35 F. 113 -

TOMES V. BARNEY.

113

ing ir. the aggregate to 12 months, in manner, form, etc.; concluding to the country. Upon the trial the defendant, Barney, testified as follows: That he was collector of customs at the port of New York, from April 8, 1861, to September 8, 1864. That for the past 50 years he had always had an office in the city of New York, and had always residf'd in the state of New York, at Kingsbridge, in the county of Westchester, (now part of New York city,) with the exception of from 1842 to 1852, when he resided ill Brooklyn, in that state. During this whole time he never resided or voted elsewhere. That at each ejection from 1861 to 1870, (i. from before the accruing until after the commencement of this action,) he voted at Kingsbridge, with the exception of the November election in 1868, (i. after the commencement of this action,) when he was in Iowa on a matter of business, probably two or three weeks; though if there was any other election in 1868 than the November election he voted at Kingsbridge. That at different times from April 10, 1861, to April 10, 1868, (the seven yearEl prior to the commencementof this he was temporadly absent from the state of New York (but in the United States) on private business or for pleasure; never for any other purpose, and never with the intention of remaining away. That these absences consistedrI).afnly of brief visits to Washington, D. C., the first four years, (i. during his term of office as said collector,) and of visits to the states .of Iowa and Wisconsin, and to the south, during the. following years. Though frequent, they were for short periods, varying from one day to perhaps forty or more days; probably not more than two or three as long as forty days; not more than one over fifty days, and this, the defendant thought, was less than ninety days. These absences, he estimated, averaged two months a year from April 10, 1861, to April 10, 1868. It did not appear that at any time ans attempt was made to commence this action by placing the summons therein in the hands of the sheriff or other officer, as provided by section 99 of the New York Code, as amended by section 5 of the act of April 25, 1867, (2 Laws N. Y. 1867, p. 1921.) It did, however, appeal' from the evidence of the plaintiffs' witnesses that a summons was made out in 1866 for the purpose of commencing this action, and placed for service in the hands of one of the plaintiffs' attorney's clerks, neither of whom was ever a sheriff or other officer of the county of New York or of Westchester; that it was subsequently torn up without being served; and that a new summons was made out, dated January 2, 1868, which was served as aforesaid upon the defendant on February 3, 1868. At the close of the trial, the defendant the court to direct the jury to find in his favor as to the items of fees exacted prior to February 3, 1862, on the grounds that, under the pleadings and proof in the case, the same were barred by the New York statute of limitations. Stephen, A. Walker, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for the motion. The following laws should be considered in determining the question in.

e.,

e.,

e.,

volvedin this motion: Section 34, Act Sept. 24,1789: 1 U. S. St. at Large, (Section 721, Rev. St.,) which provides that" the laws of the several states,

v.35F.no.2-8

114

FEDERAL REPORTltR.

except where the constitution, treaties, or statutes' ofthe United states otherwise require or prOVide, shall be regarded as rules of decisions in trials at common law. in the courts of "the United :states, in cases where they apply;" Section 91, Code Proc. N. Y., adopted April 12, 1848, as amended April 11, 1849, (Chapter 438, Laws N. Y. 1l:!49, p. 6;)5,) and in force until um, which provided, a.s a statute of limitations, that "an action upon a contract, obligation, or liability, express or implied," (except a jUdgment or decree of a court, and a sealed instrument,) should be commenced within six years after the had accrued; the law13 of New York, from 1801 to the present time, which have been enacted to sU.13p end the running of.the statute of limitations: the act of April 8, 1801, 5, (1 Vanness & W. N. Y. Laws, Rev. 1813, p. 186;) R. S., N. Y. 1828, S 27, art. 2, c. 4, pt. 3, (see volume 2,p. 297, 1st Ed. 1829;) Code Proc. N. 'Y. adopted April 12, 1848, (see Laws N. Y. 184l:!, p. 514, § 80;) the act of April 11, 1849, amending Code Proc. N. Y., adopted April 12, 1848, (see Laws N. Y. 1849, p. 637, § 100:) and Code Proc. N. Y."asamended July 10,1851, § 100, (see Laws N. Y.1851, p.882,) covering t)leaction at bar, which provided that "if. when the cause of actioQ, shall accrue against any person, he shall be out of the'state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence sh!1ll not be deemed or taken as any part oftha time limited for the commencement of such action;" Code Proc. N; Y., as amended April 25,1867, § 100. (see 2 Laws N. Y. 1867, p.1921,) whicb provided: l'If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited, after the return of such person into this state, and if, after such caulle of action shall have accrued, such person shall depart from and reside out of this state, or remain continllously absent therefrom, for the space of one year or more, the time of his absenceshall.not be deemed or taken as any part of the time limited for the comlDencement of such action;" (and such is the law unless designation is made by aresident of a person upon whom a summons may be served during his absence. See Code CivilProc. N. Y. §§ 401.430,432;) Section 99, Code Proc.N. Y., adopted April 12, 1848, and as amended JUly. 10, 1851, (Laws N. Y.1851, p. 881 ;)and section 5 of the act of (2 Laws N. Y,1867. p.1921,) which prOVided that an action ,may be deemed to be commenced so.as to save the running of the statute ot limitations, provided the summons be delivered to the sheriff with the intent ,that it should be actually served. . . Under section 5 of the act of April 8, 1801, it has been repeatedly settled that if the debtor is in this state at the time the action accmes against him, qr comes here subsequently, so that the statute of limitations once beginsto I'un against the demand, it. conUnues to run notwithstanding he departs from the state within six years; anq that no subsequent disability stops it. Didier v. Davison, 2 Barb. Ch. 486. 'Under the act of April 11,1849, in case a cause of action accrued against a person while in this state, a simple departure was sufficient to suspend the· r'un'ning of the statute of limitations. 1 Whitt. Pro (Ed. 1865,) 239. Mere absences of such person from the state for business or pleasure, without .the intention of remaining away, and respectively followed by a return to the state as his residence, though aggregating twelve months during seven successive years, never in the state of New .York constituted the departure from and residence out of the state reqUired by any of these acts. Ford v. Babcock, 2 Sandf. 518; Wheeler v. Webster, 1 E. D. Smith. 1; Hickok v. Bliss, 34 Barb.321; stone V. Flowe1', 47 N. Y. 566,569; Belknap v. Sickles, 7 Daly, 249. 252. Under the act of 1867, as well as under the present act. (section 401. Code Civil PIOC.,) mere absence of such per-

