In Kain v. Smith, 3 Ohio Law J. 154, the New York court of appeals held that the master is liable for injuries caused by defects in machinery or apparatus which should have been discovered and remedied by the master mechanic or foreman, when such defects caused the injury complained of. It has been held in Missouri, Marshall v. Schricker, 63 Mo. 309, that "the employer cannot be charged with negligence of one who was merely a foreman over the plaintiff, not engaged in a distinct part of the general service, but in the same work with the plaintiff, and not charged with any executive duties or control over plaintiff which would constitute him the agent of the employer." This is a place where Browne's alter ego doctrine comes into play; but, according to the writer's way of viewing the question, this is not in accord with the current of the decisions and the weight of authority. The weight of authority, at least in the more recent cases, is to the effect that, no matter whether the foreman or superior servant is vested with "executive powers or not, if an inferior employe is required to obey the directions of such superior servant or foreman in charge, he is not a fellow-work man within the rule, and the common master will be liable in damages for any negligence on the part of such superior servant or foreman in charge, which results in injury to an inferior servant or employe; and particularly when such inferior servant or employe is injured while attempting to perform an act directed by such foreman or superior servant. Dowling v. Allen, 74 Mo. 13. It may be laid down as a general rule that a master is liable for all injuries caused by the negligence of a fellow-servant, when such fellow-servant is empowered with superior authority and may direct the inferior. Cowles v. Richmond & D. R. Co., 84 N. C. 309; Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221. Thus, in the case of McCosker v. Long Island R. Co., 10 Reporter, 608, the New York court of appeals held that a yard-master of a railway company, who had charge of the making up of trains, and the power to employ and discharge subordinates, stands in the place of the company pro hac vice. And there are a number of cases to the same effect. See Laning v. New York Cent. R. Co., 49 N. Y. 521; Brickner v. New York Cent. R. Co., Id. 672; Flike v. Boston & A. R. Co., 53 N. Y. 549; Malone v. Hathaway, 64 N. Y. 5; Besel v. New York Cent. & H. R. R. Co., 70 N. Y. 171; Fort v. Whipple, 11 Hun, 586; Eagan v. Tucker, 18 Hun, 347; Mullon v. Steam-ship Co., 78 Pa. St. 26; Railway Co. v. Lewis, 33 Ohio St. 196; Dobbin v. Richmond & D. R. Co., 81 N. C. 446; The Clatsop Chief, 7 Sawy. 274; S. C. 8 Fed. Rep. 163. In the case of The Clatsop Chief it is said: "The deceased was merely the fireman of the Clatsop Chief, and, as such, subject to the orders of the master. He was an inferior servant, injured by the misconduct of a superior one, for which injury there is much authority and more reason for holding the common employer liable." This is manifestly the only just and equitable doctrine. It may be a breaking away from the rigorous and inequitable rules of the English common law, and from the former doctrine in this country; see Buckley v. Gould & C. Min. Co., 14 Fed. Rep. 833, and note, 840; but the tide seems to be now fully set in the direction of justice and humanity, and the poor laborer, who, under the old rule, was left to be driven about by the winds of chance, stranded upon the shoals of misfortune, or wrecked upon the rocks of adversity, will be better protected in his person and his rights in the future. Packet Co. v. McCue, 17 Wall. 513; Railroad Co. v. Fort, Id. 557; Berea Stone Co. v. Kraft, 31 Ohio St. 289; Chicago & N. W. R. Co. v. Moranda, 93 Ill. 302; Devany v. Vulcan Iron Works, 4 Mo. App. 236; Gormly v. Vulcan Iron Works, 61 Mo. 492; The Chandos, 6 Sawy. 548.

(19 Nev. 241)

SUPREME COURT OF NEVADA.

ESTATE OF MCMAHON, Deceased.

Filed December 14, 1885.

EXECUTORS AND ADMINISTRATORS - FINAL ACCOUNT-ORDER TO PAY MONEY TO COUNTY TREASURER FOR HEIRS VOID.

