particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it, or some act which leads by a physical necessity to the act complained of. The former is the case when one, as servant, is ordered to enter a close to try a right or otherwise; the latter, when such a case occurs as Gregory v. Piper, 9 Barn. & C. 591, where the rubbish ordered to be removed, from a natural necessity, fell on the plaintiff's soil; but, when the act is that of the servant in performing his duty to his master, the rule of law we consider to be that case is the only remedy against the master, and then only is maintainable when that act is negligent or improper. And this rule applies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant, a rational agent. The agent's direct act or trespass is not the direct act of the master. Each blow of the whip, whether skillful and careful, or not, is not the blow of the master. It is the voluntary act of the servant. Nor can it, we think, be reasonably said that all the acts done in the skillful and careful conduct of the carriage are those of the master, for which he is responsible in an action of trespass, to the same extent as if he had given them himself, because he has impliedly ordered them, but those that were careless and unskillful were not, for he has given no order, except to use skill and care. Our opinion is that, in all cases where a master gives the direction and control over a carriage or animal or chattel to another rational agent, the master is only responsible, in an action on the case, for want of skill or care of the agent, no more. Consequently, this action cannot be supported."

Though the question in the case cited concerned forms of procedure, the distinction there mentioned goes deeper than mere form, and is a distinction between those acts in which the master is really a co-actor with the servant, and those in which his responsibility is based merely on the rule of law that makes him liable for the negligence of his servant in and about his business. It does not explain away the effect of the decisions in Massachusetts, New Hampshire, Maine, and Ohio, above quoted, to say that they merely went to the question of whether you could unite an action on the case with an action for trespass, because, under the procedure in nearly all of them, case and trespass could be united in one action, and the distinction between them as forms of action had been abolished. On principle, we have no hesitation in taking the view so logically upheld by the Massachusetts courts, and in deciding that a suit against a principal and the agent, by the mere negligence of the agent, in the absence of the principal, is a misjoinder, and that the causes of action are not joint, but several. The conclusion thus reached may be somewhat at variance with some remarks which were made incidentally in the cases of Powers v. Railway Co., 65 Fed. 129, and Hukill v. Railway Co., 65 Fed. 138, and which were not necessary to the conclusions there announced; but the question of joint liability of master and servant, fully argued and considered in this cause, was but little considered there, and the right of a plaintiff to join them in every case of negligence by the servant alone was assumed rather than decided.

The engineer in this case was improperly joined as a defendant with the railway company, the railway company has the right to have the suit against it tried in this court, and the motion to remand the same is denied.

WAYDELL et al. v. GABRIELSON.

(Circuit Court of Appeals, Second Circuit. February 20, 1896.)

LIMITATIONS-NEW ACTION AFTER DISMISSAL-NEW YORK STATUTE.

The New York statute (Code Civ. Proc. § 405) providing that "if an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff may commence a new action for the same cause, after the expiration of the time so limited," does not apply to a case where a judgment for the plaintiff has been reversed on appeal, and a new trial awarded, and, upon the coming on of the action for such new trial, the complaint is dismissed, without objection from the plaintiff's counsel, whereupon a judgment is entered reciting the dismissal of the complaint by default, and adjudging costs against the plaintiff.

In Error to the Circuit Court of the United States for the Eastern District of New York.

This is a writ of error by the defendants in the court below to review a judgment for the plaintiff entered upon the verdict of a jury.

Benedict & Benedict (Robert Benedict, advocate), for plaintiffs in error.

G. P. Gordel, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE, Circuit Judge. We are of the opinion that the trial judge erred in not ruling that the New York statute of limitations was a bar to any recovery by the plaintiff upon the first cause of action set forth in his complaint, and consequently that the assignment of error impugning that ruling is well founded. That cause of action is for an assault and battery which was committed upon the plaintiff more than two years before the present action was commenced, and is explicitly within section 384 of the Code of Civil Procedure, which provides that an action to recover damages for assault and battery must be commenced within two years after the cause of action has accrued.

