CORNELL LAW LIBRARY Darnell Caw &rtpuil Kfeanj KF 303.W6T" Un,VerSltyLibrary La iSifiMf Uf!!,' review and 1" ,z b °ok, in th 3 1924 018 764 385 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018764385 LAW STUDENTS' REVIEW AND QUIZ BOOK IN THE FORM OF QUESTIONS WHICH SUPPLY CONCRETE STATEMENTS OF FACTS AND OF ANSWERS WHICH SET FORTH THE LEGAL PRINCIPLES INVOLVED INCLUDES ALL IMPORTANT SUBJECTS CONFORMS TO THE PRACTICE OF THE MOST COMPETENT BOARDS OF LAW EXAMINERS By RUSSELL WHITMAN, A. B. (Harv.) Of the Chicago Bar Sometime Member of the State Board of Law Examiners, Illinois INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS Copyright, 1916 BY The Bobbs-Merrill Company PREFACE Ability correctly to apply legal principles to facts is what makes a lawyer. The aim of this book is to make lawyers ; not merely to help candidates in preparing for the bar examina- tion. Accordingly by applying important principles and doc- trines of law to stated facts, it aims to give the student a taste of what he may look for upon entering the practice of the law. Within the limits of fifteen hundred questions and answers it is of course impracticable to present more than the barest out- line of the law. An inspection^ t^work as a whole, however, should demonstrate that when the student has come to feel at home with the questions and answers, and with the principles involved, he should, upon being confronted by client or by bar examiner with facts involving the same principles, be better able to discern and state the legal principles which control. If he will not content himself with covering up the answer with a piece of blotting paper, and with seeing if on reading the question he can remember the answer ; but on the contrary will rather let the question sink in, and reason out his own answer, correcting the result, if correction be needed, by the answer in the book, he will get the full benefit of my efforts and of his own. The writer has examined several thousands of applicants for the bar; and as a result, these pages betoken the earnest hope that candidates may be induced and helped to depend less on memory, and more on the power of analysis and reasoning. To spend time (and money) learnmg by rote scores of de- tached definitions, maxims, rules and precepts, but to omit to apply them again and again, is to invite failure. The best and fairest law examinations search a student's power of discerning, of reasoning, of applying what he has learned, rather than his memory. The memory of many excel- 111 IV PREFACE lent lawyers is, like their handwriting, poor. No excellent law- yer, however, lacks the discernment to put his finger on the controlling facts in his client's case and the power to reason it out; and, applying legal principles, to answer his client's ques- tion. A client never asks "what is an agent" or "what is a prin- cipal" or "what are emblements" or "corodies." Bar examiners are avoiding a barren quest for definitions and maxims; and are coming to ask the sort of questions clients ask. As you prepare yourself to give correct answers to an examiner, you lay the foundation for keeping your clients out of trouble. Observe also that be its method that of selected cases, or abridgment of a text, or question and answer, a book for re- view is helpful by way of drawing the student's attention to what he does not know. As each printed set of facts is consid- ered, weighed and answered, the mind should be allowed to dwell on kindred subjects and principles. Should it be found that the limitations of or exceptions to a given principle are hazy in the mind of the student, the authority cited must be looked up, a text book or a digest must be turned to, and the haze thus cleared away. For example, Equity Jurisprudence and Pleading (Ch. XVI, O. 69) : Here the complainant, the Chicago Federal League, sought to enjoin the defendant William J. Killifer, an expert baseball player, from playing with the Philadelphia Club. The Federal League "signed Killifer up" ; and while the contract contemplated that he, during the years 1914, 1915 and 1916, should play ball for the Federal League and for no other or- ganization, yet the complainant had induced him to "jump" a similar contract with the Philadelphia Club, whereby Killifer had agreed to continue in its service for the first part of the season 1914. Inducing Killifer to break his contract with the Philadelphia organization, soiled the hands of the complainant ; and for the reason that it did not come into equity with clean hands, relief was denied. But note that the application of this rule or maxim is "confined to the conduct of the party in the matter before the Court. * * * Courts of Equity * * * will not refuse redress to the suitor because his conduct in other matters not then before the court may not be blameless." PREFACE V The suitor must be guilty of conduct inequitable ad hoc. Bon- sack v. Smith, 70 Fed. 383. It will be noted that the questions are, in most instances, longer than the answers ; and it is hoped that the danger that any one will learn the questions by rote is slight. But be sure you understand the question. One way of doing this is to think — or write — it out in your own words. Don't commit either question or answer to memory. 'Tis a waste of time. Put the answers in your own words and make them in truth your own. Restate them. Polish them. Make them more pointed, crisp, exact, than I have made them. R. W. TABLE OF CONTENTS CHAPTER I PAGES Torts 1- 44 CHAPTER II Criminal Law 45- 70 CHAPTER III Personal Rights and Domestic Relations 71- 88 CHAPTER IV Contracts 89-122 CHAPTER V Bailments and Carriers 123-143 CHAPTER VI Sales 145-166 CHAPTER VII Agency 167-193 CHAPTER VIII Partnership 195-213 CHAPTER IX Suretyship 215-233 CHAPTER X Negotiable Instruments 235-255 vii Vlll TABLE OF CONTENTS CHAPTER XI Real Estate 257-294 CHAPTER XII Wills 295-317 CHAPTER XIII Corporations 319-342 CHAPTER XIV Evidence j 343-392 CHAPTER XV Common Law Actions and Pleadings 393—423 CHAPTER XVI Equity Jurisprudence and Pleading 425-475 CHAPTER XVII Code Pleading and Practice 477-522 CHAPTER XVIII Damages 523-544 CHAPTER XIX Statutes : Interpretation 545-573 CHAPTER XX Constitutional Law • 575-600 — ■ CHAPTER XXI Conflict of Laws 601-621 CHAPTER XXII Admiralty 623-646 Law Students' Review and Quiz CHAPTER I TORTS Question I. Distinguish between torts and crimes. Answer. A crime is a wrong directly or indirectly affecting the public, for the commission of which the state has affixed certain punishment or penalty. A tort is a wrong affecting the civil, rights of an individual. 8 A. & E. Encyc. L. (2d ed.) 279. Q. 2. In a civil action for assault and battery, the evidence showed that plaintiff and defendant, to settle their differences, agreed to go out and fight, and that plaintiff sustained severe injuries. Can plaintiff recover? A. Yes. The state will not suffer rersons to deal on a basis of contract involving a breach of the public peace. Thus when a combat involves a breach^of the peac e, the mutual consent is un- lawful, and will not deprive the injured paTfyTor either party, if both are injured, from recovering damages therefor. I Cooley Torts (3d ed.) 283. Barholt v. Wright, 45 Ohio St. 177. Q. 3. Where it is shown that plaintiff made the first assault thus commencing an altercation in which occurred the act com- plained of, can plaintiff recover in an action in trespass for assault and battery? A. He may recover if the defendant used more force than was necessary in the defense of his person: i.e., if he repelled the plaintiff's assault with a violence not called for. I Cooley Torts (3d ed.) 286. 2 LAW STUDENTS REVIEW Q. 4. X is Y's employer. He says to Y, "If you continue to rent your home of L, I will discharge you." Y fearing dis- charge no longer rents from L. Has L any right of action against X ? A. No. A mere threat to commit an injury is not a private wrong. Heywood v. Tillson, 75 Maine 225. Q. 5. The plaintiff, a married woman, was sitting with her husband in the waiting room at the defendant railroad com- pany's station. They were there to meet her sister. A servant of the railroad company, erroneously supposing the husband was not plaintiff's husband, ordered the husband to leave the waiting room and used violent, threatening and abusive lan- guage toward him, in plaintiff's presence. She thereby suf- fered a nervous shock and became ill, and continued ill for a week; and thereupon sued the defendant for damages. Can she recover? A. No. The language was not addressed to her. Even assum- ing that the act was wrongful, it infringed no legal right of plaintiff. The fact that hearing the language addressed to another made her ill is not as to her a legal tort. Bucknam v. Great Northern R. Co., 76 Minn. 373. Q. 6. A practical joker represented to plaintiff that her hus- band had been "smashed up" in an accident, told her where he was lying, and that she was to go at once in a cab and bring him home. This was all false. The effect on the plaintiff was a violent shock to her nervous system, vomiting, symptoms of mental derangement and a long illness. Is the joker liable? A. Yes. Defendant has done a wilful act calculated to cause physical harm to plaintiff. This constitutes malice; and while defendant did not intend the particular harm which befell plain- tiff, yet some effect of the kind produced was reasonably to be apprehended. Wilkinson v. Downton, L. E. (1897), 2 Q. B. D. 57. Q. 7. If a qualified voter is prevented from casting his vote at a public election, does he have an action against the person preventing him? TORTS 3 A. Yes. It was argued that the voter could make no profit from his vote, and therefore was not damaged by being prevented from casting it; but Holt, C. J., holds * * * "a damage is not merely pecuniary, but an injury imports a damage, where a man is thereby hindered of his right." Ashby v. White, 2 Ld. Raym. 938. Q. 8. The seller of real property employed an attorney to examine and report upon the title. The buyer relied upon the attorney's opinion; but he did not hire the attorney, nor was the opinion addressed to him. The attorney had been careless in rendering the opinion, and the buyer was thereby misled, to his damage. Is the attorney liable to the buyer ? A. No. The attorney had no contract with the buyer, nor did he owe buyer any duty. Savings Bank v. Ward, 100 U. S. 195. Q. 9. A skillful surgeon was called to a patient whose right ear was found to be diseased. He advised an operation for the purpose of removing the diseased portion. After consultation with her family physician, and one or two further consulta- tions with the surgeon, the patient, a woman, decided to sub- mit to the operation on her right ear. An anaesthetic was ad- ministered, and while the patient was unconscious, the surgeon examined her left ear; found it seriously diseased; and on consultation with the family physician who was in attendance, operated on the left ear. The right ear turned out to be less dis- eased than he had thought, and he did not operate on that ear. The operation was skillfully done. The patient brought suit against the surgeon for assault and battery. Can she recover ? A. There seems a technical assault and battery here. A jury must pass on the question- of authorization. If the operation was performed without the patient's consent, and the circum- stances were not such as to justify operating without her con- sent, she can recover. The jury might find that she had impliedly authorized her family physician to direct the matter. Mohr v. Williams, 95 Minn. 261. O. 10. Reid the plaintiff and Mitchell the defendant, along with two other men were building a straw-stack. Mitchell en- gaged with the two other men in 'romping on top of the stack; 4 LAW STUDENTS REVIEW and playfully, without malice, "went against" Reid and thus caused him to fall from the stack. Reid did not take part in the romping. Can Reid recover against Mitchell ? A. Reid can recover. He was amused no doubt at his com- panions, but he was working not larking. It was manifestly a dangerous proceeding, and those who engaged in it did so at their own risk; but Reid did not engage in it, and consequently did not undertake the risk. But — semble a player taking part in a game involving risk takes on himself the risks incident to being a player, and will have no remedy unless there has been some undue violence or unfair play on the part of those engaged with him. > Reid v. Mitchell, 12 Sess. Cas., 4th Series, 1129. Q. ii. The defendant advances in a threatening attitude as if to strike another, who was acting as chairman of a meeting. When within a few feet of the chairman (plaintiff) he was stopped by others and did not strike him. Did this amount to an assault ? A. Yes. Even though defendant did not come near enough to reach plaintiff, yet intent and ability to strike may be inferred, and so advancing within a few feet amounts to an assault. Stephens v. Myers, 4 C. & P. 349. Q. 12. An officer serving a writ has levied on a gun. The defendant approached with an axe in his hand and demanded that he give up the gun. The officer refused. Then defendant stepped up within reach of the officer, held the axe up in a posi- tion to strike and said, "Give up the gun or I'll split you down." After' some further parley the officer gave up the gun. A jury found that defendant intended to strike if the officer did not give up the gun ; but did not intend to strike if he gave up the gun. Was there an assault ? A. Yes. Where a man draws a weapon meaning to strike an- other if the other does not take off his hat, or give up his money, or do any other act the assailant has no right to require, there is an assault: though he may not intend to strike provided his de- mand is complied with. State v. Morgan, 3 Ired. L. 186. Q. 13. The defendant ordered plaintiff to leave his (de- fendant's) premises. Plaintiff replied that he would go as TORTS 5 soon as he could; immediately unhitched his horse and was driving away in his wagon when the defendant caught hold of the horse, kicked it, and struck it several times with a board. Did this constitute an assault on the plaintiff ? A. No. While it is not requisite that violence offered should be directly to the person (e. g. upsetting a chair or carriage in which a person is sitting is an assault), yet merely striking tne horse does not constitute an assault on the plaintiff. Clark v. Downing, 55 Vt. 259. Q. 14. What is the difference between slander and libel ? A. Originally "slander" included defamatory words spoken or written (Bacon Abridg. "Slander" vol. 9, p. 28) as well as signs or pictures. But current legal usage restricts "slander" to spok- en words, or to defamation by a gesture, hiss, or other signifi- cant sound. Libel ordinarily involves printing or writing, or a sign, picture or effigy. Monson v. Tussauds (Limited) (1894) L. E. 1 Q. B. D. 671, 692. Q. 15. Explain "Slander of title." A. This consists of defamation which is false, disparaging to property interests, and results in actual damage to the plaintiff. Paull v. Halferty, 63 Pa. 46. Q. 16. X falsely said of Y, "Y has committed adultery with his sister-in-law." Is this slander of Y ? A. No. However insulting the statement, yet as adultery is not an indictable offense at . common law, the words are not actionable per se. Dukes v. Clark, 2 Blackf. 20. Q. 17. A newspaper printed the following concerning a surgeon, "He is deranged about performing operations. He operates for any reason or for no reason." The statement was untrue. Can the surgeon recover? A. Yes. This imputes lack of skill in his calling, and the law- will presume that he is injured in his business. The words are here actionable per se. Whittaker v. Bradley, 7 Dowl. & Ry. 649. 6 LAW STUDENTS REVIEW Q. 1 8. Name the classes of defamatory words which are actionable per se : A. Those falsely imputing (a) The commission of a criminal offense involving moral turpitude. (b) An infectious disease which would tend to exclude a person from society. (c) Unfitness for an office, calling or place of employment of pecuniary profit, wherein injured party is engaged. Pollard v. Lyon, 91 TJ. S. 225. Q. 19. C sued J for slander. J was a judge, 1 and in the course of a judicial hearing over which he presided and wherein C was defendant, J had said "You (meaning C) are a harpy, preying on the vitals of the poor." It was charged that these words were uncalled for, and were spoken maliciously and without any foundation whatever. Defendant J in the suit for slander, demurred, thereby, for the purpose o'f obtaining a legal ruling, admitting the facts as charged. Will the suit for slander lie? A. No. The court (Martin, B.) in the above case says: "What judge could try a case with any degree of independence, if he was to be afterwards subject to have his conduct commented upon to a jury, and the propriety of it determined upon by them?" Scott v. Stansfield, L. R, 3 Exch. 220. Q. 20. Mention briefly other instances of absolute privilege in cases which but for such privilege would constitute slander or libel. A. A witness in judicial or quasi- judicial proceedings testify- ing to material facts; pertinent pleading. Statements of counsel, or of jurors in the jury room. A legislator acting as such, either in session or committee. I Cooley Torts (3d ed.), § 425 et seq. Q. 21. The plaintiff Triggs, was a professor of English. The defendant printed and published a newspaper wherein it published concerning plaintiff a series of articles admittedly false in substance as follows : "We did not discover Triggs. He discovered himself and has a just appreciation of the value of the discovery. But we TORTS 7 have helped communicate him to the world and beckoned rev- erent millions to his shrine. He has performed three labors, namely : "i. 'Knock out' old Whittier and Longfellow. "2. 'Do up' the hymn writers. "3. Named his baby at the end of a year of solemn consid- eration." Then followed a number of "Triggsian substitutes" for well- known passages of Shakespeare, e. g. : "Go to, go to, you are a saucy boy," made to read : "Come off, kid ; you're too fresh." Triggs sued for libel. Were these words actionable ? A. Held that the foregoing transcend the limits of fair criti- cism of literary work of plaintiff; and are "clearly defamatory in character and are libelous per se.'' This on the ground that the words of defendant were not confined to criticism of the literary- work of plaintiff; but amounted to a personal attack on the plain- tiff representing him as "a presumptuous literary freak," and held him up to contempt, ridicule and shame. The defense that no one would take the articles seriously — that the words complained of are clearly jesting — overruled. "If a man in jest conveys a serious imputation, he jests at his peril." Triggs v. Sun Printing, &c. Assn., 179 N. T. 144, Q. 22. The defendant Mudie's Select Library, conducted a circulating library. It also sold books. A suit for libel was brought, based upon the contents of a book, copies of which had been circulated and sold by defendant. Assuming the matter complained of to be libelous, was defendant liable ? A. Prima facie yes. But if a defendant can show (and he has the burden) that (1) He did not know the libel was in the book, (2) There was nothing in the book, or in the circumstances of the book's coming to him, or being disseminated by him to lead him to suppose that it contained a libel, (3) It was not through his negligence that he did not know that it contained a libel, he will be held not to have "published" the libel. Vizetelly v. Mudie's Select Library, Ltd. (1900), L. R., 2 Q. B. D. 170. 8 LAW students' review Q. 23. At a church meeting for the election of officers, the name of X, the plaintiff, was mentioned as a candidate for treasurer of the church. Defendant, a prominent member of the church, arose and said that he understood that X had acted as treasurer for the Y. M. C. A., and that he had em- bezzled some of the funds which came to his hands in that capacity. X sued defendant in case, for slander. It appeared that the only authority the defendant relied on for the statement he had made was that a member of the Y. M. C. A., whose name he could not remember, "told him so." No malice shown, unless inferable from above facts. The case was allowed to go to the jury, which brought in a substantial verdict for plaintiff. Can the verdict be sustained ? A. Yes. While the occasion upon which the statement was made is privileged, yet the statement must be based upon rea- sonable or probable cause. The statement in question is not so based, as the jury have found. No sensible man should, in so serious a matter, give currency to a rumor with so slight a foun- dation. Conroy v. Pittsburgh Times, 139 Pa. St. 334. I Cooley Torts (3d ed.} 453. Q. 24. The city council of the city of Little Falls passed a resolution characterizing one Trebby as a "disreputable per- son," recited that facts concerning the city's credit had been falsely, maliciously and intentionally reported by Trebby to a St. Paul newspaper, notwithstanding that he knew the true facts, and condemned Trebby's conduct as execrable and odi- ous. The Transcript Publishing Company published this reso- lution as a matter of news. Trebby sued the company. The company defended on the ground that the publication was made in good faith as a matter of news. Is the defense good ? A. Not good. While it is true that such a resolution was passed, and that the city council or the Transcript Company might publish the facts about the city's credit, even though the facts might reflect on Trebby's character; yet this does not justify the defamatory matter published concerning Trebby per- sonally. Trebby v. Transcript Pub. Co., 74 Minn. 84. TORTS 9 Q. 25. A firm of tobacconists undertakes to advertise its cigars by placing on the boxes the portrait of a young woman. In itself the portrait is not libelous ; but the young woman who is not known outside private life, objects that this constitutes an illegal invasion of her right of privacy. What is the law as to this ? A. The courts of New York (majority opinion), Robertson v. Rochester &c. Co., 171 N. Y. 538; Rhode Island, Henry v. Cherry, 30 R. I. 13 ; Michigan (as to family of a decedent which objected) . Atkinson v. Doherty & Co., 121 Mich. 372; and of Washington, Hill- man v. Star Publishing Co., 64 Wash. 691 — deny such legal right of privacy. The courts of Georgia, Pavesich v. N. E. Life Ins. Co., 122 Ga. 190; New Jersey, Edison v. Edison, &c, Co., 73 N. J. Eq. 136; Missouri, Munden v. Harris, 153 Mo. App. 652; and Kentucky, Foster-Milburn v. Chinn, 134 Ky. 424 — sustain such right. Q. 26. As to the right of privacy, state briefly the reasons pro and con. A. It is said that while invading an individual's privacy may result in more painful consequences than would a bodily assault, and may involve mortifying notoriety; yet on the other hand, according to Chief Justice Parker (1902), "An examination of the authorities leads us to the conclusion that the so-called right of privacy has not as yet found an abiding place in our juris- prudence." Eobertson v. Rochester &c. Co., 171 N. Y. 538. Q. 27. Assume that an officer has a writ against a defend- ant authorizing hirn to take the body (ca. sa.), and rides up to defendant, and says, "You are my prisoner, I have a writ against you :" whereupon defendant turns back and goes with the officer. The officer, however, does not lay hand on him. Does this constitute an arrest? A. It does. This for the reason that the defendant submitted to the process. But if the defendant instead of going with the officer, had fled, there would have been no arrest. Horner v. Battyn, Buller N. P. 62. Q. 28. Suppose the officer in the foregoing instance had had no writ and his representation in that regard had been false. Is there still an arrest? tO LAW STUDENTS REVIEW A. It is enough if the officer leads the party to believe that he has the writ, and the party in consequence submits to the officer's • supposed authority. See Whitman v. Atchison &c. R. Co., 85 Kans. 150. Q. 29. The defendant went to plaintiff's house with an officer to compel plaintiff to pay a debt, or give security there- for. The plaintiff is sick abed. The officer tells him that they have not come to take him, but have come to get an article of persona? property. If, however, he will not give that up or give security for the debt, he is told that they must take him, or leave some one in charge of him. The plaintiff became much alarmed, and gave up the article. Was there an imprisonment ? A. Yes. This for the reason that where the use of force is reasonably to be apprehended, then, even though it be not used, there is restraint. It can not be said that plaintiff assented thereto; and on the facts he was imprisoned. Brushaber v. Stegemann, 22 Mich. 266. : Q. 30. In an action for false imprisonment, the defendant seeks to justify on the ground that he was an officer acting under process. What must he prove in order thus to justify ? A. That the writ or process was issued by a court or officer having authority of law to issue such process, and that it is reg- ular on its face. I Cooley Torts (3d ed.) 301. Q. 31. A married woman brought trespass against her hus- band, for having wrongfully and maliciously caused her to .be arrested and imprisoned upon a false charge of theft. Will the action lie ? A. No, not at common law. Marriage while it exists is a con- tinually operating discharge of all right of action between the parties. II Bishop, Married Women (ed. 1875), § 153. Q. 32. Part of a highway, over which the plaintiff had the right to pass, was unlawfully enclosed and appropriated for spectators of a race, and an admission was charged. The plaintiff desired to enter this part, but was opposed by defend- TORTS I I ant. After a short struggle, wherein no detention took place, he climbed into the enclosure. The defendant stationed two policemen, to prevent plaintiff from going further in the di- rection he declared he wished to go, and they did so prevent him. Otherwise he was unmolested, and was at liberty, and was informed that he was at liberty, to go in the only other direction by which he could pass. For some time he refused to go in the last named direction, and stayed where he was. Discuss whether there was an imprisonment. A. Three English judges (Coleridge, Williams, Pattison) held that there is no imprisonment. But in the same case Denman, C. J., held that there was an imprisonment. The opinions turned upon the question whether a partial restraint constituted the im- prisonment; or whether the restraint must be total: Bird v. Jones, 7 Ad. & E. (N. S.) 741. The tendency, however, is toward holding that the restraint need not be total. Comer v. Knowles, 17 Kans, 436. Q. 33. From October 28th to the loth of November fol- lowing, plaintiff was constantly guarded by detectives employed by defendant for that purpose ; plaintiff's movements were sub- ject to their control; he was frequently subject to examinations touching a robbery which had occurred, urged to confess his guilt, and to disclose his confederates ; and it was fairly in- ferable that force would be used if he attempted to assert his liberty. Was plaintiff imprisoned by defendant? A. Yes. This was an unlawful restraint of his liberty. What- ever consent he may have given was enforced, and did not justify the detention without a warrant. Fotheringham v. Adams Express Co., 36 Fed. 252. Q. 34. An officer, acting under a warrant arrested the plain- tiff, a woman, and took her before a justice of the peace. The justice took her recognizance to appear on another day certain and she was then released from arrest. No court was held on the return day. Subsequently the officer re-arrested her under the original warrant, and took her before another examining magistrate. Was she thus falsely imprisoned? 12 LAW STUDENTS REVIEW A. This amounts to a false imprisonment. The rule is that in civil cases (arrest for debt) the debtor, if taken on mesne pro- cess, though he be enlarged by the officer, may be re-arrested, if the return day has not arrived. Atkinson v. Matteson, 2 T. R. 172. But in criminal cases, the weight of authority denies the right to retake after the arresting officer has permitted the prisoner to go. Doyle v. Russell, 30 Barb. 300. O. 35. State the rule with reference to the right of arrest without a warrant for a felony as exercisable by (a) An officer, (b) A private citizen. A. (a) An officer may arrest upon reasonable suspicion, though no felony has in fact been committed. (b) A private citizen may only arrest when the felony charged has in fact been committed, and he has reasonable ground of suspicion that the person arrested is guilty. Pollock, Torts (8th ed.) 223. Q. 36. State the elements necessary to constitute a cause of action for malicious prosecution. A. 1. A suit or proceeding instituted by defendant without probable cause therefor. 2. The motive in instituting it was malicious. 3. The prosecution was terminated in the acquittal or dis- charge of the accused. 4. Directly resulting damage to plaintiff. I Cooley Torts (3d ed.) 320. Wheeler v. Nesbitt, 24 How. (U. S.) 544. O. 37. X swears out a warrant against Y for larceny, whereof there was reasonable ground to believe Y guilty from the facts within X's knowledge. X, however, did not believe Y guilty; but prefers the charge in order to coerce Y to pay a debt which Y owes him. Y is afterwards acquitted, and sues X for malicious prosecution. Is X liable ? A. Yes. Though X be in a situation to show that he had prob- able cause, so far as regards the strength of his information, still if he did not believe the facts and rely on them in procuring TORTS 13 the arrest, he has committed a breach of duty toward the person arrested, and accordingly is liable in case for malicious prosecu- tion. Bigelow Torts (8th ed.), p. 213. Q. 38. Sutor made a complaint before a United States Commissioner who reported to the U. S. District Attorney- charging one Wood with unlawfully opening a letter addressed to him, Sutor. The District Attorney should have presented the matter by way of indictment; but instead he filed an in- formation in the U. S. District Court ; the case was tried there- on, and Wood was acquitted. Meanwhile the United States Supreme Court had held that the offense could not be prosecuted by information. In a suit for malicious prosecution brought by Wood against Sutor, is the defense that there was no "malicious prosecu- tion" good? A. No. It is sufficient that the court would have had juris- diction of the offense, if such jurisdiction had been properly in- voked. This is called "potential" jurisdiction. Sutor's conten- tion therefore that a void prosecution is no prosecution fails. Wood v. Sutor, 70 Tex. 343. Q. 39. Is an action for malicious prosecution by reason of an alleged malicious civil proceeding, as distinguished from criminal proceeding, maintainable in favor of the party ma- liciously "prosecuted" ? A. Such an action may be maintained, at least in American courts. The English courts hold that the right of defendant to costs, in the suit maliciously brought (if not involving defama- tion) affords redress to the party injured. Bigelow Torts (8th ed.), 205 et seq. Q. 40. A man has a right of action in tort against the se- ducer of his wife. Upon what grounds ? A. He has the right to what is called consortium; that is, that no one shall interfere with her uprightness as a wife and mother, and her faithfulness to him. The foundation of the action is the injury to the marital relation, and the character of the family. And similarly recovery lies for alienating her affections. Warnock v. Moore, 91 Kans. 262. 14 LAW STUDENTS REVIEW Q. 41. Suppose the publication of a libelous statement con- cerning a wife causes her such distress as to cause her to suffer physical illness. May the husband recover ? A. Yes. The loss of her service, caused by the wrongful act of another, is loss of consortium. Consortium includes the serv- ice and companionship of a wife. Garrison v. Sun Printing, &c, Assn., 135 N. Y. S. 721. Q. 42. Is the converse true ? Can a wife recover for aliena- tion of affections of husband? A. Generally speaking, she can (Wolf v. Frank, 92 Md. 138; Foot v. Card, 58 Conn. 1). But in Wisconsin and Maine the right Ms denied. It has also heen held that while she has the right, yet at the common law it is, by reason of her coverture, in abeyance. Q. 43. What is the foundation of the right of a parent to recover of another for the seduction of his daughter, or of a master for beating or enticing away, or debauching his serv- ant? A. Loss of service. It is based "not upon the seduction it- self * * * DU t U p 0n the loss of service of the daughter in which service he is supposed to have a legal right or interest." Loss of service must be proved, or plaintiff fails. Grinnell v. Wells, 7 Mann. & Gr. 1033. Q. 44. It is held, however, that even though a child be too young to render service, and therefore the parent does not lose service, still the parent may recover for the necessary medical outlay in healing the child. Upon what do you base such re- covery ? A. Upon the parents legal liability to care for the child. Dennis v. Clark, 2 Cush. 347. Q. 45. Suppose a parent has been informed that his daugh- ter's husband treats her with cruelty, and the parent there- upon persuades his daughter to depart from her husband. It turns out that the information was incorrect. The parent '1 sued by the husband. Can the husband recover? TORTS 15 A. No; provided the parent was not actuated by bad motives. But, otherwise, if a stranger in blood thus persuaded her to leave her husband. Bennett v. Smith, 21 Barb. 439. Bigelow Tort~ (8th ed.), 278. Q. 46. The plaintiff and defendant owned adjoining tracts of land. In clearing near the boundary line, defendant cut down a tree on his own land ; but it fell with part of the top on plaintiff's land. There was no evidence of design — nor any showing carelessness, unless inferable from above fact. No actual damage was done. Is there a trespass ? A. To sustain trespass the injury must be immediate, and committed with force actual or implied (vi et armis). It is im- material whether the injury be willful or not. Hence the fore- going constitutes a trespass. Newsom v. Anderson, 2 Ired. L. 42. Q. 47. Wells-FargO) an express company, received for car- riage in New York a box containing a substance resembling sweet oil. There was nothing to excite suspicion that the sub- stance was dangerous. The package, on arriving at San Fran- cisco was found to be leaking ; and as was its custom, in case of damaged goods, a servant of the company was opening the package. In point of fact the substance was nitro-glycerine. It exploded and damaged the building of plaintiff, wherein the company was one of a number of lessees. Plaintiff sued the company in trespass. Is the company liable ? A No. The gist of the action here is negligence on the part of the company; and that does not appear. No one while engaged in lawful business is responsible for injuries resulting from un- avoidable accident. "The Nitro-Glycerine Case." Parrot v. Wells, Fargo & Co., 15 Wall. 524. 4 Elliott E. R. (2d ed.) § 1584. Q. 48. An action for trespass as to personal property was based upon the allegations ( 1 ) that defendant though claiming permission, was not authorized to use plaintiff's mare; (2) that he did use her, and drove her so hard that she was caused 1 6 LAW students' review to lose her foal, and thereby became of little value. Assume that (i) is proved; but (2) is successfully controverted: can plaintiff recover? A. No. Unlike trespass for breaking a man's close (quare clausum) where the action lies even if no damage be done, an action for trespass to personal property will not lie where no unlawful intent or disturbance of a right of possession is shown, and no damage is done. Graves v. Severens, 40 Vt. 636. Q. 49. The defendant, a farmer, occupied land which had originally been forest land, and bore no thistles. It had been brought under cultivation some years prior to 1883, the date of defendant's occupation. Immediately upon its being culti- vated, thistles began to spring up; and in the years 1887, and 1888, thousands of thistles went to seed and were blown upon plaintiff's land where they took root and did damage. Was defendant liable? A. Not liable. It was argued that if he had let the land lie, the thistles would never have grown; but that by bringing the land under cultivation he had caused them to grow and should have mowed them before they went to seed. But it was held (Cole- ridge, C. J.) that there "can be no duty as between adjoining occupiers to cut the thistles, which are a natural growth of the soil." Giles v. "Walker, L. E. 24 Q. B. D. 656. Q. 50. A railroad company, whose premises abutted on a highway, piled near the highway freight covered with tin. The glare from the tin frightened plaintiff's horse, and plaintiff was damaged. Could the company be held liable ? A. No. The abutting owner does not here use his premises in a manner, or maintain a structure thereon of a sort, reasonably likely to render travel unsafe. Davis v. Pennsylvania E. Co., 218 Pa. 463. Q. 51. State the law as to whether an abutting owner may be required to keep his sidewalk in repair. TORTS I J A. If he owns the fee, and the public has only the easement. to pass and repass over the sidewalk, he may be required to keep the same in proper repair. Mintzer v. Hogg, 192 Pa. St. 137. But if the fee of the walk belongs to the city or municipality, the abutting owner can not be so required. Gridley v. Bloomington, 68 111. 47. Q. 52. Suppose the children of the neighborhood are in the habit of playing on a turntable, and the company which owns the turntable knows of this habit, and does not stop it. Does this amount either to an invitation, or to a license so to do ? A. To neither invitation nor license. Mere toleration of a trespass does not alone constitute a license — much less an invi- tation. Ryan v. Towar, 128 Mich. 463. Although it is said that "In the case of young children and - others not fully sui juris, an implied license might sometimes arise when it would not in behalf of others," e. g. leaving a dan- gerous but attractive machine where children might play with it and be injured. II Cooley Torts (3d ed.), 634. Q. 53. State and discuss the doctrine of the "Turntable" cases. A. A railroad company which maintains, though on its own ground, an agency attractive and accessible to children, but dan- gerous for them to play with, should take reasonable care that they are not injured thereby. Railroad Co. v. Stout, 17 Wall. 657. But this doctrine is denied in Turess v. N. Y. S. & W. E. Co., 61 N. J. L. 314. Magie, J., points out that if the turntable doctrine is sound, then any owner, who has a tower a child may like to climb, or leaves a mowing machine in his field a child may like to play with, would seem to be amenable to this rule of duty, and holds that such duty does not exist in law. Most courts in America follow the U. S. Supreme Court. The doctrine is likewise termed the doctrine of "attractive nuisances" and is exhaustively discussed in 1 Thomp. Neg. (2d ed.) §§ 1027-1051. 2— L. S. Rev. 18 LAW students' review Q. 54. The defendant owned land abutting on a highway ; and in its land, at a short distance from the highway, was a large hole filled with water. There was no railing or guard. Plaintiff's intestate was passing along the highway at night, missed his path, fell into the water, and was drowned. Can there be a recovery on these facts ? A. No. The test is, that if the hole was so close to the public way that a person by making a false step, or through sudden gid- diness, might fall in, then the abutting owner may be held, as for a nuisance. But where the hole is at some distance, though a short distance, so that before he reached it the intestate must have been a trespasser upon defendant's land, the defendant is not liable. Hardcastle v. South Yorkshire E. &c. Co., 4 Hurl. & Nor. 67. Q. 55. A boy entered defendant's premises to steal lead. An engineer employed by defendant, not knowing the boy was there, blew off steam and hot water from a discharge pipe, and scalded him. Is defendant liable ? A. No. A trespasser can not complain that an owner of land does not so c6nduct himself as to make it safe to trespass on his premises. Mergenthaler v. Kirby, 79 Md. 182. Q. 56. Defendant, a gardener, occupied a walled garden and grew valuable tulips. There was access to the garden by a door in the wall. The defendant had been robbed of $100 worth of flowers and roots. Accordingly he placed a spring gun, with attached wires visible from all parts of the garden. No notice was given. Plaintiff did not see the wires, or know that the gun was there. A fowl owned by a neighbor alighted in the garden. The plaintiff volunteered to assist in pursuing it, scaled the wall, and jumped down into the garden. His foot came into contact with one of the wires; the gun was dis- charged, and he was severely injured. Was the defendant liable? A. Defendant liable. "It is inhuman to catch a man by means which may maim him, or endanger his life," * * * TORTS 19 "The plaintiff was only a trespasser (not a thief) — if the defend- ant had heen present, he would not have heen authorized even in taking him into custody." * * * Bird v. Holbrook, 4 Bing. 628. Q. 57. Plaintiff's father was an employe of defendant, a glass company. The plaintiff, a boy of 12, was permitted by the defendant company to carry his father's dinner to him at the company's works. As the boy was passing through the main gateway one of the gates, which was out of repair, fell upon him, crushing his leg. Assuming him not to have been guilty of any contributory negligence, could he recover ? A. He could not. The question is, did the company owe any duty to the plaintiff'to keep the entrance to its works safe? This depends on whether he was invited or only permitted to go there. As the company was not concerned with the bringing of the father's dinner, the boy was merely permitted, not invited to be there. All the company owed him was to abstain from acts will- fully injurious. Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. L. 378. 1 Thomp. Neg. (2d ed.) § 1025. O. 58. Suppose the boy carrying his father's dinner, as set forth in the previous question, is injured by the breaking of a chain on a crane which is used for lowering heavy articles, and is in operation over a path within the company's grounds used by persons on legitimate business, such use not being objected to by the company. Is the company then liable ? A. Yes. In the last instance it is a positive act of negligence, not a merely passive permission of lack of repair, which causes the injury. Gallagher v. Humphrey, 6 L. T. (N. S.) 684. But note that the foregoing case does not, as does the New Jersey case, predicate the recovery upon "wilfully" injuring. See Bohlen Cas. Torts, 414, 418. Q. 59. A defendant railroad company has for a long time acquiesced in the public's crossing its tracks on foot at a point where abutting owners had a right of way across the tracks. Plaintiff's intestate was not an abutting owner, but was cross- ing defendant's track on foot. The defendant negligently 20 LAW STUDENTS REVIEW .backed up a train, without ringing a bell or giving a signal, and caused the death of plaintiff's intestate. Intestate was not guilty of contributory negligence. Is defendant liable? A. Yes. The ground is that an affirmative act of negligence renders defendant liable. This case is distinguished from the "quarry" case (Hownsell v. Smyth, 97 Eng. Com. L. 731), where the public was allowed to cross defendant's waste land, and plaintiff in so doing fell into an unguarded excavation. There was no duty to guard the excavation. Barry v. N. Y. Central, &c. E. Co., 92 N. Y. 289. 2 Thomp. Neg. (2d ed.) § 1725. Q. 6o. The evidence showed that a boy of ten years of age went with his father to defendant's grocery store. While the father was making some purchases, the boy went to a coffee grinder in operation at the rear of the store, put his hand up the spout down which the ground coffee came, and lost a finger. Is the defendant liable ? A. No. While the keeper of a public place of business i,. bound to keep his premises in safe condition and to use ordinary care to avoid injury to those properly entering upon his premises on business, yet to recover a plaintiff must not only show an invita- tion, express or implied, but also that at the time the injury was received, he was in a part of the premises to which he was in- vited to go, and that he was using the premises in a manner authorized by the invitation. Contributory negligence will be imputed to the boy in absence of evidence tending to show his incapacity to exercise care. I Thompson. Neg. (2d ed.) §§ 985-993. II Cooley Torts (3d ed.) 1264. Holbrook v. Aldrich, 168 Mass. 15. Q. 6i. What is the duty toward a customer of the owner or occupant of premises used for business purposes in regard to the condition of the same? A. The customer is an invitee. The owner must keep the premises in such repair and condition as to enable customers safely to go upon the same for the transaction of their business in the usual manner. If injury happens by reason of the defective condition of the premises, of which the occupant has notice, or TORTS 21 which by the exercise of reasonable care he might have known, he will be liable. That is, the owner or occupant is liable to those who come to him, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condi- tion of the premises or of the access thereto, which is known by him and not by them, or which he has negligently suffered to exist and has given them no notice of. Bigelow Torts (8th ed.) 162. Q. 62. What is the difference in the measure of duty on the part of the occupant of premises toward a bare licensee and an invitee? A. A bare licensee must take the premises as he finds them, though the occupant can not without notice change the premises in such a way as to create a new and concealed peril, e. g., stretch a wire across the way. Carskaddon v. Mills, 5 Ind. App. 22. To invitee, the occupier owes the duty to use reasonable care to maintain the premises in a safe condition. Indermaur v. Dames, L. R. 1 C. P. *274. Q. 63. A duty was fixed by statute which, in order to avoid infection, required sheep pens on vessels transporting animals to be of a certain size and to have footholds. The plaintiff's sheep had been washed overboard through failure, as was claimed, to conform to these requirements. Was the carrier liable? A. No. The injury was not of a kind contemplated by the statute; and as the duty was not a common-law duty, the plain- tiff could not recover. Gorris v. Scott, L. R. 9 Exch. 125. Q. 64. Defendant was the owner of a dry dock used .for painting and repairing vessels. As an incident to such use of the dock defendant supplied and put up staging so that the out- side of a vessel might be repaired or painted. The plaintiff was a ship painter in the employ of one Gray, a master painter, who had contracted with the owner of a vessel in defendant's dock to paint the vessel. A rope furnished by defendant in connec- tion with the staging was scorched and rotten, and broke, 22 LAW STUDENTS REVIEW causing plaintiff to fall and become injured. There was evi- dence that reasonable care had not been taken as to the con- dition of the rope. Can plaintiff recover ? A. Yes. While there is no contract relation between plaintiff and defendant, yet when the defendant invites plaintiff to make use of an apparatus, defendant must take reasonable care that the apparatus is in a fit state to be used. Heaven v. Pender, L. E. 11 Q. B. D. 503. Q. 65. The plaintiff was a laborer employed by one Port- lock. The defendant was a builder. He purchased a house which he was about to pull down. For this purpose he built a scaffold, and had pulled down two walls. As he was about to pull down a third, Portlock asked for the job, and defendant contracted with him to pull down the third wall. Defendant allowed Portlock to use the scaffold without charge. One of the supports was rotten. Defendant did not know this. The plain- tiff was at work for Portlock on the scaffold when the support gave way and plaintiff was thrown to the ground and injured. Can he recover of defendant? A. He can not. A gratuitous lender is responsible for only defects of which he is aware in the chattel loaned, and plaintiff is in no better position than Portlock would have been in, had he been similarly injured. MacCarthy v. Young, 6 Hurl. & Nor. 329. Q. 66. The Caledonian Railway hauled coal to the Dumfries Station ; at which point its contract of carriage was at an end. The Glasgow Company contracted with the Dumfries Gas Commissioners -to haul the coal from the Dumfries Station to the premises of the Gas Commissioners, about 400 yards dis- tant, over street railway tracks. While two cars were being so hauled, plaintiff's husband, an employe of the Glasgow Com- pany was killed by reason of a defect in the brakes on the two cars. Plaintiff sued the Caledonian Company, on the theory that as it knew the cars were to be used by the Glasgow Com- pany, it was bound to examine them to see if they were in proper condition — and that an examination would have dis- closed the defect; and that any one in the employ of the Glas- TORTS 23 govv Company might recover if injured by breach of such duty. Can plaintiff recover for the death of her husband ? A. No action lies here against the Caledonian Company. The car was being used on a new journey initiated by the Glasgow Company for their purposes, "and there was nothing in it which can be said to be comparable to a trap created by or permitted to exist by the Caledonian Company into which they invited and led the deceased man to come * * * I am quite unable to see any duty resting upon the Caledonian Company to the deceased man, a breach of which has caused the loss of his life." (Lord Herschell.) Caledonian E. Co. v. Mulholland, 1898 L. E, App. Cas. 216. Q. 67. The Postmaster-General contracted with defendant for the hire of a mail coach, to carry the mail. The defendant contracted with the Postmaster-General that the coach should be kept in a safe condition. The plaintiff was a mail coachman in the employ of one Atkinson; and Atkinson was under con- tract with the Postmaster-General to convey the coach between designated places. Defendant did not keep the coach in safe condition; and it broke down, while plaintiff was driving it, causing injury to plaintiff. Is defendant liable to plaintiff in tort? A. No. He owed no duty to the plaintiff to keep the coach in safe condition. While there was a duty of defendant to the Postmaster-General, there was none to the plaintiff. There was no contract between plaintiff and defendant. Winterbottom v. Wright, 10 Mees. & Wels. *109. Q. 68. Plaintiff bought a lamp from a dealer — not the man- ufacturer, to be used by plaintiff and his wife. The defendant had put the lamp together from parts purchased from third persons. It was defectively constructed, but there was no evi- dence that defendant knew this. The lamp exploded and in- jured plaintiff's wife. Can she recover in tort (her husband joining) ? A. As the defendant knew of no defect, and does not appear to have made any false or fraudulent representations, he is not 24 LAW STUDENTS REVIEW liable here as for a tort. There is no misfeasance toward the wife, independently of the contract, and she is not a party to the contract. Longmeid v. Halliday, 6 Exch. 761. Earl v. Lubbock (1905), L. E. 1 K. B. 253. Q. 69. A threshing machine company prepared a covering for the cylinder of one of its threshing machines, sc weak that it would not bear the weight of those necessarily working upon it to operate the machine ; it concealed this defect, so as not to be readily discovered. It knew of the condition when it shipped the machine to plaintiff's employer. Plaintiff sustained injury through this defect. Is the company liable to plaintiff? A. Yes. While there is no contract relation and the general rule denies liability to third persons as in Winterbottom v. Wright (mail coach case) , yet there are three exceptions. They are these: (1) Act of negligence eminently dangerous to life or health, e. g. poison labelled "Extract of Dandelion." (2) Owner's negligence in inviting use of defective appliances. (3) Article sold imminently dangerous to life or limb, liable for injury reasonably to be apprehended, whether contractual re- lation or not. Above threshing machine case comes under exception 3. It constitutes a flagrant disregard of the rule that one is bound to avoid any act imminently dangerous to the lives and health of his fellows. Huset v. Case Threshing Mach. Co., 120 Fed. 865. Bohlen Cas. Torts 498. Q. 70. A piece of machinery was sold to a purchaser who was made aware of the weakness of a fly-wheel, part of the machinery. He used it five years. It then came into the, possession of a neighbor, and while in use by the neighbor, the fly-wheel burst and killed him. Is the original seller liable to his representatives? A. No. The bursting of the wheel and the injury to human life was not under the circumstances the natural result or the ex- pected consequence of the manufacture and sale of the wheel. Loop v. Litchfield, 42 N. Y. 351. Q. 71. A person bought a hair wash from a chemist, for use, as the chemist knew, of the purchaser's wife. The chemist TORTS 25 assured the purchaser that it was fit for use in washing the hair. It was unfit, and the wife was injured through using it. Can she recover of the chemist ? A. Yes. There was a duty of the vendor toward the pur- chaser to see that the wash was properly compounded; and as the vendor knew that the wash was for the purchaser's wife, the duty extends to her. George v. Skivington, L. R. 5 Exch. 1. Citing Langridge v. Levy, 2 Mees. & "Wels. 519, an instance where a man bought a gun, intended, as the seller knew, for the son of the purchaser. Q. J2. State the law as to the liability of the owner of cattle trespassing on another's close. A. The common law of England was that every one is at his peril bound to "keep up" his cattle and domestic animals. That is, to keep them off the lands of another. But in adopting the common law the courts of some of the (then) sparsely settled states of the union found this rule of law "inapplicable"; and the rule was there recognized that settlers must fence in their cul- tivated ground, it being impracticable for owners of cattle to keep them up. Delaney v. Errickson, 10 Nebr. 492. Bohlen Cas. Torts, 524. Q. 73. Suppose that cattle under the care of an "agister" stray from the agister's field into that of plaintiff ; is the owner of the cattle liable for the trespass ? A. Yes. Recovery may be had either against the agister or the owner, though of course there can be but one satisfaction. Sheridan v. Bean, 8 Mete. 284. Q. 74. Cattle driven upon a highway escaped from control, and trespassed upon plaintiff's land, which adjoined the high- way. It did not appear whether the land was fenced or un- fenced. On these facts can landowner recover ? A. He can not. While generally speaking recovery may be had in respect of cattle damage feasant, an owner of land abut- ting on a highway must fence against cattle, as highways are intended to drive cattle on; and even with care it is impossible always to keep them in the highway, unless the adjoining land is properly fenced. Hartford v. Brady, 114 Mass. 466. 26 LAW STUDENTS' REVIEW Q. 75. A dog known by its owner to be vicious (scienter) was chained in a manner found by the jury to be reasonably sufficient. But it sprang at the plaintiff as he was rightfully passing along a private way so violently that it broke the chain ; and thereupon attacked and bit the plaintiff. Was the owner of the dog liable ? A. Yes. Where an owner of a dog has no reason to suppose it to be vicious, he is not liable for its first attacking a human being. "The dog has in fact the privilege of one worry." But after that, the owner must not keep the dog at all, unless he does it in such a way as to make it perfectly secure. He does not undertake that he will restrain — he must then restrain. Bohlen Cas. Torts, 533. Q. 76. How about the right to keep wild beasts ? A. A man may keep them; but he does so at his peril; and though he use diligence to keep them up, yet if they escape and do harm, the owner is answerable. Jackson v. Smithson, 15 Mees. & Wels. 562. Q. yy. What in relation to the liability of the owner is the classification of bees? Are they in legal contemplation ferae naturae (wild) or domitae naturae (domesticated) animals? A. Should be classed as domesticated. The test is not merely whether an animal is wild or tame; but it includes the natural propensity of the animal; whether ferocious or harmless; and the consideration as to whether it is useful to man. Earl v. Van Alstine, 8 Barb. 630. Q. 78. The owner of a mill obtained the right to construct and maintain a reservoir. Under the land were certain dis- used shafts, of a worked-out mine, leading to another mine operated under other land by the plaintiff. When the reser- voir was partly filled, the water broke into the shafts and flooded plaintiff's mine. Is the mill owner liable ? A. Yes. The defendant mill owner might have used the land for any purpose for which it might, in the ordinary course of the enjoyment of the land, be used; and if then there had been an accumulation of water which passed off into plaintiff's close, plaintiff could not have recovered. But here water was intro- TORTS 27 duced in quantities and in a manner not the result of any work or operation on or under the land ; and this defendant mill owner did at his peril. Eylands v. Fletcher (1868), L. E. 3 H. L. 330. But see Losee v. Buchanan, 51 N. Y. 476. Eor instance, proprietors of adjoining land can not comvlain of injurious effects caused by proper and careful mining opera- tions. "West Cumberland Co. v. Kenyon, L. E. 11 Ch. D. 779. See Bohlen Cas. Torts, 559, 580. Q. 79. The defendant had a series of three pools, to orna- ment his grounds, connected by weirs, and formed by dam- ming a natural stream which ran through defendant's grounds. A terrible thunderstorm, accompanied by the heaviest rainfall within the memory of living man, caused such a volume and flow of water in the stream that the dams were washed out, and four bridges belonging to the county were carried away and destroyed. Was the defendant liable to the county ? A. No. This is ascribable to an act of God. The series of pools is like a chimney stack. If the stack, though properly constructed, be overthrown by a hurricane, and cause damage, the owner will not be liable. NichGls v. Marsland, 46 L. J. Exch. 174. Q. 80. Defendant's trolley-car line ran along the shore of the sea. It generated electrical power at a station, the elec- trical current operating through the usual trolley wire, the re- turn current flowing through the rails. The rails, being unin- sulated, did not form a perfect conductor. Some of the cur- rent escaped, found its way to the plaintiff's submarine cable off-shore, and interfered with the sending and receiving of mes- sages. Is defendant liable to the cable company for such in- terference ? A. No. If the resulting injury be of a serious character (e. g. if the cable had been destroyed) , the doctrine of Rylands v. Fletcher would apply, and the car company would be liable. But it appearing that no tangible injury was caused, the cable company "can not claim higher privileges than other owners of land, and can not create for themselves by reason of the pecu- liarity of their trade apparatus, a higher right to limit the opera- 28 LAW STUDENTS' REVIEW tions of their neighbors than belongs to ordinary owners of land 1 who do not trade with telegraphic cables." Eastern, &c., Telegraph Co. v. Cape Town Tramways Co. (1902), L. H. App. Cas. 381. Q. 8i. Plaintiff brought an action in trespass. Defendant pleaded that by the force and violence of others he was car- ried upon the land of plaintiff, and was not there voluntarily. Is this a good plea ? A. The plea is good. It is no more the trespass of the de- fendant than if some stranger had, without defendant's consent, driven defendant's cattle on the land of plaintiff. See Cunningham v. Pitzer, 2 W. Va. 264. Q. 82. Is stretching telegraph wires over a man's land, with- out his permission, a trespass ? A. Yes. The owner of the land has the right to the exclu- sive possession of the space "even to the sky," as stated in the earlier works on the common law. There is no limitation of his ownership "within the bounds of any structure yet erected by man." Butler v. Frontier Telephone Co., 186 N. Y. 486. Note. — It seems doubtful, however, if an aviator, flying at a great height, would be guilty of trespass. Q. 83. The defendant tells X, with whom plaintiff is car- rying on negotiations looking to a partnership in trade, that plaintiff is in embarrassed pecuniary circumstances. By rea- son of this statement X puts an end to the negotiations. Can plaintiff recover against defendant? A. No. Not on this showing. No wrongful act is here shown to have been done by defendant. Rice v. Albee, 164 Mass. 88. Note, however, that Eigelow (Torts 240, 8th ed.) suggests a doubt as to this. Of course if the statement be false, or malicious, an action might lie. Q. 84. One Johanna Wagner, an opera singer, entered into a contract with one Lumley, the plaintiff, a theater manager, to sing for a certain period exclusively at plaintiff's theater. Defendant Gye, a rival theater manager, knowing of the sing- TORTS 29 ■er's contract with Lumley, procured her to break it and leave plaintiff's employment. On what theory can the plaintiff recover ? A. On the ground that defendant has unlawfully interfered with the "service" the singer had agreed to render to Lumley. It was thought hy Coleridge, J., that the right of recovery in such case was restricted to apprentices and servants. But it was held by the majority of the court that the principle extended to all cases of personal service. Lumley v. Gye, 75 Eng. Com. L. *216. Q. 85. Plaintiff, Minasian by name, was a skilled laster by trade, and had a contract with a boot and shoe manufacturing concern. With the consent of the concern, Minasian's father, who could not do all the work of a laster, helped him ; but only Minasian was paid, the father getting nothing from the con- cern. The work was piece work. The lasters' union called litis "cross-handed" work; and notified the employer that they would strike, unless the father was discharged. The employer refused ; a strike was called, which was orderly ; but by reason thereof plaintiff and his father lost their employment. The ' union claimed that "cross-handed" work resulted in injustice to the employes generally, and their only object in striking was to abolish that system. Have plaintiff and his father a right of injunction against the union? A. No. They would have unless the defendants have a suffi- cient justification for their conduct; but where, as here, the direct and main purpose is to secure a change in a system of work which is claimed to be unjust in its practical operation, and the ostensible object is not used as a mask for any ulterior design, the union men have the right to strike, and are not liable to be enjoined. Minasian v. Osborne, 210 Mass. 250. Q. 86. Suppose there is a strike "on," and the union men congregate near the employer's place of business, in the en- deavor to dissuade nonunion men from working or applying for work. Give a brief form of restraining order suitable to be entered by a court that they desist. A. "From molesting or annoying, or loitering or picketing in the streets near the premises (describing them) of complainant, 30 LAW STUDENTS REVIEW with intent to molest or annoy persons employed, or seeking or willing to be employed, by complainant." Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759. Q. 87. Suppose in defense to an action for procuring a breach of contract, it is urged that the contract, not having been in writing, was not enforcible by plaintiff. Is the de- fense valid ? A. No. The plaintiff has the right to any service which an- other is willing to give, whether for pay, or gratuitously. Bigelow Torts (8th ed.) 265. Q. 88. Plaintiff was under contract with the town of Adams, for a fixed sum per annum to support the town poor in sick- ness and in health, at his own risk. X committed an assault on one of the town paupers, and hurt him, and the plaintiff was put to increased expense to support him. Is X liable to plaintiff ? A. Not liable. There is no legal or natural relation "between • plaintiff and the pauper, so that plaintiff in a legal sense can be said to sustain any loss by reason of X's act." The damage is too remote and indirect. Anthony v. Slaid, 52 Mass. 290. Q. 89. A railroad company was in the habit of leaving cars on a siding, which sloped down a grade. Accordingly, the brakes were set on the cars. For years the railroad officials had been troubled by boys playing with and on the cars so left. On the occasion in question, the boys uncoupled the car and loosed the brake. The car started down the grade, and injured the plaintiff. Is the railroad liable? A. Not liable. The officials had no reason to expect that the boys would do what they did; and as the car was safe if left alone, the company was guilty of no negligence. McDowall v. Great Western E. Co. (1903) , L. E. 2 K. B. 331. Q. 90. Defendant carelessly left plaintiff's bars down. By reason of this plaintiff's sheep got out of their pasture and were destroyed by bears. They would have been safe in the pasture. Is defendant liable ? TORTS 31 A. This depends on whether under the circumstances the loss of the sheep by bears was an event which might reasonably have been anticipated from defendant's act in leaving the bars down. A jury should decide.' Gilman v. Noyes, 57 N. H. 627. Q. 91. Kellogg had a sawmill and a quantity of lumber, on the banks of the Mississippi. Defendant operated a steam- boat. Sparks from the boat set fire to an elevator 120 feet high, built of pine lumber and owned by defendant ; and this caused Kellogg's lumber pile, 538 feet away, to burn. An unusually strong wind was blowing from the boat toward the elevator and the lumber. Can Kellogg recover ? A. While as matter of law it can not be said that the proxi- mate cause of the burning of the lumber was the emission of sparks, yet in the foregoing case, the jury having found for the plaintiff, the verdict was allowed to stand. The law inquires "Was there any intermediate cause, disconnected from the pri- mary fault and self-operating, which produced the injury — * * *" This must be answered in accordance with common understanding. Milwaukee, &c. R. Co. v. Kellogg, 94 U. S. 469. 1 Thomp. Neg. (2d ed.) §§ 48, 49. Q. 92. The Dubuque Wood & Coal Company had a pile of wood on the levee of the Mississippi. The only way to get it to market was over a bridge, which it was the duty of the City of Dubuque to keep up. The bridge became impassable and so remained for some time — for a period at least long enough to permit hauling the wood to market. While it was thus impass- able, a flood came and washed away the company's wood. Is the city chargeable at the suit of the company ? A. Not chargeable. The most that can be said is that the neg- ligence of the city caused the company to delay removing the wood — delay caused the exposure to the danger of flood, ani then the loss came. The flood was the proximate cause; not the condition of the bridge. Dubuque, &c, Assn. v. Dubuque, 30 Iowa 176. Q. 93. Fire fell from a locomotive upon a horse attached to a wagon in the street below. The horse became frightened 32 LAW STUDENTS REVIEW and ran away. The driver attempted to drive him against a curbstone to arrest his progress. The wagon passed oyer the curbstone, threw the driver out and ran over and injured plaintiff. Was the company operating the locomotive liable.'' A. Yes, assuming defendant company was negligent in oper- ating locomotive. While there are several intervening acts, there is no intervening independent cause, which operates legally to shift the responsibility from defendant for its negligence. See Whittaker's Smith Negligence, 23. Q. 94. The plaintiff negligently permitted his donkey to be at large, unattended, in the highway. The defendant negli- gently ran into and injured the donkey. Is defendant liable ? A. Yes. The negligence of the owner of the donkey can not be regarded as the proximate cause of its being injured. Davies v. Mann, 10 Mees. & Wels. 546. Q. 95. The plaintiff was riding on the bumper on the rear end of an electric street car. The cars were running at inter- vals of two or three minutes. Plaintiff's car came to a sudden stop, and the car following could not be stopped in time to prevent a slight collision, whereby plaintiff was injured. Can he recover? A. No. Plaintiff was guilty of contributory negligence in vol- untarily placing himself in a position of known danger, and a verdict for defendant should have been directed. Nieboer v. Detroit Electric Ry., 128 Mich. 486. But note dissent, on ground that, while plaintiff assumed the risk of falling or being thrown from the car, yet his being run into "had no such relation to his injury as had the negligence of the defendant." Q. 96. A boy negligently pushed a second boy against plain- tiff, using ordinary care for his own safety, as plaintiff was passing along an elevated sidewalk -in a city. Plaintiff thereby was caused to fall against a rotten railing which broke, where- upon he fell to the ground below and was injured. The city had had notice of the defective condition of the railing. Is the city liable? TORTS 33 A. Yes. When the injury was the result, partly of a defect in the street, but also, partly by the negligence of another, which was the primary cause, yet the latter fact forms no excuse for the negligence of the city to keep its streets in proper repair where the damage would not have been sustained but for the de- fect, and the plaintiff was guilty of no fault or negligence. Carterville v. Cook, 129 111. 152. But see Eowell v. City of Lowell, 7 Gray 100. Q. 97. A policeman, while arresting an infant for violating an ordinance of the city, unnecessarily bruised and beat the in- fant. What do you say as to the liability of the city ? A. The city is not liable. It is a familiar rule of law that a city, in the performance of its police regulations can not com- mit a wrong through "its officers in such a way as to render it liable for tort. 4 Dillon Mun. Corp. (5th ed.), §1656. Q. 98. Section men on a railroad, kindle a fire on the right of way during the noon hour to warm their dinners, and leave it burning. The fire spreads to adjoining property and causes damage. Is the railroad company liable ? A. No. The negligence must arise in the course of the serv- ant's employment to render the master liable. I Thomp. Neg. (2d ed.) § 522. II Cooley Torts (3d ed.), 1027. Morier v. St. Paul &c. E. Co., 31 Minn. 351. Q. 99. A county conducted an almshouse. Through the negligence of an attendant, who left a bucket of hot water on a poorly lighted staircase, an inmate fell and was bruised and scalded. What do you say as to the county's liability ? A. Not liable. A county (unlike a city) is merely a political •division; and except as charged by statute, is not liable for the torts of its agents. Symonds v. Clay County, 71 111. 355. 4 Dillon Mun. Corp. (5th ed.) §1638. Q. 100. X is a guest at an hotel. A waiter dissatisfied with the gratuity X had given him, follows X into the lobby and 3— L. S. Rev. 34 LAW STUDENTS REVIEW there assaults him. Has X a cause of action against the owner of the hotel ? A. No. The liability of the master for intentional legal wrongs can only arise when that which is done is within the real or ap- parent scope of the master's business. It does not arise where the servant has stepped aside from his employment to commit a tort, which the master neither directed in fact, nor could be sup- posed from the nature of his employment to have authorized or expected the servant to do. II Cooley Torts (3d ed.), 1020, Q. 101. X, the owner of a building, instructs his coachman to shovel the snow off the roof of the building, and to be care- ful not to throw any of it on the passers-by in the street. The coachman secures the assistance of a friend and leaves him for a few minutes. During the absence of the coachman the friend by throwing a quantity of snow and ice from the roof, injures a passer-by on the street below. Is X liable ? A. Yes. The friend was practically the instrument by which the servant was doing the work directed to be done. It is not absolutely necessary that the technical position of master and servant should exist to make defendant liable. The owner of the property is responsible that it be so used that other persons receive no injury, and he is liable for an act of negligence on the part of a person permitted by those having the custody and con- trol thereof for the time. Althorf v. Wolfe, 22 N. T. 355. II Cooley Torts (3d ed.), 1008, Q. io2. In his private office an employer had a lavatory for his own use, which his clerks had orders not to use. They also had orders not to enter the private office in the absence of the employer. One of the clerks in the absence of his employer, turned the water on in the lavatory of the private office and neglected to turn it off. It flooded and injured a stock of goods in the room below. The owner of the goods sued the employer for damages. Should he recover ? A. No. The clerk was not acting within the scope of his em- ployment. He was in reality a trespasser, doing nothing for his employer, nor anything authorized by his employment Stevens v. Woodward, 6 Q. B. D. 318. TORTS 35 Q. 103. Freeman falsely and deceitfully induced Pasley to sell goods to Falch, by asserting that Falch was a person safely to be trusted and given credit. Pasley relied on this, and sold to Falch and gave him credit. Freeman well knew that Falch was not to be trusted; and Falch did not in fact pay for the goods. Freeman when sued by Pasley, defended on the ground that he was not a party to the transaction. Is Freeman liable to Pasley? A. Freeman is liable. While fraud without damage, and dam- age without fraud will not found an action, yet where both con- cur, an action lies. It is not "a naked lie" when the lie is acted upon by another to his injury and is told foi that purpose; and it is not necessary that the person who tells the lie be benefited thereby. Pasley v. Freeman, 3 T. E. 51. Bohlen Cas. Torts, 657. Q. 104. It is said that a mere expression of opinion, "puff- ing" goods, even if made in bad faith, does not render the seller liable as for deceit. Suppose, in order to sell an hotel wherein there is a tenant X with a long lease, the owner says, "X is a very desirable tenant"; when in point of fact X has been very dilatory in paying his rent. Does this amount to deceit ? A. Yes. This statement involves a statement of fact as well as the expression of an opinion. "If the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a mate- rial fact, for he impliedly states that he knows facts which justify his opinion." (Bowen, L. J.) Smith v. Land & House Property Corporation, L. R. 28 Ch. D. 7. Q. 105. Defendant sold plaintiff a horse which he repre- sented as being sound. In fact the horse was not sound ; but was infected with the glanders. The plaintiff sued in case and alleged that the defendant induced the plaintiff to buy the horse by statements which defendant knew to be false. Plain- tiff proved that the horse was unsound, but failed to prove that defendant knew this. Can plaintiff recover ? 36 LAW students' review A. Not in an action on the case. If there was a warranty, he might recover in assumpsit; but to recover on the ground of de- ceit, he must allege and prove that defendant knew of the false- ness of his representation. Failing in this, he can not recover. Mahurin v. Harding, 28 N. H. 128. Q. 106. A false prospectus of a proposed company •con- cerning the financial condition of a firm which was to be merged into the Company was issued by the directors. ■ It was stated that £500,000 had been paid to this firm, and that the firm was in such a flourishing condition that its good will was worth that sum. In point of fact, while such a sum was paid, it was to be applied to the debts of the firm. The firm was insolvent. Plaintiff, relying on the prospectus which was addressed to the public and invited them to take allotment of shares, after- ward took shares, though not by allotment, in the company, and lost heavily thereby. Are the defendant directors liable to the plaintiff? A. No. For two reasons — First, it does not appear that the directors and the plaintiff were brought into direct communica- tion; and second, the prospectus concerned only the allotment of shares; not subsequent purchases of shares after allotment had been made. Peek v. Gurney, 6 H. L. Cas. 877 (Eng. & Ir. App.). Q. 107. An owner's title to real property depended on a judgment of court in his favor. In order to induce a purchaser to buy, he stated that his title was good and exhibited papers to confirm this. He, however, refrained from mentioning the fact that a petition for a review of the judgment was pending. The judgment was reversed, and the purchaser lost his title. Was seller bound to mention the petition for review ? A. Yes. If he gives any fact he must give all the qualifica- tions of that fact; otherwise he fails to give a true statement. Accordingly the purchaser may recover damages for the deceit. Atwood v. Chapman, 68 Maine 38. Q. 108. Defendant directors procured $1,500 from plain- tiff, saying they wanted it to add to the buildings of the com- pany, and to buy horses and vans. TORTS 37 In point of fact they wanted the money for something else. Plaintiff let them have it, relying on the above representation. Can he recover ? A. Yes. While a mere suggestion of possible purposes for the money, to which it was not in fact applied, would be insuffi- cient to found an action of deceit, yet "the state of a man's mind is as much a fact as the state of his digestion." And a false statement concerning it may found the action. Edgington v. FitzMaurice, L. E. 29 Ch. D. 459. O. 109. Osmond Wells sent his brother, the plaintiff, to act as his agent in buying sheep. The defendant falsely assured plaintiff that a certain flock was sound. Plaintiff then bought them for his brother's account, and they were turned in with his brother's herd. In fact the defendant's flock had foot-rot, a highly^ contagious disease, and the whole herd was infected. But before this was known plaintiff, relying on defendant's said assurance, bought the herd from his brother. Then the dis- ease broke out, rendering the flock almost entirely worthless. Can plaintiff recover for deceit from defendant? A. No. If A makes a false statement to B, meaning that C and C alone shall act on it, and thereupon B assumes to act on it, and is damaged, B has no action against A. Wells v. Cook, 16 Ohio St. 67. But otherwise if made to a mercantile agency; the intent that others shall act on it being assumed to exist. Eaton v. Avery, 83 N. Y. 31. O. no. Respondent said he had the right to sell liquor, as he held a license from the United States; and that if plaintiff bought his bar, plaintiff could sell under respondent's license. In truth, of course, the government license protected only re- spondent. Plaintiff, however, acted on this assurance, and bought respondent's bar. Can plaintiff recover? A. No. This was a matter of law which plaintiff was just as much bound to know as was respondent. Gormely v. Gymnastic Assn., 55 Wis. 350. Q. in. What elements must concur to amount in law to deceit ? 38 LAW students' review A. (1) Untrue statement of material fact, (2) Known by maker to be untrue; or recklessly made, the maker not knowing whether it be true or untrue, (3) Intended by maker to be acted upon by another, (4) In fact acted on by such other to his harm. Taylor v. Commercial Bank, 174 N. Y. 181. Edgington v. FitzMaurice, L. E. 29 Ch. D. 459. Q. H2. The law says that a plaintiff not using due care, or guilty of contributory negligence, can not recover. Plaintiff, a laborer, was employed by defendant in hauling barrels and digging, and was ordered to do some work connected with making a benzole compound. This required the use of sul- phuric and nitric acid, and other substances, and produced poisonous fumes. Paintiff inhaled them and left the works declaring "he could not stand it." Defendant's superintend- ent assured him that it wouldn't hurt him ; ordered him back ; and he returned to work. He inhaled more fumes and was made sick for months. Can he recover ? A. Yes. It does not appear that when he said he "couldn't stand it," and quit, he knew, or had reason to know that inhal- ing the fumes would injure him permanently; and he had the right to rely on the superintendent's assurance, and go to work. Wagner v. Jayne Chemical Co., 147 Pa. 475. 5 Thomp. Neg. (2d ed.) § 5383. Q. 113. Respondent, a construction company, was engaged in building car shops. Plaintiff was assisting in various kinds of work about the buildings. He had been a bridge carpenter and was considered an "all around" competent workman. On the day prior to the accident in question, he had been em- ployed at the hoist which caused the injury, then at another hoist ; and on the day he was hurt, was called back by his fore- man to the first mentioned hoist. He took his position at the cornice of the building and leaned over to guide the rope, as- suming that the hoist was properly adjusted. The hoist was improperly adjusted and tipped over; and he was thereby pulled to the ground and injured. Is the company liable? A. No. While in the first instance the master must use rea- sonable care to supply safe appliances and apparatus in the TORTS 39 work he calls upon his servants to do; yet when the making or adjustment of appliances and apparatus, as the work progresses, is a part of the servant's duty, each employe 1 assumes the risk of negligence of fellow workmen in respect thereto. Gittens v. William Porten Co., 90 Minn^ 512. Q. 114. A fireman was killed by reason of the fact that the engineer with whom he worked ran the engine upon a trestle which broke down. It was not intended for such great weight. There was a rule of the defendant railroad company that en- gines should not be run on the trestle; and this the engineer knew (and disregarded) ; but the fireman did not know of it. Assuming that there was negligence on the part of the railroad company, can the fireman's representatives recover ? A. Held, that they can, on the ground that contributory neg- ligence, to defeat recovery, must be that of the party injured — and may not be that of a fellow servant. Paulmier v. Erie E. Co., 34 N. J. L. 151. But see Philadelphia Iron &c. Co. v. Davis, 111 Pa. 597. In Vaisbord v. Nashua Mfg. Co., 74 N. H. 470, the test is said to be whether the negligence of the fellow servant would have caused the injury, irrespective of the negligence of the master. If it would not thus have caused the injury, the master is liable. O. 115. A locomotive engineer employed by a railroad com- pany, was injured through the carelessness of a switchman of the company in the management of the switches. Can the engineer recover from the company? A. This presents the question of "assumed risk" on the part of an employe. It was urged that a master is responsible for injury of a servant to a fellow servant just as he would be charge- able in the case of a stranger. But the law is that the perils arising from the carelessness of a fellow servant, like other dangers of the service, are assumed by the servant. And in the above instance the engineer and switchman were held to be fellow servants. Recovery denied. Farwell v. Boston, &c. E. Co., 4 Mete. 49. Q. 116. How can you determine (for instance in the pre- ceding question) whether two servants of a common master are fellow servants? 40 LAW STUDENTS REVIEW A. They must be employed in a common undertaking; and the duties of each must be such as to enable him to observe the conduct of the other; so that he may protest against and give notice to the employer of misconduct or incapacity of the other; and leave the service if the employer does not. take measures to protect him. Farwell v. Boston, &c. E. Co., 4 Mete. 49. See Bohlen Cas. Torts, Appendix A. 4 Thompson. Neg. (2d ed.), §§ 4917-4921. Q. 117. Plaintiff's intestate was engaged at night with nine other workmen in removing from a wheel pit of defendant's factory a large gear wheel weighing 12 tons. The gang were directed by a capable master-mechanic ; but he was persuaded by his son, a small boy, to leave the work and go home. The work then proceeded under the direction of one Johnson, who had no mechanical training. The master-mechanic, foreseeing that portions of the wheel would need support, left instruc- tions ; and one of the workmen got tackle and supports from defendant's stock. These were sound and good; but were so unskillfully used that a wheel section fell and killed the in- testate. Is defendant liable? A. Yes. It was claimed that as the defendant had furnished sound appliances, and a competent man to direct, this was all the law required. But the master-mechanic's act in going away was the act not of a fellow servant, but rather of the employer; and defendant is liable. McElligott, Admr., v. Eandolph, 61 Conn. 157. Q. 1 18. A fatal accident happened under the following cir- cumstances: Deceased was engaged in placing, bags of rice, weighing 250 pounds, in slings, and hooking the slings into a thimble at the lower end of a wire rope used for hoisting. While he was at work, a thimble broke and the bag of rice fell upon him, causing his death. The thimble, shaped like an in- verted horse's collar, was found to be rusty, and worn at the point of fracture. It had been in use for seven years. The defects were discoverable on removing the lashing which held it in place. Defendant, a steamship company, employed a store-keeper whose duty it was to see that the hoisting gear was in good condition. Assuming the store-keeper to have been TORTS 41 selected with care, is the steamship company liable to admin- istratrix of deceased? A. Yes. When it is the employe's duty to inspect apparatus he and others are using in the common employment, then he is a fellow servant, and the employer is not responsible. But if the master has cast this duty on another employe not using the apparatus in common with others, that employs then represents the master, and the master is chargeable with his fault. Nord Deutscher Lloyd S. S. Co. v. Ingebregsten, 57 N. J. L. 400. Union Pac. E. Co. v. Daniels, 152 U. S. 684. 4 Thomp. Neg. (2d ed.) §§ 3760, 4654. Q. 119. An inexperienced girl of 16, the plaintiff, was set by the defendant to watch cans below carding machines, and to replace filled with empty cans. Occasionally hemp fell from a machine. The foreman told her to replace this hemp between the rollers and showed her how. This brought her hands near the rollers. While doing this her hand and arm were caught between the rollers and lacerated. Is defendant liable? A. Yes. If a young and inexperienced person be employed in dangerous work, he must be warned of the danger, and shown how to avoid it. Grizzle v. Frost, 3 Foster & Finl. 622. Although even with a minor there is no duty to warn of dan- gers which are obvious to one of his age and capacity. Truntle v. North Star Woolen-Mill Co., 57 Minn. 52. Q. 120. The statute of Ohio requires every railroad corpo- ration to block its guard rails and switches, so as to prevent the feet of its employes being caught therein, and provides a penalty for violation. Defendant, a railroad corporation, failed to comply with the law. The plaintiff, employe, a switchman, was injured by reason of his foot becoming caught in an unblocked guard rail. He sued. The company defended on the ground that the failure to block was obvious ; and plaintiff had assumed the risk incurred. Can plaintiff recover? A. Yes. Though he knew that the guard rails were not blocked, yet as the doctrine of assumed risk rests upon contract. 42 LAW STUDENTS REVIEW ' the courts will not recognize an agreement, express or implied, to waive a statutory duty, the breach whereof is a criminal offense. Narramore v. Cleveland &c. E. Co., 96 Fed. 298. Q. 121. Assume in the foregoing question that the plain- tiff was guilty of contributory negligence ; then can he recover ? A. No. While the law will not uphold a contract which for its validity contemplates the violation of a statute; yet one who knowing the risk fails to use care reasonably commensurate therewith, can not recover. Cleveland &c. E. Co. v. Baker, 91 Fed. 224. However, children employed in contravention of statute are not barred by contributory negligence. Stehle v. Jaeger Automatic, &c, Co., 220 Pa. 617. Note: Massachusetts, Minnesota, Rhode Island and some other states, and also the C. C. A. 8th Circuit (Denver, &c, R. Co. v. Norgate, 141 Fed. 247) hold otherwise as to assumption of risk. See Bohlen Cas. Torts, Appendix. Q. 122. Distinguish between contributory negligence and assumption of risk. A. A servant who has knowledge of the risks he is taking, may.be said to assume them; and if they be great, the law con- templates that his wages are greater than they would otherwise be. Contributory negligence refers to failure to use reasonable care to discern and avoid danger. See Narramore v. Cleveland, &c. R. Co., 96 Fed. 298. 4 Thomp. Neg. (2d ed.) § 4611. Q. 123. A child of tender years, not attended by parent or guardian, was negligently run over and injured by defendant while the child was playing in a public street. The defendant sought to escape liability, on the ground that the child's parents or guardian should have prevented him from thus exposing himself to danger. Is the defense good? A. No. If the defendant by the exercise of ordinary care could have prevented the injury, he should have done so. The want of care of parent or guardian will not be "imputed" to the child. Bisaillon v. Blood, 64 N. H. 565. But see Hartfield v. Eoper, 21 Wend. 615. TORTS 43 Q. 124. One Doyon, the owner and driver of an automobile, invited his friend the plaintiff, to take a trip with him as his guest in Doyon's car. En route they picked up two additional guests. They left Church's Ferry in North Dakota a little be- fore dark. When they had gone about eight miles the gas which supplied their lamps gave out. They had an oil lamp on the dashboard of the car, but neither wick nor oil. They proceeded about two miles in the dark, and tried to get an ordinary lan- tern — but failed. They did, however, get some kerosene and a wick ; but the wick was too large for the lamp ; and the light afforded thereby was very dim. None of the occupants of the car knew the road — except one ; and he had not been over it since the defendant railway had built its line and made a cut several months before the accident. They travelled over a sort of prairie trail ; and shortly before reaching defendant's rail- way track, they got off the trail. In trying to get back, the car went over defendant's embankment, and plaintiff was injured. Had the car been supplied with proper lights, the party would not have taken this trail, but would have used the public road and thus the accident would have been avoided. Assuming that it was negligent in the owner of the car to drive without sufficient light, and that plaintiff exercised no control over it, may the driver's negligence be imputed to the plaintiff ? A. While the rule is established that the contributory negli- gence of the driver of a public conveyance will not be imputed to a passenger (Little v. Hacket, 116 U. S. 366) ; and the rule has been extended to include a person who accepts a gratuitous in- vitation of the owner and driver of a vehicle even though not a public conveyance ; yet a passenger or guest who with knowledge of the danger voluntarily remains in a dangerous position is not, if injured under such circumstances, entitled to recovery. In the above case the plaintiff, as a reasonably prudent person, must have known of the danger he was in; and remaining, as he did, in the car with full knowledge of that fact, he "was as guilty of negligence as the driver himself." Rebillard v. Minneapolis &c. E. Co., 216 Fed. 503. CHAPTER II CRIMINAL LAW Question i. What elements must combine to constitute a crime ? Answer. (1) Violation or neglect of legal duty. (2) Punishment provided by law — either the common law or a statute. See May Crim. Law (3d ed.) § 1. Q. 2. The two classes or grades of crime are felonies and misdemeanors. What is the difference between them ? A. Originally such crimes as involved the forfeiture of the estate of the convicted person were felonies. 4 Blackst. Com. 94. The test now is whether the offense is punishable by imprison- ment in a state prison. 