Where an executor files his final account, an order of the court directing him to pay over money in his hands to the county treasurer, to be placed to the credit of the heirs and devisees of the testator, and to be paid to such heirs and devisees on the order of the court after proof of identity, is void.

Appeal from an order of the Sixth judicial district court, Lincoln county, requiring the executor of said estate to pay certain moneys into the county treasury.

T. Coffin, for appellant.

HAWLEY, J. The executor of this estate presented to the district court an "account of his receipts and disbursements as a final account of his executorship," and on the day set for the settlement of the account the report of the executor was confirmed, and the account "allowed and approved" by the court. The portion of the order appealed from reads as follows:

"The said executor is hereby ordered to forthwith pay into the hands of the county treasurer of Lincoln county, state of Nevada, the above-mentioned sum of $1,087.50; said sum to be by said treasurer placed to the credit of the heirs and devisees of said Anthony McMahon, deceased, and to be by said treasurer paid to said heirs or devisees upon the order of this court, after proof of identity as such."

The sum of $1,087.50 was the amount shown to be in the hands of the executor. If the estate was not in a condition to be closed when the final account of the executor was presented, it was the duty of the court to give such reasonable extension of time as might be necessary "for a final settlement of the estate." 1 Comp. Laws, 729. The order requiring the executor to pay the moneys in his hands to the county treasurer was without authority of law, and void. Willson v. Hernandez, 5 Cal. 443. The costs of this appeal should be paid "out of the estate." 1 Comp. Laws, 791. The order appealed from is reversed, and the cause remanded.

Consideration of errors assigned denied because of the statement not being authenticated in the mode prescribed by statute.

Appeal from district court, Second judicial district, Douglas county. 'N. Soderberg, for appellant, Joseph Jones.

A. C. Ellis, for respondent, John Q. Adams.

.

HAWLEY, C. J. The errors assigned by appellant, upon which he relies for a reversal of the judgment and order of the court refusing a new trial, cannot be considered on this appeal, because there was no statement on motion for new trial. That which purports to be a statement has no certificate from the parties or attorneys "that the same had been agreed upon and is correct." It is not accompanied with the certificate of the judge "that the same has been allowed by him and is correct;" nor is there any certificate from the clerk that "no amendments have been filed." Civil Prac. Act, § 197; 1 Comp. Laws, 1258.

We have repeatedly declared that if the statement on motion for a new trial is not authenticated in the mode prescribed by the statute, the motion for new trial should be denied, and the appeal therefrom dismissed. Lockwood v. Marsh, 3 Nev. 138; White v. White, 6 Nev. 20; Solomon v. Fuller, 13 Nev. 276; Simpson v. Ogg, 18 Nev. 28; S. C. 1 Pac. Rep. 827.

No error appears upon the judgment roll. The judgment of the district court is affirmed.

(68 Cal. 109)

SUPREME COURT OF CALIFORNIA.

MORRIS v. LACHMAN.

(No. 8,249.)

Filed November 26, 1885.

1. EXAMINATION OF WITNESSES-LEADING QUESTIONS.

Leading questions put to a party by his counsel may be stricken out or not at the discretion of the trial court.

2. EVIDENCE-HEARSAY TESTIMONY INCOMPETENT.

Testimony of plaintiff relative to what he had heard the defendant had said, is incompetent, and the court should strike it out.

3. SLANDER — ANSWER IN ACTION — AMENDMENT BY WITHDrawing ObjeCTIONABLE CHARGE.

The defendant, in an action of slander, may, by permission of the court, withdraw a charge made in his answer against plaintiff's reputation, and file an amended answer omitting such objectionable matter, and the plaintiff cannot thereafter show that such charge had been preferred on a previous trial, and attempted to be established by evidence.

4. SLANDER-MITIGATION OF DAMAGES-BELIEF IN TRUTH OF CHARGE.

In an action for slander, defendant may, in mitigation of damages, testify as to his belief in the truth of the charge at the time of using the words alleged to be slanderous.

