held liable, is within or beyond the scope of his employment; if the latter, the master is, of course, in no sense liable. No dogmatic rule can be laid down which will so ve every statement of facts that may arise, but each case rests upon its own facts, and is decisive of nothing beyond an exactly similar state of facts. In the recent case of Wabash Railroad Co. v. Linton (Ind.), 60 N. E. Rep. 313, the question arose in an interesting form. It was an action against a railroad company for injury to a horse. The complaint alleged that, while the horse was on the railroad track, defendant's servants, riding on a hand car, willfully and intentionally frightened the horse by making loud noises, and willfully and intentionally drove him along the track between the rails at great speed, by shouting and rapidly following him with the car, to a culvert crossing the track, into which he fell, and was injured. Held, that the complaint did not state a cause of action against the railroad company, since the willful acts of its servants complained of were not shown to have been instigated by or committed for the defendant, or in the line of the servant's duty. It will be observed from the reading of the complaint that the appellee has at no place charged the appellant with the commission of any of the acts for which he seeks to hold appellant liable. The charge in either instance is that the act or acts were done by the agents and employees of the appellant, and it does not appear at any place in the complaint that such agents or employees in the commission of such acts were acting in the line of their employment, or that they were doing what they were hired to do, or were acting under the direction of the appellant. It seems to be well settled that neither a willful and tortious nor negligent act resulting in injury, if done by an agent acting without the course of his employment, can be the subject of recovery against the principal. Railway Co. v. Kendall, 138 Ind. 314, 36 N. E. Rep. 415; Railway Co. v. Palmer, 13 Ind. App. 162, 39 N. E. Rep. 881, 41 N. E. Rep. 400; Helfrich v. Williams, 84 Ind. 553; Railway Co. v. Savage, 110 Ind. 156, 9 N. E. Rep. 85; Railway Co. v. Wood. 113 Ind. 544, 14 N. E. Rep. 572. 16 N. E. Rep. 197; Wood, Mast. & S. § 205; Railway Co. v. Peterson, 144 Ind. 214, 42 N. E. Rep. 480, 43 N. E. Rep. 1; Brown v. Engineering Co., 166 Mass. 75, 43 N. E. Rep. 1118, 32 L. R. A. 605.

CORPORATIONS-LIMITATION ON THE RIGHT TO AMEND BY-LAWS.-An interesting point of law is discussed in the recent case of Wooten v.

the association on the basis of the payment by him of 84 monthly installments of dues and interest. It was held that the vested rights of the stockholder, under his contract of loan, to avail himself of this privilege, could not be defeated by any subsequent change in the internal law of the association whether effected by an alteration in its by-laws or through an amendment to its charter. The opinion of the court is an exceedingly valuable annotation on this very close question. The court said:

"Unquestionably, it is within the power of a corporation to pass such by-laws as are no. inconsistent with its charter and the purposes for which it was created; and, as an incident to this power, a corporation may be said to have the right to alter, amend, or repeal its by-laws from time to time as the exigencies of the occasion may render necessary and proper. But even an express grant of authority thus to effect changes in its by-laws does not carry with it any right to exercise such authority in violation of the fundamental law of the land. It is to be remembered that our federal constitution in terms provides that no state shall have power to pass any law impairing the obligation of contracts' (Const. art. 1, § 10); and it follows, of course, that a statute which provides generally that a corporation shall have authority to alter its by-laws from time to time is not to be understood as contemplating that the authority thus conferred may be exercised in such manner as injuriously to affect the vested rights of any person between whom and the corporation there exists a contractual relation. To otherwise construe such a statute would be to necessarily pronounce it unconstitutional, and therefore wholly inoperative. Clearly, a corporation cannot assume to exercise any right which it was not within the power of its creator to bestow upon it. So it is that 'a bylaw cannot disturb a vested right any more than a statute; indeed, they are, in this respect, on the same plane. And, although a corporation has the power of amending its by-laws, yet, inasmuch as they enter into and form a part of the contracts it makes with its members, they cannot, under the guise of amending its by-laws, impair the obligation of such contracts. Thus, a resolution of the board of directors, or an amendment to the constitution of a building association, which modifies the rights of borrowing members, is ultra vires.' See Thornt. & Bl. Bldg. & Loan Assns., § 131, and¡cases cited. 'If a bylaw permit withdrawals when a member joins a

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society, he cannot be deprived of that privilege