It was shown at the trial that in February, 1889, the plaintiff brought suit against the defendants for the same assault and battery in the superior court of the city of New York, which was contested by the defendants, and, after a trial, resulted in a judgment for the plaintiff; that, upon an appeal by the defendants to the court of appeals of New York, that court reversed the judgment of the superior court (31 N. E. 969), and ordered a new trial; that the action came on again for trial in the superior court, when, counsel for both parties having appeared, and the counsel for the plaintiff making no objection thereto, the court dismissed the complaint, with the costs of the suit; and that February 24, 1893, a judgment reciting that the complaint stand dismissed by default, and adjudging a recovery of the costs against the plaintiff, was

duly entered of record in the action.

It is insisted for the de

fendant in error that upon these facts the present action is excepted from the bar of section 384 by force of the provisions of section 405 of the Code. This section reads as follows:

"If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination."

It is the manifest purpose of this section to preserve to a plaintiff who has begun his action within the statutory period, and endeavored to prosecute it to a recovery, but has been defeated, an opportunity for one year to bring a new action, notwithstanding the cause of action under other circumstances would be barred by limitation. One of its provisions embraces actions in which the plaintiff has obtained a judgment, but it has been reversed on appeal; the other provisions embrace actions in which a judgment has not been obtained, but the action has not been terminated by a judgment on the merits, or by the consent, express or implied, of the plaintiff. In actions brought in some of the inferior courts in which the plaintiff has obtained judgment and there has been a reversal on appeal, no venire de novo is awarded by the appellate court in this state, and the only recovery of the plaintiff, if he desires to further prosecute his claim, is to bring a new action. Wooster v. Forty-Second St. R. Co., 71 N. Y. 471. It would be manifestly unjust, when a plaintiff has been defeated because of some technical error upon the trial, or upon some ground not necessarily involving the merits of his cause, or not fatal to an ultimate recovery, to deny him a reasonable opportunity for a new trial; and this would result when the appellate court does not, upon reversing the judgment, grant a new trial if in the meantime the statute of limitations has run against his cause of action. The first provision is intended to obviate the mischief. The other provisions are intended to remove the hardship which would attend a plaintiff who, notwithstanding he has diligently prosecuted his action, has been defeated upon some point not involving the merits, and would lose the remedy of a new action because in the meantime his cause of action had become barred. The statute embraces two classes of plaintiffs,-one, those who have obtained a judgment which has been reversed upon appeal, without awarding a new trial; and the other, those who have not obtained judgment, but who have not been defeated on the merits, and whose action has not been terminated by their own volition. If a plaintiff has obtained a judgment, he, is in the category of the first class, and the provisions applicable to the second class do not apply to him. Unless this is the meaning of the statute, the provision in respect to plaintiffs whose judgments have been reversed is wholly inoperative and unnecessary, and, if omitted, the other provisions would relieve all classes of plaintiffs embraced within its lan

guage. A plaintiff who has obtained a judgment which has been reversed upon the merits of the cause does not derive any benefit from either of the provisions, and, if the first provision were omitted, the other language of the section would permit a plaintiff who has obtained a judgment which has been reversed, but not upon the merits, to bring his new action within the year. In order to give due effect to the several provisions, the section must be construed as not applying to plaintiffs who have obtained a judgment which has been reversed on appeal with an award of a new trial. Such a plaintiff has no occasion to bring a new action, and cannot invoke the benefit of the section.

Even if the section were applicable to a case like the present, where, upon a reversal, the appellate court ordered a new trial, it would be contrary to the spirit, and, as we think, to the true meaning, of the statute, to construe it as embracing an action in which the plaintiff has consented to a dismissal of his complaint. What took place in the present case was equivalent to a voluntary discontinuance of the action or to a dismissal of the complaint for neglect to prosecute. Such a construction was given to the statute by the judgment of the appellate branch of the supreme court in Hayward v. Railway Co., 52 Hun, 383, 5 N. Y. Supp. 473. In that case the plaintiff, upon the trial of his action, was permitted to withdraw a juror, upon the condition that he pay the trial costs within a specified time. The payment was not made, and thereafter the action was dismissed for "failure to pay said costs,” and final judgment thereon entered. The court decided that this was, in effect, a dismissal of the complaint for failure to prosecute the action, and accordingly held that section 405 did not relieve the plaintiff from the bar of the statute of limitations, although his new action was brought within a year after the dismissal of his complaint in the former suit.