5. WITNESS-REFRESHING MEMORY FROM WRITING.

A witness cannot, on a trial, refresh his memory from an affidavit sworn to by him, unless the affidavit was written by him, or was written under his direction, at the time the facts occurred, or presently thereafter, when the facts were fresh in the mind of the witness, and which he knew correctly stated such facts.

6. ARGUMENTATIVE INSTRUCTIONS ARE ERRONEOUS.

Instructions argumentative in form, and upon the weight of testimony, are erroneous; but an instruction that evidence "tends to prove" a matter is not on the weight of evidence, and is not erroneous.

Commissioners' decision. Department 1. Appeal from superior court, county of Alameda.

Tyler & Tyler, for appellant.

J. P. Phelan, Wm. Irvine, and J. B. Reinstein, for respondent. FOOTE, C. Action to recover damages for slander, in the alleged speaking by Lachman, of and concerning the plaintiff and one Henry Cavendish, the words: "They are horse-thieves and scoundrels." The defendant filed a second amended answer, in which the main ground of defense was stated to be that he believed his horse, harness, and wagon had been stolen, and did not know the persons who had taken them, and that, in using the language complained of, he had no reference to the plaintiff, but spoke it of those unknown persons who he honestly believed had committed a larceny of his property.

By the bill of exceptions as settled, it appears that upon the trial of the cause the evidence showed that one Connolly had sold the property about which the controversy arose (which it was contended Lachman had accused plaintiff of stealing) to the plaintiff, and had given her a bill of sale therefor; that plaintiff had allowed Connolly to use the horse and wagon, and that he subsequently sold them to the defendant, (then in New York,) delivering them to Lachman's son, who

was in charge of his father's business here while the latter was absent; that afterwards, and during defendant's absence in New York, plaintiff found the horse and wagon on the street in San Francisco, and took them to Oakland, without notifying defendant or his son. Upon his return to San Francisco the defendant went to Oakland in search of the property, at which time and place he was alleged to have used the language set out in the complaint. Judgment was rendered for the defendant, and the plaintiff's motion for a new trial denied, and she appealed.

At the trial it was claimed, on the part of the plaintiff, that the defendant used the language set out in the complaint of and concerning the plaintiff and Mr. Cavendish, while said Lachman was standing inside the door of Messrs. Lesher & Sander's store in Oakland, and that plaintiff and Mr. Cavendish were passing by on the street in front thereof, and that, just as they went by, Mr. Lesher said to the defendant: "There goes the lady and gentleman who left the horse and wagon here now." To which defendant replied: "Lady and gentleman be damned! they are horse-thieves and scoundrels." And the plaintiff introduced evidence tending to show the speaking of the words by defendant as laid in the complaint. It was within the court's discretion to strike out the leading question put to the plaintiff by her counsel. And the hearsay testimony given by her, relative to what she heard that the defendant had said as she was passing Lesher's store, was clearly incompetent, and was properly stricken out.

The defendant had a right to withdraw the charge made against the plaintiff's reputation in his first answer, and, by the court's permission, to file an amended pleading leaving the objectionable matter out. And no error was by that tribunal committed in refusing to allow proof to be made that such a charge had been thus preferred on a previous trial, and attempted to be established by evidence.

The question which was asked the defendant by his counsel, and to which he was allowed to reply, relative to his belief that his property had been stolen at the time he used the language to which exception was taken, was proper, as tending to show his good faith, in mitigation of damages, and was in no sense an opinion as an expert.

We are inclined to the opinion that the court was right in refusing of its own motion to allow the witness Tracy to, refresh his memory from an affidavit before that time sworn to and subscribed by him ex parte; for the reason that the plaintiff did not include in the offer made by her counsel proof that the witness had written the affidavit, or that it had been done under his direction, at the time the facts occurred, or immediately thereafter, or at any other time when the facts. were fresh in his memory, and that he knew that the same were correctly stated in the writing. Code Civil Proc. § 2047.

As part of the charge given by the court, and excepted to by the plaintiff, after objection duly made, was the following: