhang a right of way, constituting a nuisance, the railroad company may remove the projecting parts without giving notice, when the adjoining

owner knows that the company claims they are a nuisance and desires their removal which he refuses. Montgomery, J., says:

The circuit judge instructed the jury as follows: "It is the view of the court that it was the duty of the railroad company, having operated that road with these branches there for so long a time, to have notified Mr. Hickey that they were an obstruction, to a certain extent, to the line of their road; that he must remove the branches, or remove his trees, or that they did not desire them any longer to grow upon their land, which they had a right to do, without any reference to the obstruction of the view of the track; and that he must cut down the branches, or remove the trees, or they would do so. Then, if he refused, they might, of their own motion, remove the branches from the line of the right of way. I base this opinion largely upon the case cited for the defendant, of Earl of Lonsdale v. Nelson, 2 Barn. & C. 302."

We think this instruction was erroneous. It is stated without limitation, in Wood on Nuisances (section 834:) "Any person injured by a nuisance, to the extent that he may maintain an action at law there for, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser." At section 838 it is said: "The party judges at his peril, and if he érrs in judgment he is answerable for all the damages that ensue; and if, in the exercise of the right, a breach of the peace is involved, he is answerable, by indictment, for the results. This general rule is, however, subject to exception. It is stated in Wade on Notice, (section 480h:) "Where the act complained of is one of positive wrong or willful negligence, or the security of life and property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrongdoer, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice, and an opportunity to remove it, is essential, before the complaining party would be justified in forcibly abating the same." The case of Earl of Lonsdale v. Nelson, is understood to hold that nuisances created by act of omission may not be abated except after notice; but in the opinion in that case, by Justice Best, it was stated as follows: "There is no decided case which sanctions the abatement, by an individual, of nuisances by omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred." This case is referred to in Jones v. Williams, 11 Mees. & W. 181, in which case the court, laying down the rule that the alienee of land upon which a nuisance exists at the time of his purchase is not liable to an action without notice, said: "We do not rely on the decision in Earl of Lonsdale v. Nelson as establishing the necessity of notice in such a case, for there much more was claimed than a right to remove a nuisance, viz., a right to construct a work on the plaintiff's soil, which no authority warranted; but Lord Wynford's dictum is in favor of this objection, for he statesthat a notice is requisite in all cases of nuisance by omission, and the older authorities fully warrant that opinion, where the omission is the non-removal of a nuisance erected by another."

It is worthy of note that it was conceded in the briefs of the counsel in Jones v. Williams that the notice or request is unnecessary before abating the nuisance of overhanging branches, the reason being stated that any person may lawfully stand in the highway over which the trees overhang, and there cut them. In Cooley on Torts (page 567), it is stated: "It is a nuisance if the branches of one's trees extend over the premises of another, and the latter may abate it by sawing them off." In Wood on Nuisances (section 112), it is said: "Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages, and an abatement of the nuisance, against the owner or occupant of the land on which they grow, but he may not cut down the tree. Neither can he cut the branches thereof beyond the extent to which they overhang his soil." See, also, Grandona v. Lovdal, 70 Cal. 161, 11 Pac. Rep. 623. The purpose of notice, in such case, when required, it is evident, is to give to the owner the opportunity of himself abating the nuisance.

AUTHORITY

OF

PRINCIPAL AND AGENT AGENT - CUSTOM NOTICE. The Supreme Court of Alabama in Simon v. Johnson, 13 South. Rep. 491, decide that a traveling salesman selling by sample for credit or cash, to be paid on receipt of the goods, has no implied authority to collect the money agreed to be paid and that a custom in the town in which the goods were sold to pay such salesmen is not binding on non-resident principals in the absence. of evidence of notice to them of such custom. McClellan, J., says:

The decided weight of authority-indeed, well-nigh all the adjudged cases-supports the proposition that a traveling salesman of merchandise, making sales by sample on credit or for cash, to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser. 2 Amer. & Eng. Enc. Law, p. 355, and notes; Kane v. Barstow, 42 Kan. 465, 22 Pac. Rep. 588, 16 Amer. St. Rep. 490, and note on page 494; McKindly v. Dunham, 55 Wis. 515, 13 N. W. Rep. 485; Kohn v. Washer, 64 Tex. 131; Butler v. Dorman, 68 Mo. 298; Law v. Stokes, 90 Amer. Dec. 655; Kornemann v. Monoghan, 24 Mich. 36: Clark v. Smith, 88 Ill. 298; Higgins v. Moore, 34 N. Y. 417; Greenleaf v. Egan, 30 Minn. 316, 15 N. W. Rep. 254; Seiple v. Irwin, 30 Pa. St. 513. The particular facts of the Maine case relied on by counsel for appellee prevent it from being an authority against the proposition just stated. The opinion in that case, indeed, recognizes the soundness of the rule declared in Higgins v. Moore and McKindly v. Dunham, supra, and, in effect, bases the conclusion that payment was well made to the agent, mainly, if not entirely, on the facts that the "agent assumed to complete a contract of sale, specific in terms, stipulating that payment was to be made to himself," and that, "after the goods had been delivered, he presented for payment a bill, made upon a genuine billhead' of his principal." Neither of these facts is in the present case or was involved in the cases cited. Without committing ourselves to the effect accorded them by the Maine court, it is readily