We find in the second edition of 4 Am. & Eng. Enc. Law, p. 1047, the following statement: 'As to the question whether a by-law granting a right of withdrawal can be altered so as to take away or modify that right, the courts are at variance. It has been held, on the one hand, that such a by-law creates a vested right, and that any attempt to change it will be ineffectual. On the other hand, it has been held that an association having power to change its by-laws may make the alteration in question, as the member holds his membership rights subject to having them modified by the body of which he forms a part.' It is worthy of note that in support of the doctrine that such a by-law creates a vested right' American cases are cited, while English decisions alone are referred to as authority for the counter proposition. In the case of Pepe v. Society (1893), 2 Ch. Div. 311, it appeared that: By one of the rules of the society, a member, on giving one month's notice in writing, might withdraw his shares. The rules also provided that they might be altered by a majority of threefourths of the members. The plaintiff gave the requisite notice of withdrawal; but after such notice, and before he was repaid, the above rule was altered by giving the directors power to pay off in priority members holding less than £50 in the society.' Under these facts the court reached the somewhat remarkable conclusion that, although the plaintiff had, at the date of his notice of withdrawal, under the rule then in force, a vested right to be paid the amount due on his shares, he, being still a member of the society, was liable to have this right devested by a subsequent alteration in the rule duly made, and that he was therefore bound by the altered rule.' This decision, and others of like import, seem to have been predicated upon the idea that under the Building Societies Act of 1874' 37 & 38 Vict. c. 42, an association chartered thereunder had authority to change its by-laws at any time, even after its members had acquired vested rights in the premises. See Davies v. Society, 61 Law T. (N. S.) 680; Bradbury v. Wild (1893) 1 Ch. Div. 377; Barnard v. Tomson (1894), 1 Ch. Div. 374; Kemp v. Wright (1894), 2 Ch. Div. 462; Botten v. Society (1895), 2 Ch. Div. 441. Tested by our fundamental law, a statute of that character would be clearly unconstitutional. Fisher v. Patton, 134 Mo. 32, 32, 33 S. W. Rep. 451, 34 S. W. Rep. 1096. It is undoubtedly true that a corporation may, if it so desires, expressly reserve to itself the right to prescribe from time to time how its business shall be conducted; and one sub

Knight, 117 Ind. 489, 20 N. E. Rep. 479, 3 L. R. A. 409; Supreme Commandery v. Ainsworth, 71 Ala. 437; Bearden v. Association (Tenn. Ch. App.), 49 S. W. Rep. 64. That is to say, an agreement of this nature will be effectual, provided, of course, it does not militate with some special enactment on the subject; such, for example, as a statute which, in effect, declares, as matter of public policy, that the right of a member of a mutual association to withdraw therefrom upon specified terms and conditions is one which cannot legally be waived. 7 Thomp. Corp. § 8729; Latimer v. Investment Co. (C. C.), 81 Fed. Rep. 776."

After discussing these general principles applicable to all corporations, the court proceeds to prove their special application to building and loan associations: "It is to be borne in mind that one of the distinguishing characteristics of a mutual building and loan association, as compared with private corporations in general, is that in duly transacting its legitimate business, such an association ordinarily deals exclusively with its members. If, after joining an association of this kind under a contract of membership such as that above indicated, a shareholder desires to procure a loan, the terms and conditions upon which the same shall be made to him must necessarily become the subject-matter of another and distinct contract between him and the association. As a general rule, it is agreed that the loan be made in accordance with then existing by-laws prescribing the terms upon which advances may be made to members upon shares of stock held by them. Accordingly such by-laws are to be regarded as setting forth the terms of this special contract (Barbot v. Association, 100 Ga. 681, 694, 695, 28 S. E. Rep. 498), a contract which the association would have no right to repudiate at will, or, by a change in its by-laws, subsequently made, to impair or totally destroy. Becker v. Insurance Co., 48 Mich. 610, 12 N. W. Rep. 874. And, if provision be made in the bylaws then of force that the borrower shall be permitted to thereafter withdraw from the association upon compliance with certain specified conditions respecting the repayment of the loan made to him, it is clear that the privilege thus accorded to him by the express terms of his contract immediately becomes one of which he has a vested right to avail himself at his election. We do not mean to say the association would not be at liberty to stipulate with the borrower, as a condition precedent to making him a loan, that, as to the privilege of withdrawal, or as to like

the effect it was intended to have. This doctrine is in accord with good law, good morals, and common justice."

REMARKS OF COUNSEL AS REVER

SIBLE ERROR IN CIVIL CASES.