1 Bish. Crim. Law § 618. Lesser crimes are misdemeanors. Q. 3. Suppose X is told by Y that unless he (X) kills L, an innocent person, he will himself be killed by Y ; and that X has reason to believe that Y will carry out his threat. Does this excuse X, under the plea of necessity or compulsion, for taking L'slife? A. "The authorities seem to be conclusive that at common law no man could excuse himself, under the plea of necessity or compulsion, for taking the life of an innocent person." Arp v. State, 97 Ala, 5. But coercion of a wife by her husband may be a defense for the wife, except for treason and murder, and perhaps perjury and crimes of violence. May Crim. Law (3d ed.) § 37. Q. 4. Defendants were indicted for adultery. The female defendant was lawfully married to another man ; but her hus- 45 46 LAW students' review band had married again; and she had been advised by a jus- tice of the peace that on this account she and her codefendant had the right to intermarry. It was found that they had been married, or had attempted to be married, in good faith. Does this excuse them or either of them ? A. No. While in some instances, especially in cases of negli- gence, a person may commit an unlawful act and still be ex- cused ; yet in the present case a sufficient criminal intent is con- clusively presumed against the defendants. They were bound to know or ascertain the law and the facts for themselves at their peril. State v. Goodenow, 65 Maine 30. Q. 5. Indictment for wilfully voting, defendant knowing himself not to be a qualified voter. Defendant offered evidence that he had consulted counsel as to his right to vote, had sub- mitted to them the facts of his case, and was advised that he had the right. Is this evidence admissible? A. It is admissible. The offense is not committed unless the party undertaking to vote knew that he was not a legal voter; and the lower court, having instructed that the fact of defend- ant's consulting counsel as to his right to vote, "could not be re- garded as negativing a knowledge of his lack of legal qualifica- tions to vote" — the case was reversed. Commonwealth v. Bradford, 50 Mass. 268. Q. 6. One Morris assaulted defendant's brother. Defend- ant undertook to follow Morris home, intending to kill him. In the dark, he overtook one Thompson with whom defendant was entirely friendly. Supposing Thompson to be Morris, de- fendant cut and dangerously wounded him. Thompson cried out; and defendant perceiving his mistake, desisted from his attack and ran away. On these facts, will assault with intent to murder Thompson lie? A. Yes. 'While defendant did not intend to kill Thompson in the sense that he formed in his mind the intention to kill his friend of that name; yet he did intend to assault and kill the person at whom he struck the blow. The mistake in identity is no defense. McGehee v. State, 62 Miss. 772. CRIMINAL LAW 47 Q. 7. On a Sunday, a person from the street came into respondent's bar-room. The clerk, and a servant of respondent's hotel were in the bar-room — the servant was "scrubbing it out." The visitor asked for whiskey; the clerk gave him some. He paid the servant. The respondent was not present at the time ; but was "somewhere about the house": and was in the bar- room shortly afterward. He was convicted under a statute providing that bar-rooms "shall be closed" on Sunday. It was objected that the respondent neither assented to the opening of the bar, nor expected or desired that it should be opened. Should the conviction stand ? A. Intent need not be proved here. The object of the statute is to require a degree of diligence which shall render violation impossible. Accordingly the conviction should stand. Moreover it is also held that as to intent, there is enough to submit to a jury, if intent were necessary to be proved. People v. Eoby, 52 Mich. 577. Q. 8. Heath was indicted for having in his possession, knowing it to be counterfeit, with intent to circulate, certain counterfeit money. The proof showed that the only act of uttering was delivering a box containing 2,800 bad shillings and 1,000 bad sixpences at a coach office at an inn in Birming- ham, addressed to a man at Glasgow. The box was stopped at the inn. The uttering was pleaded as being to the bookkeeper at the inn. Is the misdemeanor here charged, proved as laid? A. No. Here an "act" must be proved; also an "intent — " "Having in possession," and the term "knowingly" etc., annexed, can not be considered an act; and an intent without an act is not a misdemeanor. Rex v. Heath, Euss. & R. 184. Q. 9. A laborer, Davis, had been drinking heavily. He be- came sober; but attacked and threw down his sister-in-law, with whom he had been on good terms, and tried to cut her throat. After arrest he said, "The man in the moon told me to do it." It appeared that he was suffering from delirium tre- 48 LAW STUDENTS' REVIEW mens, caused by over-indulgence in drink ; that he knew what he was doing, but could not control his actions. Can he be convicted of felonious wounding ? A. If the accused had committed the crime while drunk, he might be convicted; for drunkenness would not here constitute an excuse. But delirium tremens, while caused by drinking, is not a condition of drunkenness. Accordingly, if he did not know that the act was wrong, he was insane. (The jury so finding, brought in a verdict of not guilty on the ground of insanity.) Eeg. v. Davis, 14 Cox. C. C. 563. Q. 10. At the common law, murder is the killing of a human being with malice aforethought. Suppose a man is charged with assault with intent to murder; and it is shown that at the time of the assault he was too drunk to form the in- tent. Can he be convicted? A. No. Where to constitute a crime, a specific intent must be shown, evidence is admissible to show that the intent could not have been formed. State v. Pasnau, 118 Iowa 501. And where a statute divides murder into degrees, involving •deliberate premeditated malice aforethought, and murder in the second degree, not involving premeditation, drunkenness might leduce the offense from the first to the second degree. May Crim. Law (3d ed.) § 47. Q. 11. Guiteau killed President Garfield. His defense was insanity. The evidence tended to show that (1) He thought the Republican party must be united. The only way of doing this was to kill the President. Therefore (he thought) killing the President would not be murder. (2) He labored under the delusion that he was inspired by the Almighty to do the deed. What legal test must the jury employ to determine the validity of this defense ? A. If Guiteau either did not understand what he was doing, or if he did not understand it was wrong, the jury should acquit. But if he knew what he was doing and that it was wrong, then a fancy about the Eepublican party or the will of the Almighty -will not excuse him. One test is: Had another committed the act, would Guiteau have appreciated the wickedness of it? Guiteau's Case, 10 Fed. 161. CRIMINAL LAW 49 Q. 12. Do the following constitute attempts to commit crimes : (a) Taking a false oath in order to procure a marriage li- cense? (Crime: marrying without a license.) A. Yes. (b) Sending an order to San Francisco to buy intoxicating liquor to be shipped to Alaska? (Crime: intrdoucing liquor into Alaska.) A. No. (c) Administering a substance supposed to be poisonous, but in fact innocuous? A. No. (d) Feloniously setting aside goods with the purpose of later carrying them away. A. Yes. May Crim. Law (3d ed.) § 183. Q. 13. What is the dividing line in the above? A. An "attempt" is an endeavor to do an act, which endeav- or is carried beyond mere preparation, but which falls short of execution. People v. Moran, 123 N. Y. 254. Q. 14. An indictment charged the accused with attempting to commit larceny from the person, by attempting to steal cer- tain goods of the value of $10. The evidence showed that the accused was seen to thrust his hand into a woman's pocket in a crowded market in New York, and to withdraw it empty. The woman mingled with the crowd, and was not to be found. Is there an "attempt" here ? A. The intent to steal is plainly inferable. The accused did an act tending to effect the commission of the crime. While it had been held in England that a pick-pocket can not be convicted of an attempt to steal, without proof that there is something in the pocket to steal ; yet in New York, and generally in the United States, it has been held otherwise. Accordingly, the foregoing constitutes an attempt. People v. Moran, supra. People v. Jones, 46 Mich. 441. Clark v. State, 86 Tenn. 511. 4— L. S. Rev. 50 LAW STUDENTS REVIEW Q. 15. Charge: Attempt to ravish. Defense: Impotency. Is the defense good ? A. No. The fact that defendant is not able to consummate the crime does not preclude his making a criminal attempt. Territory v. Keyes, 5 Dak. 244. But note that at common law, a boy under 14 being presumed incapable, can not be convicted of an attempt to ravish. The dis- tinction is that had the adult done what he intended to do, the crime itself would have been committed. But not so in the case of the boy. Reg. v. Williams, 62 L. J. M. C. 69. Q. 16. A boy 13 years of age killed his companion, and then hid himself. Can he be convicted of murder? Give the common-law rule applicable. A. He may be convicted. Fiding shows that he knew he had done wrong and could discern between good and evil. The com- mon-law rule is that a child under the age of seven is conclu- sively presumed incapable of committing a crime. Between seven and fourteen he is presumed incapable; but the state :nay rebut this presumption (but see preceding answer), and show that he can discern between good and evil. At fourteen and upwards he becomes fully answerable for his crimes. 1 Blackst. Com. 464, 465. Q. 17. Defendant, a member of the board of supervisors of Erie county, was indicted, tried and convicted for corruption in such office. It appeared that he corruptly voted that an account presented against said county be allowed and made a charge against the county. In so voting he acted judicially in examin- ing, settling and allowing the account in question. Can the conviction be sustained? A. Yes. While it is well settled that no prosecution by infor- mation or indictment can be sustained against any judge of a superior court of record for any act done by him as such judge, yet the rule does not apply to magistrates or other officers re- quired to perform duties involving discretion, judgment and decision. People v. Stocking, 50 Barb. 573. Q. 18. In a trial of two for murder, the court instructs the CRIMINAL LAW 51 jury tha^ "one who stands by when a crime is committed in his presence by another, and consents to the perpetration of the crime, is a principal in the offense and must be punished as such." Is this instruction good ? A. No. One who stands by and aids, abets or assists in the perpetration of the crime is an accessory before the fact and is to be treated as a principal. But there is a plain distinction be- tween mere consenting on the one hand and aiding, abetting or assisting on the other. The latter words are affirmative in their nature; while consenting may be by a mere negative acquies- cence not in any way made known to the principal malefactor. White v. People, 81 111. 333. Q. 19. The accused, intending to kill a certain child, de- livered to the child's nurse about an ounce of laudanum, telling the nurse that it was proper medicine for the child, and that she should administer a teaspoonful every night. The dose would be sufficient to cause death. The nurse did not give any laudanum to the child ; but during her absence, a boy 5 years of age got hold of the bottle, and gave the child a much larger dose than a teaspoonful, by reason whereof the child died. Was accused guilty of murder ? A. Yes. This for the reason that the poison was administered by an unconscious, or innocent agent. It was therefore in law the act of the accused. Eeg. v. Michael, 9 C. & P. 356. Q. 20. Defendant, and deceased, whose life he had taken, had quarrelled about the right of possession of a shed. De- fendant's tools (he was a farmer) had been thrown out of the shed. He had put them back. They had again been disturbed ; and on the day of the homicide, he was again securing them. Angry words passed between him and the deceased; and de- ceased approached in a threatening manner with an axe over his shoulder, warning defendant not to enter the shed. De- ceased advanced toward the shed, and within striking distance of defendant. Defendant then shot him. Apply to this situation the correct law as to self-defense. A. Assuming that defendant had not provoked the attack, or the threatened attack, he was not obliged to flee from his assail- 52 LAW STUDENTS REVIEW ant, or to "retreat to the wall," provided that the attack is so sudden, fierce and violent that he might reasonably believe a re- treat would not dimmish, but might increase his danger. Erwin v. State, 29 Ohio St. 186. Q. 21. A counterfeiter offered a counterfeit banknote to one Newland, at Gosport. Two confederates, who knew the note was counterfeit, waited at Portsmouth, across the water, till the counterfeiter should return to Gosport. All three had been concerned in passing another note of the same sort, and in sharing the proceeds. Were the two confederates principals, or only accessories ? A. Accessories. They were not present at the time of uttering the note; nor were they near enough to be able to afford any assistance to the accomplice who uttered it. Rex v. Soares, Euss. & E. 25. Q. 22. Accused was charged with unlawfully receiving, harboring and maintaining one John Dull, knowing him to have committed a felony. What is the crime of which accused stands charged ? And what must be shown to convict accused ? A. Accessory after the fact. It must be shown that a felony has been completed; that accused knew that the felon is guilty; and that accused gave personal help to the felon, with the view of enabling him to escape punishment. The kind of help is unim- portant. Wren v. Commonwealth, 26 Gratt. 952. Q. 23. Two burglars broke into a store, feloniously intend- ing to steal chattels. Defendant did not break or enter ; but act- ing in concert with the two burglars, watched outside near at hand to give assistance if required. Defendant was indicted for burglary. Should he be convicted as principal or as acces- sory? A. As principal. He is, however, a principal in the second degree. The distinction between a principal in the second degree and an accessory before the fact lies in the presence of such principal for the purpose of aiding in the crime. Had he not been present, he would by reason of having acted in concert with the burglars, have been an accessory before the fact. Doan v. State, 26 Ind. 495. CRIMINAL LAW 53 Note: That a principal in the second degree, unless otherwise provided by statute, may be convicted as a principal. Q. 24. A makes false and fraudulent pretenses to B in New- York city for the purpose of obtaining money from him. The next day they meet in Albany, where B, relying on the state- ment made by A the day before, but without anything further being said, pays A the money. Where should A be indicted for obtaining money under false pretenses ? A. At Albany. It was there that the offense was completed. 12 Cyc. 233. Q. 25. May a private person arrest (a) on seeing a felony committed ? (b) on probable suspicion of a felony? A. (a) Yes; he is bound by law to make the arrest, and may break open doors. (b) Yes ; but he may not break open doors to do it. 4 Blackst. Comm. 292. Q. 2.6. The common form of formal accusation is by indict- ment. What are the other forms ? A. Information — a sworn accusation by the attorney-general ; and complaint, a sworn accusation by a private person. The lat- ter is usually allowed only in case of small misdemeanors. May Crim. Law (3d ed.), § 90. Q. 27. The accused was a constable. He had in charge an offender one Thomas who had, before a justice of the peace, been convicted of assault, and adjudged to pay a fine and costs. Thomas started to run away. The accused called upon him three times to halt, but Thomas kept on running. Accused then fired two shots, and killed Thomas. Accused was a man of good character; and testified that he did not intend to kill Thomas. Of what crime, if of any, is accused guilty? A. Manslaughter. While an officer, if he can not otherwise retake him, may kill a convicted felon in his custody who is at- tempting to escape; yet he may not thus kill a person guilty 54 LAW STUDENTS REVIEW only of a misdemeanor. Such killing may constitute murder; but, as above, it appearing that death was not intended, the crime was manslaughter. Eeneau v. State, 2 Lea 720. Q. 28. Accused, being indicted for murder, signed a waiver of a jury. He was convicted by the court, and then brought error relying on the doctrine that "a prisoner in a capital case stands upon all his rights." Should he succeed in sustaining this position ? A. No. The doctrine means only that he is not to be presumed impliedly to waive any rights. He may expressly waive any or all rights. He may plead guilty, and waive the right of a trial by jury. People v. Scates, 3 Scam. 351. Q. 29. Accused was indicted for forging the name of John McNicole and Co. ; and the signature in the proof against him was John McNicoll. Claim of variance. Does this constitute a variance ? A. The substitution of the letter "e" for the final letter "1" does not make it a different name; and there is no variance. Reg. v. Wilson, 2 Cox Crim. Cas. 426. (Note here that the pronunciation of the name would naturally differ somewhat; but still there is held to be no variance.) Q. 30. The evidence was that the victim of a homicide was dangerously wounded by accused; but it was conflicting as to whether the deceased came to his death from the effects of the wound, or from improper treatment of the wound by the attending physician in sewing it up. The court charged that if the wound was not mortal, and it clearly appeared that the treatment and not the wound was the cause of the death, and that if the ill-treatment relied upon was the sewing up of the wound with stitches or other compresses, the defendant would not be excused if otherwise guilty. Was this charge correct? A. No. It amounts to saying that while the prisoner might be excused by erroneous treatment of the attending physician, yet CRIMINAL LAW 55 if such treatment consisted in sewing tip the wound the accused will be held accountable. In instances of this character, the jury must say either that the wound caused the death in the sense that but for the unskillful treatment the victim would have sur- vived ; or that it did not cause the death. Parsons v. State, 21 Ala. 300. Q. 31. Defendants were complained of for selling spirituous or intoxicating liquor without any license, to one Patrick G. White. Motion in arrest because complaint did not sufficiently charge violation of statute, it being in the disjunctive. What do you say as to the sufficiency of the complaint ? A. When the word "or" in a statute means to-wit, that is, when it explains what precedes, then a complaint or indictment which follows the words of the statute is well framed. But the above two words "spirituous" and "intoxicating" are not synony- mous. While all spirituous liquor is intoxicating, yet all intoxi- cating liquor is not spirituous, i.e., distilled. Accordingly as the complaint leaves it uncertain which kind defendants are charged with unlawfully selling, it is bad. Commonwealth v. Grey, 2 Gray 501. Q. 32. The statute provided that no person should keep open his shop * * * or do any manner of labor, business or work, except only works of necessity and charity, on the Lord's Day. The defendant was indicted fof keeping open his shop and suffering persons to resort thereto on the Lord's Day, specifying the day. Is this indictment sufficient? A. No. The indictment should state that he kept the shop open to transact business, or should state some unlawful pur- pose. Non constat that in this instance the defendant did not keep it open for a religious meeting. Commonwealth v. Collins, 2 Cush. 556. Q. 33. Accused was indicted for cutting and binding wheat on the Sabbath day commonly called Sunday. It appeared that he was a poor man ; that for some days prior to the alleged of- fense he had exchanged work with neighbors, who were to help him in return. That he had no cradle, but was able to 56 LAW STUDENTS' REVIEW borrow one for use on Sunday ; that on the day in question the weather was threatening — and that his wheat had been ripe for several days. Was his defense that it was a work of necessity good ? A. No. The court adverted to the fact that it did not appear that he had tried to borrow a cradle earlier; and that he was working for others when he "should have been working for himself." State v. Goff, 20 Ark. 289. Q. 34. In indictments for statutory offenses, how do you plead (a) exceptions in the clause which creates the offense; (b) exceptions contained in subsequent clauses? A. If the exception is contained in the clause which creates the offense, the indictment must show negatively that the de- fendant does not come within the exception. If the exception occurs in a subsequent clause, it is matter of defense, and need not be negatived in pleading. Sedgwick, Construct, of L. (2d ed.) p. 50. Dwarris, 9 Law Library *661. Q. 35. Accused was convicted of murder. He moved in arrest of judgment on the ground that there had been no proper venire for the jurors who tried him. Motion allowed. After the arrest of judgment he suggested that he had been once in jeopardy, and should be discharged without being subjected to another trial. Is he entitled to a discharge ? A. No. The arrest was on his motion; and an act done at the request and for the benefit of a prisoner can not exonerate him from another trial. People v. M'Kay, 18 Johns. 212. Q. 36. Petitioner (habeas corpus) had been indicted and convicted for stealing mail bags belonging to the postoffice de- partment. The punishment for this offense was imprisonment for not more than a year or a fine of not more than $200. Pe- titioner was sentenced to one year's imprisonment and to pay $200 fine, and was committed to jail in execution of the sen- tence. He paid his fine the next day; and the day after that CRIMINAL LAW 57 the prisoner was brought before the court, and an order was entered vacating the former judgment, and he was again sen- tenced to one year's imprisonment from that date. All this was at the same term of court. Thereupon he brought his petition for habeas corpus on the ground that where the court had imposed fine and imprisonment, the law only providing for fine or imprisonment and the fine had been paid, the court could not even at the same term modify the judgment by im- posing imprisonment instead of the former sentence. What is the law? A. The writ should be allowed to go and the prisoner should be discharged. Inasmuch as there were alternative penalties of the law and one of them has been met and discharged by the petitioner, the power of the court as to the offense in question is at an end; and the substitute judgment and sentence is a nullity. Ex parte Lange, 18 Wall. 163. Q. 37. The prisoner was indicted for committing murder on the high seas aboard an American ship ; fled to England ; and on demand by the British government was surrendered on such charge. But he was tried in the United States on a charge of cruel and unusual punishment inflicted by him on a member of the crew of which he was an officer. The treaty of the United States with England and the Acts of Congress contemplated and provided that he could be tried only upon the charge upon which he was extradited. Under these circumstances, should the prisoner have been brought to trial in the United States for a crime' other than murder ? A. No. This for the reason that our constitution declares a treaty to be the law of the land; and the prisoner is as well entitled to the benefit of the provisions thereof as is any other. United States v. Eauscher, 119 U. S. 407. Q. 38. What does "Corpus delicti" mean; and what proof is required to establish the corpus delicti? A. The "body of the crime," "the essential element of offense," "the fact that the particular crime alleged has been committed." 58 LAW STUDENTS' REVIEW As, in a murder case, to prove the corpus delicti, it is not only necessary to identify the dead body of the deceased, but also to show that the death occurred from the wound and the unlawful infliction of such wound. Gillett, Indir. and Coll. Evid. 164. Q. 39. State the character of circumstantial evidence, suf- ficient to convict of a crime. A. Circumstances of such a nature as not to be reasonably accounted for on the supposition of the prisoner's innocence, but perfectly reconcilable with the supposition of his guilt. 1 Phillips Evid. (5th Amer. from 10th English ed.) *614. Q. 40. A barn was burned at two o'clock a. m. One Wade, by reason of an accident to a buggy belonging to him, which accident he held Feldman, tne husband of the owner of the barn, responsible for, had threatened that he would make Feldman "lose ten times the worth of that buggy." There had been no fire in or about the barn during the day preceding the night of the burning. The morning after, fresh tracks were discovered leading to the barn, and leading away in the direc- tion of accused's home. They were made by a pair of much worn shoes; then the indications were that the wearer had changed his shoes, the bloodhounds refusing to follow the trail further. But from that point to his home, the tracks were identified as made by defendant a few hours later. Accused had previously worked for Feldman. No one was seen at or near the barn the night of the burning. Accused was the first to discover the fire ; and there was evidence he then stated that it was Feldman's barn — that he had been out between one and two o'clock that morning; though at the trial he said he had not been out. Accused was convicted of arson. Is there proof here of the corpus delicti, sufficient to sustain conviction ? A. There is. Motive is shown; and the circumstances are sufficient to exclude every reasonable hypothesis other than that of the guilt of the accused. But see dissenting opinion of Russell (C. J.). Wade v. State, 16 Ga. App. 163. CRIMINAL LAW 59 Q. 41. Defendant, Evans, hired Mear to swear falsely to an alibi, for the purpose of clearing one Rose of a charge of burglary. Mear's evidence would, if believed by the jury, have acquitted Rose. The only evidence against defendant on a trial for subornation of perjury was that of Mear, and coun- sel requested a charge that if the evidence of Mear was not corroborated, the jury must acquit. Should the instruction have been given ? A. Yes. While the rule is well established that a prisoner may be convicted upon the sole uncorroborated testimony of an accomplice, yet in cases like the present, before the jury could convict defendant on Mear's testimony, they must find that he corruptly committed perjury. Accordingly, this constitutes an exception to the foregoing principle. People v. Evans, 40 N. Y. 1. Q. 42. Two men may consent to spar together and may do so, privately, and there is no assault ; but if they fight in public, with their fists, they may be indicted. Why? A. Because in the latter case the welfare of citizens gener- ally is concerned; and such contests tend toward a breach of the peace. State v. Lonon, 19 Ark. 577. Such fighting of two or more persons "to the terror or the people" constitutes an affray. Wilson v. State, 3 Heisk. 278. And similarly having in view the welfare of citizens gener- ally, consent of girls under the age of consent, is no defense to a charge of rape, or even, it seems, of assault with intent to com- mit rape. Murphy v. State, 120 Ind. 115. Q. 43. Accused aimed a blow with an iron rod at the head of another, with force likely to fracture the skull — in fact the skull was fractured and the victim died. It was contended that the jury might have found that this was an assault with intent to maim ; and it was insisted that an instruction on this theory should have been given to the jury. Could assault with intent to maim be predicated of such a blow? 60 LAW students' review A. Mayhem is violently depriving another of the use of such of his members as may render him less able in fighting either to defend himself or to destroy his adversary, as putting out an eye or destroying the nose or cutting off a limb and similar injuries. The inference of intent to maim can not be predicated upon the act in question. Foster v. People, 50 N. Y. 598. Q. 44. The prisoner was convicted of murder in the first degree. The jury was instructed "in case of premeditated mur- der, the fact of drunkenness (of the guilty party) is immate- rial. A man who is drunk may act with premeditation as well as a sober one, and is equally responsible for the consequences of his act." Comment on this instruction. A. The foregoing should be modified by instructing that in determining the question of premeditation, the defendant's con- dition as drunk or sober and any other fact tending to show his mental status at the time, is proper for the consideration of the jury, e.g., the killing may have sprung not from a premed- itated purpose, but from sudden passion, though excited by inadequate provocation. People v. Williams, 43 Cal. 344. People v. Belencia, 21 Cal. 544. Q. 45. X was warned that B and two others were coming to attack him. They came in the nighttime, and broke in the door and window of X's dwelling. * While they were breaking in, X, who was within his house, struck B a violent blow with a poker from which he died the next day. Does this amount to manslaughter? A. No. The killing was justifiable, under the right X had of defending his habitation, his property and his family. 25 A. & E. Encyc. L. (2d ed.) 277. Q. 46. The nisi prius court in the case of a physician ac- cused of rape, charged the jury, that if they found that as part of his medical treatment of the prosecuting witness, who was of legal age, and of sound mind, accused falsely repre- sented that it was necessary that she should have carnal con- nection with him; and that she was thereby deceived, and CRIMINAL LAW 6l yielded, but otherwise would not have yielded to him, then accused is guilty of rape. Is this the law? A. No. The element of force is not found — but should be in- cluded, in the instruction to the jury. Don Moran v. People, 25 Mich. 356. Q. 47. How then do you reconcile the necessity for the use of force, in cases where immature girls or insane or uncon- scious women are wronged, but no force is needed or used, with a conviction for the crime of rape? ' A. This is assumed to be against the will or without the legal consent of the woman, which amounts to using force. Rex v. Eyan, 2 Cox. C. C. 115. Q. 48. X obtains personal property from Y by threatening to tear down Y's house if he does not give up his property. Does this amount to robbery? • A. Yes. The fear of injury inspired, need not be of injury to the person; it may be of injury to a relative (Eex v.' Don- nally, 2 East P. C. 713) , or to property of the victim. Eex v. Simons, 2 East P. C. 731. Q. 49. Accused snatched a watch from the hand of the prosecuting witness. Is this robbery? A. No. While this in a sense is violence, it is only that vio- lence which is necessary to get possession; if there be no injury to the person or putting in fear, there is no robbery. 2 East P. C. 708. Q. 50. G was indicted for forging the name cf a witness to a bond. Assume that the bond was valid without a witness, can G be convicted of forgery ? A. No. This was not material to the document; and there- fore did not amount to forgery. State v. Gherkin, 29 N. Car. 206. Q. 51. Suppose the accused is indicted for feloniously steal- ing and carrying away personal goods, to wit : One bank bill 62 LAW STUDENTS' REVIEW of the North Bank of the value, &c, one bank bill of the United States of the value, &c. ; and objection is made that the bank bills are not "personal goods" ; and therefore at the common law are not the subject of larceny. Is the point well taken ? A. Yes. At the common law personal goods are goods which are movable, belonging to, or the property of, some person, and which have an intrinsic value. Bonds, bills and notes are choses in action, and are not at common law esteemed to be goods whereof larceny may be committed. United States v. Davis, 5 Mason 356, 362. Q. 52. A depositor in a Postoffice Savings Bank got a warrant for withdrawal of io shillings, and presented it to a clerk at the postoffice who by mistake placed a much larger sum on the counter. The depositor took it away, intending when he took it to steal it. Did this constitute larceny ? A. It did. The matter turns on the question of the servant's (clerk's) authority. The clerk had authority only to part with the possession, and not with the property; and therefore the defendant was guilty of larceny. The rule is said to be other- wise in the case of a clerk in a bank (Cockran, C. J.). He stands in the place of the owner. Reg. v. Middleton, 12 Cox C. C. 260. Q. 53. Defendant was indicted for stealing a hog running at large on a "range." There was evidence that the defendant shot and skinned the hog; and cut off its ears. The skin had not been entirely severed. On this evidence the lower court charged that if the defendant shot and skinned the hog, and had it under his control, with the intent to steal, there was in law a sufficient asportation. Is this correct? A. No. To complete the crime of larceny mere power to re- move the article is not sufficient; there must be an asportation. Very slight asportation is enough; but there must be some re- moval. State v. Alexander, 74 N. Car. 232. Q. 54. Accused found a bank note. There was no identi- fying mark about it; and he did not then know who the CRIMINAL LAW 63 owner was. He meant to keep it, when he picked it up. The next day he found out whose it was. Then he changed it, and appropriated the money to his own use. Was this larceny ? A. No. If when he picked it up he had known who the owner was, or had believed that the owner could be found, he would have been guilty of larceny; but as he did not know then, and did not then reasonably believe the owner could be found, neither his intent to appropriate to his own use, nor his learning subse- quently whose the note was, makes him guilty of larceny. Reg. v. Thurborn, 1 Denison C. C. 387. Q. 55. Reed was indicted for larceny. He was a driver for a retail coal dealer ; and was sent to take flour to a customer, and bring back coal from a wholesaler. He should have re- turned about four o'clock in the afternoon. .As he had not re- turned at nine in the evening, his employer looked him up, and found him unloading the coal from the cart at the house of one Peerless. Peerless was acting in collusion with Reed. On these facts, can Reed be convicted? A. Yes. The original possession was of course legal. But exclusive possession on the part of the accused ceased when he put the coal in his employer's cart. Then when he took it animo furandi, it was as if he stole it from his employer's cellar. Eeg. v. Eeed, 6 Cox. C. C. 284. Note: Suppose Reed had, at the wholesaler's, put the coal in Peerless's cart, and taken it to Peerless's house ; this would have been embezzlement. Q. 56. Accused and prosecuting witness Hins were drink- ing together in a beer shop. Hins took a sovereign out of his pocket and handed it to the bar-maid. She said she could not change it. Accused offered to go and get it changed. Hins said, "You won't come back with the change." Accused-said, "Never fear" ; took the sovereign, left the house, and did not return. Hins did not hear accused's remark, "Never fear"; but he made no objection to the taking of the coin by the accused. Indictment, stealing a sovereign, the property of Hins. Can accused be convicted on above evidence? A. No. Clearly Hins never expected to get the specific coin back. He allowed it to be taken away without protest, thus di- 64 LAW STUDENTS REVIEW vesting himself of possession. There was no sufficient trespass to constitute larceny. Reg. v. Thomas, 9 C. & P. 741. Q. 57. Masters, a clerk, retained money and converted it to his own use under the following circumstances : His employ- ers' customers paid money to employes other than Masters; this money was thereupon turned over to a superintendent; the superintendent accounted with Masters, whose duty it was to check the sums and turn them in to the cashier. It was this money which he converted. Of what offense is he guilty? A. Embezzlement. It was contended that as the money, be- fore it reached Masters, had in law been in the employer's pos- session, because the superintendent had had it, therefore Mas- ters' crime was larceny. But it was held that the money never reached the employer at all ; that it came to Masters' hands law- fully ; and his converting it was embezzlement. Eeg. v. Masters, 1 Denison C. C. 332. Q. 58. Defendant was indicted for receiving and aiding in stealing stolen goods knowing the same to be stolen. The proof showed that a jeweller was robbed of gold and silver watches, etc.; that a detective ascertained that one Callendine had a quantity of stolen watches in his possession. The detective proposed to buy some. While he was at Callendine's home the accused came in and inquired whether the detective and Cal- lendine had reached an agreement. The accused had been introducd to the detective as a burglar, by Callendine ; and ac- cused urged that the trade 'should come off as he desired to get some of the money. Told the detective that Callendine had wanted accused to come to his house to assist in putting a value on the watches. Callendine got the watches, and hid behind some wood about the time accused came in. The de- tective and accused bargained about the price and accused made another estimate. The detective then left the room, leav- ing Callendine and accused sitting at a table where the jewelry was spread out. Does this amount to the offense charged? CRIMINAL LAW 65 A. It does. It is clear that accused knew the watches were stolen; and as to concealing them, it is not necessary that ac- cused should have physical possession of them himself, and conceal them with his own hands. State v. St. Clair, 17 Iowa 149. Q. 59. The defendant sold to the prosecuting witness four barrels of crude turpentine,- stating that "they were all right, just as good at bottom as they were at top." In point of fact, the barrels contained mainly chips and dirt. Defendant was indicted for cheating. He contended that the doctrine of caveat emptor applied. Is this contention sound? A. No. This was more than a mere "trick of trade." Beside the lie, there was an actual false contrivance made use of to enable the lie to pass muster. State v. Jones, 70 N. Car. 75. State v. Phifer, 65 N. Car. 321. Q. 60. One Warren applied to a shoe dealer to buy a pair of shoes on credit. He stated that his name was Waterman, that he lived in Salem, where he kept a grocery shop, and had good credit. None of these statements was true ; but the dealer believe them, sold Warren the shoes, and took his note of hand therefor. Did this amount to an indictable offense as for cheating? A. No. To make out a criminal offense, the cheating must be effected either with false tokens (as by weights or measures) or by conspiracy. Here there is only a series of false affirma- tions, believed by the victim to be true, and acted on to his damage. This does not constitute a "public indictable offense." Commonwealth v. Warren, 6 Mass. 72. Q. 61. The ship Rival arrived in New York with a quan- tity of coal consigned to George Peacock. There were two per- sons of that name in New York, the accused and another. In fact, the consignment was for the, other George Peacock and not for the accused, and this the accused knew. Nevertheless, the accused claimed the coal, and procured from a third per- 5 — L. S. Eev. 66 LAW students' review son an advance of $450 on it, signing over and delivering the permit for the delivery of the coal. He did not imitate the handwriting of any other person. Was the accused guilty of forgery? A. Yes. Where a person having the same name pretends to be the true consignee and signs as such, and executes and deliv- ers the instrument, when in fact he is not the true consignee, it is forgery. People v. Peacock, 6 Cow. 72. Mead v. Young, 4 T. E. 28. Q. 62. Baldwin was indicted for forging a promissory note, purporting to be signed Schouler, Baldwin & Co. One Phelps testified that Baldwin delivered the note to him in ex- change for a genuine note of Baldwin in his individual name ; that being inquired of as to who were the members of the firm of Schouler, B. & Co., defendant said Henry W. Baldwin (his own name) and William Schouler of Columbus. That no per- son was represented by the words "&. Co." There was in fact, no such firm as Schouler, Baldwin & Co. Did this amount to forgery? A. No. The writing was that of the defendant, known to be such, and received as such. While the pretense that defendant was a partner of Schouler, and authorized to bind him is fraud- ulent; yet there was no forgery. "It is not the bare writing of an instrument in another's name without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery." Commonwealth v. Baldwin, 11 Gray 197. Q. 63. A man owned two stores, between which there was internal communication. He slept above; but there was no access to his sleeping room, from the stores, except by going out doors into a yard, which was fenced in, and thence up a flight of stairs. Quinn broke into one of the stores in the night- time, with intent to commit a crime. Is he guilty of burglary? A. Yes. The stores were physically a part of the dwelling house. And the "dwelling house" as to which burglary might be CRIMINAL LAW 67 committed has been held to include outhouses, barns, and the like, not even under the same roof, provided they are parcel thereof. Quinn v. People, 71 N. Y. 561. Q. 64. What period constitutes "nighttime," in determining whether burglary has been committed ? A. The period between twilight, such that the countenance of a person may be reasonably discerned, and the corresponding light of dawn. 2 East P. C. 509. Q. 65. A blacksmith had been troubled by burglars enter- ing his shop. To protect it he placed three loaded guns with strings attached, so arranged that any one entering at night would fire the guns and kill or injure himself thereby. One or more of the guns were pointed obliquely toward a nearby highway about a rod and a half from the shop. It was pos- sible that scattering shot might pass through the boards; and the public became alarmed and annoyed. Defendant, however, had no intention to endanger or annoy them. Information as for a nuisance was filed against defendant. Can it be sustained on these facts ? A. No. The nuisance is not sufficiently real and substantial. "The fears of mankind, though they may be reasonable ones, will not create a nuisance." The court observes that even though scattering shot might pass between the cracks of one thickness of the boarding and through the other board to the outside — it is not found that they would so pass through with force suffi- cient to inflict injury. State v. Moore, 31 Conn. 479. Q. 66. Defendant was indicted for kidnapping. He had in his custody a mulatto boy 6 years of age, placed with him by the overseers of the poor. Defendant sold the boy to a person residing in Alabama, intending that he should be carried into that State and held in servitude until he arrived at the age of 21 years. Defendant himself carried the boy into another town and delivered him there. It was objected that the crime of kid- 68 LAW students' review napping under the common law was not complete for the reason that Alabama is not a foreign state. What is the law? A. This was a case of kidnapping. It is not material that the intention was to transport to another State in the United States. For this purpose Alabama is as much a foreign state or country as Cuba. "The Constitution of the United States binds them together for no such object as this." Note also that it is questionable at the common law whether transportation to another state or country must necessarily be in contemplation. State v. Kollins, 8 N. H. 550. Q. 67. It appeared that one McCulloch had purchased three notes of hand in small amounts, executed by one Ross; and there was some evidence that his motive in so doing was unfriendly to Ross. He put them into the hands of an attorney for collection; but it did not appear that he gave any instruc- tions as to whether the notes should be sued in three actions before a justice of the peace, or in one action in the Court of Common Pleas. He recovered three judgments; and the proof showed that he evinced some disposition to oppress Ross in collecting on his executions. Of what crime, if any, was McCulloch guilty? A. Common barretry. This consists in stirring up litigation with a view to harass and oppress, and the bringing of three ac- tions, where one would suffice, would tend to show common bar- retry, which must consist of a number of vexatious suits. In the above instance, the jury returned a verdict of guilty of common barretry, but the reviewing court was not satisfied that a malicious design to harass the debtor was sufficiently shown; and the defendant was discharged. Commonwealth v. McCulloch, 15 Mass. 227. Q. 68. Suppose you as an attorney at law agree to carry on a lawsuit, making no disbursements out of your own pocket, but looking to a share of the proceeds, if any, for your fees. Do you commit an indictable offense? and if so, what offense ? CRIMINAL LAW 69 A. Yes. Champerty, "campum partire," meaning, to divide the spoils. This was the common law; and is so recognized in Lothrop v. Amherst Bank, 9 Mete. 489. Elliott v. McClelland, 17 Ala. 206. Martin v. Clark, 8 E. I. 389. But many courts in this country refuse to recognize it as in force. Q. 69. The following have been held indictable offenses : Exhuming a body for dissection. Reg. v. Lynn, 2 T. R. 733. Leasing a house for immoral purposes. People v. Erwin, 4 Den. 129.* Being a common scold. James v. Commonwealth, 12 Serg. & R. 220. Utterance of obscene words in public. Bell v. State, 1 Swan. 42. On what ground ? A. Because they are of such a character as to corrupt public morals, or seriously to offend a reasonable sense of decency. (See cases cited.) * Note.— That in misdemeanors, there can he no accessories. Q. 70. Indictment as a common barretor and sower of dis- cord among neighbors and a disturber of the King's peace. Exception that it was insufficient in not showing in what par- ticular accused was a common barretor. Is the indictment sufficient in this respect ? A. It is sufficient. It seems that as to the case of barretry this is an exception to the general rule that the particulars should be plainly laid in the indictment. Commonwealth v. Davis, 11 Pick. 432. Note. — The name of the above offense is frequently spelled "barratry," but this seems the proper spelling for the name of the offense committed by the master of a vessel, who through selfish or sinister design, and for his own interest and not that of the owners of the vessel, fraudulently commits an illegal act affecting the vessel or its cargo. Hood v. Nesbit, 2 Dall. 137. JO LAW STUDENTS' "feEVIEW Q. 71. Indictment: "grand jurors * * * represent that Hamilton Hilton * * * on &c, did by force rescue and set at liberty one Christian Comfrey from Allen C. Gunter, by whom he was then and there held in custody for an offense other than a felony against the peace and dignity, &c." What offense is charged here ? and is it well charged ? A. This is an attempt to charge as for a rescue. But the charge is not well laid. The indictment should show the nature and cause of the imprisonment of the person alleged to have been rescued; and also whether the person from whom the rescue was made was a public officer or a private person. State v. Hilton, 26 Mo. 199. Q. 72. In the preceding question what difference does it make whether a person be rescued from an officer of the law, or from a private person ? A. Where an officer holds a prisoner, it is notice that the prisoner is lawfully held; and rescue is at the peril of the party making it. Where the prisoner is held by a private per- son, the rescue can not take place unless the rescuer knows that the prisoner was under arrest for a crime. State v. Hilton, 26 Mo. 199. Q. 73. Defendants Stewart and Lawson were indicted for feloniously conspiring to obtain from a member of the State Medical Examining Board a set of questions in advance of the examination, for $600. The proof showed that they en- tered into an agreement whereby Stewart was to get posses- sion of the questions so that Lawson might be able to pass the examinations. They dealt through a go-between who told them that he would get the questions and answers from one Dr. Wilson, a member of the board. There was no such person as Wilson ; and they got no questions or answers. Does this amount to a conspiracy? A. It does. Of course, passing an examination is a lawful act ; and therefore it was to do a lawful act that defendants con- spired together. But the manner in which they proposed doing it, and their confederation together for that purpose was unlaw- ful. Accordingly, they were guilty of a conspiracy. State v. Stewart, 32 Wash. 103. CHAPTER III PERSONAL RIGHTS AND DOMESTIC RELATIONS Question i. What is meant by the right of an individual? Answer. A right is that which any man is entitled by law to have, or to do, or to require from others. 2 Kent Comm. 1. Q. 2. State the absolute rights of individuals. A. That of personal security, personal liberty and to ac- quire and enjoy property. 2 Kent Comm. 1. Q. 3. What remedy for unlawful restraint of the person is provided by law ? A. The writ of ha,beas corpus, meaning, "you may have (or take) the body." A writ of right addressed to the person detain- ing another, and commanding him to bring the person detained before the court, so that the restraint of the person may be in- quired into. 21 Cyc. 282. Q. 4. Suppose you are physically attacked; to what extent may you go in protecting yourself ? A. I may use whatever means are necessary to repel the at- tack, short of killing my adversary. I may kill him only if other means are inadequate, and I can not escape. 21 Cyc. 800. Q. 5. X, while in the peaceable possession of his dwelling, was forcibly ejected therefrom by Y. X then forcibly recov- ered possession of his property, and in putting Y out of the 7i 72 LAW STUDENTS' REVIEW building, seriously injured him, though he used no more force than was actually necessary for that purpose. Y sued X for damages. Can he recover ? A. Yes, X may not forcibly redress his private wrongs. He may make use of force necessary to defend his lawful possession, but, being dispossessed, he has no right to recover possession by force. 2 A. & E. Encyc. L. (2d ed.) 984. Q. 6. A child is born to unmarried parents who afterward intermarry while domiciled in a State where such marriage legitimizes the child. Subsequently, parents and child remove to a State whose laws do not provide for such legitimation. Will the child inherit from the father in the last mentioned State? A. Yes. The sufficiency of the acts of a father to constitute legitimation is determined by the laws of his domicil. The rule is that wherever an illegitimate child has been legitimized, such legitimacy follows the child wherever it may go, and entitles it to all the rights flowing from such status. 5 Cyc. 634-642. Long Dom. Eel. § 244. Q. 7. On December 1st A, a married woman domiciled with her husband in New York, goes to Nebraska, intending if found satisfactory to her brother, to make Nebraska their permanent home. She remains there a month, and then writes to her husband that she is pleased with the surroundings, and if he will join her, she believes they will both find Nebraska preferable to New York to live in. Before receiving any an- swer, she is killed in an accident. What is her domicil at the time of her death ? A. New York. While A may have intended never to return to New York, yet she does not express such intention. Her domicil does not change merely with her change of abode. Intention must be shown to change it. Not shown here. See 10 A. & E. Encyc. L. (2d ed.) 32, 19. Q. 8. A citizen who had lived all his life in Maine, went to California at the age of 65 years. For the last ten years of his PERSONAL EIGHTS AND DOMESTIC RELATIONS 73 life, while still residing the rest of the year in Maine, he spent each winter in California at hotels, returning every spring to Maine. He had all his personal estate in stocks and bonds, and also his household furniture sent to him in California, and sub- sequently began a divorce proceeding there. An intention to live in California was stated by him ; but was sought to be ex- plained by his purpose to die there, and thus prevent his wife from taking a portion of his estate under the laws of the State of Maine. Where was he domiciled at his death ? A. In California. "To change one's domicil is not difficult; it is easy. Given bodily presence, it is but to form a purpose. It is but to conceive an intention. It is done in the twinkling of an eye. Intention may be shown by conduct, without words, or it may be shown by both * * *." Holyoke v. Holyoke, 110 Maine 469. Q. 9. Distinguish between "domicil" and "residence," in the following instance. It appears that X left his family in Iowa in 1879, and lived in South Dakota until 1892. Up to that time, as he testified, his intention was to return to Iowa where he owned a homestead and had left thereon a wife and six children to whose support he contributed. He also said he had no home or residence from 1879 to 1892, other than in Iowa. Could not recollect whether he voted in South Dakota. Traveled about trying to make money. A. A person may temporarily reside without acquiring a domicil at any town. A man does not acquire a domicil by re- maining at any particular place away from his home. He may temporarily reside in many places; but he can have but one domicil, to which he intends at some future time to return. Farrow v. Farrow, 162 Iowa 87. Flatauer v. Loser, 141 N. Y. S. 951. "Domicil" and "residence" are not identical terms. "Resi- dence" means living in a particular locality and simply requires bodily presence there. "Domicil" means living in a given locality and requires bodily presence and an intent to make it a domicil. Q. 10. How do the contracts of an infant differ from those of a married woman? What contracts are binding upon either? 74 LAW STUDENTS REVIEW A. The power to make contracts ceases at the marriage of a woman. Her contracts are void. Those of an infant are, in the main, simply voidable. Contracts, however, for necessaries are binding upon either. Bishop Contracts §§ 949, 924. Long Dom. Eel. §§ 143, 300. Q. ii. May an infant (a) act as an agent, (b) bind himself by his contract, (c) commit crime? A. (a) An infant may act as an agent; for an agent need not possess the qualifications of a principal. And so where only min- isterial duties are required, and these call for only skill and diligence: e.g., service of process as deputy sheriff, Moore v. Graves, 3 N. H. 408. (b) He may bind himself irrevocably for necessaries ; but his other contracts are, for the most part, void- able, (c) As to crime, there is conclusive presumption against capacity under seven years: prima facie presumption against capacity from seven to fourteen years : presumption of capacity when over fourteen years of age. Long Dom. Rel. § 305. Q. 12. B permitted his minor son, wEom B supported at his home, to work for another, and to receive, use and control his wages. The son accumulated a small sum out of his wages, and deposited it in a bank. B sues the bank for the deposit, claiming it as earnings of his minor child; and also demands from and directs the employer to pay him (B) all such wages earned by the son in the future. What are the father's rights ? A. B can not recover from the bank. His right to such earn- ings is gone and they belong to the son. But the father may col- lect wages earned in the future from the employer in question. He must pay B and not the son. 29 Cyc. 1S26. Q. 13. Plaintiff, an infant, enlisted in the military service of the United States ; and the United States paid to the mayor of Lowell, on account of the enlistment, $95. The mayor paid the money to plaintiff's brother ; and the brother by direction of the PERSONAL SIGHTS AND DOMESTIC RELATIONS 75 plaintiff, used it for the necessary support of their father. Afterward plaintiff sought to disaffirm and to recover of his brother. May he do so ? A. No. The transaction has become executed ; and can not be opened without reinstating the bruther in the position he occu- pied before complying with plaintiff's direction. Welch v. Welch, 103 Mass. 562. Q. 14. An infant 8 years of age is called as a witness. May he be sworn and testify ? A. The court will, on questioning him, determine his com- petency to testify. This is called the voir dire. If he seems to understand the obligation of an oath, and appears to be intelli- gent, he may testify. The credit to be given his evidence is for the jury. Wheeler v. United States, 159 U. S. 523. Q. 15. It js said that an infant who during his minority has conveyed his real property, may disaffirm, on returning the consideration within three years after attaining his major- ity. Suppose he no longer has the consideration? What then? A. His right to disaffirm does not depend on returning the consideration. But if he has it, he must give it back. 22 Cyc. 613. Q. 16. A statute provided that the father of an illegitimate child should under penalty indemnify the municipality charge- able with the support of such child. B, an infant of 19, the father of such child, enters into a bond with sureties for that purpose. When sued upon it, he pleaded his infancy as a de- fense. Is the defense sustainable ? A. No. Whenever a statute has authorized a contract for the public good, from the operation of which infants are not excepted, such contract must, in law, be taken to be for their benefit and will bind them. Sedgwick, Stat. & Const. L. (2d ed.) 8. Long Dom. Eel. § 300. 70 LAW STUDENTS REVIEW Q. 17. B, an infant, during his minority, conveyed a tract of land owned by him to C; and also conveyed another tract to D. On arriving at majority, he sued C on a note given by the latter as part payment for the land purchased by him: a month later he executed and delivered to X a conveyance of the land he had conveyed to D. Six months after becoming of age he sought to disaffirm both deeds. May he do so? A. As to C, no. Suit on the note was a ratification of the deed to C. As to D, yes. The conveyance to X was a disaffirmance of the deed to D. Barlow v. Robinson, 174 111. 317. Blankenship v. Stout, 25 111. 116. Q. 18. Is an infant liable for a tort? A. Yes, if of sufficient age to be capable of malice or negli- gence. Huchting v. Engel, 17 Wis. 237. Long Dom. Rel., § 306. Q. 19. M a minor purchased realty paying part cash and executing a mortgage to the grantor B to secure the balance. Immediately on coming of age, M conveyed the land to C. B subsequently brought foreclosure and M pleaded infancy as a defense. Is his defense good ? A. No. There are here two conveyances, one to and from the infant. He can not ratify one and disaffirm the other. In above case, execution of deed was a ratification. Ready v. Pinkham, 181 Mass. 351. 22 Cyc. 538. Q. 20. A young man of 20 years of age fraudulently repre- sents that he is 21 and becomes engaged to marry. Subse- quently he seeks to repudiate his promise on the ground that he is an infant. Is he liable for breach of promise? or in tort? A. No. Although there were false representations, the infant can not be charged for his breach of promise; nor by bringing the action in tort can the infant be deprived of the benefit of his PERSONAL RIGHTS AND DOMESTIC RELATIONS JJ plea. If, however, there be a positive wrong, e. g., seduction, even though it may be connected with the contract, the infant is liable. Tiffany Dom. Rel., § 13. Long Dom. Rel. § 49. Q. 21. To what extent, if at all, may an infant be bound by articles of copartnership which he has signed? A. An infant may be a partner; but his contract is voidable. It is, however, to be avoided only by the infant. 1 Bates Partnership, §§ 142, 143. 0. 2.2. What rights of control has a parent over the child's property ? A. The parent, as natural guardian, has a general right of control over the person of the child; also the right of property and possession in clothing and the like furnished by the parent to the child. But the parent as such is without control over the separate property of the child. This is the province of the guar- dian. 31 A. & E. Encyc. L. (2d ed.), 1044. Long Dom. Rel. § 263. Q. 23. What are the relative rights of a father and mother, after separation, to the custody of their child? A. The father has paramount right to the custody of his children, as against the world. On the death of the father, or on his being adjudged unfit, the mother becomes entitled to such custody. However, the guiding consideration by which the court will be influenced is that of the welfare of the child. Long Dom. Rel., § 259. Q. 24. Must a man with sufficient means support (a) his child, (b) his father or mother or other relatives, if indigent? A. (a) Yes, if a minor and born in lawful wedlock, (b) No. These obligations, at common law, are only moral, and not enforcible. People v. Hill, 163 111. 186. Q. 25. An infant, the hirer of a horse owned by a livery- man, injured the horse, not wilfully, but through a failure to 78 LAW students' review use due care in driving. The liveryman brought an action in case for damages, and the infant pleaded his infancy. Can plaintiff recover. A. No. Infancy is a good defense, the gravamen of the com- plaint being merely a breach of the implied contract of bailment. If a wrong grows out of contractual relations, and the real injury consists in the nonperformance of a contract into which the party has entered with an infant, the former can not enforce the contract indirectly by counting on the infant's failure to perform it, or omission of duty under it, as a tort. I Cooley Torts, 123. Long Dom. Eel., § 306. Q. 26. A girl 16 years of age agrees to work as a seamstress for one year for wages. At the end of that time, against her father's wishes, she marries ; and then agrees to work another year. The father never agreed to relinquish his rights. After the two years he sues her employer to recover her entire wages. What are his rights ? A. The father is entitled to recover the wages, if unpaid, for the first year. Magee v. Magee, 65 111. 255. But marriage is an emancipation, and he can not recover for the value of the service rendered during the second year. 29 Cyc. 1673. Q. 27. Suppose a minor child, leaving an estate of his own, leaves home against his father's wishes. X furnishes the child with clothing. Can X recover of the father, or must he come upon the estate of the child? A. X can recover of the father. The father must respond irrespective of where the child lives, and of the child's separate estate. Bedford v. Bedford, 136 111. 354 Q. 28. X, a minor, prior to being sent away to school, was supplied with a trunk and clothing by his father. The trunk and the clothing were lost by the carrier, and the father brought suit to recover the value. The carrier insisted that the property PERSONAL RIGHTS AND DOMESTIC RELATIONS 79 was not the plaintiff's, but was the minor's and that the minor should have brought the suit. Is the carrier's position correct ? A. No. When parents furnish a minor child with clothing, the law does not contemplate that the child shall have the abso- lute control or ownership of it. The child merely has the use of it during the will of the parent. The right of property and pos- session still remains in the parent. Parmelee v. Smith, 21 111. 620. Long Dom. Eel. § "263. Q. 29. B, a minor, found a valuable watch and returned it to C, its owner. Thereupon C gave the minor a reward of $50. B's father, on learning of the incident, demanded that B pay the $50 to him, claiming that it belonged to him as B's father. What are his rights, if any ? A. He is not entitled to the reward. Anything that is a mere gratuity, a gift, or which does not come to a minor as compen- sation for services, belongs absolutely to him, and his father may not withhold it. The parent's right is limited to the wages or compensation of his minor child for service rendered. Magee v. Magee, 65 111. 255. Q. 30. What is emancipation and how may it take place ? A. The relinquishment by a parent of the right to the future earnings of a child. It may occur (1) By parent's consent. (2) By operation of law as in case of marriage, or where parent can not support child. (3) By estoppel — as where a parent knowingly allows a child to receive the wages he earns. Tiffany Dom. Eel., § 127. Long Dom. Eel. § 268. Q. 31. May emancipation be revoked ? A. Yes, if there be no consideration for granting it. Tiffany Dom- Eel., § 127. Long Dom. Eel. § 268. 80 LAW students' review Q. 32. B, a minor, lives at home, and is supported by his father. B works for C one week, receiving $6.00. The father then learns of the transaction and sues C for the services of B. Can he recover ? A. Yes. While a child is supported by the father he can not make a contract for his services which will be binding on the father; and payment to the child will not be a defense. Weeks v. Holmes, 12 Cush. 215. Tiffany Dom. Eel. § 126. Long Dom. Eel. § 262. Q. 33. X, a minor son, elopes with and marries B, notwith- standing the father's express prohibition. The son then secures employment. The father sues for his earnings. Can he re- cover ? A. No. Marriage effects an emancipation by operation of law, even against the will of the parent. (See Q. 26, supra.) 29 Cyc. 1673. Q. 34. A parent is walking with his unruly son, a minor. The boy throws a stone and breaks a window. Is the parent liable? A. Merely because of the relationship he is not liable, and this is true whether the act be merely negligent or positively wilful. The father is liable only on the same grounds on which he would be liable for the wrong of any other person ; as that he instigated the act. I Cooley Torts, 122. Long Dom. Eel. § 257. Q. 35. A boy 13 years old committed a trespass at the direc- tion of his father. Is the boy liable ? A. Yes. The liability of an infant for his tort is not affected by the fact that the act was committed under the express orders or by the authority of his father. 22 Cyc. 620. O. 36. Can a stepfather who has accepted into his family the minor child of his wife by a former husband, and stands in loco parentis to the child, mantain an action for the child's • .».rvices ? PERSONAL RIGHTS AND DOMESTIC RELATIONS 8l A. Yes. Where a stepfather voluntarily accepts such minor child into his family and stands in loco parentis, he will be liable for its support and entitled to its earnings while that relation continues. Capek v. Kropik, 129 111. 509. Q. 37. Does an illegitimate son inherit (a) from his father? (b) from his mother? A. (a) No. He is the son of no one. 5 Cyc. 638. (b) No; not at early common law; but later the common law gave him that right ; and of course, by statute, it is usual. 5 Cyc. 641. Long Dom. Eel. § 269. O. 38. A father lived with his child as a member of the latter's family, and was supported by the child. After the parent's death, the child claimed compensation for such sup- port furnished, asserting that as the law did not require him to support the parent, the law would imply a contract to pay for such support. Is the child's position maintainable? A. The presumption arises from the relationship of the par- ties that no compensation was intended. 29 Cyc. 1620. Q. 39. What effect, if any, does the marriage of an infant ward have on the rights of the guardian, ( 1 ) where the ward is a male, (2) where the ward is a female? A. So far as the person of the ward is concerned, the guardian- ship ends, the marriage being paramount to other relations. Where male ward marries, his guardian retains power over his estate as before, until he becomes of age. Under the common law, the power of control of the infant wife's property passes to the husband, with the consequence that if both were infants, the husband's guardian must take it from the yife's guardian, and hold both estates during his minority. Schouler Dom. Rel. § 313. Long Dom. Eel., § 292. 6— L. S. Rev. 82 LAW STUDENTS' REVIEW Q. 40. With what income from the ward's property is a guardian chargeable upon final accounting ? A. With all that he has received, and what with proper exer- cise of care and diligence he ought to have received had he faith- fully performed his duties. Six months' interval fur reinvestment is a common allowance. Bond v. Lockwood, 33 111. 212. Q. 41. In the accounting of a guardian at the close of his guardianship, what effect is given to the intermediate account- ings of the guardian? A. They are prima facie correct, but may be subcharged or falsified by the ward. Bond v. Lockwood, 33 111. 212. Q. 42. As to guardian's liability, what is the rule where he deposits his ward's moneys to his own name without indicating that they are subject to any trust? A. Liability absolute ; and this is true even though the guard- ian exercise great care in the selection of the bank. But if he designates himself as guardian, then he is liable only for a reasonable degree of care in the selection of the depositary. 15 A. & E. Encyc. L. (2d ed.), 55, 107-109. Q. 43. A wife, after having obtained a divorce from her husband, sued him for assault and battery, committed by him upon her during their marriage. Could she recover ? A., No. The common law considers them as one person; and hence no cause of action arose. Tiffany Dom. Eel. § 42. Long Dom. Eel. § 162. Q. 44. A wife left the home of her husband, but not through his fault. She purchased clothing for herself and charged it to her husband. The merchant who sold it to her knew that a separation had occurred, but not the reason therefor, nor any of the circumstances connected with it. The husband refused to pay the bill, and the merchant sued him. Was he entitled to recover? PERSONAL RIGHTS AND DOMESTIC RELATIONS 83 A. No. To hold the husband to the common law liability to furnish necessaries to the wife living apart from him, the mer- chant must show that the husband had failed to furnish the same, or that she was living apart through some sufficient cause. Rea v. Durkee, 25 111. 503. Q. 45. A husband undertook in writing to pay his wife a certain sum for out-of-door work to be done by her upon his farm. The work was performed, and, the husband dying, the wife filed a claim against his estate, based on the alleged con- tract, for the amount claimed to be due. Can she recover ? A. No. A contract by a husband to pay his wife for services rendered him is not enforcible. It is without consideration, since such services as she may render him, whether usual for a wife to render or not usual, belong to him. Whitaker v. Whitaker, 52 N. Y. 368. Q. 46. A married woman sued in assumpsit as a feme sole to recover for services rendered by her. Defendant pleaded in abatement the coverture of the wife. Plaintiff replied that her husband had deserted and abandoned her without cause, had removed to another State, that he had since remained there permanently, leaving her without means of support, and that she had since necessarily traded and acted as a feme sole. Defendant demurs. How should the demurrer be disposed of according to the common law? A. Demurrer overruled. Under such circumstances the wife may acquire property, control it and her person, contract, sue and be sued, as a feme sole during the continuance of such con- dition. 1 Blackst. Comm. 443. Long Dom. Eel., § 140. Q. 47. X while insolvent, conveyed to Y, a feme sole, in consideration of her marriage to him. Y knew nothing of X's indebtedness. Subsequently, X's creditors to whom he was in- debted at the time of the marriage sued to have the conveyance set aside as in fraud of their rights. Can they maintain their suit ? 84 LAW students' review A. No. Marriage is a sufficient consideration to support the conveyance. The grantee is entitled to the same protection as a purchaser who has paid full value for the land, when she herself has had no intention to defraud. 21 Cyc. 1253. Q. 48. A woman went through the marriage ceremony with an imbecile, and thereafter lived with him as his wife. He died ; whereupon she claimed dower in his realty. How should her claim be decided? A. Such a marriage is void, not voidable, though the parties live together; and the woman is not entitled to dower. Jenkins v. Jenkins, 2 Dana 102. Q. 49. The laws of the State of X prohibited marriage be- tween cousins. A marriage between cousins took place in the State of Y, where it was lawful. Husband and wife moved to X, and resided there, where the husband afterwards died, leav- ing real estate there. Is the wife entitled to dower ? A. Yes; for the validity of a marriage is determined by the law of the place where it was contracted; and if valid there, it will be held valid generally in whatever place the parties go to reside. 26 Cyc. 829. Long Dom. Rel. § 84. Q. 50. An unmarried woman brings an action against an unmarried man for breach of promise to marry. He pleaded that at the time of the supposed promise to marry, the plain- tiff was under promise to marry another. Is the defense good ? A. No defense. Each transaction was separate and distinct. The contract, a breach of which is the basis of the action, should not be confounded with the marriage. Non constat but that she might be released from the promise relied on as a defense. 5 Cyc. 1004. Q. 51. X eloped with Y, the wife of L, and they lived to- gether, professing to be husband and wife. One year later L died, and one year after that a child was born to X and Y, PERSONAL RIGHTS AND DOMESTIC RELATIONS 85 they having continued during all this period by cohabitation and repute, as husband and wife. Can the child inherit from X ? A. No. Cohabitation shown to have been illicit in its origin will in the absence of anything showing otherwise be presumed to continue to be of the same character. Subsequent marriage will not be presumed merely from continued cohabitation and rep- utation. 5 Cyc. 625. Q. 52. B was the wife of A. Both were citizens and resi- dents of the State of Massachusetts. For the purpose of ob- taining a divorce B resided six months in South Dakota; and, in accordance with the laws of South Dakota, there obtained a decree of divorce. She then in Illinois married C, a citizen of New York, and on going with him to Massachusetts was there convicted of living in adultery with him, the Massachusetts courts refusing to recognize the South Dakota decree. Thereupon C and B came to live in Iowa. Discuss the ques- tion whether in Iowa they are man and wife. A. C and B are man and wife in Iowa. While it is held that the Massachusetts courts need not, if in contravention of the law of the state of Massachusetts, recognize the South Dakota divorce; yet no offense appears to have been committed against the laws of Iowa. Lyon v. Lyon, 68 Mass. S67. A. & E. Encyc. L. (2d ed.) 1211, 1212. Q. 53. A husband deserts his wife, but does not leave the State of their domicil. The wife removes to another State, establishes a residence there and sues there for divorce. Has the court jurisdiction (a) to decree a divorce; (b) to decree alimony ? A. (a) Yes. While for general purposes the domicil of the wife is that of her husband, yet she may leave him, if for just cause, and establish a residence in another state in which she may maintain an action for divorce. 14 Cyc. 584. (b) Not unless the court has jurisdiction of the person of the defendant. If not, the remedy is confined to a dissolution of the 86 LAW students' review marriage, and no judgment for alimony can be enforced in an- other jurisdiction. Action for divorce is analogous to a proceed- ing in rem; while a decree for alimony is in personam. Proctor v. Proctor, 215 111. 275, Q. 54. What right or title did the husband have at common law in (i) the real estate, and (2) the chattels of his wife? A. The husband upon marriage was seized of a free-hold in the real estate of his wife, and the usufruct was his during their joint lives. This estate terminated at the death of his wife, unless a child was born alive during coverture; in this event the hus- band had an estate by the curtesy of England for life. The per- sonal property, except wearing apparel and paraphernalia of the wife held in her own right, vested absolutely in the husband. The right to her choses in action was not absolute ; but was con- ditioned upon reducing them to possession during coverture. 21 Cyc. 1171 et seq. Q. 55. A widow, residing in Illinois with her minor son, married B, who resided in Missouri. They went on a wedding journey, leaving the son in Illinois. The husband and wife re- turned to his home in Missouri, expecting to send for the son later, but within a week determined to remove to one of two cities in Indiana for business reasons. Thereupon they left Missouri, intending not to return, and came to the place in Illinois where the wife formerly lived. There she stopped while her husband went on to Indiana to determine where they would reside. The son had remained in Illinois all the time. Before the husband had decided where he would reside, and before he had returned, the wife and her minor son died, intestate, in Illinois, each leaving personal property. Name the State whose laws will govern in the distribution of the property (a) of the wife, (b) of the son. A. (a) When a woman marries she takes the domicil of the husband, the change being effected by the act of marriage. The domicil of the husband continues in Missouri until another resi- dence is acquired by actual residence, coupled with the intention of making the last acquired residence a permanent home. There- fore, the law of Missouri will govern as to the descent of the wife's property. PERSONAL RIGHTS AND DOMESTIC RELATIONS 87 (b) In the case of a minor whose father is dead, the power to fix its domicil devolves on its' mother, and may be altered by her at pleasure; but only so long as she remains a widow, since should she remarry, by reason of her own domicil becoming- subordinate to that of her husband, that of the infant becomes fixed and ceases to follow that of its mother. Accordingly in the case of the son the law of Illinois applies. 14 Cyc. 844. Lamar v. Micou, 112 U. S. 452. Q. 56. A married a woman who was indebted to B, the debt being evidenced by her promissory note. The wife diedy the husband retaining her fortune, which consisted of person- alty. Is the husband personally liable for the amount due on the note ? A. Not at common law. While the husband may be held liable for debts contracted by the wife before marriage, yet the liabil- ity of the husband extends only during coverture. The personal liability of the husband ceased on the death of the wife, pro- vided no judgment has been recovered against him during her life time, and this is true notwithstanding he received property by the marriage. Schouler Dom. Eel. § 56. Long Dom. Eel. § 177. Q. 57. What was a widow's right of quarantine at common law? A. Until assignment of dower has been made, to which the widow becomes entitled immediately upon the death of her hus- band, she was entitled to a residence in the principal mansion house of the husband for a period not exceeding forty days, pro- vided she did not marry within that time. This right was called her quarantine. 2 Blackst. Comm. 139. Q. 58. A person is born September 8, 1850. When does he come of legal age? A. An instant after 12 o'clock midnight on the morning of September 7th. The law (in this case) does not take note of a fraction of a day; but fixes the earliest moment of the next pre- ceding whole day, here September 7th. Bardwell v. Purrington, 107 Mass. 419. 88 LAW students' review Q. 59. Discuss the right of an alien, at common law, to take and hold title to real estate. A. At common law an alien may take land by act of the party, that is by purchase, and hold the same against all per- sons, subject only to the right of the state to claim it by escheat upon office found; and, until office found he may either dispose of his interest by conveyance or devise, notwithstanding the fact of his alienage. As to above alien friends and alien enemies are alike. An alien can not acquire title to real estate by mere oper- ation of law. He can not inherit, nor does he posses inheritable blood to transmit the same to a citizen; neither can he take dower or curtesy in the land of a spouse. 2 Cyc. 90-97. Long Dom. Eel., § 314. CHAPTER IV CONTRACTS Question i. Judgment on warrant of attorney executed by a minor. Motion to set aside. Should the motion prevail ? A. Yes. Neither a minor nor a married woman can execute a valid power of attorney. 22 Cyc. 514; 21 Cyc. 1304. But see Chapter VII, Q. 3, infra. Q. 2. An infant, the plaintiff, paid $408 for the privilege of taking a course of study in defendant's school. He was given a receipt for the money, called a "Scholarship." He concluded not to take advantage of the privilege; demanded his money back; and offered to give up the "Scholarship" receipt. On these facts can the infant prevail? A. Yes. While it may be urged that an infant is bound for reasonable necessaries furnished him, yet he must have been furnished with property, or something of value suited to his necessities. If he had had the schooling, he might be required, especially as he could not return it, to pay for it; but his liabil- ity is for necessaries furnished; not for necessaries agreed to be furnished. Jones v. Valentine's School of Telegraphy, 122 Wis. 318. Benj. Contracts, § 42(A). Q. 3. Lenah M. Titman, a minor, sued the administrator of her father's estate for wages. The evidence showed that when she was 18 years of age her father told her that if she would stay and work for him, he would give her a dollar a week. After her mother's death her father said he would give her two dollars a week ; she said she ought have more, but that she would stay for that. She did stay, and worked for her 89 C|0 LAW STUDENTS REVIEW father until he died. It was urged that the contract was invalid by reason of want of capacity in the minor to contract. Can the plaintiff sustain her action against the estate ? A. It is well settled that when a contract is made between a minor and an adult, the adult is bound, though the minor may not be. Accordingly the estate of the father is held to be bound. Titman v. Titman, 64 Pa. St. 480. Q. 4. July 14, 1844, complainant, being then 16 years old, was married to one John B. Sims. In 1845, her father con- veyed certain land to her. In 1847, she joining with her hus- band, and declaring that she was 21 years of age, executed a deed to the defendant. The defendant went into immediate possession, paid off a mortgage and paid the taxes, and re- mained in possession until her death in 1871. In 1870 complainant was divorced from her husband; and early in 1871, she disaffirmed her deed, within two months after her divorce; and demanded possession of the land. Should she prevail ? A. The question turns on whether her disaffirmance of the deed was within a reasonable time after she reached her ma- jority, which of course accrued twenty years before her actual disaffirmance. While the disaffirmance was twenty years after she became of age, yet while married, she was legally incompe- tent to disaffirm. Held, that as during her coverture she did nothing to confirm the deed she might thus disaffirm it; also that being an infant, she was not estopped by her declaration that she was of age. Sims v. Everhardt, 102 U. S. 300. Benj. Contracts, § 38. Q. 5. One Evans, though apparently full grown and of age, was in fact a minor. This the complainant did not know. After buying goods from complainant on credit, Evans fraud- ulently sold the goods to his father ; and the goods which orig- inally came from the complainant were so intermingled by Evans with those of his father that they could not be identified or separated. Can complainant subject the original goods and those inter- mingled with them to the payment of the debt due to him from the minor, Evans ? CONTRACTS 91 A. Yes. While the infant can not be made to pay; yet if he retained the fruits of the transaction, here the goods, he may be required to return them; and his fraudulent vendee obtains no better right than the infant would have had, had he retained them. Evans v. Morgan, 69 Miss. 328. Q. 6. In 1769, an application was made to George III for a charter to incorporate a religious and literary institution, the application stating, as the fact was, that large contributions had been made for the object, and would be conferred on the corporation, as soon as it should be created. The Crown issued the charter. Assuming this to constitute a contract, is same executed or executory ? A. The contract is executed. "An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed, is one in which the object of the contract is performed; and this, says Blackstorie, differs in nothing from a grant. A contract executed, as well as one that is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is always estopped by his own grant." Dartmouth College v. Woodward, 4 Wheat. 518. Q. 7. United States sued one Prioleau in equity, in England. Prioleau filed a cross-bill, making the United States and An- drew Johnson, President thereof, cross-defendants and asking for discovery. The United States refusing to put in answer, Prioleau moved that its suit be stayed until it should answer. Should the motion be granted ? A. Motion allowed. If a sovereign comes into court it must abide by the rules of law and the court just as an individual must do. But note that in case cited below, the English court refused to take judicial note that the United States government has control over its President or could compel him to produce papers or the like; and therefore refused an order to stay suit until the President put in his answer. Prioleau v. United States and Andrew Johnson, L. E. (1866) 2 Eq. Cas. 659. 92 LAW STUDENTS REVIEW Q. 8. Ejectment in Mississippi in 1866. A deed of con- veyance of the land in question from the defendant to the plaintiff, bearing date February 9, 1861, was offered as evidence of plaintiff's title. A motion to exclude was made on ground that the consideration given for the deed was Con- federate money ; and it was urged that the contract was execu- tory; was founded wholly upon consideration of Confederate money ; that the Confederate notes were in aid of the rebellion and were illegal and void ; and that no right of action could be predicated upon an alleged expenditure of Confederate notes. Assuming possession to have been given under the deed, was the objection well taken? A. The objection was not sound. The contract was not ex- ecutory; for when money was paid, the deed delivered, and pos- session of the land given, the contract was executed. Frazer v. Robinson, 42 Miss. 121. Elliott Contracts, §§ 13, 15. Q. 9. The administrators of John Beaver, deceased, sued William McGrath and twenty-eight others as surviving part- ners of a firm organized in 1837 and doing business until 1857, as London Saving Fund Society. Its object was to provide safe and profitable investment for small sums of money. It had a printed constitution and by-laws, one of whose provisions was that no person dealing with the society should have recourse against the separate property of any of the constituent mem- bers thereof. Decedent, whose administrators brought the action, had been a member of the society some fourteen years previous to the bringing thereof. Their claim was to recover the amount of a special deposit of decedent with the society. Shortly after 1837 it had made arrangements to receive money on special deposits; and thereafter and until 1857, lis principal business was borrowing money and discounting paper. Large numbers of certificates of special deposit not in terms restricting the liability of the society or its members were shown to have been issued. It was contended that decedent must be taken to have de- posited the money and to have contracted with reference to CONTRACTS 93 the above provisions of the society exempting members from personal liability. Decedent had been an original member, and a director for five years; but had ceased in 1842 to be con* nected with the society, though thereafter he continued to make special deposits and to receive certificates thereof. The court directed a verdict for plaintiff ; but made an order that execution should not be levied upon the property of the individuals. Is this correct ? A. Individuals of an association of this character may on principle of partnership be held jointly and severally. The fact that fourteen years before the transaction occurred the dece- dent was a member of the society is not sufficient in law to over- come the presumption arising from the issue of many of the certificates of deposit without a protective clause limiting lia- bility ; and as the certificate in question contained no such clause the members of the society are held liable individually. Accord- ingly that part of the court's order, that execution be not levied upon their separate property, is erroneous. Beaver's Administrators v. McGrath, 14 Wright 479. Q. 10. A note of hand read as follows, "For value received, I promise to pay Henry Dow or order $85.00 for use of N. E. P. Union store on demand with interest. S. S. Moore, Treas- urer." Plaintiff, Dow, sued Moore individually on the note. Both Dow and Moore were members of a company which car- ried on a business of a common country store at Northwood, on a cash basis, and defendant was treasurer thereof and agent to buy and sell ; N. E. P., by reference, indicates the company. Is the note Moore's and must he pay it ? or is it the note of the company and not Moore's individual note ? A. The. note is that of the company. Moore was treasurer and was agent to buy and sell; and from this an authority to give a note may be inferred. "It is quite apparent that the name of the company is inserted as the party for whose use the note was given, and not for whose benefit the money was to be paid. The two controlling features in instruments of this character, are: First, Did the agent have authority to make the note? Second, From what appears on the note is the intention to bind the company or principal inferable?" Dow v. Moore, 47 N. H. 419. CJ4 LAW STUDENTS REVIEW Q. ii. Plaintiff sued for $135.00 on an account. and a note under seal. When the case was called, he "nolle prossed," as to the cause of action on the note. The evidence showed that the note was given for an account due, and that plaintiff ac- cepted it on condition that defendant would pay him $10.00 a month. The note was not due and was held merely as security. Verdict for defendant. Why? A. The note being under seal amounted to a bond; and being what is called a debt of "higher degree" than a mere account, the account by operation of law merged in it. Thus the note not being due was uncollectible; and the account as such had been discharged. Costner v. Fisher, 104 N. Car. 392. Observe that similarly a bond would "merge" in a judgment, if a judgment was rendered, because a judgment is a debt of still higher degree. Q. 12. Suppose that in the previous instance the parties had attempted to agree that there should be no merger; can their intention control, so as to prevent the merger? That is, can they in this regard control the operation of law ? A. Yes, provided the higher security shows upon its face that it was not taken in satisfaction of the simple contract, but was in addition or collateral thereto. Witz v. Fite, 91 Va. 446. Q. 13. A note signed by one Coburn was expressed to bear interest at "ten per cent, per annum." A co-maker added the words "after maturity." What effect if any did this have on the note? A. The note was thereby discharged as to Coburn. The fact that the alteration appears to favor Coburn, is immaterial. As. it was not the note signed by him he is not bound by it. Coburn v. Webb, 56 Ind. 96. Benj. Contracts, § 97. Q. 14. Did Coburn still remain bound to pay the debt evi- denced by the note? A. While a material alteration if made by or at the instance of the holder would operate to discharge the debt (Smith v. CONTRACTS 95 Mace, 44 N. H. 553), yet it would not be within the power of a co-maker, without the assent of the holder, thus to discharge the original indebtedness. Fisher v. King, 153 Pa. St. 3. Q. 15. An owner and an agent orally assented to the terms of a contract concerning lands whereby the agent was to sub- divide into lots, was to sell them in two years, and the parties were to divide proceeds above a stated sum. It was under- stood that the contract was to be in writing, and the agent made a draft which the owner read. The agent suggested mak- ing another copy, and then signing. The owner said he could not wait, but would make a copy, sign and send it to the agent. Thereafter there were two months of correspondence about details of surveying and platting. Nothing was said (further) about any agreement, for three months. Then the agent wrote, speaking of an agreement, and mentioning the terms of the draft. The owner did not reply ; but proceeded to sell the land without reference to the agent. Is there a contract here? A. No. "Though the terms of a contract may all be agreed upon [assented to] , still, if the parties make it a condition to the existence of a contract that the terms agreed upon be reduced to writing and signed by them, there is no contract until this is done." ' Green v. Cole, 103 Mo. 70. Q. 16. Suppose in the last question the agent had stated the terms in a letter, concluding with these words, "If this is agreed to, the agreement can be fully drawn up and signed," and the owner accepted. Would a further written agreement be necessary to constitute a contract? A. No. The distinction is that in the former question, the parties contemplated a written instrument, to be executed before any contract would come into existence. In the latter case, the reducing to writing was merely a convenient mode of evidencing a contract already entered into. Allen v. Chouteau, 102 Mo. 309. It is a mere question of intention. Do the parties mean to close before a writing is made? or have they closed already? 