State of Missouri v. Gatzweiler.

justification, but which were thought to be necessary and proper to maintain the national supremacy. They therefore intended to provide for those cases. And while they did not pretend to give protection to lawless violence, committed by persons without orders from any competent authority or any recognized military officers, they did intend to shield from prosecution all who could show for their acts the authorization of a military officer, acting under the commander-in-chief of the army of the United States. The wisdom of this ordinance has lost none of its force by the lapse of time. As a provision for the repose and quiet of the community it could nowhere be more useful than in Missouri."

I think, therefore, that the defendant stands in an attitude to avail himself of the benefits of the constitutional clause, provided the order did not impair the obligation of a contract. On this question my mind is decidedly in favor of the plaintiff.

The defendant's bond was conditioned to discharge the duties of the office of sheriff according to law. It is well established that a public officer, who is required to give bond for the performance of his duties, and the proper payment of moneys that may come into his hands as such officer, is not a mere bailee of the money, exonerated by the exercise of ordinary care and diligence. His liability is fixed by his bond, and no parting with the money, or loss either by theft, robbery or otherwise, will release him from his obligation to make payment. United States v. Prescott, 3 How. 578; Muzzy v. Shattuck, 1 Denio, 233; Hancock v. Hazzard, 12 Cush. 112; Com monwealth v. Comly, 3 Penn. St. 372; State v. Harper, 6 Ohio, 607; Halbert v. The State, 22 Ind. 125. The duty of the sheriff is to pay over money coming into his hands to those legally entitled thereto, and his bond is the contract that he will not fail upon any account to do this act.

In my opinion this is a contract within the meaning of the constitution of the United States, which the States are prohibited to impair, and any law or ordinance of a State which seeks to release the officer from his obligation should be treated as a nullity.

This brings us to the last question in the case, and that is, the statute of limitations passed by congress (12 Stat. at Large, 757), and which is pleaded as a defense. The seventh section of the act provides "that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed or act omitted to be done at any time

State of Missouri v. Gatzweiler.

during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass or wrong may have been done or committed, or act may have been omitted to be done.

The objection made to this plea is, that it is inapplicable to a case originated and tried in a State court, and that congress has no power to pass a statute of limitations binding on the State courts.

In the case of Mayor of Nashville v. Cooper, 6 Wall. 247, the question was fully considered, and it was fully established that congress had the constitutional right to provide for the trial of this class of cases in the national courts. Judge MILLER, in speaking on this point in Clark v. Dick, supra, declares that if congress has the right to determine in what courts such questions must be tried, it must necessarily have the power to regulate the remedy, including the right to prescribe the time within which the suit may be brought. He further says: "Nor is the objection sound that in such cases the action, if tried in the State courts, would be subject to the law of limitations prescribed by the States, while in the federal court a different rule would prevail. For the act of congress, by its terms, applies to all cases of the character described in the statute, and we see no reason to limit its application to the federal courts. If congress has a right to legislate on this subject, it has the right to make that legislation the law of all courts into which such a case may come, and we think they have done this in the statute under consideration."

But the position is further assumed that even admitting that the statute applies, still, under our law, it does not begin to run till demand made; and the record shows that no demand was made for the money by judge till the latter part of the year 1866, or the first of 1867, and this suit was instituted on the 3d day of April, 1867. When the statute of limitations begins to run, so as to bar an action on the bond of the sheriff for failing to account for moneys collected by him, was considered by this court in the recent case of The State, to use of Winburn et al. v. Minor et al., 44 Mo. 373. It was there held that the cause of action did not accrue so as to put in motion the statute of limitations until there had been either a demand of payment by the parties in interest, or until the officer had made a proper return to the court ordering the sale of the property, and

State of Missouri v. Gatzweiler.

showing the amount of money realized therefrom. In examining the authorities it was remarked: "In Massachusetts it is held that the cause of action does not accrue till demand of payment is made upon him (the sheriff), and consequently that the statute of limitations only then commences running." Weston v. Ames, 10 Metc. 244. So also in Louisiana and Connecticut, and various otner States. Fuqua, Adm'r v. Young, 14 La. An. 216; Church v. Clark, 1 Root, 303; U. S. Dig. 644, § 209. But in Georgia it is held that the action accrues, and that the statute begins to run in favor of the sheriff from the time the money was received by him on the execution. Thompson v. Central Bank, 9 Ga. 413; Angell on Liens, § 142 in note; while in Alabama the holding is that the cause of action accrues and the running of the statute commences, from the time the fact of the collection is made to appear by the return of the execution satisfied. Governor v. Stonum, 11 Ala. 679. Much difficulty has been experienced in determining the time of the occurring of the action with reference to the defense of the statute of limitations. The Massachusetts rule may place the subject too much in the control of the creditor, and lead to a frittering away of the protection designed by the statute to be thrown around officers and their sureties, while the Georgia rule goes as far in the opposite direction. The Alabama rule appears to us to be the better one, and as the question is open for adjustment, we are inclined to adopt that rule here.