Introductory.-Success in the trial of a cause is not always measured by the size of the verdict. Frequently counsel whose remarks to the jury have been within the limits of proper argument have greater reason to congratulate their clients and themselves than have they who obtained larger verdicts at the expense of reversible error in speech or conduct. Impropriety of counsel's remarks is one of the common points on which courts of review are asked to reverse judgments. Term after term the question arises, in numerous instances a single volume of reports containing several decisions dealing more or less extensively with the subject. Lawyers and trial judges have been instructed, lectured, reprimanded and rebuked by the appellate court justices who have at times written patiently in this connection on professional ethics, constitutional privileges, Magna Cartar rights and the benefits of jury trials, and again at times disposed of the case with a terse and stern censure. After all these years of admonition and instruction the question still regularly comes to the front. One reason for this is that exact and definite rules cannot be framed relative to trial arguments. The important and valuable privileges of proper argument cannot legally be denied counsel or his clients, and on the other hand, an abuse of the privileges denies the same or equal rights to others. Many factors, like the character of the suit, the conduct of counsel and witnesses on both sides, and the rulings of the trial court, enter into each case, and must be considered with all its other circumstances, and while, therefore, so long as law suits, les vers and judges differ, no definite

remarks in argument are objectionable and improper; statements of facts pertinent to the issue which have not been legally elicited upon the trial of the cause; assumptions arguendo that certain facts are in evidence in the case when they are not; comments upon papers that have not been put in evidence, upon the facts of newspaper articles, upon excluded testimony, upon former trial or trials of the case, upon the failure of a certain party to testify or to call a certain witness, and upon facts within the knowledge of counsel, and not sworn to in the case; appeals to sympathy or prejudice foreign to the case, like local or religious prejudice, or prejudice against corporations or trusts; reflections upon the character of parties or witnesses and their conduct and credibility when the same are not in issue, and invective and abuse not justified by the evidence.1 This statement is of necessity not invariably applicable in each particular to every case. What is proper argument in one case might not be in another. For instance, counsel could certainly with propriety use language in a suit for malicious prosecution or libel that would not be proper in an assumpsit suit. It follows that whether or not counsels' remarks are ground for reversal is to be determined ordinarily not so much from the language used as from its occasion, the attendant proceedings and the effect. The controlling considerations in recent cases decided by courts of review are therefore not so much the mere words used, except in flagrant and persistent abuses of privileges, as the conduct of opposing counsel relative to

1 Thompson on Trials, sec. 955, et seq.; Weeks on Attorneys (2d Ed.), p. 248; Hilliard on New Trials (2d Ed.), p. 225; 2 Ency. of Plead. & Prac., p. 741, et seq.; Tucker v. Henniker, 41 N. H. 317; citing Mitchum v. State, 11 Ga. 634; Berry v. State, 10 Ga. 522; Hodgson v. Scarlet, 1 Holt, N. P. C. 621; Cutler v. Dixon, 4 Coke, 146, note a; Waterer v. Freeman, Hobart, 266; Weston v. Dobriet, Cro. Jac. 432; Astley v. Cooper, 2 Burr. 807, 3 Black, Com. 29, 1 Saund. 130; Elliott v. Luengene, 44 N. Y. Supp. 775, and cases cited. Brown v. Swineford. 44 Wis. 292. citing among

supposed himself to have been influenced by the remarks, and has in many respects a better opportunity than the appellate justices to determine what harm, if any, the remarks caused.13 His decision in this regard should be obtained at the trial term. Upon the making of improper remarks, if they are heard by the trial judge, it is his duty of his own motion to interfere, 15 and if he does not it has been held that the omission is tantamount to a ruling, that the remarks were warranted, to which an exception lies without a request for such ruling." The better doctrine is that objecting counsel must ask for the ruling desired. If, however, whether of its own motion or in response to the request or motion of objecting counsel, the trial court takes immediate and decided action, stopping the objectionable remarks, reprimanding the offending counsel and directing the jury to disregard the remarks, there will not ordinarily be cause for reversal, especially if the remarks are withdrawn, as it will be presumed that the jury has followed the court's directions, and there is no presumption of injury in such case.17 Instruction or direction of the court that the jury disregard counsels' improper remarks, is like the case of the introduction on a trial of objectionable and damaging evidence which the court subsequently strikes out and directs the jury to disregard. "The vice is eliminated and theoretically at