96 LAW STUDENTS' REVIEW and do they look to the writing merely as a formal way of evi- dencing what they have done? Mississippi &c. Co. v. Swift, 86 Maine 248. Q. 17. Plaintiff by letter offered to sell to defendant all the lumber on his land, whether the title was good or not. Defend- ant replied accepting the offer as to part of land, specifying it, but making no reference to the part as to which the title was in dispute. Defendant thereupon began to cut lumber on the land of plaintiff; and plaintiff sued in trespass. Should he recover? A. Yes. There was no acceptance here; hence no contract. An acceptance varying from the terms of the offer is in effect a counter offer, and is not binding until it is itself accepted. Davenport v. Newton, 71 Vt. 11. Q. 18. A bank gave an "option" to plaintiff to buy certain land within four months. For this plaintiff paid nothing. Twenty days after, the defendant undertook to withdraw this option. Meanwhile, assuming that the plaintiff, who is a real estate agent, has made efforts to sell the property, is there a contract here? A. There is no contract. This is a mere nudum pactum. The plaintiff gave no consideration, and bound himself to noth- ing. The "option" amounts merely to a continuing offer, which may be withdrawn at any time before it is accepted. Brown v. San Francisco Sav-Union, 134 Cal. 448. Q. 19. In the last question, suppose that the instrument purporting to give the option had been under seal ; then if there be no actual consideration, is it nudum pactum ? A. Not in a court of law. But if relied ov. in a court of equity, the court may inquire into the question whether there was a consideration. Bishop Contracts, §§ 119, 120. O. 26. February 10, 1813, plaintiffs wrote from Harper's Ferry to defendant, "If you are disposed to sell two or three hundred barrels of flour, we will give you $9.50 per barrel, deliverable in Georgetown. If you should want an advance CONTRACTS 97 (of money) please write us by mail, and we will send you part of the money in advance." In a postscript — "Please write by return of wagon whether you accept our offer." The letter was delivered to defendant at Mill Creek February 14, by a wagon- er in plaintiff's employ, who was delivering a load, and was to return with his wagon. Defendant wrote accepting. He mailed the letter to plain- tiffs at Georgetown, on the 19th, this being the first mail after he received the offer. On the 25th, the plaintiffs acknowledged receipt; but stated that not having heard from plaintiffs they had given up the expectation of hearing from them and had bought all they wanted. The wagoner had informed plaintiffs that he did not expect to return. The journey by wagon occu- pied four days. Is there a contract? A. No. The fact that the letter of acceptance was not given to the wagoner is not important, the means of transmitting not being essential; but the controlling feature here is that the plaintiffs mailed their acceptance to Georgetown instead of to Harper's Ferry. Here the defendant evidently calculated on re- ceiving an answer in four days; and he was explicit as to where it should be sent. As it was sent to another place, and delay occurred, he is not bound. ' Eliason v. Henshaw, 4 Wheat. 225. Q. 21. Suppose an acceptance is required by "return post"; but that in place of depositing the letter at the postomce, the letter is handed to an official letter' carrier. Is this a sufficient compliance with the requirement of the offer ? A. Yes. As long as the letter comes into the custody of a person lawfully authorized to transmit, who takes charge of it in the exercise of his public duty, it is the same as if the letter were posted at the postoffice. Pearce v. Langfit, 101 Pa. 507. Q. 22. At eleven-thirty o'clock Brauer telegraphed from Boston, Mass., to Shaw at New York City, "Subject prompt re- ply will let you May space (for cattle on a ship) fifty-two six." 7— L. S. Rev. 98 LAW students' review Shaw received this in New York at sixteen minutes past twelve o'clock. At twelve o'clock and twenty-eight minutes he telegraphed his acceptance; but through some delay in trans- mission, Brauer did not receive the message until twenty min- utes past one. Meanwhile, having received no answer, Brauer telegraphed at one o'clock (received by Shaw at i 43) revok- ing the offer. Brauer stands on his contract; Shaw on his revocation. Which should prevail? A. Brauer. "There is no doubt that the reply was handed to the telegraph company promptly" — or at least a jury might and probably would so find. To disable plaintiff from recovering, de- fendant should before acceptance bring home to plaintiff notice of revocation. If by express or implied terms, the offer is out-- standing at the time of acceptance, the acceptance is valid. Brauer v. Shaw, 168 Mass. 198. Benj. Contracts, § 8. Q. 23. April 20, 1865, the Secretary of War published a proclamation announcing a reward of $25,000.00 for the arrest of Surratt, one of President Lincoln's murderers. On November 24, 1865, President Johnson published an order re- voking offer of reward. In April, 1866, claimant communicated to an American ministerial official at Rome, information which led to Suratt's arrest, in November, 1866. His arrest was due entirely to disclosures made by claimant. Until after the arrest claimant had never heard that the reward offered by the Secretary of War had been revoked by the President. Is claimant entitled to reward? A. Not entitled. The reward was an offer revocable at any time before it was accepted, and before anything had been done ■ in reliance upon it. Offer was made by proclamation and com- plainant should have known it might be revoked in same manner. Shuey v. United States, 92 U. S. 73. Q. 24. Amos P. Rollins, defendant's testator, being pres- ent at a meeting of persons interested in building a Methodist chapel, told the secretary of the meeting that his name might be put down for $500.00. Shortly afterward he orally ratified this subscription. This CONTRACTS 99 was in 1871. Rollins died in 1873. The chapel was built before his death. No demand was ever made upon him during his life- time for the money. Is his estate bound? A. His estate not bound. In order to support an action, promise must be made upon legal consideration moving from promisee to promisor. "To make a promise binding, there must be a showing of acceptance, either by express vote or contract, assuming a liability or obligation, legal or equitable, or else by some unequivocal act, such as advancing or expending money, or erecting a building in accordance with the terms of ♦the contract and upon the faith of the defendant's promise." Cottage Street Church v. Kendall, Exr., 121 Mass. 528. Benj. Contracts, § 13. Q. 25. Suppose in preceding instance a promissory note had been given. Could it be collected? A. No, not if it remains in the hand of the church. A promise to give money can not be enforced even when put in form of note. Simpson, &c. College v. Tuttle, 71 Iowa 596. Q. 26. Testator gave his son testator's own note for $1,000. For this there was no consideration except love and affection. It was shown that the son in question was not as wealthy as his brothers. Is there here a sufficient consideration for the note? A. No. In such a case the consideration must be a valuable one ; either a benefit to the promisee or a detriment to the prom- isor. Here the note merely manifests an intention to give $1,000 — not the gift of $1,000 outright. Thus the transaction is execu- tory; and for lack of a valuable consideration, unenforcible. Fink v. Cox, 18 Johns. 145. Q. 27. In a business transaction A cheated B. B made statements to C about A which, if spoken falsely, would have been slanderous ; but B knew that the statements were true. A threatened suit for slander, and B agreed to pay him $100 in compromise. Can A recover from B on his promissory note given pursu- ant to this agreement ? IOO LAW STUDENTS REVIEW A. Yes. The law favors compromises made in good faith, and they will be regarded as based on good consideration, re- gardless of the merits of the controversy. The real considera- tion is not the sacrifice of the right, but the settlement of the dispute. 8 A. & E. Encyc. L. (2d ed.) 504-512. Q. 28. Charles Lehman, an intimate friend of the plaintiff, Wolford, and a frequent visitor at plaintiff's house, was a wid- ower about 87 years of age. He had been the father of a boy who had died many years before the transaction here in ques- tion arose. He spent a great part of his time at plaintiff's house. A male child was born to the plaintiff. Lehman requested that the child be named for him, Charles Lehman Wolford; saying if that name was given he would make its welfare his chief object in life, and would provide for it generously, and give it a good education. The child was so named. Lehman subse- quently visited the plaintiff frequently, was shown attention, and was cared for in a brief illness. In. fulfillment of his promise and in consideration of the service rendered him by the plaintiff and his wife, Lehman gave the plaintiff his promissory note for $10,000.00. Plaintiff, in an effort to furnish a consideration therefore, paid Lehman $40.00. Assuming fhe services rendered to have been trifling, was there a valid consideration here? A. The consideration was valid. The character thereof is an important feature. In this instance, "No person in the world, other than Lehman, can estimate the value of an act which arouses his gratitude, gratifies his ambition, or pleases his fancy." The value the parties place upon naming the child must prevail. Wolford v. Power's Admx., 85 Ind. 294. Q. 29. What is the distinction between alteration and spoli- ation as applied to written instruments, and what is the con- sequence in each case? A. Alteration is a change materially affecting the legal im- port. The term is usually applied to the act of a party entitled CONTRACTS JttOI or claiming under the instrument and implie WgnM fl&iigper de- sign by him. It avoids the instrument. Spoliation is the act of a stranger and has no legal effect as long as the instrument can be read. If wholly destroyed, the contents may be proved by parol. 2 A. & E. Encyc. L (2d ed.) 185. Bridges v. Winters, 42 Miss. 135. Benj. Contracts, §97. Q. 30. An insurance company lent money bearing interest at dy 2 per cent, per annum and took a note with the understanding that if the money was not repaid within six months, the rate of interest should be at 7 per cent. A became surety on the note, which on its face bore interest at 6j^ per cent. At the expira- tion of six months the note was not paid. Thereupon the secre- tary of the insurance company wrote upon the note a state- ment: "Interest to be at rate of 7 per cent, per annum from Nov. 1st, 1886"; and the interest at that rate was paid the fol- lowing May. The sttrety by reason of the alteration of the note after de- livery, sought to have it cancelled. The insurance company sought to have the words stricken out because they were writ- ten by mistake. Is the note avoided as to the surety by addition of these words ? A. No. They were put there without fraud, and in good faith, under a mistake of fact as to the existence of the contract they expressed. As the surety has not been injured, the words should be stricken out and the note should stand. McRaven v. Crisler, 53 Miss. 542. Nickerson v. Swett, 135 Mass. 514. Q. 31. In 1865,* plaintiff obtained judgment in assumpsit against defendant in the Supreme Court of the State of New York. After commencement of the suit in New York, but be- fore judgment therein was rendered, the plaintiff brought suit on the same claim in New Jersey. In this latter action the de- fendant pleaded in bar the judgment in New York. Is the plea good? 102 LAW STUDENTS REVIEW A. . The plea is good. A judgment by a court having juris- diction in the premises, merges the claim in the judgment. This result follows even though judgment be of a court in a state other than that where the subsequent action on same claim is brought. "The effect of a judgment at common law is practically to destroy, as long as it exists, the ground upon which it rests." Barnes v. Gibbs, 31 N. J. L. 317. Q. 32. The plaintiff as drawer brought action against the defendant as acceptor on a bill of exchange. The defendant asserted that that there was no consideration for drawing the bill, because the money for which the bill was drawn was agreed to be paid in consideration of the plaintiff's executing a lease of certain premises to the defendant. This had not been done, and the defendant avowed at trial that the plaintiff never meant to do this. A memorandum was entered into re- citing the bill of exchange as part of the consideration run- ning to the effect that plaintiff "Doth hereby agree to execute a lease, etc." The defendant went into possession and accepted the bill of exchange in question. Was the refusal to execute the lease available as a defense against the bill ? A. The defendant has no defense against the bill. "The money agreed upon for the premises would have been paid im- mediately, but for the convenience of the defendant. The plain- tiff agreed to take his acceptance at a future day." The defend- ant must pay the bill of exchange; and must seek his remedy upon the agreement of the plaintiff to execute the lease, and plaintiff's failure so to do. Moggridge v. Jones, 14 East 486. Q. 33. Stoddart was a book publisher. In 1877, he began an undertaking to reprint twenty-one voFumes of the En- cyclopedia Brittanica. The work was to be sold by subscrip- tion only, and the territory was allotted to canvassers. It was expected that the work would be printed at the rate of about three volumes per year. In February, 1877, Stoddart as- signed certain territory to one Warren, with exclusive right to sell therein, Warren agreeing to use his best endeavor to sell ; CONTRACTS IO3 to send Stoddart a weekly report of his orders; to fill no order outside his territory; to leave no volumes with book- sellers for sale or display ; to furnish no volume at a cut price ; and to remit one-half of the statement for previous month on the 7th day of the month, the balance on the 26th. In May, 1878, Warren agreed with another publisher, Scrib- ner, to sell their competing edition of the Encyclopedia, and that he would not canvass for any other Encyclopedia; but he was to have the privilege of completing orders already taken for Stoddart's edition. After this Warren refused to canvftss for Stoddart, and thereupon Stoddart refused to furnish any copies whatever to Warren ; even to fill the orders which he had obtained, ex- cept for cash on delivery. Stoddart brought suit for $2,976 for books furnished to supply subscribers. This amount was not disputed; but War- ren claimed damages because Stoddart had refused to carry out his contract. Warren placed damages at $30,000. Is Warren entitled to any set-off? A. No. While the contract fixed no time during which it was to continue in force, yet when either party terminates it the other was not hound by its provisions. Warren's exclusive right to sell the books, Stoddart agreeing to furnish them on stipulated terms, and again Warren's agreement to use his best endeavors to sell were reciprocal clauses. The performance of one was con- sideration for the performance of the other. When Warren ceased to canvass, he had no right to demand the books on terms mentioned in the contract. Warren v. Stoddart, 105 U. S. 224. Q. 34. Two owners of a steamboat were sued as common carriers, by the owners of seven bales of cotton shipped on board the steamboat. The cotton was destroyed by fire while on board the boat. It appeared that the bill of lading ex- cepted "Dangers of River," the river in this instance being the Tom Bigbee. The evidence showed that there was a torch light made of pine knots, hung on the port side of the boat, and other circumstances were shown from which it 104 LAW STUDENTS REVIEW might reasonably be inferred that this torch light caused the fire. The defendant sought to show that there was a custom of carrying torches at night in navigating the river. May such a custom be shown to excuse the carrier? A. No. The result would not be changed by such a custom of carrying torches at night. "A custom which would authorize a carrier to carry a torch in such a manner as to endanger a cargo would be in violation of the law and good faith and would not receive judicial sanction." Hibler v. McCartney, 31 Ala. 501. Q. 35. The plaintiff agreed with the defendant, who was about to build a house in the city of Dayton, to furnish brick at $6.25 per thousand. It was admitted that the plaintiff had performed his contract ; but a controversy arose over estimat- ing the number of brick laid up. At the trial the plaintiff offered evidence to prove that among bricklayers in the city of Dayton, where the plaintiff resided, and in that vicinity, a custom existed of ascertaining the number of brick by measuring the outside and inside walls of the building and by deducting for certain openings in the walls, allowing for every square foot of wall thus obtained, 7 bricks for a thickness of 4% inches; 14 bricks for a thickness of 9 inches; and 7 additional bricks for every additional thick- ness of 4 inches. By this computation the number arrived at was substantially in excess of the actual number used. Can plaintiff hold defendant to pay according to customary computation ; or may defendant pay according to actual thou- sands of bricks used? A. The custom is reasonable and does not contradict the contract. "Authorities to support this view are numerous and almost uniform and the subject is of every-day application as to shingles, measures and weights." Defendant is bound accord- ingly. Lowe v. Lehman, 15 Ohio St. 179. Benj. Contracts, § 69. O. 36. G of Baltimore sold for account of C in New York 10,000 bushels of barley at 87 cents. A letter advising of this suggested drawing a five days' draft on G, G to accept and CONTRACTS 105 pay when due. Thereafter and before delivery of the barley, it went up in price. Defending a suit on draft, G offered to prove that when a sale of grain in quantities of a thousand bushels or more is made to a merchant in the city of Baltimore to be de- livered within a limited time after sale, and grain advances in price, there is a well established custom permitting the vendee to exact a reasonable sum of money as a margin, if none of the grain has been delivered. Is such evidence competent? A. No. Such proof would contradict the express terms of the contract; and such a custom, moreover, is not a reasonable one. Who can tell what is a "reasonable" sum of money to be retained by the vendee? Gibney v. Curtis, 61 Md. 192. Q. 37. Lessor brought suit to recover rent of a store. The lease provided for term of "three years from first day of July, 1858." Rent was payable quarterly, and lessee agreed to pay for such further time as he might hold premises. July 16, 1861, lessee notified lessor that he would vacate the store on or before October I, 1861. On that day he vacated, and gave the keys to the lessor. Lessor said he considered lessee still his tenant and looked to him for rent for period October 1, 1861, to December 31, 1861. But he received and signed receipt for rent due on 1st of October. The store remained vacant, lessor refusing applications for same. Can lessor recover for the quarter yearly rent in dispute? A. He can not recover. His contention of course is that the quarter began October 1st; lessee contending it began October 2d. The rule is that if a lease be made to hold from day of its date, that day is excluded ; but if it be to hold from the making, that day is included. Where time is computed from an act done, the day of the act done is included; where it is computed from the day of the. act done, the day is excluded. Atkins v. Sleeper, 7 Allen 487. Q. 38. The city of Portland proposed to receive bids to construct a pipe line to supply the city with water. Hoffman made the lowest bid and was expecting to get the contract. He entered into a contract with one McMullen, reciting that 106 LAW students' review McMullen had helped him to get the contract; and agreeing to share profits equally with McMullen. It was further agreed that if either party should get any other contract from the city for doing any other part of the work, the two, Hoffman and McMullen, should share the profits and losses equally. Both had put in bids for the original work. Is there anything illegal about this contract? A. The contract is illegal. This for reason not only that it tends to lessen competition, but because they both committed a fraud in submitting different bids as if such bids were bona fide, and then in combining their interests. In the foregoing case McMullen sought an accounting. By reason of the illegality of contract he was by the court refused an accounting. McMullen v. Hoffman, 174 U. S. 639. But compare Brooks v. Martin, 2 Wall. 70. Benj. Contracts, § 62. Q. 39. A gave his promissory note to B, in consideration that B would keep silence as to criminal intercourse which was charged to have taken place between A and B's wife. Is this a good consideration? ' A. Yes. "There is no rule of public policy which forbids such a contract for silence, so long as it is not in contempla- tion to conceal and prevent the punishment of a crime." Wells v. Sutton, 85 Ind. 70. Q. 40. A was employed by B as a clerk under a verbal agreement. Being unable to obtain the wages due him he took out an insurance policy upon the life of B for the amount of his claim. He then left B's employ. Ten years thereafter B died without having made any payment upon the amount due A. The insurance company refused to pay, and A brought suit upon the policy. Can he recover ? A. A can recover. "Where a creditor procures an insurance upon the life of his debtor, his insurable interest continues al- though the statute of limitations would have barred his action, if pleaded, before the debtor's death. A contract for life insur- CONTRACTS I07 ance is not one for indemnity merely, and if the insured had an interest in the duration of the life when he took the policy, he may recover though that interest has ceased." Richards Insur., § 27. Elliott Contracts, § 4069. Q. 41. Plaintiff Huckins sued on two counts — the first founded on a promissory note for $200; the second in a like amount for goods sold to defendant Hunt before the making " of the note. It appeared that the note was given upon a secret agreement that Huckins should execute a composition deed entered into between Hunt and his creditors, which pur- ported to treat all creditors alike. This deed Huckins also exe- cuted. Plaintiff abandoned his claim on the first count, as be- ing based on an illegal consideration, namely, upon an agree- ment in fraud of creditors. But he contended that, although the note was given for the price of the goods, he might still re- cover for the goods, ignoring the note. Can Huckins recover? A. No. As to other creditors, the agreement was illegal, and did not bind them. But as to Huckins, he executed the com- position deed which extinguished his claim, and the law will leave him where it finds him, with his claim extinguished. Huckins v. Hunt, 138 Mass. 366. Q. 42. What is the distinction as to whether a contract in restraint of trade is valid or invalid ? Give examples of a valid contract and of an invalid contract restraining trade, as being entered into between two merchants in the same line of busi- ness. A. Contracts in total restraint of trade are invalid; con- tracts in partial restraint of trade are valid. The restraint must be a reasonable orie. Where one merchant who is selling out his business and good will to another, agrees never to engage any more in the same line of business, such agreement is in total restraint of trade and therefore invalid. Where he agrees not to engage in the same line of business in the immediate neigh- borhood for a year, the agreement is in partial restraint of trade, and, being reasonable, is valid. See Anchor Electric Co. v. Hawkes, 171 Mass. 101. 108 law students' review Q. 43. A, an eminent pianist, agreed to play at a concert on a certain day ; and upon the faith of such promise, B, to whom the promise was made, incurred great expense in advertising, etc., and sold 1,500 tickets to such concert at $2.00 each. At the appointed time A was ill and unable to perform. Was he liable to B for damages by reason of such failure? What is the rule applicable in such cases ? A. No. Where the undertaking is for the personal services of the promisor, and performance becomes impossible by reason of the incapacitating illness or the insanity or death of the promisor, performance is excused. Benj. Contracts, § 94(B). Q. 44. Spain was at war with Chile. The owner of a ship contracted that she would carry a cargo of coal from San Francisco to Valparaiso, consigned to the admiral of the Spanish fleet. The ship proceeded to the Chincha Islands near Valparaiso ; and there the captain learned that the Spanish fleet had left Valparaiso for an unknown destination. Being thus unable to make delivery to the admiral, he considered his voyage "broken up," and returned with the cargo to San Francisco. Is the consignor of the coal liable for the freight ? A. No. The ship-owner had made no provision against this contingency. He had engaged that his ship would proceed to Valparaiso, and this she should have done. If the consignee was not there, the captain might have stored the cargo. "If what is agreed to be done is possible and lawful, it must be done." Ship L. B. Harriman, &c. v. Emerick, 9 Wall. 161. Q. 45. A tenant of land with a building thereon covenanted to keep it in repair, and at the expiration of the lease to sur- render it in as good condition as it was at the date of the lease. The building, during the term of the lease, but through no fault of the tenant, was destroyed by fire. The landlord undertook to require him to rebuild, or to respond in damages for fail- ure so to do. Can the landlord's position be sustained ? A. Yes. "Although a man may be excused from a duty CONTRACTS IO9 imposed upon him by the law, if he is disabled from performing it without any fault of his own" — yet his contracts he must perform, though an accident may make performance onerous. He might have provided, by his contract, against this contin- gency. For example, the lease might provide "fire or other cas- ualty excepted." Phillips v. Stevens, 16 Mass. 238. Q. 46. Soon after the outbreak of the Civil War, one Huck- abee and three other persons formed an Alabama corporation, called the Bibb County Iron Company. Huckabee was presi- dent, the others were directors ; -and the four held all the stock. The Confederate government sent an officer to Huckabee to require him and the corporation to make a contract with the Confederacy to deliver iron at prices named. This Huckabee refused to do. The Confederate government then sent for him and told him he must make a contract with them. He and his stockholders refused. Again he was sent for and told that his company must either contract on government terms, or lease, or sell the works (which were in Alabama) on gov- ernment terms ; otherwise the works would be impressed. . After considering the matter, the company, in view of the fact that debts were increasing, that if they contracted, they could not pay their debts and get back their capital, and that leaving would be ruinous, concluded to sell. The evidence showed that during most of the time the company had been in operation, a guard from the Confederate army had been in control, and had seen to it that no iron was sent away except to the Confederate government, which exercised an almost des- potic power over the whole body of skilled labor thereabouts. So, sale was made. The property was afterward captured by the United States, and by it sold; and the sale was confirmed by act of Congress. Subsequently, Huckabee obtained a de- cree of the District Court of the United States on the ground, among other grounds, that his sale to the Confederacy, was brought about by duress. Do foregoing facts constitute duress? A. While duress may arise where no violence is used, such as by threats to take life, or inflict bodily harm or imprisonment; IIO LAW STUDENTS REVIEW yet duress must be such danger as to overcome the mind and will of a person of ordinary firmness. The above facts, however, do not amount to indicating such degree of constraint or danger, either inflicted or impending, as to overcome the mind and will of such a person. United States v. Huckabee, 16 Wall. 414. Q. 47. Steel was indebted to Frierson. In part payment he conveyed to Frierson his interest in his father's estate; but the agreement recited that inasmuch as Steel's father was alive, the amount of Steel's interest was not known. Frierson was to credit Steel with the amount received by him, Frierson. Subsequently Steel's father died intestate. His administra- tors filed a bill against Frierson and Steel, the son, for an ac- counting between the estate and the son, of advancements claimed to have been made to the son by the father ; but pray- ing that if so-called advancements should be held to be debts, then the son's interest in the estate should be subject to pay- ment of said debts. It was also charged that the son's assignment of his interest in his father's estate was void, and a fraud upon the estate; and was inoperative as against either advancements or debts due to the father. No fraud in fact was proved. It was shown that Frierson had paid debts amounting to $12,000 for the son ; and that the assignment of the son's expectancy was voluntarily made to repay Frierson. (a) Is such an assignment valid? (b) Is Frierson's interest in the estate subject to be diminished by Steel's advancements from or debts to the father in his life-time ? A. (a) In equity, expectancies may not only be assigned, but may be made the subject of a contract, as contracts of sale. These are called catching bargains; sometimes post-obits; and are subject to scrutiny. But if fairly made, they are upheld. (b) So far as the father made advances to the son, they must be accounted for in diminution of interest assigned, i. e., such interest is subject to be charged with advancements. But the indebtedness of an heir to the estate is not a lien upon his in- terest in the estate. So the creditor obtaining a first lien by CONTRACTS III levy, attachment, or assignment, before the administrator has taken steps to fix a lien, will prevail. Steele v. Frierson, 85 Tenn. 430. Q. 48. Plaintiff and defendant executed a written agree- ment leasing certain furniture of plaintiff to defendant. Plain- tiff was unable to read or write, and signed by a mark. He testified that the agreement was not read over to him; but admitted that he did not request that it be read over. He offered to prove that before he affixed his mark, defend- ant orally agreed to sell the furniture outright at a price named, part down, balance in instalments; that nothing was said about rent; and that immediately after agreeing on the terms defendant asked him to sign the writing. This he did, suppos- ing it represented what had been agreed to orally. The judge excluded the evidence. Should it have been re- ceived ? A. The evidence is competent. A party who from inability to read and write is ignorant of the contents of a written instru- ment, and who, not being chargeable with negligence, signs it without intending to sign an instrument of such purport "is no more bound than if it were a forgery." There has been no assent. Trambly v. Ricard, 130 Mass. 259. Q. 49. The Boston Ice Company had under contract sup- plied defendant with ice, in the year 1873. He became dis- satisfied with the service, terminated the contract, and there- upon made another contract with the Citizens Ice Company. The Boston company bought out the business of the Citizens company; and thereafter from April, 1874, to April, 1875, de- livered ice to the defendant. It did not notify defendant that it had bought out the Citizens company, and the defendant had the right to assume that the Citizens company was furnishing the ice. Can the Boston company recover ? A. No. There is no privity of contract between defendant and the Boston Company; and without such privity, the use and 112 LAW STUDENTS REVIEW consumption of the ice will not support an action. Defendant has a right to choose with whom he will contract, and can not with- out his consent have another person thrust upon him. Boston Ice Co. v. Potter, 123 Mass. 28. Q. 50. Plaintiff and defendant entered into four simultane- ous contracts, each contract calling for the delivery of 100 bales of hops. As to one of these, defendant had failed to make delivery according to its terms, the time for delivery having arrived. As to the other three, the time for delivery had not arrived, but defendant unqualifiedly stated that he would not deliver the hops. There is here, of course, a breach as to the one contract upon which suit may be brought forth- with. But how about the other three? can plaintiff sue at once? or must he await the time for delivery before he can sustain an action for a breach ? A. He may take the defendant at his word and sue at once ; or he may wait and sue after the time for delivery has arrived. Such renunciation is comparable to a party's voluntarily put- ting it out of his power to perform an executory contract. This amounts to a breach, even though it take place "before perform- ance is called for. It is then the right of the injured party to sue at once. Eoehm v. Horst, 178 U. S. 1. Q. 51. Suppose in the previous question, instead of con- tracts for the sale of hops, the plaintiff had held defendant's four promissory notes, one overdue and unpaid, the other three not yet due; and that defendant had stated that he wouldn't pay those still to mature : Would suit lie at once, on the unmatured notes ? A. No. The mere statement of the maker that he will not pay a note does not make it due. It is only where there is an executory contract, or where there are "material provisions and obligations interdependent" that wrongful renunciation in ad- vance of the time for performance constitutes a breach. See Nichols v. Scranton Steel Co., 137 N. Y. 481. The distinction is founded on grounds of convenience and good sense, though not strictly logical. Dingley v. Oler, 11 Fed. 372. CONTRACTS 113 O. 52. Defendant on her own premises prepared a foun- dation for a monument, and contracted with plaintiff to erect a monument thereon. Before the monument was completed, de- fendant forbade its completion. Can plaintiff recover the contract price ? A. No. He is only entitled to damages for the breach of the contract, assuming the renunciation to have been lawful. He has the right to deem it in force, for the recovery of these damages — but he has not the right to enhance the damages, by proceed- ing to complete after he has been told to desist. Wigent v. Marrs, 130 Mich. 609. Q. 53. Plaintiff made a contract with defendant for pur- chase of certain possessory rights of defendant in cattle ranges or ranches ; also water rights, fences and improvements thereon, and approximately 7,000 head of cattle. Total pur- chase price, $202,500. Plaintiff paid $175,500. Defendant also delivered some of the cattle; but failed to deliver cattle of value of $14,000; and also refused to make delivery of the ranches and rights therein until $27,000, the balance of the purchase price, was paid. Plaintiff paid the $27,000, protesting, however, that it was because delivery was declined except upon payment in full, and claiming that $14,000 thereof for the undelivered cattle was not due. It was shown that winter was coming on, and that plaintiff might be exposed to great loss unless he could get possession of the property. Did this situation amount to duress, and could plaintiff re- cover back $14,000? A. Under above circumstances payment was made under duress and could be recovered back. Defendant's attitude amounted to coercion from which plaintiff had no other means of immediate relief than by making payment. Lonergan v. Buf ord, 148 U. S. 581. Q. 54. In order to enable his debtors, the Browns, to pro- cure money to pay him, defendant Osborne wrote and gave to them a slip of paper as follows: "Mr. Hadcock, the Browns 8— L. S. Eev. 114 LAW STUDENTS REVIEW are good for what money you let them have, (signed) L. Os- borne." Hadcock did not know the Browns ; but on strength of this paper, knowing defendant, he let them have $400, taking their note therefor. Most of the money was used by the Browns to pay their debt to defendant. Upon suit brought by Hadcock against defendant, based upon fraud, it appeared that there was no dispute that the representation was false, and that loss had resulted therefrom to defendant, the Browns being insolvent. Defendant asked for an instruction in effect that unless it appeared that he made the representation knowing it to be false with intent to deceive then the same does not amount to a fraudulent misrepresentation. Does this instruction state the law? A. Not on above facts. The law is that if without knowing what the fact was, he stated it for a fact and it was not a fact — then it was false and fraudulent. Otherwise if he merely stated it as an opinion. Hadcock v. Osmer, 153 N. Y. 604. Q. 55. A promoter of a mining corporation, as an induce- ment to persons to subscribe to capital stock in the corpora- tion, stated that a person of wide reputation, one Mallory, widely known for his sagacity in business, had subscribed and paid for 5,000 shares. The promoter did not state that there was an arrangement with Mallory, whereby, to secure the in- fluence of his name, he was to have his shares free of charge. Does failure to mention this fact amount to fraud on sub- scribers ? A. Yes. The withholding of such a fact amounts to fraudu- lent concealment. To have disclosed it would have been to defeat the purpose for which shares were given Mallory, and would have destroyed the inducement held out to subscribers, namely, that a man of known business sagacity was willing to put money into the enterprise. Coles v. Kennedy, 81 Iowa 360. CONTRACTS 115 Q. 56. Hunt lent Rousmanier $2,150. To secure payment of this sum and also an additional sum of $700 Hunt gave a bill of sale or mortgage of his interest in the brig Nereus then at sea. Subsequently he executed a power of attorney authoriz- ing Hunt to execute a bill of sale for three-quarters of the Nereus to himself or any other person and to collect marine insurance. The power recited that it was given as collateral security for payment of the indebtedness. It appeared that on account of the inconvenience attending upon a bill of sale, counsel had advised the substitution of power of attorney therefor as security. Hunt died; and by reason of his death the power expired. Assuming that counsel was mistaken in the law, or did not foresee this contingency, is this a mistake which the law will correct ? A. No. The mistake here was not in the instrument, which the parties intended the one to give, and the other to receive; it lies rather in the legal operation thereof. Accordingly, this being a mistake of law, and not of fact, the court will not cor- rect. Hunt has lost his security. Hunt v. Eousmanier, 1 Peters 1 Q. 57. Alice A. Clink was complainant in a suit to fore- close a mortgage. The foreclosure was attempted, and went to sale and deed to complainant ; but through a defect in the proceedings the foreclosure was ineffectual. She, however, supposed she had title; and accordingly when the mortgagor tendered her amount due upon mortgage, exclusive of fore- closure costs, to be in full of mortgage lien, she refused the tender; though she offered to accept the money as far as it would go. Upon her learning of the defect she attempted to foreclose; but was met with the defense that the lien was gone, owing to her having refused the tender. (a) Is her mistake as to effect of her foreclosure and sale a mistake of law or fact? (b) Will equity relieve? n6 -law students' review A. (a) This is a mistake of law. (b) While a mistake of law it is still one against which equity will relieve. It concerns only Clink's antecedent legal right. Eenard v. Clink, 91 Mich. 1. Q. 58. The Phoenix Insurance Company issued a policy of insurance to one Riddle in 1871. The policy contained a stipu- lation that if the premium be not paid to the company on or before day of its maturity, then policy should cease. In point of fact in 1873, 1874, 1875, premiums, while paid, were not paid until after the date of their respective maturities. They were, however, allowed to be paid without objection on the part of company. Dividends might be credited on premium. October 6, 1876, insured was killed in a railroad accident. The premium due September 20 next previous had not been paid, although there was proof that insured, upon leaving home to go on a journey, had arranged to pay the amount, when notice should be received, similar to what had been theretofore sent to him by the company. On October 6, 1876, amount due was tendered to the com- pany but the company refused to receive it, stating that by reason of its non-payment at maturity, in the life-time of in- sured, the policy had lapsed. Is the contention of company sound? A. Unsound. Insured had the right to rely on receiving no- tice as he had done before; and moreover he could not tell how much to pay until he knew what amount of dividend he had been credited with. This knowledge lay with the company. Accord- ingly, the company having failed to give reasonable notice of the amount of dividends and thereby to inform insured as to the cash to be paid in order to keep alive the policy, is not in posi- tion to claim lapse or forfeiture. Phoenix Insurance Co. v. Doster, 106 U. S. 30. Elliott Insurance, § 134. Q. 59. Mortgagor gave mortgagee an instrument providing that mortgagee repair, refit and pay taxes on plantation and in consideration of mortgagee's agreement so to do, mortgagor obligated herself to pay $1,500 and guaranteed possession of plantation for five years, rent free. CONTRACTS 117 Mortgagee entered plantation and partly repaired and re- fitted it, paying taxes for three years out of five-year term; but the mortgagee failed to keep the place in full repair and failed to pay taxes for two years. Discuss his right of recovery for what he did as for a quantum meruit, or whether failing to complete his contract, he must lose the benefit of what he has done. A. The matter hinges upon the question whether mortgagor "accepts" what has been done. The mortgagor may not stand by, and permit possession to end of term and then avail herself of the benefit which accrued to her real estate, but refuse to pay. For instance, as to taxes, or as to any other default, it is mort- gagor's duty in the above case to make timely protest against partial failure on part of mortgagee. Tunno v. Eobert, 16 Fla. 738. Elliott Contracts, § 2026. Q. 60. Suppose in the foregoing case that mortgagee had agreed to build a house on mortgagor's land ready for oc- cupancy at a day named ; but that in consequence of a hidden defect in the soil, the walls sank and he could not finish the building at the time specified. Could he then recover a quantum meruit for what he had done? A. No. He agreed to build the house for occupancy at a certain time and he did not perform his agreement. While it is a hardship that he must deal with defect in soil — yet if a party obligates himself, when it is possible to perform, he must make it good unless performance is rendered impossible by act of God, the public enemy or the act of other party. Un- foreseen impossibility is a different ground, however, and will not excuse. Dermott v. Jones, 2 Wall. 1. Q. 61. Duffy and another, plaintiff, sold the good will of their marble monument shop in Covington, to defendant, Shocky, for $300; and bound themselves in the penalty of $1,000 not to start the marble business at a point nearer Coving- ton than Lafayette or Terre Haute, so long as Shocky should carry on business in Covington. It was also agreed that marble was to be furnished by plaintiffs, and taken by defendant, at fixed prices until a certain time; and that defendant was to Il8 LAW. students' review employ plaintiff's agents for the time for which they were engaged by plaintiff and at the same wages. Assuming that Shocky failed to pay the $300 ; that plaintiffs brought suit; that Shocky averred and proved a breach by plaintiffs, in that they had started a marble shop within the prohibited area, and claimed $1,000 damages by way of set- off: What do you say, (a) as to validity as being in restraint of trade, (b) as to whether the $1,000 should be considered as liquidated damages or merely as penalty ? A. (a) Not so large an area or limit of time as to be un* reasonable. A reasonable restraint of trade is lawful. (b) The use of word "penalty," does not preclude an exam- ination into circumstances surrounding the contract; and it may- be viewed simply as liquidated damages. In the present instance, while only $300 was to be paid by Shocky, yet the law will not say that the parties may not themselves fix their damages. Here, it seems, that agents were hired and marble bought; and the parties doubtless had that in mind, in fixing amount of damages for breach of contract at $1,000. Accordingly, the measure parties adopted can not be viewed as a mere arbitrary penalty. The law will allow it to stand as liquidated dam- ages; and Shocky may recover the $1,000, less $300 he was to pay. Duffy v. Shocky, 11 Ind. 70. Q. 62. Defendant agreed, but not in writing, to buy cer- tain land from plaintiff. Defendant instructed that a deed, along with notes and a mortgage to be given for deferred pay- ments, should be sent to him. This was done, and defendant made some effort to sell some of the land. Upon receipt of deed he was to forward plaintiff his draft for $1,500, and was to execute and return notes and mortgage. Thereupon defendant repudiated the agreement, and sought to defend against an action for the purchase price on the ground that the contract was for sale of lands and, hot being in writing, was within the statute of frauds. Is defendant's position sound? A. Unsound. When in pursuance of a verbal contract a con- veyance has been executed and accepted the statute does not apply, the agreement having been executed. Niland v. Murphy, 73 Wis. 326. Benj. Contracts, § 26. CONTRACTS 1 19 Q. 63. A house at 23 Pine street, Boston, was put up for sale at auction. It was struck off to one Riley as being the highest bidder; and a receipt signed by the auctioneers was given him, stating that he was the highest bidder and pur- chaser of "house, 23 Pine street," for $3,850 ; that he had paid $300 as a deposit, in part payment of the purchase price ; and that vendor shall in all respects fulfill the conditions of the sale. Assuming the auctioneer to be authorized by the owner to sign, is this sufficient memorandum in writing of the trans- action ? A. Not sufficient. Eeference is made to "the condition of sale" ; but what these conditions are does not appear. The trouble is that the contract is partly in writing and partly by parol; and it can not be ascertained without resorting to parol testimony what the conditions are. Eiley v. Farnsworth, 116 Mass. 223. Q. 64. A widow, whose husband had been killed in the Civil War and who had a pension from the government, entered into correspondence with one Peck, defendant's testator. Elev- en letters passed between them, from which it might be gathered that if she should marry Peck she would lose her pension; and from the series of letters it appeared that Peck proposed if she would marry him, to give her the right to one-half his property and the use of the other one-half for her life. Peck died and left her only $200 in addition to her dower interest. His estate was worth about $8,000. The widow brought her action to recover damages for breach of the ante- nuptial contract ; and the statute of frauds was pleaded. Should the plea prevail? A. No. It is not necessarily contemplated by the statute that the agreement be in one writing. So long as letters taken to- gether show what the agreement is; and so long as they are connected and related to each other, they may all be considered for the purpose of ascertaining what the contract is. This con- stitutes a writing within the meaning of the statute. Peck v. Vandemark, Executor, 99 N. Y. 29. Q. 65. The Boston Market Association was erecting a building. Upon completion, the entire building was to be'leased 120 LAW STUDENTS REVIEW to one Freeland. Before completion, Freeland and one Ritz en- tered into an agreement in writing, whereby upon completion of the building, Freeland was to execute a lease for certain specified space therein. Term five years; rental $2,500, "in accordance with the blank form" attached thereto. It was agreed that the lease in question be made subject to the "terms and conditions," of the lease of the entire building to Freeland. Subsequently the building was completed, and the contem- plated lease between Freeland and the Boston Market Associa- tion, which covered the whole building, was executed. Ritz refused to accept the lease in accordance with the fore- going stipulations; and sought to defend on the ground that the agreement for the lease had been made subject to another agreement, which other agreement was not then in existence; and contended, that if a series of papers is relied on, all the papers must be in existence. Is the defense good? A. Defense is not good. It is no objection to a written con- tract that some of its terms are to be fixed or something done in the future, if that something is done before the action is brought. Freeland v. Ritz, 154 Mass. 257. Q. 66. Plaintiff, Aldrich^ at the request of defendant, Ames, and for a valuable consideration, became bail for Crehore; upon which defendant promised plaintiff, but not in writing, to indemnify and save him harmless. Aldrich being held for Crehore's default, can Aldrich re- cover of Ames? or can Ames avail himself of the statute of frauds ? A. Statute has no application here. This is not a promise to a creditor to pay the debt of another, who owes the creditor; it is a promise to the debtor to pay his, debtor's, debt. Aldrich v. Ames, 9 Gray 76. Q. 67. A railroad company agreed with plaintiff, Warner, that it would put down rails and maintain a switch, for War- ner's benefit for shipping purposes, as long as he needed it. Accordingly plaintiff secured ground for the switch and laid CONTRACTS 121 ties, and the railroad company set rails and established a switch. Plaintiff testified that he expected to engage in the manufacture of lumber at a point where the switch was laid and to have a site for lumber there as long as he lived. Upon action brought on this contract the railroad company- pleaded that the contract was oral and within the Statute of Fiauds, for the reason that it was not to be performed within one year of the making thereof. Is the plea sustainable ? A. Plea is not good. While parties may well have expected that the contract would continue, and even if it did, in fact con- tinue, for more than a year — yet the question is whether the contract, according to reasonable interpretation of its terms required that it should not be performed within the year. Such requirement not appearing, the contract is not within the statute. Warner v. Texas &c, 164 U. S. 418. Q. 68. Owner of a building orally agreed with A, to permit him to use a hall for dancing purposes for afternoons of four special holidays at a stipulated price for each afternoon. Sub- sequently the owner refused to perform his agreement on the ground that it should have been in writing to be binding. Is a writing necessary? A. No. This is not a contract for a sale of an interest in land. The contract contemplates merely a license and not a sale. Accordingly it is not within the statute. Johnson v. Wilkinson, 139 Mass. 3. Q. 69. Plaintiff was a contractor. Defendant, Canna, was in the business of lending money on construction mortgages. Plaintiff had begun work on three houses, which Hoffman was erecting. When only a part of the work had been done, plain- tiff distrusted Hoffman's financial responsibility, and refused to go on unless Hoffman would give him a written order on Canna to pay him for work out of advances to be made by Canna out of the large mortgage defendant had taken on the building. Hoffman gave the order, but Canna refused to accept. He told plaintiff, however, to go ahead, and he would pay him 122 LAW STUDENTS REVIEW money from time to time. Canna did thereafter pay money to plaintiff as Hoffman's work progressed. (a) Was this a promise to answer for the debt, default, or miscarriage of another ? (b) If so, was it taken out of the statute by payments made ? A. (a) Clearly this was a promise on part of Canna to pay Hoffman's debt. Accordingly the statute applies. (b) The payments made from time to time have no bearing on the matter. This is not an instance of part performance to take the case out of the statute; it is a mere volunteering on the part of Canna. He is not bound to pay a debt of Hoffman. Eibock v. Canner, 218 Mass. 5. Q. 70. Defendant promised plaintiff but not in writing "to pay for such goods as one Hutchinson may take" of plaintiff. Hutchinson subsequently selected certain goods, and they were delivered to him by plaintiff. Plaintiff claimed that this amounted to an order to deliver goods to Hutchinson, and that the debt was the debt of defendant. Defendant contended that this was an undertaking to answer for the debt of another, and that the statute of frauds precludes recovery. What 'n> the test to determine whether the statute applies? A. Where a promise is made before credit is given, the test is, was credit given to the person receiving the goods? If it was the promise is not good. But if credit is not given the buyer, then the promisor may be held. Cole v. Hutchinson, 34 Minn. 410. Q. 71. Angier bought a wagon at auction from the plaintiff Heaton. On the same day Angier sold the wagon to Chase. Chase agreed to pay plaintiff for the wagon and this was as- sented to by plaintiff. Chase did not pay; and plaintiff sued Angier. Can plaintiff recover? A. There is a novation here. When plaintiff assented to the arrangement he accepts Chase as his debtor, in place of Angier; and his claim against Angier is thus extinguished. Accordingly he can not recover. Heaton v. Angier, 7 N. H. 397. CHAPTER V BAILMENTS AND CARRIERS Question I. A miller owned and operated a mill. Connected by conveyors with his mill were storage bins; and in these bins were placed both the wheat bought by the miller, and the wheat brought in for storage by farmers. It thus became commingled. The miller then ground and sold it, - receiving the money therefor. When the wheat was received from a farmer, it was weighed, and a "load check" given, which could be exchanged (but rarely was exchanged) for a receipt specifying that the wheat was received for storage. The miller might give back wheat of like kind, or settle at the market price in cash, when the farmer made demand for his wheat. The settlement was usually made in cash; though at times wheat was delivered, on payment for storage and sacks. Plaintiff, a farmer, who was familiar with the custom of the business, had delivered 122,000 bushels of wheat to the miller ; but of this only 105,000 bushels were in the warehouse when a fire . destroyed all the wheat. Then plaintiff sued the miller for the value. Can he recover ? Answer. If the title passed to the miller, plaintiff can recover ; otherwise not. The question therefore is whether the transac- tion constitutes a sale or a bailment. While a receipt may specify that the wheat is for storage; yet the commingling with other wheat, the grinding and selling by, and for account of, the miller, and the custom of settling in cash, are circumstances which point to a sale, and are controlling. Accordingly, the miller and not the plaintiff must bear the loss; and the plaintiff can recover. Savage v. Salem &c. Co., 48 Ore. 1. 123 124 LAW STUDENTS REVIEW Q. 2. Suppose in the foregoing instance, while the wheat was commingled with other wheat of like grade and value, yet the custom had been to return to the farmer similar wheat to that which he left with the miller, charging for storage and sacks. Could the farmer then recover ? A. No. While the principle of bailment ordinarily requires the return of the article in specie, or of a product fashioned out of the article, as flour from wheat; yet the warehousing of grain, where it is impracticable to keep every lot in a separate bin, had caused a modification; and as long as the grain or an equal amount of like quality must be returned, the transaction retains the character of a bailment. Brown v. Northcutt, 14 Ore. 529. Elliott Bailments, § 23. Q. 3. Twenty-five farmers owned a pickle factory. In February, 1895, they agreed with one Meierdicks ("M.") to organize a company to manufacture and sell pickles and sauer- kraut; and for that purpose to deliver to M. at a given price the cucumbers and cabbages to be grown on a specified acreage. These products were to be received by a joint agent of the farmers and of M. at the factory; and M. was to furnish labor, utensils and additional materials for the manufacture. The pickles and sauer-kraut were then to be sold; and profits di- vided between the farmers' company and M. Provision was made for affording complete data as to all utensils furnished, and goods received and shipped. When the raw material had been manufactured, in whom was the title thereto vested ? in the farmers' company, or in M. ? A. This is a bailment, not a sale. A joint enterprise was here involved. When the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed. The owners of the produce delivered retained their title to the property until the contract had been completely executed, and this without regard to the value of the labor performed upon it by Meierdicks. Sattler v. Hallock, 160 N. Y. 291. Q. 4. A block of wood of small value was by his employei BAILMENTS AND CARRIERS 125 put into the hands of a skilful woodcarver, who was employed by the day to carve the wood into a statue. The statue, when completed would be worth many times the value of the wood. It was nine-tenths completed, and the woodcarver had received by agreement nine-tenths of the total compensation agreed upon, being more than the original value of the wood, when the nearly completed statue was accidentally destroyed. Assuming that this was without any fault or negligence on the part of the woodcarver or his employer, upon whom would the loss fall ? A. Upon the employer; because he remained the owner of the material, the woodcarver having merely been employed to augment its value by carving; and this he had done so far as he could. 5 Cyc. 184, 185. Q. 5. A hired from B a horse and buggy for the avowed purpose of driving to Syracuse. He drove there; and then having some business with C, a farmer residing about five miles beyond Syracuse, he drove to C's residence. A had driven a mile or two on his return from C's residence, when he met an automobile in the road, which, without fault on his part, caused the horse to run away and destroy the buggy. Who must suffer the loss ? A. The hirer is under an implied obligation not to drive the horse to a different place, or beyond the place designated, in the contract of hiring; and if he does, he transcends the contract of hiring and is liable for all damages, although caused by inevit- able accident. 7 A. & E. Encyc. L. (2d ed.) 312. Q. 6. In 1867 Fannie L. Graham had $4,000 United States bonds. These she deposited in the First National Bank of Carlisle, Pa., for safekeeping. They were called; and at her request the cashier converted them into other United States bonds, which were also left in the bank for safekeeping. The officers of the bank had been accustomed to receive such de- posits ; and they were entered in a book kept by the bank. 126 LAW STUDENTS' REVIEW In August, 1871, they were stolen from the vault of the bank. On being sued for their value the bank asked the court to instruct that, the bank being a corporation chartered under the national banking laws, it was not authorized to receive bonds and valuables for safekeeping; that the act of the cashier in taking the bonds did not bind the bank, and plaintiff Graham could not recover. Does this instruction state the law? A. No. No moral turpitude is involved here. Having re- ceived the bonds, the bank was not at liberty to throw them away. It could only escape liability by returning them, or by getting rid of its obligation in some lawful manner. Corpora- tions are liable for every wrong they commit; and in such cases the doctrine of ultra vires has no application. National Bank v. Graham, 100 U. S. 699. But see Foster v. President &c, 17 Mass. 479. Q. 7. Plaintiff loaned defendant a horse of the value of $200, which defendant promised to return or pay for. He did neither ; and plaintiff sued for the value of the horse. Defendant contended that he borrowed the horse to ride to Palmyra, a neighboring place, and back to plaintiff's house ; and encountered on the road some of the soldiers from the United States army; and the soldiers by force, against his will, and without any negligence whatever on his part, took the horse away from him and still had possession of the horse. Assuming this was a gratuitous bailment, and that both parties knew that troops of the government were in the neigh- borhood pursuing an enemy, state the law which would be applicable here. A. Borrower not liable if the horse was taken by robbery or irresistible force, or stolen out of his possession, provided he has under the circumstances exercised the strictest care and diligence to keep the horse. If however by his own rashness he exposes the property to the peril in question he will be liable. The above allegation that the defendant was without any negligence whatever is equivalent to an averment that the re BAILMENTS AND CARRIERS \2J quired degree of care was exercised; and 'if he can sustain this, he should prevail. Watkins v. Eoberts, 28 Ind. 167. Q. 8. You have a valuable young hunting dog. A friend offers to train him for you, without pay, and you turn the dog over to him. While hunting he shoots and kills the dog under circumstances showing gross carelessness on your friend's part. Discuss the question of his liability. A. The foregoing is a case of gratuitous bailment. My friend is 1 liable. He impliedly undertakes, though he receives no pay, not to be grossly negligent. Belmont &c. v. Richter, 31 W. Va. 858. Coggs v. Bernard, 2 Ld. Eaym. 909. Q. g. One Jaminet hired the defendant, a "moving com- pany," but not a common carrier, to move her household goods from one residence to another in the city of St. Louis; and delivered to the company a mirror and a portrait of herself for that purpose. The company agreed, in consideration of certain compensation in that behalf to be paid, to move and deliver the goods safely and to be responsible for them. The company's manager assured her "we are thoroughly respon- sible; we move those valuable things every day." By the wanton act of a stranger the mirror was destroyed and the portrait was damaged during the moving, and while they were in the possession of the company. On these facts is the company liable ? A. Not liable. In the absence of a special contract, a bailee for carriage, not a common carrier, is not chargeable for dam- ages to the property bailed which he is transporting, when such damages are caused by the wanton act of a third person. The private carrier is not an insurer; and the assurance that he is responsible, and moves valuable things every day, is to be taken merely as describing his skill; not as enlarging his duty to use reasonable care under the circumstances. Jaminet v. American Storage &c, 109 Mo. App. 257. 128 LAW STUDENTS' REVIEW Q. 10. A went into a barber shop kept for public patronage, and deposited his hat on a rack hung in the shop for that pur- pose. While he was being shaved, the hat disappeared from the shop and was thus lost. Is the proprietor liable ? A. Yes. He was a bailee for hire, and owed the duty of ordinary care. This seems to have been violated, as under the circumstances the loss might with reasonable care have been averted. Dilberto v. Harris, 95 Ga. 571. Q. ii. A pledges chattels to B to secure a debt owing to B from A. A defaults in payment of the debt when due; and requests B to sell the chattels. At the time of pledging the chattels, and at the maturity of the debt, the value of the chattels pledged exceeded the amount of the debt and expense of a sale. A had no other property or money, and owed other debts. B used reasonable care in his custody of the goods, but refused to sell them. Three months after maturity of the debt their value had great depreciated. In the absence of any special agreement between A and B what right of action, if any, has A? A. A has no action, as he should have redeemed the goods by payment of the debt. In the absence of a special agreement a pledgee of chattels is not required to sell them and apply the proceeds on the debt, even though authorized or requested to do so by the pledgor. 31 Cyc. 828. Elliott Bailments, § 73. Q. 12. In the absence of an express agreement to that ef- fect, has the pledgee of a sewing machine given to secure a debt the right to use such machine in a reasonable manner while it is in his possession ? A. No. The right given is the value of the property as it is; and no right is granted in its use. 31 Cyc. 825. McArthur v. Howett, 72 111. 358. Q. 13. If a milch cow were deposited would the milking of the cow subject the bailee to an action for conversion 3 BAILMENTS AND CARRIERS I2Q. A. No; because the milking of the cow would promote the health of the animal. 1 Story Bailm., § 89. Mores v. Conham, Owen, 123, 124. Q. 14. Plaintiff, a customer of a bank, pledged certain property to secure a loan of $35,000 from the bank to him. The instrument, which was drawn by the bank, evidencing the pledge, provided that the pledge was given to secure the loan of $35,000, above referred to, and "any other of plain- tiff's liabilities to the bank due or to become due, or which may hereafter be contracted or existing." The bank subsequently bought from a trust company a note of hand of the plaintiff for $5,000. Can the bank hold the pledge to secure the note for $5,000 ? A. No. Any indebtedness beside that for the $35,000 which was contemplated as secured or to be secured,_was such as might arise between the customer and the bank in their ordinary deal- ing. If there is any doubt about this, the language must be con- strued against the person who uses it; and in favor of him who accepts what the other suggests. This is known as the doctrine "contra proferentem." Gillet v. Bank of America, 160 N. Y. 549. Q. 15. Plaintiff's intestate had a railroad ticket, (found on the person of intestate after his death) ; but the conductor of defendant railroad had not asked for it. The ticket called for transportation from Port Clinton to Tamaqua. Intestate, feel- ing ill, went into the mail car, which was in immediate charge of employes in the railway mail service. A collision occurred, by reason whereof intestate, while in the mail car, was killed. Was intestate, in contemplation of law, a passenger on de- fendant's train? A. No. He was in a place where defendant's employes, in the ordinary discharge of their duties would not discover him. The carrier does not undertake to carry safely one who "hides in the crevices of a locomotive, or in the hold of a ship." In- 9— L. S. Rev. I30 LAW STUDENTS' REVIEW testate had not been accepted as a passenger; and was not in legal contemplation, a passenger. Bricker v. Philadelphia &c, 132 Pa. 1. Q. 16. Assume that a conductor has entire control and management of his train. Assume that it is his duty when running by telegraph and special orders, to show the same to the engineer of his train; that the conductor receives a tele- gram informing him of the coming of another train, and di- recting him to hold his at a point named until the other train arrives; but that neglecting to show the telegram to his engi- neer, he goes into the caboose and falls asleep. By reason of his negligence there is a collision, and the engineer is injured. He sues. Can he recover of the railroad which owned and operated the train ? or is the conductor his fellow-servant ? A. He can recover. The conductor is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. Chicago &c. R. Co. v. Eoss, 112 IT. S. 377. Note however that four of the nine justices dissent, on the ground that the conductor was a fellow servant with the others employed on the train. See Mast v. Kern, 34 Ore. 247. Baltimore &c. E. Co. v. Baugh, 149 U. S. 368. Q. 17. A delivered hay to a railroad company for transpor- tation. The hay was placed on flat-cars. The next day, when the company was about to forward the hay, the owner request- ed that it be held until he could see, or hear from, the party to whom it was sold. The request was complied with. The next day after, while the hay was so held at request of owner, it was ignited by sparks from a passing engine, and was partly destroyed. Was the liability of the company that of a common carrier ? A. No. While holding the hay at request of owner the liability was that only of a warehouseman and not that of a common carrier. St. Louis &c. v. Montgomery, 39 111. 335. Elliott Bailments, § 165. BAILMENTS AND CARRIERS I3I Q. 18. Plaintiff's intestate purchased a ticket from de- fendant railroad for Easton. He boarded a train, and the train had nearly, but not quite, reached that station, when it stopped, to await an express train which was passing in an op- posite direction. The name of the station had not been called. Decedent got off the train to go home afoot, as the point at which he left it was nearer his home than the station. In crossing the track he was killed by the express train. Verdict directed for the defendant. Should it stand? A. The verdict should stand. The decedent left the train voluntarily, as he had a right to do ; hut he thus abandoned his status as a passenger on the road ; and the defendant was under no further obligation to afford him a safe path on his further progress. Buckley v. Old Colony &c., 161 Mass. 26. Q. 19. One Brockett took passage on a steamboat, as a deck passenger, to go from Albany to New York. His ticket read that deck passengers were not allowed "abaft the shaft." A servant of the company who operated the steamboat, finding Brockett on a pile of freight abaft the shaft, told him two or three times to get down. Other passengers got down. Brockett, instead of getting down, tried to climb away, and kicked the servant in the breast. The servant caght hold of him, and in the struggle which ensued, they both came to the floor "with a crash," and plaintiff was thereby injured. Assuming that it was the duty of the servant to remove Brockett, is there a question here to go to the jury on these facts ? A. There is nothing here for the jury to pass upon.- Brockett brought the assault upon himself; his being injured was an unavoidable accident; and the jury should be told that he is not entitled to recover. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637. Q. 20. Plaintiff in error, a colored man, bought a first-class ticket, entitling him to ride over the line of the C. & O. R. R. from Washington, D. C, to Lexington, Ky. At Ashland, Ky., 132 LAW STUDENTS REVIEW he changed cars; and went into a coach reserved by regula- tion of the defendant for white people. From this car he, protesting, was required to remove into a car reserved ex- clusively for colored persons. He went only after a police- officer had been called. He sued for damages, claiming that his first-class ticket entitled him to ride in the car he selected. Assuming that the car into which he was required to go was equally comfortable with the one he left, and that there was a statute of Kentucky requiring "separate coaches" for white and colored persons, can he recover? A. No. Where a statute, and a rule of the company in pursuance thereof is reasonable, in the light of established usages, customs and traditions of the people, and may be said to promote their comfort, and to preserve public peace and good order, it may be sustained. The regulation is one induced by the "general sentiment" of the community, and therefore can not be said to be unreasonable. Chiles v. Chesapeake &c. E. Co., 218 U. S. 71. Hall v. DeCuir, 95 U. S. 485. Q. 2i. Plaintiff, a drover, accompanied his cattle on a cattle train. He was in the caboose — but was told by the con- ductor to get on top of the train, as the caboose was to be detached. This he did. In switching the train, it was suddenly drawn forward to "take up the slack" — and then was suddenly backed. This produced a sudden concussion, which threw plaintiff from the car, and he was thereby injured. The court instructed the jury that "a person taking a cattle train is entitled to demand the highest possible degree of care and diligence, regardless of the kind of train he takes." Is this correct? A. It is correct. The rule is uniformly applied to passenger trains ; the same considerations apply to freight trains ; the same dangers are common to both. With proper vigilance on the part of the carrier, he should be as safe on the one as on the other. Indianapolis &c. E. Co. v. Horst, 93 U. S. 291. Q. 22. A sleet-storm had made a stairway of a station on defendant's raHroad very slippery. The storm began at mid- BAILMENTS AND CARRIERS 1 33 night, and continued until 4 a. m. The stairway was covered by a projecting roof; was equipped with handrails; was en- closed up to the handrails; and had on each tread a piece of rubber to prevent slipping. At about half after five a. m. plaintiff's intestate slipped, fell, and died as a result of the ac- cident. On the above facts the court instructed the jury that it was the legal duty of defendant to use the skill, diligence and care a very cautious human being would use if he were looking after his own life and health; and that if means might have been taken to prevent the steps from being slippery, defendant was chargeable. Is this the law ? A. Not the law. Where the roadbed or machinery or con- struction of cars is involved, so that defects would be likely to occasion great danger and loss of life, then the utmost care is required by law;, but in the matter of approaches, stairways', platforms and the like, the rule is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended. Kelly v. Manhattan &c. E. Co., 112 N. Y. 443. Q. 23. The Pennsylvania company brought an action against defendant Donovan and others, based upon a contract it had made with one Eighme to furnish cab and carriage serv- ice to passengers arriving at its station in Chicago. There were many thousands of such passengers daily. This was in 1894. In 1902 the Parmelee Transfer Company succeeded to the rights of Eighme. The company allowed Parmelee to use a defined strip of its land to solicit passengers. The defendant and others, being hack drivers, and members of a local union, gathered in numbers from eight to twenty at the company's entrance to its station, and, against its protest, loudly and boisterously solicited patronage from passengers leaving the station. They also entered the station to solicit patronage. Defendants asserted their legal right to have their vehicles in the public street in front of the station, and to go into the station as well as to stand on the sidewalk to solicit business. 134 LAW STUDENTS REVIEW Assuming that defendants conducted their soliciting quietly, did they have the right to demand entrance to the station for this purpose? A. Where it is not unnecessary, unreasonable or arbitrary > a railroad may make arrangements with and may grant special privileges to a single concern to supply passengers arriving at its station with hack and cabs; and it is not bound to accord similar privileges to other persons, even though they be licensed hackmen. • Donovan v. Penn. Co., 199 U. S. 279. But see Kalamazoo &c. Co. v. Sootsma, 84 Mich. 194. Q. 24. A passenger familiar with the car was in a vestibule sleeping car. He undertook to go into the closet; and during momentary darkness, proceeded without stopping. By mistake he opened the vestibule door instead of the closet door; and without noticing that he had opened the wrong door, stepped off from a moving train and was injured. He charged that the washroom was not lighted properly ; and that the vestibule door was not locked or bolted; and he alleged that more em- ployes were needed to insure a proper observance of the rules of the defendant company in this respect. He recovered a verdict and judgment. Can the judgment stand on appeal ? A. The judgment should be reversed. The case should not have been allowed to go to the jury at all. The passenger was guilty of contributory negligence as a matter of law. He should either have noticed where he was going, or he should have waited for the light to be renewed. Piper v. New York &c. E. Co., 156 N. Y. 224. Q. 25. Plaintiff attempted to get on a moving street car. He fell and was dragged by the car some distance before the car stopped. There was a snow storm, and the car was on the down grade. There was evidence that in winter, when the track was slippery, cars would slide on the track at the place in question, even with the brakes set ; and there was also evidence that the driver set the brakes, and held the horses back, as soon as he heard the signal to stop. Whether the car then in fact slid was a disputed question. BAILMENTS AND CARRIERS I35 The court charged that it must be taken as established in the case, that the cars would in the winter on the down grade slide on the track with the brakes set, and be beyond the control of the driver. Comment on this instruction. A. The instruction is misleading. Even admitting that the evidence tended to show that the car slid down the grade at the time of the accident, it was not conclusive upon the question whether it did in fact slide. The court should not assume that it slid; nor that it was unavoidable that the car would slide; but should have left to the jury the question of fact whether it did, nothwithstanding the precautions taken, slide down the grade. Woodward v. "West Side Street Ey. Co., 71 Wis. 625. Q. 26. Action was brought against the defendants as the owners of the steamboat Constellation, plying between New York and Albany, for the loss of a trunk belonging to a passen- ger on board the boat. In the "trunk the passenger was carrying $1 1,250 in cash. The trunk was lost on the voyage. It appeared that the passenger told the captain of the boat that he had "a trunk of importance" which he wanted him to put into the of- fice. The captain answered "as soon as we'get underway." The passenger replied that he wanted it immediately, as he wished to go ashore. The passenger was then told, "Come around to the door ; you may put it there" and was pointed to a place behind the door where he deposited the trunk. Then he went ashore to make a purchase, and was absent eight or ten minutes. When he came back the trunk could not be found. Assuming that status of the defendants was that of a com- mon carrier, are they liable here ? A. No. While a common carrier is liable for ordinary pack- age — a large sum of money is not considered as included under the term "package," so as to make the carrier liable therefor. It seems, however, that the carrier would be liable for a sum of money in a trunk not exceeding an amount ordinarily carried by travelers for travelling expenses. Orange &c. v. Erown, 9 Wend. 85. I36 LAW STUDENTS' REVIEW Q. 27. The plaintiff, a passenger on a sleeping car from Boston to San Francisco, left Boston at six p. m. on the car. His ticket entitled him to a section between Boston and Chi- cago — two nights and a day; and he occupied the whole sec- tion. He folded up his waistcoat, put it under his pillow, and slept with head on the pillow. In the inside pocket of the waistcoat he had $200 in bills; and the pocket was securely sewed up across the top. At five in the morning he awoke, got up and dressed and put on his waistcoat. He saw no officer of the sleeping car company, except a porter who was lying down, and who the plaintiff thought was asleep. At half past five a fellow passenger came into the smoking room where plaintiff was, and said he had been robbed. Plaintiff then dis- covered that a slit had been cut in his waistcoat, and his $200 had been taken. He then told the porter about it. The porter denied that he was asleep. It was admitted that the doors at both ends of the car were kept unlocked and there was no interruption to passage through from one end of the train to the other. On the above facts discuss the status of the sleeping car company, as to its being innkeeper or a common carrier. A. The company is neither an innkeeper nor a common car- rier. These are insurers. It is however bound to exercise ordi- nary care to prevent thefts of goods and money from passengers — whether from unauthorized intruders or by occupants of the car; and on the above facts, a verdict and judgment against the company and in favor of the plaintiff, would not be disturbed. Lewis v. N. Y. Sleeping &c. Car Co., 143 Mass. 267. See also Woodruff &c. Car Co., v. Diehl, 84 Ind. 474. Q. 28. The city of Philadelphia operated elevators to serve the public in carrying passengers having business at the courts in its City Hall. The plaintiff's father was using the elevator — he having in charge a helpless old lady, whom he was moving on a rolling chair from one of the courtrooms to an elevator so operating. After he and his charge were on the elevator, he descended to the second floor; the elevator door was open and the man operating the elevator invited him to push the BAILMENTS AND CARRIERS 1 37 chair upon the second floor through the open door of the elevator. While he was doing this the elevator suddenly start- ed down and he was caught by the top of the elevator and crushed to death. Assuming that, had the elevator been operated by private individual, there was such negligence as to charge such in- dividual with liability for the death, is the city of Philadelphia so chargeable? A. The municipality is liable. It was the duty of the city to see that the elevator and the machinery connected with its operation wei e not defective. In this instance the city is a com- mon carrier; and, inasmuch as persons who are lifted by ele- vators are subjected to great risks to life and limb, those con- ducting the elevator must be held to carry such persons safely so far as human care and foresight will go. The law holds them to the utmost care and diligence of very cautious persons. Fox v. Philadelphia, 208 Pa. 127. Elliott Bailments, § 266. Q. 29. Is a person who maintains a passenger elevator or- dinarily a "common carrier of passengers" ? A. No. Carriers not exercising a common calling as such are not common carriers, whatever their liabilities may be. One who maintains an office building simply as such may arbitrarily shut the elevator door in the face of a passenger, and refuse to carry him, without thereby incurring any liability. Seaver v. Bradley, 179 Mass. 329. Q. 30. Plaintiff, a manufacturer, brought suit to recover of the defendant express company the value of a carload of au- tomobiles and appurtenances which it had delivered to defend- ant to be carried from Buffalo to San Francisco. The de- fendant admitted its liability. The trial judge directed a ver- dict in favor of the plaintiff for $50. Plaintiff sued out a writ of error on the ground that the verdict should have been for $15,000, the value of the shipment. The bill of lading provided: "nor shall said company (de- fendant) be liable for any loss of or damage to said property in any event * * * unless said loss or damage shall be proved to have been caused by or to have resulted from de- I38 LAW STUDENTS REVIEW fault or gross negligence of said company or its service; nor in any event shall said company be held liable beyond the sum of $50, at not exceeding which sum the said property is hereby valued." The goods were described in writing with the statement "Value asked and not declared." The plaintiff was familiar with the rules of the express company. What do you say as to the limitation of a $50 value ? A. There is no objection to a carrier's using bills of lading which, fix a value for damages unless a greater value is stated by the shipper. If it could not do this, negotiations would be necessary as to the value of each article tendered for shipment. Provided the shipper assents, a limitation of value must be held to be binding upon him. George N. Pierce Co. v. Wells &c. Co., 189 Fed. 561. (But see dissenting opinion of Noyes, J.) Q. 31. One Wilson, plaintiff, owned two harnesses. To get them cleaned and oiled, he carried them to one Page, a harness maker. At plaintiff's instance Page cleaned and oiled the two harnesses ; and for this work was entitled to receive from the plaintiff the sum of $2. While the harnesses were in Page's possession, and after he had done the work, they were at- tached by the defendant, a sheriff, upon a writ against one Morrison, the claim being that they were Morrison's property. Page refused to give them up until he was paid ; and by stipu- lation it was agreed in effect that if Page had a lien for his work, his claim should be paid. Did Page have such a lien ? A. At common law the lien of a bailee was restricted to cases where, from the nature of their occupation, the bailees owed a duty to serve the public, as innkeepers, farriers, com- mon carriers and the like; that is to say, the lien would exist in favor only of the persons engaged in occupations where as of right the public could require service. But in "modern times" (1860), the right has been so far extended that as a general rule every bailee for hire, who by his labor and skill has im- parted an additional value to the goods of another, has a lien upon the property for his reasonable charges in relation to it, and a right to detain it in his possession until those charges BAILMENTS AND CARRIERS 1 39 are paid. This includes repairing, cleansing or otherwise im- proving the condition of the property. Wilson v. Martin, 40 N. H. 88. Q. 32. Plaintiff stored with the defendant, a warehouse man, ninety-nine tons of hemp. Parcels of the hemp were from time to time delivered upon the order of the plaintiff. Thereafter defendant informed plaintiff that ten tons of the hemp had been stolen; and subsequently plaintiffs demanded the hemp then remaining in store, being six and one-half tons, and tendered to defendant $150, which sum exceeded the amount to which defendant was entitled as storage for the quantity then on hand. But the defendant refused to receive the money, claiming that their storage bills for the whole quantity, amounting to $360, remained unpaid; and that by the customs and usage of merchants in New York they had a. lien upon the six and one-half tons for the general balance due them. Did they have such a lien? Or must they give up the six and one-half tons for the storage on that portion of the whole bailment ? A. The defendants had a lien on the whole bailment and every part thereof for the storage of the whole; it was but one parcel; the whole having been deposited with them at the same time, there was but one transaction. Accordingly although there had been delivery in parcels, the defendant may maintain a lien on what he has left of the original bailment, for his com- pensation for the whole bailment. Schmidt v. Blood, 9 Wend. 268. Q. 33. Defendant Miller kept a public inn in Minneapolis called the Hotel Grace. One Carl VanRaden, his wife and two children, were received by defendant as boarders, at $15 a week, remaining from December 1, 1890, to June 8, 1891. Among the effects which they brought to the inn was a Singer sewing machine. When they went away, VanRaden owed $240, balance for their keep ; and Miller, the innkeeper, retained the sewing machine, claiming a lien for that sum. The Singer Manufacturing Company then demanded the ma- chine, claiming that it owned the machine and had leased it to I4O LAW STUDENTS REVIEW VanRaden with an option to buy. Defendant had in good faith supposed that VanRaden owned the machine, and ac- cordingly refused to give it up. Upon a hearing, the lower court concluded that on the ground defendant was a boarder and not a guest, Miller had no claim on the machine for his compensation for the keep of VanRaden and family. Is this ruling of the court correct ? A. Provided the innkeeper has no notice that the goods of a. guest belong to a third person, he may have a lien thereon. The question, however, here is whether VanRaden came (bringing the machine) to defendant's hotel as a boarder or as a traveller or guest; and on the foregoing facts, the relation of guest and innkeeper — as distinguished from boarder and boarding-house- keeper — does not affirmatively appear. Accordingly the judg- ment of the lower court must stand. Singer &c. v. Miller, 52 Minn. 516. O. 34. An innkeeper, against whom judgment was recov- ered for refusing entertainment, sought to reverse the case on the ground that the following evidence had been excluded : That eighty or a hundred militia-men in uniform arrived at' Newport, a small place, "more or less" of whom were drunk, and came to his house, threatening to turn it and him into the street. He then announced that no man in uniform should have dinner at his house. It appeared also that the plaintiff wore the same uniform, and came to the house shortly after the disorderly soldiers; but that he was sober and respectable. The innkeeper main- tained that he could not discriminate between them, and that he had reasonable ground to believe that plaintiff would be disorderly ; and that he had not enough food. What is the law here ? A. That if defendant did have reasonable ground so to be- lieve, he might lawfully exclude plaintiff; but that the fore- going facts did not warrant such a belief; and the evidence was properly excluded. As to insufficiency of food, it is not enough merely to show insufficiency; but the defendant must also show some good reason for such insufficiency. Atwater v. Sawyer, 76 Maine 539. BAILMENTS AND CARRIERS I4I Q. 35. Plaintiff had with him $4,500 in gold dust. He went to defendant's hotel, the "What Cheer" house in San Francisco, and pursuant to notice that defendant would not he liable for such articles left in guests' rooms, turned the gold dust over to be put in defendant's safe. It was put in the safe. The safe was robbed, with violence, by persons not in the defendant's employ. Plaintiff sued. Defendant contended that he was not liable as innkeeper for an amount beyond what is reasonably necessary for travel- ling expenses; and also that he was not liable for the acts of persons not in his employ, who by force robbed his safe. Plaintiff had judgment for $4,500. Should it stand? A. Judgment should stand. Defendant was an insurer, ex- cept against the act of God, or the public enemy, or the neglect or fraud of the owner of the property. No limit was indicated as to the amount or value which might be deposited ; and as the de- fendant received it as innkeeper, he is on the facts liable. Pinkerton v. Woodward, 33 Cal. 557. Q. 36. Suppose a porter, sent from an hotel, meets trains, and at a distance from the hotel premises, takes charge of the baggage of guests. And assume that in thus taking charge he is the agent of the innkeeper: does an innkeeper's liability then attach ? or is the liability merely that of an ordinary bailee for hire, until the baggage reaches the hotel? A. The innkeeper's liability attaches when the goods are placed in the custody of the porter, provided the traveller actual- ly becomes a guest of the hotel. When he delivers the baggage, he evinces an intention of becoming a guest of the hotel ; and if he carries out this intention, and becomes a guest, the porter's custody is the innkeeper's. Sasseen v. Clark, 37 Ga. 242. Q. 2>7- Appellant, a railroad company, undertook to trans port a casket containing the body of the dead wife of respond- ent from West Plains, Mo., to Jamestown, Ind. The evi- dence showed that, in wanton disregard of the feelings of re- spondent, divers servants of appellant, in an inhuman manner, piled heavy trunks upon said casket containing said body, and dislodged the same so that they fell upon the casket, rebound- 142 LAW STUDENTS REVIEW ing to the floor ; using the casket as a bounding board in plain- tiff's presence, notwithstanding his entreaties that they de- sist ; and that thereby the casket was bursted, the lid unloosed, and the plaintiff thereby suffered great grief, anguish and hu- miliation, and the body reached Jamestown in an unsightly con- dition. Upon this showing the jury gave punitive damages. Can punitive damages stand? A. While a dead body is not property in a commercial sense; yet a husband has a quasi-property right in the dead body of his wife, which entitles him to the possession and control of the same for the purpose of proper and decent burial. Accordingly an injury to this right is recognized and protected by the com- mon law. And while if the negligence had been unintentional, exemplary damages (especially in case of a common carrier) might not be recoverable; yet where willful and wanton wrong committed with malice, or intention to cause mental distress is inferable from the circumstances, then exemplary or punitive damages are recoverable. Wilson v. St. Louis &c, 160 Mo. App. 649. Q. 38. A, a salesman, while stopping at an hotel, found a diamond ring on the floor of the hotel lobby. He delivered it to the proprietor of the hotel, with instructions to give it to the owner if called for. The proprietor put the ring in an en- ' velope, and afterwards lost it in the street, where it was found by C, who refused to give it up. The true owner never appeared. Each one, that is, A, the proprietor, and C claims the ring. Who is entitled to it? A. A has title as against all except the true owner. As the first finder, his title is superior to that of C ; and his title is not affected by the fact the ring was found on the premises of the proprietor of the hotel. 