conceivable that there is much reason for according them an important influence in shaping the conclusion reached. Trainer v. Morison, 78 Me. 160, 3 Atl. Rep. 185. The Vermont case, relied on by the appellee, involved the sale by one Allen, who was in fact a traveling salesman for plaintiff's firm, but who represented himself to be a member of the partnership, and, upon that representation, made the contract of sale with the defendants. This contract embodied a stipulation that defendants should pay Allen for the goods when he should come to their city on his next trip, in about three months; and the decision is based on this express stipulation for payment to Allen, in connection with the consideration that de fendants had a righi, under all the circumstances, to rely upon Allen's making a truthful report of the terms of the sale, and to suppose that the goods were sent pursuant to the contract as made-a view which finds nothing in the present case to rest upon. Putnam v. French, 53 Vt. 402. The only case to which we have been referred, or which our own investigation has disclosed, that really sustains the position taken for appellee, is that of Collins v. Newton, 7 Baxt. 269. No great degree of investigation or con. sideration is evinced by the opinion of the court, and, in reaching the conclusion announced, no account seems to have been taken of the distinction, undoubtedly very important, between agents to make contracts of sale by sample to be filled through a delivery of the goods by the principal, time being given for payment, or payment to be made on delivery by the principal, and agents who, having the property of the principal in their possession for that purpose, sell and presently deliver it to the purchaser. The ques tion has not been decided in Alabama. We are content, however, to follow the very numerous cases which hold that such an agent has no implied power to collect from purchasers for goods sold and delivered in the manner shown in this record. The agent has not the goods, and does not deliver them. Prima facie, his agency is discharged when he makes a contract of sale, and takes an order for delivery by the principal. The sole purpose of his itinerary is to induce parties having need of the wares in which his principal deals to buy them from the house he represents. In doing this, he, in a sense, has taken the place of ordinary advertisement, and orders through the mails to the wholesale dealer, which obtained in the course of such transactions before his day. Having done this in a given instance, at a particular place, and made report to his employer, he passes on, and it is the merest accident if he is again at that place at the time the bill falls due, or if the purchaser at such time knows his whereabouts. To hold that an agency simply to make and report such contracts of sale under these circumstances involves an agency to collect the contract price when the account matures, a matter wholly beyond the exigencies of commerce, which brought these agencies into being, inconvenient of accomplishment, and entirely unneces sary, in such sort that it is to be assumed that the principal held the agent out as empowered to collect, -would be too radical a departure from elementary principles of the law of agency to be tolerated. To the contrary, we hold that a traveling salesman, making contracts of sale by sample, goods to be delivered by the principal, and the purchase money to be paid on delivery, or at any other time transpiring, or upon any other event happening in the future, is, upon these facts, and without more, wholly unauthorized to receive payment, and, of consequence, that payment made to him will not discharge the debtor from his liability to the principal.

CONTEMPT OF COURT.

Jurisprudence in general is pre-eminently a progressive science; and the law of contempt, coming home as it does (or may do), to the pocket, and to the personal liberty of every citizen, is, more especially, a matter of steadily increasing practical importance. In the effort to acquire some accurate knowledge of the subject, it is well to inquire, what really constitutes the offense, against whom it may be committed, by whom it may be committed, the procedure in establishing the fact of commission, likewise the character and extent of the punishment.

Bearing in mind Joseph Story's familiar saying that "precise definitions in the law are perilous and unsatisfactory," it may nevertheless be safely assumed that, any disobedience to the orders or rules of a judicial or legislative body, which impedes or obstructs that body in the discharge of its legitimate duties, or which interferes with the due, orderly and timely, administration of the law of the land; or any contemptuous, disorderly, or insolent behavior or language in its presence, of a character tending to interrupt its proceedings, or to impair the respect properly due to its authority, is a "contempt," and, as such, is punishable directly in proportion to the enormity of the offense in each particular case. As to the source and origin of jurisdiction over the offense, however, contempt of legislative authority differs essentially and radically from contempt of the judicial authority. Either expressly, or by necessary and reasonable implication, American constitutions generally prescribe the powers of the legislature, as to imposing punishment for contempt of its authority.