13 Brown v. Perez, 89 Tex. 286; Erb v. Ins. Co., 98 Iowa, 606; Lawlor v. Kemper, 20 Mont. 13.

14 Bullard v. B. & M. R. Co., 64 N. H. 27, citing Burnham v. Butler, 58 N. H. 568; Cole v. Boardman, 63 N. H. 583.

15 Brown v. Swineford, 44 Wis. 282; Houston, etc. R. Co. v. White (Tex.), 56 S. W. Rep. 204.

16 Cutler v. Skeels, 69 Vt. 161; Magoon v. B. & M. R. Co., 67 Vt. 195, and cases cited.

17 Yankton v. Douglass, 8 S. Dak. 440; Western, etc. R. R. Co. v. Ledbetter, 99 Ga. 318; Shaler v. Broadway Imp. Co., 47 N. Y. Supp. 815; Riley v. Ry. Co., 68 Mo. App. 652, citing Gidionsen v. R. R., 129 Mo. 403; Ford v. Cheever, 113 Mich. 440; Wenzel v. John. ston. 112 Mich. 243; Murphy v. Gillum, 79 Mo. App. 564; Tyler, etc. Works v. Ryco (Tex.), 55 S. W. Rep. 350; Baxter v. Detroit Ry., 116 Mich. 188; Ruth v. C., etc. Ry. Co., 70 Mo. App. 190; Felix v. Scharnweber, 119 Ill. 448; Phippen v. Bay Cities, etc. R. Co., 110 Mich. 353, citing Maclean v. Scripps, 52 Mich. 214; Warren v. Halley, 107 Mich. 120; People v. Wirth, 108 Mich. 307; Taylor v. Mallory, 96 Va. 18; Wheeler V. Jenison (Mich.), 79 N. W. Rep. 643; Billings v. Ins. Co., 70 Vt. 477; Abbott v. Mobile, 119 Ala. 595; Distilling Co v. Riggs (Ky.), 45 S. W. Rep. 99; Collins Park & B. R. Co. v. Ware, 110 Ga. 307, 37 S. E. Rep. 975.

least the erroneous evidence found no lodgment in the minds of the jury." Neglect on the part of the trial court to interpose and correct counsel or to caution or instruct the jury in the case of a violation of the privileges of argument, is error and reversible error as a rule, and usually where opposing counsel have objected, but it is not always reversible error,19 the decisive consideration being whether or not there was resulting prejudicial error. To overrule a proper objection is error,20 and in response to an objection it is not sufficient for the court to say "these arguments are not evidence" or words to that effect in order to remove prejudice.21 Improper remarks for which there is no excuse should be rebuked with vigor.22 If the trial court is unable to restrain counsel in his abuse of his privileges evidently the proper course is to grant a new trial. 23 While it is error for the trial judge to make remarks indicating his opinion on

18 Chesebrough v. Conover, 140 N. Y. 388; Cole v. Fall Brook Coal Co., 159 N. Y. 59, citing Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 N. Y. 90; Gall v. Gall, 114 N. Y. 121; Blashfield v. E. S. Tel., etc. Co., 147 N. Y. 527; Holmes v. Moffat, 120 N. Y. 159. In I. C. R. R. Co. v. Treat, 179 Ill. 576, a judgment for plaintiff was not reversed notwithstanding an improper offer by his attorney, the trial court properly instructing the jury, but Justices Boggs, Cartwright and Phillips filed a dissenting opinion and cited Scripp v. Reilly, 38 Mich. 10; State v. Moore, 104 N. Car. 744; Birmingham Nat. Bk. v. Bradley, 108 Ala. 205; Leach v. Detroit Elec. Ry. (Mich.), 84 N. W. Rep. 316.

19 Wiiliams v. R. Co., 126 N. Y. 96, citing Mitchum v. State, 11 Ga. 616; Tucker v. Henniker, 41 N. H. 317; Rolfe v. Rumford, 66 Me. 564; Alabama, etc. R. Co. v. Carroll, 28 C. C. A. 207; K. C., etc. R. Co. v. Sokal, 61 Ark. 130, citing L.,etc. R. Co. v. Cavenesse, 48 Ark. 131; Brown v. Swineford, 44 Wis. 282; Holder v. State, 58 Ark. 473; Shular v. State, 105 Ind. 304; Waldron v. Waldron, 156 U. S. 361; Coble v. Coble, 79 Vt. 589, citing State v. Smith, 75 N. Car. 306; Devries v. Haywood, 63 N. Car. 53; Jenkins v. North Carolina Ore Co., 65 N. Car. 563; State v. Williams, 65 N. Car. 505; State v. Underwood, 77 N. Car. 502; Fringle v. Miller, 111 Mich. 663; Missouri, etc. R. Co. v. Woods (Tex. Civ. App.), 25 S. W. Rep. 741; Stone and Gravel Co. v. Gates Iron Works, 124 Ill. 623; Rotan v. Maedgen (Tex. Civ. App.), 59 S. W. Rep. 585.

20 C., etc. Ry. Co. v. Newlin, 74 Ill. App. 648; Rail. road Co. v. Stewart, 54 Ohio St. 667.

21 Hundley v. Chadick, 109 Ala. 575, citing Florence C. & I. Co. v. Field, 104 Ala. 471; Bates v. Morris, 101 Ala. 282; Dollar v. State, 99 Ala. 236; Haynes v. McRea, 101 Ala. 319; Pollock v. Harmon, 94 Ala. 421; Schaidler v. Ry. Co., 102 Wis. 564, 78 N. W. Rep. 732.

22 Masterson v. Ry. Co., 102 Wis. 571, 78 N. W. Rep. 757.

23 Morrill v. Palmer, 68 Vt. 1.