19 Cyc. 535, 537. 0. 39. A customer entered a store of a merchant and laid his purse on the counter while examining some goods. He then forgot it and left the store. A stranger came in, and first discovered the purse; whereupon he and the merchant both claimed it, subject to the rights of the true owner. Who has the superior claim? BAILMENTS AXD CARRIERS I43 A. The merchant. A thing voluntarily laid down and for- gotten is not lost within the meaning of the rule giving the finder qualified title to lost property; and the owner of the place where the thing has been left is the proper custodian, rather Chan the one who discovered it. 19 Cyc. 539. Elliott Bailments, § 33. Q. 40. What right or interest, if any, has a laborer to a gold ring found by him in a heap of rubbish lying on the surface of land of another, while the laborer is working there- on for the owner of the land ? A. The laborer has title as against every one but the true owner. His right is not affected by the ownership of the land on which the chattels may be found, where found on the surface of the land; but if buried in or attached to the soil, the owner of the land would have the paramount title, subject to claim by the real owner. 19 Cyc. 535. CHAPTER VI SALES Question I. "We J. L. & Son hereby sell, assign and set over unto Alfred Law & Co. all the halibut that may be caught by the master and crew of the schooner Florence Reed on the voyage upon which she is about to proceed (to the Grand Banks) * * * at the rate of five cents and a quarter per pound for flitched halibut to be delivered on arrival of the schooner at home port." One thousand five hundred dollars were paid on account, on April 17, 1869, before the schooner sailed. The catch amounted to 40,000 pounds of halibut; but on her return J. L. & Son had gone into bankruptcy, and the assignee in bank- ruptcy refused to deliver the fish, claiming there was no sale thereof. Is the claim sustainable ? A. The assignee's position is correct. There was not, when the contract was made, even a potential interest in the thing to be sold. A mere possibility or expectancy of acquiring property, not coupled with any interest, does liot constitute a potential — or other — interest, which may be sold so that title to the thing passes. Low v. Pew, 108 Mass. 347. Q. 2. Six hundred nineteen barrels of sugar, while on board the vessel upon which it was shipped, were attached as the property of defendant, who was a merchant at New Or- leans. He had sold fourteen different lots of sugar to fourteen purchasers, at St. Louis. On November 30, 1890, he consigned and shipped to them, and the carrier issued bills of lading, naming purchasers as consignees, and defendant as shipper. Defendant then drew a draft on each consignee for the value 10— L. S. Rev. 145 I46 LAW STUDENTS' REVIEW of the sugar, payable to his own order, and by him indorsed, bill of lading attached. Bills of lading were not indorsed. To each bill of lading was pinned a slip : "allow parties to have B-L (bill of lading) and examine goods." December 1, these drafts were discounted at a bank in New Orleans which for- warded them to St. Louis where they were dishonored. In a controversy between attaching creditor of consignor and the bank as purchaser intervening, (consignees not made par- ties), which party should prevail? A. Attaching creditor, because intervener must show title in himself. Where goods are sold and consigned and shipped, the title thereto vests in the purchaser, upon delivery to the car- rier. Where goods are consigned but the right of disposition is retained in the consignor by the bill of lading, the transfer of the bill of lading vests the property to the goods in the transferee. In the above instance, the goods were consigned unconditionally to consignee at St. Louis; and the title thereto passed. The only effect of the transfer of the bill of lading, no jus disponendi be- ing thereby retained in the consignor, was to pass whatever title if any consignor had. But as the consignor had no title, none passed, and the attaching creditor should prevail. Scharff v. Meyer, 133 Mo. 428. Benj. Prin. Sales (2d ed.), § 28(C). Q. 3. In what cases will the recovery of a judgment of itself operate to effect an immediate transfer of title in per- sonalty ? A. If the owner of a chattel bring trespass or trover against one unlawfully in possession, or waiving the tort, brings an ac- tion to recover the value of it, and recovers judgment, such judgment, while it vests title to damages in the plaintiff, oper- ates as a transfer to the defendant of the plaintiff's title to the thing. Actions for penalties or reward by an informer, prosecuted to judgment, results in acquisition of title by the plaintiff. Costs of suit may also be looked upon as an acquisition made by judgment of law. 2 Blackst. Com., 436, 437. Q. 4. A agreed to sell B 800 bushels of corn more or less at twenty cents a bushel, to be delivered by August first. Not re- SALES 147 ceiving any corn, on August 9, B sued out a writ of replevin, under which the sheriff levied on 283 bushels of corn which were taken from the farm of A. The title to the property was put in issue by the pleadings. Which party should recover ? A. A should recover. He did not agree to sell to' B any specific corn and the title to the corn did not pass until de- livery. B should have sued for damages for A's failure to keep his contract to sell. Low v. Freeman, 12 111. 467. Q. 5. A stranger goes into a store to buy a jar of pre- served fruit. He tells the grocer what he wants, and the grocer takes down a jar from the shelf and places it on the counter. While the buyer is taking out his money to pay for it the jar is accidentally broken, neither party being at fault. Whose loss is it ? A. The grocer's. The ordinary rule that if the contract is a cash transaction payment of the price is a condition precedent to the transfer of possession and title. The promise to deliver, involved in an agreement of sale and the promise to pay the purchase-money are mutually dependent. Neither party is bound to perform without contemporaneous performance hy the other. Payment of the price is the condition on which alone the purchaser can require the seller to complete the sale by delivery of the property. Haskins v. Warren, 115 Mass. 514. Q. 6. B bought out the stock and business of C. In ig- norance of the fact, and on the day of the sale J sent an order for goods to C. Without the knowledge of J, B filled the order and J consumed the goods. B sued for payment and J pleaded that he had a set-off against C and had not purchased from B, For which party should judgment be given ? A. For J. He having contracted with C, B could not force a contract on him. 1 Benj. Sales (6th Am., 3rd Eng. ed.), § 56, n. 22. Q. 7. A and B owned separate quantities of wheat form- ing the cargo of a ship belonging to A. B's grain was superior 148 LAW STUDENTS' REVIEW in quality. The wheat was intermixed by A on the ship, con- trary to the express instructions of B. On arriving at port an attachment was levied on the cargo by a creditor of A. Should the action be maintained? A. A, having wrongfully produced the confusion of goods, forfeits his right to the whole, and his creditors can have no right to attach it to satisfy claims against it. 2 Blackst. Comm. 405. 8 Cyc. 571, et seq. Q. 8. A went into a store to buy a piano. The dealer showed one, stating the price to be $500, and offered to de- liver it to A at the latter's home, with the understanding that the piano was to be paid for or returned ninety days later at A's option. A accepted the offer. Three days after delivery of the piano it was seized under levy of execution to satisfy a judgment against the dealer. A brought replevin. Should A recover? A. Yes. The delivery of an article at a fixed price, to be paid for or returned at the option of the party receiving it is a sale, and therefore the title was in A. Crocker v. Gullifer, 44 Maine 491. Q. 9. A purchased and took from B 500 tons of coal, say- ing nothing as to the price. B then, without the knowledge of A, owned ail the coal within one hundred miles of the place of contract. The price of coal in that vicinity had been or- dinarily $4 per ton, but B insisted upon $10 per ton for all the coal he had sold to A. A refused to pay such price and B sued him for the $5,000. How much can B collect from A? A. So much as a jury would find to be a reasonable price under all the circumstances. The sale, without mentioning price, was for a reasonable price ; and the jury might decided that $4, or any other price warranted by the evidence was reasonable. 1 Benj. Sales (6th Am., 3rd Eng. ed.), §§ 85, 86. Q. 10. A horse is knocked down to a bidder at an auction where the sale is without conditions. Just at this point, be- SALES 149 fore anything further is done, what are the respective rights of the bidder and seller ? A. Title passes to the bidder, subject to a lien in the horse in favor of the seller for the amount of the bid. 4 Cyc. 1048. Jenness v. Wendell, 51 N. H. 63. Q. 11. Defendant signs a promissory note for $200, pay- able in six months "or forfeit one-half of the machine" which plaintiff had owned, but which half defendant had bought of plaintiff. Defendant failed to pay the note; but gave plaintiff a bill of sale for half the machine. Plaintiff said he would see defendant in a day or two ; and did see him, and presented the note, and asked for the machine. Defendant refused to let plaintiff see the machine, or to let him know where it was. Assuming that plaintiff made no tender of the note, or of the bill of sale, do the foregoing facts amount to a delivery of one- half of the machine ? A. They do not. It should be made to appear, if such is the fact, that the bill of sale would restore the plaintiff to the same title he had previously enjoyed. Non constat but that defendant had disabled himself from restoring the title; and plaintiff had the right to assure himself on this point. Tuckerman v. Floyd, 106 Mass. 72. Q. 12. One Moore was indebted to plaintiff in the sum of $150. This he agreed to pay "out of a kiln of brick," contain- ing 110,000. Each arch contained between 9,000 and 10,000. Estimating by arches, and examining as to quality, plaintiff took from Moore a writing, which specified that he had bought from Moore 25,000 brick off the west end of Moore's kiln at $6, $150, and credited Moore therefor, on his books with $150. Moore said at the kiln, "I deliver to you 25,000 off this west end," and said that plaintiff would have six months to take them away. The brick were not (otherwise) counted — or separated or set apart from the balance of the kiln. Did this constitute a delivery of the 25,000 brick? A. It did not. The brick were left in the kiln, position un- changed. The dividing line, reckoning from the west, would fall 150 LAW STUDENTS REVIEW somewhere in the third arch; but precisely where was not indi- cated. Even the row to which the 25,000 would extend was not indicated. There was no separation or identification sufficient to constitute a delivery. Courtright v. Leonard, 11 Iowa 32. Benj. Prin. Sales (2d ed.), § 23(3). Q. 13. Suppose instead of brick, the commodity had been wheat, whereof in two piles there was an aggregate of 6,249 bushels, and plaintiff had bought 6,000 bushels at 70 cents a bushel. That the owner had the wheat in a warehouse; and he gave a warehouse receipt for the same subject to plaintiff's order, plaintiff paying $2,000 on account. Was there a delivery; assuming that the wheat was undis- turbed ? A. Yes. When the general mass from which the quantity in issue is to be taken is identified, the subject of the contract is sufficiently ascertained, the title passes, provided the sale, as to other circumstances is complete. Actual delivery here, is not in- dispensable. Kimberly v. Patchin, 19 N. Y. 330. But see dissenting epinion. Q. 14. By written contract A furnished B with Stowell's evergreen to seed twenty acres and with field corn to seed forty-five acres ; B agreeing to plant the same and to deliver at the warehouse of A at a certain price the entire portion of the crop which should come up to a certain standard of quality as set forth in the contract. The contract also recited that the title of the crop is in A, and that he may enter and take the same if not delivered. B did not deliver ; and A undertook to replevy the corn after it matured. Can he maintain the action? A. A can not maintain his action. Although the contract recited that the title passed — yet it did not pass, the corn crop not being in existence, or even planted. Until some new act intervenes, the title does not pass from B (assuming that he owned or leased the acres) to A. Robinson v. Stricklin, 73 Nebr. 242. O. 15. Shoes were manufactured under contract by the SALES 151 seller in fact according to sample. They were forwarded by carrier to the buyer, the buyer selecting the carrier. Buyer claimed they were not according to sample, and sent them back by the same carrier; but seller refused to receive them. Whose shoes are they? A. While, when the contract was made by sample, there were no shoes in existence to which title could exist or pass ; yet giv- ing them to the carrier after they were made according to sample constitutes a delivery to buyer. Although not a "true delivery," it is an act having the legal effect of a true delivery. Smith v. Edwards, 156 Mass. 221. O. 16. A merchant in Bremen contracted with the de- fendant, a lumber company, for three cargoes of lumber at $12.25 f- °- b. a thousand, the merchant to furnish vessels to carry the lumber. The lumber was to be furnished within seven months from May 1. In June defendant drew on the merchant for $2,371 on account of the purchase ; and the draft was paid. From four hundred to five hundred thousand feet of lumber were prepared by the lumber company in August ; were stacked in the company's yard, ready for shipment ; and the buyer was ^urged to send a vessel. He had trouble in procuring one ; and in October the lumber company's mill and lumber were de- stroyed by fire, including the stack prepared for the buyer. The stack had not been inspected or measured except as it went through the mill. Whose lumber was it? A. The lumber company's. The transaction still remained executory, and title had not passed. Title would not have passed until delivery f. o. b. such vessels as the merchant might send for it. Schreyer v. Kimball &c, 54 Fed. 653. O. 17. Suppose the lumber had been oil ; that the vessel had been furnished ; and that part of the oil had been placed "free on board." Would the title to such oil so placed, have passed? A. The contract being for a cargo, or cargoes, the merchant could not be compelled to take part of a cargo, when he had contracted for a full one ; any more than if he had contracted for 152 LAW STUDENTS REVIEW a full barrel of oil, he could be compelled to take half a barrel. The title to the oil, therefore, in such case, remains in vendor. Rochester &c. v. Hughey, 56 Pa. St. 322. Q. 18. Assume that a manufacturer (vendor) agreed with vendee to make one million barrel staves at $30 a thousand, subject to count and inspection by vendee who agrees ( 1 ) to re- ceive and pay for same as fast as inspected. (2) To pile the same in an agreed place, delivery to be made as fast as the staves are sawed. (3) Vendee to furnish a man to count and inspect. (4) That upon counting and inspecting, delivery shall be deemed complete, and staves shall then become property of vendee. Suppose the staves are then piled, inspected, counted and paid for But not (otherwise) taken possession of by vendee. Are they vendee's property ? A. They are vendee's property. While the contract is an executory contract, yet when the goods to be transferred are clearly specified and terms of sale, including price, are explicit, the property, as between the parties, passes to the buyer even without actual payment or delivery. Hatch v. Oil Co., 100 U. S. 124. But when there is no specification of price, there may be no sale. Bigley v. Risher, 63 Pa. St. 152. Q. 19. Assumpsit for bark. The owner of the stack con- tracted to sell it for a certain price per ton, purchaser agreeing to take and pay for it at a specified day. Part of it was weighed and delivered to him. Did the title to the residue of the stack thereupon vest in the purchaser ? A. No. In order to ascertain the amount to be paid, the remainder would have to be weighed; and until that has been done, the seller might insist on keeping the bark. Until this is done, the residue belongs to the seller. Simmons v. Swift, 5 Barn. & C. 857. Towne v. Davis, 66 N. H. 396. Restad v. Engemoen, 65 Minn. 148. SALES 153 Q. 20. Defendant agreed to buy five thousand barrels of crude petroleum in bulk from plaintiff. Plaintiff tendered a larger quantity, in cars, but readily separable. The plaintiff was not by his contract bound to pump the oil from the cars. Defendant refused the tender but gave no reason. Is this a sufficient tender, or is plaintiff bound to tender the exact amount? A. While tender of a larger quantity than that agreed upon is not good — yet in above case plaintiff was not bound by law to set apart the precise quantity called for before offering to de- liver it. The sufficiency of the tender should be left to a jury. Lockhart v. Bonsall, 77 Pa. St. 53. Q. 21. Plaintiff was employed as superintendent of a stock farm. For a year or two she received no compensation except her board. Thereupon the proprietor of the farm, on account of his indebtedness to her, sold her a brood mare called "Nell," which had never been upon the stock farm ; and he agreed with her that she should have the right to keep the mare on the farm and rear whatever stock she chose to rear from the mare ; and that the mare and her progeny should be her, plaintiff's, compensation for her services as superintendent. Afterward another brood mare named "Flying Belle" was sold to plain- tiff under a like arrangement. The mares were sent to and kept on the farm and were used by the proprietor and his family. There were five colts from the mare Flying Belle, one of which died, and one of which plaintiff sold. The proprietor became insolvent; and the colts were attached by one of his creditors, who turned them over to the trustee in insolvency. Plaintiff replevied the three colts. Can she sustain her claim to them ? A. The colts are clearly plaintiff's property, unless there was such a retention of possession by the proprietor of the farm after the sale to plaintiff as to render the transaction constructively fraudulent as against creditors. It is, however, clear that the title to the mares, did in the absence of fraud vest in the plaintiff; and while a man can not 154 LAW STUDENTS REVIEW grant or charge that which he has not; yet a future possibility arising out of, or dependent upon, some present right of prop- erty may be the subject of a valid present sale. Accordingly the colts, being or having been such a future pos- sibility, belong to the plaintiff. ,, Hull v. Hull, 48 Conn. 250. Q. 22. One Couturier, plaintiff, was a merchant at Smyrna. Defendant was a cornfactor in London. Plaintiff shipped a cargo of Indian corn on board a vessel chartered by him ; and the master of the vessel* signed a bill of lading making the corn deliverable to the plaintiff. The bill of lading was en- dorsed to the London agent of the plaintiff ; and he employed the defendant cornfactor to sell the cargo, sending him the bill of lading, the charter-party and the policy of insurance, and receiving thereon in advance £6oo. Before the arrival of the vessel the defendant sold the corn in London to a third party who signed a memorandum reciting bill of lading, and specifying "when shipped per (name of vessel) * * * free on board and including freight and insurance to a safe port in the United Kingdom, the vessel calling at Cork or Falmouth, for orders * * *" On the voyage the corn became so heated that at Tunis it was necessarily unloaded and sold ; but neither party to the con- tract of sale in London knew this. Plaintiff sued on the con- tract; but defendant repudiated the sale and refused to pay the price. Can defendant be held? A. Defendant can not be held. This is an instance where the contract, entered into in good faith, contemplates that there is an existing something to be sold and bought and capable of transfer. In this instance, the corn having been sold at Tunis, there was nothing to buy or sell in London. It is like bargaining for a horse which, without the knowledge of either party, has died over night. Couturier v. Hastie, 5 H. L. Cas. 673. O. 23. T owned certain machinery in a mill. H purchased the machinery. It was not, however, removed ; but remained in SALES 155 the possession of T. Thereupon T executed a deed declaring the machinery was the property of H — but that T wished to repurchase it for £ 5,000, but had not the money to pay for it ; wherefore it was conveyed to B, to convey to T when T should pay the £ 5,000 ; in default thereof to hold it for H. The deed also contained another covenant that after acquired machinery placed in the mill, in addition to or substitution for the original machinery, should be subject to the same trusts; and certain other machinery was so Jtdded to or substituted for the original machinery. This was in 1858. In i860 T became embarrassed financial- ly ; and one of his creditors attached the machinery in question, T not having paid the £5,000 — although H demanded it. Should the title of H prevail against the right of the attach- ing creditor — (a) as to the original machinery? (b) as to the added or substituted machinery? A. (a) Clearly as to the original machinery H should pre- vail. As to that the judgment creditor has no title or right which will prevail. (b) As to the added machinery, the same not having been in the mill at the time of the agreement with H, it is, of course, true that a deed which professes to convey property not in exist- ence at the time, is void at law, simply because there is nothing to convey; nor can it in equity operate as an immediate aliena- tion; but if a vendor or mortgagor agrees to sell or mortgage some property whereof he is not, at the time, possessed, and he receives the consideration for the contract, and afterward be- comes possessed of property answering the description in the contract, then a court of equity will compel him to perform the contract and transfer the interest in the property acquired. Accordingly, in the absence of fraud, H should prevail. Holroyd v. Marshall, 10 H. L. Cas. 191. Q. 24. A large quantity of opium was stolen from the de- fendant. The plaintiff was a drug merchant with a shop at Pudding Lane ; and in Love Lane he did an oil and color busi- ness. One Richardson came to plaintiff at Pudding Lane and offered to sell some opium, which the plaintiff agreed to buy, having seen a sample of it. Some days later, the seller brought I56 LAW STUDENTS' REVIEW the opium to Pudding Lane — but as that place of business was closed, he took it to plaintiff's store in Love Lane and made delivery. Did this constitute a sale in market-overt? A. It did not. To constitute a sale in market-overt, the thing must be in the market-overt during the whole of the time that the incidents which constitute the purchase and sale are going on. Here, when delivered in Love Lane, they were not delivered in market-overt. Crane v. London &c, 5 Best & S. 313. Benj. Prin. Sales (2d ed.), § 26. Q. 25. An administrator in Alabama, without order of court, but in market-overt, sold slaves belonging to the estate of his intestate, to a bona fide purchaser for value, $1,900. Assume that the possession of the administrator was lawful, he being administrator to collect — but that neither by statute nor by order of court had he any right to sell. Does the fact that he sold to bona fide purchaser for value in open market operate to vest the title in such purchaser ? A. Not in this country. While it has been contended that a bona fide purchase for a valuable consideration is equivalent to a purchase in market-overt — yet (1) market-overt is restricted to the custom of the city of London; and (2) the "Saxon in- stitution of market-overt" which is said to control and interfere with the application of the common law, has not been recognized, or received any judicial sanction in any of the United States. Accordingly the purchaser in the above case acquired no title to the slaves. Ventress v. Smith, 10 Pet. 161. Q. 26. A silk merchant had dealings with one Fitzgibbon in 1855. Until July in that year one Dix was in Fitzgibbon's employ, and was known to the silk merchant as Fitzgibbon's agent. July 26, after Dix had been discharged, he proposed to purchase of the silk merchant, plaintiff, in Fitzgibbon's name, certain silks. These were delivered to Dix — were sold by an auctioneer and the proceeds paid to Dix. In September he got more goods in a similar way, and sent them to the defend- ant Burton to sell. Burton advanced £60 upon these silks; SALES 157 and did not learn until afterward that the goods had been fraudulently obtained from the plaintiff. Plaintiff demanded the goods ; Burton refused to give them up ; but sold them for £80 and claimed the right to retain his £60. The nisi prius judge ruled that there was no contract with Dix, that he obtained the goods by fraud, and that plaintiff was entitled to recover. Is this ruling correct? A. Correct. Here there was no sale at all — there was only a mere obtaining of goods on false pretenses, Dix having no authority from Fitzgibbon, no property passed to him, Dix. Ac- cordingly Burton got no title or claim. Higgons v. Burton, 26 L. J. (N. S.) Exch. 342. Q. 2.J. The president of a business corporation relied upon its manager, in a single instance, to cancel certain certificates of stock endorsed in blank and surrendered for transfer. Ac- cordingly for that purpose such certificates were left in a safe to which the manager had access. In place of canceling the same, the manager sold them and appropriated the money. Does a purchaser for value without notice of any irregu- larity get good title to such stock ? A. He does not. Certificates of stock in a business corpora- tion, though endorsed in blank, do not possess the quality of complete negotiability which is accorded to commercial paper, or negotiable bonds ; and the title of the true owner of a lost or stolen certificate of stock may, if the same be lost without the fault of the true owner, or have been obtained by theft or rob- bery, be asserted against the bona fide purchaser. Knox v. Eden &c, 148 N. Y. 441. Q. 28. Where chattels have been sold and delivered on an agreement that the buyer is to give his note for the price, payable in one year with interest, and the buyer refuses to give his note, what remedy, or remedies if more than one, has the seller, and when may he avail himself of the same? A. He may rescind the sale for fraud in the purchaser and recover the goods in an action of replevin, or for their conversion 158 LAW STUDENTS' REVIEW in trover. He may also sue immediately for breach of the spe- cial agreement to give the note ; but he can not, until the expira- tion of the time of credit, maintain assumpsit on the common count, for goods sold and delivered. Kellogg v. Turpie, 93 111. 265. Benj. Prin. Sales (2d ed.), § 52 (A). Q. 29. On a question of fraud of vendee in purchasing goods, is evidence that vendee overdrew his bank account daily at the time of purchase, admissible? A. Yes. It tends to show that the vendee must have been aware of his insolvent condition. Haskins v. Warren, 115 Mass. 514. But evidence that other vendors had sued vendee to rescind sales is not competent. Haskins v. Warren, 115 Mass. 514. Q. 30. The master of a ship fraudulently stopped at an in- termediate port on his voyage, trans-shipped his cargo into an- other vessel, and procured a' bill of lading therefor, regular and fair on its face, in his own name. He then sold the bill of lading to a purchaser for a valuable consideration, and there was nothing to put such purchaser on his guard, or call for inquiry. Can such purchaser hold the cargo ? A. The purchaser is not protected. Bills of lading, like certifi- cates of capital stock, are not completely negotiable. The distinc- tion is made that where an owner has conferred a disposing right of property, though he was induced to do this by fraud, still the conferee of such right would be entitled to sell the property; but here the act was "probably such * H ' as would now be a felony"; and by such an act the master could not entitle him- self to pass title to the cargo. Saltus v. Everett, 20 Wend. 267. Shaw v. Railroad, 101 U. S. 557. O. 31. Some damaged flour was offered for sale at auction. It was divided into two classes — one class, slightly damaged, was offered in the barrels in which it was originally packed. The other flour, much damaged, was offered by the pound as repacked or "dough." The sale was in the auction-room ; the flour was outside in the street. SALES 1 59 The auctioneer, as he supposed, sold all of the slightly dam- aged flour — then he offered the dough, stating the difference. Plaintiff was the highest bidder, and selected by their num- bers two rows of barrels as the flour he would take. There were sixteen rows in all, numbered, and the "dough" was placed together in tiers bearing the higher numbers. The flour and dough were separated by an open space of about ten feet. Without the knowledge of the owner of the flour, his team- ster had put two more tiers of the less damaged flour next to the damaged flour; and these were the tiers which plaintiff selected. The lower court instructed that if the sale by the defendant (auctioneer) was of damaged flour and if the flour struck off to plaintiff came within that description, title passed to plain- tiff — unless plaintiff knew that the defendant had made a mis- take in designating the flour. Was this instruction correct ? A. Incorrect. While though there be a mutual mistake or misapprehension as to quality of articles sold, this will not enable vendor to repudiate the sale; yet if for instance two tiers of barrels of sugar had been designated by mistake of both parties in place of flour, the title to the sugar would clearly not pass; and between the two distinct classes of flour there was such a difference that the mistake was as to identity, and not merely as to quality. Accordingly no title to the "originally packed" barrels of flour passed. Harvey v. Harris, 112 Mass. 32. Singer v. Grand Eapids &c, 117 Ga. 86. Q. 32. June 28, 1893, the Morrison Run Lumber Company contracted with plaintiff to deliver one thousand cords of good merchantable bark on board cars at Rochester, five cars per week commencing not later than July 15, 1893; and plaintiff agreed to pay $7.50 a cord of two thousand two hundred pounds, in the following manner: three notes of $1,000 each, dated June 28, 1893, as advance payment ; $3 a cord to be de- ducted from full amount until above notes were paid, balance of $4.50 to be paid on the tenth of each month for all bark l6o LAW STUDENTS REVIEW shipped the previous month. The notes were given, one for sixty days and the other two for three months. Meanwhile the Morrison Run Company contracted with the United Lumber Company to deliver to plaintiff one thousand cords of bark "of this year's peeling on the jobs of Duncan McRae" according to the order of the Morrison Run Company, and assumed to pay the United Lumber Company bills that would be due to McRae who was to peel and load the bark. The plaintiff's notes were discounted by the Morrison Run Company on June 30; and that company paid McRae $1,825 for the peeling of the bark. At that time there were more than one hundred cords of bark peeled and corded on the "Duncan McRae jobs"; but none of the bark was ever delivered to plaintiff. (a) Was there any identification of the bark by reason of paying these charges thereon so that title would pass ? (b) Did the fact that the money produced by plaintiff's notes was used to pay for peeling the bark, create an equitable lien thereon ? A. No to both (a) and (b). No portion of the quantity of bark which was upwards of one hundred cords was in fact set aside ; therefore no title passed, and the application of plaintiff's money to the bark in possession of a third person, plaintiff's por- tion thereof not having been set apart, would operate to create no lien. Lighthouse v. Bank, 162 N. Y. 336. Q. 33. A manufacturer (M) of cars contracted with a rail- way company to loan the company for hire certain cars to be used upon its road. The company gave its three promissory notes, two at sixty days, the other at four months, the last fall- ing due at the expiration of the hiring of the cars. The con- tract was further secured by the company's bonds given to (M) as collateral, also authority to collect the notes at ma- turity, and hold the proceeds for the safe custody and return of the cars to (M) when demanded. The "hiring" of the cars was for four months; and during that period the company might purchase the cars for the amount of the notes. The cars meanwhile were to remain the property of (M). Should SALES 1 6 1 the notes be unpaid, and should (M) elect to take the cars into his possession, the sums collected on the notes might be re- tained by him for his own use, together with such sums to be realized by the sale of the cars, as would make up the amount of the notes. Balance if any to go to the company. On pay- ment of notes, (M) to give a bill of sale of the cars. Was this a bailment? or a conditional sale? A. Neither. The whole arrangement is totally inconsistent with a mere letting or bailment. Nor is it a conditional sale. The stipulations were intended td enable (M) to enforce pay- ment not of any rent or hire ; but of the selling price, for which notes were taken. This is shown by the fact that the notes all fell due within the four months, and (M) was expressly al- lowed to collect them at maturity. The whole transaction amounts to an out and out sale of the cars, treating the cars as security. Otherwise, if the cars did not belong to the com- pany, why stipulate that the surplus which might be obtained from selling them, should be paid over to the railway company? The foregoing appears to constitute an attempt to avoid the necessity, under Missouri law, of recording a transaction of this ■character, so as to protect against creditors of the company. Heryford v. Davis, 102 U. S. 235. Q. 34. Phelan bought of Russell a steam-engine, and a portable saw-mill. He gave his notes therefor, evidencing that the condition of the transaction was such that title should not pass from Russell if the note was unpaid after maturity; or if he felt insecure, he might repossess himself of the prop- erty, and sell the same. Meanwhile possession was in Phelan. He sold the property to defendant, not having paid for it, as defendant knew. This was in Idaho, where the statute requires chattel mortgages to be recorded. But above notes were not recorded. The lower court found that the above, was a conditional sale ; not an absolute sale with lien reserved ; and that title did not pass to Phelan or to defendant. Is this correct? A. Correct at common law, and, in the absence of statute, in most of the States. The stipulations of the contract (evi- denced by the notes) are not inconsistent with the intention of 11— L. S. Key. 162 LAW students' review the parties, namely a Conditional contract of sale. The parties may by their agreement indicate an intention to make any con- dition precedent to the transfer of the property, and the pur- chaser (even though without notice) then obtains no better title than the seller had. Harkness v. Russell, 118 U. S. 663. Q. 35. Defendant Denison, on July 8, 1889, ordered of plaintiff $5,000 worth of twine. July 1 1 the twine was shipped ; and was received at defendant's store July 18. Meanwhile de- fendant had given several chattel mortgages on all the goods at the store, one mortgage to the McCormick Harvesting Com- pany, containing a clause reading "and all additions for and substitutes for any or all of the above described property." When the goods arrived, an agent for the mortgagee was in possession of the defendant's store. The McCormick company claimed that by the terms of its mortgage it was entitled to the twine. How is this ? A. The delivery to the store is not necessarily a delivery to Denison. This and the question of Denison's insolvency should go to a jury. If Denison never got the goods, or became in- solvent after the goods were shipped; or, though he was in- solvent when they were shipped, yet if the plaintiff did not know this, the plaintiff's right would be paramount to that of the McCormick company. The right of stoppage in transitu is one highly favored in law. Kingman & Co. v. Denison, 84 Mich. 608. Johnson v.-Eveleth, 93 Maine 306. But see Rogers v. Thomas, 20 Conn. 53. Q. 36. Willets Manufacturing Company delivered to one Anthony a mill, under an agreement purporting to be a lease whereby Anthony was to pay the company for the mill in twenty monthly instalments of $25 each. In case of default the company might terminate the contract, and take possession of the mill; at the expiration of the "lease," Anthony having complied with its conditions, was to receive a bill of sale of the mill. Is the foregoing a leasing, or a conditional sale ? A. This is a conditional sale. t By the arrangement the vendee acquires not only the right of possession and use, but SALES 163 the right to become the absolute owner, upon complying with the terms of the contract. The bill of sale is unnecessary. Carpenter v. Scott, 13 R. I. 477. The foregoing is an instance of an attempt to call a contract to sell, a lease. The law will give the instrument the effect called for by its terms ; and not the effect which the parties, by mere designation or use of terms, seek to secure. Q. 37. Plaintiff had sold a gasoline engine to one Libbman. The sale was conditional, title being reserved in plaintiff. Plain- tiff told his lawyer that he didn't want the engine — he wanted the money for it; but instructed the lawyer to do nothing to lose his, plaintiff's, title to the engine. The lawyer sued Libb- man and got judgment for the price of the engine ; but could recover nothing, as Libbman was wholly insolvent. Plaintiff then sued his lawyer in tort for negligence: and recovered $500. On what theory ? A. Because the lawyer should, under the instructions given him to do nothing to lose plaintiff's title, have known better than to bring an action for the price. Such an action amounts to an election to affirm the sale as an absolute one and operates to vest the title in Libbman. So the plaintiff lost his machine, and got no money for it. Whitney v. Abbott, 191 Mass. 59. Q. 38. (a) What is the right of stoppage in transitu, and when may it be exercised ? (b) Distinguish between the right of stoppage in transitu and a seller's lien. A. (a) The right of an unpaid seller, who has parted with possession of chattels, to resume possession upon the buyer being or becoming insolvent, the goods being in transit and not having yet come into possession, actual or constructive, of the buyer. (b) Differs from a seller's lien, in that the right presupposes that the seller has parted with actual possession or dominion of the goods, and does not arise until the lien is gone. 35 Cyc. 493, 494. Benj. Prin. Sales (2d ed.), § 47. Q. 39. S sold to L one thousand four hundred bushels of wheat by sample. On arrival of the wheat, L at a reasonable 164 LAW STUDENTS' REVIEW and proper time, asked leave to examine it and compare it with sample. S refused and L declined to take the wheat. A few days after S notified L that he was then ready to show the wheat and make delivery on payment of the price. L re- fused to examine or receive the wheat. S sued for damages for the refusal to receive and pay for goods purchased. L pleaded that after an improper refusal to allow him to inspect he had announced that he would reject the sale. S demurred. How should the demurrer be decided? A. Demurrer overruled. L had a right, at a reasonable and proper time, to inspect his purchase. Having been refused this right, he had a right to reject the sale; and having so rejected it, was no longer bound by the sale. Benj. Sales (6th Am., 3d Eng. ed.), § 910. Q. 40. A city ordinance forbids the sale of intoxicating liquors within the city. A resident of the city orders intoxicat- ing liquors by mail from a dealer in another city, who ships it C. O. D. Has the ordinance been violated? A. No. The sale, i. e., the transfer of title, takes place when the goods are shipped. The term.C. O. D. does not prevent the title from passing, but simply gives the seller a right to with- hold delivery until the purchase price is paid. Carthage v. Munsell, 203 111. 474. Carthage v. Duvall, 202 111. 234. Q. 41. A made an offer in writing to B in and by which he proposed to sell and deliver to B eighteen months thereafter seven hundred boxes of oranges at $3 per box. The following day B met A on the street and verbally accepted said offer. Suppose at the expiration of the eighteen months (a) the price of such fruit having declined, B refuses to comply with the contract because the undertaking was within the statute of frauds or (b) the price of such fruit having advanced, A re- fuses to comply basing his defense on the same statute; the question is whether the defense would be good in either case. What is the law here ? SALES 165 A. A would be bound. B would not, though he could enforce the contract against A. The statute only requires a contract to be signed by the party to be charged. Farwell v. Lowther, 18 111. 252. Q. 42. When, if at all, does the vendor of a chattel im- pliedly warrant to the purchaser that he owns it, no affirma- tion of title being made ? A. The vendor, if in possession, warrants by implication that it is his own, whether he knew of the defect in his title or not; but if the seller is out of possession, and no affirmation of title is made, the purchaser buys at his peril. 1 Parsons Contr. 573, 574, 575. Q. 43. A purchased of B, a retail dealer in farm imple- ments, a threshing machine of a well known make, after ex- amining the same. No express warranty of quality was required or given. The machine was afterwards found to be defective in that it had not been made in a workmanlike manner and was not reasonably fit for the use for which it was intended. Has A an action against B ? A. No. There is no implied warranty of quality of manu- factured articles except as against the manufacturer. People's Bank v. Bogart, 81 N. Y. 101. Q. 44. A and B entered into a written contract by which A agreed to sell and deliver to B within ten days fifty head of three-year-old Holstein steers at five cents per pound. The contract as written said nothing about quality. B insisted that there was a verbal warranty that the steers were fat enough for beef; and because they were not so he refused to accept or pay for them. State the rule of law applicable to this contention, and how the question should be decided. A. In the absence of an express warranty of quality and where the sale is not by sample, no warranty is to be implied. And where the contract is in writing, parol evidence is not ad- missible to add an express warranty. Howard v. Emerson, 110 Mass. 320. 166 LAW students' review Q. 45. A chest of drawers sold to A by an administrator, at an auction of chattels of the estate, contained valuable jewels secreted therein by the deceased owner, of which neither party to the sale had knowledge. A then sold the chest to B, neither having knowledge of the jewels. B afterwards discov- ers the jewels. To whom do they belong? A. To the administrator, as personal representative of the deceased owner. One secreting goods is presumed to retain title — no presumption of abandonment. The finder takes only a qualified title, subject to the right of the true owner. If the true owner dies before his right to a lost chattel is discovered, his personal representative has the same right over it as he has over the other property of the estate. Huthmacher v. Harris, 38 Pa. St. 491. Q. 46. Where the vendee of chattels, sold at a specific price, refuses to take and pay for them according to contract, what are the remedies of the vendor, and what is the measure of damages ? A. (1) He may store them for the vendee, give him notice that he has done so, and then recover the full contract price; or, (2) he may keep the goods and recover the excess of the contract price over and above the price of the goods at the time and place of delivery, or (3) he may, on notice to the ven- dee, proceed to sell the goods to the best advantage, and re- cover of the vendee the loss, if they fail to bring the contract price. Bagley v. Findlay, 82 111. 524. CHAPTER VII AGENCY Question I. A merchant authorized an infant to do business for him in the belief that the infant was of full age. The in- fant thereupon bought goods on credit, and signed promissory notes for same in the merchant's name, to the extent of $100,- ooo. The infant's actions were within the apparent scope of the agency, and the sellers believed the infant to be of full age. When his minority became known, the merchant denied lia- bility ; but offered to surrender the goods to the sellers. ' What are the seller's legal rights ? Answer. They can recover on the promissory notes. Infancy is a defense personal to an infant. When he is made an agent his acts bind his principal. Mechem Agency, § 155. Eeinard Agency, § 47. Q. 2. In January, 1865, plaintiff lived in Richmond, Va. He owned certain cotton, which was in the custody of his agent, in Alabama. Plaintiff gave one Singleton, a citizen of Illinois, an order on the Alabama agent, authorizing Singleton to take possession of all plaintiff's cotton in the agent's hands. Single- ton sold the cotton to one Guy, who stored it with defendant. After the war, plaintiff sued in detinue for the cotton. Assuming that no "trading" with citizens of the States in rebellion was allowed; and that Singleton was given the cus- tody of the cotton to save it from confiscation as contraband, may he still act as agent for plaintiff ? A. The law, though under such circumstances it would for- bid a sale of the cotton to Singleton, still permits him to act as agent. This the defendant was beund to know. In order to act 167 168 LAW students' review for others it is not necessary that a person be sui juris. A child feme covert, or even a person attainted, may be agent for another. Lyon &c. v. Kent, 45 Ala. 656. Eeinhard Agency, § 46. Q. 3. Coursolle, a Sioux half-blood, while a minor, exe- cuted two powers of attorney, one purporting to empower one Dorr to select and locate certain lands under "scrip" which entitled constituent to three hundred and twenty acres of land ; the other to sell and convey such land as he, constituent, might become entitled to. This his attorney did, or undertook to do. Subsequently the commissioner of the general land office can- celed the entry, on the ground that Coursolle was a minor. Several years after coming of age, Coursolle endeavored, with knowledge of the facts, to ratify the acts of Dorr. Was the power given by Coursolle when a minor void, or only voidable ? A. Voidable merely. Formerly a power of attorney executed by an infant, was held void. The more modern doctrine, how- ever, tends to hold such power merely voidable. It might there- fore be affirmed, on the infant's coming of age. Coursolle v. Weyerhauser, 69 Minn. 328. Q. 4. A husband, acting in his own name, undertook to mortgage a crop to be grown on the land of his wife. She did not join in the mortgage. The husband died before the crop was grown; and it was entirely grown by the widow and her two children. Could a claim that she ratified the mortgage after she became discovert be sustained? A. No. So far as she was concerned the transaction was void, for it concerned the pledging of her property in which she did not join. And there is no basis for ratification where an act is done by a person in his own name, and not professedly acting as the agent of the person sought to be charged. Eawlings v. Neal, 126 N. Car. 271. Q. 5. Plaintiff, an auctioneer, sold at auction sixty-six lots of land. They were struck off to defendant. Assume the memorandum of sale to be in other respects sufficient, but mat AGENCY 169 plaintiff signed the owner's name thereto as "agent and auction- eer for seller and purchaser." Plaintiff's clerk, in the auc- tioneer's book also signed a memorandum, (describing the lots) with the name of the defendant, Buck. Terms of sale pro- vided that auctioneer's fee of $5 for each lot should be paid by the purchaser. The defendant, not liking the way the sale was conducted, refused to pay; and the auctioneer sued for his fee. Can he recover ? A. This depends upon whether the above memorandum is, a sufficient compliance with the statute of frauds. While in an action between vendor and purchaser, the signature of the auc- tioneer, he being the agent for both parties, is a sufficient signa- ture for both; yet in the above case it is the auctioneer himself who is suing; and if he had himself signed Buck's name, this would not have been sufficient. But his clerk's signing Buck's name, upon the successful bid's being announced, is sufficient; and the auctioneer can recover. Johnson v. Buck, 35 N. J. L. 338. Q. 6. A real estate agent who had not taken out a license for the period within which he procured a sale of property, sued for his commissions. For these he had a special contract with defendant. Assuming that the statute, under penalty, prohibited carry- ing on the business of real estate agent without a license ; but that it does not in terms prohibit the offender from recovering commissions; may the agent recover of the defendant? A. No. The prohibition of the statute makes plaintiff's business unlawful ; and therefore the commissions or gains aris- ing from it, without regard to the form of his contract with de- ! fendant, unlawful. It is not necessary that the statute should prohibit recovery. Johnson v. Hulings, 103 Pa. 498. Q. 7. Authority to sell real property was given by defend- ant, O. W. Underwood, to the firm of A. B. Wilgus & Bro., a partnership composed of A. B. Wilgus and E. P. Wilgus. A contract for the sale of the property, in other respects regular, was entered into ; but it was signed "O. W. Underwood by A. 170 LAW STUDENTS REVIEW B. Wilgus, agent." The purchaser sued thereon for specific performance. Underwood defended on the ground that his authority was given to the two partners, and unless both join in exercising it, it is not well exercised ; and that therefore the contract is not binding on him. Is his contention correct? A. Not correct. While it is true that where a power is con- ferred on two or more, unless otherwise specified all the donees of the power must join; yet where authority is given to a firm as such, the foregoing rule has no application. Where one dele- gates authority to a firm, it is the partnership he makes his agent ; and the act of a partner is the act of the firm. Deakin v. Underwood, 37 Minn. 98. Q. 8. The Singer Manufacturing Company, by written contract, employed one Corbett to sell its sewing machines. He was to be paid for his "services" solely by commissions on sales and collections. The company furnished a wagon ; he fur- nished horse and harness in canvassing ; agreed to devote him- self to the business under the directions of the company and under its rules and regulations, and to pay expenses attendant on the business ; also not to make use of the company's name in such way as to lead to the belief that the company is respon- sible for his actions. He might be discharged at any time ; but must give ten days' notice on leaving. Contract forfeited if he sells any other machines. Is Corbett an agent, or a servant of the company ? A. A servant. He gives his whole time. The company may regulate not only what he shall do, but how he shall do it. It might instruct him what route to take, or how fast to drive. Singer &c. v. Kahn, 132 U. S. 518. Q. 9. The grantee in a deed, at grantor's request and in his presence, signed the grantor's name thereto. Thereupon the grantor acknowledged the deed, and it was delivered to grantee. Is it the deed of the grantor ? A. Yes. If a grantor acknowledges and delivers a deed which bears his name as signing the same, with a seal affixed, AGENCY 171 it is of no importance who has affixed the signature and seal. Those acts are the grantor's by adoption. Clough v. Clough, 73 Maine 487. O. 10. Two sureties signed a probate bond which turned out to be in wrong form. Thereupon, at the request of the principal, they signed another bond in blank; the principal representing that $2,000, the amount of the former bond, was satisfactory. The principal thereafter filled in the blank with a larger sum, and delivered the bond, subsequently telling the sureties that it was in the penal sum of $2,000. This they be- lieved. Assuming that there was an understanding that there should be delivery, but that the penal sum should be only $2,000, are the sureties bound in the larger amount actually filled in ? A. They are bound. The cases are not unanimous (see Q. 11) ; but the prevailing view in a case of this character is that the possibility of the probate judge's requiring an amount larger than $2,000 to be inserted is "so obvious and so near" that the surety must be held to take the risk of the principal's conduct; and to be bound by the bond as delivered. White v. Duggan, 140 Mass. 18. State v. Young, 23 Minn. 551. But see People v. Bostwick, 32 N. Y. 445. Q. 11. Suppose the foregoing had been an instance of a deed from two grantors with the name of the grantee left blank, but with parol authority from one co-grantee to the other to fill in the name at a later time ; will the deed with such name so filled in bind the co-grantor ? A. No. The rule is that the authority to fill the blank must, as the deed is a sealed instrument, be itself under seal. (Observe, however, that in the preceding question a sealed instrument is also involved.) Basford v. Pearson, 9 Allen 387. But see Keinhard Agency, § 60. Q. 12. The federal law provided in substance that a cashier of the old United States Bank should before entering upon 172 LAW STUDENTS REVIEW his duties as cashier, file a bond for the faithful discharge of his duties, with sureties, satisfactory to the board of directors of the bank. One Dandridge was appointed cashier ; his bond with sureties was filed; but there was no minute or other record of the board to the effect that the bond was satisfactory. Dandridge, however, entered upon the duties of his office, and performed them for a considerable period. He then defaulted. His sureties claimed that they were not bound ; that a corpora- tion, especially a public corporation, must put its approval of the bond in writing, to make the bond valid; and that mere acts or conduct of the board could not be relied on, apart from a record thereof, to prove that the bond was "satisfac- tory." Is this contention sound? A. Unsound. While originally it was said that a corporation could do nothing but by deed under its common seal; yet this rule has been broken in upon "in a vast variety of cases." And in the foregoing case it was held that as the cashier was duly appointed, and was permitted to act for a long time under the sanction of the directors, these and other facts tending to show approval, or to raise the presumption of approval of the bond, may be shown as in the case of private corporations. Bank of United States v. Dandridge, 12 Wheat. 64. Q. 13. The plaintiff, a milling company, was engaged in the flour business at Minneapolis. For six years it had a bank account at defendant bank, averaging over $100,000 a month. One Heilpern, its bookkeeper, had charge of its petty cash received for local sales. Between April and September, 1890, he stole nineteen checks and drafts belonging to the company, and payable to its order, stamped the company's name on the back, and wrote his own underneath it. These checks and drafts he from time to time sold to the bank, and appropriated the proceeds to his own use. Assuming that the usual mode of the company's depositing in the bank was by the use of the stamp on checks and drafts, discuss the question whether the bank must make good to the company. AGENCY I73 A. The question is for the jury. The bank may prove the •entire course and manner of business as connected with Heil- pern, or his predecessors in his position, and if the proof is that authority has been implied, (though it be never given) to deal so far as the bank is concerned with the paper in this manner, the company can not recover. Columbia &c. v. National Bank, 52 Minn. 224. Q. 14. Would you say that a yardmaster of a railroad has authority to charge the railroad company with the expense of a physician to attend an employe who has been hurt in attend- ing to his duties at the railroad yards ? A. Not so far as appears from the position or duties of a yardmaster. Accordingly, unless there be evidence going to show that such functions have come to be exercised by men in that position, the company would not be bound to pay the physician. Marquette &c. E. Co. v. Taft, 28 Mich. 289. Q. 15. A power of attorney contained these words: "to act in all my business, in all concerns, as if I were present, and to stand good in law, in all my land and other business." Discuss the sufficiency of this grant of power to authorize the attorney in. fact to execute a deed to his principal's lands. A. It is not sufficient. Grants of power are to be strictly con- strued; and, though couched in general language, are to be limited to the particular object contemplated. Mechem Agency, § 780. Eeinhard Agency, §§ 198, 200. O. 16. Plaintiff agreed to furnish Lamar one thousand bushels of flax seed, to loan to farmers for seed, for the pur- pose of procuring the product of the seeding, L to take notes to secure payment for the seed, and to make contracts for the crops. L was to ship to plaintiff all the products of the loaned seed which he should receive under the farmers' contracts, and not to deal in seed except for account of plaintiff. L's com- pensation was five cents per bushel on seed bought for and .shipped to plaintiff, title of seed furnished to remain in plain- 174 LAW STUDENTS REVIEW tiff. L, with money advanced by plaintiff, and charged to L, bought seed, and sold to defendant, and was chargeable for damage if seed was unmerchantable. Plaintiff brought trover for the seed. Assuming that the seed in which plaintiff thus claimed title was, at time of sale, in the possession and control of Lamar, that plaintiff's bins were full, and they were unable to receive more seed; did defendant get title, or did title still remain in plaintiff ? A. Here is no transfer of title to Lamar. The seed when sold to defendant was plaintiff's seed, and not Lamar's; nor could L, though in possession, give title. The mere possession of chattels by whatever means acquired, if there be no other evidence of property or authority from the true owner to sell, will not enable the possessor to give title. Gilman &c. Co. v. Norton, 89 Iowa 434. Q. 17. An organ was delivered by the owner to one Davis, under a written contract, providing that Davis should sell the organ, and pay over the proceeds to the owner. Title not to pass until owner was. paid. Defendant received the organ of Davis in exchange for a buggy, and $40 in cash, Davis informing defendant that he was the. owner's (plaintiff's) agent. Did title pass? A. No. In the absence of evidence to the contrary, authori- ty to "sell" meant to sell for cash. As the plaintiff did not au- thorize Davis to hold himself out as the owner of the organ, plaintiff still retains title, notwithstanding the barter with the defendant. Taylor &c. Co. v. Starkey, 59 N. H. 142. Q. 18. A sales agent of plaintiff sold a fanning mill to clean wheat to defendant, and affirmed in connection with the sale that it would do certain work. It turned out that the mill would not do the work, and defendant refused to pay for the machine, claiming that the representation of the agent was a warranty. Assuming that the agent was not specially author- AGENCY 175 ized to make the warranty, still from the fact that he was sales agent was the defendant, in the absence of notice to the con- trary, legally entitled to presume that the agent had such au- thority ? A. Yes. General authority to sell includes the power to sell with warranty, unless the purchaser knows the private in- structions to the agent, or that he is exceeding his powers. Boothby v. Scales, 27 Wis. 626, 635. And in a similar controversy, where the agent of a horse- dealer warranted a horse, evidence that where the animal is examined by a veterinary surgeon, it is the general practice among horse-dealers not to warrant, is not admissible. Howard v. Sheward, L. R. 2 C. P. 148. But see Brady v. Todd, 9 C. B. (N. S.) 591. Q. 19. One Kilbourn, in August, 1879, called upon defend- ant at Berlin, Wis., exhibited the cards of plaintiff's "house" in Chicago, and obtained an order for one thousand cigars of a certain brand. The order was sent to plaintiff, who shipped and billed the cigars to defendant, $60 at sixty days. Defendant re- ceived them. In about thirty days Kilbourn called on defend- ant, and asked him if he "would as soon pay it (the bill) then as any other time." So defendant handed the money to Kilbourn ; and Kilbourn receipted the original bill produced by defendant in plaintiff's name by himself. Kilbourn failed to account to plaintiff, who. sued defendant. On these facts, defendant had judgment. Is this correct? A. Plaintiff should recover. Kilbourn, the agent, had no authority to receive the money. When defendant completed giving the order, no binding contract had been made. Defendant might have countermanded, before shipment ; and plaintiff might have refused to accept the order. Unless the agent has the goods with him, authority to "sell" does not ordinarily include authori- ty to collect. McKindly v. Dunham, 55 Wis. 515. Q. 20. Action for specific performance to convey certain real estate. Defendant agreed to convey to plaintiff the real estate, when a bill which had theretofore been introduced in 176 LAW STUDENTS' REVIEW the senate of the State of New York with amendments, or a similar bill, should become law. The bill provided for a fran- chise to be granted to defendant for a railroad on Division Ave- nue, and for operating trains thereon, in the county of Kings in said State. Plaintiff had covenanted that he would en- deavor to procure the passage of the bill, and that he would not co-operate or conspire with any other person "at the in- troduction into either branch of the legislature, or elsewhere for the construction of any railroad" on Division Avenue. Is such a contract sustainable ? A. No. It is against public policy. It is a contract leading to secret, improper and corrupt tampering with legislative ac- tion ; and furnishes a temptation to plaintiff to resort to corrupt means or improper devices, to influence legislative action. Mills v. Mills, 40 N. Y. 543. Keinhard Agency, § 70. Q. 21. One Rankin authorized one Fraser to confess a judgment against him, in favor of one Eakin, for whatever amount might be found due upon Rankin's note of hand for $600, assigned to Fraser for use of Eakin, in the Circuit Court of Bledsoe county, at the March Term, 1857. Fraser confessed judgment at the August term of said court, 1858. Is the confession valid ? A. Invalid. Here is an authority special and limited both as to time and place. It was urged that the time is not material ; but the law says it does not know how that may be. Where there is a special agency, its terms must be complied with. Rankin v. Eakin, 3 Head 229. Q. 22. An instrument authorized an attorney in fact to make sale of the real estate of constituent, as therein described, but contained no express words authorizing such attorney to execute a deed or deeds. Is such an authority implied ? A. Yes. Where the word "sale" is used, and the general tenor and effect of the instrument is to confer on the attorney a power to dispose of real estate, the authority to execute the AGENCY 177 proper instruments required by law to effectuate the purpose is necessarily incident. Valentine v. Piper, 22 Pick. 85, 92. Q. 23. An agreement between defendant and his agent pro- vided that the agent might "purchase R. C. Stone's and such other Votton" as the agent might be able to purchase in Desha County, Arkansas, and its vicinity. Defendant furnished the agency $4,000 and stipulated that he would from time to time furnish such other money as might be necessary to purchase said cotton. Agent was to buy the cotton if it could be bought at given scale of price per pound, and as much more as he could on the best possible terms. Does this create a general or a special agency ? A. General — as to cotton. A special agency contemplates a single transaction, or a transaction with designated persons. It does not leave to the agent any discretion as to the persons with whom he may contract for the principal, if he be empowered to make more than one contract for the principal. But authority to make purchases from any person with whom the agent may choose to deal, or to make an indefinite number of purchases, is a general agency. Butler v. Maples, 9 Wall. 766. Q. 24. A bond and mortgage were given to secure a loan negotiated through an attorney. The attorney kept possession of the securities. After the principal indebtedness came due, the mortgagor paid the attorney $2,000 in two payments, to apply on principal; and on each payment the bond and mort- gage were produced. Later mortgagor paid the attorney $1,000 more on account ; the bond and mortgage were not produced ; but the attorney said he had them, and this was the fact. After- ward the attorney sold them, forging the assignment, and de- livered them to the purchaser. Subsequently mortgagor paid the attorney the balance ($5,000) of the mortgage indebtedness. Did the mortgagor thus satisfy the debt? A. No. He satisfied $3,000 of it, but not the $5,000 balance. The matter turns, not merely upon the possession (or lack of it) 12— L. S. Rev. 178 LAW students' review by the attorney of the securities; but also upon mortgagor's knowledge of and reliance upon this fact. It is the appearance of authority to collect which justifies him in paying the attor- ney. Mortgagor should, unless he was prepared to risk his $5,000 (as he had risked his last $1,000) on the attorney's as- surance, have asked to see the bond and mortgage. Crane v. Gruenewald, 120 N. Y. 274. Q. 25. Plaintiff was the highest bidder for a parcel of land at a sale at auction ; and signed a contract of sale. He gave his check for $500 at the time ; but had no funds to meet it, and the day after the auction asked the auctioneer to hold it back till he could provide funds. Auctioneer refused, and said unless it was paid that day the sale was off. Then he deposited check, the same forenoon. Defendant, owner of the land, heard of the facts the next morning, repudiated the sale, and revoked the auctioneer's authority; but did not notify plaintiff. Assuming that the check was honored in due course, can defendant's repudiation stand? A. Yes. The auctioneer had no right to take the check; and this plaintiff should have known, as a matter of law. De- fendant was not bound by auctioneer's acts, and had the legal right, without notice to plaintiff, to repudiate the whole trans- action. Broughton v. Silloway, 114 Mass 71. Q. 26. A resident agent, appointed by a board of directors of a mining company to manage the mine, undertook to bor- row money on the credit of the company, to pay laborers in the mine. It was held that he had no authority to do this. Why ? A. Because there is no rule of law (except in cases of the master of a ship) that an agent may, even in case of emergency suddenly arising, raise money and pledge the credit of his prin- cipals for its repayment. Hawtayne v. Bourne, 7 Mees. & Wels. 595. Q. 27. How about the authority of a conductor of a rail- road train, to employ a temporary brakeman, the regular brake- man being absent, and thereby to bind the railroad company as employer of the substitute thus employed ? AGENCY 179 A. Assuming that the proper and safe management of the train required the place of the absent brakeman to be filled, the conductor has this authority. So held where substitute was in- jured. He is not an "intermeddler." Sloan v. Central &c. E. Co., 62 Iowa 728, 736. Q. 28. A fire insurance policy contained the usual clause providing that if with the knowledge of the insured, fore- closure proceedings be commenced, the policy should become void, "unless by agreement endorsed upon or added to the policy." Suppose the policy contains also the usual clause that no agent shall have power to waive any provision or condi- tion thereof ; but that the agent who procured the policy states to insured that his rights under the policy, notwithstanding the foreclosure would not be prejudiced thereby. Assume further that insured did not read the policy, and did not know its pro- visions; that foreclosure was begun, to the knowledge of in- sured, and that he did not procure any endorsement on the policy with reference thereto. If a fire occurs, is the company liable to insured ? A. No. The act of the agent in attempting to give such assurance transcends his authority. He had no power to waive the condition. It is immaterial whether the insured read the policy or not; or whether he had any knowledge of the limita- tion of the power of the agent. Quinlan v. Providence &c. Co., 133 N. Y. 356. So where an agent for the company, though without the knowledge of applicant for life insurance, writes down false answers, material to the risk, which are signed by applicant without reading, the company is not bound by a policy issued on such application. New York &c. Co. v. Fletcher, 117 U. S. 519. Q. 29. One Parmelee, who was cashier of the Shawnee County Bank, made his individual note for $3,000, payable to the order of the West St. Louis Savings Bank, indorsed it "G. F. Parmelee, Cashier," and gave as collateral security a certificate of stock which he owned in the Shawnee Bank. The payee of the note knew that the money was to be used to pay for the Shawnee Bank stock. 180 LAW students' review Can the payee collect of the Shawnee Bank as indorser ? A. No. While a cashier, being the ostensible executive officer of a bank is in the absence of positive restrictions, presumed to have authority to indorse the commercial paper of his bank, yet he is not presumed by reason of his official position to have power to bind his bank as an accommodation indorser of his own promissory note. West St. Louis &c. v. Shawnee &c, 95 U. S. 557. Q. 30. A broker made a sale for his principal of 200,000 pounds of coffee at nine and three-quarter cents a pound. The broker's clerk, in the broker's presence, made and signed a memorandum in writing of the sale, except the price, which the broker inserted. Is this the memorandum of the vendor of the coffee? A. The answer turns upon the consideration whether the making and signing of the memorandum is an act which the broker (delegatus) can delegate to another. The rule is that the power to do acts requiring discretion can not be delegated by an agent or broker; "delegatus non potest delegare" ; but that acts merely ministerial may be delegated to a sub-agent to per- form, and will still bind the principal. The above act, especially as it was done in the presence of the broker, held to be min- isterial merely, and thus binding on the principal. Williams v. Woods, 16 Md. 220, 250. But to execute notes of hand would not be authority capable of delegation by an agent. Emerson v. Province &c, 12 Mass. 237. Q. 31. A Pittsburg bank during a period of three months sent eleven drafts to a New York bank for collection. Each was payable at four months. They were drawn on "Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J." and were sent and recognized as drafts on the Tea Tray Company. The New York bank sent them to its Newark correspondent bank for collection. This latter bank took Conger's individual acceptance — not as secretary — he refusing to accept as secre- tary ; and no notice of this fact was given the Pittsburg bank. AGENCY l8l By reason of the defective acceptance, the drafts were uncol- lectible. Is the New York bank liable to the Pittsburg bank ? A. Yes. The New York bank attempted to invoke the doc- trine that its liability extended only to due care in selecting a competent agent at Newark, and to transmitting the drafts with proper instructions — and for this there is authority in a number of states. But the doctrine that a bank receiving a draft under above circumstances is liable for neglect of duty, whether its own, or that of its correspondent, is sustained by the United States Supreme Court, and by the courts of New York and other states. Exchange &c. v. Third &c, 112 U. S. 276. (See also cases there cited.) And in the absence of limitation in the terms of liability, the United States rule is upheld as to collection agencies and attor- neys forwarding for collection. Bradstreet v. Everson, 72 Pa. St. 124. Q. 32. One Coffin, as agent, undertook to aid plaintiff in selling a quarter section of land in Rock Island County, Illi- nois. Nothing was said about employing subagents. Coffin employed Ochs to get a customer. Ochs got an offer of $22.50 an acre — but reported it to Coffin, and he in turn to plaintiff, at $10 an acre. Ochs manipulated the transaction so that without the knowledge of either Coffin or plaintiff, he got the extra $12.50 for himself — accounting for the $10 an acre only. Upon learning of Ochs's fraud, plaintiff sued Coffin for the $12.50 per acre for 160 acres. Is Coffin liable? A. Yes. It does not appear that there is any usage or neces- sity from the nature of the business, to employ subagents. Ac- cordingly there is no privity between Ochs and the plaintiff. Ochs therefore is liable only to Coffin; and Coffin is liable to plaintiff. Barnard v. Coffin, 141 Mass. 37. Q. . 33. De Bussche, a ship-owner, in 1868, consigned a ship, the Columbine, to defendant for sale, fixing a minimum price of $90,000, and requiring cash payment. The defendant tried, 1 82 LAW STUDENTS' REVIEW but unsuccessfully, to sell the ship for that price. Then he took her himself. Meanwhile he had been in negotiation with a Japanese prince to sell the ship to him for $175,000; $75,000 in cash and the rest on credit. This sale to the prince was subsequently consummated. Bussche, on learning of it, sued defendant to require an accounting for the sale to the prince. Is he entitled to it, or must he be content with his price of $90,000 ? A. De Bussche is entitled to an accounting. An agent can not purchase property as to which he is agent from his principal, and make and keep a profit from it. The principal, upon learn- ing of such a transaction, is at liberty to adopt the agent's act, and to require the agent to account to him for any profit the agent has made. De Bussche v. Alt, L. E. 8 Ch. D. 286. And a purchase by a trustee or agent (here an executor) through the interposition of another, of property of which he has the sale, carries fraud on the face of it. Michoud v. Girod, 4 How. (U. S.) 503. Q. 34. James R. Keene, Butcher's Sons, and the firm of D. & N. G. Miller entered into a contract to "tie up" or "cor- ner" lard. Each of the partners contributed to the scheme a large quantity of lard. They dealt through brokers, Kent & Co. While Kent & Co. knew of the purpose of the scheme, they acted only as agents. Assuming that the contract was il- legal, and that the courts would not assist the parties to an il- legal contract to settle their accounts ; yet in case Kent & Co. as agents render false accounts, and thus withhold money from their principals, can Kent & Co., at the suit of the principals, be held answerable ? A. No. In an illegal scheme an agent, knowing the illegal- ity, and still undertaking to carry out the scheme, will be treated as particeps criminis. The law will leave all the parties where it finds them ; and will not compel an accounting. Leonard v. Poole, 114 N. Y. 371. 0. 35. The defendant Sears was an agent for the plain- tiff, the Franklin Insurance Company. Sears issued plain- tiff's policy to an insured, advising plaintiff. Immediately on AGENCY 183 receiving the advices, plaintiff wrote Sears directing him to cancel the policy, as, by its terms, he might have done. Sears told the broker who had procured the policy, to have it cancelled. The broker called at insured's place of business. Insured was absent, but there was some one in the office au- thorized to receive the return premium. Broker did not tender it. In a day or two, defendant learned that the policy had not been cancelled. Three or four days afterward he went with the broker to insured's place of business, to cancel the policy. They found the insured's property in flames. Is Sears liable to his company ? A. Yes. Directing the broker to have the policy cancelled does not relieve him. The broker was negligent in not pushing his injury further, and in taking no other step to cancel; and the broker's negligence was Sears's, and Sears is liable. Franklin &c. v. Sears, 21 Fed. 290. Q. 36. Plaintiff placed a note of hand in defendant's pos- session, instructing that he should not part with the note with- out getting the money. Defendant negotiated with one Foote about buying the note. Foote promised that he would get the note discounted, and would return the money to defendant. He got it discounted, but appropriated the money, and made no re- turn thereof to defendant. Plaintiff sues defendant in trover. Does defendant's disposal of the note amount to a conversion ? A. Yes. The delivery to Foote was contrary to the express direction of the plaintiff to defendant as his agent ; it was there- fore wrongful. "If a man who is intrusted with the goods of another puts them into the hands of a third person contrary to orders it is a conversion." Laverty v. Snethen, 68 N. Y. 522. Q. 37. The ship Spy, Wood captain, had a consignment of Madeira wine. The captain's instructions were to dispose of the wine either at Ceylon or Calcutta, or at both places, pro- vided it would pay invoice cost. But if those markets were overstocked he was told to hand the wine over to Messrs. Praeger of Calcutta for account of shippers. 184 LAW STUDENTS' REVIEW The market was overstocked with Madeira; and when the ship reached Calcutta, Messrs. Praeger were found to be in- solvent. What should the captain do with the wine ? A. Turn it over to the care and management of some house of established credit with instructions to sell. He could not sell, without violating his instructions ; and to turn it over to Praeger & Co., while it would constitute a literal compliance with in- structions, would, under the circumstances have "been a gross abuse in him." Drummond v. Wood, 2 Caines 310. And thus for a mere error of judgment, an agent directed to "do the best he can," is not liable. Long v. Pool, 68 N. Car. 479. Q. 38. P, a banker in New York city, advertised himself as dealing in "choice stocks"; and promised his customers careful attention. One Isham entrusted $25,000 to P to loan. The undertaking was gratuitous on the part of P. He lent the money, and took as collateral a certificate of stock, originally genuine, but by forgery raised from seven to seventy shares. The loan was made to a firm in good standing — but the firm failed two days later, for a large amount. Three charges of negligence were made (a) That certificate should have been presented at negotia- tion office for verification, (b) Inquiry should have been made as to solvency of bor- rower. (c) Certificate was taken without careful scrutiny. As a matter of law, are any of these charges well founded ? A. (c) is well founded; for a man dealing as agent, even gratuitously, in a large city, should as a matter of law care- fully scrutinize securities. (b) and (a) not sustainable, in the absence of a showing, as to (b) that inquiry would have yielded information of insolv- ency; as to (a) that such was the custom among bankers or brokers. Isham v. Post, 141 N. Y. 100. Q. 39. It is, of course, true that a real estate broker acting for both buyer and seller can not recover compensation from AGENCY 185 either, if the principal from whom he seeks compensation did not know that he was acting for the other party. But suppose each principal knows of and assents to the broker's acting for both. Discuss the question whether the broker can recover of both. A. The transaction should be regarded with suspicion; but where full knowledge and consent are shown, it can not be said that public policy or sound morals are violated. So held in Bell v. McConnell, 37 Ohio 396, and in a number of cases there cited. But it is also held that while a broker may be entitled to pay from each of the parties for merely bringing them together as a middleman, he can not be allowed to serve as a broker for both, for his duties unavoidably conflict. Lynch v. Fallon, 11 E. I. 311, and cases cited. 1 Q. 40. Hayden sues Rose on the following facts : In Sep- tember, 1883, Hayden desired to purchase "lot 102," real es- tate in the city of Holton. She originally employed Rose's firm of Rose & Chrisman, real estate agents, to negotiate the purchase for her. As the result of negotiations, Rose bought and paid for "lot 102," taking title in himself. Hayden then ten- dered Rose the price of the lot, and compensation ; also a draft of deed to herself, Hayden, for Rose to execute. Rose refused, on the ground that his employment was only by parol, and not in writing as required by the statute of frauds; that Hayden had not advanced the purchase money, and had never been in possession, or made any improvements. What do you say to this defense? A. Invalid. This is simply the case of a resulting trust, and is not within the statute. Rose at the election of Hayden, is Hayden's trustee. The agency of Rose though not in writing, operates to make him Hayden's trustee; and in the above in- stance this result arises by operation of law, and does not require any memorandum in writing, signed by the party to be charged. Rose v. Hayden, 35 Kans. 106. Q. 41. Suppose an agent sells goods on credit for his prin- cipal, takes the note of hand of the purchaser, credits his principal with the amount, notifies him of the sale; but fails to notify him that the note is not paid when due. 1 86 LAW students' review As a matter of law, is the agent, on the above facts, bound to notify his principal of the failure to pay the note ? A. Yes. An agent is bound by law to keep his principal informed of all "material occurrences" in the agency. And the principal may sustain his action against his agent, even in default of showing that he has sustained damage through fail- ure of notice. Harvey v. Turner, 4 Eawle 223. Q. 42. One Dillon, agent for the Connecticut Mutual Life Insurance Company, carried an account at a bank, designated on the books of the bank, as follows: "Dr. Central National Bank in account with A. H. Dillon, Jr., Gen. Agt. Cr." From time to time as he collected money for the insurance company, he would deposit to above account, remitting at stated intervals, to the company. When premiums were paid, he indorsed them as general agent; but he also deposited funds received from sources other than premiums. Deposits aggregated over $470,- 000. Most of this had been drawn on checks to the company. There were $11,000 left, when the account was closed. Dillon owed more than this to the company for premiums. In the same bank Dillon carried an account in the name of his wife. Dillon contracted, for his own individual use, a debt with the bank. Can the bank hold the $1 1,000 against this debt ? A. It can not. While ordinarily the relation between a bank and its depositor is that of debtor and creditor; yet where, as here, there is a beneficial owner of the funds, of which the banker has notice, the equity of such owner is superior to that of the bank, as regards the balance on deposit. The fund is ear- marked as a trust fund held by the debtor; and of this the bank must take notice. National Bank v. Insurance &c, 104 U. S. 54. Q. 43. An attorney, by written contract, agreed with his client to prosecute for perjury in his client's behalf, and that he would not charge client "full costs" except money out of pocket. The attorney laid out for account of his client £ 105 ; and preferred the perjury indictment. But he -counted on an affidavit, and misstated the name of the commissioner before AGENCY 187 whom the affidavit was taken. Thus the accused was acquitted. How about the £105 the attorney has advanced? Does he lose this? A. He loses it. If he advances money, he undertakes that it shall be laid out with reasonable care and skill ; and if through his negligence the benefit of it is lost, he loses the money — just as he would lose "services, journeyings and attendances" un- skillfully wasted by him. Lewis v. Samuel, 8 Q. B. 685. Q. 44. The claim agent for a railroad company, in adjusting with an employe who had been injured, settled with the employe for $500, and a promise that the railroad company would fur- nish him steady employment during good behavior. The money was paid ; and work was given claimant for two or three years ; but the company had not authorized, nor did it know of the promise of work. Is the promise binding on the company ? A. Not binding. There was no actual authority ; and a claim agent is not, as a matter of law, clothed with authority to employ other than the usual and ordinary means of accomplishing the purpose of the agency. Unless therefore there be evidence that corporations are accustomed to give employment during good behavior, the railroad company is not bound. And unless it knew or ought to have known of the agent's promise of employ- ment, its employing claimant was not a ratification. Bohanan v.. Boston &c, 70 N. H. 526. Q. 45. Plaintiff proved that defendant Quinlan & Co. was a foreign corporation having a brokerage office in Boston. De- fendant admitted that its office was connected by wire with that of Smith, its alleged agent in Glen Falls, N. Y. y but denied that Smith was its agent. Plaintiff showed that defend- ant kept a deposit in a Glen Falls bank; that it had furnished drafts to Smith once a week and had received and cashed Smith's drafts ; that after tlie date when office was closed, these transactions ceased. That the Glen Falls office had been in existence some time, and had several signs about it, upon which in large letters appeared "Quinlan & Co." That writings on 1 88 LAW STUDENTS REVIEW contracts evidencing purchases of stock by plaintiff bore the name of Smith, "correspondent Quinlan & Co., Boston, Mass. ;" and that two customers who had received from Smith contracts, similar to plaintiff's, evidencing purchase of stocks, had sent attorneys to Boston who had settled with defendant, and had received stock certificates through the Glen Falls Bank. Does the above constitute prima facie evidence of the agency of Smith, so as to let in testimony as to conversations with Smith concerning defendant, its business, and his agency ? A. It does. While the mere declarations of Smith to the plaintiff would have been incompetent to establish his agency (being inadmissible in the absence of independent evidence of agency) — yet there is enough in facts proved here to let in Smith's declaration. The independent evidence amounts to a prima facie showing of agency. Mullen v. Quinlan &c, 195 N. Y. 109. Q. 46. Plaintiff, a station agent of a certain railroad com- pany, sues the company for breach of an alleged contract to furnish a train for an excursion. From the correspondence, the company supposed the train was to be furnished for a third party; and upon learning the agent was attempting to procure the train for his own benefit, refused to furnish it. Can the contract be enforced by plaintiff? What principle of agency is involved ? A. Contract unenforcible. An agent will not be allowed to assume a position in which his duty and his interest conflict. Nor will he be permitted to make a secret profit out of his agency. Pegram v. Charlotte &c, 84 N. Car. 696. Q. 47. X, a real estate agent, having charge of the renting and repairing of a certain house, the property of A, sent the following written order to Y, a carpenter: "Repair house" (description given) "for which I am agent, in the following manner" (stated) "not to exceed in cost $500. X Agent." The carpenter did not know who was the owner of the property. He did the work in a proper manner, as requested, and charged it to X, the agent, individually. X refused to pay. Is X liable? AGENCY 189 A. X, the agent, is personally liable. An agent is personally liable upon a contract made for a principal not named by him, although he states to the contractor that he is not the owner of the premises where the work is to be done, but is merely the agent for the owner. Carpenter had the option to sue either. Carpenter was not bound to inquire who was the principal. It was X's duty to disclose his principal. Carpenter was entitled to actual knowledge of name of X's principal, unless X wishes to pledge his own credit. De Kemer v. Brown, 165 N. Y. 410. Cobb v. Knapp, 71 N. Y. 348. Q. 48. When property or funds have come into the hands of an agent, impressed with a trust in favor of his principal, how far may such property or funds be followed by such principal ? A. As far as they can be identified ; and until they come into the hands of a bona fide purchaser for value, without notice of the trust. Mechem Agency, § 1350. Eeinhard Agency, § 388. Q. 49. Plaintiff ordered a load of coal of defendant, a coal dealer. One McCullock, a member of defendant's household, who was accustomed to be in and about defendant's coal-yard, but was not then in fact an agent or servant of defendant, took the coal from defendant's yard, on one of defendant's wagons, and made the delivery of the load to plaintiff. Through Mc- Cullock's carelessness while delivering, a plate glass window of plaintiff was broken ; and plaintiff sued defendant in tort for damages caused by breaking the window. Subsequent to the delivery of the coal, and with full knowl- edge of the accident to the window, defendant presented to plaintiff, and collected, his bill for the coal. Is defendant liable for the broken window? A. He is liable. The defendant, though he did not do so specifically, has still ratified the trespass. The ratification of • the employment establishes the relation of master and servant from the beginning, with its incidents, including the trespass. Dempsey v. Chambers, 154 Mass. 330. I9O LAW STUDENTS REVIEW Q. 50. State the general rules relating to ratification by a principal of acts of agents. A. 1. Such ratification must be entire; can not ratify part and reject part. 2. Ratification of part operates as ratification of whole. 