For example, the authority of either house of Congress, and of either house of any State or territorial legislature, to discipline its own members, for failure to attend its sessions, or for disorderly conduct while in attendance, is neither questioned nor questionable. But no such legislative body has any general power to punish for contempts, as that power is held and exercised by judicial tribunals; and the extent of the legislative jurisdiction, and the legality of its exercise in any given case, is always subject to review by the court of last resort. On the other hand, the power to

1 Burnham v. Morrisey, 14 Gray (Mass.), 226; Kilbourn v. Thompson, 23 U. S. 168.

punish for contempt was necessarily incident to (and inherent in), the courts of admiralty and chancery, the ecclesiastical courts, and in each of the superior courts of common law; and the like power is claimed and exercised, to its fullest extent (in the absence of either constitutional or statutory provisions), by all our American courts of record.2 On both sides of the Atlantic, and in nearly every American jurisdiction, statutes touching the authority of courts to punish for contempt have been enacted; but these statutes are uniformly construed as being merely declaratory, rather than amendatory, of the common law; it being conceded that, while legislation can neither divest nor materially impair the common law jurisdiction, yet the exercise of that jurisdiction may be regulated to a reasonable extent. Every exercise of the power to punish the violation of a judicial order is, however, subject to one important qualification, namely: It is absolutely essential that the court or magistrate making the order should have acted strictly within jurisdictional limits; otherwise disobedience of such order will be no contempt. The court or magistrate must not only have jurisdiction of the subject matter and of the parties, but that jurisdiction must actually be complete

2 Gates v. McDaniels, 3 Port. (Ala.) 356; Ex parte Walker, 25 Ala. 81; State v. Morrill, 16 Ark. 384; People v. Turner, 1 Cal. 152; State v. White, T. U. P. Charl. (Ga.) 123; Clark v. People, 1 Breese (Ill.), 266; Stuart v. People, 3 Scam. (Ill.) 395; People v. Wilson, 64 Ill. 195; State v. Tipton, 4 Blackf. (Ind.) 166; Ex parte Smith, 28 Ind. 47; Ex parte Wright, 65 Ind. 508; Church v. Muscatine, 2 Iowa, 109; German v. Luckett, 6 B. Mon. (Ky.) 638; Mariner v. Dyer, 2 Greenl. (Me.) 165; Morrison v. McDonald, 21 Me. 550; Ex parte Adams, 25 Miss. 383; Watson v. Williams, 36 Miss. 331; State v. Matthews, 37 N. H. 450; Yates v. Lansing, 9 John. (N. Y.) 395; State v. Woodfin, 5 Ired. (N. C.) 199; In re Moore, 62 N. C. 397; In re Williamson, 26 Penn. St. 9; U. S. v. Hudson, 7 Cranch, 32; Ex parte Robinson, 19 Wall. 505.

3 II Geo. IV; 1 Wm. IV. ch. 36; 2-3 Wm. IV. ch. 93; 6-7 Vic. ch. 38; 23-24 Vic. ch. 149; U. S. Rev. Stat. Sec. 725.

4 State v. Morrill, 16 Ark. 384; Clark v. People, 1 Breese (Ill.), 340; People v. Wilson, 64 1ll. 195; U. S. v. Hudson, 6 Cranch, 93; Anderson v. Dunn, 7 Wheaton, 294.

5 Evans v. Pack, 7 Mich. 70; In re Morton, 10 Mich. 208; McCauley v. Palmer, 40 Hun, 38; Sanford v. Sanford, 40 Hun, 540; Sherwin v. People, 100 N. Y. 511; State v. Marner, 13 Lea (Tenn.), 52; Brent v. Breck, 5 Cranch, C. C. 461; State of Penn. v. Wheeling Bridge Co., 18 How. 421; Worden v. Searles, 121 U. S. 97; Wyatt v. People (Colo.), 28 Pac. Rep. 961; Swafford v. Berrong (Ga.), 10 S. E. Rep. 593; Lester v. People (Ill.), 1 23 N. E. Rep. 387; In re Whitcomb, 120 Mass. 118; In re McKnight (Mont.), 27 Pac. Rep. 336.

courts of record act towards each other, in holding that every contempt must be punished by the very tribunal before which the offense was committed.

Courts of last resort being usually vested with a general supervisory and controlling authority over all inferior courts and magistrates, and being armed with authority to issue the writs of common law certiorari and habeas corpus, and to enforce a supersedeas, whenever necessaay for the furtherance of substantial justice, it is difficult to perceive what harm to the administration of justice could possibly arise from conceding to each inferior court and magistrate the right to punish for contempt. To be sure, it might be found necessary, in order to prevent abuses of the power thus conceded, to prescribe and limit by statute the punishment to be imposed; but that would be no more than has already been found necessary, even as to Circuit Courts of the United States.14 Without further discussion it may be safely assumed that the offense of contempt may be committed against any court of record, or judge thereof, and also, in most jurisdictions, against inferior courts and magistrates. The offense may be committed by any person of sufficient mental and physical capacity to perpetrate any other crime or civil injury. Upon legal principle, it is readily conceivable that a minority of the court of last resort might commit this offense, as against the majority. As matter of fact, we find it committed more frequently by persons owing some special duty towards the court, for instance, administrators, assignees, attorneys, bailiffs, clerks, constables, executors, guardians, jurors, masters, parties, receivers, referees, sheriffs, or witnesses. For example, any grossly corrupt, dishonest, or fraudulent practices on the part of an attorney are a contempt of the court of which he is an officer.15 Advising the violation of an injunction;16 drawing a petition, and embodying therein reflections upon the integrity of the court;17 filing and using an

14 U. S. Rev. Stats. Sec. 725.

15 Withers v. State, 36 Ala. 252; Butler v. People, 2 Colo. 295; Lockwood v. State, 1 Ind. 161; Brown v. Brown, 4 Ind. 627; Ex parte Smith, 28 Ind. 47; Redman v. State, 28 Ind. 205; Smith v. R. R. Co., 29 Ind. 546; Reynolds v. Lamont, 45 Ind. 308; Denton v. Noyes, 5 John. (N. Y.) 296; Ex parte Briggs, 64 N. C. 402; Ex parte Moore, 64 N. C. 389; Smith v. Brown, 3 3 Tex. 360; Lord v. Veanzie, 8 How. (U. S.) 254. 16 Ex parte Vance (Cal.), 26 Pac. Rep. 118. 17 McCormick v. Sheridan (Cal.), 20 Pac. Rep. 20.

affidavit, made in a foreign jurisdiction, knowing it to be false;18 removing a paper from the files, without leave ;19 writing an insulting letter to the judge, though done out of court; 20 and contributing to the newspapers an article reflecting on the integrity of the court, in connection with pending litigation,21 are all quite recent instances of contempt; and in the latter case it is held that, while the statute is constitutional, which limits the power of the courts to inflict summary punishment, to contempts committed facie curiae, and provides that extracurial contempts shall be punished by indictment, yet the name of the offending attorney may be summarily stricken from the roll; and the imprisonment of an attorney who fails to pay over money as decreed does not violate the constitutional provision against imprisonment for debt.2 Contemptuous criticism of a trial judge, however, when embodied in a brief filed in the appellate court, is not contempt. 23 Administrators, assignees, bailiffs, clerks, executors, guardians, jurors, masters, receivers, referees and sheriffs, owe to the court ministerial duties in the main; and any abuse of process, collusion, disobedience of orders, or culpable neglect of duty, fraud or oppression, will place them in contempt.24 As between inferior and superior judicial officers, the latter never assume to coerce the former in discretionary matters; but in the discharge of any ministerial duty, like signing a bill of exceptions, or making return to a certiorari, the former must yield implicit, unquestioning obedience, and failure to do so is contempt.

18 Gibson v. Tilton, 1 Bland, Ch. 352, 17 Am. Dec. 306.

19 R. R. Co. v. Given, 69 Iowa, 611. 20 In re Pryor, 18 Kan. 72.

21 State v. McClaugherty (W. Va.), 10 S. E. Rep. 407.

22 Jeff's Admr. v. Laurie, 27 Fed. Rep. 198. 23 In re Dalton (Kan.), 26 Pac. Rep. 674.

24 Ex parte Stearns (Cal.), 19 Pac. Rep. 275; Craig v. Maltbie, 1 Ga. 544; State v. Tipton, 1 Blackf. (Ind.) 166; Ex parte Cartwright, 114 Mass. 230; People v. Marsh, 2 Cow. (N. Y.) 493; Brockway v. Wilbur, 5 John (N. Y.), 356; People v. Nevins, 1 Hill (N. Y.), 154; Ex parte Somers, 5 Ired. (N. C.) 146; Bristol v. Pearson (N. C.), 13 S. E. Rep. 924; Com. v. Young, 11 Phila. 606; Com. v. Snowden, 1 Brews. (Penn.) 238; Rice v. McClintock, Dudley (S. C.),354; Ex parte Thurmond, 1 Bailey (S. C.), 605; Harman v. Wagner (S. C.), 12 S. E. Rep. 98; Pitman v. Clarke, McMullen (S. C.), 316; Connor v. Archer, 2 Speers (S. C.), 89; In re Vanvaver (Tenn.), 11 S. E. Rep. 90; Ex parte Pitman, 1 Curt. C. C. 186; Kepple v. Williams, 1 Dall. (U.S.) 29.

25 Havemeyer v. Superior Ct. Judges (Cal.), 25 Pac