2. Parnell, 147 Pa. 523: S. C., 29 W. N. C. 537; 23 Atl. Rep. 838; Sowles 2. Bank, 61 Vt. 375; S. C., 17 Atl. Rep. 791. There are occasional exceptions to this rule. Thus the customer can recover if he intended a bona fide sale and delivery: Gregory v. Clark, 39 Mich. 337. A minor can recover money so paid by him during minority: Ruchizky v. De Haven, 97 Pa. 202. When the broker acknowledges a balance in his hands in favor of the customer, the latter may recover, if he can show that the broker received the money for his use: Peters v. Grim (Pa.), 30 W. N. C. 177; S. C., 24 Atl. Rep. 192; Repplier . Jacobs, 30 W. N. C. 180; S. C., 24 Atl. Rep. 194; Floyd v. Patterson, 72 Tex. 202; S. C., 10 S. W. Rep. 526. So a deposit of margins can be recovered if the customer revoke his illegal instructions: Dancy v. Phelan, 82 Ga. 243; S. C., 10 S. E. Rep. 205. Or if his complaint does not on its face show an illegal contract: Clarke v. Brown, 77 Ga. 606.

By statute, however, such payments are made recoverable in many of the States of the Union. The question depends on the wording of the particular statute; but in general either party may recover of the other: Cushman v. Root, 89 Cal. 373; S. C., 26 Pac. Rep. 883; Kennedy v. Stout, 26 Iil. App. 133; N. Y. & Chic. Grain & Stock Exch. . Mellen, 27 Ill. App. 556; Lyons v. Hodges (Ky.), 13 S. W. Rep. 1076; Peck v. Doran, 46 Hun. (N. Y.) 454; Copley v. Doran, 1 N. Y. Suppl. 888; Lester . Buel (Ohio), 30 N. E. Rep. 821. Though it has been held that the broker cannot recover in Illinois: White v. Barber, 123 U. S. 392; S. C., 8 Sup. Ct. Rep. 221.

One who knowingly lends money for the purpose of further. ing a gambling transaction in futures cannot recover it: Waugh . Beck, 114 Pa. 422; Plank 7. Jackson, 128 Ind. 424; S. C., 26 N. E. Rep. 568, but if he take no part in the transaction mere knowledge on his part that the money was to be so used, will not preclude him from recovery: Armstrong v. Bank, 133 U. S. 433; S. C., 10 Sup. Ct. Rep. 450; Jackson v. Bank, 125 Ind. 347; S. C., 25 N. E. Rep. 430. The true test is whether or not he requires the aid of the

illegal transaction to make out his case; if so, he cannot recover; if not, he can: Armstrong v. Bank, supra.

IX. In all cases of alleged gambling contracts in futures, the question as to their nature is one of fact, not of law; for the jury, not for the court: Washer v. Bond, 40 Kans. 84; S. C., 19 Pac. Rep. 323; Fareira v. Gabell, 89 Pa. 89; Thompson v. Reiber, 123 Pa. 457; S. C., 23 W. N. C. 180; 16 Atl. Rep. 793.

X. There is one very curious kind of future contract that has frequently come before the courts during the past few years. This is what is known as a "Bohemian Oats" contract. By it a quantity of oats, professedly of a special brand, but in reality of ordinary kind, is sold to a farmer at a price far above its real value, and a bond is given by the seller to buy back a certain number of bushels of the crop at a high figure, promising a profit to the unwary agriculturist. With but one exception, Watson v. Blossom, 2 N. Y. Suppl. 551; S. C. Aff., 4 N. Y. Suppl. 489, these contracts have been held illegal as against public policy, and notes given on them void, except in the hands of a bona fide holder, subject to the exception in the latter case due to the operation of criminal statutes, as explained in Schmueckle v. Waters, 125 Ind. 265; S. C., 25 N. E. Rep. 281; Glass v. Murphy (Ind. App.), 30 N. E. Rep. 1097; Kain v. Bare (Ind. App.), 31 N. E. Rep. 205; Merrill v. Packer, So Iowa, 542; S. C., 45 N. W. Rep. 1076; Shipley v. Reasoner, 80 Iowa, 548; S. C., 45 N. W. Rep. 1077; Sutton v. Beckwith, 68 Mich. 303; S. C., 36 N. W. Rep. 79: Mace . Kennedy, 68 Mich. 389; S. C., 36 N. W. Rep. 187; McNamara v. Gargett, 68 Mich. 454; S. C., 36 N. W. Rep. 218. The first Iowa case on this subject, Hanks v. Brown, 79 Iowa, 560; S. C., 44 N. W. Rep. 811, decided that such a contract was not obnoxious to the statute of that State against gambling contracts, strangely enough forgetting all about the common law and public policy; but this omission has been corrected by the later cases from that State cited above.

XI. A contract to "corner" the market by buying up stock or goods is illegal at common law as against public

policy: Samuel v. Oliver (Ill.), 22 N. E. Rep. 499; Sampson v. Shaw, 101 Mass. 145.

An agreement by which one guarantees to another that cattle to be sold by the latter shall bring so much a head, binding himself to pay the difference if they bring less, while the owner agrees to pay the difference to the guarantor in case they bring more, is a wager on the price of the cattle, and a note given for such difference is void: Bank v. Carroll, 89 Iowa, 11; S. C., 45 N. W. Rep. 304.

DEPARTMENT OF TORTS.

EDITOR-IN-CHIEF,

MELVILLE M. BIGELOW, Esq.,

R. D. S.

Assisted by

BENJAMIN H. LOWRY,

ALEXANDER DURBIN LAUER.

PATRICK C. B. O'DONOVAN.

DICKSON V. WALDRON.' SUPREME COURT OF INDIANA.

The manager of a theatre is responsible for the acts of a special police who was appointed for the theatre, at the special request of the manager, by the Board of Metropolitan Police Commissioners, and who was employed and paid solely by such manager: 34 N. E. Rep. 506, affirmed.

The manager is liable for an assault and battery on an offensive patron by the special police, when acting as doorkeeper, since such act was within the scope of his employment in his master's business: 34 N. E. Rep. 506, affirmed.

LIABILITY OF A THEATRE MANAGER FOR ASSAULT COMMITTED BY A SPECIAL POLICEMAN.

The liability of a master for an assault and battery committed by his servant is based on the common law principle "Qui facit per aluim facit per se," the theory being that the master in selecting his servants must do so with prudence and caution, and must select persons capable of fulfilling the duties 'Reported in 35 N. E. Rep. 1, Nov. 24, 1893.

he will exact under penalty of his personal responsibility for their torts.

This theory has been greatly modified in modern jurisprudence, until to-day the true criterion of the master's liability is embodied in the answer to the question, "Is the act complained of within the scope of the servant's authority?" If so, the master is hable; otherwise, not.

The test, as laid down by Cooley, is “not the motive of the servant, but whether that which he did was something which his employment contemplated, and something which, if he should do it lawfully, he might do in the employer's name:" Torts, 536. The great difficulty in applying this principle lies in defining what acts properly fall within the scope of the servant's employment. In the case of Ware v. Barataria, 15 La. 169, it was held that where an agent lost sight of the object for which he was employed and committed a wrong, thereby causing damage, the principal was no more answerable for it than any stranger, the agent in such case acting of his own will, and not in the course of his employment, or under any implied authority of his principal. The duty of defendant's servant in this case was to open and close certain river locks and collect tolls, and the offence complained of by plaintiff was an assault and battery received by him from defendant's servant under pretext of said plaintiff not having paid his toll. This ruling was followed in the subsequent case of Block v. Bannerman, 10 La. Ann. 1, where the owner of a vessel was held liable for the tortious acts of the master, committed whilst in his service and within the scope of his authority.

The principle is true even if the tort be committed in disobedience to the master's orders: R. R. Co. v. Derby, 14 How. 468. In a comparatively recent case, the Supreme Court of Louisiana decided that plaintiff could not recover damages against the master for a wanton and unprovoked assault inflicted on him by defendant's servant, the plaintiff being a passenger on a train to which a Pullman Palace Car was attached, of which defendant's servant was porter, and having entered the palace car to ask permission to wash his hands. The court held that the assault was something which the ser

vant's employment did not contemplate, and was not, therefore, within its scope: Williams v. Palace Car Co., 40 La. Ann. 87.

In the case of Turner 2. Western, etc., R. R. Co., 72 Ga. 292, it was held that where one was lawfully in the cab of the freight train of a railroad treating for his passage, as had frequently been done, and was still being done at times of trial by other persons on the same train, as to an injury inflicted upon him he stands within the reason and spirit of the authorities in reference to like injuries done to passengers.

"The general doctrine with reference to master and servant, employer and employce, is, that when the employee commit. ; ting the injury is not at the time executing the employer's business or not acting within the scope of his employment the employer is not responsible:" Pryor, C. J., in Winnegar's Admr. v. R. R. Co., 85 Ky. 547

In McKinley v. The C. & N. W. R. R. Co., 44 Iowa, 314, an action was brought to recover damages for an assault by defendant's brakeman on plaintiff while latter was attempting to enter a passenger car at Howard Junction, Wisconsin, on March 22, 1872. Seevers, C. J., delivering the opinion, said: "If we were left to determine the question upon principle, whether an employer should be held liable for the wilful or criminal acts of the employee done in the course of his employment, we should have very little.or no hesitation in affirming such liability, and this because the employer has placed the employce in a position to do wrong, and it being done in the course of his employment, the intent with which it was done should not affect the liability of the employer whether the intent of the employee is good or ill. So long as he acts within the scope of his employment the employer should be bound. The decided weight and number of the authorities are in accord with this view. We need only refer to some of them without stopping to discuss or review them." See Turner v. North Branch R. R. Co., 4 Cal. 494; G. Western R. R. Co. v. Miller, 19 Mich. 305: Finney v. R. R. Co., 10 Wis. 395; Brooks v. Penna. Cent. R. R. Co., 57 Pa. 339; St. Louis, etc., R. R. Co. v. Dalby, 19 Ill. 353; R. R. Co. v. Wetmore, 19 Ohio, 110; Isaacs v. R. R. Co., 47 N. Y. 122;