3. The effect is same as if act had been done pursuant to previous authority. Dempsey v. Chambers, 154 Mass. 330. Q. 51. Discuss the law applicable to these facts: A firm employed an agent to represent it in making collections, for a year. Suppose a member of the firm dies at the end of six months ; and that the surviving partner takes the position that as one of the joint principals who employed the agent has died, dissolving the firm, therefore the agency is revoked, and the agent is or may be discharged, and can not recover for the last six months ; but the agent asserts that he was employed for a year, and can recover for the whole year. A. The death of a single principal revokes an agency. But where a person has entered into a contract relation with a part- nership for a year, the death of a partner should not enable the firm to avoid responsibility for its contracts ; and the agent can recover. The case is likened to an agreement to pay rent, where a partner dies during the term. Fereira v. Sayres, 5 Watts & S. 210. The Supreme Court of Georgia holds, however, that while a voluntary dissolution of the firm would not relieve it of lia- bility — yet that it is relieved by the death, an act of God, of one of the partners. Griggs v. Swift, 82 Ga. 392. The Pennsylvania doctrine seems more reasonable. Eeinhard Agency, § 169. Q. 52. Suppose an agent (attorney in fact) be appointed by a single constituent who afterward dies : will the power be revoked by the death of constituent in a case where it is coupled with an interest? A. Yes; unless it be an interest in the thing itself which is the subject of the power. But otherwise, if it be merely an interest in the execution of the power. For example, in the leading case of Hunt v. Eousmanier, a power to sell a ship was AGENCY 191 given as security for a loan; and the donor of the power (con- stituent) died. It was held that the interest here was merely in the execution of the power; not in the ship itself; and that the death of the constituent revoked the power. Hunt v. Eousmanier, 8 Wheat. 174. Q. 53. The New York Life Insurance Company had issued a policy whereby premiums were made payable to the company at its domicil (New York) upon the life of a citizen of Vir- ginia, one Davis. Up to i860, Davis paid his premiums at the office, in Petersburg, Va., of the agent of the company ; and the agent was regularly supplied in advance with proper receipts of the company, to deliver to Davis. After the War of the Re- bellion broke out, the agent refused to receive Davis's premi- ums, though tendered ; and in fact enlisted in the Confederate army. Was the tender sufficient ? A. No. War suspends commercial intercourse between two belligerent countries, and no active business can be maintained either personally, by correspondence or through an agent, by the citizens of one belligerent with the citizens of the other. The _ chief modification is that debts may be paid to the resident agent of an alien enemy, where such agent resides in the same state with the debtor; provided, this must not be done with the view of remitting to the principal during the continuance of the war. But this must be done with the assent of the agent; and in the above instance the agent refused his assent. Insurance Co. v. Davis, 95 U. S. 425. Q. 54. Have you as attorney at law, by virtue of your re- tainer, the power to agree to the entry of a judgment in com- promise of an action against your client ? A. No. While a court might not disturb one, if reasonable, yet the attorney at law as such has no right to make it. Holker v. Parker, 7 Cranch 436. Preston v. Hill, 50 Cal. 43. Q. 55. Bryant and Tewkesbury were merchants, in partner- ship at Philadelphia. They were indebted to one Weymouth. Bryant went to England to dispose of a cargo of tobacco, etc., half of which belonged to him and Tewkesbury; the other half 1 92 LAW STUDENTS' REVIEW to one Richards. Weymouth pressed Bryant for the payment of the debt; whereupon Bryant agreed to sell him forty-five hogshead of the tobacco, to apply on the debt. Accordingly, a memorandum was made specifying the sale to Weymouth; and it was agreed among Weymouth, Bryant and one Williams that it should be sold by Williams as factor and the captain of the vessel was ordered to deliver to Williams. Subsequently Weymouth wrote several times to Williams, to ascertain why the tobacco had not been sold ; and was assured that Williams was waiting to get a better price. Finally he did sell, but re- fused to account to Weymouth because Bryant and Tewkes- bury owed him money for which he claimed a lien. May Williams by reason of the debt due him from Bryant and Tewkesbury retain the proceeds of the goods ? A. No. Where from the nature of the contract, or the clear intent of the parties, a lien would be inconsistent with such con- tract or intent, it will not arise. Here Williams, having notice of the sale or arrangement to sell to Weymouth, can not claim a lien inconsistent with that arrangement. Weymouth v. Boyer, 1 Ves. jr. 423. Q. 56. Proceedings were begun against an executor for an account. In order to defend, it was necessary that the execu- tor should have certain papers belonging to his testator; but they were in the possession of the solicitors who had performed professional service for testator in his life time. For this bill testator had given them his notes of hand aggregating £1,076, payable in three years. This period had not expired when the ex- ecutor demanded the papers, tendering the solicitors £82 which testator had owed them, but for which he had given no note or other security. Must the solicitors surrender the papers ? A. Yes. Taking the notes is inconsistent with retaining a lien. The express agreement giving credit for three years, takes the place of the lien which by law the solicitors would other- wise have; and observe that it makes no difference whether, when the demand is made, the notes are due or not. In either event, the lien is waived. Cowell v. Simpson, 16 Ves. jr. 275. AGENCY 193 Q. 57. One Bishop and the plaintiff were negotiating about the sale of goods belonging to plaintiff. In fact, Bishop was the agent for defendant ; but plaintiff did not know this. Plain- tiff said he would not sell to defendant ; but he sold to Bishop for $4,500; $1,500 being cash, the balance of $3,000 Bishop's notes of hand. Bishop became insolvent. The plaintiff then learned that Bishop had been acting as agent for the defendant; tendered Bishop's notes to defendant, and sued for the balance of $3,000. The lower court held that he could not recover. Is the lower court right? A. The lower court is not right. This is a case of undis- closed principal ; and it was conceded that he could be held, except for the fact that the plaintiff said he would not sell to defendant. But through Bishop's concealment plaintiff did sell to defendant. "Bishop's mind was defendant's mind;" and defendant should be held to respond. Kayton v. Barnett, 116 N. Y. 625. Q. 58. What, if any, is the effect on the foregoing contract, as to Bishop, of disclosing his principal ? A. None. He is still personally liable. If principal is dis- covered, his liability is simply added. 1 A. & E. EncycL. (2d ed.) 1122-4. 13— L. S. Rev. CHAPTER VIII PARTNERSHIP Question I. Holgate and Downer agreed to buy goods on joint account. For that purpose, a third party advanced to them $1,500. Downer contributed $1,000. These amounts were banked to the credit of Holgate & Downer. Holgate was to furnish $700, and to attend personally to buying the goods. This he did not do. He did withdraw $1,500, by a check in his own favor, and thereupon abandoned the enterprise and absconded. Was there a partnership here, between Holgate and Downer ? A. No partnership. An executory contract to form a part- nership is not a partnership ; and that is all there is here. Holgate v. Downer, 8 Wyo. 334. Eowley Partnership, § 221. Q. 2. The owners (as lessees) of an oil lease assigned an undivided three-quarters thereof to two other persons. The assignees agreed to drill two wells at their own expense; as- signors to pay one-fourth operating expenses, and one-fourth of certain bonds due lessor. As to a third well, assignees were to drill it ; assignors to pay one-eighth of the expense. It was further agreed that assignors should be the owners of the full equal one- fourth of all the product (deducting royalty) and of all apparatus placed on leasehold for operating purposes. The assignees entered into a contract with plaintiff to drill a well. Plaintiff drilled it; and sought to recover therefor from assignors as copartners with assignees. Can he sustain this contention ? A. No. Direct participation in profit is the most generally accepted test of partnership; and its absence is ordinarily 195 196 LAW STUDENTS' REVIEW to be regarded as conclusive (at least in a commercial enter- prise) against a partnership. Note that in above case there is no provision for sharing profits, merely for ownership of product. Walker v. Tupper, 152 Pa. St. 1. Compare renting a farm on shares; the landlord and the tenant are not thereby made copartners; or the case of the owner of an hotel, sharing profits but not losses, with his tenant. May v. International &c, 92 Fed. 445. Q. 3. One Samuel H. Watson agreed orally with defend- ants to go into partnership with them in the fishing business on the west coast. Articles were drawn up in writing, setting forth the contract correctly ; but Watson stated that he did not wish to be known in the business; that his son would execute the articles, not he himself; but (he said) he would consider him- self bound thereby. Assume that the son did sign the contract ; but that the son took no further part in the concerns of the firm. That Watson advanced money as agreed and business was conducted; but that he became dissatisfied, and sought to recover back his ad- vances, on the ground that he had himself entered into no binding contract. Can he recover? A. Can not recover. The law will regard the written arti- cles as abandoned — except so far as it is shown that they em- body the agreement of Watson and the defendants. And the law will regard as binding, and will enforce, the oral contract thus proved between defendants and Watson. Watson v. Lovelace, 49 Iowa 558. Q. 4. Plaintiff agreed in writing with defendants as fol- lows: Plaintiff has sold to defendants 2,230 head of steer? (designated) for $36,237.50; defendants to pay part by as- suming a debt owing from plaintiff to another, and by giving their note to plaintiff for balance of purchase price. Plaintiff, to feed cattle, defendants to pay half expense thereof, with interest. Defendants to "assume" half freight on cattle. In case cattle do not sell for enough to liquidate all above expenses then defendants to execute their note for balance to plaintiff PARTNERSHIP I97 Management and disposition of cattle is "vested" in plaintiff. Does above amount to a partnership between plaintiff and defendants as to this cattle venture ? A. Clearly not. Community of profit or loss, even though this be a joint venture, is clearly excluded. Houssels v. Jacobs, 178 Mo. 579. Q. 5. What are the distinctions involved in the terms (a) General partner, (b) Particular partnership, (c) Limited partner. A. (a) One who unites with others for the general purposes of some kind of business. 1 Bates Partnership, § 12. (b) A union of parties for the purpose of carrying through a single individual transaction or enterprise. 1 Rowley Partnership, § 144. (c) One who unites with others for the prosecution of a given business on terms countenanced by law (usually statute) whereby his liability is limited or restricted. 1 Bates Partnership, § 12. 1 Eowley Partnership, §§ 137, 146. Q. 6. Name two important features which distinguish an ordinary general trading copartnership from a joint stock company, and one important point of resemblance between such company and such copartnership. A. Associates in a joint stock company while liable as part- ners (Pettis v. Atkins, 60 111. 454) may transfer their shares (1 Bates Partnership, § 72) ; and ordinarily a joint stock com- pany is not dissolved by the death of a shareholder. 1 Bates Partnership, § 12. Eowley Partnership, § 147. Q. 7. What is the liability to creditors in respect of firm matters of a "dormant" partner? A. A "dormant" partner is liable along with the other part- ners. But, of course, his liability can not be enforced unless he be discovered. It is simply a case of undisclosed principal. 1 Bates Partnership, § 156. 198 LAW STUDENTS' REVIEW Q. 8. Respondents were associates in an unincorporated company known as the Boston and Providence Commercial Stage Company. Plaintiff claimed to be a partner. It appeared that one Robbins, plaintiff's assignor, had received from the company a certificate that he owned two shares of the com- pany. This he had assigned to plaintiff. The members of the association resisted, and contended that he was not a partner. Was he a partner ? A. No. The principle of delectus personarum applies. A company (not incorporated) or a copartnership can not be compelled to receive a stranger into their league. These associa- tions are founded in personal confidence. Plaintiff is only a tenant in common. Kingman v. Spurr, 7 Pick. 235. With, of course, right to an accounting, and to receive his proportionate share after such accounting, of the net firm property. Rommerdahl v. Jackson, 102 Wis. 444. Q. 9. To what extent, if at all, may two corporations enter into a partnership? A. Under the ordinary charter, not at all. But if its charter so provides it may to the extent provided become a partner with another corporation similarly empowered. 1 Bates Partnership, §§ 133, 134. Eowley Partnership, §§ 193-197. Q. 10. At the common law could a married woman enter into a trading copartnership with her husband ? A. Owing to her disability as feme covert, she can not legally enter into such a copartnership. Mayer v. Soyster, 30 Md. 402. Q. 11. An infant plaintiff entered into a trading partner- ship agreement with the defendant who was an adult. The infant supplied $100. The firm went into business; and the $100 was lost in the business. On becoming of age the plaintiff undertook to elect to disaffirm the contract, and brought suit PARTNERSHIP 199 against the defendant, claiming to recover the $100. The $100 was, so far as appeared, never in the separate hands or control of the defendant; though he exercised a joint control thereof along with the plaintiff. Can plaintiff recover? A. He can not recover. The $100, like other partnership property, having been in possession of the two jointly, its expend- iture or loss in business does not, m the absence of an express agreement to repay, make the defendant liable to make it good to the plaintiff. Page v. Morse, 128 Mass. 99. The infant's disaffirmance is executory only; and he can not draw out his original capital, throw the entire loss upon the adult partner, and compel the latter to bear the burden of the loss ; except in the excess of the entire assets of the firm. But see Sparman v. Keim, 83 N. Y. 245. Q. 12. A firm consisting of two partners dissolved. One partner retired; the other took in a new partner, and went on with the business, under the same style. A vendor who had had dealings with the old firm sold goods to the new firm ; but with- out notice of the change. After receiving notice, he sued the new firm; and proved up against their estate, after they be- came bankrupt. % (a) Might he have recovered against either firm originally? (b) Having sued the new firm could he then recover against the old firm ? A. (a) Yes. He had his election to sue either. (b) No. The retiring partner was bound only by estoppel, not jointly with the members of the new firm. Having made his election, the plaintiff is bound thereby, and can not recover against the retiring partner. Scarf v. Jardine, 7 App. Cas. 350. Q. 13. B lent a tailor $1,500 to buy cloth and trimmings on going into business, taking his note of hand therefor, bear- ing interest at 6 per cent, per annum. B's name does not appear in the transaction, nor has he been held out as a partner ; but he 200 LAW STUDENTS' REVIEW has visited the shop frequently, and advised about credits and details of the business. The tailor becomes insolvent, and his creditors seek to hold B as partner. Can they do so ? A. No. Even if to the interest were added a share of the profits, it seems this would not, of itself, as to third persons constitute a partnership. Hefner v. Palmer, 67 111. 161. Q. 14. Appellant, a copartner with appellee, sued to recover $446.01, being one-half the loss in a partnership venture with appellee. In September, 1891, the firm was formed, for the purpose of ginning and dealing in cotton. Appellant agreed to, and did, furnish the capital ; appellee the labor. The losses ag- gregated $892.02. Before any profits were to be shared, ap- pellant's money was to be repaid him. Appellant sued in the lower court for the half of what had been lost out of his capital, and failed in the lower court. Should he have recovered? A. No. The fact that, before any profits were to be divided, his money was to be restored, indicates that the firm was to have the use of the money ; and as it was lost in the using, he can not recover. His money and his partner's labor have been lost. Meadows v. Mocquot, 110 Ky. 220. Q. 15. One Cochran was employed, under written contract, at a salary, by a firm composed of the widow and sole heir of G. H. Cutter, deceased, and Willard Cutter. He claimed $258.28 thereunder ; but he owed a former firm composed of G. H. Cutter and Willard Cutter, $400. At the time he brought his suit, the firm had been dissolved by the death of G. H. Cutter. Assuming that it was succeeded by the firm composed of the widow and Willard Cutter, can the last named firm set off against plaintiff's claim his debt of $400 to the old firm ? A. They may. The claim against plaintiff was a chose in action, which vested in Willard Cutter, as surviving partner; and with the assent of his (new) partner he may set this off against the claim against the new firm. Cochran v. Cutter, 18 Pa. Super. Ct. 282. Stewart v. Morris, 88 Fed. 461. PARTNERSHIP 201 Q. 16. If the partnership agreement or contract be evi- denced by a writing, is it necessary that dissolution be evi- denced by a writing ? A. No. The dissolution may be proved by parol. There is no requirement of law for any particular form or writing to make a dissolution effective. All that is needed is that proof be forthcoming of an intention put into execution. Wood v. Gault, 2 Md. Ch. 433. Q. 17. It is said that the fact that a partner has become insane does not of itself work a dissolution of the firm. Why ? A. Because the insanity may be only temporary; and the partners may or may not wish to declare dissolution or apply for a decree therefor. Sadler v. Lee, 6 Beav. 324. Eowley Partnership, § 583. Q. 18. Keys and Buchanan, along with one Grant, were in the business of buying and selling cattle. For one purchase they gave their bond in the sum of $1,300. Grant was furnished by his partners with the money to pay this; but neglected to do so, and became insolvent. Judgment was by the obligee in the bond taken against all three partners in the spring of 1840 ; and was paid by Keys and Buchanan, but stood unsatisfied of record. In September, 1840, Grant executed a mort- gage on property he owned to secure an individual debt. On a bill by Keys and Buchanan to subject the property mort- gaged to the claim of the partners who discharged the bond, it was contended that in paying it Keys and Buchanan were only paying their own debt, and had no right by way of subrogation to come upon Grant's property. Discuss this contention. A. While as between the partners and the obligee they were all equally bound, and no arrangement between the partners could impair obligee's rights; yet as between themselves, K and B were sureties for the payment by G of the bond. And this equity could not be impaired by G's transactions with strangers. The judgment will therefore be kept alive for the benefit of the sureties, and they will prevail against the subsequent incum- brances. Buchanan v. Clark, 10 Grat. 164. 202 LAW STUDENTS REVIEW Q. 19. A firm consisting of two partners ordered a lot of merchandise; and thereupon dissolved. It was all forwarded before vendor knew of the dissolution. After the dissolution, one of the partners gave a partnership note, providing for at- torney's fees, and interest at 10 per cent, for the goods. As the note was not paid, vendor sued both partners on the note, and on the common counts. Should he prevail ? A. He should prevail on the common counts; but not on the note, assuming that the retiring partner repudiates the note. Of course if he affirms the note, he must be held; but he need not be bound thereby, unless he chooses. If he repudiates, the common counts apply. Goodspeed v. South Bend &c, 45 Mich. 237. Q. 20. Complainant and one Kramer were partners. Oc- tober 1, 1877, they dissolved, and complainant sold out to Kramer, for $150, and the assumption by Kramer of the part- nership debts, and Kramer's agreement to indemnify him there- from. Kramer took the partnership property. It was sufficient to pay the debts. October 18, 1878, Kramer made an assignment for the bene- fit of creditors ; and some of the partnership assets were there- under sold to a purchaser with notice of complainant's inter- est therein. It was also claimed that both assignment and sale were fraudulent; and the fact was that assignee held the money. Complainant had been sued by a creditor of the firm. Can he come upon the money in assignee's hands, to pay the creditor of the firm? A. Of course a partner has a lien in equity on partnership assets, to pay partnership debts; but he may lose this lien by an unqualified sale and transfer. Here complainant, by selling for $150, and assumption of debts, lost his lien; and he has no stand- ing to question Kramer's dealings with Kramer's assignee. Complainant can not come upon the money. Vosper v. Kramer, 31 N. J. Eq. 420. . 0. 21. Where a firm has dissolved, and is succeeded by a new firm, what is necessary to a "novation" ? PARTNERSHIP 203 A. Assent by (1) Original debtor, (2) Persons assuming debts, (3) Creditors. 1 Bates Partnership, § 502. Rowley Partnership, § 562. Q. 22. Distinguish between the legal meaning of the term "good will" as applied (a) to a trading firm, (b) to a professional firm. A. (a) The probability that the old customers will resort to the old place. Cruttwell v. Lye, 17 Ves. Jr. 346. (b) Is not applicable generally speaking to a professional firm ; this is because it is personal as relating to the integrity and ability of an individual. Austen v. Boys, 2 De G. & J. 626. Q. 23. Suppose you pay a substantial sum to be taken as junior partner into a law firm, consisting of three lawyers, in- cluding yourself, under articles of copartnership, in the prac- tice of law in Indianapolis. No term is specified. The sum paid by you is forthwith divided between your seniors; and at the end of a year, one of them becomes president of a mercantile concern in New York, and the other goes to St. Louis to prac- tice law. The firm stands dissolved. Discuss your right to be reimbursed for your payments. A. No reimbursement here. My payment was made with knowledge that the firm might be dissolved by death or act of the parties at any time. In the absence of fraud, I have no right to be reimbursed. See Carlton v. Cummins, 51 Ind. 478. Q. 24. For convenience a trading firm takes title to real estate in the name of one of the partners, who is a bachelor. Subsequently he marries and dies testate, leaving all his prop- erty to his wife. What, if any, claim has the widow to the real estate in question ? 204 LAW STUDENTS REVIEW A. Her claim is only to the share which would have come to her husband after payment of partnership debts, if any, and settlement of partnership accounts. The decedent took title clothed with a trust. Accordingly the wife has no dower claim ; nor has she except as aforesaid any claim as devisee. Bopp v. Fox, 63 111. 540. Trowbridge v. Cross, 117 111. 109. Q. 25. Suppose that Jones, of the dry goods firm of Jones, Smith & Robinson, dies intestate, and the firm with the knowledge of the administrator of the decedent goes on using the firm name. Can decedent's estate be held for firm debts incurred after his death? A. No. The surviving partners can not go on with the busi- ness and charge the estate, for death works a dissolution. Though they attempt to do this, and still use the name of dece- dent, yet the world must take note of the fact that Jones is dead, and that his surviving partners can not bind his estate. Ex parte Garland, 10 Ves. Jr. 110. Kirkman v. Booth, 11 Beav. 273. O. 26. Suppose you enter into copartnership with a brother lawyer for the general practice of the law under written arti- cles for five years. You are to have two-thirds of the profits ; your partner, one-third. At the end of two years you break down in health from overwork; and go away for six months to recuperate. When you come back your partner states that the firm is dissolved as of the date of your departure, as you have not done your share, or any share of the work for the past six months. What would you claim? A. That even a positive agreement to devote one's time to the business is not broken by absence from sickness (Boast v. Firth, L. K. 4 C. P. 1), and that even if this were the case, the dissolution could not be made retroactive. Q. 2J. Suppose again, you, being a member of a firm of attorneys, write a law book, and receive a large amount of PARTNERSHIP 205 ■money therefor from your publisher. Your copartners insist that you must account to them for the same. What do you say to this? A. That I am not liable to account for the profits from the book. The firm is engaged in law practice; and writing books is not, in the absence of special agreement or understanding, an integral portion of a general law practice. Accordingly such profits as I make from this work belong to me and not to the firm. This is especially true as the law book can not be fairly considered to compete with, but might rather be considered as helpful to, the general practice of the firm. 2 Bates Partnership, § 793. Sanderson v. Sanderson, 17 Fla. 820. Q. 28. A and B are copartners in the business of buying and selling boots and shoes. B is away on business. Knowing of the partnership, C makes a fair cash offer to A for the entire stock in trade of the firm, open for but forty-eight hours. A endeavors to communicate with B, is unsuccessful. A then accepts. B returns and desires to repudiate and rescind. May he do so ? A. B could not rescind or repudiate. Selling a part of the stock in trade, or all the stock in trade, is partnership business. Had A attempted to sell fixtures or the good will of the busi- ness, the same might have exceeded his authority as a partner. 1 Bates Partnership, § 403, and cases. Eowley Partnership, § 444. Q. 29. A and B are partners in the grocery business. A is away; and B during A's absence mortgages in the name of the firm the stock in trade and fixtures of the firm, puts the money in his pocket, and absconds. What do you say as to the validity of such a mortgage as against A ? A. Invalid; for the reason that the giving thereof may under such circumstances practically terminate the business of the firm; and for this the assent of both parties is necessary. Osborne v. Barge, 29 Fed. 725. 206 LAW STUDENTS' REVIEW Q. 30. A agrees with his law partner B that no notes of hand shall under any circumstances be executed in the firm name or for the firm account without A's knowledge. B, in the firm name, signs and delivers a promissory note to buy a set of law books. Can the note be enforced against A? A. Yes. While in a nontrading firm 110 general power to execute partnership notes of hand exists — yet if the note be executed for a purpose reasonably incident to the business of the firm, the firm will be bound. Miller v. Hines, 15 Ga. 197. Q. 31. A partner in a trading firm drew on his own firm a forged draft in the name of AB as drawer. He then accepted the draft. Thereupon he procured a bank to discount the draft, and by forging a check in AB's name to the order of said trading firm, withdrew from the bank the proceeds of the dis- count. The bank sought to hold the firm. It was urged that the bank, claiming through a forgery, could not hold the firm. Is the defense good ? A. No. The bank can recover. While in general a firm is not liable for the crime of a partner; yet as a partner issued the paper, the firm is estopped to deny the genuineness of the in- dorsement. Burgess v. Northern Bank, 4 Bush 600. Q. 32. Without the knowledge of his copartners, a member of a trading firm in the lumber business subscribed in the firm name to the capital stock of a sawmill. May his partners refuse to be bound by this? A. Yes. Though the subscription may in fact be for the benefit of the firm, yet such a subscription is not within the implied nower of such partners. See Barnard v. Lapeer, 6 Mich. 274. Q. 33. Discuss the question whether a copartner in a trad- ing firm, not thereto specially empowered, has implied or ap- parent authority to submit to arbitration a claim of or against the firm, and thereby bind his copartners. PARTNERSHIP 207 A. While it was in earlier times supposed that the right of one partner to submit to arbitration and thereby bind the firm was not sustainable (Strangford v. Green, 2 Mod. 228), yet it was later held, especially in view of commercial usage which had grown up, whereby such arbitrations were frequent and unquestioned, that the power exists. Taylor v. Coryell, 12 Serg. & E. 243. Especially is this sustainable if the submission be not re- quired to be under seal. Q. 34. A firm of three New York stockbrokers has a branch house in Chicago, operated on a commission basis by an agent there, who is thereto authorized by a power of attorney exe- cuted by all three partners. One of the partners telegraphs, undertaking to revoke the power and to put an end to the * agency. The Chicago agent telegraphs that he refuses to recog- nize revocation unless all partners join in revoking; and be- fore hearing again makes for account of the firm a large sale which would entitle him to substantial commissions if he is still their agent. Is he on the facts entitled to the commissions ? A. No. Each partner has the power to engage service neces- sary to conduct the partnership business. Carley v. Jenkins, 46 Vt. 721. And each partner, in the absence of dissent of his copart- ners, has a corresponding right to dispense with the services of agents and employes. Q. 35. To what extent, if to any, is a firm liable for the torts of a copartner? A. The firm is liable for the torts of a partner committed within the scope of his agency as partner. But if the tort is not committed in the prosecution or within the scope of the joint business, the partnership relation does not operate to charge the. firm with the act of the individual. See 1 Bates Partnership, § 461. Rowley Partnership, §§ 506-517. Q. 36. A is a member of two copartnerships — X & Co., and Y & Co. He sells beef belonging to X & Co. to Y & Co. ; in payment of his pre-existing debt to Y & Co., representing to 208 LAW STUDEXTS' REVIEW Y & Co. the beef belongs to him. X & Co. sues Y & Co. for half the price of the beef. Discuss the rights of the two firms. A. Buying firm chargeable with A's knowledge. Selling firm parts with value. Buying firm only credits A's account. Only A's equitable share in the beef should be credited on his debt to Y&Co. Gray v. Church, 84 Ga. 125. Q. 37. Four defendants, partners, were auctioneers and commission merchants, in Chicago. Plaintiff was a citizen of New York. Defendants had the custody of certain goods of plaintiff for sale on commission. One Castle, a member of the firm, fraudently sold the goods to an insolvent purchaser. Discuss the question as to whether the firm is liable. A. The firm is liable if the sale was made in the course of the business; and this is true though they may not have con- curred in the act. And this especially is true if they receive the fruits of the fraud in the commissions earned for transacting the business. Castle v. Bullard, 23 How. (U. S.) 172. Q. 38. You form a law firm with another lawyer. A for- mer client of your partner continues his relations by still con- sulting with your partner ; but never consults with you or asks any professional service of you. Your partner examines an abstract of title for the client, signing the firm name to the opinion. He overlooks a judgment which the client has to pay. Can the client hold you, along with your partner, to reim- burse him? A. Yes. Where a client employs an attorney, it is an em- ployment of the firm. Williams v. More, 63 Cal. 50. Q. 39. Assume in the last question that your firm has made the loss good to the client. On an accounting with your part- ner you insist that as the loss occurred through his negligence he shall be charged with the entire amount thereof. He objects. Discuss your right to charge him. PARTNERSHIP 200, A. The rule is that where a partner is guilty of culpable neg- lect, his co-partner may hold him — Grove v. Miles, 85 111. 85 — but not for a mere error of judgment. Here "overlooking" would imply that he was negligent, but you would have to prove it culpable in order to hold him. Eowley Partnership, §§ 382, 383. Q. 40. Consider another instance, somewhat similar to the last: two physicians, X and Y, enter into articles of copart- nership for the practice of medicine. Among other things, the articles provide that should either be sued for malpractice, and recovery had, both shall be answerable to respond to the judg- ment. A patient recovers against X as for malpractice ; and Y refuses to respond out of partnership funds, claiming that the provision above executed is invalid on the ground that X could not contract against his own negligence. Is Y correct in this ? A. No. The partnership funds may be held to pay such a judgment. The rule is that a mere neglect of the interests of the firm without any fraudulent misconduct or wilful and posi- tive refusal to perform duties devolving upon one as a partner will not constitute ground as between the partners for charging A as in above case with the full loss resulting from the mal- practice in question. 22 A. & E. Encyc. L. (2d ed.) 128. Q. 41. Two men enter into partnership for the practice of the law. After they have been practicing a year, one finds that the other never has been licensed to practice. He there- upon refuses to account with the other for the profits of the business, for the reason, as he says, that his partner was prac- ticing illegally. Who shall prevail? If there has been a loss, how shall it be borne? A. The licensed attorney shall prevail. The contract is in violation of law, and can not be sustained. The loss, if any, must be borne by the partner who has in fact sustained it. Tench v. Roberts, 6 Madd. 145. 14— L. S. Rev. 2IO LAW STUDENTS REVIEW Q. 42. A and B are copartners in the grain commission business in Trenton. Each agrees to devote his entire time and attention to the business.' Without A's knowledge, B become. 4 a general partner in another grain commission firm at the same place ; and therefrom obtains profit. On learing of this A de- mands of B an accounting therefor. What do you say as to his right to enforce such demand ? A. He has that right.. If a partner go into competing busi- ness, thus depriving his firm of skill, time and fidelity he owes it, he must account for profits thus made. Todd v. Eafferty, 30 N. J. Eq. 254. Q. 43. A firm of grocers in New York sends a member to Albany to buy out a stock of groceries, instructing him to bid no higher than $5,000. He is outbid. But he buys at $6,000 for himself. His firm assumes to ratify the act, and claims the stock. He claims it for himself. Can he keep it? A. No. His firm has the right to ratify the act, and claim the stock, on reimbursing him his outlay of $6,000. He can not change his relation to his firm, in matters pertaining to the partnership and as to business in hand, without notifying them, and obtaining their sanction. Bergner v. Bergner, 219 Pa. St. 113. Q. 44. X and Y enter into articles of copartnership to buy and sell and deal in futures on a board of trade. The firm makes a profit of $5,000. This comes into the possession of X. He refuses to account to Y on the ground (as the fact is) that the law of the State where the articles were entered into and the business was done, prohibits such business as consti- tuting gambling. Can X sustain his position ? or should Y recover ? A. Y should recover. Even if the business was illegal, that is a thing of the past, and it does not lie in the mouth of X to say that the $5,000 was illegally obtained. Brooks v. Martin, 2 Wall. 70. PARTNERSHIP 211 Q. 45. A agrees verbally with B to go into partnership for the sale of dry goods for three years, each to share equally in the profits of the business. At the end of a year the business shows a loss, which A personally meets. B refuses to go on with the business, and resists a claim to be reimbursed by A for the reasons (a) That the contract was not to be performed within a year, was not in writing, and was therefore void under the statute of frauds, and (b) That there was nothing said as to who should bear the losses, or in what proportion they should be borne by each. Are these contentions sound? A. Not sustainable. (a) The contract, though not in writing, has to the extent of a year at least, been performed; and therefore even if unen- forcible at the outset by reason of the statute, is through per- formance valid. (b) If nothing is said about the matter, the presumption is in partnership matters that losses are to be borne in the same ratio as profits. Flagg v. Stowe, 85 111. 164. Q. 46. A partner in a trading firm stealthily entered the store of the partnership and took valuable goods and con- verted them to his own use. What, if any, crime did he commit ? A. He committed no crime — not even embezzlement. He is not only an agent for the other partners, but is also as respects all partnership matters a principal; and while the manner of his taking the goods is reprehensible — yet as far as any crime is concerned he had a right to take them; and the manner of taking is not material. Lindley Partnership (8th ed.) 529, 530. See Jones v. State, 76 Ala. 8. Q. 47. It is said that the fact that a partnership at will may be dissolved by one partner's giving notice to his copart- ner, does not preclude a resort to equity to obtain a dissolution and settlement. Why is this? 212 LAW STUDENTS REVIEW A. Because a suit in equity is the appropriate remedy for adjusting partnership concerns— and the mere fact of dissolu- tion prior to the entry of a decree dissolving would not con- stitute error, or deprive the court of jurisdiction. Babcock v. Hermance, 48 N. Y. 683. Q. 48. The copartnership articles of a boot and shoe firm explicitly prohibit any partner from indorsing in the firm's name any commercial paper. Nevertheless, without his part- ner's knowledge, one of the members indorses accommodation paper for a customer. Is the firm bound or not? A. Yes. The public has the right to form its opinion of a partner's powers from the nature of the business (here a trad- ing firm) engaged in : and is not bound by a restriction contained in the articles of copartnership. 1 Bates Partnership, § 322. Eowley Partnership, § 418. Q. 49. A and B constitute a firm engaged in cutting and selling lumber. Without A's knowledge, B fells timber on C's land, and in the name of the firm bills, sells and collects pro- ceeds of lumber made from it. He then absconds with the pro- ceeds. Can C hold A for the value of the timber? A. No. The test is : Did A have knowledge of the tort before or at the time of its being committed; or though having no knowledge, did he receive the benefit thereof. In this case, A neither knew of nor was benefited by the transaction. Miller v. Manice, 6 Hill 114, 124. 1 Bates Partnership, § 480. O. 50. It is said that a person not in fact a partner of another may become liable as such by allowing himself to be held out as a partner. On what principle ? A. On the principle of estoppel. If he knowingly allows himself to be held out as a partner and does nothing as oppor- tunity may require or suggest to correct misapprehension, then in case of credit given to the firm with knowledge of such hold- ing out, the partner will not be allowed to deny that he is a partner ; but on the contrary will be held as a partner. 1. Bates Partnership, § 108. See Waugh v. Carver, 2 H. Bl. 235. PARTNERSHIP 213 Q. 51. Certain copartners dissolved, each taking a part of the assets, and each assuming specified debts. B, one of the partners, thus agreed to pay a partnership note due his father. Instead of paying this note, he applied the assets allotted him to paying an individual note he owed his father. Of this the father had notice. The father then sued the partners at law on the partnership note held by him. Can he recover ? A. He can recover. Each partner receives his alloted assets free from any trust — and each had released his lien to have them applied to debts. Each relies on the other's promise; thus the father can recover. Giddings v. Palmer, 107 Mass. 269. Q. 52. A member of a firm of house-movers, without the knowledge of his copartners, gratuitously lent to a customer of the firm a jack-screw which he knew to be defective by reason of a thread that was worn, but such defect could not be discerned except by taking the screw to pieces. The cus- tomer used the screw in raising his house — and by reason of the defect the house fell and was damaged. The customer sued the firm in tort. Can he recover? A. The firm is liable. It appears that it was a customer who borrowed the jackscrew; and the motive for lending the same was undoubtedly to promote the partnership business in securing or keeping the good will of the customer. And as for a tort committed by a person in furtherance of partnership business, the firm is liable. See Witcher v. Brewer, 49 Ala. 119. Q. 53. Under what circumstances, if at all, may a partner sue his copartner at law? A. When there has been a final settlement of the affairs of the copartnership, and an ascertainment, in the nature of an account stated, of the amount due. 2 Bates Partnership, § 849. Of course, in matters not connected with the partnership, one partner may sue another partner at law at any time. Eowley Partnership, §§ 740-757. CHAPTER IX SURETYSHIP Question i. Wherein are surety and guarantor alike? Where- in do they differ ? A. A surety or a guarantor is a person who becomes respon- sible for the debt, default or miscarriage of another, and to that extent they are alike. They differ as to the contract in this 1 — a surety is bound with his principal, usually, though not necessarily, by the same instru- ment, and on the same consideration. The contract of a guar- antor is his own separate undertaking, in which the principal does not join. A surety undertakes with his principal; a guar- antor for the principal. 1 Brandt Suret. & Guar. (2d ed.), §§ 1, 2. Q. 2. In the undertaking of a guarantor for collection of the debt of a third person what is the significance of the word "collection"? A. That the debt shall be collectible by due course of law; and his liability begins when legal proceedings against the prin- cipal debtor have been exhausted. If the debtor be insolvent, legal proceedings against him are not, by the weight of author- ity, deemed necessary. 1 Brandt Suret. & Guar. (2d ed.), § 98. Q. 3. A married woman took a written lease of a house, rental $450 a year, with usual covenants. In consideration of the letting, defendant in writing guaranteed the rertt. The woman went into occupation, and a balance of rent remained due and unpaid to plaintiff. He sued defendant on the guar- anty ; and was met with the defense that the woman's covenant was void, she being a married woman ; therefore the guaranty of the covenant was void. 215 2l6 LAW STUDENTS' REVIEW The nisi prius court overruled the defense, and gave judg- ment to the plaintiff for the balance. Is this correct ? A. Correct. While it is said that a party can not be liable upon a contract of guaranty unless the principal has incurred a legal responsibility (Smith v. Molleson, 148 N. Y. 241) ; yet the rule does not apply to a married woman (Kimball v. Newell, 7 Hill 116) ; or to infants or insane persons. "The disability of the principal may be the very reason why the surety was required." Childs Suret, & Guar., § 131. Q. 4. A surety signs a promissory note and leaves it with his principal upon condition that the principal shall get another to sign before he delivers it to the payee. The principal delivers it without complying with the condition. Assuming that the payee has no notice of the condition, what do you say as to the liability of the surety on the note ? A. That the surety is liable, because the payee is a bona fide holder, having had no notice of the condition. Brandt Suret. & Guar. (2d ed.), § 407. Q. 5. A surety signed a note, leaving the amount blank, and delivered it to the principal. The principal filled the blank with a larger amount than the surety had agreed to become liable for, and delivered it to the creditor, who had no notice of the agreement. What do \ou say as to the liability of the surety? A. Liable for amount written in. The person to whom such a note is entrusted is, as between him and innocent third parties, deemed in law the agent of the person committing it to his care, and to have authority to fill the blank. Fullerton v. Sturges, 4 Ohio St. 529. Q. 6. The Carrollton Cotton Oil Co. overdrew its account with the Bank of Carrollton, in the sum of $948.86. The com- pany thereupon gave its demand note in that sum to the bank. The note was signed "The Carrollton Cotton Oil Co. R. G. Latting, Jr., Sec. & Mgr." by Latting. Latting was a stock- holder in the company, and, as indicated, was its secretary and SURETYSHIP 217 manager. Ten days afterward, at the cashier's request, Lat- ting signed the note individually, and volunteered the statement that he would put up collateral for the company's note. The collateral was afterward put up. This was all the bank required at the time in settlement of the overdraft. Can the bank hold Latting ? A. No. Like any other contract, the contract of suretyship requires a consideration. Here it appears that the signing by Latting was subsequent to the taking of the note; and there was nothing in the nature of a consideration shown. That trans- action was separate and distinct from the settlement of the over- draft ; and amounts merely to a nudum pactum. Bank &c. v. Latting, 37 Okla. 8. Q. 7. Plaintiff desired to purchase leather on credit from one Poland. Poland would not give the credit without a guar- anty. Accordingly, at plaintiff's request, defendant orally, but not in writing, guaranteed the payment by defendant. Subse- quently, plaintiff having paid only a portion of the account, de- fendant, at Poland's request, paid the balance; and this not- withstanding plaintiff forbade defendant to do so. Plaintiff sued defendant on another transaction; and de- fendant sought to set-off what he had thus paid Poland for account of plaintiff. Assuming that Poland, by reason of the statute of frauds, could not, had the statute been pleaded, have recovered of de- fendant; still has defendant the legal right to make good his guaranty, and charge plaintiff with the amount ? A. Plaintiff can not force defendant to plead the statute, and defeat Poland's claim. The statute is intended to protect guarantors against being made liable, through false testimony, for the debt of another. But as between the original debtor (plaintiff) and his guarantor (defendant) the statute can have no operation. Beal v. Brown, 13 Allen 114. Similarly where" the surety pays money for account of an- other on a replevin bond, it is no defense on the part of the principal obligor that the plaintiff knew that the replevin suit was groundless and malicious. Smith v. Bines, 32 Maine 177. 2l8 LAW STUDENTS' REVIEW Q. 8. A sued B, an administrator, and C, his surety, for the distributive amount of an estate which was due him. Serv- ice could not be had tin B ; but judgment was obtained against C, and C paid it, and afterward sued B for money paid out in his behalf. Can he recover? A. Yes. There is such an implied assent from C to B as will maintain the action, and although B was not a party to the judgment, the record is prima facie evidence of the amount due. Snider v. Greathouse, 16 Ark. 72. Q. 9. A father, whose son desired to purchase goods, agreed orally with the seller that if the seller would let the son have the goods he, the father, would see the debt paid or would pay it himself, if the son did not. Seller furnished the goods to the son. Was the father liable ? Why ? A. Yes. His undertaking was an original one, and not within the statute of frauds. Baldwin v. Hiers, 73 Ga. 739. Q. 10. A contractor says orally to a boardinghouse-keeper, "If you will board the hands of John Smith, my subcontractor, I will see you are paid." What do you say as to the liability of the contractor for the board ? A. He is liable. The undertaking is for the contractor's own debt — a pledge of his own credit, not within the statute of frauds. Grant v. Wolf, 34 Minn. 32. Q. 11. A wrote B as follows: "Anything you can do for the bearer, Major S. M. Neill, whom I introduce as my friend, will be done for me. P. S. If you accept for Mr. Neill for $1,000, I will be bound by this note." Thereupon B guaranteed two drafts of Hardesty & Neill. Is B liable on the guaranty ? A. No. The undertaking was personal as to Neill. A might have been willing to become surety for Neill, and not for Hard- esty & Neill. 1 Brandt Suret. & Guar. (2d ed.), § 118. SURETYSHIP 219 Q. 12. A note signed by three parties contained the fol- lowing, "We, severally and jointly, all as principals, promise to pay." For good consideration the first signer, without the knowl- edge of the other two, secured an extension. In a suit on the note the other two offered to prove they signed as sureties only and claimed to be released by the ex- tension. What do you say as to the rights of the parties claiming to be sureties ? * A. They are estopped by the language of the note from showing they are sureties, and availing themselves as such, of the right to discharge on account of the extension. Childs Suret. & Guar., § 141. Q. 13. A owes B upon a promissory note. C verbally prom- ises B that if B will surrender the note to A, he (C) will pay the debt. B surrenders the note and sues C for the amount. Can he recover? A. Yes. By the arrangement the debt of A is extinguished and C's promise becomes original. Anson Contr., § 97(d). Q. 14. January 1, 1887, Hornet bought of Sherman two judgments against one Robbins, $592.38 being unpaid thereon. He also loaned Sherman $266.62. To secure the payment of the balance on the judgments and the loan, he took Sherman's bond in the sum of $859 conditioned that this balance should be paid. On this he entered judgment. Other lien creditors of Sherman, while conceding Hornet's right to make, on execu- tion, the $266.62 which he had loaned, maintained that because he had failed to revive the Robbins judgments, Sherman was released, and that they, as Sherman's creditors, should be pre- ferred to Hornet. Assuming that loss did occur through lapse of the Robbins judgments, can the other lien creditors prevail over Hornet? A. This depends on whether Sherman in respect to the Rob- bins' judgments, is a surety or a guarantor. If he was a surety the mere failure of Hornet to revive the judgments, though 220 LAW STUDENTS REVIEW prejudicial, will not discharge Sherman. But if Sherman was a guarantor of Eobbins's debt, then the remedy of Hornet against Eobbins must be exhausted before he can come upon Sherman. In the above case the giving of the bond by Sherman made him a surety; Hornet lost no rights against him, and therefore none against his creditors; and should prevail. Campbell v. Sherman, 151 Pa. St. 70. Q. 15. A was principal, B was surety, on a note of hand. The creditor took separate judgments against them. After the judgments were taken, the creditor, for a valuable considera- tion, agreed to give the principal six months to pay his judg- ment. Would the liability of the surety be affected ? A. Surety would be released. The taking of the judgments does not extinguish the relation between the principal and surety. Mfr.'s Bank v. Bank &c, 7 Watts & S. 335. Q. 16. A owed B $2,000 secured by his note with a warrant of attorney to confess judgment, also secured by two notes of $1,000 each, given by C and D respectively as collateral to the. note of A. B entered his judgment on the warrant of attor- ney, and levied execution upon property of A, worth $1,000. Subsequently he released the levy and withdrew the execution. Had this any effect, and if so, what, upon the obligations ofCandD? A. It released C and D to the extent of $500 each. The creditor is bound to hold properly all securities on behalf of the guarantor, or to apply them properly. Story Contr. (4th ed.), § 872. Q. 17. A wrote to B the following letter: "Dear Sir : Any drafts that you may draw on C. F. of our city we guarantee to be paid at maturity." (Signed) A. A bank, relying on this letter, discounted a draft drawn by B on C. F. The draft was not paid and the bank sued A on the guaranty. Can it recover? SURETYSHIP 221 A. No. The guaranty is special, and is not assignable be- fore liability attaches. Besides, in the hands of an assignee it requires consideration. Evansville &c. v. Kaufmann, 93 N. Y. 273. Q. 18. McClaughry borrowed $300 from plaintiff, and gave plaintiff his note for that amount. No time of payment speci- fied. At the time the note was given, McClaughry promised to get his father to sign the note as surety, if plaintiff should so desire, or should deem himself insecure. A few months thereafter, plaintiff desired the additional security; and thereupon McClaughry procured his father for accommodation of him, McClaughry, to sign the note. He then redelivered it to plaintiff. No new consideration then passed between McClaughry and plaintiff, or to the father. Can the father be held? A. He can be held. Had the note been accepted without fur- ther condition as to procuring a surety, and had an additional indorser been obtained before the note matured, then the en- dorsement would have been without consideration, and the indorser would not be bound. But McClaughry having orig- inally promised that he would get his father to indorse, and having obtained the money upon that assurance, the additional endorsement was thereby based upon a valid consideration, and the father may be held. McNaught v. McClaughry, 42 N. Y. 22. (But note that two J J. dissent.) Q. 19. Assume that the statute, as to a criminal recogni- zance, requires that an accused person who has been committed to jail, shall recognize with two sureties ; but that accused is let to bail with only one surety; and that such surety seeks to de- fend against the recognizance on the ground that the statute is not complied with, and therefore he, the surety, can not be held. Is the defense sound? . A. Unsound. The law requiring two sureties was not en- acted for the benefit of the persons accused of the crime, or of their sureties — it was enacted for the security of the state. While it is true that the state officials charged with the duty of taking the recognizance should have insisted on a compliance 222 LAW STUDENTS REVIEW with the statute; yet their misconduct in not requiring addi- tional security will not deprive the state of the security which was given. State v. Benton, 48 N. H. 551. Q. 20. Suppose a constable's bond instead of running, as the statute provides, to the county of Nodaway, in the state of Missouri, is made to run simply to the state of Missouri as obligee ; and assume that for this reason the same is not good as a statutory bond ; but that it was voluntarily executed for a valuable consideration, and, independent of the statute, is com- plete. Is it good at common law ? A. Yes. (State v. Horn, 94 Mo. 162.) In its political capac- ity, the state of Missouri has a right to enter into a contract or to take a bond; and this is true although no provision had been made by statute for the form of the bond. The right is incident to the general right of sovereignty. U. S. v. Tingey, 5 Pet. 115. Q. 2i. Complainant, the owner of lot No. 29, Fourth street, New York city, gave defendant, Pike, his bond and mortgage in the sum of $3,000 payable in three years with semi-annual interest. This was in 1839. In 1841, complainant conveyed the mortgaged premises to McLean subject to the mortgage, which McLean agreed to pay, and the amount of which was deducted from the purchase money. Later in the same year, McLean conveyed to defendant Towle, on like terms. After the mortgage fell due, complainant called upon Towle to pay it. Towle neglected to do so; and complainant there- upon obtained a decree requiring Towle to pay the bond; and also giving a remedy against Towle to McLean, in case Mc- Lean should be required to pay the bond. Is this correct? A. Correct. As to complainant, McLean and Towle are the principal debtors. As between McLean and Towle, Towle is the principal debtor, and McLean is his surety. While it is true that McLean was the person who had agreed directly with the com- plainant to pay the mortgage — yet as Towle had entered into SURETYSHIP 223 a similar agreement with McLean and was the owner of the mortgaged premises, he was, in equity, as between himself on the one hand and complainant and McLean on the other, pri- marily bound to pay the mortgage. Marsh v. Pike, 10 Paige 595. Q. 22. A builder agrees in writing with a dock company to do certain work, to be begun twenty days after notice, and to be completed within twelve months from commencement. He agrees to provide all materials and labor; and is to receive £52,200. The engineer of the company is to be the sole judge of the work, and, in case of the builder's failure to perform, is to employ competent persons to finish. The agreement pro- vides payment, for three-quarters of value of work done every two months, for remaining one-quarter, after completion. The builder becomes embarrassed financially, and to enable him to go on the company pays him for work done, a sum about £13,000 in excess of the value of the work done — but not in excess of the sum of £ 52,200 agreed upon for the whole work. Notwithstanding this, the builder is unable to complete ; and the company, at a cost of £7,000, itself completes the work. The builder had given bond with sureties, conditioned that the builder should well and truly perform, etc. Are his sureties liable ? A. No. It was urged that assisting the builder to perform, by paying him more than the contract required, not only helped him, but necessarily was of advantage to the sureties. But it was held that the sureties had a right to insist that payments should be made in accordance with the contract; and that, even though thought to be beneficial to them, no arrangement differing crom the contract can be forced upon them. Calvert v. London &c, 2 Keen 638. Q. 23. The Cambridge Savings Bank held a demand note, as to which decedent had been surety, bearing date October 16, 1871, for $6,000, drawing interest at 7^2 per cent, per annum, payable semi-annually. Some years after the date of the note, the treasurer of the bank, having authority to do so, wrote a memorandum on the back, "Rate of interest to be 6j^ from Oct. 10, 1876." Decedent's executor was sued. He claimed 224 LAW STUDENTS REVIEW that the change of interest, though for a less amount, was a change in the terms of the contract, and a material alteration of the note. Assuming the above change was made without the consent of the surety, is he thereby discharged ? A. Not discharged. The contract (to pay the $6,000) was not affected; nor was any extension granted. The change in the rate of interest was not and could not be prejudicial to the sureties — any more than would be an indorsement of payment of principal (whether paid or not). It was necessarily beneficial to the parties bound by the note. Cambridge &c. v. Hyde, 131 Mass. 77. Q. 24. A contractor agreed to execute the fittings of two floors of plaintiff's warehouse according to certain specifica- tions. The contractor agreed to provide a good, dry and well- heated store to receive the fittings, as completed; and plain- tiff agreed to insure the same, deducting the cost of insurance from contract price of £3,450. During the progress of the work and in accordance with the agreement, plaintiff paid the contractor £1,800; and fittings to the value of £2,300 were placed in the store. The plaintiff neglected to insure; and a fire destroyed the fittings. Assume that defendant Shuttleworth guaranteed the per- formance by the contractor of the entire contract; that the contractor became insolvent, and failed to perform; and that plaintiff thereby was damaged in the sum of £2,140. And further assume that defendant, when he gave his guaranty, did not know of or rely on the agreement to insure ; can defendant escape liability for failure of contractor to perform? A. Defendant can escape. As the agreement to insure was broken, the surety was released, even though he did not know of or rely on the agreement to insure. The right of a surety de- pends rather on equitable principles than on actual contract. Plaintiff omitted to do an act which he should have done. If he had done it, defendant would have been relieved to the extent of the amount of the insurance. The omission was injurious to the surety, and he is discharged. Watts v. Shuttleworth, 7 Hurl. & N. S53. SURETYSHIP 225 Q. 25. Assumpsit on a promissory note which defendant had signed as surety. Plea that he, being such surety, urged the plaintiff to proceed immediately to take measures to col- lect from the principal maker, who was then solvent ; that if plaintiff had done so he might have obtained payment; but plaintiff neglected to proceed until the maker had become in- solvent and left the state, whereby plaintiff was unable to collect. Is the plea good ? A. The plea is good. While mere delay in calling on the principal will not discharge the surety; yet upon request to take measures to collect, the plaintiff is bound, if he wishes to hold the surety, to proceed. Of course the surety may pay the note himself, and sue the principal ; but he is not bound to do this. Pain v. Packard, 13 Johns. 174. Q. 26. For one dollar in hand paid defendants, Davis & Erwin, they guaranteed Wells Fargo, unconditionally and at all times, any indebtedness of Gordon & Co. up to $10,000 for any overdrafts on Wells Fargo. Assuming that a considerable amount became due from Gor- don & Co. hereunder; that their account was closed; but that no notice was given to Davis & Erwin either of the closing of the account, of the amount due thereon, of demand on Gordon •& Co., or of their failure to pay; but that there is no showing of actual damage to defendants. Can Davis & Erwin be held by Wells Fargo under above guaranty ? A. Yes. The words "unconditionally and at all times" amount to a waiver of such notice. Moreover, while it is true that if the notice be not given, and loss thereby ensue to the guarantor, he may, in case he has not waived notice, be dis- charged — yet both failure to give the notice, and such loss, must concur to discharge him. Davis v. Wells Fargo &c, 104 U. S. 159. Q. 27. A sues C as surety upon the bond of B, his clerk, to recover $1,500 which B has misappropriated. C pleaded that after the execution of the bond and before the misappropriation 15— L. S. Key. 226 LAW STUDENTS' REVIEW in question A had detected B in misappropriating money ; had allowed B to replace the money; and had concealed the mis- conduct of B from C, surety. A demurred to the plea. Is the demurrer good? A. Demurrer well founded. Such conduct on the part of A would discharge the surety. It constitutes a defense to the suit of A. It is A's duty to inform the surety of the clerk's dis- honesty. Addison Contr. (11th ed.) 1092. Q. 28. Principal and surety execute a note to a married woman for land. She alone attempted to convey to the princi- pal ; but her conveyance was void. Afterward she died, leav- ing her property, by will, to her husband. The principal be- came insolvent. After the note became due, discovering that his title was bad, the principal applied to the husband who made him a valid deed for the land. Was the surety liable on the note ? A. Yes. The principal having received the consideration could not repudiate the note. The surety executed the note for the purpose of purchasing the land. It was used for that pur- pose and the surety was bound. 1 Brandt Suret. & Guar. (2d ed.), § 114. Q. 29. Plaintiff held the notes of hand of a corporation indorsed by defendant. The corporation became insolvent; this compelled defendant to go into insolvency. Plaintiff thereupon presented its claim against defendant's insolvent estate and received a dividend thereon. Subsequently, plaintiff along with nearly all the other creditors of the insolvent corpo- ration, signed a composition agreement, whereby plaintiff con- sented to accept stock of a reorganized company in payment of its claim, and whereby it assigned such claim against the insolvent company; but on signing added the words "reserv- ing all right against (defendant) or against his estate or assignee for the benefit of his creditors." Defendant was sued by plaintiff for balance due by reason of the indorsement ; de- fendant claimed that by assigning its claim against the prin- cipal debtor, the plaintiff discharged the defendant, he being, SURETYSHIP 227 of course, only a surety. Plaintiff asserted, however, that the reservation preserved its rights against defendant. Discuss the law here applicable. A. The reservation is sufficient to effect the object sought. There have been decisions to the contrary; see Eockville &c. v. Holt, 58 Conn. 526-531; but the grounds upon which an agree- ment to give time, for instance, to the maker of a note, is held to discharge indorsers, is this, that the holder thereby impliedly stipulates not to pursue the indorsers, or to seek satisfaction from them in the intermediate period. Accordingly, if the right of the holder in such intermediate time against the indorsers is reserved, they will not be discharged. The very ground of their objection is removed; for their right against the maker if they should take up the note, is not postponed. Hagey v. Hill, 75 Pa. St. 108. Q. 30. A and B were sureties for C on a bond for $500 to D. A desired to be released from his liability. D, thinking B sufficient security, gave A a deed of release from the bond. C failed to meet his obligation ; and D consults you about bring- ing suit against B. What would you advise ? A. That a release to A was also a release of B, and that he has no remedy. 1 Story Eq. Jur., § 112. Q. 31. Williams gave his note to Johnson for $135, with Meyers as surety. When the note fell due, Williams was not able to pay it. Meyers settled the note for $100, and caused Johnson to assign it to him. Afterwards Meyers sued Wil- liams for the full amount of the note. How much, if anything, can he recover? A. Meyers can recover the amount he actually paid for the note, with interest and costs, and no more. Story Agency, § 211. Q. 32. A and B are cosureties on a debt of C to D of $12,000. C fails to pay. A is compelled to pay to D $8,000, and begins action against B for contribution. What amount is he entitled to? 228 LAW STUDENTS REVIEW A. He can compel B to pay him $2,000, the amount paid by him in excess of one-half of the debt. The obligation of one of the two cosureties is to pay the whole debt ; if he does so he may recover of his cosurety one-half ; if he pays less than the whole debt, he can only recover from his cosurety the amount he has paid in excess of the half. Morgan v. Smith, 70 N. Y. 537. Q. 33. A, B and C were sureties on the note of D. Judg- ment was obtained on the note for $300. A settled the judg- ment for $100, and sued B and C for contribution. What amount, if any, can he recover and why? A. He can not recover anything. This for the reason that he has not paid more than his share. Fletcher v. Grover, 11 N. H. 368. Q. 34. X and Y, at different times, by two several instru- ments, without the knowledge of each other, became sureties to Z for R for the same debt. X's bond was in the penal sum of $10,000, Y's was in the penal sum of $30,000. R defaults in the sum of $10,000, and Z sues X on his bond and compels him to pay the amount thereof. Has X under the circumstances any remedy against Y? If so, what? A. He can compel Y to contribute. The rights and obliga- tions of sureties inter sese are the same, whether bound in one or several like obligations; where there are several distinct bonds, in different penalties, they are bound to contribute in proportion to the amount of the penalties of their respective bonds. Armitage v. Pulver, 37 N. Y. 494. Cosureties are entitled to right of contribution when bound for the performance by the same principal of the same obliga- tion, and whether they became so at the same time or at differ ■ ent times, by one or several instruments, even if bound in differ- ent sums, or even if each is ignorant that the other is a surety. The obligation of cosureties to contribute to each other has grown out of the rule that equality is equity. It is not founded on the idea of a contract between the sureties. Aspinwall v. Sacchi, 57 N. Y. 331. SURETYSHIP 229 Q. 35. Bail is given in a civil case. After bond is signed, the legislature abolishes imprisonment for debt. Is the surety liable on the bond? A. No. When the imprisonment is no longer lawful, it would be unlawful for the bail to arrest his principal for the purpose of surrendering him. Kelly v. Henderson, 1 Pa. St. 495. Q. 36. Plaintiff, being an accommodation indorser, took up the note of the defendant, not by paying money, but by giving his own note for $6,000. This was accepted by the holder of defendant's note as payment in full. Thereupon plaintiff sued defendant for $6,000. Defendant showed at the trial that plaintiff had not paid the note which he, plaintiff, had given to take up defendant's note. Does this constitute a defense? A. No defense. The payment of money is not necessary to the extinguishment of an obligation. So long as the giving of the plaintiff's note operated to extinguish the defendant's debt on his note, it is a matter of no consequence to defendant whether plaintiff pays the note or not. Accordingly, plaintiff's action will lie. Stanley v. McElrath, 86 Cal. 449. Q. 37. Defendant signed a note with one Livermore. On the face of the note defendant appeared as principal; but he was, in fact, a surety. Livermore brought the note to plain- tiff, and asked plaintiff if he would sign it with him (Liver- more) and defendant. Plaintiff did sign, but added to his signature the word "surety." The note was thereupon discounted; upon maturity it was renewed; and defendant and plaintiff both signed as before, plaintiff again adding the word "surety" to his signature. Was plaintfff surety for, or cosurety with, defendant? A. He was surety for defendant. Defendant put his note on the market to raise money, promising with Livermore as joint principal to pay the note. If Livermore fails to pay the whole note, defendant must pay it — for this is just what his contract requires. Testimony outside the note, as long as it does not 230 LAW STUDENTS REVIEW contradict the terms of the note, is admissible to show the rela- tion of the parties. It should be observed, however, that in the absence of such evidence, plaintiff had the right to assume that defendant stood in the relation of coprincipal with Livermore; and not as surety for Livermore, or cosurety with himself, plaintiff. Sherman v. Black, 49 Vt. 198. Q. 38. A recognizance was taken for the appearance of one Williams on a criminal charge. Williams absconded and did not appear, and his recognizance was forfeited, and $10,000 collected thereunder from his sureties by the government. Assuming that Williams has any property, may the sureties collect therefrom? A. No. Without an express contract of indemnity a surety on a recognizance for the appearance of a person charged with committing a criminal offense against the laws of the United States, can not maintain an action against the principal to recover any sums he may have been obliged to pay by reason of forfeiture of the principal; and he is not entitled to be sub- rogated to the rights of the United States, and to enjoy the benefit of the government priority. United States v. Ryder &c, 110 U. S. 729. Q. 39. After a surety signs a bail bond, his principal vol- untarily enlists in the United States army. What effect, if any, will this have on the contract of the surety ? A. None. The voluntary act of the principal will not be allowed to release the surety. State v. Eeaney, 13 Md. 230. But if principal is drafted, surety is discharged. Alford v. Irwin, 34 Ga. 25. O. 40. One Pearson offered plaintiff as surety for one-half of a loan of £250 from defendant. Castles was surety for the other half. Accordingly two notes, one signed by Pearson and the plaintiff, the other by Pearson and Castles, were given de- fendant. In addition, Pearson mortgaged his furniture as se- curity. Defendant was Pearson's landlord. Four years after the above transaction, Pearson being in arrears for rent, de- SURETYSHIP 23I fendant distrained and took possession of the furniture. In- stead of selling it, defendant took it at an agreed valuation of £116 to apply on rent. Is there anything here of which the plaintiff can complain? and if so, whet? A. Plaintiff may complain that he should have been given the benefit of the value of the furniture. Owing to the equitable relation between the parties, a surety is entitled to the benefit of the security which the creditor has against the debtor, and which the creditor makes available. And this is true, whether the surety knows of the security or not. Pearl v. Deacon, 1 De. G. & J. 461. Q. 41. A note was signed under the following circum- stances: Gibbs and Daily called upon plaintiff; Gibbs asked if plaintiff wanted to sell his mare. Plaintiff said he did. Gibbs inquired the price. On being told it was $60, he asked if plain- tiff would take Daily's note if he, Gibbs, would sign it and see it paid. Plaintiff assented.' Gibbs, who was anxious to go home, said Daily might go with plaintiff and see the mare, and if she suited him, he might fetch her back with him, and draw up a note, which Daily might sign; and the first time he, Gibbs, went to town, he would sign it. The mare was de- livered to Daily, who signed a six months' note. This was afterward indorsed by Gibbs. Plaintiff brought an action in assumpsit against both Gibbs and Daily for goods sold, tendering the note back on the trial ; and had judgment against both. Can the judgment stand? A. Judgment should stand. The matter hinges upon the question whether from the above conversation both Gibbs and Daily are joint debtors for the mare; or whether Daily is the primary debtor, and Gibbs is only surety for him. It is compe- tent for a jury to infer from the above talk, that credit was extended to both, as principals. Gibbs v. Blanchard, 15 Mich. 292. Q. 42. The Butchers and Drovers' Bank sued one Brown as indorser of a bill of exchange. It appeared that the indorsement was made with a lead 232 LAW STUDENTS REVIEW pencil, in figures: "1. 2. 8." no name being written; though there was evidence strongly tending to show that the figures were in Brown's handwriting, and that he meant they should bind him as indorser. He was able to write. The jury was instructed that if they believed the figures were made by Brown as a substitute for Brown's proper name, he thereby intending to bind himself, he is liable. Is this correct ? A. Correct. A person may become bound by any mark or designation he thinks proper to adopt, provided he use it as a substitute for his name, and intends to bind himself. Brown v. Butchers' &c, 6 Hill 443. Q. 43. Hershey had a judgment entered in 1850; and Cot- trell a judgment in 1852, both against one Bowers. Bowers's property was advertised for sale, in 1852, on execution under Hershey's judgment; and Hershey agreed to stop the sale, if Bowers would give him security for the amount of the judg- ment. Accordingly Bowers gave Hershey his note of hand, indorsed by one Pusey. Hershey stated that he received the note as a payment of his claim ; he discounted the note and got the proceeds. Nothing was then said about assigning the judgment to Pusey; but on inquiry of Bowers as to satisfying judgment, he suggested that it remain as it was. Pusey had to pay the note; subsequently he procured from Hershey an as- signment of the judgment, and claimed payment out of the pro- ceeds of the sale on the Cottrell judgment. Cottrell resisted. Should Pusey or Cottrell prevail ? A. Pusey. It was claimed that the Hershey judgment was extinguished; but though it was paid, it was not extinguished. In order that Pusey should be subrogated, he must pay it; for substitution of a surety will not be allowed where anything remains due the creditor. But it was not satisfied of record; was finally assigned; and is available to Pusey as indemnity. Cottrell 's Appeal, 23 Pa. St. 294. Q. 44. Defendant Morrill was appointed guardian of a minor. One Bates signed his guardianship bond as surety ; and to secure Bates, Morrill executed a mortgage, securing his, SURETYSHIP 233 Morrill's, note of hand for $6,500. Bates died testate and in- solvent. Morrill also died insolvent, owing the minor $3,300. The minor filed a bill in equity, to be substituted to the right of Bates by virtue of the mortgage, prior to the other creditors of his estate. Can the minor thus be subrogated? A. Yes. The assignment of security by the principal to his surety operates as an appropriation of funds to the ultimate discharge of the debt for which he is holden. Accordingly, even though the surety, after the assignment of the security, became insolvent, he holds the security in trust for the creditor. Morrill v. Morrill, 53 Vt. 74. CHAPTER X NEGOTIABLE INSTRUMENTS Question i. W. P. Ritchie drew a check as follows: "Camden, Arkansas, November i, 191 1. Pay to John J. Lentz or order $2,000.00. (Signed) W. P. RITCHIE." This check was drawn on the Merchants and Planters' Bank of Camden, June 29, 191 1, and was certified by the bank. "Certified for $2,000, 6/29/1911. A. C. Power, Cashier." The check was taken in the ordinary course of business, for value, by a Columbus bank, without notice. On July 1, 191 1, W. P. Ritchie and John E. Ritchie entered into a con- tract, whereby Lentz agreed to sell them certain stock and bonds, and the check was put up with a third person as se- curity for the faithful performance of the contract. On fail- ure of the Ritchies to perform, the third party was to deliver the check to Lentz, for his damages. They did not perform; the check was delivered to Lentz, February 23, 1912. He got credit for it at the Columbus bank, and, before receiving any notice of any infirmity of the check, the Columbus bank had paid out the money to Lentz. W. P. Ritchie undertook to stop payment of the check, con- tending that being payable at a future time, it was an inland bill of exchange. Is his contention sound? A. Unsound. The word "certify" imports an absolute prom- ise on the part of the Merchants &c. Bank, to pay the check on presentation after November 1, 1911. Merchants &c. v. New &c, 116 Ark. 1. Q. 2. In the foregoing question, what difference does it make whether the instrument be construed as a bill of ex- change or not? '235 236 > LAW STUDENTS' REVIEW A. In this: In case of an assignment, good either at law or in equity, of an entire chose in action, assignor can not interfere to defeat the rights of the assignee. But assignor can not split up his chose, and require, without the assent of his debtor, that the debtor shall pay a number of different persons. Mandeville v. Welch, 5 Wheat. 277. A bill of exchange represents an entire chose; a cheque indi- cates splitting up a fund, to which the bank of deposit has assented. Q. 3. Suppose the "check" in question had been dated June 29, and had read, "Pay to John J. Lentz or order $2,000 on November 1, 191 1." Discuss the question whether in this form it is a bill of ex- change, and not a check. A. By New York law, it would then be a bill of exchange, not being immediately payable as is an ordinary check. But in Connecticut, it seems, the instrument would be treated as a check. Bowen v. Newell, 8 N. Y. 190, s. c. 13 N. Y. 290. Q. 4. "$17.14. Bridgeport, Jan. 22, 1863. Due Currier & Barker seventeen dollars and fourteen cents, value received. Frederick Lockwood." Is the foregoing a promissory note ? A. While from the above, the law will imply a promise to pay, yet the promise is implied, not express. The distinction is, does the writing contain a mere acknowledgment of debt; or is there an express agreement to pay it? Above is only an acknowl- edgment ; hence not a note. Currier v. Lockwood, 40 Conn. 349. Q. 5. "Sac City, July 18, 1857. Mr. Strobe, Please pay the bearer of these lines two hundred and thirty- six dollars, and charge the same to my account. E. D. Wheatley." Is this a bill of exchange? A. "Please" is a mere term of civility; does not (here) imply asking a favor. And as no time is specified, the law assumes payment at sight. It is therefore a bill of exchange. Wheatley v. Strobe, 12 Cal. 92. NEGOTIABLE INSTRUMENTS 237 Q. 6. Action by acceptor of a bill, against defendant Neal, who banked the same and got the money. Plaintiff, acceptor, ordered it paid ; and it was paid. The bill read : "Leicester, i February 1761. Sir : Six weeks after date pay Mr. Rogers Ruding or order forty pounds value received, for Mr. Thomas Plough for as advised Sir by your humble servant Benjamin Sutton." It was addressed to Price, and by him accepted. The de- fendant took it for value without notice — but the bill was a forgery; and plaintiff sued for money had and received to his use. Shall he recover ? A. He can not recover. Before he accepted the bill it was his business to assure himself that it was genuine. It was not defendant's business (as between him and plaintiff) to inquire. "Whatever neglect there was, was on his (plaintiff's) side" — and he must bear the loss. Price v. Neal, 3 Burrow 1354. O. 7. A draws a bill on B payable to C's order. C is a fic- titious person. B accepts in ignorance of this fact. A then in- dorses the bill in blank in C's name and discounts it with D, who has notice of the fact that C is fictitious. What are the rights of D against B ? A. D can not recover. No title can be made to a bill through the indorsement of a fictitious or non-existing person, unless the party sued is estopped from setting up the fact. Phillips v. Mercantile &c, 140 N. Y. 556. Q. 8. Plaintiff counted on a promissory note by its terms payable at New York, in New York funds or their equivalent. Demurrer, on the ground that to be negotiable a bill or note must be for the payment of money; and "that New York funds or their equivalent," does not, in legal contemplation, mean "money." How should the demurrer be decided ? A. Sustained. The equivalent of New York funds would or might be their value in specie, or in current paper which passes 238 LAW STUDENTS' REVIEW at a discount — and this raises the query, might not the drawer pay in such paper? Hasbrook v. Palmer, 2 McLean 10. But note Keith v. Jones, 9 Johns. 120, where it was held (in New York) that "New York state bills or specie" means money. Q. 9. Are the words (a) "for value received" — (b) "or order" necessary to the negotiability of an instrument? If not, what purpose, if any, do they serve? A. (a) Unnecessary, as the instrument itself imports a con- sideration. Moses v. Lawrence &c, 149 U. S. 298. (b) The exact words are not necessary; but some words must be used to indicate that the engagement to pay is not restricted to payee alone ; e. g. "to A and his assigns" is sufficient. Wilson &c. v. Third &c, 103 U. S. 770. Q. 10. What is the result, in a bill or note, of leaving out "or order"- — or other words of negotiability? A. Anyone who takes the paper, takes it subject to all equities existing between the original parties. In other words, the assignee stands in no better position than his assignor. Maule v. Crawford, 14 Hun 193. Moreover, non-negotiable paper merely amounting to the assignment of a chose in action, a suit at law must be brought in the name of assignor, for use &c. (of assignee). Q. 11. (a) K gave his promissory note for $500 for value received; but the holder neglected to enforce payment until his right of action was barred by the statute of limitations. A year later he gave a new note for and on account of the same matter which was the consideration for the first note. (b) Y gave his promissory note for $300 for value received. After it became due he was adjudged a bankrupt, and was discharged from all his liabilities including this note, his credi- tors receiving 10 per centum on their claims. A few months later he gave a new note for an amount equal to 90 per centum of the first note. Can either of these new promises be enforced at law? A. Yes — both. When a promise for value can not be enforced against the will of promisor by reason of some rule of law NEGOTIABLE INSTRtfMENTS 239 meant for his advantage, he may subsequently, if of full capac- ity, surrender or waive the benefit of such rule and make a binding new promise without a new consideration. Eeed v. Batchelder, 1 Mete. 559. Katz v. Moessinger, 110 111. 372. Q. 12. Is the following instrument negotiable ? A trust company, being thereto duly authorized, issued in- struments to bearer depositors of stock in a railroad company, acknowledging receipt of certificates of stock, and that the instrument (called a "receipt") entitled the "bearer" to a certain number of dollars (specified) in new bonds of the railroad company to be issued, less costs of foreclosure sale and expenses of reorganization committee. On the back of the instrument was printed a scheme of distribution, specifying the proportion to be paid to each class of bonds and on the stock. A. Not negotiable. Written contracts can not, by the simple device of making them in terms inure to the benefit of the "bearer," thereby be made negotiable. They are of course assign- able; and so they would have been, had the word "bearer" been omitted. But they are not negotiable. They are subject to every equity to which they were subject in the hands of the original holder. Eailroad &c. v. Howard, 7 Wall. 392. Q. 13. The First National Bank of Waterloo, N. Y., or- dinarily began business at 9 a. m. ; it closed at 4 p. m. One Burton, the indorser of a note payable at that bank, was ready to pay it on the day it became due ; and sent Phelan, the maker of the note, to the bank several times on that day, to find out how much was due on it. On each call Phelan was told that the note was not there. Plaintiff was the holder of the note, and had it in his posses- sion — but did not reach the bank with the note till "about 5 o'clock" p. m. He obtained an entrance ; found the cashier ; and presented the note. Payment was refused, "no funds." Protest was thereupon duly made. Can Burton be held? A. While the rule is that a note payable at a bank must in order to charge an indorser, be presented at the bank during its 24O LAW STUDENTS REVIEW customary business hours; and that if holder goes there after hours and finds it closed, or no one there authorized to answer the demand, he can make no valid demand ; yet even after hours, if he gets in, and finds there a person authorized to answer the demand, a valid demand may be made. Accordingly Burton should be held. Salt Springs &c. v. Burton, 58 N. Y. 430. It is said, however, that if the maker, as distinguished from the indorser, had had funds at the bank to pay the note, through- out business hours; but at the close of business hours had with- drawn them, the indorser would have been discharged, notwith- standing the later demand on the same day. Salt Springs &c. v. Burton, 58 N. Y. 430. Q. 14. L, living in Philadelphia, owned three bonds of $1,000 each payable to bearer. M was a brother dealer in bonds in New York. On Wednesday night L's safe was broken open and the bonds stolen. The theft was not discovered until Satur- day. On Thursday morning (intervening) the bonds were sold to M in New York, for $3,000 in cash. The thief was never dis- covered. L sued M for the bonds. Shall L recover ? A. No. The bonds being negotiable instruments, possession of them was sufficient evidence of ownership, in the absence of proof of fraud and bad faith. M having paid value for the bonds, is entitled to keep them, even as against the true owner. The matter is made clear if we liken the bonds to such other nego- tiable instruments as bank bills. (See Q. 44, infra.) Murray v. Lardner, 2 Wall. 110. Q. 15. You have a certificate of 100 shares of New York Central Railroad stock in your strong box, indorsed in blank by you. A clerk steals it, and sells it through a reputable broker to an innocent third party. Does such third party get good title as against you ? A. No, he does not. While such certificates have to some extent the attributes of negotiable paper, yet this quality of negotiability does not cover above case; nor does the doctrine that he who places it in the power of another to defraud a third party must suffer, apply. Bangor &c. v. Robinson, 52 Fed. 520. NEGOTIABLE INSTRUMENTS 24I Q. 16. A gave B a check for $500. B, the same day, in- dorsed and delivered it to C, who went directly to the bank on which the check was drawn, and caused the bank to certify it. The next day the bank failed. What are C's rights as against A and B ? A. None. His only remedy is against the bank. The certifi- cation of the check at the instance of the holder, operates as payment so far as the drawer and indorser are concerned. Ogden Neg. Instr., § 203. Q. 17. The cashier of the State National Bank marked three checks aggregating $600,000 "good." These checks the Merchants National Bank took in good faith for value. The State Bank, by its by-laws, defined the duties of its cashier. He was thereby authorized to sign all contracts, checks, drafts, receipts, etc. In point of fact the cashier, without express authority, gave checks for purchase of bills of exchange; for exchange; for money borrowed of other banks, the latter aggregating a large sum; and a usage of banks in the city where the State Bank was located was shown as entrusting cashiers with the power to borrow and lend in dealing with other banks; to buy and sell exchange, and to pledge therefor the credit of their several banks in large sums ; but no usage was shown that cashiers had marked checks "good." The bank's charter conferred the right or power to buy and sell exchange and coin. From above usage and charter, may a jury infer the right to bind the bank by marking a check "good" ? A. The jury may so infer. This for the reason that mark- ing the check "good" is not distinct in its nature from the other powers conferred, by charter or usage, upon cashiers; but on the contrary is similar to them; and involves in form and sub- stance the same obligation and consequence to the bank. Merchants &c. v. State &c, 10 Wall. 604. Q. 18. A note payable to order of payee, was delivered without indorsement. Suppose the payee had agreed to in- dorse it, but had not done so. His clerk, however, upon de- 16— L. S. Rev. 242 LAW STUDENTS REVIEW mand, but without authority, indorsed it. But upon being noti- fied that the clerk had so indorsed the note, payee said, "It is all right." Is this attempted ratification sufficient to make the indorse- ment legal and valid ? A. Sufficient. By agreement, payee was in duty bound to indorse the note, upon demand. The act of the clerk, being one which his employer was bound to perform, becomes, when rati- fied by his principal, sufficient. Brown v. Wilson, 45 S. Car. 519. Q. 19. In 1857, a tract of land was conveyed to Allen and wife, jointly, in consideration of a sum of money paid by Allen. In 1872 Allen and wife sold and conveyed to Tate. Tate executed to them his three promissory notes- for the purchase money. Afterward Allen died. His wife sued on the notes. She did not join her late husband's legal representatives. Can she recover ? A. She can recover. She may have to account to the repre- sentatives of her deceased husband; but on the death of one of several joint payees, the remedies for collection survive to the surviving payees. They may lawfully receive payment, and may sue at law or in equity without joining the representatives of the deceased payee. Allen v. Tate, 58 Miss. 585. Q. 20. G is indorser on a promissory note which is not paid when due ; and notice of protest is forthwith mailed ad- dressed to him at Springfield, 111., where he is in the habit of receiving his mail ; although he resides and also receives mail at Ridgely, a place near by. He never gets the notice. He is sued on his indorsement. Is the notice sufficient? A. The mailing of notice of protest directed to a postoffice where he was in the habit of getting his mail is sufficient, whether the notice ever reached him or not. Wooley v. Lyon, 117 111. 244. Q. 21. One Doolittle gave his five certain promissory notes to defendant Bailey for $1,000 each, payable respectively in NEGOTIABLE INSTRUMENTS 243 sixteen, seventeen, eighteen, nineteen, and twenty years from date. Bailey indorsed them to plaintiff. They bore interest an- nually. No interest was paid for the first three years; and plaintiff sued Bailey as indorser. He had given Bailey no notice that interest was in default; but urged that as the in- terest is a mere incident of the debt, no notice need be given. Defendant contended that he should not be compelled to pay interest until the maker had failed to pay the principal. Is either of these contentions sound? A. Neither is sound. Holder of note can not collect interest of indorser without giving him notice as required by law of the default of principal. On the other hand, the indorser has prom- ised that the note shall be paid according to its tenor — and this binds him to pay the interest from time to time, provided the notice to which he as indorser is entitled be given. Mt. Mansfield &c. v. Bailey, 64 Vt. 151. Q. 22. A ninety-day bill fell due July 27, at Pittsburg. In- dorser lived at Wellsville, Pa. Assume the law to be that where parties live in different places a notice must be mailed to indorser as early as before the close of the next day after the day of dishonor of the bill (or note), but that there is but one daily mail, and that closes very early in the morning. Must the notice be posted in time to catch the early mail ? A. No. Where the mail is closed at "an unreasonably early hour"; or before "early and convenient business hours," it is not requisite that the notice be deposited early enough to leave by that mail. If it be deposited during business hours, and early enough to catch the first post leaving after an "early and con- venient business hour," this is sufficient. Lawson v. Farmers &c., 1 Ohio St. 206, and cases cited. Q. 23. What is the distinction between the contract of in- dorser, and that of an unconditional guarantor of commercial paper ? A. The liability of an unconditional guarantor becomes inde- pendent and fixed upon the failure of the principal to pay or perform. That of endorser is conditional, depending on diligence of creditor. Lloyd &c. v. Matthews, 223 111. 477. 244 LAW STUDENTS REVIEW Q. 24. X, the owner of a draft, indorsed and deposited it in Bank A. Bank A sent it to Bank B, which collected it, and gave credit for it in the account of Bank A. Bank A failed, largely indebted to Bank B. X sued Bank B for the proceeds of the paper, claiming that Bank A was only his agent for the collection of the draft. What principles should govern in deciding the matter ; and how might X have indorsed the draft so as to avoid all question ? A. If the general custom between Banks A and B was to retain the amount of collections and to give each other credit in running account, and Bank B had no notice that Bank A was not the owner of this particular paper, and upon the credit of this remittance had allowed the balance against Bank A to re- main and be met by the proceeds of this paper, it can hold the money. If there was notice to Bank B that the paper was owned by X, it would be liable to him. X might have avoided all dispute by endorsing his draft "for collection." This would be notice to all that Bank A had no title. 1 Daniel Negot. Instr., § 338. Q. 25. Mortgagor executed three promissory notes, and a mortgage to secure them. Plaintiff was the holder of all three notes. The first to fall due he sent to a bank indorsed "for collection." One Davis paid to the bank the amount of the note, and took the note. He thereupon brought suit to fore- close, recovered a decree and sold the mortgaged land on execu- tion, himself bidding in at the sale. Mortgagor became insol- vent. Plaintiff filed a bill to set aside the sale to Davis; and to foreclose on his two remaining notes. Should he succeed? and if so, on what ground? A. He should succeed. This on the ground that the bank held the first note "for collection." It therefore had no author- ity to sell or transfer the note. As the words "for collection" were written into the indorsement, Davis should have observed it, and must be taken thereby to be affected with notice that the bank had no authority to do anything but to "collect" — that is, to receive payment of the note. Claflin v. Wilson, 51 Iowa 15. NEGOTIABLE INSTRUMENTS 245 Q. 26. A promissory note had upon it the names of two indorsers, both of them solvent, the first indorsement being written without any expressed limitation, the second indorse- ment having the words "without recourse." The maker of the note became insolvent before its maturity. The name of the first indorser turned out to be a forgery; although this was not known by any of the parties to the note until after maturity of the note. What rights, if any, did a man who had innocently pur- chased the note for value before maturity, have against the last indorser? A. An indorser, "without recourse," is held nevertheless to warrant the genuineness of preceding signatures; hence in the case first mentioned he would be liable to the purchaser for the amount of the note. Accordingly, purchaser, on due protest and notice, can hold him. Dumont v. Williamson, 18 Ohio St. 515. Q. 27. Suppose, in the foregoing case, the note had been, that of a married woman; and therefore presumably void, as against her. And assume that purchaser knows this, but still buys the note. Can he still hold the indorser, as having con- tracted that the maker was competent to contract ? A. Yes. Purchaser is still a bona fide purchaser, according to the law merchant. The legal presumption is that he received it from a legal holder, in due course of business. Erwin v. Downs, 15 N. Y. 575. Q. 28. John and Wesley Cheshire sold certain land to one Moore, taking back a "purchase money mortgage," for $743. The note evidencing this they sold to one Griffith ; and they in- dorsed the note, "without recourse." Subsequently Griffith exchanged the note with plaintiff, who gave land therefor; and Griffith also indorsed "without re- course." Plaintiff, on endeavoring to collect the note of Moore, found that Moore had paid it, and claimed there was nothing due on it. Accordingly plaintiff sued the Cheshires and Griffith counting on the contract, and also setting up fraud. Can he recover against the Cheshires ? 246 LAW STUDENTS' REVIEW A. He can not recover. There is no privity between plain- tiff and the Cheshires, unless through the actual indorsement; but "without recourse" expressly negatives this contention. Even if they were guilty of fraud on Griffith in selling the note to him — yet this would merely give Griffith, not the plaintiff, a right of action against them. Watson v. Cheshire, 18 Iowa 202. Q. 29. A promissory note is given without consideration. At maturity a new note is given in renewal thereof. In a suit on the renewal note failure of consideration is set up as a de- fense. Give your opinion as to the validity of such defense and your reasons. A. The defense is a valid one. If a note is given in renewal of another note, the consideration for the new note is the same as for the old; and failure of consideration in the original note may be availed of in a suit on the renewal note in like manner as if urged to the old note. Wheelock v. Berkeley, 138 111. 153. Q. 30. A promissory note with warrant to confess judgment provided for an attorney's fee of $50 for entering up the judgment in any court of record. The payee assigns the note. What do you say as to the right of the assignee to enforce the provision for attorney's fee ? A. While provision is a legal one, and does not render note non-negotiable, yet an assignee of the payee, though acquiring the note in usual course, may not enforce the provisions. To authorize this there should be explicit authority in the power of attorney, empowering any attorney, &c, to confess judgment against the maker, in favor of any holder of the note. Spence v. Emerine, 46 Ohio St. 433. Q. 31. Payson & Co. as indorsers of a bill of exchange drawn by C & C, sued Coolidge, as acceptor. The acceptance relied on was evidenced by a prior letter of Coolidge promis- ing to accept when the bill should be issued. Payson & Co. took the bill for a pre-existing debt. The letter was on a paper separate from the bill. Does a promise to accept thus made amount to an ac- ceptance ? NEGOTIABLE INSTRUMENTS 247 A. A conditional promise 'becomes absolute when the con- dition is performed. It may be assumed that the above promise to accept influenced Payson & Co. to take the bill. Notwithstand- ing the fact that the bill was taken for a pre-existing debt, the United States Supreme Court, reviewing the cases, holds that such a letter, written within a reasonable time before or after the date of a bill of exchange, identifying the bill, and promising to accept it, amounts, if shown to the person who afterwards takes the bill on the credit of the letter, to a sufficient acceptance. Coolidge v. Payson, 2 Wheat. 66. O. 32. Suppose a merchant draws a bill on himself; and another writes "accepted" across the face, and signs his name. Does this constitute a legal acceptance ? A. No. Acceptance can be made only by the party, or for his honor. Daniel Neg. Instr., § 485. Q. 33. In case of a "demand" note, it is clear that you might safely buy it the day of its date; or the day after. But now long a time from its date must elapse before a demand note becomes "stale," and you are put upon inquiry by reason of its having been so long outstanding and unpaid? A. "No case shows that more than three months can be reasonably overlooked." Business paper, if regular, should be adjusted within that time. It was thus held where defendant had given a demand note for assessment on capital stock of a railroad; had paid the assessment, and therefore was entitled to get the note back. It would have been more prudent in him to do this ; but plaintiff bought it more than three months from its date ; and defendant was allowed his defense. Paine v. Central &c, 14 Fed. 269. Q. 34. Bell, a Cincinnati merchant, drew a draft in favor of Pugh, G. & L., defendants, on Willis & R., merchants in New York, bearing date March 21, 1831, at four months. Pugh G. & L. sold the draft to a (branch) Cincinnati bank. The bank sent it to its main bank in New York. Same was ac- cepted: and on August 3, was protested, and legal notice thereof given. Plaintiff, Wood, desiring to save the credit of Pugh G. & L. paid the draft supra protest, or, as it is called, for the honor of Pugh G. & L. 248 LAW STUDENTS' REVIEW Must plaintiff, in order to recover, give notice to Pugh G. & L. ? And if so, what notice ? A. Wood must give defendants prompt notice that he has taken up the draft for their honor. It may be assumed that they were indorsers. Wood is a mere volunteer ; and while the general rule of law is that no man without the consent of another can impose himself on such other as creditor; yet the payment of a bill of exchange supra protest is an exception, to enable a friend to proteet the credit of one liable. The law implies the consent of the party upon whom the favor is conferred — but the party favored is entitled to reasonable notice, so that he may protect himself against others who may be liable over to him. Wood v. Pugh, 7 Ohio 156, pt. II. Q. 35. Suppose you hold a note due December 8-1 1, 191 5, indorsed. The maker and indorser live in New York. You live in Philadelphia. You send the note to a notary by registered mail, December 10. The notary is ill, and the letter-carrier takes the letter back to the postoffice. The next day, not hear- ing from the notary, you send a messenger over to New York, who goes to the postoffice, gets the letter and note and brings them back to you. You take the note to another notary; it is presented and protested on December 12; but the indorser does not receive notice of protest until December 14 — the 13th being Sunday. Can you hold the indorser? A. I can. I have used due diligence to notify the indorser ; and the delay is not chargeable to me. The indorser's contract with me as to notification only requires diligence in notifying him; and I have conformed thereto. Newbold v. Boraef, 155 Pa. St. 227. As to reasonable time for notice, Perry v. Green, 19 N. J. L. 61. Q. 36. The Birmingham National Bank sued Mrs. Morris as the administratrix of her late husband's estate, on a promis- sory note, which had been payable to her husband, was by him in his lifetime indorsed to the bank, and was payable at the bank, January 26, 1888. The defense was that the bank had NEGOTIABLE INSTRUMENTS 249 failed to present the note to the maker at maturity, and to give notice of non-payment to decedent, indorser. It appeared that the note was executed for accommodation of decedent. Assuming that no sufficient notice of .protest was given decedent, does this discharge him as indorser ? A. On an accommodation note (given for indorser 's accom- modation) no notice is required to hold the indorser. This is an exception to the general rule requiring notice. For example, failure to give notice to the drawer of a bill of exchange will be excused, where he has no funds in the hands of the drawee, and there is no reasonable ground to expect that his draft will be honored. Morris v. Birmingham &c, 93 Ala. 511. Q. 37. Suppose in the foregoing case that the note had been for accommodation of maker; would his death excuse notice to indorsees ? A. No. The indorsees still have the right to insist that the holder shall give them legal notice (protest). They are entitled to know that the holder is looking to them and not to estate of deceased maker, for payment. Juniata &c. v. Hale, 16 Serg. & E. 157. Q. 38. A promissory note was obtained under the follow- ing circumstances: The maker, Tomlinson, was upwards of seventy years of age. Had been an invalid for thirty years. Could read only with the aid of strong glasses, and then only with difficulty. On the day preceding date of note, two strangers came to his house, one giving the name of Porter, and representing that he was the agent of the Western Medical Works of Indianapolis. Permission to stay over night was obtained. During the eve- ning Porter gave Tomlinson some medicine, which Tomlin- son took. It "benumbed his faculties." Next morning he, Porter, gave Tomlinson more medicine which greatly im- paired his mental faculties. He was then induced to sign a promissory note, which was represented to him to be, and which he thought was, a contract appointing him agent of the Medical Works. 25O LAW STUDENTS REVIEW Assuming that Tomlinson did not know what he was about, discuss the question whether this note is valid in the hands of an innocent holder for value ? A. Held invalid, in Indiana, on the ground that there was no consideration, and the execution thereof was obtained by fraud, while Tomlinson was to such an extent under the influence of medicine, administered by the person who received the note, that he did not know what he was about. This constitutes a "real" as distinguished from a personal "defense," and avoids the note. Mitchell v. Tomlinson, 91 Ind. 167. But the better doctrine seems to be that except in cases of forged notes, or those signed by an infant, a supposed agent, a married woman, or an insane person, such a note, while void as between payor and payee, is valid when taken for value without notice by a purchaser. Clark v. Pease, 41 N. H. 414. Q. 39. Indorsee, plaintiff, sued indorser on a ninety-day note of hand. Plaintiff bought the note for value without notice. It was indorsed by defendant in blank, defendant hav- ing left it so indorsed, to be filled out as a renewal note by a debtor, should occasion arise. It was not paid ; and was proper- ly protested. It appeared that defendant had entrusted a num- ber of notes, some signed, others indorsed by defendant in blank, to a clerk, to be used while defendant was away. The note in question was one a debtor of defendant's was expected to sign during defendant's absence, to take up another of debtor's notes which defendant had indorsed. By a trick, the debtor obtained the blank note, signed and filled it in, and negotiated it, thus bearing defendant's indorsement. Can defendant be held to pay it ? A. Yes. This is a gross fraud; but does not amount to a forgery ; and the defendant, having put it in the power of others to circulate paper apparently endorsed with his genuine signa- ture, must suffer. Putnam v. Sullivan, 4 Mass. 45. Q. 40. X writes upon the back of a promissory note, "I hereby guarantee the payment of within note." The note was NEGOTIABLE INSTRUMENTS 251 indorsed in blank by the payee, Charlotte Edgerly, therein named ; and was by her transferred to plaintiff. Plaintiff sued X as indorser. Can he recover ? A. No. X was a guarantor, not an endorser. The guaranty, though indorsed on a negotiable promissory note, is a non- negotiable chose in action. It enures only to the Charlotte Edgerly; and in order to recover thereon, plaintiff must sue in her name, for his own use. Edgerly v. Lawson, 176 Mass. 551. Q. 41. A bill of lading and a bill of exchange to cover •cotton included in the bill of lading are sent in a letter to vendee. The vendee refuses to accept the bill of exchange; but retains bill of lading. Assume that bill of lading is turned over to brokers; but that before actual delivery of cotton, another party, on the au- thority of a duplicate bill of lading obtains possession. Can such possession be sustained? or' does the transfer of the orig- inal bill of lading pass title to the cotton to first transferee ? A. A bill of lading acquired in above manner passes no title. Accordingly, holder of duplicate bill will prevail. Shepherd v. Harrison, L. E. 5 Eng. & Ir. App. 116. Allen v. Maury, 66 Ala. 10. Q. 42. In forwarding a bill of exchange to plaintiff, for dis- count, will the following circumstances, as matter of law, suffice to put plaintiff on inquiry: The forwarding party is embarrassed in his business affairs; the bill is forwarded be- fore maturity; forwarder, in letter of advice, states that he -does not indorse the bill, as he is selling it for another ? A. No. Where a party is in possession of a negotiable in- strument before maturity the presumption is that he holds it in good faith and for value; and the burden of proof is upon him who disputes this fact. Mere suspicion, even if it exists in the mind of the purchaser, is not sufficient to overcome the presump- tion of good faith in taking the bill. And this is true of col- lateral, as well as of original, obligations. Goodman v. Simonds, 20 How. (U. S.) 343. (Cases on "good faith" reviewed). 252 LAW STUDENTS REVIEW Q. 43. A note otherwise negotiable, contained a recital that the maker had deposited collateral, describing it, and author- ized the holder, on default, to sell at broker's board, or on pub- lic or private sale, without demand, or notice, as to debt evi- denced by note, and to apply proceeds on note, "holding us as makers or indorsers responsible for any deficiency." What effect, if any, has above recital, or negotiability of note? A. None. It is said that a promissory note is a "courier with- out luggage"; but a mere recital that it is accompanied by col- lateral does not affect the amount due, time of payment, or otherwise vary the terms of the instrument. Valley &c. v. Crowell, 148 Pa. St. 284. Q. 44. Defendant was urged by a person unknown to him to become an agent for the sale of Benton's washing machine. The note of hand in question was attached to a contract; but was susceptible of being readily detached therefrom; and upon being detached, had all the appearances of a regular negotiable note to bearer at six months for $250, bearing date June 10, 1868. November 16, 1868, plaintiff purchased it for $100 in cash, from a stranger, who said he did not know what the note was given for ; said he had got it in New York, on trade. Assuming that the note was fraudulently obtained, are the above facts sufficient to put plaintiff on inquiry; and to let in the (personal) defense of the maker? A. No defense here to the note in plaintiff's hands. The nisi prius judge took the veiw that plaintiff should have in- quired into the antecedents of the note. But this is not the law. Mere suspicion will not destroy holder's right of recovery. There must be bad faith (as distinguished from bona fides) on the part of the purchaser, to defeat his recovery. Phelan v. Moss, 67 Pa. 59. Note review of cases; and that variant doctrine of Gill v. Cubitt, 3 B. & C. 466, is overruled. And so, bank notes even though stolen, become the property of the person to whom they are bona fide delivered for value. Miller v. Race, 1 Burrow 452. Journal &c. v. Maxwell, 1 Pennewill (Del.) 511. NEGOTIABLE INSTRUMENTS 253 Q. 45. One Abel S. Hussey executed his note dated July 21, 1874, payable in two years, for $2,500. The note was secured by a mortgage. July 24, 1874, Jones indorsed the note, as col- lateral for a loan to him made by Thompson, the defendant. Subsequently Jones paid to Thompson the amount of Thomp- son's loan to him, and directed Thompson to assign the note to Pickering and Mosely. Thereupon, October 9, 1874, Thomp- son wrote his name on the back of the note, thinking that this was necessary to assign it, and turned it over to Jones to be •delivered to Pickering and Mosely. Subsequently Jones paid Pickering and Mosely what he owed them — and thereupon Pickering and Mosely assigned the note to Jones. Afterwards, but before maturity, Jones assigned the note to plaintiff, a sav- ings bank. Plaintiff sues defendant Thompson, as second indorser. Thompson pleaded that the bank bought the note not knowing defendant's name; and not giving any consideration for his indorsement. On above facts, assuming defendant's plea to be true, has defendant a valid defense to the note ? A. No. He was an indorser and the bank had a right to rely on his indorsement, whether it knew the fact or not. A further contention of the defendant, however, on above facts was that as a matter of law, when Jones "took the note up" (that is, got it hack into his possession, and put it in circulation again) any indorser is discharged, just as if the note were paid. This would be true if Jones had "taken it up" at maturity; but before ma- turity, he may still put in circulation again, and the indorser is not discharged. West Boston &c. v. Thompson, 124 Mass. 506. Q. 46. Defendant made and delivered to one McLean, his note for $2,500, payable December 24, 191 1. McLean owed the plaintiff bank a sum in excess of $2,500. Before the maturity of defendant's note, he transferred it, in the usual course of business, to the bank as collateral security for his indebtedness ; but the bank gave no value for it. The bank sued defendant on the note. He defends on the ground that it was obtained from him through fraud on the 254 law students' review part of McLean; and that as the bank did not pay anything^ for it, but merely took it to secure antecedent indebtedness, it is not a holder for value. Is the defense valid ? A. Invalid. An indorsee of negotiable paper, taken before maturity, as collateral security for an antecedent debt, in good faith and without notice of defenses, holds the same free from, such defenses. German &c. v. Lyons, 127 Minn. 390. Q. 47. The New York Life Insurance Company on the 22nd of May, 1902, within the United States of Columbia, delivered to one Gonsalez its bill of exchange three days after sight, on itself in New York City, for $4,181.60, United States money. Gonsalez sold this for $234,169.60 Columbian money, United States money exchanging in the ratio of 1 to 56. The bill was duly presented in New York for acceptance. Acceptance re- fused. July 21, it was presented for payment. Payment re- fused. Meanwhile a Columbian dollar had shrunk in value, so that it took ninety of them to equal a United States dollar ; and Gonsalez had to pay the person to whom he had indorsed the draft, the sum of $376,344. Can he recover the difference in exchange from the insurance company ? A. He can not. His rights are measured in United States money — $4,181.60. It is true that if a California draft, for in- stance, is payable in New York, and suit is brought in California, plaintiff may recover the amount of the draft plus New York ex- change; but in above case draft was payable in New York, not in Columbia; and the fluctuations of Columbian currency do not enter into the question of damage for dishonor of draft. Pavenstedt v. New York &c, 203 N. Y. 91. Q. 48. The holder of a note had lost it. But he brought suit against defendant, an indorser, and alleged presentment at etc., and demand for payment, failure to pay, whereof defend- ant had notice — and then alleged "And said note has, by time and accident been lost out of the possession of the plaintiff and can not now be produced." NEGOTIABLE INSTRUMENTS 255 Plaintiff offered evidence that note was lost February 26, 1821, stating how; and by notary public he showed presen- tation of a copy and refusal to pay. Evidence objected to; but admitted. Was this error? A. The evidence was properly admitted. The loss of a note does not alter the rights of the owner; it merely renders secondary evidence necessary and proper — and a demand of payment of a lost note is equally available as of a note in pos- session. Moreover, under the usual averment that the note was duly presented, evidence may be given showing impossibility of presentation. Hinsdale v. Miles, 5 Conn. 331. Q. 49. Suppose a note be mislaid or lost; but there is no evidence that it has been destroyed ; and suit brought thereon. How can the maker be protected? A. The court has power, if not satisfied that a negotiable in- strument is actually destroyed, to require, if action be brought thereon, that plaintiff give an indemnifying bond, as a condition precedent to recovery; and a finding of a jury that such instru- ment when lost' was unindorsed, will not dispense with the requirement for indemnity. First National &c. v. Wilder, 104 Fed. 187. CHAPTER XI REAL ESTATE Question i. Ejectment for the recovery of the possession of land under the waters of Long Island Sound outside the City Island in the county of Westchester. The lands in question were included in a grant from the Crown of Great Britain to Benjamin Palmer, in 1763, reserving a yearly rent of five shillings sterling. But no right of distress or of re-entry was reserved. No rent was in fact paid by Palmer or his grantees ; the lands were forfeited to the crown for such non-payment; and the State of New York assumed to sell and convey the lands. Assuming the forfeiture of the lands for non-payment of rent to have been legally declared, and that the deed from the State of New York was regular, does such deed pass title to the lands in question? Answer. It does. The people of the State of New York, after the Revolution, became vested with the rights of the Crown, and might convey the same. Note that a grant of land bounded by Long Island Sound carries title only to high water mark. Delanqey v. Piepgras, 63 Hun 169. See also Dill v. Wareham, 7 Mete. 438. Q. 2. Plaintiff claimed lands in Illinois under grants, in 1773 and in 1775, from the chiefs of the Illinois and Pianke- shaw Indian "nations." Defendant claimed under a patent from the United States. Assuming that these "nations," by treaty, ceded the lands in question to the United States, but at a date later than 1775; can plaintiff recover? A. No. While peaceable and lawful occupants of lands, though Indians, should by a (completely) conquering nation be 17— L. S. Rev. 257 258 LAW STUDENTS' REVIEW treated with as much consideration as is compatible with the objects of conquest; yet, whether founded in justice or not, the rights obtained by conquest over fierce and savage tribes of Indians must be recognized by the courts, even as including the disposal of private property. Furthermore, a white man taking title from an Indian chief is in no better position than a member of the tribe or nation; and the tribal rights being ceded, carry with them the rights of the individual. Johnson v. Mcintosh, 8 Wheat. 543. Q. 3. In the foregoing question, suppose the lands had been in Georgia; and that the State of Georgia had by legislative grant conveyed the lands, though reserved for Indians by royal proclamation, issued before the War of the Revolution. Would a conveyance by the State of Georgia pass title? A. It would. While it was contended that all acquisitions during that war were made by the joint arms, and for the joint benefit of the United States, and not for the benefit of any par- ticular state; yet as the land lay within the State of Georgia, that state had power to convey it. The reservation for the In- dians amounted only to a temporary arrangement, suspending for a time settlement of the country reserved. Fletcher v. Peck, 6 Cranch 87, 141, 142. Q. 4. A owns a house-boat which he tows to and moors at the bank of the Mississippi river by ropes and cables tied to trees on the bank, permission of the riparian owner being given for that purpose. A rents the house-boat to B for ten dollars per month. B lives in the boat three months, but does not pay the consideration therefor; whereupon A brings an action of forcible entry and detainer, after giving the requisite notice to quit. Should he succeed in his action ? A. No. The house-boat is personal property, and forcible entry and detainer lies to recover real estate only. Smith Pers. Prop. 6. 19 Cyc. 1114. Q. 5. A mortgagor, in possession, sells a dwelling house on the mortgaged land to a house-mjover, without permission of REAL ESTATE 259 the mortgagee. The purchaser removes the house from the premises, and is transporting it along a highway, when the mortgagee brings replevin. The mortgage was duly recorded prior to the transaction. Can plaintiff recover? A. Yes. The mortgagee has title, which is not affected by wrongful severance ; and the house being severed from the land, replevin is the proper remedy. Dorr v. Dudderar, 88 111. 107. Q. 6. In 1904, complainant lessor, leased to lessee Cushman, for fifty years, a part of his pasture. The lease provided that lessee might take and remove ore, and for a royalty thereon. Lessee went into possession, and sunk a shaft, and drifts, in various directions. A building suitable only for mining pur- poses stood over the shaft. Mining machinery was installed in the building. Except a dryer, the machinery could be removed without injury to itself or to the building; and the building could be removed without material injury to the land. Lessee undertook to remove both building and machinery. The lessor objected, on the ground that building and machinery were part of the realty. Are they a part of the realty? or are they removable fixtures ? A. The test is whether they are accessary to the business to be carried on, or whether they have been annexed to the land as such without regard to the business to be carried on. In the above case, the fixtures are clearly trade fixtures, and may be removed. Snow v. Smith, 86 Vt. 58. So of a sprinkler system. Holt v. Henley, 232 U. S. 637. Q. 7. An outgoing tenant of a! farm had been engaged in the milk business. He had a larger number of cows than could have been supported from the farm alone. He had piled up under and about the barn thirty-five cords of manure. The landlord claimed the manure ; the tenant resisted. Whose is it ? A. While in a case of ordinary husbandry the manure would have belonged to the landlord; yet on the above facts, the cows z6o LAW students' review having been kept and fed upon (presumably) purchased food for some purpose other than one merely incidental to agriculture, a different rule applies, and the tenant is entitled to the manure. Nason v. Tobey, 182 Mass. 314. Q. 8. (a) In the spring, A, being in poor health and know- ing that he can not survive the summer, causes crops to be planted on land he holds as life tenant. He dies before the crops are ripe. (b) B, a widow, who has an estate in land during widow- hood, plants crops, then having no intention to marry. She marries before the crops are ripe. What are the rights of emblements ? A. (a) The right of emblements exists in all cases where the life estate is terminated (as by death) without the tenant's fault; and the probability that he will die before maturity of the crops has no effect upon the right to emblements. Accord- ingly, A's representatives own the crops. Bradley v. Bailey, 56 Conn. 374. But where the estate is terminated by the tenant's own act, as where a tenant during widowhood thinks proper to marry, the tenant shall not be entitled to emblements. 2 Blackst. Com. 123. Q. 9. A is tenant of land for the life of X, who dies during the summer. There are then growing on the farm (1) a field of corn planted by A in the preceding spring; (2) a number o'f grape vines and berry bushes set out by him the year before and not yet come into bearing; (3) a crop of apples in an orchard. May A enter after X's death to take the corn and apples when ripe, and to remove the vines and bushes ? A. He may enter, until the following spring, to care for and gather the corn; but not the apples, or to remove the vines and bushes; that is, he may take the crops requiring care and labor, and ordinarily of annual planting and growth; but not the other. 15 Cyc. 537. Q. 10. Assume that a corporation, organized for thirty years, for the purpose of promoting temperance, receives a REAL ESTATE 26 1 conveyance in fee of real estate. On the ground that the cor- poration was organized for but thirty years, may a subse- quent purchaser, a natural person, deny the capacity of the corporation to take a fee, on the ground that it was beyond its power to acquire an estate of inheritance which would or might extend beyond the thirty years of its existence? A. The fact that the duration of a corporation is limited to a certain number of years does not render it incapable of tak- ing title even in fee. It can not hold lands beyond the period of its existence, but it may take the fee and convey the same. Asheville &c. v. Aston, 92 N. Car. 578. Q. 11. "I give to Erastus, my son, the use of the Bartlett farm containing about 120 acres. Said farm is not to be sub- ject or liable to conveyance or attachment." What is the trouble with this devise? A. The restriction is inoperative. "A condition in a grant or devise that the grantee shall not alienate is void, because, repugnant to the estate." Co. Lit. 223a. And an attempted restraint of an attachment is void for the same reason. Blackstone &c. v. Davis, 21 Pick. 42. O. 12. A mother dying testate left an estate to three trus- tees and made a son one of her beneficiaries. The will provided that the trustees should pay all income and might in their dis- cretion pay one-half of a designated principal fund directly to the son; and the trust in said one-half should thereupon cease; also that in case the son became bankrupt, so that he could not personally enjoy the income,' then the trust as above constituted should cease. But after such cessation, the trustees, still in their discretion, might pay to her son such part of the income as he would have been entitled to, but for the occur- rence of the bankruptcy. The assignee in bankruptcy claimed the income, on the ground that the foregoing constituted an attempt to secure to the son the enjoyment of the income of real and personal prop- erty, but to enable him to avoid paying his debts ; and is against public policy. Can this contention be sustained ? 262 LAW STUDENTS' REVIEW A. No. A testator has the right to attach to a gift the inci- dent of continued use, of uninterrupted benefit of the gift, dur- ing the life of the donee. Note, however, that this is effected through the medium of trustees; and that they have the legal title; and that the dis- posal of the income rests in their discretion. Nichols v. Eaton, 91 U. S. 716. Q. 13. On land owned by several tenants in common and their mother, a widow, who had an unassigned dower right in the premises, there was a mortgage lien. When the mortgage indebtedness became due, the widow and one of the tenants in common tendered their shares of the debt to the mortgagee ; but he refused to accept anything but the entire amount due, and thereupon brought foreclosure. What is the mortgagee's right as to foreclosure, and what defense, if any, has the widow and the tenant in common who made such tender ? A. Mortgagee may foreclose. In order that tender of pay- ment may be good, the whole debt with all interest and accrued costs, if any, must be tendered. Persons claiming under the mortgagor must make such tender, and may then assert their rights against their co-tenants. Tiedeman Real Prop. (3d ed.) § 255. Q. 14. A conveyed land owned by him and known as Tract X to his sons B, C and D in equal shares, as tenants in com- mon. Tract X had been previously sold for taxes, to the knowl- edge of the sons. After the conveyance by A, B agreed with the bolder of the certificate of purchase at tax sale, that the holder should take out the tax deed, and should then convey to B ; and this was done. C and D each tendered B a one-third part of the consideration paid for the conveyance of Tract X made by the purchaser at tax sale, claiming equal benefits in respect of such transactions. What are their rights, if any ? A. The purchase of the tax title to Tract X amounted merely to a redemption which will inure to the benefit of B's co-tenants on condition that they pay their proportionate part of such redemption. Lomax v. Gindele, 117 111. 527. REAL ESTATE 263 Q. 15. Appellees Wiggins, were husband and wife. On a judgment against the husband, but not against the wife, the sheriff was about to sell certain real estate as to which title was held under the following granting clause in the deed : "convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins his wife, in joint tenancy," etc. Appellees filed a bill to restrain this proposed sale on the ground that the above conveyance vested an estate by the en- tirety in them, and that until the death of the wife, no estate subject to execution sale existed in the husband; and the lower court, on demurrer, sustained the bill. Is the lower court right ? A. It is of course right if there was an estate by the entirety here. While it is true that a conveyance which would make two persons joint tenants may operate, if to husband and wife, to create an estate by the entirety; still by apt words, a joint tenancy may be vested in husband and wife ; there is nothing to prevent their so holding; and no words more apt for this pur- pose can be found than those used in the deed in question. Accordingly the lower court is wrong in sustaining the de- murrer. Thornburg v. Wiggins, 135 Ind. 178. Carver v. Fennimore, 116 Ind. 236. Q. 1 6. A, for the purpose of placing certain premises in trust for B, his wife, conveyed these premises to M, during the latter's coverture with N. M immediately conveyed the prem- ises to X, in trust for B. N, the wife of M, did not join in the conveyance. After M's death, N brought an action to have dower set out to her in the land in question. Should her claim be granted ? A. No. While no length of time more than an instant is required for the seizin to be in the husband in order that the wife's dower may attach, provided it is in him for his own use and benefit, yet if the seizin is instantaneous and it was not intended that he should acquire the beneficial interest therein, and he serves only as a means of passing the seizin to another, the wife will not be entitled to dower. Tiedeman Real Prop. (3d ed.) , § 94. 264 LAW STUDENTS' REVIEW Q. 17. Suppose a husband contracts to buy land at $5,830; that he pays $830. Thereupon in order to secure the purchase of additional land, he pledged the above contract to a third party. He then dies. Has his wife any right of dower in the land first mentioned ? A. No. The legal estate does not appear to have vested in. the husband. As the husband was never seized, the wife can have no dower. Stephens v. Leonard, 122 Mich. 125. Q. 18. Huldah, the deceased wife of plaintiff, had by him two children capable of inheriting, and died. Plaintiff sur- vived her. She had been one of the heirs of her deceased father ; but her mother's dower never was assigned. Under Virginia law, until dower should be assigned, the mother was entitled to possession. She "farmed" the land in question at times ; at times she leased it ; and always received the rents or products. Huldah, in 1857, married plaintiff, and went away, never returning except for a visit of two months, and not "as a member of the family." Is plaintiff entitled to curtesy ? A. Not entitled. The actual seizin of the land was in the mother of his wife; not in Huldah, his wife. Huldah's mother was in lawful possession of all the land until assignment of dower. Plaintiff's wife had seizin in law; but not in fact; and plaintiff's curtesy depends on seizin in fact. Carpenter v. Garrett, 75 Va. 129. Q. 19. X, a landowner, sold and conveyed the west half of his tract to Y. Three months later, a dispute arising concerning the location of the division line between their respective tracts, they established, by parol agreement, a boundary line and erected a fence thereon. This was followed by possession for four years according to the line agreed upon, when Y died. A year later, it appeared that the true dividing line, by actual measurement, was ten feet further east. Y's heirs brought ejectment to recover the ten- foot strip between the fence and the line according to survey. Can they recover ? REAL ESTATE 265 A. No. While it is a familiar rule that title to realty can not be transferred by parol, being equally forbidden by the common law and by the statute of frauds; yet a parol agreement as to boundary, acted on, binds parties and their privies, though the statute of limitations has not run; not because the agreement passes title, but because it determines the location where the estate is supposed to exist, and the parties are estopped from denying it. Cutler v. Cellison, 72 111. 113. Crowell v. Maughs, 2 Gilm. 419. Q. 20. Freedley conveys to Cox. The lot of land is bounded by courses and distances, and by streets and lanes : thus "along the northeast side of Egypt street." The measurements to the streets would terminate at their sides, respectively. Does the grantee take to the center of the street ? A. Yes: provided the grantor has title to the center; and assuming that the street is not a mere "paper street." Union &c. v. Robinson, 5 Wh. (Pa.) 18. It is not, in the absence of an express reservation, to be presumed that the grantor intends to retain the title to the strip forming half a street. And this is true, even where the lines run to a stake by the side of a street ; the stake is not in such case such a fixed monument as will con- trol. Thus in bounding on non-navigable rivers, the riparian owner takes ad filam aquae. Cox v. Freedley, 33 Pa. 124. Q. 21. In 1772, plaintiff's predecessor in title granted a strip of land to certain county commissioners. The strip adjoined the county jail ; and the deed of conveyance provided that such strip should "be and remain forever hereafter unbuilt on in order to prevent any prisoners * * * from escaping by reason of any building adjacent to the jail." A new jail in another place was erected ; and in 1848 the commissioners sold the old jail to defendant's predecessors in title. Plaintiff, being anxious to sell the strip, was met with the objection from the defendants that they had succeeded to the rights of the county commissioners under the deed of 1772, and would assert the same. Plaintiff filed a bill in equity praying for the cancellation of the deed of the strip. Should he succeed? 266 LAW students' review A. Plaintiff should recover. We have here a base-fee; and this fee has determined, the purpose for which it was granted having ceased. Accordingly, the property reverts to the grantor. There is always ''a possibility of reverter," and this possibility may by conveyance pass to grantees. Note that it does so revert here without any claim or act on the part of the grantor or his successors in title. Slegel v. Lauer, 148 Pa. St. 236. And thus whenever a fee is so qualified, as to be made to determine, or liable to be defeated, at the happening of some con- tingent event or act, the fee is said to be base, qualified or deter- minable. There are four classes of such fees, viz: fee upon condition, fee upon limitation, a conditional limitation and a fee conditional at common law. Tiedeman Eeal Prop. (3d ed.), § 36. Q. 22. A house and land were devised to the deacons of a church, "upon this express condition and limitation," that is, that the respective ministers of the church should continuously live there during their incumbency in office; and in case this should not be done then by the will the land was devised over to a certain nephew of testator. (a) Was this a conditional limitation, or an estate upon con- dition ? (b) Does the statute of perpetuities apply? (c) What estate do the deacons take? A. (a) This was a conditional limitation, not a condition. The reason is that, in case of condition broken, there is no re- verter to the grantor; but there is a limitation over to a third person. (b) The devise over is not an estate in remainder; it is an executory devise. As such it violates the rule against perpetui- ties ; for there is no knowing how long ministers will live in the house. (c) As the devise over is bad, the deacons take a fee simple. Proprietors v. Grant, 3 Gray 142. Q. 23. What is a fee conditional at common law ? A. An estate to one and a particular class of heirs, as for instance to one and his bodily heirs, is a fee conditional. Or it could be limited to any other class of heirs. If the first taker dies leaving no heir of that class, the estate is defeated. But REAL ESTATE 267 as soon as one of that class of heirs comes into being the condi- tion was held to be so far performed as to permit alienation in fee simple; and the subsequent death of the heir would have no effect. However, if no alienation is made during the life of the heir presumptive, it would revert on the death of the first taker, just as if such heir had never come into being. Tiedeman Eeal Prop. (3d ed.), § 37. Q. 24. A testator provided as follows : "Fourth. I will and bequeath to my daughter Mary A. Nes- bitt, nee Ewing, and to the heirs of her body, the south half (SJ4) of the northwest quarter (NW34) of section number twenty-one (21), township thirteen (13) of range twenty-four (24) in Johnson county, Kansas." The will contained a general residuary clause. What estate is here devised ? A. An estate tail. While in many states the statutes have converted estates tail into fee simple estates; yet in the absence of such statutes estates tail still exist. But common recovery to bar an estate tail is said to be obsolete; and it is said the same end may now be accomplished by an ordinary conveyance. Ewing v. Nesbitt, 88 Kans. 708. Q. 25. Suppose A grants an estate to his son B upon a con- dition precedent and another estate to his son C upon a condi- tion subsequent. Both conditions are invalid. What effect, if any, would the invalidity of the conditions have upon the estates ? A. In case of the condition precedent, the estate will fail, just as if the condition was valid and had been broken; but in the case of the condition subsequent, its invalidity would destroy the right of entry and forfeiture in the grantor, and leave the estate free from the condition. Tiedeman Real Prop. (3d ed.), § 203. Q. 26. A testator devised to his granddaughter a parcel of land in fee ; but provided that should she die in her minority, without leaving lawful issue her surviving, the land should re- vert and become a part of the residue of his estate. What estate, assuming the granddaughter survived testator, and that he died during her minority, did she take ? 268 LAW students' review A. She took an estate in fee, defeasible by an executory de- vise over. Where a devise is made to one person in fee, and "in case of his death" then to another in fee, the absurdity of the provision as to death, which must inevitably occur, has led the courts to interpret the devise over as referring only to death occurring in the lifetime of the testator. But when the death of the taker is coupled with a circumstance, e. g. surviving issue, which may or may not take place, then the words mean death under the cir- cumstance supposed — at any time — whether before or after the death of the testator. Britton v. Thornton, 112 U. S. 526. ' Q. 27. Samuel P. Miller, deceased, by his will provided : "I will and bequeath to my daughter Barbara's son Albert, equal share of my estate * * * with my other children * * * but if said Albert should die before he has any heirs, then his share shall revert back among my other heirs." In another clause of the will he devised to "my children and their heirs share and share alike," and in one instance he pro- vided as to two grandchildren, "should one or both of them die before they have any issue, then their share shall revert back to my other heirs." Was the limitation over at the death of Albert predicated upon a definite or an indefinite failure of issue? and what is the difference in the estate taken, depending upon whether the failure is definite or indefinite ? A. If the failure is indefinite, Albert takes a fee; for indefi- nite failure of issue would or might happen at such remote time that the doctrine of perpetuities would apply. If the failure was definite, then the effect would of course be to cause the title to revert to the other heirs of testator. Inasmuch as it is provided that if Albert should die before he has any heirs, his share shall revert, &c, it is clear that the word heirs was used in the sense of children; for in the legal sense, he could in no event have any "heirs" before he died. Estate of Miller, 145 Pa. St. 561. Q. 28. Plaintiff, Colorado Springs Company, conveyed land to the defendant. The deed set forth an agreement between the parties that intoxicating liquor should never be manufactured, REAL ESTATE 269 sold, or otherwise disposed of in any place of public resort on the premises; and that in case this condition was broken, the land should revert, and the deed should become null and void ; also that grantee, in accepting the deed, agreed to this condi- tion. Defendant sold liquor, and violated the condition. Assuming demand for possession, under the state statute, to be unneces- sary, can the company recover ? A. Yes. It was sought to defeat recovery on the ground that the condition is repugnant to the estate conveyed; but it was held that the restriction was not subversive of the estate, so as entirely to prohibit alienation or use of the property. The lands still were alienable, and inheritable, and subject to any other lawful use, except as to intoxicating liquor. Cowell v. Colorado &c, 100 U. S. 55. Q. 29. (1) A grant is made to A for life, with remainder, if A shall survive B, to A's heirs. (2) C, being tenant for life, with remainder after his death to the heirs of B, conveys his life estate to B. Does the rule in Shelley's case apply in the above cases, or in either of them? A. (1) The remainder being contingent the particular es- tate will not merge therein; but upon the vesting of the ra> mainder by the death of B before A, merger will take place, and! A will have an estate in fee simple. Rule in Shelley's Case does not apply. (2) No. For the rule to apply, the particular estate in the ancestor, and the remainder to the heirs, must arise under the same instrument. Fearne, Cont. Rem. 34, 71. Tiffany Real Prop., §§ 130, 131. Q. 30. A will provided : "Item Five. I loan to James G. Taylor during the time of his natural life the following described tract of land (describing it) and at the death of said James G. Taylor I give and devise the said land to his heirs at law in fee simple forever." Assuming that the word "loan" is equivalent to the word "give," what title does Taylor take? 270 LAW STUDENTS' REVIEW A. Fee simple. This is under the rule in Shelley's Case. The limitation here by way of remainder to the heirs, as a class, is taken to mean a mere description of the kind of estate which passes; that is a fee. Or as it is usually stated, the heirs take as heirs, not as purchasers. Thus the devisee Taylor is entitled to the whole estate. Robeson v. Moore, 168 N. Car. 388. See also Croxall v. Shererd, 5 Wall. 268. Q. 31. In consideration of love and affection for his sons and a grandson (named), one John Steele, Sr., conveyed to Joseph A. Steele, his heirs and assigns forever, as trustee, ninety-four acres of land in York county, South Carolina, in trust as to one-half thereof, to stand seized and possessed "for the use of my grandson John G., for his life; at his death to transfer as John G. shall by will direct, in default of will to the heirs of John G. in fee"; reserves life estate in grantor; and requires Joseph A. and John G. to pay another son, James, $1,666 within a year from testator's death. The trustee died soon after the death of testator. John G., the grandson, thereafter, and in 1866, married, and became the father of several children. Thereupon he undertook to convey the land in fee to one Paterson. Subsequently John G. died intestate. Did John G. have a fee simple title to convey? or did he have merely an estate for life ? A. The answer turns upon the question whether the trust is executed or executory, the trustees being required to hold the title until it shall be determined whether John G. dies testate or not. If testate, the trustee must transfer as directed in his will. If John G. dies intestate (as in fact happened), then the trustee must convey to his heirs. Held, that the requirement that the trustee must convey makes the trust executory; and not exe- cuted ; and that the rule in Shelley's Case therefore does not ap- ply. Accordingly, the heirs of John G. take as purchasers and displace Paterson. From this it follows that John G. took only for life. Steele v. Smith, 84 S. Car. 464. Note, however, that in New Jersey it is held that the duty of REAL ESTATE 2.~J\ a trustee to convey does not render the trust active; hence in above case the statute of uses would vest the fee in John G. Cushing v. Blake, 30 N. J. Eq. 689. Q. 32. Real estate was devised by a testator to a trustee to pay income to testator's son for life and upon his death "in trust for all and singular the children and issue of deceased children living at the death of the son." But as to such children or surviving issue of the son, no duties of the trustee are specified. What happens here ? Where does the legal title go or remain ? A. Here the trust ceases upon the death of the son ; this for the reason that it no longer remains an active trust. Thereupon the statute of uses executes the use in the children and issue, converting their interest into a legal estate, and determining the estate of the trustee. Hooper v. Feigner, 80 Md. 262. Q. 33. Under a grant, A received a life estate in land, with remainder over to B. A expended $1,000 for permanent im- provements on the land, enhancing its value that amount. He died a month later ; and B claimed the land, with the improve- ments, without being obliged to recompense those claiming under A for his expenditures. Is B's claim sustainable ? A. Yes. The life tenant could not create a charge against the remainderman by such improvements, no matter how much they enhanced the value of the land. The improvements must be deemed to have been placed there by A for his own benefit, and, on the expiration of the life estate, they pass to the remainder- man as part of the realty. Hagan v. Varney, 147 111. 281. Q. 34. A owned a farm containing a deposit of clay suit- able for manufacturing bricks. He dug a pit and from time to time excavated clay, and sold it to M, the owner of a brick kiln. A then conveyed the farm to his son B for life, with remainder over to his son C. Subsequently, in another part of the farm, a deposit of potter's clay of superior quality 272 LAW STUDENTS' REVIEW was discovered, whereupon B contracted with X, a potter, to excavate and supply him, X, with such clay for use in his pot- tery. B also contracted with M to continue the sale to him of clay for his brick kiln. C sued to enjoin B from carrying out such contracts. What are the rights of the parties? A. B may continue to dig and sell brick-making clay from the pit opened by his father, but may not open new ones for that purpose, or excavate or sell the potter's clay to X. Tiedeman Eeal Prop. (3d ed.), § 64. Q. 35. A life tenant neglected to pay taxes. The remainder- man paid them. How should he proceed to recover them ? A. He may have a receiver appointed to take charge of the premises, collect the income, and apply the proceeds. If the in- come is insufficient, the receiver, under the authority of the court, may sell the life estate, or as much thereof as may be necessary for the purpose. It is the duty of the life tenant to pay the taxes. Not to pay them is a kind of waste. St. Paul &c. v. Mintzer, 65 Minn. 124. Q. 36, An assessment for betterment, by reason of public improvement, was laid by the city of Boston upon property in Avon Place. The property was held by certain parties for life; the re- mainder being in other parties. Should the life tenant pay this? or, if not, how should the burden be apportioned between the life tenant and the remain- dermen ? A. While current taxes should be paid by, the life tenant; yet this being a betterment, the remaindermen must bear the charge of the principal sum. The life tenant must contribute to , the extent of his interest. Suppose, instead of being an assess- ment for betterment, the estate had been condemned; then the life tenant would get damages based upon the loss to his estate ; and the remaindermen would get the rest of the damages. The burden of the assessment should be shared in like proportion. Plympton v. Boston &c, 106 Mass. 544. Q. 37. A testator devised property to his wife, "to manage at her control * * * or to sell off the property as she thinks proper REAL ESTATE 273 during her life time," and then made disposition of such prop- erty she might not have sold. After the death of testator, the widow, donee of the power, married again ; and during her coverture attempted to sell and convey certain of the property; and it was objected that, being married, she could not legally exercise the power. How is this ? A. Even without the consent or concurrence of her husband, a married woman may execute a power, notwithstanding her disability to dispose of her own estate. It is of no consequence whether the power was granted to her before or after she became a married woman. Young v. Sheldon, 139 Ala. 444. Q. 38. The following grants are made : (a) To A for life, with remainder to B, provided B sur- vives A. (b) To A for life, after his death, the remainder to his chil- dren ; and if he die without children, then the remainder to B. (c) To A for life, with remainder to B for life. What does B take in each of the above cases ? A. (a) A contingent remainder; since B's interest is sub- ject to the condition precedent of his survival of A, which would prevent it from immediately vesting in possession in case A's life estate should for some reason terminate before A's death. Phayer v. Kennedy, 169 111. 360. (b) A contingent remainder; since the contingency of A's dying without children can not be settled until his death, and until this has occurred the remainder can not vest in pos- session even if the particular estate were previously terminated. 1 Tiffany Eeal Prop., § 120. (c) A vested remainder as the uncertainty of enjoyment is immaterial. 1 Tiffany Eeal Prop., § 120. Q. 39. The settlor, a grandfather, by deed conveyed to trus- tees to the use of himself for life; remainder to the use of his son, John, for life, remainder to lawful child or children of John, as John might by will appoint; failing appointment, to the children of John and their respective heirs ; and in default 18— L. S. Eev. 274 law students' review of such children, then reversion to heirs of settlor. John had two children, both living, when the settlement was made. Af- terwards he had other children ; and died without appointing. What interest did John's children take ? A. They took vested interests, as tenants in tail. And on the death of each without issue his share fell into the reversion. If the question had arisen on a will, query, would cross- remainders have been implied, on the death of a child without issue, to his surviving brothers and sisters. But in construing a deed, the presumption is against cross-remainders. Doe ex dem v. Tanner, 5 T. E. 518. Thus where cross-remainders are limited by will to four grand-daughters, and the heirs of their bodies, and three died unmarried, the two surviving children of the fourth grand- daughter became entitled to the whole estate; though no cross- remainders, as among the grand-children generally of testator were in terms provided for. Atkinson v. Barton, 3 D. F. & J. 339. (Eeversed, but on another point, 10 H. L. Cas. 313.) Q. 40. Devise to George H. for life, and after his decease to his children and their heirs forever; but if George should die without issue, or leaving issue and such child or children should die before attaining the age of 21 years, or without issue, then over. After testator's death, George suffers a re- covery, and died unmarried and without issue. (a) Did the ultimate devisees take by way of executory de- vise, or by vested remainder ? (b) What effect did the recovery have ? A. (a) Neither. There is a contingent remainder here. Where a devise may operate as a contingent remainder, it can not be considered an executory devise. And nothing vested at the death of testator. (b) The recovery operated to destroy the particular estate, that estate being a contingent remainder. George took a life estate. If he had had children, they would have taken a fee. But there were no children. Doe ex dem v. Selby, 2 Barn. & C. 926. Q. 41. Bequest to A for life, and after her decease to B and C in equal shares. In case of death of either B or C in the life- REAL ESTATE 275 time of A, the whole to the survivor of B and C living at A's death. Is this a vested or a contingent remainder ? A. Vested. In case B or C die in A's lifetime, the remain- der, as to the one so dying, will of course devest. But it will not devest until that event happens. Harrison v. Foreman, 5 Ves. Jr. 207. Q. 42. A testatrix gives all her property to her two daugh- ters ; but provides "in case of the death of either of said daugh- ters, the share of the one dying shall go to the other. In the event of the death of both before marriage, said property shall be divided equally among all my surviving children." The two daughters survived testatrix. So did five other chil- dren of testatrix. At the time in question, neither daughter had married. A controversy arose as to the nature of the estate to take effect on the death of the two daughters without having married. What is that estate ? A. A contingent remainder. The event on which it is to take effect is contingent; and the person who is to take is not ascer- tained. Either element would operate to make the remainder contingent. Sullivan v. Garesche, 229 Mo. 496. Q. 43. Redraft the clause in the foregoing will. A. "I devise and bequeath (lands in question) to my daugh- ters (naming them) with this condition or limitation however, that is to say, if neither of them should ever marry, the fee is to determine on the death of the survivor of them, and the (lands in question) are to be divided equally among my then surviving children, or issue then surviving of my then deceased children." Sullivan v. Garesche, 229 Mo. 496. O. 44. What distinguishes a springing from a shifting use? A. A springing use arises on a future event, where no pre- ceding estate is limited, and in derogation of no preceding inter- est, while a shifting use takes effect in derogation of some other estate. Tiedeman Real Prop. (3d ed.), §§ 355, 356. 276 LAW STUDENTS' REVIEW Q. 45. Robert Wickliffe devised lands in trust for the use of his daughter, Mrs. Preston, for life, and by will empowered her to appoint to the use of any of her children or descendants ; in default of appointment to go to her heirs at law. Mrs. Preston attempted to exercise this power by appointing the property to her six children for life, remainder in fee to their children. All her children were born during the life of above testator, Wick- liffe, and were in being at the time he died. One of Mrs. Pres- ton's children, Mary, died a few years after Mrs. Preston, leav- ing a will by which she attempted to devise all her property to the Fidelity Trust Company, for the benefit of her children and grandchildren. Did this devise pass title ? A. No; because the power in Robert Wickliffe's will was invalid under the rule against perpetuities, insofar as it seeks to empower Mrs. Preston to appoint to grandchildren unborn at Wickliffe's death. As Mrs. Preston was alive at the time of her father's death, she might have had other children than the six then in being. In this event, they, as well as grandchildren un- born at Wickliffe's death, would have been included within his devise. Accordingly, at her death the power in Wickliffe's will might be exercised to take effect in behalf of one not in existence when his grandfather died, for life, and then to his children for life, with remainder to the latter's children. The power of appointment given to the daughter by Robert Wickliffe could not be used to * * * postpone the vesting of the fee for a larger period than Wickliffe himself could have done. Brown v. Columbia &c, 123 Ky. 775. Q. 46. Explain the distinguishing features of ground rent, at common law. A. A ground rent is a rent reserved to himself and his heirs, out of the lands conveyed, by the grantor of land in fee simple. It is a rent service, and not a rent charge; that is, it is a reser- vation of rents out of lands conveyed, and not a grant of rent out of lands retained. It is considered real estate, and the owner has an estate of inheritance in the land, which may be sold on execu- tion. The ownership of the ground-rent is separate from the ownership of the ground. 20 Cyc. 1370, et seq. REAL ESTATE 277 Q. 47. R. T. Davis agreed with complainant's assignor that he would convey, by warranty deed, a half interest in a 40-acre tract of land, to be selected by complainant's assignors in a cer- tain section of land owned by Davis, as soon as such assignors had built a designated railroad, established its depot and a train had made a trip to Montgomery, Alabama. These conditions were fulfilled, and the land was selected in 189 1, In April, 1896, complainant Williams became the assignee of the con- tract and was entitled to a deed. In December, 1896, Williams became a tenant as to the forty acres in question, of the de- fendant (successor in the title to Davis, who had died), and thereafter and while such tenant filed a bill for specific per- formance of the contract. Can he maintain it ? A. No. This would amount to denying his landlord's title; and this he is estopped from doing. So far as appears, the title of the landlord is just what it was when Williams became tenant. Before he can assail it, he must first restore possession of the land to his landlord. Davis v. Williams, 130 Ala. 530. Q. 48. A merchant leased a certain lot of land, available only for trade purposes, on which stood a store building; the lease providing for a five year term, and containing no covenants as to repairing or rebuilding. The store was accidentally destroyed by fire. The lessor declined to rebuild, whereupon the mer- chant refused to pay rent for the unexpired portion of the time. May the lessor recover such rent ? A. Yes. Where there is no provision to rebuild, &c., in the lease, an accidental destruction of the building does not termi- nate the obligation to pay rent. 24 Cyc. 1345. Q. 49. Where a landlord of a store building fails to keep his covenant to make repairs, what remedies has the tenant ? A. 1. He may abandon premises if they by reason of such failure become untenantable. 2. He may make the repairs and deduct the cost from the rent. 278 LAW STUDENTS' REVIEW 3. He may occupy the premises without repair and recoup his damages when sued for the rent. 4. He may sue for damages for breach of the covenant to repair. Jones Land. & Ten., § 410. Q. 50. "Detroit, Mich., Apr. 21, 1900. "J. K. Minock, Esq., Dear Sir: — Herewith please find receipt for advance rent on room No. 686 Third Avenue, beginning May 1st, 1900; rent $25 per month first six months." April 24 Minock answered in writing as follows : "Dear Sir : I received your letter. All is right. I am loading two cars with hay and produce, and will be at Detroit as quick as I can." Minock went into possession, paying for a month. Then he quit. The lower court held that the clause "rent $25 per month first six months" is ambiguous ; and therefore allowed the jury to consider oral negotiations prior to these letters ; and to deter- mine whether the letter meant that the rent of $25 was to con- tinue for six months, if defendant stayed that length of time. Is the court correct ? A. Error. The letters constituted a leasing; and the con- struction of them was for the court as a matter of law ; and not for the jury. Minock having gone into possession, should be required to pay rent at the rate specified. Baer v. Minock, 128 Mich. 676. Q. 51. The parties litigant were landlord and tenant. The landlord (plaintiff) let to defendant an unfurnished dwelling known as 334 West Fifty-eighth street in New York City, for one year — from October, 1888, for $1,800, payable in equal monthly instalments. The lease contained no covenants as to the condition of the house ; or requiring landlord to put or keep it in repair. Tenant went into possession, and stayed until February, 1889, paying rent until January, 15th. Assuming that the condition of the house was unsanitary, REAL ESTATE . 279 and that this arose from defective plumbing; and that tenant abandoned it for that reason, in February, can he be held for the balance of the year's rent ? A. Yes. There is no implied covenant on the part of the landlord that the dwelling is without inherent defects, render- ing it unfit for a residence. This general doctrine, however, is to be qualified. In case the premises have secret defects, render- ing it unfit for habitation, and the landlord knows this, and fraudulently misrepresents, or fraudulently conceals their exist- ence, and the tenant quits, the tenant is not liable for after- accruing rent. Daly v. Wise, 132 N. Y. 306. Q. 52. Suppose the house had been furnished, and turned out to be so infested with bugs as to be unfit for habitation, and for this reason the tenant gives it up, declines to occupy it, and refuses to pay rent. Is the tenant in this instance liable for after-accruing rent ? A. Not liable. It is unreasonable to hold that under such circumstances the landlord does not impliedly agree that the house is suitable for occupation at the time; and the distinction between unfurnished houses, and furnished houses, has long been recognized. Ingalls v. Hobbs, 156 Mass. 348. Q. 53. Action for rent for the month of May, 1895, and the six months following. In March, 1894, a lease was executed, to terminate May 1, 1895. The rent was payable monthly. De- fendant vacated the premises May 15, 1895 ; and it was claimed that as he had held over the expiration of the term, he was liable for rent, payable monthly, for another year. Assume that defendant gave plaintiff notice in February, 1895, of his intention to surrender May 1 ; that the demised premises were a dwelling house and that the "holding over" was extended to only one bedroom and was by reason of the sickness of defendant's mother, who was a member of the family, residing in the house, and was too ill to be moved except by risking her life. The court directed a verdict for seven months' rent. Discuss the question whether it should stand. 280 LAW STUDENTS' REVIEW A. No. It is clear that where the demise is for a year at a fixed rent, and the tenant holds over, the landlord may at his election treat him as a tenant for another year, and collect rent accordingly. But was this a holding over? Holding over must be voluntary on the part of the tenant; e. g. if he be detained in the house by the police under the direction of the police authorities, this would not in contemplation of law, constitute a holding over. And in the above case, the serious illness of his mother, and the risk to her life of moving her out of the house, is comparable to vis major. Herter v. Mullen, 159 N. Y. 28. Note that of the seven Court of Appeals judges, three dis- sent; this on the ground that excuses for holding over would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury; thus involving the rights of landlord and tenant in confusion. Q. 54. What is an easement? A. It is a charge or burden on one estate for the benefit of another. The burden is a "servitude." The estate which gets the benefit, is the "dominant" estate; the other is the "servient." See Morrison v. Marquardt, 24 Iowa 35. Q. 55. Lord Eglinboun, the steward of the races at Doncas- ter, sold for a guinea, a "ticket" to plaintiff, entitling plaintiff to come into the "grand stand" and the enclosure adjoining, and to remain there during the races. Plaintiff was in the en- closure on a race day, and was conducting himself properly. A servant of his lordship requested plaintiff to depart, and told him if he did not go he would be ejected. Plaintiff refused to go; and was thereupon forcibly ejected. No more force, how- ever, was employed than was necessary to put him out. His guinea was not returned. He sued the servant in tort. Can he recover ? A. No recovery here. The sale of the ticket, as in the case of theatre tickets, amounts to a license; and this, though paid for, may be revoked without returning the money. Thereupon the holder has no right to remain any longer on the premises. He may have an action in assumpsit for his money; but none in tort. Wood v. Ledbitter, 13 Mees. & Wels. 838. REAL ESTATE 28 1 Q. 56. Plaintiff sued in equity to enjoin defendant from ob- structing plaintiff in passing and repassing over a certain path to the beach, and procuring sand and gravel and seaweed from the beach adjoining plaintiff's farm. A farm had been divided into two portions ; the north part consisting of forty-nine acres ; the south bounding on a beach, consisting of fifty-nine acres. The owner of north portion was by deed entitled to take the seaweed, etc., for use on the dom- inant tenement, and in so doing by necessity had to pass and repass over the servient estate. Assume that the owner of the servient estate became the owner of thirty acres of the dominant estate: would this op- erate to extinguish the easement to take the seaweed, etc. ? A. No. The right to take the seaweed is apportionable. It is intended for the use of the dominant estate, and for every acre of it, equally, and whether the right be* divided or not, the measure is the same. It may therefore be apportioned; and therefore is not extinguished. Hall v. Lawrence, 2 E. I. 218, 237. Q. 57. A corporation owned a parcel of land and a building thereon at Atlantic City, and operated a merry-go-round. It had an entrance on "the board walk," a much used promenade. The corporation in writing "did grant, demise, lease and to farm let" to the plaintiff the exclusive "privilege" from June,. 191 1, to January, 1913, of using certain space on the board walk at the entrance for renting rolling chairs for use on said land on Sundays and evenings — "Rent $15 a month." The corporation sold out ; and removed the merry-go-round. In November, 191 1, the purchaser refused to allow plaintiff to proceed with the rolling chair business. Plaintiff sued pur- chaser. Can he recover ? A. Yes. It was conceded that there is no lease here, although words usually found in a lease are used. The controlling ques- tion is, did plaintiff have an easement; or did he have a mere license which might be revoked. Held, that while ordinarily an easement is a right in fee, yet it may be merely for a term of years. Goldman v. Beach Front &c, 83 N. J. L. 97. 282 LAW STUDENTS' REVIEW Q. 58. A owns a field, which he sells (in the midst of, and entirely surrounded by, land which he retains) to B, by a deed containing general covenants of warranty and against incum- brances, but which contains no express grant of a right of way across the land which A retains. What do you say as to B's right, if any, to an easement for purposes of access ? A. A right of way of necessity across the land retained is granted by implication to B from the necessity of the situation. 14 Cyc. 1174. Q. 59. A dug a well upon his own premises from which he drew water to operate his mill. Afterward B sunk a coal pit on his land, by reason whereof A's well was drained dry. A sued B for damages. Can he recover ? A. No. The owner of the soil may divert percolating water, consume it, or cut it off. The law governing surface streams does not apply. Pixley v. Clark, 35 N. Y. 520-526. Q. 60. A brother, old and feeble, said to his sister, who had kept house for him, that he "would go into St. James (a neigh- boring village) and fix the deed for her." When he came back he handed her the deed to his farm, where they lived, and told her to lay it away "until the change" (referring to his death) came * * *. "If I have to go first, you will have something to secure you a home, and if you die first I will make you secure. The land remains in me." * * * "I am old and am liable to go first, but the deed is yours." He told her to hold until after he had gone, and then record the deed. She took the deed and put it in her trunk. She took his intention to be that if she died first he would still have the land. Afterward the brother conveyed to a purchaser, a stranger, but took the land back, — and he and the sister "came back home." The sister had invested $1,500.00 in improvements on the farm. After the brother's death she placed the deed of record. Was there a delivery ? REAL ESTATE 283 A. There is a good delivery here. Delivery may be shown by acts without words, or by words without acts, or by both words and acts. The underlying principle is the expression of the intention of the parties, on the one hand to transfer, on the other to accept. Here the instrument physically passed from grantor to grantee, and thereafter speaks for itself. Miles v. Robertson, 258 Mo. 717. Q. 61. Suppose the owner of lands in question handed his deed of conveyance to one who was the agent of the grantee in making the purchase. This was done with the understand- ing that it would not be delivered to grantee until the purchase price was paid. In some manner the deed was x placed of record. A second purchaser, not actually knowing the deed was of rec- ord, is told by the agent that the deed was in existence, but that it was "dead" because the condition of its delivery to grantee had not been complied with. Still, he bought the land from the owner and took a deed therefor. Was there a delivery to grantee, or does the second purchaser prevail ? A. While the general rule is that delivery to an agent is delivery to a principal ; yet here the agent, in receiving the deed, was acting as agent for the owner, and was in effect an escrow- holder. As this appears to involve no violation of his duty to grantee, he may act as such escrow-holder; and as the condition upon which the delivery depends is not performed, the second purchaser may rely on this, and should prevail. The ancient rule was otherwise. 16 Cyc. 573, 574. Watkins v. Nash, L. R. 20 Eq. 262. Q. 62. A contracts to sell B certain real estate. According to agreement, B pays cash one-sixth of the purchase price, and A executes a conveyance of the land to B and deposits it with a bank, with a written statement, signed by both, that the deed should be delivered to B, on payment to the bank for A within ninety days of the balance of the purchase price; that if not paid, the portion already paid should be forfeited to A as dam- ages. A dies thirty days later. Before the ninety days have expired, B tenders the unpaid purchase money and demands the deed. Must the deed be delivered? 284 LAW students' review A. Yes. Where a deed is deposited in escrow, though one of the parties dies before condition performed, yet if afterward the condition is performed, according to agreement, the deed is good and will take effect from the first delivery. 2 Jones Real Prop., § 1324. 2 Tiffany Real Prop., § 406. Q. 63. Lessee covenanted "Not to let, accept, assign, trans- fer, make over, barter, exchange, or otherwise part with in- denture, etc.," and covenanted also that in such case landlord might re-enter. Subsequently lessee gave warrant of attorney to confess judgment, and in exercise of this power; a judg- ment creditor of lessee took lessee's interest on execution, and sold the lessee's interest in the premises. Does this amount to a breach of the covenant against as- signing? i. e., while of course this amounts to substituting an- other tenant in place of the one selected by the lessor — yet has the lessee violated his lease ? A. He has not. He does not covenant that his creditors may not, come upon the lease by way of execution; and of course he has not covenanted that he will not give a warrant of attorney. Gross, J., points out in above instance, that if lessor had wished to guard against such substitution of a tenant he did not select for one he did select, a proviso that the lease, in case of insolv- ency or bankruptcy, should be void, might have been inserted; also that the giving of warrant of attorney does not in terms operate upon the lease. Doe ex dem. Mitchinson v. Carter, 8 T. R. 57. Q. 64. A conveyed land to which he had no title to B by deed containing covenants of seizin, of warranty and for quiet enjoyment. B went into possession and his occupancy remained undisturbed. B sued for breach of the covenants. A acquired title to the land after suit was brought, and tendered it to B by a new deed, which B refused to accept. Can B recover? and if so, on what theory ? Suppose B had been evicted before bringing suit, what would you say? A. In case suit be brought by the grantee for breach of the covenant of seizin the grantor could not defeat the action by purchasing the title and tendering it to the grantee, if the REAL ESTATE 285 grantee refused to accept it; the covenant being broken as soon as made. Tucker v. Clark, 2 Sandf. Ch. 96. If prior to the eviction of the grantee the grantor, with covenants of warranty and quiet enjoyment (these running with the land) acquires title, it inures to his own benefit in dis- charge of his covenants; but where title is acquired after evic- tion, it does not without grantee's consent inure to grantee by way of estoppel, so as to defeat his right to sue for breach of covenants and to recover damages, nor can the grantor avail himself of it in mitigation of damages. 11 Cyc. 1137. Q. 65. Explain and illustrate what is meant by a covenant that "runs with the land." A. A covenant is said to run with the land when such cove- nant, given by a prior owner, inures to the benefit of the subse- quent owners in the chain of title, or when its purpose is to give future protection to the title which the deed containing the covenant undertook to convey. Such a covenant must bear an intimate relation with and concern the land conveyed. 11 Cyc. 1080. Tiedeman Real Prop. (3d ed.), § 626. Illustrations: Covenants for the payment of rent, or other sums, which are made a charge on the land ; covenants to use the land, or not to use it, in a specified manner; to maintain fences or other structures; or to permit the enjoyment of an easement; covenants of warranty and for quiet enjoyment. Q. 66. Grantor, defendant, in January, 1892, being the owner of certain lands, conveyed to one Knabe, by a deed with full covenants. At that time the land was incumbered by an as- sessment for $241. In March, 1892, Knabe conveyed to one Brierly, expressly subject to the assessment. On October .21, 1893, Brierly conveyed to plaintiff, with a covenant against incumbrances, and thereafter plaintiff was obliged to pay the assessment. Plaintiff seeks to recover the amount of the assessment from gz-antor. Should he succeed ? A. No. Had it not been for the fact that in conveying to Brierly, Knabe conveyed subject to incumbrances, plaintiff might succeed, for this covenant runs with the land, and, if unbroken, 286 LAW students' review inures even to a remote grantee. But presumably Brierly, by- way of deduction from the price he paid, "was furnished with the money" wherewith to pay the incumbrance. In any event, the covenant is at this point extinguished as to prior warrantors. Geiszler v. De Graaf, 166 N. Y. 339, 345. Note that where substantial damages for breach of war- ranty, and eviction, are claimed, against a grantor, the proof must show either that the title under which eviction is had was paramount to grantor's title, or that grantor was bound by the action whereby eviction is had. Eaton v. Lyman, 30 Wis. 41. Q. 67. Grantor covenants that premises are free of all in- cumbrances except a mortgage (describing it) * * * and that he and his heirs will warrant and defend the premises to grantee, his heirs and assigns forever against the lawful claims and demands of all persons. Grantee, to avoid eviction, was required to pay the mortgage. He did pay it, and sued grantor. Should he recover ? A. He should recover. Grantor sought to defend on the ground that the exception as to the mortgage contained in the covenant against incumbrances, operated also to restrict his covenant of warranty. This of course raised the question whether the covenants against incumbrance, and of warranty, are con- nected covenants of the same import and directed to one and the same object. Held, that they are not thus connected; that the restriction runs only to the first named covenant; and does not restrict the warranty. Estabrook v. Smith, 6 Gray 572. Q. 68. A mortgaged to B certain land ; the condition being that if B should become endorser on a certain note of A for $1,500, for the latter's accommodation, and if A should pay the same at maturity, the mortgage should then be void and of no effect. The mortgage was recorded. Later C secured a judg- ment against A which was made a lien on the land. Subse- quently B, with the knowledge of C's judgment, endorsed the note described in the mortgage. C attacks the mortgage on the grounds (1) that it was given to cover future advances, con- tending that it was therefore void, and (2) that even if valid the judgment lien was paramount to the mortgage lien. How should C's contentions be decided ? REAL ESTATE 287 A. Against C as to the first contention. A mortgage may be made as well to secure future advances or loans, as for present debt or liability; and if executed in good faith it will be a valid 1 security. The mortgage was good as between A and B. 27 Cyc. 1069. But where there is no obligation to incur such future lia- bilities the mortgage constitutes a lien from the time the liabil- ity is incurred, but not as to incumbrances made before advances of which the mortgagee had notice. The mortgage would have been a lien from the time of delivery if there had been a legal obligation to incur the liability, not otherwise. C's judgment therefore was paramount. 1 Jones Mort., § 383. Q. 69. A, the owner of land, excavates a pit thereon, so near the land of B, which adjoins that of A, as to cause B's land to slide off, carrying with it valuable buildings erected by B upon his land. Assuming that the soil would have fallen by reason of the excavation had there been no buildings thereon ; assum- ing also that the excavation was made with reasonable care and skill to avoid unnecessary injury, discuss B's right to recover from A. A. Each is entitled to have his soil in its natural state sus- tained, when necessary, by the lateral support of the adjacent soil of the other ; but neither has the right to burden the land of the other with the support of any additional weight. However, excavations must be made with care to avoid injury. Thurston v. Hancock, 12 Mass. 220. Q. 70. Having reference to lateral support, comment on the following instruction to a jury : "If you find that the defendant removed land adjoining plaintiff's and as a result of such removal the buildings on plaintiff's land were destroyed or injured, in estimating the damages you may consider such injury to the buildings, if any." A. By the instruction, or by some instruction given in the case, the jury should be told that an adjacent owner may exca- vate as he sees fit, provided he does not do so recklessly or care- lessly. If he uses care, and a building falls by reason of its burdening the natural soil with its additional weight, the owner 288 LAW students' review of the building is without remedy. An owner has a right to lateral support for his land only in its natural state. Moellering v. Evans, 121 Ind. 195. When an adjacent building may be affected by a proposed excavation, it is necessary not merely to excavate carefully; but also to give the owner of the building notice to "shore up,'' or otherwise protect the building. Otherwise the excavator may be liable. Q. yi. Assume that a natural stream forms the boundary between the lands of A and B ; and that each owns to the center of the stream. Assume further that the channel of such stream is within the boundary of A's lands, and not within B's. Discuss the right of A and B to the use of the water which flows in the stream. A. Each is entitled to use one half of the water which flows in the stream, although by reason of the location of the channel more water flows over A's than over B's land; and this is true even though A has used more than his share. A can thus gain no prescriptive right, so long as B neither uses, nor seeks nor has occasion to use, the part of the stream to which he is entitled. Pratt v. Lamson, 2 Allen 275. Q. 72. Where a railroad company, having authority of law to construct a bridge over a water course, builds the bridge imperfectly and improperly, so that it prevents the free passage of the water and thereby causes the land above, in times of heavy rains, to be overflowed, will a judgment for damages caused by the creation of a nuisance by means of such bridge, bar an action for subsequent damages arising from the same cause? A. No. The landowner is not bound to assume that the bridge will be continued in its imperfect condition, and each injury gives cause to a separate cause of action. If the bridge were properly constructed, all damages, past and future, must be recovered in one action. However, the landowner may treat the defective structure as a permanent injury, and recover future damages in one suit. Chicago &c. R. Co. v. Schaeffer, 124 111. 112. O. 73. A, the owner of land through which flowed a water- course, erected a dam on his land across the brook, thereby REAL ESTATE 289 stopping the flow of water, to the injury of B, a lower propri- etor. Without consent of or notice to A, B entered upon A's land and peaceably tore down the dam. A sued B for trespass. What are the rights of the parties? A. A can not recover. A private nuisance which injures another may be peaceably abated by the person injured without notice, so that he commits no riot in doing it. The reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy as to things as are of daily convenience and use, require an immediate remedy, and can not wait for the slow progress of the ordinary forms of justice. In the above case, the object of B in entering the land of A justified the trespass. 3 Blackst. Comm. 5. Q. 74. Two owners owned land in common. They died and left minor heirs. A division was made based upon adjustment out of court. Thereupon the heirs of each of the former own- ers occupied their respective lands set aside to them. The part held by one set of the minor heirs was sold for their ancestor's debts; and a balance of purchase money was paid to their guardian. Assuming the division to have been just, is a charge of the court "Sale and payment of debts of one ancestor would cause heirs of the other to be substituted to his rights in the other part" correct? A. The charge is correct. A fair partition followed by ju- dicial sale and a proper application of purchase money would sever possession even against minors. Whatsoever an infant is bound to do by law, same shall bind him, albeit, he doth it without suit at law. So wives are held to be bound when hus- bands partition land. Williard v. Williard, 56 Pa. 119. Zouch v. Parsons, 3 Burrow 1794. Q. 75. Plaintiff, a farmer, owned a hundred acre farm bounded in fact, and by the terms of his deed, on the Juanita river. The Juanita is a navigable stream. As the water flowed by his land, it was gently deflected from a straight course, and this and the slowness of the current, caused large quantities of 19— L. S. Eev 290 LAW STUDENTS REVIEW sand to be deposited on the farmer's shore line between high and low water marks. This sand the farmer had been in the habit of selling from year to year, as it was regularly deposited. The Pennsylvania Railroad, in straightening its track, built an embankment, which affected the natural flow of the river current, and caused it to pass swiftly by the plaintiff's shore. Then no more sand was deposited, and sand already deposited was washed away. The farmer sued the railroad. The jury brought in a verdict for plaintiff, "For sand bank carried away, $1,382.50; for destruction of the habit of the farm to gather future sand, $1,117.50." Assuming these amounts fairly to represent the damage, can' the verdict be sustained ? A. Yes. The sand is "alluvium," and it belongs to the riparian owner. That it had not been allowed to accumulate and form an accretion, makes no difference. The only qualification of his right is that he shall not interfere with the public right of navigation or fishery or improvement. His rights to the sand, having in view the above restrictions, was the same as his rights to his crops. Accordingly the verdict, though unusual in form, should stand. Freeland v. Pennsylvania &c, 197 Pa. 529. Q. "j6. A land owner named Swain owned a tract of land abutting upon corporate limits of the city of Haselton. He staked out a strip through it eighty feet wide to the city limits, and built fences on both sides, in some places a little more than eighty feet apart. He said to several people that he would give the street to the town if they would open it up. Told his son he was giving the street to the town to open it up ; and in a deed which he gave to certain of his lands he bounded, "down a street eighty feet wide to be given and appropriated to the town of Haselton." The city worked the street by laying a side- walk and grading and keeping in repair a strip thirty-five feet wide ; this being sufficient to accommodate the public travel. Assuming that this amounts to a dedication ; is there an ac- ceptance as to the whole width of eighty feet? Or is the ac- ceptance only as to the portion worked and kept in repair ? REAL ESTATE 29 I A. The acceptance goes to the whole strip. It is sufficient if the opening meets the exigencies of public travel, to indicate acceptance of the entire 80 feet. Note the distinction between acts relied on as showing implied dedication, and acts showing acceptance of an express dedication. Where the dedication is only implied, the right of user will be restricted to the land actually used; but where the dedicator has himself fixed the limits, acts of' the public authorities in recognition of the offer will imply acceptance of the whole offer. Ellis v. Hazlehurst, 138 Ga. 181. Q. J J. A owns certain land. B obtains possession and holds it adversely for over twenty years. A then peaceably retook possession. What are B's rights, if any? A. He may recover the land as against the world, including the former paramount owner. Title acquired under the statute of limitations, is when acquired, just as available for attacking as for defensive purposes, and its availability in this respect will not depend on the occupant's thereafter continuing in actual possession. McDuffee v. Sinnott, 119 111. 449. Q. 78. Suppose an alley is so platted in a town plot that plaintiff owns a lot of land abutting on the alley; and for twenty-eight years has fenced the alley up by gates and bars ; and claims, against the town, to hold adversely, and to have acquired title by prescription. Should he succeed ? A. No. As against a municipality exercising public func- tions, the right by prescription founded on twenty years' ad- verse possession, is not available. "Tempus non occurrit regi." Schultz v. Stringer, 168 Iowa 668. Q. 79. Suppose that claimant of adverse title, within the clearly marked boundaries of a fifty acre tract, cuts trees with which to build a house; cuts rails, but builds no fence suffi- cient to make an enclosure of any sort, though some of the rails he puts up ; and that claimant several times caused a sur- veyor to "run" the boundary lines. Assume that claimant held under a deed giving color of title for over twenty years, and that above acts began sixteen or eighteen years prior to the hearing of an ejectment suit brought against him. 292 LAW STUDENTS REVIEW Is there enough evidence of adverse possession to go to a jury? A. Evidence is insufficient and jury should be so directed. One test is, that for twenty years continuous possession must be such that the person having the right of entry can find an occupant against whom he can bring and sustain ejectment. Frazier v. Ison, 161 Ky. 379. Q. 80. Assume that a lot of land is so situated, on a steep declivity, that it can not well be built upon, cultivated or fenced, that its principal use and value are in the convenience of digging sand and gravel, for the inhabitants of the city wherein it is located. That defendant, who claims by adverse possession, lived across the street ; paid taxes on the land ; dug and claimed exclusive right to dig sand and gravel, leasing and giving per- mission to some, refusing permission to others to do the like ; and suing them for trespass if they took sand without his per- mission, for a period of upwards of twenty years. Is there enough evidence of adverse possession here to go to the jury? A. Yes. The jury would be at liberty to infer that defendant was during the whole time in possession of the lot as fully as any person could be of a lot not built upon or enclosed; or as the sit- uation of the lot would admit of. Ewing v. Burnet, 11 Pet. 41. Q. 81. A owned land bordering on a river. B took adverse possession of the land, and continued in such possession of it for twenty years. Entirely within the last ten years of his pos- session, five acres were added to the tract by. accretion. A brought ejectment for the five acres, admitting that his title was barred by the statute of limitations as to the tract held and orig- inally seized adversely by B ; but claiming title to that portion that had been newly formed by accretion. Can A recover ? A. No. The title to land acquired by accretion is subject to any incumbrances or rights in other persons to which the land to which the accretion is made is subject. Consequently, it may become subject to a lien, easement, etc., and if the statute of REAL ESTATE 293 limitations has partially run against the owners right to recover the land originally existing, his right to recover the newly- formed land is liable to be barred within the same time. 2 Tiffany Real Prop., § 1036. Q. 82. State generally the requirements of "adverse pos- session." A. It must be adverse in the sense of hostile to the holder of the "older and (otherwise) better" title, actual, visible, ex- clusive and continuous. Parrish v. Foreman-Blades &c, 217 Fed. 335. Q. 83. Suppose that a corporation having a right to condemn land for a canal should try to take a strip wide enough to ac- commodate a parallel railroad that it hoped to get legislative authority to construct in the future, what remedy has a prop- erty owner who does not wish to part with more of his land than he is obliged to part with ? A. He may apply to the court hearing the condemnation case to require the corporation to show its plans and thus estab- lish its need for the amount of land asked. The statement of the corporation that it needs the amount is prima facie evidence of its wants, and the law contemplates that the right of eminent domain shall afford means of effecting the object for which the canal corporation is chartered. But building a railroad is not one of these. Tedens v. Sanitary &c, 149 111. 87. Q. 84. Plaintiff sued a railroad company to recover for the damage to his property resulting from the maintenance by de- fendant of an alleged nuisance. The grievance complained of was the operation by defendant upon its own lands near to, but not adjoining, the lands of plaintiff, of a railroad and tunnel. The rear window of plaintiff's house opened in the direction of the railroad tracks leading from defendant's tunnel, at a distance of about ninety feet therefrom ; and the operation of a fanning system in the tunnel forced the gases and smoke from the outlet of the tunnel, and caused injury to plaintiff's house and premises. 294 LAW STUDENTS REVIEW An Act of Congress authorized the defendant to acquire by- purchase or condemnation the lands and property necessary for the construction of its railroad and tunnel; but plaintiff had not been made a party to any condemnation proceedings. Is there here a "taking" of his land for public use without just compensation, within the meaning of the Constitution? A. There is. While the Act of Congress referred to had the effect of legalizing the construction and operation of the rail- road, so that its operation while properly conducted and regu- lated, could not be deemed to be a public nuisance; yet it can not confer immunity from action for a private nuisance of such a character as to amount in effect to taking of private property for public use. For example, the noises and vibrations and necessary emission of smoke and sparks and similar annoyances inseparable from the normal and non-negligent operation of a railroad, would be damnum, absque injuria; but blowing smoke and gas over a man's property does not come within this cate- gory. Richards v. Washington &c, 233 U. S. 546. CHAPTER XII WILLS Question I. Henry C. Sherrod made his will in June i860. Both at that time, and at the time of his death, he was above the age of eighteen years; but under the age of twenty-one years. He undertook to charge certain of his lands with the payment of a legacy of $10,000 to Alice C. Sherrod and $5,000 to Sophia Gibson. By codicil it was provided that in the event the crops should not be sufficient to pay the legacies in three years, the shortage in legacies should bear interest, and be payable out of succeeding crops from lands belonging to testator. Assuming that at common law infants were incapable of devising real estate; but that as to personalty, females of the age of twelve, and males of the age of fourteen could make a valid disposition by will, were above legacies valid legacies ? Answer. Invalid. If valid, it would be possible for an infant testator having capacity to dispose of personalty, by pecuniary legacies chargeable on his lands to disappoint and disinherit his heir, as effectively as by express devise to another. Accordingly above testator could not charge testator's lands with a legacy, unless the will took effect after he became twenty-one years of age. Banks v. Sherrod, 52 Ala. 267. Q. 2. Suit on a promissory note made by appellees to one John Gillham, was brought by appellants, who claimed title to the note by virtue of an instrument in writing as follows : "The State of Alabama Pickens County I, John Gillham, do make this con- ditional deed of gift of all money due, or hereafter to become 295 296 LAW STUDENTS' REVIEW due to me, * * * said claims of money being evidenced by promissory notes and accounts, all of which are herewith de- livered to my said four sisters, and in the event I shall die, or be killed in the casualties of the war * * * then all such moneys are to become the property of my said four sisters, * * * but if I should survive and return, then this instrument is to be null and void, otherwise to remain in full force and effect. Witness my hand and seal, this 7th day of April, 1862. (Signed) John Gillham (Seal)." The instrument was attested by two witnesses. Is this a deed? A. Though in form a deed, still if the purpose be testament- ary, and only to be consummated by death, effect will be given to it as a will and not as a deed. The test is a general reserva- tion of the maker's right to deal with the property as his own, notwithstanding the instrument; and accordingly the foregoing is of testamentary character and can have no effect as a deed. Gillham v. Mustin, 42 Ala. 365. O. 3. Alice Fowler died at Greenwich, Connecticut, Feb- ruary 7, 1875. March 8th, the Probate court, Greenwich dis- trict, granted letters of administration to one Field upon the estate decreeing that she had died intestate domiciled within that district leaving goods and estate whereof administration appertained to that court. Decedent left an instrument purporting to be a will, executed December 6, 1874, in Greenwich, attested in accordance with the New York law concerning wills, by two witnesses. Later the New York courts found decedent was domiciled there and admitted the will to probate. The proceeding there taken was on notice and citation to all parties concerned. It did not appear that notice was given when the will was pro- bated in Connecticut. The New York executors attempted to take out ancillary administration in Greenwich; but the court refused to grant it, holding the original grant of letters controlling. Is the coUrt correct in this? A. Error. It is not a matter of legal necessity that a grant of letters should control the disposition of the estate. The Con- WILLS 297 necticut ex parte decree must yield to the superior force of proof made "that decedent was domiciled in New York"; and original letters should issue there. Appeal of Willetts, 50 Conn. S30. O. 4. One Elizabeth Hormel died intestate. She was a citizen of the United States; and at the time of her death resided in Iowa. She was seized of certain real estate ; and this passed to her next of kin legally qualified to inherit. Her only heir was her mother, a nonresident alien, who lived in Bavaria. Subsequently to death of intestate, the mother also died (in 1894), also intestate. Her next of kin were two non-.resident alien children, and a third child, the plaintiff, Fred Opel, a citizen of the United States, resident in Iowa. Failing heirs who could take, the property would under Iowa law go to John Hormel, surviving husband of Elizabeth. Does John Hormel take? or does the plaintiff, Fred Opel, take? and if so do the two aliens, brother and sister of plain- tiff, take with him ? A. While an alien, and therefore disqualified from inherit- ing real estate at common law, yet a treaty between Bavaria and the United States secures to the mother the same right (pro- vided she dispose of the property within two years) she would have had but for her alienage. And similarly plaintiff's brother and sister, though alien, will, along with him, take the estate which vested in the mother of the intestate. Opel v. Shoup, 100 Iowa 407. Luhrs v. Eimer, 80 N. Y. 171. Q. 5. Assume that there is a statute of California rendering a bastard capable of inheriting from his mother; but that the mother of a bastard makes a will "praetermitting" the bastard, and leaving all her property to the two children born of her in lawful wedlock. Assume further that where any testator omits to provide in his will for "any of his children," "such child," unless it appears that the omission was intentional, shall have the same share he would take had the parent died intestate. Does the bastard, in the above instance, take? 298 LAW STUDENTS' REVIEW A. Yes. The common law meaning of "child," is child born in lawful wedlock. And thus, but for the statute enabling ille- gitimate children to inherit, the illegitimate "child" above prae- termitted, would take nothing. But in the above case, the child though illegitimate by birth, is endowed by the statute with heritable blood; and possesses as to her mother the same right as if born in lawful wedlock. In re Wardell's Estate, 57 Cal. 484. O. 6. A will is said to be "ambulatory" — what does this mean? A. Means revocable during testator's life, providing that when he revokes he be compos mentis. See 30 A. & E. Encyc. L. (2d ed.) 572. Q. 7. A and B enter into a writing whereby each agrees to make a will leaving all his property to the other. A dies ; and B takes his estate under such will. B dies intestate. Have A's heirs any claim on B's estate? A. While such an agreement, if only executory, might not be enforcible; yet here, where A has carried out his under- taking in good faith, B's property would be affected with a trust in favor of A's heirs. 15 C. L. J. 445. Q. 8. What is the distinction between an executor and an administrator ? A. An executor is the person or corporation charged by ap- pointment of testator with the execution of the will of testator. An administrator is a person or corporation appointed by a court to administer upon the estate of a decedent dying intes- tate, or where there is no executor. • See 11 A. & E. Encyc. L. (2d ed.) 741. Q. 9. John Tyner died testate, November 10, 1903, at the age of 87. He left Margaret, his widow, three sons, a daugh- ter, and the children of two deceased daughters. He devised and bequeathed the use of all the personal property and real •estate to his widow for life, remainder to her nephews; thus excluding his own issue. The widow was a second wife; and not the mother of the children. The family life was unhappy. She took a dislike to the WILLS 299 children; and finally drove them from home. At her request their father frequently whipped them ; their food, clothing and schooling were cut down. She kept the news of his death from them. She was better educated and more forceful than testator. They used to go "to town" and get drunk together. She told the neighbors that her nephews were to have the land; and preju- diced testator's mind against his children. He told a third per- son that he was not going to give any of the land to his children because Margaret would not let him. She was present and made suggestions when the will was drawn up. The probate court refused probate to the will; the district court reversed the probate court. Which is right? A. The probate court. While it does not appear that testa- tor was non compos mentis; yet, in view of all these circum- stances, and of the fact that the nephews were not of kin to the testator, it seems that the wife's influence was undue, and actually induced the will. His children were the natural bene- ficiaries; and no reason other than the wife's influence appears to have caused them to be cut off. Tyner v. Varien, 97 Minn. 181. Q. 10. Sundry credible witnesses testified that testatrix at the time of executing her will was of sound mind. On the part of the contestants of the will there was evidence : (1) That she had been addicted to the use of intoxicating liquors to excess, that she "drank pretty often"; and when drunk "talked foolishly" ; though when not under the influence of liquor she had ordinary intelligence, shrewdness, and ca- pacity to transact business, and (2) That she had been badly burned just before she made her will, and was then suffering from great physical distress. The jury found against the will. Should the verdict stand ? A. No. The evidence as to drunkenness and physical suffer- ing can not be allowed to prevail, even after verdict, against the proof of mental soundness at the very time the will was made. Note that when not under the influence of liquor testatrix seems to have had ordinary intelligence; and that, if her physical dis- tress had clouded her mind, her mental unsoundness would doubt- less have been observable. In re Wilson, 117 Cal. 262. 300 LAW STUDENTS REVIEW Q. ii. The wife of an elderly man consults a lawyer as to whether her husband is competent to make a will, advising that while his health is infirm, his mind is generally clear. That he has long since retired from business ; and having made some clearly unwise investments, has been induced not to buy or sell property or make disposition of considerable amounts thereof, without the advice of -herself or his lawyer. That his memory is fairly good, though it lapses noticeably ; but infre- quently. Is he competent to make a will ? A. Competent on this showing. IJe must have such mind and memory that he carries in his mind the facts as to his prop- erty, and who are the natural objects of his bounty; the nature of the act of making a will ; and what its operation will be. 28 A. & E. Encyc. L. (2d ed.) 71, 72. It is not necessary that his mental capacity shall be such as to enable him to cope with intricate business affairs, especially in competition with others. See King v. Lawless, 190 111. 520. Q. 12. Suppose a nuncupative will is sufficient to pass real estate in the state where made. How about its sufficiency for- that purpose in a state where a domestic nuncupative will is not sufficient? A. Not sufficient. The law of the state where the realty is situated governs. Robertson v. Pickrell, 109 U. S. 608. Q. 13. On one paper two testators undertook each to make a testamentary disposition in favor of the other. Except for this irregularity, the will or wills were properly executed. Is such a paper entitled to probate as a will or wills, and if so, when, (a) As the will of either? (b) As the will of both? A. (a) Yes, as to each testator, at his death, (b) Yes, as to the survivor, at his death. Of course, either testator may revoke — but the instrument is properly a double and not a joint will, and is operative as to each testator, as if written on separate pieces of paper. Estate of Cawley, 136 Pa. St. 628. WILLS 301 O. 14. A testator leaves a codicil duly executed to his will, wherein by appropriate language he seeks to provide that the codicil shall be operative, in the event that after his death his son shall not elect to nullify such codicil. Is this provision valid? A. It is valid. A testator may make testamentary provision dependent upon the election, after testator's death, of another. It may be likened to the right of a legatee to take or refuse a legacy. The Goods of Smith, L. E. 1 P. & D. 717. Q. 15. An instrument intended as a will lacked proper attes- tation. Attached to this instrument was found a paper purport- ing to be a codicil to the instrument ill question and the codicil was properly executed and attested. What effect, if any, has the codicil in validating the instru- ment? A. It validates the will. The execution of the codicil operates as a publication of the will as it then existed ; and as the codicil was duly attested, it operates to validate the entire will. Shaw v. Camp, 163 111. 144. Q. 16. A testator made a will in due form. By a subsequent will also in due form, he expressly revoked the first. Just before he died, he revoked the second will by burning it up. The first will could not be found or traced, though the family solicitor had a copy of it. Discuss the question as to whether the first will was revived by the revocation of the second. A. The general common law doctrine is that the revocation of a subsequent will, which revokes an earlier will, will effect a revival or republication of the earlier will. 30 A. & E. Encyc. L. (2d ed.) 656. On the other hand, the revival of the former will must be taken to depend upon the intention of the tes- tator. Lawson v. Morrison, 2 Am. Lead. Cas. (5th ed.) 482, 518-523. As a matter of presumption, if it could be shown that he had actually destroyed the former will, the revocation of the second will would not operate to revive the first will. As the first will can not be "traced," of course, the question assumes that it could not be directly proved that he had destroyed it ; but as the will had disappeared, the presumption would be as in cases of intestacy that there was no will. Accordingly, although there 302 LAW STUDENTS REVIEW was a copy of it in existence, the fact that the will itself could not be found, would raise the presumption that it had been inten- tionally destroyed and revoked by the testator; and thus was not revived by the revocation of the second will. Q. 17. A person named as a trustee in a will, but taking no beneficial interest therein except the prospect of receiving com- pensation as trustee, acts as witness to the will. What, if any, effect on the validity or operation of the will does this have ? A. The opportunity afforded to exchange actual service for a reasonable compensation would not be regarded as "beneficial" so as to disqualify the witness. In order to disqualify, something in the way of a gratuity must pass by the will to the devisee or legatee who acts as witness. Pruyn v. Brinkerhoff, 57 Barb. 176. Q. 18. A will is offered for probate. One of the witnesses thereto testifies that when he signed as a witness he believed the testator to be of sound mind and memory; but that he has since made up his mind that testator was at that time mentally unbalanced. Will his evidence tend to support the will, or otherwise? A. The ultimate question here is whether the testator was of sound mind and memory. Accordingly, while the witness may have believed at the time of the execution of the will that the testator was of sound mind and memory, yet this is not sufficient, unless testator in fact was of sound mind and memory. The witness must, in order to sustain the will, swear, at the time of the offer of the same for probate, that he believes the testator at the time of executing the will was of sound mind and memory. Accordingly the answer above would not tend to support the will. See Allison v. Allison, 46 111. 61. Q. 19. Suppose testatrix devises real property to her daugh- ter, Sally, for life, remainder "subject to the absolute disposal of said Sally by her last will and testament * * * and if the said Sally shall die without having disposed of the same," then over. The execution of above power relied on was by Sally's will, and depended upon a residuary clause therein reading: "All the rest and residue of my estate, of every nature and kind I give devise and bequeath as follows, namely," * * * Sally, in preced- WILLS 303 ing clause of her will, had specifically executed the power over certain real estate within the scope of the power. Assuming that there is no express reference to the power ; but that the legacies in Sally's will were more than enough to exhaust her whole personal estate, both at the time of making her will, and of her death : Is the power well executed ? A. Well executed. The intention of the donee of the power to execute may be manifested directly or indirectly, positively or by just implication ; and while such intention must be clearly manifested in the instrument relied on as an execution, yet if it be thus clearly manifested, specific reference to the power is not required. Blagge v. Miles, 1 Story 426, 446. Smith v. Henning, 10 W. Va. 596. Q. 20. Suppose a testator wishes to insert in his own hand- writing a material interlineation in a will already executed and attested. Must the instrument be re-attested? A. Must be re-attested in order that the interlineation have effect. Otherwise will would stand as made, giving no effect to matter contained in interlineation; the presumption being that the alteration was intended to be dependent upon its taking effect as a substitute for the portion thereby altered. As far as legible, the will as originally written stands. In re "Wilcox's Will, 46 N. Y. St. Eep. 877. Q. 21. A will contained the following: "First after * * * (payment debts) I give devise and bequeath to m y— nieces,- ■ Cusan Whittlesey and Isabel Newton, daughter o-f-my-brother, - ^ Charles, to each of them ten shares of the capital -stock-of-the ■ '::. Y. N. II. & II. R. R. Co., being in all twenty sha res -of -said- "-CTrpTrrrjT^ szrz ui\. l/ui > uiuv. err tTrrt: m^ncrcjrrvrv^ ttt/ilcll o — ca^LLf "Second I give etc. (residuary clause to three brothers.) When offered for probate, lines were drawn as above, but the words were perfectly legible. Assuming that testatrix drew these lines, and that the statute provides that no will shall be revoked save by burning, can- celing, tearing or obliterating by testator, what effect, if any, have these lines on the will ? 304 LAW STUDENTS REVIEW A. None. To hold that these lines effect a partial revocation, would here amount to allowing an alteration, without re-execu- tion of the will, e. g. "To my son William I give nothing and give all my estate to my son John." Draw a line through the italicised words, and all the estate goes to William instead of to John. Miles' Appeal, 68 Conn. 237. Q. 22. Two instruments were found tied together in testa- tor's strong box. Both had been duly executed as wills, the later in terms revoking the former. But in the later, signature showed a heavy ink line drawn through it; and the text was scored out, though still legible. What do you say as to the validity of the earlier will ? A. It was evidently the intention of testator to revoke the later will. This, taken with the fact that the earlier will is pre- served intact, would operate to render the earlier will valid. Harwood v. Goodright, 1 Cowp. 87. Q. 23. An instrument, originally consisting of one page, properly executed as the will of a decedent, is found in his strong box after his decease, torn through the middle into two pieces. Nothing is known as to how it came to be torn. Dis- cuss the presumption as to its having been revoked. A. The mere fact that the will is torn would not of itself operate to revoke. The tearing must be done with intention to revoke. Wolf v. Bollinger, 62 111. 368. The fact that the pieces, only two in number, are preserved in a strong box would tend to indicate that the intention to revoke did not exist. Q. 24. Upon a will was found the following memorandum in testator's handwriting : "This will was cancelled this day." Was this sufficient to revoke ? A. Yes. It contains a sufficient showing of intention to revoke, which is all that is required. In the Goods of Fraser, L. R. 2, P. & D. 40. Q. 25. A will was written upon a printed blank consisting of four pages folded in the middle, like ordinary legal cap. A printed heading occupied about one-fourth of the first page. In the printed form the remainder of that page, and the second WILLS 305 page were left blank. The disposing portion of the will was written upon the blank portion of the first, and on about one- fourth of the second page ; and a red ink line was then drawn transversely to the bottom of the second page. Then followed on the third page a printed clause revoking former wills, a testi- monium, and an attestation clause. The remainder of the third page and the upper half of the fourth, were blank. When the paper was twice folded, the last half of the fourth page bore (at the top as the paper would be filed) the printed words, "Last Will of," in print. Thereunder the scrivener had written testator's name, "Henry Seaman." Under printed matter making forms for date and filing with the clerk, testator had written his name, intending to subscribe his will; and two wit- nesses had signed at his request. Assume that the statute (California) requires the testator and the witnesses to subscribe their names at the end of the instrument, does the above constitute a sufficient execution? A. No. The end of the will is not the foot of the physical end as a sheet of paper; it is the "physical termination of the testamentary provisions which constitute the will." Albright v. North, 146 Cal. 455. O. 26. (1) March 15, 1898, Foxon made a will which pur- ported to dispose of all his property, and appointed his daugh- ter executrix. (2) September 11, 1903, he duly executed as a will a document beginning (in print), "This is the last and only will and testament of me, John Foxon." Thereby he dis- posed of only a life insurance policy, of £4,-133. William Biggs was designated executor. (3) April 11, 1905, he executed a further document, "a codicil to the last will," providing for certain bequests, and revoking the previous appointments of executors, in their place appointing Herbert Simpson and William Biggs to be joint executors "of my will." What one or more of these instruments may be proved as the will of decedent? A. All of them. It is not the law that a later will neces- sarily revokes a former. Indeed, at times, and where no incon- 20— L. S. Eev. 306 LAW students' review sistency in the provisions of the two instruments occurs, the later may confirm the former. Notwithstanding the use of the words "last and only" (2) above, it can not be inferred that testator intended to leave himself intestate as to the greater part of his property. Of course a later testamentary instrument may, like a codicil, modify a former. But a man's "will" may consist of a number of sheets — or of a number of different instruments. Simpson v. Foxon, L. R. (1907) P. D. 54. Q. 27. Philo S. Bennett by will bequeathed to his wife, Grace, the sum of $50,000 in trust, however, "for the purposes set forth in a sealed letter which will be found with the will." The will bore date, May 22, 1900. With the will in testator's strong box was found a sealed letter addressed to testator's wife of like date, directing that the $50,000 should be paid to William Jennings Bryan of Lin- coln, Neb., or his heirs, if testator survived him. The letter contained certain reasons for this bequest; among them the suggestion that Mr. Bryan's political work prevented the appli- cation of his time and talents to money-making. If Mr. Bryan should not wish to accept the money he was to give it to charity. The probate court for the district of New Haven, Connecti- cut, while admitting the will, denied validity to the letter as a part thereof. Is the ruling correct ? A. Euling correct. "While reference to another hut unat- tested document (incorporation by reference) may, as in the case of a memorandum required by the statute of frauds, serve to incorporate the document in the memorandum ; yet the descrip- tion of it must be so clear, explicit, and unambiguous as to leave its identity free from doubt; and it must be in existence at the time of attempted incorporation. In above case, any sealed let- ter addressed as required, would answer the specification, no matter when or by whom written. Bryan's Appeal, 77 Conn. 240. Q. 28. Testator was ill. He sat on the edge of his bed. He had caused the witnesses to be summoned. The witnesses to his will signed at a table a few feat distant "within easy sound" of his voice, but in another room. Physically he was capable of stepping two or three feet forward, and from this point the WILLS 307 witnesses would have been within his range of vision. The witnessing consumed not to exceed three minutes ; and imme- diately thereafter one witness came to testator, and showed him the signatures of the two witnesses, while the other wit- ness stood in the doorway not over five feet distant. Testator took the will, looked it over, and said that it was all right. Did the witnesses sign in the "presence" of the testator? A. Yes. But the court rests its decision on the ground that the whole transaction was an entirety in fact ; and that immedi- ately after the witnesses had signed, the will was returned to the hands of the testator, his attention was called to their signa- tures, and he expressed approval. Cunningham v. Cunningham, 80 Minn. 180. It seems, however, that the singing in another room, the wit- nesses not actually being within reach of testator's organs of sight, would be insufficient unless the instrument should there- upon, after signing, be drawn to his attention. Doe v. Manifold, 1 M. & S. 294. In re Beggans Will, 68 N. J. Eq. 572. Q. 29. A will apparently duly executed, has the usual attes- tation clause. Two women, who signed as witnesses, were servants in the household of the testator many years before. They are gone away, and there is no clew to their whereabouts ; nor can any one be found who knows their handwriting. How could the will be proved ? A. (1) Prove signature of testator by other witnesses. (2) Prove (a) that attesting witnesses could not after dili- gent search be found, showing efforts made to find them. (b) that the women lived as servants of testator at date of will, and could write. (c) where will was found. See Sears v. Dillingham, 12 Mass. 358. Q. 30. A testator devises his house and land (describing it) "To my daughter, Mary, and her heirs forever in fee simple absolute." His daughter Mary predeceases him. Does the devise lapse? A. Yes. Where the intention of testator is that the second taker shall take not from him, but from the first taker, then 308 LAW students' review "heirs," "children," "issue," are words of limitation and not of purchase. 25 A. & E. Encyc. L. (2d ed.) 651. Keniston v. Adams, 80 Maine 290. The foregoing illustrates the Rule in Shelley's case. Q. 31. A will read: "I devise my dwelling to my son John; my business block in Atlanta to my son James ; I bequeath my stock in the Atlanta National Bank to my daughter May — and the residue of my property I devise and bequeath to my daugh- ter Lucy." Shortly before his death the testator exchanged all the bank stock mentioned for sundry railroad bonds. Which daughter takes the bonds? A. Lucy takes the bonds. The above is a specific legacy; and the bonds are "substantially different" from the stock. Hence the legacy is ademed. In re Lane L. E. 14 Ch. Div. 856. Q. 32. A bought land for $10,000, paying $5,000 cash, and giving a mortgage on the land to the seller for the balance of the purchase price. He devised the estate to B, his will con- taining no reference to the mortgage, but merely directing that his debts be paid. Can B call upon A's executor to pay off the mortgage ? " A. Yes. Where no intent is expressed in a will, incumbrances on real estate are payable from the personal property of the testator. 40 Cyc. 2063. The failure of the mortgagee to present the claim against the estate will not relieve the executor from the obligation. Turner v. Laird, 68 Conn. 198. But the rule is confined to incumbrances created by the testator ; and would not extend to a case where testator purchased land subject to mort- gage. Creesy v. Willis, 159 Mass. 249. Q. 33. A testator at the time of making his will owns certain real estate. This real estate by apt words he undertook by will to devise to one of his daughters. After making the will, and before his death, he sold this real estate, receiving one-sixth of the purchase price in cash, and taking back as a part of the same transaction a purchase money mortgage for the remaining WILLS 309 five-sixths. He thereafter died, not having altered his will. The daughter in question claimed that she was entitled to the mortgage or proceeds thereof ; while the residuary legatees, to whom but for her claim the mortgage would have come, main- tained that they were entitled to the mortgage. Who should prevail and why ? A. The residuary legatees should prevail. Selling the prop- erty and thereby changing its character from realty to per- sonalty operates to ademe the specific devise, not only as to the purchase money paid, but also as to the mortgage. Adams v. Winne, 7 Paige Ch. 97. Q. 34. Charlemagne Tower of Philadelphia died testate, and seized of lands in North Dakota. It was held (in North Da- kota) that his will was inoperative to pass title to lands in that state ; but sufficient to pass title to the personalty. He had in his lifetime agreed by contract to sell the North Dakota land ; and his executors fulfilled the contract, received the money thereon, and conveyed the land. The heirs of Tower claimed title on the ground that as to the land in question he had died intestate. The purchaser filed a bill to quiet title against them. Who should prevail ? A. The purchaser. Where a valid and binding contract for the sale of lands is entered into, of such character that it can be enforced against an unwilling purchaser, an equitable con- version takes place; and the executors may lawfully treat this portion of testator's estate as personalty. Clapp v. Tower, 11 N. D. 556. Otherwise if the conract be unenforcible. Kerr v. Day, 14 Pa. St. 112. Q. 35. A testator devised land to A for life, and after A's death, to the children of B. At testator's death B had two children; and two more were subsequently born, and were living when A died. A year after A's death another son of B was born. All B's children being alive, which of them, if any, take? A. All, except the youngest son. Where there is a remainder to a class of persons, all the members of the class living at the 3IO LAW STUDENTS REVIEW time of the testator's death, or, in case of a grant, at the time of the delivery of the deed, take vested remainders. The benefit of the provision is, however, extended to others of the same class who afterwards come into being before the determination of the particular estate; the shares of those previously born being in that case proportionately diminished. 1 Tiffany Real Prop., § 122. Q. 36. A testator provided that as to the residue of his estate his trustees might give such portion of it as they thought best to testator's brothers and sisters who might stand in need of the same ; and the remainder should by said trustees be devoted to the advancement of the cause of temperance, or to manual training schools in Chicago. Is the provision valid? A. Void. It is uncertain what if any amount will remain; and if anything remain, the trustees have the discretion to give it to needy brothers or sisters — and to either the cause of tem- perance, or to manual training schools. The amount to be set aside is uncertain — and the clause is void. Wilce v. Van Anden, 248 111. 358. Q. 37. B, by his will, gave to his daughter a certain annuity during her separation from her husband. At the date of the will the daughter and her husband were living apart. At the time of B's death, the daughter and her husband had become reconciled, and were living together. But about three months after testator's death, they again separated, and lived apart for a year. The daughter brought suit for the annuity. What should be the decision of the court? and on what principles ? A. Finding of the court against the daughter. A condition in a will calculated to induce husband and wife to separate is void as against public policy; yet where they have in fact sepa- rated, a gift during the separation is good, and the above gift would have been good, as long as the first separation continued. But not taking effect at death of testator, it is not revived by subsequent separation. Cooper v. Eemsen, 5 Johns. Ch. 459. Q. 38. Three testamentary trustees were designated in a will. By apt words they were empowered to sell or lease the WILLS 311 real estate of deceased at their discretion. Nothing was said about whether they must all act or join in conveying. They all accepted and acted under the trust. One died. Upon what will the sufficiency of a deed under the power ir, the will, executed by the surviving two, depend? A. A mere naked power, not coupled with any interest in the thing or estate, can only be exercised by the joint action of the donees of the power. The power does not survive in case of the death of one of the donees. But where there is a trust imposed upon the executors, in respect of the disposition of the proceeds, the power of sale will continue in the survivors. Accordingly, the execution of the power by the two surviving executors will be sustained, provided there be such a trust, and the sale be necessary to execute such trust. Peter v. Beverly, 10 Pet. 532. Q. 39. What is the distinguishing feature of an executory devise of land? A. An executory devise of land is such a disposition of it by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. 2 Blackst. Comm. 173. Q. 40. A testator bequeathed his gold watch "to my cousin John." He had a cousin whose first name was John ; but whom he had not seen for a number of years. Testator's wife had a cousin named John. The wife's cousin was a frequent visitor in testator's family ; and testator used to refer to and address the wife's cousin as "Cousin John." To which "John," if to either, does the watch go? A. It is a mere question of identity and intention. The actual relationship by blood is not controlling. On above facts, the watch should go to the wife's cousin. See Bradley v. Eees, 113 111. 327. Q. 41. By the terms of a will a power was given to appoint at the discretion of the donee of the power, property to the extent of $100,000 to or among certain persons, four in num- ber, none to be excluded. To AB, one of the beneficiaries, a nominal sum of $500 was appointed, the residue being ap- 312 LAW STUDENTS REVIEW pointed in equal shares to the other three beneficiaries. AB brought an action in equity against the donee and the three beneficiaries, on the theory that while a chancellor would not require an equal division, yet complainant was entitled to a substantial sum. Discuss his right to recover. A. This involves the doctrine of illusory appointment. The earlier doctrine was that in such a case a substantial sum or value must be appointed to each beneficiary — but, owing largely to the difficulty of determining what in any given case is a "substantial" sum, by the later doctrine even a trifling sum may be appointed. The complainant is not entitled to recover. Hawthorn v. Ulrich, 207 111. 430. Q. 42. What is meant by "renouncing" a will ? How is this accomplished ? A. 1. Where an executor named in a will declines to take on himself that office. Matter of Maxwell, 3 N. J. Eq. 611. 2. It is also applied to the act of a widow in refusing to accept the will of her deceased husband, and electing to take what the law gives her. It is usually accomplished by filing a writing in the court having jurisdiction of the administration of the estate, signify- ing refusal to act, or to be bound, and executed by the person so refusing. Q. 43. Testator, domiciled in New Jersey, while temporarily sojourning in New York, made his will, duly executed in ac- cordance with the New York law, and thereby undertook to dispose of (a) Personalty (1) In New Jersey (2) In Illinois (b) Realty (1) In New Jersey (2) In Illinois. He left a widow who renounced the will. By what law are her rights governed as to (a) and (b) ? A. As to (a) the lex domicili, that is to say, of New Jersey governs. WILLS 313 As to (b) (1) the law of New Jersey. As to (b) (2) the law of Illinois ; in reference to real property, the rule being that the lex rei situs governs. Harral v. Harral, 39 N. J. Eq. 279. Q. 44. State the rule against perpetuities. A. The rule is that a devise either of real or personal estate is not good unless the ultimate estate vests within the compass of twenty-one years (with period of gestation) after a life or lives in being. 4 Kent Com. 271. Q. 45. A testator leaves all his estate to his only child for life ; remainder, if the child leave issue him surviving, to such surviving issue; but in default of such surviving issue then over to a nephew if then living or issue, if any, then surviving of such nephew. Is this devise good ? A. Yes. In no contingency could the final vesting of the fee be postponed for more than a life or lives in being and twenty- one years thereafter, after death of testator. (See preceding statement rule.) Q. 46. An impecunious son of a rich man offers to sell and assign whatever he may get from his father by devise, bequest or descent. Would such a sale and assignment be valid ? A. Valid in equity. If made bona fide and for an adequate consideration, it will be enforced in chancery, not as a trust, but as a contract right. Crum v. Sawyer, 132 111. 443. Q. 47. What can be said as to the validity and efficacy of a clause in a will cutting off (a) Any legatee of personalty (b) Any devisee of realty who shall contest the will? A. (a) Valid and efficacious, if there is a gift over of the personalty. If no gift over, then, being merely in terror em, valid, but not necessarily efficacious. (b) Valid and efficacious whether there is a devise over or not. 30 A. & E. Encyc. L. (2d ed.) 806. 314 LAW STUDENTS REVIEW Q. 48. Testamentary trusts are sometimes said to be "dry or naked" and sometimes "active." What is the difference ? A. "Dry or naked," where property is vested in one person in trust for another, and the nature of the trust not being expressly stated or described, is left to the construction of the law. "Active," where the trustee is required to do something, either discretionary or ministerial, to carry out the terms of the trust. 28 A. & E. Encyc. L. (2d ed.) 864. Q. 49. It is customary in wills containing devises of bequests to the wife of the testator, to provide that they are to be taken "in lieu of dower." Is this necessary in order to bar dower? A. It is necessary, unless such intention can be deduced by clear and manifest implication from the will, founded on the fact that the assertion of dower right would defeat the will. 4 Kent Com. 58. Q. 50. It is usual in wills empowering executors or trustees to sell property to provide that "no purchaser need see to the application of the proceeds." What does this mean ? and why is such provision inserted? A. It means that any one who buys from the donee of the power is not required to see that the donee shall use the money or other valuable thing paid for the property in the manner in which under the instrument empowering him it is his duty to use it. It is inserted for the purpose of facilitating transfers of the property by the donee of the power. See Gardner v. Gardner, 3 Mason 178. Q. 51. A testator devises property to "brother A and sister B's children." A and B both have a number of children. As- suming that such children would take, would they take per stirpes, or per capita? A. They would take per capita. The designation in this in- stance contains no intimation of setting off a share to either A or B; and the use of their names, being restricted simply to a designation of the individuals, namely, "children," intended as beneficiaries, each individual child would share alike with the other individual children. 30 A. & E. Encyc. L. (2d ed.) 727, 728. WILLS 315 Q. 52. A testator by his will provided : "Article 4th, I give and bequeath to William Lloyd, Wen- dell Phillips (and seven others, naming them), their suc- cessors and assigns, ten thousand dollars ; in trust for them to use and expend at their discretion, without any responsibility to any one, in such sums, at such times and such places, as they deem best, for the preparation and circulation of books, news- papers, the delivery of speeches, lectures, and such other means, as, in their judgment, will create a public sentiment that will put an end to negro slavery in this country." Testator also gave $2,000 for the benefit of fugitive slaves. After slavery was abolished, the question arose as to what was to be done with what remained of the fund ; and a master in chancery reported that in his opinion it should be: "Ordered to be paid over to the New England Branch of the Freedmen's Union Commission, to be employed and expended by them in promoting the education, support and interests gen- erally of the freedmen (late slaves) in the states of this union." Could this be done legally ? and if so, on what theory ? A. This disposition of the funds may be sustained on the cy pres doctrine. Where a valid bequest for charitable purposes can not be carried out according to the directions of testator, a court of chancery has jurisdiction to order it to be executed as nearly as possible according to his expressed intent. Jackson v. Phillips, 14 Allen 539. Q. 53. An administrator, as such, executed a power of at- torney to an agent to release a mortgage. What do you say as to validity of a release executed by virtue of the power of attorney ? A. Release not valid. Where the law has devolved discre- tionary or judiciary powers on an officer, he must exercise the power in person and can not delegate it, unless the law expressly authorizes such delegation. Lyon v. Jerome, 26 Wend. 485. Newton v. Bronson, 13 N. Y. 587. Q. 54. Deceased (intestate), the owner of 80 acres of land, was murdered by his wife and his hired man, that the two 3l6 LAW STtTDENTS* REVIEW might marry each other and enjoy his property. This was on January 6, 1899. They were married June 26, 1900. On July 5, 1902, for valuable consideration they quit-claimed the land to defendant Eckstein. Prior to this the probate court ( Nicol- let County, Minnesota) by decree duly entered, set off home- stead and an undivided one-third to the widow. Eckstein had knowledge of all the facts. Assuming that the statute of descent is silent as to the rights of one who murders that he may inherit, discuss the question whether the widow inherits ; or can the heirs set aside the con- veyance on the ground that she can not benefit by her felony? A. Logically she inherited, and the conveyance must stand. If the legislature had intended that the murderer of a decedent should not inherit, it should have said so. As it does not so pro- vide, the courts should not legislate on the subject. See Wellner v. Eckstein, 105 Minn. 444. (And note dissenting opinion.) Note that, especially in instances involving devises of the pro- ceeds of insurance policies and the like, in some states, the murderer would not take. There is great conflict of authority on this question. Riggs v. Palmer, 115 N. Y. 506. Q. 55. A certificate of deposit in usual form for $23,514, payable to H. M. Chaney, was by Chaney during his last sick- ness and in apprehension of death, endorsed as follows : "Pay to Martin Basket, of Henderson, Kentucky; no one else ; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. (Signed) H. M. Chaney." Chaney then delivered the certificate thus endorsed to Basket, and died in a few months, not having recovered from his sickness. Was this a donatio causa mortis? A. In order to render the endorsement and delivery of a negotiable instrument effectual, they must be such as to enable the endorsee himself to endorse and negotiate the note. This Basket was not in a position to accomplish, as long as Chaney lived. WILLS 317 In the above case, it can not be said that the condition in the endorsement which forbids payment until donor's death, is merely a condition attached by the law to every donatio causa mortis. This is for the reason that while ordinarily the subject of the gift is to be returned if the gift fails by revocation; still in the meanwhile the gift is executed and title has vested. But in the above case the condition annexed by the donor to his gift is a condition precedent, which must happen before it becomes a gift ; and as this condition is the donor's death, the gift can not be executed in his life time. Accordingly, there is here no donatio causa mortis. Basket v. Hassell, 107 U. S. 602. CHAPTER XIII CORPORATIONS Question i. What objection, if any, is there to the phrase, relied on in an application for a corporate franchise, "to engage in general lines of business for pecuniary profit in the State of Pennsylvania and elsewhere" ? Answer. The actual purpose of the corporation must be more definitely stated. The nature of the business should be set forth, so that it may be determined from the statement that the business is such that the corporation may lawfully engage in it. See In re McKees Eocks &c, 6 Pa. Dist. Rep. 477. Q. 2. Distinguish between a voluntary association of indi- viduals and a corporation. A. 1. A corporation must receive a charter or franchise* from the state. 2. No liability against corporate members where shares are paid up. 3. Corporate member may transfer his shares at will. 7 A. & E. Encyc. L. (2d ed.) 634. * The right or privilege given by the state to two or more persons of being a corporation, that is of doing business in a corporate capacity. Home &c. Co. v. New York, 134 U. S. 594, 599. Or such corporate right may be granted to one person — a corporation sole. (See next question.) Q. 3. State the distinguishing features of a (a) Private corporation (b) Public corporation (c) Municipal corporation (d) Quasi public corporation (e) Corporation sole. 319 320 LAW STUDENTS REVIEW A. (a) It is created wholly or in part for the purpose of private or individual gain or emolument, or object. (b) A public corporation has not the feature or element of private gain ; but is exclusively a means for effecting purposes of the public. (c) A municipal corporation is a public corporation; but its scope is restricted to the purposes of serving some portion of a government or county, generally a political subdivision thereof, as a city, village, county, etc. (d) A corporation which while operated for the benefit of individual shareholders or members', still directly benefits and accommodates the public. 7 A. & E. Encyc. L. (2d ed.) 638. Thomp. Corp. (2d ed.) §§ 2-31. (e) A corporation sole, as distinguished from a corporation aggregate, consists of a single person who is made a body po- litic and corporate, in order to give him some legal capacities which as a natural person he can not have. See 2 Kent Com. 273. Thomp. Corp. (2d ed.) § 15. Q. 4. What is a de facto corporation? A An association of persons which under color ,,,of legal organization, but without fully complying with the law, exer- cises corporate franchises. 7 A. & E. Encyc. L. (2d ed.) 655. Elliott Private Corp. § 72. O. 5. Give an instance where the facts amount to consti- tuting an organization a de facto, but not of a de jure, cor- poration. A. A general law required the making, acknowledging and recording of a certificate of organization showing certain facts as to object, duration, members, etc. This requirement was complied with, except that not all the facts required to be specified were included in the certificate. There was also user. Methodist &c. v. Picket, 19 N. Y. 482. See also dissenting opinion, Marshall, J., in Bergeron v. Hobbs, 96 Wis. 641. O. 6. A member of a board of trade, such board being regu- larly incorporated, was by a duly constituted tribunal within such board, found guilty of dishonest practices in connection CORPORATIONS 321 with his business as such member, and was expelled. The by- laws, in force when he became a member and thereafter, pro- vided for expulsion for such offenses. He filed in the appropri- ate court a petition for mandamus to compel his reinstatement, alleging and specifying gross irregularities in his trial on such charges. Will the court entertain the petition? and if so, on what principle ? Would the rule be different if the board of trade, instead of being incorporated, had been a voluntary association of indi- viduals ? A. Yes, the petition will be entertained. This is owing to the power of a visitorial nature, inherent in the courts, which extends to investigating the proceedings of corporations for the purpose of keeping them within their charter powers and of protecting the rights of members. The rule would be different if the board were unincorporated — for a mere voluntary association of individuals receives no franchise from the state. In such case, generally speaking, the petition will not lie. 26 A. & E. Encyc. L. (2d ed.) 799, 800. Q. 7. The secretary of state issued a license to a corporation whose objects were stated to be: (1) To carry on the business of manufacturing, buying, selling and dealing in boots and shoes, in the city of Mobile and elsewhere. (2) To acquire, own, pledge and sell its own stock and that of other corporations. Assuming that (2) above is illegal, state what,, if any, effect its illegality would have as to the validity of the charter. A. None. The addition of (2) is mere surplusage, and does not add to or detract from (1). Grangers' &c. v. Kamper, 73 Ala. 325. Q. 8. The statute provided that corporations might deter- mine by by-laws, the manner of calling and conducting meet- ings, as to quorum, voting by shareholders, tenure of officers, 21— L. S. Eev. 322 LAW STUDENTS REVIEW as to proxies, and as to selling shares for neglect to pay assess- ments ; also that penalties might be fixed. A by-law was passed prohibiting the sale of stock unless first offered to the corporation at the lowest price the holder is will- ing to take ; and that 30 days thereafter if the corporation re- fused to buy, holder might sell to another. Is this a valid by-law ? A. Invalid. When the charter, or a general statute, confers powers upon a corporation to enact by-laws for certain specified purposes, powers and objects not enumerated, are excluded. A majority of the stockholders have no right, under the form of a by-law, to impose restriction upon a minority in the free transfer of their stock, unless specially authorized by statute or charter, or unless reasonably necessary to the business of the corporation. * Ireland v. Globe &c, 19 E. I. 180. Q. 9. Complaint alleges that plaintiff was a domestic cor- poration, capital $40,000, of which $25,000 was preferred, 7 per cent, stock par value $50 a share. Defendant signed following instrument: "I (the defendant) hereby subscribe for 10 shares of 7 per cent, preferred stock at $50 per share, par value $50, in a new company to be formed for the purpose (describing it) to be known as (inserting name), or a name to be selected * * *. I agree to pay for the above number of sh'ares of stock as soon as the company is incorporated, and upon delivery of the stock to me." Complaint further alleged incorporation, ■ tender of stock, refusal of defendant to accept and pay for same. Demurrer; and demurrer overruled. Should it have been sustained ? A. The demurrer should have been sustained. In order to make a present subscription for stock in a corporation thereafter to be formed valid, there must be some agreement between two or more parties to form such corporation. No such agreement appears from the complaint. Dissenting opinion by McLennan, P. J., in Avon Springs &c. v. Weed, 119 App. Div. 560. Adopted by Court of Appeals : Avon Springs &c. v. Weed, 189 N. Y. 557. CORPORATIONS 323 Q. 10. How may a subscription to a corporation to be formed be so drawn as (in the absence of a statute) to be binding; and so as to authorize the corporation when formed to recover against subscribers ? A. "We, the undersigned, in consideration of the mutual covenants and agreements hereinafter contained, hereby sub- scribe for the number of shares set opposite our respective names of the (describe capital stock, and corporation) and we further agree to pay for the said stock so subscribed whenever payment of the same may be called for by the Board of Directors ' of said corporation." Woods &c. v. Brady, 181 N. Y. 145. Q. 11. A subscriber agreed to subscribe and pay for certain stock in a corporation. . It was provided by resolution of sub- scribers that they should pay only when "the board of directors shall find responsible persons agreeing to purchase" such stock from the respective subscribers. Is the resolution valid? A. The resolution is unlawful and invalid. It contemplates only the temporary use of the names of subscribers for the purpose of taking the stock out at its par value — and thus irreg- ularly accomplishing an organization with stock apparently paid up in full. McNulta v. Corn Belt Bank, 164 111. 427. Q. 12. X subscribed and in part paid for certain shares of the capital stock of a corporation. It turned out that this stock was an over-issue, in excess of the amount which the corpora- tion was legally authorized to issue. The corporation sub- sequently became insolvent ; and it was sought, for the benefit of the creditors of the corporation, to hold X liable for the un- paid portion of his subscription in respect of such shares. In support of this claim it was shown that X had attended the meeting of the corporation at which it was voted to issue the shares in question, and that he had received and held the cer- tificates in respect thereof. As to the liability of X in the premises, what do you say? 324 LAW STUDENTS REVIEW A. X is not liable. The issue in question being an over-issue is void. Being void it can not be ratified by attending the meet- ings, or by holding the stock and acquiescing. Scoville v. Thayer, 105 U. S. 143. Q. 13. A corporation is organized with a capital stock of $50,000 to manufacture machinery for making shoes. The shareholders undertake to pay up their shares of stock by turn- ing over as in full payment to the corporation sundry patents, untried commercially, but believed by the shareholders and di- rectors to be worth $50,000. These patents upon trial turn out to be commercially worthless. The corporation becomes insolvent, and creditors after taking the requisite preliminary steps, file a bill in equity to require the shareholders to pay up their shares in cash. Discuss the right of creditors to recover. A. When property is offered to directors in payment of stock subscription they should investigate and see if it is worth what it is offered at, just as they would if they were proceeding as individuals in purchasing for their own account. If they accept the patents in good faith after such investigation, it has been held that the corporation and creditors will be bound; and creditors can not require shareholders to pay up any portion. See Gillett v. Chicago &c, 230 111. 373. Elliott Private Corp. § 539. But see also next question. Q. 14. The Hess Electric Corporation was organized under the laws of Iowa to deal in electric currents and batteries and patents and appliances for supplying electric light and power. The capital stock was $100,000. Porter, Case and Hess, after the organization, proposed to sell to the corporation certain patents which they claimed to own, for $90,000 paid up stock and $500 in cash, as soon as the corporation was able to pay. The board of directors accepted the proposition, and Porter et al. assigned their patents and received the stock. The patents had not been put to any considerable practical use, but tests had shown satisfactory results ; and the incorporators believed the company would realize far more than the $90,000. But, in CORPORATIONS 0*3 point of fact, owing to other inventions, the company was not able to realize any considerable revenues, and became insolvent. Assuming there was an overvaluation of the patents ; but that it was not fraudulent, discuss whether creditors can collect of stockholders on the ground that the $90,000 face of stock is not paid up. A. This depends upon whether the "true value" rule, or the "good faith rule'' be followed. Under the former rule, as the patents seem to have been over-valued, the stockholders might be required to respond to creditors who had no notice of the manner in which the stock had been "paid up," to the extent of such overvaluation. But under the "good faith" rule, unless it could be shown that the overvaluation was fraudulent, creditors can not recover of the stockholders. (See preceding question.) State Trust &c. v. Turner, 111 Iowa 664. And the question whether, by charter or law, the subscriber must pay in cash, or may pay in "property," should be consid- ered. In the latter instance, property received in good faith is a sufficient payment. Coit v. North Carolina &c, 119 U. S. 343. Q. 15. A corporation issues to subscribers certificates of stock containing the words, "full paid and non-assessable." In point of fact the stock is not fully paid. Can a subscriber be forced to pay up the balance to creditors of the corporation? A. The subscriber can be forced to pay to creditors the unpaid balance of his stock. Marking stock "full paid and nonassess- able" is a mere device to escape liability; and it is questionable if even a presumption of full payment ought thereby to be raised. Garden City Sand Co. v. Crematory Co., 205 111. 42. 4 Thomp. Corp. (2d ed.) § 4823. Q. 16. All the capital stock of a corporation was bought and held by one person. Business was continued by the corporation and accommodation drafts were endorsed by it. A creditor obtained judgment on such endorsement ; and sought to hold the sole stockholder, personally, thereunder. Can such stockholder be held personally? 326 LAW STUDENTS' REVIEW A. Such stockholder can not, on above facts, be held individu- ally. In the absence of fraud, the creditor gets all he bargains for when he subjects the corporate property to the payment of his debt. Louisville &c. v. Eisenman, 7 Am. E. & Corp. Eep. 569. Q. 17. Certain merchants formed a corporation through using their clerks to subscribe for and take the capital stock. An attempt to pay up this stock was made, by turning over some patents of trifling, if of any, real value. The certificates of shares of stock were endorsed in blank by the clerks, and were then turned over to their employers, the merchants; but were not transferred on the books of the corporation. The corporation became insolvent. Discuss the question whether the merchants can be held at the suit of creditors of the corporation. A. Not directly. In the absence of a statute (see Lloyds v. Preston, 146 U. S. 630-645) a merely equitable, as distinguished from a legal holder of stock, can not thus be held directly. Cook v. Carpenter, 212 Pa. 177. But if the legal holder be held to respond, he may recover over from the equitable owner. Stover v. Flack, 30 N. Y. 64. Q. 18. The AB corporation takes over all the assets of the CD corporation — both for pecuniary profit — but does not ex- pressly assume its debts. For these assets it pays a reasonable price in cash. The stockholders of the CD corporation divide this cash among themselves. Have the creditors of the CD corporation any remedy against the AB corporation? A. In the absence of fraud participated in by the AB Co., the mere purchase of the assets by AB would not imply any promise to pay the debts of the CD corporation. Texas, &c. v. Caruthers, 8 Tex. Civ. App. 474. Q. 19. What is meant by the "sequestration" of the assets of a corporation? A. To seize or take possession of any property belonging to the corporation, and hold it till the profits have paid the demand for which it was taken. Tompkins v. Little Rock, &c, 15 Fed. 6, 11. CORPORATIONS 327 Q. 20. A corporation had no common seal, but adopted or sought to adopt one for the occasion when it was required. ( 1 ) Was it within the power of the corporation to do this ? and (2) If within its power, what result, if any, was effected by such adoption of a seal. as distinguished from the use of the common seal of the corporation ? A. 1. A corporation not having a seal may adopt one for an occasion. 2. It simply becomes incumbent on the corporation, or on any party in interest, to show the fact of such adoption. Farmers &c. v. McCullough, 25 Pa. 303. Q. 21. The AB telegraph company became the lessee of the entire property of the CD telegraph company, and in connec- tion with the lease of such property, undertook to guarantee the rent to become due from the CD company as lessee o£ certain premises occupied by it as tenant. On suit for such rent, the AB company sought to defend on the ground that the undertaking to guarantee such rent was ultra vires. By what principle is the validity of such defense to be tested ? A. While generally speaking a corporation has no power to guarantee the payment of the debt of another, yet if the debt guaranteed is such that the payment will directly contribute to the benefit of the guaranteeing corporation, and advance the ob- jects for which it was created, the guaranty is valid. Midland &c. v. National &c, 236 111. 476-481. O. 22. In the case of a public corporation, what is meant by the visitorial power ; and where in the United States is such power vested? A. The power or right to inspect, regulate, control and direct a corporation and its funds and franchises. This because the whole interest and franchises are given for. the public use and advantage. 2 Kent's Com., 300, 301. In the state: that is to say, in the United States where the corporation is a public corporation under the laws of the United States; in each state where the corporation is a public corpora- tion created by the state. 7 A. & E. Encyc. L. (2d ed.) 858. 328 LAW STUDENTS' REVIEW Q. 23. A bill was filed to foreclose a mortgage subject to a prior mortgage held by assignment by a corporation. The subsequent lienor claimed that the assignment to the corpora- tion — which was made after the subsequent lienor's claim arose — was void on the ground of the want of capacity on the part of the corporation to acquire the same. Assuming that the act of the corporation in attempting to acquire the mortgage was ultra vires, but that it paid value therefor, is the position of the subsequent lienor maintainable on the facts stated? A. The subsequent lienor is not in a position to maintain his contention. Even though the act of the corporation be ultra vires, yet it is not in this manner subject to collateral attack; but must be assailed, if at all, in a direct proceeding. See Daniels v. Belvidere Cemetery Assn'., 193 111. 181. Q. 24. The Northern Securities Company was organized as a corporation under the Taws of the state of New Jersey; and its charter permitted it to acquire and hold shares of capital stock in other corporations. Stockholders of the Northern Pacific Railway Company and of the Great Northern Railway Company sold their stock to the Securities Company, and took in return shares of stock of the Securities Company. In 1901 the exchange of stock was made. In point of law the transaction violated the anti-trust Act of Congress; but those turning in their stock were advised by their lawyers that the statute would not be held applicable. In 1902, the United States government filed a bill to restrain the Securities Company from voting the stock of the two rail- way companies, and from exercising any control over such companies; but it was expressly found in the decree on such bill that nothing therein contained should prohibit the Securi- ties Company from assigning back again the stock in the two railway companies, to those from whom it had received stock. Subsequently such stockholders endeavored to require the securities company to turn back such stock. Are they entitled to. receive it? A. No. The Securities Company and the stockholders of the railway companies are in pari delicto. Neither can plead igno- CORPORATIONS 329 ranee of the law as against the other ; and as it was held to be the duty of the Securities Company to "end a situation that had been adjudged unlawful," a reduction of capital stock and a pro rata distribution of the surplus of assets created by that re- duction was affirmed ; and complaining stockholders were denied the right to receive back their stock. Harriman v. Northern Securities Co., 197 U. S. 244. Q. 25. Discuss the question whether a railroad company may legally contract to work a coal mine. A. This must depend on the facts in each particular case. If the real object is to supply the railroad with cheaper coal, the "accidental additional" profit of selling to others may properly be allowed. But if the principal object is to undertake mining and selling coal as a business, then it would be a perversion of the funds of the railroad company; and, however profitable it might appear to be, it should not be allowed. Lyde v. Eastern &c, 36 Beav. 10. See also Davis v. Old Colony &c, 131 Mass. 258, where a rail- road undertook to acquire and operate a picnic grove on its line of road. Q. 26. To what extent, if to any, may a corporation enter into partnership with another corporation? A. In general, can not do so. A corporation can ordinarily be bound only by the acts of its duly elected officers — or duly appointed agents. But partnership implies two or more princi- pals in authority. Gunn v. Central E. E. Co., 74 Ga. 509. Mallory v. Hananer &c, 86 Tenn. 598. Elliott Private Corp. § 181. Q. 27. Suppose that a corporation manufacturing and sell- ing hats undertakes to select another corporation, chartered for and engaged in the same line of business, as its agent ; but that the charter of the agent corporation contains among its objects no mention of acting as agent for another. What do you say as to the legality of such an arrangement? A. A corporation has the same power as an individual to act as an agent, if its authorized business is such as to render such a contract necessary or proper. Killingsworth v. Portland &c, 18 Ore. 351. 3 Thomp. Corp. (2d ed.) § 2156. 33° LAW STUDENTS REVIEW Q. 28. A mercantile corporation has made a considerable profit. A majority of the stockholders demand that a dividend shall be declared. The directors refuse to declare a dividend, and give out that it is their purpose to start a "surplus fund" with the money. Can such stockholders require the dividend to be declared? A. No. In the absence of fraud, or unless there be neglect of duty, this is a matter within the discretion of the directors. If the stockholders desire a different course to be pursued, they must either persuade the present board to do as they wish, or elect a different board. Elliott Private Corp. §§ 399, 400. Q. 29. An insurance company bought land and erected thereon a very large building. It occupied but a small portion thereof for its own proper business. The rest it rented to ten- ants. One of the tenants, relying on the doctrine that the corporation was authorized to acquire and hold only such land as was reasonably necessary for the purposes of its business, sought to defend against a suit for overdue rent. Held no defense. On what theory, or principle? A. On the principle that even if it be conceded that the cor- poration acted ultra vires in acquiring and holding the land and building, advantage thereof could only be taken by the state. Rector v. Hartford &c, 190 111. 380. O. 30. Suppose a corporation has power under its charter to manufacture and sell wagons or Other vehicles. No other powers are specified in the charter. It enters into a contract to pur- chase 150 bales of cotton, and 500 barrels of sugar. Of the cotton 100 bales are delivered. These it accepts and disposes of. It refuses to accept the other 50 bales — and sugar having gone down a cent a pound in the market, it refuses to receive any of the 500 barrels. Suit is brought on the entire contract by vendor, and the corporation pleads ultra vires. "What is the proper principle to apply in such a case? CORPORATIONS 331 A. That while a corporation is not bound by a contract ultra vires, yet if it has received and appropriated the subject of the contract, it must pay for the same. In the case supposed, it would be bound for the 100 bales of cotton. Burke &c. v. Wells &c, 7 Idaho 42, 61. Q. 31. The State of New York brought action against Tweed, Woodward, Ingersoll and Garvey to recover money by them fraudulently obtained, from the county of New York, by means of a conspiracy (Tweed Ring) among themselves, and with public officials. The money was obtained through pre- ferring fictitious claims against the county, procuring an issue of county bonds, securing from the proceeds thereof an appro- priation for and payment of their false claims. The defendants thereupon divided the money among themselves and others. Can the state recover here? or must it be the county that sues? A. There is a distinction between actions by the people (or the state) in the right of sovereignty, and those founded on some pecuniary or proprietary right. Here a pecuniary right of the county is sought to be enforced; and the suit must be brought by the county. Debts contracted by a county are thus debts of a county, and not of the state. The state therefore can not recover. The county should sue. People v. Ingersoll, 58 N. Y. 1. Q. 32. Under an act of the legislature the governer of New York appointed water commissioners, whose duty it was to submit to the Council of New York City a plan for supplying the city with water ; and upon the favorable vote of the council and electors, and the furnishing of funds therefor by the city council, the commissioners should construct the works. The city was to pay the commissioners for their services. A dam was constructed across the Croton river. It burst; and this caused the destruction of plaintiff's mill. Assuming the bursting was caused by negligence of the per- sons employed to construct the dam, is the city liable? A. City liable. The city here is like a private employer — is not a state agent. By accepting and proceeding under the act 332 LAW STUDENTS REVIEW of the legislature, it adopted the commissioners as its agents to carry on the work. The acceptance was entirely voluntary; the state did not undertake to enforce the grant upon it against its will. Bailey v. Mayor &c, 3 Hill 531. Note, however, town not liable to a voter attending a meeting in the town hall, and injured by falling of floor. Eastman v. Meredith, 36 N. H. 284. Q. 33. The common council of the City of Winchester offered a reward for the apprehension and conviction of in- cendiaries. Judgment against the city was obtained for the amount of the reward; and the city sued out a writ of error, assigning for error that the common council had no power to offer the reward, and bind the city for its payment. By the city charter the common council is authorized "to do all such things as it may deem proper for the prosperity, quiet and good order of the city." Does this empower it to bind the city to pay the reward ? A. No. The "enabling clause" quoted must be construed with reference to the object of the state in granting the city charter, and the extent of the power is measured by the corporate pur- pose. The state makes other provisions for arresting, trying and punishing criminal offenders; and even where a city official — the chief of police — arrests, it is as a state official. Accordingly it is not the business of — nor within the power of— =the common council thus to bind the city. Winchester v. Eedmond, 93 Va. 711. But see Crawshaw v. Koxbury, 7 Gray 374. York v. Forscht, 23 Pa. 391. Q. 34. The statutes of West Virginia made it a criminal offense to carry deadly weapons. They also empowered mu- nicipal councils to protect the persons and property of citizens of the municipality, and to preserve peace and good order therein; also, to pass all needful orders, by-laws, ordinances, etc., not contrary to the constitution and laws of the state ; and to prescribe penalties. The town council of the town of Davis enacted an ordinance prohibiting, under penalty, the carrying of any revolver * * * dirk or bowie knife, razor, sling shot, etc. CORPORATIONS 333 Petitioner applied for a writ of prohibition to restrain the mayor of the town from proceeding against him under above ordinance. Discuss his right to such a writ. A. In New York, Alabama, Missouri and in some other states, such an ordinance has been held valid ; though there be a statute covering the offense. But in West Virginia, North Carolina, Cal- ifornia and Georgia, held otherwise ; and it is asked if a city, by ordinance, may punish forgery, perjury, counterfeiting, etc. Judy v. Lashley, 50 W. Va. 628, and cases cited, noting holdings in other states. The statute and the ordinances may both stand together, if not inconsistent one with the other. Cooley, Const. Lim. (6th ed.), 239. O. 35. The city of G had full power to pass ordinances for the grading and levelling of its streets. Under this power it passed an ordinance appointing commissioners to grade its streets and providing that grades so fixed "shall be forever thereafter considered as the true grades of such streets and shall be binding on the corporation and all other persons what- ever and be forever thereafter regarded in making improve- ments upon such streets." A owned lots on one of these streets, which he improved extensively in accordance with the grade. Fifteen years thereafter the city passed an ordinance changing the grade of this street; and the commissioners appointed being about to shut down the street, A filed a bill to enjoin them. Should he succeed? A. No. Bill should be dismissed for want of equity. City councils can not strip themselves of any portion of their legisla- tive, power ; and notwithstanding the apparent permanency given ■to the first grades, the city still had power to set them aside and fix new grades. Goszler v. Georgetown, 6 Wheat. 593. Q. 36. The London and New York Land Company sued the city of Jellico under a contract for grading one of the city's streets. The city defended on the ground that the contract was sought to be made at a special meeting of the "board of mayor and aldermen," called without notice to some of the aldermen, and in their absence. Discuss this defense. 334 LAW STUDENTS REVIEW A. Every member of the council is entitled to notice of special meetings ; and no important action can be taken at such meetings unless such notice shall have been given — or unless the members not notified attend. Land Co. v. Jellico, 103 Tenn. 320. Q. 37. But, assuming in foregoing question that members not notified, in fact became aware of the action ; that they do not challenge it, but they allow the company to proceed and do the work, can they thus by acquiescence bind the city ? A. The council might of course have made a valid contract. As the city has received the benefits which might well have been contracted for, by implication of law it will become liable as by promise to pay for them. Land Co. v. Jellico, 103 Tenn. 320. Q. 38. What is the law as to the power of a municipal cor- poration to mortgage its property for its debts? A. The general rule is that it has such power, provided that the exercise thereof shall not be in such manner as to impair its governmental functions. Adams v. Rome, 59 Ga. 765. Middleton Sav. Bank v. Dubuque, 15 Iowa 394. Q. 39. Suppose the village of X, being authorized by its charter to generate or otherwise supply itself and its citizens with electric current for power and lighting, arranges to pro- cure for the use of its citizens and itself electrical current generated by a company operating at Niagara Falls, distant about ten miles. It installs poles and wires of sufficient capacity to transmit more current than it, or its citizens, can use; and at a price yielding a small profit to itself enters into a contract to sell to the contiguous village of Y, electrical current for similar use. In pursuance of such contract, the village of Y con- structs a pole and wire line to transmit current to it. Thereupon the village of X refuses to furnish the current, and bases its refusal on the ground that as to said village of X the above contract is ultra vires. Is the refusal well founded in law? CORPORATIONS 335 A. The power conferred upon the village of X, being in effect to provide itself and its citizens with current, does not by . implication or by the practical necessities of the case, imply any power to provide anyone else, or any other territory than that contemplated, with current. Accordingly it must be said that the village was not authorized to contract to furnish one not a citizen or inhabitant of its own territory. While furnishing Y with current at profit might be considered a mere incident of the business ; yet this would not be true of a municipal corporation ; for these are held strictly to the powers conferred by charter or general law. City of Paris v. Sturgeon, 50 Texas Civ. App. 519. Q. 40. The financial affairs of a corporation, having five directors, became much involved. A letter was circulated in terms authorizing the president of the corporation to confess judgment in a large amount. Four of the directors had signed. The fifth director refused to sign. He was also a stockholder — - and desired to stop the proposed confession. Discuss his rights. A. The theory of the management of a corporation is that he shall have the right, as a director, to meet and deliberate with his fellow directors; and persuade them, if he can, that the course they propose should not be adopted. They must meet to transact business. 10 Cyc. 1199. But where for a long time the corporation has acquiesced in transactions ordinarily required to be authorized by a board of directors acting as a board, it may, even in the absence of such authority, be bound. Garmany v. Lawton, 124 Ga. 876. 2 Thomp. Corp. (2d ed.) § 1408. Q. 41. A corporation was created by special charter with certain powers, which were then all legal, and there was no authority reserved by the state to change such charter. A sub- sequent statute provided that no corporation should exercise certain of those powers, but in recompense allowed all corpora- tions complying with certain provisions of the act, to exercise other powers. The corporation, created by special charter, wishing to exercise the other statutory powers, complied with 336 LAW STUDENTS' REVIEW the provisions of the statute and thereby became authorized to use such statutory powers; it also subsequently claimed to exercise the powers authorized by its special charter but pro- hibited by the subsequent statute. Under these circumstances, discuss the effect of the statute upon the last mentioned powers. A. As a charter is held to be a contract between the state and the corporation, one party to that contract has no right to change it without the consent of the other party; hence the statute did not of itself operate to take away any of the original powers of the corporation ; but the corporation voluntarily came under the operation of the statute by taking the steps necessary to obtain additional powers, and by exercising such additional powers. It must therefore take "beneficium cum onere," the burden as well as the benefit, of the statute; and is hence pre- sumed to have assented to the statute and become bound thereby ; consequently it could no longer exercise the powers prohibited by the statute. People v. Murray, 5 Hill. 468. Darge v. Horicon &c, 22 Wis. 417. Q. 42. Plaintiffs and defendants were in an association to conduct a union store. Defendants were directors. The busi- ness was to buy goods and sell to members. The constitution was full of rules, "fit for a debating society," but wholly silent as to pecuniary or business matters. All hands were farmers and mechanics. Defendants accepted office as directors un- willingly. With the assent of all, an agent was hired to attend to the business. The directors' duties, according to the by-laws, were to take stock, make reports and inspect the books. This they did not do; but none objected, protested, or called upon them to do these things. The association became insolvent ; bad debts $450 ; the rest depreciation of stock. Can the directors on these facts be held to other members ? A. The directors should not be held. Even assuming that the losses were occasioned by their failure to follow the constitution and by-laws — yet it is admissible to show consent to or acqui- escence in a practical departure therefrom, and this is inferable from appointment of the agent and transferring duties to him ; and from failure to protest. Henry v. Jackson, 37 Vt. 431. CORPORATIONS 337 Q. 43. A stockholder received from the president of his company an offer to buy from the stockholder his shares of stock. The stockholder applied to the president for informa- tion about the affairs and prospects of the company. While the president made no actual misrepresentation, yet he with- held information, especially about prospects. The stockholder sold him the stock for $150 a share. At and before the sale, a combination was talked of, which was effected shortly after the sale ; and thereupon the price of the stock went up to $250. The stockholder filed a bill to set aside the sale. Should he succeed? A. No. The president did not sustain such a relation to an individual stockholder as to preclude a valid purchase of stock hy the president, so long as he did not actively mislead the stockholder. Hooker v. Midland &c, 215 111. 444. 2 Thomp. Corp. (2d ed.) § 1419. Q. 44. The board of directors of a corporation organized for manufacturing and dealing in steel and steel products passed a resolution contemplating the transaction by the cor- poration of the business of importing oranges. Who, if any one, has the right to object? A. 1. The state: For the reason that it has the right to insist that a corporation which is its own creature shall not depart from the transaction of the business for which it was created. Mumma v. Potomac &c, 8 Peters 281. 2. Any stockholder: For the reason that an integral feature of his undertaking with the corporation, and the undertaking of the corporation with him, is that it shall conduct the business for which it was created ; and not engage in business other than is the object of its charter. Elliott Private Corp. § 431. Consumers' &c. v. Quinby, 137 Fed. 882. Q. 45. One McCall was president of the New York Life Insurance Company. For years he had disbursed corporate funds upon his sole authority. He had undertaken to pledge 22— L. S. Rev. 338 LAW STUDENTS' REVIEW $50,000 to the Republican campaign committee in 1904. He requested George W. Perkins; one of the company's trustees, by way of advance to the company, to pay that sum to one Corne- lius Bliss, the treasurer of the Republican National Committee. This Perkins did. McCall then brought the matter up informal- ly before a full attendance of the members of the finance com- mittee of the company. No official action was taken ; but there was no objection to reimbursing Perkins. Subsequently the treasurer of the company, out of funds of the company, reimbursed Perkins. Assuming that Perkins got no personal advantage out of the transaction, can he still be held as for larceny of the funds of the company? A. No. The act is clearly ultra vires ; but that fact does not make it criminal. It is neither malum 'prohibitum nor -malum in se. The motive to further the supposed interest of the com- pany by continuing the Republican party in power, tends to show lack of criminal intent. People ex rel. v. Moss, 187 N. Y. 410 (majority opinion). But three of the seven justices dissent; on the ground that as the money was illegally given to a third person, this constitutes larceny; as if the company's money were taken to "buy a neck- lace for a woman." Q. 46. M owns stock in the XY Company, a corporation engaged in manufacturing and selling mining machinery, whereof AB is president. AB is also director and a heavy stockholder in the CD company, a rival concern, in which M owns no stock. M claims that AB is diverting the business of the XY to the CD Company; and that if this be continued his stock would be worthless. Assuming his claim to be in accord- ance with fact, discuss the question whether he has any legal or equitable remedy. A. M has, in the absence of fraud, no legal or equitable remedy. Officers of a corporation, if acting in positive good faith toward the corporation and their co-stockholders, are not by reason of their being such officers precluded from engaging in the conduct of other business in the same line with that of the CORPORATIONS 339 corporation; and in this regard they do not stand in a trust relation to the corporation. See Barr v. Pittsburgh &c, 57 Fed. 86. Of course, it is otherwise if there is any bad faith in the action of AB. Q. 47. In the case of a municipal corporation, it is said that there can be no officer de facto unless there is a corresponding office de jure. Explain this. A. It means that even though a person assume to act as an officer of a municipal corporation, and perform service accord- ingly, yet if the law does not constitute the office he assumes to hold, he is not an officer of the municipality. Norton v. Shelby County, 118 U. S. 425. Nichols v. MacLean, 101 N. Y. 526. O. 48. In the absence of a statute, how would you proceed in the case of a corporation with an authorized issue of 1,000 shares of common stock to make 500 shares thereof preferred stock ? A. I would call a meeting of stockholders, and present for adoption a resolution authorizing as above; but if any stock- holder objected, I could not, and therefore would not, proceed further. 