We conclude that, in any view of the section, it does not reach the present case, and that the trial judge should have directed a verdict for the defendants as to the first cause of action. This conclusion renders it unnecessary for us to consider questions which have been raised by the other assignments of error.

The judgment of the circuit court is reversed, with instructions to grant a new trial.

BLOCK v. WALKER.

(Circuit Court of Appeals, Sixth Circuit. February 4, 1896.)

BROKERS-RIGHT TO COMMISSIONS.

No. 329.

One W., a distiller, employed B., as broker, to effect a sale of whisky made by him. Nothing was said about B.'s negotiating an option for the sale of the next season's product, but, when B. brought W. and an intending purchaser together, he told W. that the purchaser might demand an option. W. at first refused to give such option, but was finally induced by B. to do so, and a contract was drawn up for the sale of the whisky already made, with an option to the purchaser to buy a large

part of the next season's product. W. paid B. his commission on the sale of the whisky already made, and when the purchaser's option was afterwards exercised, and more whisky, of the next season's manufacture, sold to him, B. demanded commissions thereon. Held, that he was not entitled to such commissions.

In Error to the Circuit Court of the United States for the Dis trict of Kentucky.

The plaintiff in error, Block, a commission broker, brought this action against the defendant in error, Walker, a distiller, to recover commissions which he claims are due upon a sale of whisky made through his procurement to J. & A. Freiberg, dealers in whisky. The facts are that on the 3d of December, 1891, by a written contract of that date, the defendant in error sold to J. & A. Freiberg 2,500 barrels of whisky, of designated brands, at an agreed price. This contract closed with a provision that, "in consideration of 2,500 barrels purchased of me by J. & A. Freiberg, I hereby give them the option to purchase from me 2,000 barrels of the J. H. McBrayer, to be made during the distilling season of 1893, at 271⁄2 cents per proof gallon, in bond, cash, and also 1,000 barrels of Rock Castle, at 25 cents per proof gallon, in bond, storage, etc. It is, however, understood that this option expires unless accepted by them on or before the first of November, 1892." This contract contains other provisions, not necessary to notice, both in reference to the sale and the option. On the 24th day of October, 1892, they reduced this option to the form of a contract of sale, in writing, similar to that of the original sale, and closed it with another option for 2,000 barrels of the McBrayer whisky, to be distilled in 1894. Under this last contract the Freibergs took, not only the 3,000 barrels of whisky of the 1893 distilling, but 2,000 barrels additional. The plaintiff in error, as the broker negotiating the original contract, was paid by the defendant in error an agreed commission of 25 cents per barrel upon the original sale, and, when the option was completed by acceptance, he claimed an additional commission, first upon 1,500 barrels, and afterwards upon the whole 5,000 barrels of 1893 whiskies. Payment being refused, this suit was brought to recover the commissions. At the trial the court directed a verdict for the defendant, and the case comes here by writ of error from the judgment entered upon that verdict. The other necessary facts will appear in the opinion of the court.

Max B. May, for plaintiff in error.

D. W. Lindsay and Jonas B. Frenkel, for defendant in error. Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

HAMMOND, J. (after stating the facts). The assignment of errors, and the argument made in support of it, proceed so entirely upon what we conceive to be a misconception of the nature and character of the contract, that we should first state our determination as to its true nature, and the facts which lead us to that conclusion. The first appearance in the proof of any circumstance relating to the option for which the commissions are claimed is in the testimony of the plaintiff in error himself, when he states that, at some time during the initial conversation between him and the Freibergs about Walker's whisky, he "suggested that the Freibergs should take an option on succeeding crops." It is conceded. that, in the dealings between the principal and his broker, nothing whatever had been said between them about any option for future crops, and that, even after Walker came to Cincinnati to carry out the negotiations with the Freibergs, nothing was said between them about such an option, or between Walker and the Freibergs, during all of the protracted conversations about the price