TOMES V.

BARNEY.

115

son from the state, to suspend the running of Lhe statute, must be continuous absence therefrom for ,the space of one year or, more. Belknap v. Sickles, supra; U(lner,v. Butterfield, 49 N. Y. Super. Ct. 515. ,Further, the New York legislature has, in effect, declared that mere absence from the state did not constitute SUCh departure and residence under the act of 1851, which applies to this action, by the passage, while that act was in force, and on May 4, 1864, of an act concerning persons in the military and naval service of the United States, (chapter 578, Laws N. Y. 1864, p.1332.) In a case involving the construction of a state statute, federal courts are bound to follow the judgment of the highest judicial authority of the state, unless the same conflict with the constitution·of the United States, etc. McClung v. Silliman, 3 Pet. 270; Sumner v. Hicks, 2 Black, 532; Leffingwell v. Warren, ld. 599; Davie v. Briggs, 97 U. S. 628; Andreae v. Redfield, 98 U. S. 225. NOBucb conflict exists in the decision of the New York court of appeals in stone v. Flower, supra. A. W. Griuwold and A. W. Gmwold, Jr., in opposition, cited: Cole v. Jessup, 10 N. Y.96;Berrien v. W'l'ight,.26 Barb. 208; In r6 Thompson, 1 Wend. 43; Harnden v. Palmer, 2 E. D. Smith, 172: (Jans v. Frank, 36 Bar,b. 320; Cutler v. Wright, 22 N. Y. 477; Bennett v. Cook, 43 N. Y. 537: the tlecision of Referee PIERREPONT in the unreported case of Dale v. Barney, which was affirmed by JUdge BLATCHFORD and followed by Judge WALLAOE in Hennequln v. Bamey, 24 Fed. Rep. 580, and by Judge WHEEr.ER in the unreported of Oelrichs v. Bamey, and by JUdge SHIPMAN in the unreported case of Gateaux v. Barney. LACOMBE, J., (orally.) It seems to me that the principles oflaw governing decisions in federal courts in the construction of the statutes of a state render the determination of this case easy. It is well settled that these,CQurts, in construing the statute law of the several states, will follow the latest decision of the court of last resort in the particular state whose statute is before the court for construction. That doctrine was settled early in the history of the supreme court, and seems to control this case here. Judge SHIPMAN, Judge WHEELER, and Judge WALI,ACE, whose decisions are referred to by plaintiffs, have apparently alldeclint::d to examine the question anew, but have based their decision upon the decision of Judge BLATCHFORD, The decision of Judge BLATCHFORD is based upon the report ofa referee. Judge BLATCHFORD has written nothing; but the report of the referee contains an elaborate discussion of decisions. perhaps conflicting, of the lower courts of the state. When the case was before Judge BLATCHFORD, if his attention were simply called to the fact, as was the referee's, that there was a dispute between the different courts in the state upon this question, (and we must assume that it was so called,) he of course was entitled to examine such question , as a new one, and to decide it accordingly. But if, sub8equent to the enunciation of that decision, the court of last resort in the state had construed the statute the other way, I have not the slightest doubt that, upon that fact being brought to Judge BLATCHFORD'S attention in a subsequent case, he would at once have reversed his former ruling. The situation is precisely the same whether the decision of the state court of last resort is made at a later period, or whether, at a later period, it is for the first time called tQ the attention of the federal court. Sitting on the triQJ. of