Now the return in this case showing the sale, the amount of money realized, and the disposition that was made thereof by the officer, was made on the 24th day of September, 1864. From that time the statute commenced running, and as more than two years-the limitation prescribed – was suffered to elapse before this suit was instituted, we think the statute constitutes an effectual bar to its prosecution.

The counsel have referred us to Pope v. Hays, 1 Mo. 450, to show that a demand was necessary before the statute would commence running. But that case is not in point. It merely shows that a strict demand is necessary before the plaintiffs will be entitled to the damages given by the statute for detaining the money. The same is now the statute law of this State (Wagn. Stat. 614, § 65), but it has no bearing upon the question as to when the limitation. commences as to the principal amount. Wherefore, it is the opinion of the court that the judgment be reversed; the other judges concurring. Judgment reversed.

Moss v. Pacific Railroad.

Moss, plaintiff in error, v. PACIFIC RAILROAD.

(49 Mo. 167.)

Master and servant- · Injury to servant by fellow-servant — Pleading.

A master is bound to use due care and diligence in the selection and employ ment of his agents and servants, and for want of such care and diligence he is responsible to all other servants for any damage that may thence arise. A minor son of plaintiff was killed while in defendant's employ, and she brought action to recover damages. Held, that it was not sufficient for plaintiff to allege a failure merely, on defendant's part, to select competent servants, but she should have charged a want of care and diligence in the selection of defendant's servants; also, that the mere allegation that defend ant allowed its employees to neglect their duties, and to suffer and cause deceased to be injured, was not sufficient to charge liability on defendant. (See note, p. 128.)

ACTION against a railroad company. The opinion states the case. H. Flanagan and G. T. White, for plaintiff in error.

J. N. Litton, for defendant in error.

BLISS, J. A minor son of the plaintiff was killed while in defend. ant's employ, and she brings this action under the act concerning damages, etc. (Gen. Stat. 1865, ch. 147; Wagn. Stat. 519.) The petition contains three counts, but it is unnecessary to consider the first, inasmuch as a motion to make it more definite was affirmed by consent, and the plaintiff, instead of amending, took a voluntary nonsuit as to this count.

The second count alleges, in substance, that it was defendant's duty to employ careful and skillful servants in running its trains; that defendant failed to do this, by reason of which, while aiding in running the train, the plaintiff's minor son, in defendant's employ, was wounded and disabled, and for many hours was exposed to the cold upon the road, through the incompetence and want of care of such servants, and not by his own negligence, from which he died.

The third count substantially charges that plaintiff's minor son oeing in the employ of defendant upon a freight train, as one of its servants, was so injured by falling from the train and exposure to the cold as to cause death; that this was caused by defendant's

Moss v. Pacific Railroad.

allowing its employees to neglect their duties, and to suffer and cause deceased to be thrown from the train, by which he was injured and suffered to remain in the cold a long time, when he could have been removed, and not by his own fault, etc.

No objection was made to the statement of the same cause of action in different counts, but a demurrer was sustained as to the second and third, and judgment entered upon the demurrer, to reverse which the plaintiff has sued out his writ of error.

The pleader has attempted to base these counts upon the third section of the act, which provides that a cause of action which arises from personal injuries shall survive, notwithstanding the death of the injured party, if it be caused by the injury. We have then only to inquire whether these counts would show a liability to the plaintiff's son at common law, for the pleader does not attempt to bring the defendant within the liability created by the second section of the statute.

That the master is not liable to one of his own servants for the negligence of other servants is conceded. But the pleader attempt3, in the second count, to charge negligence in their employment. Had he done so, the pleading would have been good, for the master is under obligation to use due care and diligence in the selection and employment of his agents and servants, and for want of such care, is responsible to all other servants for any damage that may thence arise. Harper v. Ind. & St. Louis Railroad Co., 47 Mo. 567. In such case, the responsibility is not for the negligence merely of his servants, but for his own. This count, however, fails to make any such charge. The plaintiff alleges that it was defendant's duty to employ careful and skillful servants, etc., but that it failed to do so, but he does not charge any want of care and diligence in the performance of this duty.

vants.

Railroad companies and other carriers of passengers, as to such passengers, are held to insure the care and diligence of their serAs between them and the carrier, there is a contract which is violated by any want of care on the part of its employees, and a railroad company is just as responsible, if its officers have taken extraordinary pains in their selection, as though wholly reckless in that regard. But, as to its servants, there is no such contract, and hence there is no guaranty of their care and diligence toward cach other. The company is only liable, as all are liable, for its own want of care.