116

FEDERAL REl'ORTEIt.

this case precisely as Judge BLATCHFORD would sit if he were again disposing of the question which he disposed of in Dale v. Barney, I feel sure that, under the well-settled rules of construction established by the supreme court, I only decide as Judge BLATCHFORD would decide, in holding that in dew of the case of Stone v. FlowerJ 47 N. Y. 566, a case not before the referee, and presumably not before Judge BLATCHFORD, and which is later than the state decisions before cited, this statute is to he construAd, in the federal courts as in the state courts, as not covering absences which are not accompanied by residence abroad. I will therefore grant the,defendant's motion as to the items exacted prior to February 3, 1862,

HARRIS f1.

N. 0.& T. R.,Co.

(Oircuit Oourt, W. D. Tennessee. blarcllS1,1888.)

1.

ARREST-WITHOUT WARRANT-FUGITIVE FROM JUSTICE.

A private detective, in pursuit of a fug-itive from justice from another state, cannot arrest without a warrant by merely procuring a policeman to make the arrest. Policemen may sometimes proceed temporarily without a warrant. but the circumstances and exigencies of the particular case must justify such departure from the lawful and regular methods of procedure. ' '

,

2.

REI,EASE AND DISCHARGE-DuRESS.

One arrested illegally cannot be bound by any release of damages procured while he was under arrest or the continuing influence of his captors, unless the circumstances show that it was fairly and voluntarily obtained, and the facts of this case do not answer that rule.
MASTER AND SERVANT-MASTER'S LIABILITY FOR SERVANT'S TORTS.

8.

The master is liable if the agent, while engaged in his master's service of pursuing a criminal, arrest illegally another man, supposing him to be the gitive, although acting in disobedience of orders in further pursuit. 1 ,

4..

TRIAL-INSTRUCTIONs-DmECTING VERDICT.

The court should never usurp the function of the jury by directing a dict when there is a dispute about the facts; but this dispute must arise on the proof. and grow out of conflicting testimony. fair question as to the credo ibility of witnesses, variety or diversity of inferences and implications of fact

1 A master is, responsible for the wrongful act of his servant within the general scope of his authority, although he did not authorize the partiCUlar act, Heenrich v. Car Co.; 20 Fed. Rep.1(l,0;, ;Railroad Co. v. Conway, (Colo.) 5 Pac. Rep. 142; Railroad Co.v. Rice, (Kan.) 16 Pac. Rep, 817; or if it was against his express orders, Railway Co. v. Kirk, (Ind.) 1 N. E. Rep, 849, and note; or in disregard of them, Cleveland v. Newsom, (Mich.) 1 N. W.' Rep. 222; Driscoll v. Carlin, (N. J) 11 Atl. Rep.4il2. He is liable f()rthetres; pass of his servant, Walker v, Johnson, (MlDn.) 9 N. W. Rep, 632; State v, Smith, (Me.) 4 Atl. Rep. 412; but not for his willful trespass,Wood v, Railway Co., (Mich,)'18 N', W. Rep. 124; Curtis v. Dinneen, (Dak.) SO N. W, Rep. 153; nor for his wanton and malicious acts, Railroad Co. v, Brannen, (Pa,) 2 Atl. Rep, 429; unless he authorized or subsequently ratifies them, Railroad Co.v. Moore, (Tex.) 6 S. W. Rep, 631. A commori carrier is liable in damages for a wanton and malicious assault by one of its servants, on a passenger. Williams v. PUllman's Car Co" (La.) 4 South. Rep. 85; Railway Co. v. (Ind.)9N. E. Murphy v. Railroad Co., 23 Fed. Rep, 637j Railroad Co. v. Wooa, (Ind.) 14 N. E. Rep. 572. As to what acts of a servant are within the scope of his authority, so as to render his master liable for injuries resulting therefrom....see Com. v. Briant" (Mass.) 8 N. E. Rep 839, and note; Pike v. Brittan,' (Cal.) 11 Pac. l:\.6p. and notej what are not, see Ohve v. Marble Co., (N. Y.) 8 N. E. nep.552, and note. AS to the crlminalliability of the master for the illegal act of the 'servant, see Com; v. Briant, (Mails.) 8 N. E. Rep. 3311, and note; Com. v. Stevenson, Id. 841., ,