26 A. & E. Encyc. L. (2d ed.) 837. Q. 49. As between buyer and seller of shares of capital stock, who is entitled to a dividend earned before but declared after the transfer of such stock? A. The buyer. No right in a shareholder to participate in dividends exists until the same are declared, and accordingly in above case the buyer is entitled to receive them. Tepfer v. Ideal, 109 N. Y. Supp. 664. Elliott Private Corp. § 405. Q. 50. Under what circumstances, if any, and how, if at all, can a stockholder require a corporation to pay dividends ? A. When a dividend has been declared a stockholder can re- quire it to be paid. He, can ordinarily recover in a suit at law against the corporation. 5 Thompson Corp. (2d ed.) § 5323. 340 LAW STUDENTS REVIEW Q. 51. In the absence of any agreement in the matter, who has the right, as between pledgor and pledgee to vote stock which is pledged? A. The right to vote is in the pledgor, until the title of the pledgee has been perfected by a transfer on the books of the company. Elliott Private Corp. § 471. 22 A. & E. Encyc. L. (2d ed.) 907. Q. 52. B, the owner of certain shares of the capital stock of a private trading corporation, in accordance with an agreement between a majority of the shareholders, deposits the same with a committee empowering such committee to vote the same for five years. Becoming dissatisfied with the manage- ment, he desires, before the expiration of the five years, to rescind and withdraw his stock. May he legally do so ? A. He may rescind and withdraw. It is against publ?c policy to sever the vote from the ownership of the stock. Warren v. Pirn, 65 N. J. Eq. 36. Kreissl v. Distilling &c, 61 N. J. Eq. 5. Q. 53. The owner of capital stock pledges the same with a broker as collateral for advances ; and according to the cus- tom in such cases, endorses in blank on the stock certificates an assignment and power of attorney which would authorize the assignee to cause the stock to be transferred on the books of the company to him. The broker, without the knowledge of the owner, pledges the same stock at a bank, which has no notice of any irregularity, for a debt of his own; and thereupon be- comes insolvent. What remedy, if any, has the owner against the bank? A. To get back his stock, the owner must offer to pay the bank's advances back to the bank. The owner, having placed the stock in the broker's hands in such condition that an improper use might be made of it, must suffer the loss thereby caused, or permitted. Leavitt v. Fisher, 4 Duer 1. Q. 54. To what extent, if at all, do certificates of shares of CORPORATIONS 341 the capital stock of a corporation possess the attributes of negotiable paper? A. Strictly speaking, such certificates are not negotiable. But a vendor impliedly warrants that the certificate is genuine, and that he is the owner of the shares thereby represented, or evidenced, and is authorized to transfer title. Utley v. Donaldson, 94 U. S. 29. Q. 55. A proxy is said to be revocable. Discuss the question whether under any circumstances an irrevocable proxy might be given. A. A proxy (speaking of the instrument) is merely the evi- dence of an agency to vote certain stock of a corporation. Unless coupled with an interest, or acted on, it may be revoked, just as any appointment of an agent may be revoked. If, however, it be coupled with a legal interest, it may not be revoked. Keed v. Bank of Newburgh, 6 Paige 337. Matter of Germicide Co., 65 Hun 606. Elliott Private Corp., § 473. Q. 56. Averment that the Swan Land and Cattle Company has paid all liabilities (except the liability sued on), has dis- tributed its remaining assets among its stockholders, has since made no use of its franchises, has no agent or officer tipon whom process can be served, and no assets wherefrom to satisfy a judgment. Does the foregoing amount to a dissolution ? A. No. Dissolution may be effected by expiration of charter ; by irremediable failure of an essential part of corporate organi- zation; by surrender with the consent of the state; by (constitu- tional) legislative enactment; or by judgment of a competent court in regular judicial proceedings. Above averment does not, however, amount to any of these requirements for legal dissolu- tion. Swan &c. v. Frank, 148 U. S. 603. Q. 57. A stockholder filed a bill in equity to dissolve a cor- poration on two grounds. (1) That the corporation had not pursued the objects for which it was incorporated. (2) That it was doing business and pursuing objects not in accordance 34 2 law students' review with its charter. Facts were alleged which if true would make out these grounds. A demurrer was interposed by the cor- poration. What should be the ruling of the court? A. Demurrer sustained. It is for the state alone to dissolve a corporation by reason of misuse or nonuse of charter powers. Lincoln Park &c. v. Swatek, 204 111. 228. Q. 58. X owns 51% of the stock of a trading corporation. He desires forthwith to dispose of the entire assets of the cor- poration, divide them among the stockholders and abandon the business of the corporation. What do you say to this ? A. That he must get the consent of all the stockholders; that the corporation has been created by the state for the pur- pose of doing a certain business; and that any stockholder has the right to insist that such business shall be carried on ; or that the corporation, if it be dissolved, shall be dissolved in accord- ance with statute, if any. Hunt v. American &c. Co., 81 Fed. 532. CHAPTER XIV EVIDENCE, Question i. It is said "the court had common knowledge of the time the sun set on the day under inquiry, and so (did) the the jury. There was no occasion therefore to introduce (in evidence) an almanac to show the hour." (Louisville &c v. Brinkerhoff, 119 Ala. 606.) On what principle is this founded, and to what extent does the principle obtain? A. The principle involved is that common knowledge which is general among the community is possessed by a judge equally with any other well informed member of the community. It is confined to matters of fact. Chamberlayne Mod. L. Evid., § 572. Knowledge of notorious facts the judge is assumed to share with other intelligent men. Chamberlayne Mod. L. Evid., § 572. Q. 2. Appellee was indicted on the charge that he did on the 3rd day. of November, 1896, feloniously hire one John King, at and for the hire and reward of $2.00, to vote the Republican ticket at the general election authorized by law for state and county offices. It was contended that the designation, "Republican Ticket," was not sufficient, without a charge that such a ticket was at said election before the voters for their suffrage ; and motion to quash on this ground was urged. Is the objection to the indictment sufficient? A. Insufficient. The court takes judicial knowledge that at the (then) last general election one of the great political parties of the state and nation known as the "Republican Party," sub- mitted to the voters of the various precincts of the state a ticket known by the people, and recognized in the election laws of the 343 344 LAW STUDENTS REVIEW state, as the "Republican Ticket." That which is judicially known need not be proved. State v. Downs, 148 Ind. 324. The court in Iowa took judicial knowledge that Texas fever, with which cattle are sometimes infected, is a contagious or infectious disease. It is said to be a matter of such common knowledge that the courts should take judicial notice thereof. Dorr &c. v. Chicago &c, 128 Iowa 359. But as to whether oleomargarine is of any hygienic value or not, the court will not take notice. Northwestern &c. v. Chambers, 58 Mich. 381. 4 Wigmore Evid., § 2577. Q. 3. A suit was brought in the Federal Court for the District of New Hampshire to recover damages for injuries received by plaintiff by being run into by defendant's automobile in Massa- chusetts. The law of the road in Massachusetts became material in the case; and the defendant, in order to show what the law of Massachusetts on that subject was, offered three 'decisions of the Massachusetts Supreme Judicial Court, contending that the Federal Court could not take judicial cognizance of it. Is this contention sustainable? A. Not sustainable. The lower courts of the United States, and the Supreme Court on appeal from their decisions, take judicial notice of the constitution and public laws of each state of the Union. Lane v. Sargent, 217 Fed. 237. Mills v. Green, 159 U. S. 651. Note, however, that on writ of error to the highest court of a state, in which the reviewing power of the United States Supreme Court is limited to determining whether a question of law depending upon the constitution, laws or treaties of the United States, has been erroneously decided by the state court — the Supreme Court does not take judicial notice of the laws of the state to which the writ is sued out, unless made part of the record sent up to the Supreme Court. Hanley v. Donoghue, 116 U. S. 1. Q. 4. What is a presumption (a) of law? (b) of fact? A. (a) A presumption of law is an inference which on a EVIDENCE 345. given state of facts the law uniformly requires to be drawn from such state of facts. See 1 Greenleaf, §§ 15, 41. (b) A presumption of fact is an inference which through the common experience of mankind and without reference to> legal relations is customarily drawn from a given condition of facts. See 1 Greenleaf, §§ 15, 41. Q. 5. Discuss the rule that the husband must be presumed to be the father of a child born to his wife, if he "was within the four seas" during any part of the usual period of gestation. Ai The rule is exploded: one judge says "on account of its absolute nonsense." The modern rule is that to bastardize the issue of a married woman, it must be shown beyond reasonable doubt that there was no such access as could have enabled the- husband to be the father of the child. Thus although actual adultery with other persons is estab- lished at or about the commencement of the usual period of gestation ; yet if access by the husband has taken place, so that by the laws of nature he may be the father of the child, the child will be presumed to be his. Cross v. Cross, 3 Paige 139. Q. 6. X has in front of his store a large electric sign, swing- ing over the sidewalk. It falls when an ordinary wind is. blowing, and severely injures Y, a pedestrian rightfully upon the walk. Y brings an action against X for damages, and on the trial the above facts only are shown. X enters a motion to direct a verdict for the defendant. How should the motion be decided? A. Motion overruled. Because of the rule of res ipsa loquitur; that is, when a thing which causes injury is shown to be under the management of the defendant, and the accident is. such as in the ordinary course of things, does not happen if those who have the management use proper care, reasonable evidence, in absence of an explanation by the defendant, is thus. afforded that the accident arose from want of care on the part of defendant. 2 Cooley Torts 800. Q. 7. Intestate died in New York in 1832; and letters of administration were granted upon her estate in that year. A. 346 LAW students' review niece, daughter of her deceased brother, had gone to Maryland in 1813. In about 1820 she was heard of as living in the neigh- borhood of Baltimore; and at that time several letters passed between her and her friends in the State of New York. After that for fourteen years she was not heard of by her relatives in New York; although they several times wrote letters ad- dressed to her last known place of residence. Accordingly she was supposed to be dead, and the administrator turned over her portion of the intestate's estate to other heirs. She returned to New York in 1835, an( i was th en informed that her share of the estate had been paid over to other heirs in 1833, under the supposition that she was dead. Does the presumption of death apply in this instance to the niece ? A. There is not enough here to warrant a legal presumption that the niece was dead ; and this is true, although her relatives in New York had not heard from her in fourteen years. Even where a person has remained beyond sea for seven years and has not been heard from, he is not to be presumed to be dead provided he had a known and fixed residence in a foreign coun- try when last heard from — unless evidence is presented of inquiries made for him, without success, at such known place of residence. McCartee v. Camel, 1 Barb. Ch. 455. O. 8. Plaintiff proved, as against the defendant who was an endorsee of a promissory note, that on the day the note was dishonored, a notice of protest properly addressed to defendant at "Philadelphia Driving Park, Philadelphia," postage prepaid, was mailed ; and that the return mark of the notary who sent the notice, with the request for return if not delivered, was on the envelope. It was also proved that delivery by carrier did not extend to Philadelphia Driving Park, but that at the time in question residents there, including defendant, received their mail regularly at the sub-postoffice in the vicinity. Defendant denied that he ever received the notice. Defendant contended that under this evidence he should have a verdict; but the judge left the matter to the jury to find whether or not the defendant got the notice. Was the court correct in this ? EVIDENCE 347 A. Correct. Depositing a letter in the mail properly ad- dressed, postage paid, raises a natural presumption, founded in common experience, that the letter reached its destination. This constitutes prima facie evidence that the letter was received by the person to whom it was addressed; but of course this proof may be rebutted by showing that it was not received. Question is one of fact, solely for the determination of the jury, under the evidence. Jensen v. McCorkell, 154 Pa. 323. O. 9. A fireman on one of defendant's locomotives sought to recover for injuries sustained by reason of the fact that the conductor and brakeman on a stalled freight train of defendant negligently left the train standing on the track without dis- playing the proper signals. By reason of such negligence, though it was considered to be the negligence of a fellow-servant, plaintiff was injured. The accident happened in Illinois. Plaintiff brought his suit in Wisconsin. The Wisconsin statute authorizes recovery under these circumstances regardless of the fact that the negli- gence was that of a fellow-servant of plaintiff; but in Illinois, where the accident took place, the common law doctrine of fellow-servants applied ; and was relied on in the pleadings of defendant. No proof, however, was offered of the Illinois law. In what presumption, if any, should the Wisconsin court indulge as to the Illinois law? A. In the absence of any proof of the statute of Illinois on the subject of fellow-servants, the Wisconsin court should hold that the law of Illinois on that subject is the same as the law in Wisconsin. The cause of action is cognizable at common law, it arose in Illinois, where the common law, except as modified, is enforced; but in the absence of any proof, and notwithstanding that the common law is changed by the Wisconsin statute, the Wisconsin court presumed that a similar change has taken place in the law of Illinois. McCarthy v. Whitcomb, 110 Wis. 113. But as to this latter presumption, New York and Massachu- setts courts hold the contrary. Cutler v. Wright, 22 N. Y.472. Murphy v. Collins, 121 Mass. 6. 1 Elliott Evid., §§ 49, 120. 348 LAW students' review Q. 10. Defendant was convicted of the crime of bigamy. He was married in Sweden in 1876 ; and again in St. Paul in 1889. He left his first wife, then living, and her children in Sweden in 1884, and in 1887, when defendant's sister left Sweden to go to St. Paul, his first wife sent him a message. There was no evidence that since August, 1887, anyone had seen or heard from the first wife. Defendant contended that presumption of his innocence should prevail against the presumption that the first wife was still living. Which presumption should prevail? A. Carried to its logical result the effect of defendant's con- tention would be that even if it were proved by indisputable evidence that the former wife was alive and in good health a few hours before the second marriage, the jury could not, without some direct evidence to the contrary, presume that death had not intervened. This of course is unreasonable; and while not so unreasonable where something over a two-year interval is left unaccounted for — yet upon the facts a jury would be authorized to infer that the first wife was still living. State v. Plym, 43 Minn. 385. See also for a discussion of this question Rex v. Harborne, 2 Ad. & EI. 540. Q. 11. Defendant was an innkeeper in New York City. Plaintiff became his guest on the evening of April 20, 1863 ; and soon after arriving at the defendant's hotel he delivered to the hotel clerk a sealed envelope, stating simply that it contained money, and requested that it be deposited in the safe at de- fendant's office intended for safekeeping of valuables belonging to guests. The package was placed in the safe and the safe was locked in plaintiff's presence. The package was stolen by a servant of the defendant, who had access to the safe. Plaintiff claimed that it contained $20,000, and offered a witness to prove that he saw plaintiff at his office in Philadelphia some time in the month of April pre- vious to the 20th, with two French drafts drawn by the Citizens Bank of Louisiana, and a large amount of money, several $1,000 notes and several $100 notes (greenbacks). Although EVIDENCE 349 witness did not count it, he was satisfied that he saw from $12,000 to $15,000 in plaintiff's possession at that time. Should this evidence have been admitted ? A. While the time and place were somewhat remote or un- certain, yet the evidence should be admitted. It is true that the possession by plaintiff of the money does not certainly prove that he handed it to the defendant ; but it is also true that unless he had the money he could not deposit it. Clearly if someone had seen him on the evening of April 20th, just before he made the deposit, in possession of the money, the evidence would be competent; there is a legal presumption of continuance in pos- session: e.g., a partnership once established is presumed to exist ; so of life ; and it can not be said as a matter of law that the evidence offered is irrelevant. Wilkins v. Earle, 44 N. Y. 172. Q. 12. A gave a deed in 1891 to B. Subsequently and in 1892 in a suit to set aside this deed, in which suit A and B were parties, it was adjudged that A was insane when the same was executed, and it was set aside. In 1895 A gave another deed to C. In 1898 A died. In 1899 B brought suit against C to cause the deed to C to be set aside on account of the insanity of A. The lower court allowed the record in the suit between A and B to be introduced as tending to show A's insanity. Was this error? A. Error, because the finding and record sought to be intro- duced were not predicated upon an inquisition by public author- ities in behalf of the public, but the decree was merely a finding in a private suit wherein C was not a party, and whereby C was not bound. Of course, C had no opportunity of cross-exam- ining the witnesses in that suit, or of appealing from the decree there rendered. Bollnow v. Eoach, 210 111. 364, 368. Q. 13. A little girl five years old was run over by defendant's trolley car, which cut off her left foot. The foot, which had been amputated, was exhibited to the jury. Plaintiff's attorney contended that the foot was admissible to show the size of the child at the time of the accident ; and also that a discoloration upon it had a tendency to establish the fact that the electrical 3SO LAW STUDENTS REVIEW current of defendant had not been shut off, but had burned the child ; and that this bore on the question of negligence. Assume that the jury might properly find negligence on other evidence ; and that the verdict was a large one ; what is to be said as to the propriety of allowing the foot to be intro- duced in evidence? A. While it is the undoubted rule that the exhibition (where not indecent) of an injury or an injured member may be proper where necessary to enable the jury to understand the circum- stances or conditions which existed when the injury was received, or to perceive the character of the injury itself — yet where such exhibition is not thus necessary, and especially where the jury may be led through sympathy to "illegitimate considerations," then it may be — and in the above case was held to be — improper. Eost v. Brooklyn Heights E. Co., 10 N. Y. App. Div. 477. The amputated hand of the plaintiff, bearing marks of hav- ing passed under the stencil of a defective machine, was allowed to be admitted in evidence, as tending to show the circumstance that it did pass under the stencil. Here a streak of ink was shown on the hand. Anderson v. Seropian, 147 Cal. 201. Q. 14. In order to recover civilly of one Dana, its ticket agent, moneys alleged to have been embezzled from it by him, the Boston and Worcester Railroad offered evidence that when Dana went to work for it he was insolvent. That his salary was only limited; that he had received some small extra com. pensation ; but that subsequent to and during his alleged pecu- lation he was the owner of large property, far exceeding the aggregate of all his salary and receipts while in the company's service. Is the proof competent? A. Yes ; not on the ground of its being proof of stolen prop- erty; but as having, if the jury believed money was fraudulently abstracted from plaintiff by some one in their employ, a tendency to prove who abstracted it. Also held competent as part of the res gestae as tending to show theft from habits of life and pecuniary condition during the time of his employment. Boston &c. v. Dana, 1 Gray 83. O. 15. John W. Webster was convicted of the murder of EVIDENCE 351 Parkman. The identity of the dead body of Parkman never was established except by certain teeth found in a furnace or retort operated by Webster. The teeth were identified by the dentist who prepared and fitted them for Parkman. Parts of a body were also found which in shape, size, height and other particulars would, if put together, have corresponded to the body of deceased. But they would also have corresponded with the bodies of many other persons in the community. Can a conviction by the jury on such identification be allowed to stand? A. Yes. The evidence is circumstantial ; but if it satisfies the jury belond a reasonable doubt of the identity of the deceased, they may convict. It is founded on experience and observed facts and coincidence establishing a connection between the known and proved facts and the facts sought to be proved. If it is be- lieved by the jury and fairly tends, beyond a reasonable doubt, to establish such a connection, then the jury may found its verdict thereon, and the court will not disturb it. Commonwealth v. Webster, 5 Cush. 295. Q. 16. To prove adultery the state offered evidence tending to show that defendant had frequently called at the house of the woman alleged to be his paramour (Miss Small) in the summer and fall of 1878, between 8 and 9 o'clock in the even- ing, called her out and stood and talked with her at the gate ; once they walked to the shipyard. This the defendant denied, and he offered a witness to show that during the same summer and autumn in the evening wit- ness had several times seen a man, not the respondent, call out Miss Small, stand with her at the gate, and walk with her to the shipyard. Excluded. Is the ruling correct ? A. Euling incorrect. The evidence is relevant. While both statements might of course be true; yet the truth of one would lessen the probability of the truth of the other. "Relevancy is that which conduces to the proof of a pertinent hypothesis. Hence it is relevant to put in evidence any circumstances which tend to make the proposition at issue more or less improbable." State v. Witham, 72 Maine 531. 352 LAW STUDENTS REVIEW Q. 17. Trefethen was indicted for murder, and was put upon his trial. He offered to prove that the evening before her death the alleged victim, a young unmarried woman, had called upon a "trance medium" ; had disclosed the fact that she was enceinte, had come to consult as to what to do, and later in the interview had said that she was going to drown herself. Twenty-four hours after, she was found in the Mystic river, drowned. No marks of violence. The court excluded the above evidence as hearsay. Is the ruling correct? A. Error. The evidence is competent, to indicate the state of mind or intention of deceased, at the time the statements were made. While she may not have told the truth; or she might have changed her mind; yet the declaration is sufficiently near in time to her death to go to the jury. Of course suicide was the theory of the defense; and the excluded proof tends to establish that theory. It is admissible on the same grounds with demeanor, or appearance, or actions. Commonwealth v. Trefethen, 157 Mass."l80. Q. 18. Seizure of 114 pieces of broadcloth by the United States government, based upon unlading without a permit. A permit had in fact been obtained ; but the government claimed that it was obtained by fraud, and by the bribery of a deputy customs collector at Boston. To prove such fraud and guilty knowledge on the part of the owner of the goods, the govern- ment offered to prove that between August 5, 1837, and March 15, 1838, other similar packages of goods, the cases containing the same being numbered in progressive continuation with the cases containing the goods in question, had in like manner been fraudulently imported by the same owner into the port of New York. Is this proof of other fraudulent acts of similar character admissible ? A. Admissible. While on indictment for burglary it is not admissible to show that the accused had been guilty of bur- glaries other than the one charged; yet in cases of conspiracy and fraud, other acts than the one in question, in furtherance of the same fraudulent design, are admissible, first to establish EVIDENCE 353 the conspiracy or fraud; second to repel the. suggestion of acci- dent or mistake. Bottomley v. United States, 1 Story 135. And thus where a person is charged with negligence in doing or omitting an act, it may be shown that he had performed or omitted the same act, in the same way before, as tending to show that he did or omitted the act at the time in question. State v. Manchester &c. E., 52 N. H. 528. Again, where the charge is of selling skimmed milk for fresh milk; to show other instances of similar sales by accused at about the same time is competent, because it is less probable that one would make a mistake in repeated instances than in a single instance. Bainbridge v. State, 30 Ohio St. 264. 4 Elliott Evid., § 2720. Q. 19. Plaintiff, a woman, sued defendant in tort, for as- sault and battery. Defendant was permitted to introduce sun- dry witnesses whose evidence tended to show that twenty years before the act complained of, plaintiff had repeatedly made false charges of indecent assault upon her, with a view to ex- torting money from innocent men. Assuming such evidence to be inadmissible as to the fact of the assault, is it still competent as tending to lessen the damage chargeable to defendant ? A. Not competent. Above is analogous to an attempt to prove that an accused has committed other crimes than that with which he is charged. When character is in issue, it may be shown only by evidence of general reputation, and not by proof of specific acts. Miller v. Curtis, 158 Mass. 127. Q. 20. Three women went to a dry goods store. One of them (the plaintiff in error) inquired for a cheap woolen shawl, examined and bought one. The other two meanwhile inquired for India shawls ; and one of these two stole a shawl and concealed it about her person. The two immediately left the store. They were stopped. The companion of the thief went back and whispered to the plaintiff in error, who was immediately asked if she knew the other two. She replied that she did — that she came into the store with them. 23— L. S. Eev. 354 LAW students' review Does the foregoing amount to a sufficient showing of com- plicity on the part of plaintiff in error in the crime of larceny, to show a conspiracy on her part with the other two women, fd as to make declarations of the other two women at the time it the theft competent evidence against plaintiff in error? A. It does not. While her coming in with the others might naturally excite suspicion, there was no evidence that she knew or suspected that they meant to steal. Her coming was con- sistent with innocence; and thus is no proof of her guilt. A prima facie case of conspiracy or confederation is not made out against her. Ormsby v. People, 53 N. Y. 472. Q. 2i. A man was robbed at Greenfield, Massachusetts, February 19, 1868. The day after the robbery one of the de- fendants, Anthony Baker, who was charged with the robbery, shipped from a station near Greenfield two valises for Chicago, Illinois ; and the express agent testified that, at the direction of Baker, he attached tags to the valises marked "B. Anthony, Chicago, 111.," which Baker gave as his name. The tags were lost; but it was material to show what was on them. While some attempt at finding them was made, yet the person in whose possession they had last been was not called as a witness, nor was his absence accounted for. It was shown, however, that similar valises were among the baggage of defendant Baker at Chicago, and that the detectives who arrested him had seized these two valises. The Commonwealth sought to prove by one of the detectives what was written on the tags. Defendant ob- jected on the ground that this was in writing, and the tag must be produced. What should be the ruling of the court here ? A. The objection of the defendant should he overruled. While the general rule is that where the contents of a writing are material and in issue, the writing must be produced or a showing made of diligence to produce it; yet there are many exceptions. This tag is one. An inscription on a banner or a flag is another. A direction contained on a parcel is still another. The tag was not a document; it was simply an object to be identified. Commonwealth v. Morrell, 99 Mass. 542. Evidence 355 Q. 22. On a trial the Commonwealth proved by a supervisor that he served notice in writing in February, 1863, on one of the defendants. It then sought to prove by the witness what was in the notice; but the defendant objected that as the notice was in writing the witness could not give evidence as to what was in it, there being no notice to defendant to produce the original notice. What should be the ruling on this contention ? A. Against the defendant. It is not necessary to give notice to produce a notice. If it were, then notice to produce the orig- inal, being itself in writing, would have to be called for by an- other notice; and so on ad infinitum. Morrow v. Commonwealth, 48 Pa. 305. Q. 23. May an unacknowledged deed be admitted in evi- dence when material, without proof of execution ? And if so, under what circumstances ? A. An ancient deed may be admitted in evidence without direct proof of its execution, if it appears to be of the age of thirty years, is found in the proper custody, and either posses- sion under it is shown, or some other corroborative evidence of its authenticity is forthcoming, so as to free it from all just grounds of suspicion. This is an exception to the hearsay rule. 2 Jones Ev., § 312. Q. 24. In support of his title plaintiff relied upon a mort- gage deed given to secure three notes of hand aggregating $1,600. Two of the notes the mortgagor paid at maturity, leav- ing one for $533 unpaid. Thereupon mortgagor conveyed by warranty deed to one Walker, Walker agreeing orally, as part consideration for the conveyance, to pay this $533. The plaintiff was not a party to the mortgage ; he was a sec- ond assignee thereof, and took the note in question after ma- turity. The mortgagor undertook to defend on the ground that Walker had agreed to pay the mortgage as part of the consid- eration. The plaintiff contended that to admit oral evidence of Walker's agreement to pay the balance on the mortgage as a part of the consideration would contradict mortgagor's war- 356 law students' review ranty ; and relied on the rule that oral evidence may not be in- troduced to control a written agreement. Can plaintiff sustain this ? A. Unsustainable in above case. The rule applies only in suits between parties to the agree- ment; they alone are to blame if the writing contains what was not intended — or omits something it should contain. The rule does not apply to suits between third persons. They are allowed to prove the truth notwithstanding it may contradict the written statements of others. Burnham v. Dorr, 72 Maine 198. Q. 25. By agreement in writing Chapin agreed to furnish Dobson with certain breaker feeders on terms stated at $300 each, delivered at Pawtucket, R. I., time of man and expenses from Philadelphia to be charged extra; cash on delivery, 5% commission allowed on each machine. Plaintiff delivered a portion of the machines ; defendant re- fused to receive the residue, and plaintiff sued. Defendant Dobson relied upon an oral guaranty, given at the time the agreement was executed, that the machines would work well, and that if they failed to do so, defendant might send them back. He did send them back on the ground that they did not work properly, and refused to accept the residue. May defendant rely on the oral guaranty accompanying the written agreement ? A. Both the written contract and the oral guaranty may stand, and defendant may have the benefit of the guaranty. The contract is limited to particular machines as such. The guaranty is limited to the capacity of a machine. The guaranty in no way touches upon the agreement, nor does it operate as a defeasance, but it leaves the agreement valid and to be performed; and gives the defendant the right to recoup for abatement of damages in case the guaranty is not made good. Chapin v. Dobson, 78 N. Y. 74. 0. 26. The administrators with the will annexed of testator, brought a bill of interpleader. Testator had made a bequest to the American Tract Society. There were two societies of that EVIDENCE 357 name, one in New York, and one in Massachusetts, where the testator lived. It was sought to show, by evidence outside the will, which of the two societies testator had in mind. Does this come within the rule that parol evidence may not be used to vary written language ? A. No. The ambiguity is clearly a latent ambiguity. It is the existence of two societies of the same name which makes the meaning of the testator doubtful. Evidence as to which one he had in mind does not vary written language ; it only enables the court to reject one of the two subjects to which the description applies, and to ascertain which of them testator understood to be meant by the words he used in his will. Bodman v. American &c, 9 Allen 447. Q. 27. Respondent purchased of appellant a steam heating boiler which was placed in the basement of respondent's build- ing, in 1895. Respondent paid appellant the purchase price of $300; $100 April 6, 1895, and $200 December 16, 1895; and when the last payment was made the following written memo- randum was signed and delivered: "December 16, 1895. Received $200 from (respondent) to balance boiler account in full. (Signed by appellant.)" Respondent, notwithstanding this receipt, sought to show: That there was an oral agreement that this payment should not be deemed an acceptance of the contract; but that defects in the construction and operation of the boiler should be remedied by appellant. That such defects existed; attempts to remedy them were abandoned; and respondent rejected the boiler. Was the evidence of the oral contract properly received? A. It was competent — though it contradicted the writing. And the writing "to balance boiler account in full" is ordinarily more than a mere receipt. But in this instance, the receipt in fact does not preclude the parties from agreeing orally that the boiler may remain in place and respondent may ascertain whether it will prove satisfactory. Seeger v. Manitowoc &c, 120 Wis. 11. Note, however, that in cases where a receipt in terms shows 358 LAW students' review that it covers some agreement it may amount to a written con- tract, and does not stand open to contradiction by parol evi- dence. Seeger v. Manitowoc &c, 120 Wis. 11. Q. 28. Defendant was depot master or agent for the Boston and Worcester Railroad. He was sued by .that company, in assumpsit, for money alleged to have been received for account of the company by him for which he had failed to account. The items were for freight, tickets, and sleepers sold. In proof of their losses by reason of the alleged peculation -jf defendant, plaintiff introduced in evidence two schedules or summaries made by one Fowler, from original documents pre- viously proved in the case. Is this permissible ? A. Yes; provided the documents are "multifarious and vo- luminous;" and of a character which renders it difficult for a jury to comprehend material facts without the aid of such a summary; that they are verified by the person who made them from the original documents, and who testifies to their accu- racy; and that ample time is given to the adverse party to examine them. Boston &c. v. Dana, 1 Gray 83, 104. O. 29. A, B and C signed a joint and several note, A adding to his name the word "principal" and B and C adding to theirs the word "sureties." In suit upon the note against A, he claimed the rights of a surety averring that C was, in fact, the prin- cipal and A and B the sureties, (a) Could he show the fact? (b) If no additions had been made to any of the names could A as between himself and B and C show that he was only a surety ? A. (a) No. The terms of a written instrument can not be contradicted by parol. Having contracted as principal he should be held as such. (b) Yes. This would not contradict the note. Brandt Suretyship and Guaranty (2d ed.), § 41. 4 Wigmore Evid., § 2425. Q. 30. A signed an instrument leasing to B a certain tract of land for a certain time at a certain rental. B promised he would cause C to guarantee the payment by endorsement on EVIDENCE 359 lease, C having been surety to A on a lease for the same prem- ises the year previous. B refused or failed to secure C as surety, and A brought forcible entry against B for possession ; and offered to prove the verbal agreement of B as to securing C as surety on the lease to establish the nondelivery of the lease under which B defended the action. The testimony was objected to as an attempt on the part of A to vary a written agreement. What should be the judgment of the court upon this question and objection? A. Objection should be overruled. The evidence does not tend to contradict the writing; but tends to show there was no valid delivery of the lease. It may be shown by parol that a deed in the hands of a grantee was never in fact delivered. Jordan v. Davis, 108 111. 336. Q. 31. Mention certain important exceptions to the rule that the contents of a written instrument must, if material, be proven by the production of the instrument itself, if procur- able? A. (1) Contents of any record of a judicial court and of entries in any other public books or registers. (2) Appointment of public officers. (3) Result of an examination of voluminous facts or of the inspection of many books and papers. 1 Greenleaf Ev. §§ 91, 92, 93. Q. 32. To prove the transfer of a parcel of stock by the plaintiff in the name of the defendant, plaintiff offered a copy of the transfer taken from the bank book. The bank books were public books, and were in court; but only the copy was offered. It was objected that the books themselves were the best evidence and should be given in evidence. What is the correct view ? A. Lord Kenyon (1797) said that these were public books which public convenience required should not be removed from place to place ; and though the books were in court, he would not, for the sake of example, break in upon a rule founded on public convenience ; accordingly he admitted the copy. Marsh v. Collnett, 2 Espinasse's Reports 660. 360 LAW STUDENTS' REVIEW Q. 33. Action on a policy of insurance made on a vessel. The policy prohibited the vessel from trading at any "guano" islands. The vessel in question loaded at the island of Navassa in the Carribean sea, and the question at issue was whether Navassa was a guano island. Defendant, for the purpose of showing that it had been so considered, and had been treated by the government of the United States as a guano island, offered (1) A volume of public documents printed by authority of the Senate of the United States tending to show that the United States had acquired and asserted title in the island of Navassa, and that such title was authorized to be maintained only as to a guano island. (2) To read to the jury an article in Appleton's Encyclo- paedia. Rule on these offers. A. (1) Evidence admitted. The volume of public documents printed by authority is as competent evidence as are the original documents themselves. (2) Incompetent. The book published by a private person is not competent evidence of facts of recent occurrence which might be proved by living witnesses or other better evidence. Unless the book is shown to have been approved by some public authority, or to be in general use among merchants or under- writers, it has no tendency to show that the island was known as a guano island. Whiton v. Albany &c, 109 Mass. 24. Q. 34. Plaintiff brought replevin for a large quantity of logs. It became necessary for the plaintiff to disprove tax title of defendant to the land from which they were cut. To do this plaintiff offered a proper transcript, which included sundry entries in the journal of the board on whose action tax titles must be founded ; and a certificate by the county clerk that the transcript contained all entries in the journal relating to the particular subject, properly specifying the matters referred to. This certificate was excluded on the ground that it was not competent for the clerk to certify that a part of the records comprised all upon a particular subject; and this notwithstand- EVIDENCE 361 ing the clerk was also sworn ; and testified that he had exam- ined the records whereof he was custodian ; and to the accuracy of the copy certified. Is the ruling correct ? A. Incorrect. It is unnecessary to produce the records of the board, so that the court may examine them to see if certain entries are there. It is competent to call a witness who has ex- amined them, and to show by him that the entries are not there. Hoffman v. Pack, 114 Mich. 1. Q. 35. It was sought to prove the identity of Maria Hermann who was insured in appellant company. The deposition of one Debold was taken at Baden, Germany. The witness said he was acquainted with Maria personally [and by the letters which her daughter and her daughter's husband addressed to him from Scranton he came to know that she died at Scranton. "She and her husband did write to me many times but have not more of their letters."] Plaintiff objected to that part of the answer in brackets, on the ground that it referred to writings which should them- selves be produced. Objection was sustained, and plaintiff ex- cepted. Comment on the action of the court in striking the matter within the brackets. A. The court erred. No question appears to have been made as to the authenticity of. the letters. The stringency of the rule requiring search for and proof of loss of documents, in order to pave the way for secondary evidence, is proportioned to the char- acter and value of the documents themselves; and these letters between relatives do not seem to have had any such obvious im- portance as to require care for their .preservation. Slight proof of loss ("but have not more of their letters") was sufficient to let in what the witness said about them. American Life. Ins. &c. Co. v. Eosenagle, 77 Pa. 507. Q. 36. Ejectment by plaintiff's lessors who claimed as heirs of A. G. Miller. It appeared that the father of A. G. Miller had devised the property in question to A. G. Miller for life, with remainder over as he should by deed or will appoint, and 362 LAW STUDENTS' REVIEW in default of appointment, then to the heirs of the body of A. G. Miller. A. G. Miller died without issue, and plaintiff's les- sors were concerned to prove that plaintiff had acquired the fee simple of the property before the death of A. G. Miller. This they proposed to do by giving evidence of his marriage settlement; but the instrument of settlement was in the posses- sion of defendant's attorney, who claimed a lien on it for his fees ; and therefore would not produce it. Then the plaintiff's lessors proposed to give secondary evidence ; and a short-hand writer who had taken the minutes at a former trial against a different defendant was called upon to read his notes as to the contents of the instrument in question. It turned out that the deed itself had not at such trial been accurately read — but that its contents were stated in court by counsel. Objection was thereupon made to reading the notes. Should the objection stand? A. It should stand. The court ruled notes of the statement of the contents of the deed by counsel on the former hearing to which defendant at bar was not a party were inadmissible. But in passing upon the matter it is said (Lord Abinger, C. B.) that there are no degrees in secondary evidence. If you can not produce the original, you may give parol evidence of its contents. If indeed while giving such evidence a party appears to have better secondary evidence in his power, which he does not produce, this may go to the jury — and they might presume that the evidence kept back would be adverse to the party with- holding it. But the law makes no distinction between one class of secondary evidence and another. ' Doe d. Gilbert v. Eoss, 7 M. & W. 102. See also Goodrich v. Weston, 102 Mass. 362, where a copy sworn to be correctly made from a letter-press copy is admis- sible, without producing the letter-press copy itself. Q. 37. Ejectment. Issue that defendant was the equitable owner of the premises ; and that the deed to plaintiff's devisor was not intended to convey the land — but was merely a mort- gage. It appeared that the land had been conveyed to defendant by one Weeks in 1879; and that defendant conveyed to plaintiff's devisor in 1880, the deed containing no condition or defeasance. Assuming that where a deed is given as security merely, that EVIDENCE 363 fact may be proved by oral evidence, aliunde the deed: Are declarations of plaintiff's devisor that he was going to assist defendant who was his brotiier in paying for the place to make him a home as long as he lived ; that defendant had bought the place for $1,500, and that plaintiff wanted to pay up a $900 mortgage to which the property was subject, and whenever de- fendant should pay the $900 he, the devisor, was to deed him back — these statements having been made before plaintiff's de- visor got his deed — admissible as declarations against interest? A. The declarations made by plaintiff's devisor before he got his deed as to what he intended, or as to his motive, are inadmis- sible. Hutchins v. Hutchins, 98 N. Y. 56. Q. 38. Deceased executed her last will in 1893. She gave it for safe keeping to the notary who drew it. When she died, it could not be found. The notary testified that he remembered having it, but could not remember what he had done with it. That testatrix called for it at his office, and he had loaned it to her ; that if she returned it, he would have had it in his safe at the time of her death. That he knew she did not return it the last time she got it, and that he did not have it. To rebut the presumption that testatrix had destroyed and revoked it, proof was offered that three days before her death, testatrix told her daughter that she had made no change in her will ; that it "should remain as she made it" ; that "Mr. H. (the notary) has the will." Is the proof competent ? A. Competent. These declarations tend to show up to a very- short time before testatrix's death, that she died in the belief that the will was still in existence, unrevoked. In re Steinke's Will, 95 Wis. 121. In re Valentine's Will, 93 Wis. 45. So on an issue as to whether a gift was invalid, as procured by undue influence; declarations of donor (deceased) from one to four months after making the alleged gift, as to his relations with the donee, are competent. This period is held sufficiently near in point of time so that the proof is of value in determining the mental condition of the decedent at the time in question. Lane v. Moore, 151 Mass. 87. 364 LAW STUDENTS' REVIEW Q. 39. Libellant, a longshoreman, fell through a hatchway of the steamer Saranac while lying at the port of Chicago. While engaged in the discharge of his duties, he stepped upon a hatch cover which tilted under his weight, and precipitated him into a hold at the bottom of the vessel, injuring him seri- ously. Assume the issue to be that of defective construction of the hatchway, and its coaming, as the proximate cause of the in- jury. Plaintiff sought to introduce evidence of the second mate that ten minutes after the accident, and while plaintiff was being assisted out of the hold, the mate of the Saranac said "tiese hatch covers never did fit anyway." Is the second mate's statement a part of the res gestae? A. No. Admissions of this character by an agent or employe, even if made, can not bind the owner of the vessel. Such decla- ration!?, whether designedly or thoughtlessly made, not being the natural utterances of declarant at the time of the accident, are not admissible. It is pointed out that the mate was not a by- stander. The Saranac, 132 Fed. 936, 942. Vicksburg &c. v. O'Brien, 119 U. S. 99. And so it is held that the declaration of an engineer of a loco- motive of a train, made between ten and thirty minutes after an accident occurred, as to the speed at which the train was run- ning when the accident happened, is not part of the res gestae. The engineer is not the agent of the company to tell the story; and the declaration comes too long after the accident. Accord- ingly, it is not competent evidence against the defendant railroad company, his employer. Vicksburg &c. v. O'Brien, 119 U. S. 99. But on a trial for sheep stealing, where the transaction con- sisted of a number of incidents extended over several days, and was not concluded until the sheep were branded, all acts and words accompanying the act charged to be a felony, and done or uttered during that time, were competent, as bearing upon the motive. * State v. Gabriel, 88 Mo. 631. While a declaration, to form a part of the res jestae, must be contemporaneous, it need not be exactly coincident therewith. 24 A. & E. Encyc. L. (2d ed.) 664 2 Ifigmore Evid., § 1078. EVIDENCE ' 365 O. 40. Plaintiff claimed title in ejectment as the only son and heir of one Eisenlord, deceased ; and this involved the ques- tion whether Eisenlord had ever been married to the mother of plaintiff. Evidence was offered that at a time long after an alleged marriage ceremony between Eisenlord and the mother took place, Eisenlord had said that he was married and had a wife, and that it was Margaret Lipe (the mother of plaintiff). The fact was undisputed that he and Margaret never lived together or cohabited as man and wife; and that Eisenlord never had anything to do with plaintiff. Was the evidence admissible to prove the marriage ? A. Admissible. While the evidence is not competent as part of the res gestae, or as characterizing of the acts of the parties (there being no cohabitation or recognition of the son as such) , still the case involves a question of pedigree. As to pedigree, hearsay evidence is admissible as a recognized exception to the general rule; and this exception is not confined to antecedent facts. It extends also to recent occurrences within the presence of living witnesses. Matters of pedigree consist of descent and relationship. Ac- cordingly evidence of declarations of particular facts such as births, marriages and deaths made by persons who from their situation are likely to know the facts are admissible when the declarants are dead. Eisenlord v. Clum, 126 N. Y. 552. Q. 41. Plaintiff, an unmarried woman about 24 years of age, fell into an excavation made by defendant, Detroit United Railway, in constructing its street railway tracks in Detroit. Her left ankle was thereby injured; and there was evidence that after the lapse of a year and nine months from the time of the injury, she still suffered from her injuries, and that the ankle was still impaired and weakened. Assume that her physician examined the ankle and applied pressure, and that he was asked by her counsel, "Did she (re- ferring to plaintiff) flinch?" and that no objection to the ques- tion as being leading is interposed ; is it admissible ? A. Not admissible. Flinching may be voluntary or involun- tary; but in either case it is in the nature of or has the effect of, 366 LAW STUDENTS' REVIEW a declaration, and when taken to indicate suffering, becomes, if proved through another, hearsay. And being thus a self-serv- ing declaration ("subjective" as distinguished from "objective" symptom), it is inadmissible. Norris v. Detroit &c, 185 Mich. 264. The rule, however, seems to be otherwise when a physician is called to treat the injured party — as distinguished from exam- ining the party, with reference to giving testimony. Heddle v. City &c, 112 Mich. 547. Q. 42. On quo warranto, to determine the title to a village office, the issue was : How many legal votes were cast for re- lator ; how many for respondent. Relator offered witnesses who did not live in the village at the time of the election, but who went there some weeks after- ward. They testified that they made systematic inquiries of residents, and at the various manufacturing establishments and boarding houses in the village, as to whether certain voters, said to have voted illegally, were known to reside in the village on election day. Over objection such witnesses were allowed to testify that they were not able to find that such persons re- sided in the village on the day of election. (a) Is this hearsay evidence? (b) Is it competent? A. (a) Yes. (b) No. The fact of non-residence is difficult to prove; and it is said that evidence by a resident of the village that he did not know of certain persons whose names appeared on the poll list as being residents of the village, may go to the jury on the question whether their votes were illegally cast. State v. Olin, 23 Wis. 309. But while it is not absolutely necessary that the witness shall be a resident, he must still show that at the time of the election he was, to some substantial extent, ac- quainted with the inhabitants of the district, or with some portion of them ; in that event he may testify that he knew "no such person" as a resident of the district. State v. Rosenthal, 123 Wis. 442, 447. Q. 43. Plaintiff, being -the son of Logan, deceased, sued the Mutual Life Insurance Company on a policy of insurance on the life of decedent. The defense was that the contract of in- EVIDENCE 367 surance never was consummated by decedent, and as bearing upon this, and as part of the res gestae, and in connection with the acceptance of the policy by decedent, plaintiff offered to show that ten days after the alleged delivery of the policy plaintiff had a conversation with his father regarding the pol- icy ; his father told him he had given his note for the premium, and said "I believe I will go to the bank and get the policy, and see if I can mortgage it to get the money to pay the note." Should the conversation be admitted as part of the res gestae? A. No. To be admissible as part of the res gestae a decla- ration must be contemporaneous with the transaction, and so limit, explain or characterize the fact as to be in a just sense a part of it and necessary to its complete understanding. State- ments made by the father ten days after the event are not neces- sary incidents of the fact in litigation. Mutual &c. v. Logan, 87 Fed. 637. Q. 44. As to dying declarations, in what cases are they ad- mitted ? A. Admissible only in cases of homicide, when the death, with the circumstances attendant on it, and the guilty agent in producing it, is the subject of inquiry. Accordingly, it is held on an indictment for abuse of female child (who died) , ,that the dying declaration of the child identifying the prisoner as the perpetrator, is not competent evidence. Johnson v. State, 50 Ala. 456. 2 Jones Evid., §§ 331-335. Q. 45. Burton G. Roberts was convicted of manslaughter. The victim of the homicide, one Carlton, in an affray, was cut in the belly with a knife ; languished from the wound for sev- enteen days, and then died therefrom. His dying declaration was received in evidence against Roberts. Carlton made the declaration the day after the affray. He had been told by his physician that if his intestines were cut, his chance of recovery would be slight ; but that if they were not cut, possibly he might recover. It was subsequently ascertained that they were cut; but Carlton did not know this when he made his declaration. * 368 LAW students' review As a fact it was found that Carlton believed his end was near, and his chance of life was very slight. The court, as to dying declarations, instructed the jury that they must be made under a sense of impending death, and with a belief that declar- ant's end was near at hand, although he might think there was a slight chance of life. Is the instruction correct? A. Error. If declarant had any expectation or hope of re- covery, however slight it may have been, and though death in fact ensued "within an hour" after the declaration, the declara- tion is inadmissible ; though if declarant believes he is in a dying state, the declaration is admissible, though he live for a consid- erable time after making it. These declarations are admitted on the ground that the solemnity of impending death is equivalent, in restraining one from falsehood, to the solemnity of an oath. Commonwealth v. Roberts, 108 Mass. 296. Q. 46. Action upon a life insurance policy of the Connecticut Mutual Life Insurance Company upon life of insured for ben- efit of his wife. A question arose about the age of the insured. In the appli- cation signed by both insured and beneficiary, the age was given as sixty-two at the next birthday. Insured died ; and in order to prove that his age was different from that stated in the application, the company offered in evidence an entry dated September 6, 1845, contained in the minute book of the lodge of Odd Fellows, of which lodge deceased was a member and at one time secretary. The minute in question was made by his predecessor in office. The prede- cessor was not called, nor was his absence accounted for. The court refused to admit the evidence. Was its ruling correct? A. Correct. The entries in the book can not be regarded as . admissions of insured respecting his age. He did not make them ; and they do not show that he stated his age. What was there entered was the declaration of a third party — mere hearsay, not an admission of insured. Nor is the entry admissible on the principle of necessity, as where the particular circumstances could be said to afford rea- sonable assurance that the person who made them knew the EVIDENCE 369 facts stated, communicated them faithfully, but could not be obtained to testify. Connecticut &c. v. Schwenk, 94 U. S. 593. Q. 47. Plaintiff offered in evidence an answer of original defendant (who had died; his executrix was substituted) rely- ing on it as an admission. It appeared that an amended answer had been subsequently filed ; and the original answer remained unreplied to. Defendant objected on the ground that the answer offered was neither verified nor signed by the original defendant, and that it was drawn by said defendant's attorney without consul- tation with, or information from defendant, but upon informa- tion derived from others ; and offered the attorney as a witness to prove this. (a) May the answer be received in evidence? (b) Should the attorney be allowed to testtify? (Assuming that no objection on the ground of privilege is made.) A. Yes as to both (a) and (b). Notwithstanding the fact that the original answer is superseded, it constitutes or may con- stitute an admission of the defendant. But the collateral facts (as to consultation, etc.) may be shown to guide the jury in determining the weight to be assigned to the admission. Schultz v. Culbertson, 125 Wis. 169. The ruling is not unquestioned (Schultz v. Culbertson, 125 Wis. 171) ; but appears to be sustainable. Q. 48. When are declarations against interest made by third parties admitted in evidence, under the exception to the hearsay rule? A. The death of the declarant is universally conceded to be sufficient. Such statements are also admissible if the declarant is absent from the jurisdiction, is not to be found after diligent search, or has become and is insane. 2 Wigmore Ev., § 1456. The declaration must be against proprietary or pecuniary interest; that is, the interest disserved by the fact must be one so palpable and positive that it would naturally be present in the declarant's mind at the time of the utterance. 2 Jones Ev., § 327. 24— L. S. Eev. 370 LAW STUDENTS REVIEW Q. 49. The fact sought to be proved as to ownership of cer- tain land was that a tax execution had existed and had been levied. The sheriff to whom the execution was issuable was dead at the time of trial. The evidence relied on to establish the existence and levy of the execution was an entry made by the deceased sheriff in a private memorandum book kept by him, which was properly identified ; and in this book was a notation that the land in question had been sold to satisfy a tax fi. fa. issued by the tax collector ; that it was bid off, and the money applied to the tax fi. fa. Is the memorandum admissible in an action between third parties ? A. This depends on whether the declaration was against the interest of the sheriff. On inspection it seems that while that portion of the memorandum noting the sale of the land and charging himself with the hid is against his interest — as if he failed to account for the money, or sold the wrong land, he would be liable ; still he also notes that he applied the money to the pay- ment of the tax; and this portion of the declaration is self- serving. Weighing the Statements it is found that the balance preponderates against his interest, as it is clear that his appro- priating the money in manner required by law is far less im- portant to him than would be the liability if he sold the wrong property. The rule is that where the statement as a whole is against interest and preponderates, the declaration is admissible ; while if the self-serving features are equal to or preponderate over those against interest of declarant, then the declaration is not admissible. Accordingly, above declaration would be admissible. Such evidence, while clearly hearsay, is admitted as one of the exceptions to the rule against hearsay on the ground of the extreme improbability of a person's making a statement against his own interest. To this should be added the require- ment that declarant is dead or insane or absent (see preceding question) , that the statement be not made with a view to pend- ing litigation; and that declarant knows or should know the facts. Massee-Felton &c. v. Sirmans, 122 Ga. 297. Note, that when the foregoing conditions are shown to exist, the declaration may be that of a stranger to the suit, and may still be admissible. "Men «lo not falsely r^wiit debts against EVIDENCE 371 themselves ; and it is this presumption which induces the law to admit such a declaration." Bartlett v. Patton, 33 W. Va. 71, 82. 2 Wigmore Evid., § 1464. Q. 50. Suppose on a trial for crime a witness testified that defendant, accused, was present at a preliminary examination before the examining magistrate. . It appears that at such ex- amination, evidence was given prejudicial to accused ; and wit- ness is asked, over objection, what defendant said or did. Objection overruled. Witness answers, "The defendant was present at the time, and said nothing ; was silent." Is ruling correct? A. Incorrect. Presumably the evidence was offered to show an admission on the part of defendant, because he did not con- tradict what was testified to. But no such inference is per- missible. A party may not be prejudiced by statements of this character, made in his. presence, and not contradicted, where he may not interrupt a witness to contradict; and where his failure to testify in contradiction is not to be taken against him. Broyles v. State, 47 Ind. 251. Q. 51. Suppose a prisoner (one Mitchell) in jail says to a fellow-prisoner, "If you will not tell on me I will tell you something." The other replies that he would not tell. Then Mitchell says, "I want to know what to do." The other man says if he knew the circumstances he could tell him what to do. Mitchell thereupon confesses to the murder for which he is indicted. May the state introduce the evidence of the fellow-prisoner ? A. It may. The fact that his fellow proved a traitor to Mitch- ell makes the confession none the less voluntary ; and, so far from being under any influence which would induce him to falsify (as one might do in case of promises or threats by an officer), he had the strongest motive to tell the truth. State v. Mitchell, 61 N. Car. 447. Q. 52. One Meyer was indicted for the larceny of some whiffle-trees. 372 LAW STUDENTS REVIEW (a) While under arrest in the lock-up the police officer who had him in charge remarked to him, "he had better tell the truth." He thereupon confessed. Next day he was arraigned. (b) The owner of the property was allowed to testify that when, on arraignment, Meyers was asked whether he was "guilty or not guilty," he said that he didn't know anything about the whiffle-trees ; and in reply to the officer's questions said he didn't go into the barn — he stayed outside and waited for another person to bring out the stuff and went with him and "hid them up." Is (a) admissible? Is (b) admissible? A. ( a) Not admissible. (b) Admissible. While it may fairly be assumed that, to some extent at least, Meyers was induced to answer as he did by reason of the officer's knowledge of his confession, yet Meyers was then in open court ; it had been some hours since the remark of the officer about telling the truth, and he had had abundant opportunity for reflection and consideration. Confessions should not be excluded unless they are made under circumstances in- ducing a reasonable presumption that they are made by reason of promises or threats from one in authority. Commonwealth v. Myers, 160 Mass. 530. Q. 53. Plaintiff sued defendant on a contract whereby he claimed defendant had agreed, in consideration of a certain order on one Goodwin, to discontinue a suit then pending on part of defendant against plaintiff. To prove that the suit had not been discontinued, plaintiff offered in evidence oral declara- tions and admissions of defendant connected with a certain paper writing purporting to be an execution in the action of defendant against the plaintiff. Objection was made that a certified copy of the judgment should be offered; but the court instructed that the admissions of defendant, though not the most satisfactory, might yet be considered by them. Is this instruction correct? A. Correct. While a record can not be proved by parol by the witness on the stand — yet the admissions of a party stand on different grounds, and are not open to the same objection which applies to parol evidence from other sources. They are EVIDENCE 373 in all cases admissible against the party, though they may in- volve what must necessarily be contained in some writing; e. g., the statement of a party to the litigation that certain land had been conveyed might be admitted against him, though the con- veyance must necessarily be embodied in a written instrument. The matter stands thus: Secondary evidence of a material writing may not be given without accounting for the absence of the writing; but if such secondary evidence consists of the ad- mission of the party to the litigation, then the law makes it admissible, though it may not be as satisfactory as the writing itself. Smith v. Palmer, 6 Cush. 513. 2 Jones Evid., § 215. Q. 54. Action on the case of two plaintiffs against three attorneys for negligence in allowing the time for perfecting an appeal to go by, so that the cause could not be reviewed in the Supreme Court. Two of the attorneys defended on the ground that plaintiffs relied on the third attorney, and not on them, to prosecute the appeal ; that they were only counsel in the case. In support of their defense, they offered an affidavit of one of the plaintiffs, filed in the case, to induce the lower court to extend their time for appeal ; whereby it appeared that plaintiffs were relying on the third attorney, and not on the two who acted as counsel. Is the affidavit competent? A. Competent. It is an admission of a party. And even if in the affidavit there were other statements bearing against defendants, they are not bound by such adverse statements. They may avail themselves of the admission; and are still at liberty to controvert the other portions. The plaintiff who makes the affidavit is not their witness. Cornelissen v. Ort, 132 Mich. 294. Liesemer v. Burg, 106 Mich. 124. Q. 55. Pier recovered a judgment against Lyon and issued an execution thereon. The sheriff levied on three rafts of lumber in the Allegheny river. One Duff claimed that the lumber belonged to him. Lyon cut the lumber from his own land and sawed it; but he testified (apparently without objec- tion) that the lumber became Duff's as soon as it was sawed, in payment to Duff for advances. 374 LAW STUDENTS REVIEW It was sought to prove by declarations of Lyon, who accom- panied the lumber to Pittsburgh, and had charge of it there, whose lumber it was. Discuss the admissibility of this evidence. A. Its admissibility depends upon whether Lyon had actual possession, or only custody, of the lumber; and this is a question for the jury. If in actual possession, his declaration though hearsay, may be admitted, as part of the res gestae. Bank v. Levy, 138 N. Car. 274. If, however, he has merely the custody or care, his statements are inadmissible. For example, the statements as to ownership made by a mere servant left in charge of a house and furniture during the absence of his master, could not be admitted against the master. Pier v. Duff, 63 Pa. St. 59. Q. 56. In an action for slander defendant in the first para- graph of his answer denied the speaking or publishing of the words alleged ; in his second paragraph he admitted the publi- cation but claimed he was justified. On the hearing he was required to elect as between these defenses ; and he elected to stand on the denial of publication. Thereupon over his objection the plaintiff was allowed to read to the jury the second paragraph as an admission that the words had been spoken. Is this sustainable? A. Error. As the defense had been denied the right to rely on justification, and this defense was cut off, the plaintiff should not be allowed to read that portion of the answer to the jury as evidence of his cause of action, while at the same time the defense is denied the right by the then posture of the case to show that the words spoken were true. Lane v. Bryant, 100 Ky. 138. O. 57. Plaintiff Sturtevant built an engine and a fan, and sent them to defendant, Lester Wallack, who was constructing a theatre in New York City. Defendant claimed he never or- dered the engine or the fan. Is the fact that they were sent to the defendant marked with his address, and that bills and a let- ter demanding payment, and a draft, were also sent, to which defendant made no reply, evidence tending to show that de- fendant ordered the articles ? EVIDENCE 375 A. Yes. It should go to the jury. While not every charge, however expressly made, calls for an answer, yet when a charge is of such a kind that, according to common experience, a man would naturally repudiate it, if unfounded, the fact that it was made and not repudiated may be left to the jury. Sturtevant v. Wallack, 141 Mass. 119. Morris v. Norton, 75 Fed. 912. Q. 58. A father brought an action for the seduction of his daughter. An effort was made by defendant to compromise the case. (a) Is this fact admissible in evidence. (b) Is what defendant said in a negotiation for compromis- ing the case admissible? A. (a) Not admissible. A party is entitled to buy his peace if he can, and is not to be prejudiced by his effort to do so. (b) If, however, during his negotiations, either party makes an admission of a fact material to the issue, such admission may be put in evidence, the same as if made elsewhere, and under different circumstances. Beaudette v. Gagne, 87 Maine 534. Q. 59. Suppose that the admissions are so interwoven with offers of compromise that, in relating what was said during the negotiations, they can not be detached ; do you omit or exclude the conversation ? A. Admit it; but instruct the jury what portions they are to consider, and what portions they are to leave out of considera- tion. Beaudette v. Gagne, 87 Maine 534. O. 60. Defendant was indicted and convicted of knowingly having in his possession certain gambling paraphernalia used in the game called "policy." Among the proofs admitted against him were certain "policy slips," so called, found in his posses- sion. These were obtained by officers who "raided" his "place" ; and objection was interposed to their introduction in evidence, because they were illegally taken from him. Assuming that they were so taken, are they competent? A. Competent. When papers are offered in evidence the court can take no notice as to how they were obtained, whether 376 LAW students' review lawfully or unlawfully; nor will it form a collateral issue to determine that question. If the evidence is pertinent to the issue it may be received. Adams v. New York, 192 U. S. 585. And this is true even though it be incriminating evidence, unlawfully obtained from the accused. May v. United States, 199 Fed. 53. Q. 6i. The matter of the equitable title to certain notes of hand was in issue. The notes were not indorsed ; but the claim was that the evidence of a former witness since deceased, tended to show the true state of the title to the notes. On the trial counsel for plaintiff "took full notes of the evidence of- fered," including that of the deceased witness, and the testi- mony of counsel was that by refreshing his recollection from such notes he could and did remember the substance of the testimony of the deceased witness. Over the objection of defendant is the evidence of counsel competent ? A. Competent. As the former trial was between the same parties, and in this instance, as counsel declared that on refresh- ing his recollection he could reproduce the substance of what the deceased witness had said, he was qualified to testify, and the matter of his evidence was competent. Carpenter v. Tucker, 98 N. Car. 316. 1 Elliott Evid., §§ 513, 514. Q. 62. On an action to recover money advanced to and paid out by plaintiff's testator for account of defendant it was al- leged that testator was the banker and business agent for de- fendant, that from time to time defendant deposited moneys with testator, and testator, from defendant's funds in his hands, and when these were insufficient, from his own funds, paid her various sums in cash, and also paid taxes and tradesmen's bills for which she was liable. That at the death of plaintiff's testa- tor, there was a balance of $3,744 due decedent from the defen- dant. On the hearing, the ledger kept by testator was offered in evidence to establish the items in the account; this on the ground that notice had been given to plaintiff to produce the EVIDENCE 377 books of testator ; and that upon such notice, plaintiff had pro- duced certain books among which was the ledger in question. That this was inspected by defendant's counsel, and was thereby made evidence for the plaintiff. It was further claimed that the ledger was competent under the rule making ceitain books in the parties' keeping compe- tent evidence. Is either claim sustainable? A. The latter claim is clearly not sustainable. While books, of account of the party offering them ("shop books") may after certain preliminary facts are shown, be availed of in evidence; yet in respect to cash transactions the rule does not apply. These are excluded because they are usually evidenced by notes or vouchers; and are especially easy to fabricate, with little chance of detection. As to the ledger's being made competent evidence because the- opposite party called for it, the English rule has not been uniform. The courts of Pennsylvania and New Hampshire hold that production and inspection alone do not make the book or paper competent evidence. In general the authorities on the question are divided. The New York rule is against the admissi- bility of papers otherwise incompetent, simply by reason of their being called for and inspected by an adversary. It is said that the rule tends toward the suppression rather than toward the ascertainment of the truth. Smith v. Eentz, 131 N. Y. 169 and cases cited. Q. 63. Explain the grounds on which the "shop books" or "account books" of a party are admissible ; and its limitation. A. By reason of the party's disqualification to certify at the common law; and the conditions of mercantile life in early days,, which would ordinarily leave the party without evidence other than his own statements in the books. The party must have no clerk helping him. If he had one, the clerk if living should be called; or if deceased, his book entry could be used. 2 Wigmore Ev., §§ 1537, 1538. Q. 64. (a) In matters concerning the value of land, or of professional service, expert evidence, though all tending one way, is not conclusive. Why ? (b) But as to whether a certain treatment of the eye, for the 3/8 LAW students' review disease known as glaucoma, is or is not skillful, the evidence of experts is. controlling. Why ? A. (a) Because courts or juries, as men of affairs, may draw their own inferences from the facts, and accept or reject the statements of experts. The mode of reaching conclusions from the facts when stated is not so different from the infer- ences of common knowledge, that expert testimony can be any- thing more than a mere guide. (b) But when a case concerns the highly specialized art of treating an eye for glaucoma, a mysterious disease whose causes and cure are little understood, and the issue is lack of skill in such treatment, a layman can have no knowledge at all; and courts and juries must depend on expert knowledge. Ewing v. Goode, 78 Fed. 442, 444. Q. 65. On the trial of a defendant charged with robbery, a witness testified that she recognized the defendant and identi- fied him as the robber by his voice. The testimony is objected to on the grounds that it was simply an expression of opinion. Should the objection be sustained? A. No. A witness may learn facts through the exercise of any of his perceptive faculties, and having so learned them, may testify to them. Ogden v. People, 134 111. 599. Q. 66. Insured decedent had concealed facts and had made untrue statements in his application for insurance, concerning embezzlements committed by him. At the trial to recover under the policy, an expert insurance agent was permitted to testify (a) Whether such statements and concealments were ma- terial to the risk ; but was not permitted to testify (b) Whether by the usage of all insurance companies, such facts were regarded as material. Comment on these rulings. A. (a) By the weight of authority in the United States the evidence is not admissible. This involves a consideration of every day facts, and of the motives of men living in the same com- munity with the jury; and the jury must be left to answer this question without the expression of the opinion of an expert. (b) Admissible, according to the better authorities. This calls for a fact which reasonably careful and intelligent men EVIDENCE 379 would take into account, as affecting the chance of the loss insured against. Penn &c. v. Mechanic's &c, 72 Fed. 413, 428, 429. Q. 67. Suppose a witness, the genuineness of whose signa- ture to a will is in question, is confronted by 18 signatures, pasted on a sheet of pasteboard ; and he swears he believes they are all in his handwriting. Thereupon an expert in handwrit- ing is called, who, relying solely upon the knowledge gained from an inspection and study of the 18 signatures, is asked whether he believes the signature in question is genuine ; but the nisi prius court rejects the evidence. Is this ruling of the court correct? A. As to this, English judges have heen divided in opinion. Doe dem. Mudd v. Suckermore, 5 Ad. & El. 703. But American courts have generally held such evidence admissible. Moody v. Rowell, 17 Pick. 490. The objection to such evidence is that it raises collateral issues as to the genuineness of the signatures submitted for comparison and study. Its support is found in the fact that such a study is much more valuable than merely having seen a man write, or received letters from him, years before; the latter being recognized as sufficient to qualify any witness. O. 68. Assume that a witness is not an expert and does not know defendant's handwriting; but is shown the handwriting in question in the case; and other signatures admittedly genu- ine. May he express an opinion as to the handwriting in question ? A. He may not. Only experts accustomed to and skilled in the matter of handwriting may on instituting comparison be- tween admittedly genuine writing, and the writing in dispute, express an opinion. Griffin v. State, 90 Ala. 596. 3 Jones Evid. § 549. Q. 69. How about a court or jury; may they make such comparison ? A. Yes, if the genuine writing is in evidence for some other purpose in the case. Moore v. United States, 91 U. S. 270. 380 LAW STUDENTS' REVIEW Q. 70. The manufacturer of walnut oil stain was sued for personal injuries occasioned by the sudden ignition of the gases contained in the stain, whereby plaintiff was injured. Plaintiff's husband was applying the stain to a floor ; a match was lighted in the room ; an explosion was caused ; and plain- tiff was thereby burned. Plaintiff's expert testified that a can of the stain could be lighted in the presence of the jury, and could be easily extin- guished. The defendant offered to make the experiment. Evi- dence excluded. Why? A. The conditions under which the experiment was proposed to be made were so manifestly different from the conditions sur- rounding the accident, that the experiment would not unless supplemented by collateral inquiries have assisted the jury. Admitting evidence in this character is largely within the dis- cretion of the presiding judge; and the exclusion of above experi- ment, not being clearly an abuse of that discretion, will be sus- tained. Thornhill v. Carpenter Morton &c, 220 Mass. 593. Q. 71. Plaintiff operated a freight and passenger elevator in defendant's storehouse. By reason of defective condition the elevator fell, and plaintiff was seriously injured. An X-ray photograph was identified by a physician who had taken it, and who testified that it accurately represented the condition of plaintiff's leg at the point of fracture, and that he, witness, was enabled to see the broken and overlapping bones with his own eyes, exactly as if stripped of the skin and tissues. He also testified that he was familiar with the process of taking X-ray photographs. Is the photograph admissible ? A. The court, while commenting (1897) on the X-ray proc- ess as a new one, holds that experiments have demonstrated its power to reveal to the natural eye the entire structure of the human body. The representation is likened to maps or diagrams ; and the picture was held competent to go to the jury. Bruce v. Beall, 99 Tenn. 303. This is in analogy to the general rule of identifying and admitting photographs for the purpose of proving the appear- EVIDENCE 381 ance of a physical object which can not be produced in court or inspected by the jury. Cunningham v. Fair Haven &c. Co., 72 Conn. 244. O. J2. Plaintiff, a glass company, was claiming under its contract with defendant, Franzen, its employe, assignments from Franzen of certain inventions which it was alleged he had made while in its employ. Plaintiff called Franzen to the witness stand. He testified among other things that he did not make the inventions while in the employ of plaintiff. Is plaintiff bound by this evidence ? A. Not bound. Plaintiff may contradict Franzen. While plaintiff has tendered him as a witness, and may not contend that he is (entirely) unworthy of credit, yet plaintiff may show that he was mistaken ; and may show by other evidence what the facts are. Mississippi &c. v. Franzen, 143 Fed. 501. Dravo v. Fabel, 132 U. S. 487, 490. And thus, where a life insurance company introduced in evi- dence proofs of death furnished to it by plaintiff, which proofs indicated that insured had committed suicide, still plaintiff is not estopped from showing that the cause of death in such proofs assigned, was not the true cause of death. Such proofs are proper for the jury to consider; but they are not conclusive. Home &c. v. Sargent, 142 U. S. 691. Q. J2>- ^ n th e case just noted, Home Benefit Association v. Sargent, the policy of life insurance contained a clause provid- ing that the death of the insured "by his own hand or act, whether voluntary or involuntary, sane or insane, at the time, was a risk not assumed by the insurer." The defense was that insured died from the immediate effect of a shot from a pistol, fired by his own hand. Must the plaintiff prove how insured came to his death, so as to exclude the method alleged in the defense ? Or must de- fendant show that the foregoing was the means whereby in- jured came to his death? A. The burden is on the defendant to establish its defense by a preponderance of the evidence. Home &c. v. Sargent, 142 U. S. 691. 382 LAW students' review Q. 74. On a trial of an assumpsit case, plaintiff's counsel, after he had rested, asked the court for an order excluding defendant's witnesses. The court excluded the defendant as well as his witnesses. Was this error? A. No error to exclude the witnesses, but there is error in. excluding a party to the litigation. To exclude witnesses is a matter within the sound discretion of the court. A party, how- ever, has a right to be present at the trial of his own case. His presence may be of importance in aiding counsel. Mcintosh v. Mcintosh, 79 Mich. 198. Q. 75. A witness, Free, entertained peculiar religious beliefs. He was asked on cross-examination whether the spirit of Daniel Webster was present aiding him in the trial, and whether he had been assisted by departed spirits in obtaining information as to the defense. Question excluded. Is this error ? A. No; nor would it have been error to allow the question to be put. His testimony might have been of such a character that light would have been thrown upon it by a disclosure of his spiritualistic faith; such questions might test his credibility. But it is customary in modern practice not to permit inquiry into a man's peculiarity of religious belief. A witness other- wise competent who believes in the existence of God, and that divine punishment either in this life or in the life to come will be the consequence of perjury is competent; and the court will not ordinarily inquire what religious faith he professes. The range of cross-examination in such matters is discretionary with the presiding judge. Free v. Buckingham, 59 N. H. 219. Q. j6. Suppose a witness has testified at a previous trial of the same cause. He is out of the state, and though requested had refused to attend the second trial. Defendant offered to make proof of what the witness had testified to at the previous trial. Is this sufficient to let in the secondary evidence ? A. No. If it had been shown that the witness had left the state, and upon diligent inquiry his whereabouts could not be found, then a ground based upon practical necessity would have EVIDENCE 383 been laid; but no such necessity exists where for all that appears his evidence might have been taken by a commission or deposi- tion. New York &c. v. Haring, 47 N. J. L. 137. The practice seems to vary in different states; see Berney v. Mitchell, 5 Vroom 337 ; but the above rule seems to be founded in reason. Q. 77. Suppose in the preceding question the witness had died; and counsel who had been present when the deposition was taken proceeded to testify to the substance of the deposi- tion but not to the words. Assume also that the transcript of the previous deposition had accidentally been destroyed by fire. Is it sufficient if the counsel give substance ? A. Sufficient. The precise language is not necessary. Other- wise in most instances this class of secondary evidence would be excluded, and insofar the ends of justice would be defeated. Where, for instance, a stenographer has not been employed, it can rarely happen that anyone can testify to more than the substance of the evidence of a deceased witness. Euch v. Rock Island, 97 U. S. 693. Q. 78. An arbitrator heard a claim. It was sought to prove what plaintiff, since deceased, had testified before the arbitrator concerning this claim, and for this purpose the arbitrator him- self was offered as a witness by plaintiff's administrator. Assume that defendant was not present when the testimony was taken before the arbitrator; that it was not reduced to writing; but that defendant had had an opportunity to be present. The lower court excluded this proof. Is this ruling correct? A. Incorrect. It is well settled that the testimony of a wit- ness since deceased — or out of the jurisdiction of the court, or who had become insane, or incompetent by reason of the decease of the opposite party since the former trial — may be repro- duced on a subsequent trial between the same parties in relation to the same subject matter; and this is true of proceedings be- fore an arbitrator as well as of proceedings in court. Walbridge v. Knipper, Admr., 96 Pa. 48. Note : But if there be new parties in the same suit not privy 384 LAW STUDENTS' REVIEW with any in the first suit, and such parties had no opportunity to cross-examine the deceased witness, such evidence is not admissible. Orr v. Hadley, 36 N. H. 575. Q. 79. On a hearing, the general reputation of. a witness was shown to be bad. His impeachment was general; and he was discredited. Comment on this showing. A. Impeachment of general reputation, in other respects than as to veracity (witness's "reputation for truth and veracity, among his neighbors and those with whom he associates") is not sufficient to discredit him; and impeaching evidence should be directed to reputation thus restricted. Sargent v. Wilson, 59 N. H. 396. Q. 80. Shore was indicted with one Frye for the same of- fense. Frye was called as a witness for the prosecution, and made no objection to testifying. Shore's counsel requested the judge to inform the witness that he was not bound to incrim- inate himself. Should the judge be required to give the witness this information thus asked for? A. No. The privilege of declining to answer questions pro- pounded to a witness, on the ground that the answers will have a tendency to incriminate him, is the privilege of the witness, and not of the party against whom he is called to testify; and such party's objection will not be entertained. Commonwealth v. Shaw, 4 Cush. 594. Q. 81. Under what circumstances is a witness privileged to refuse to answer questions asked him when he is on the witness stand ? A. When it would expose him to (1) a criminal prosecution, (2) a forfeiture, or (3) the payment of a penalty. 3 Jones Ev., § 895. Q. 82. In the suit of A v. B, A called B's attorney as a witness; but the attorney rightfully excused himself from testifying on the ground that his knowledge of the facts had been solely acquired through the relation of attorney and client between himself and B. Thereupon A dismissed bis suit with- EVIDENCE 385 out prejudice. After the death of A and B, but before the statute of limitations had intervened, A's heirs sued B's heirs on the original cause of action. A's heirs called the same at- torney to testify, who knew only the facts he knew at the first trial, but was willing to testify at the second trial. B's heirs, who were represented by another attorney, objected to their father's attorney testifying. How should the court rule on the subject? A. Exclude B's testimony. Exclusion of privileged com- munications exists even after the death of the client. 1 Greenleaf Ev., § 243. The exclusion is not made for the benefit of the attorney, and therefore he can not waive it. Q. 83. Defendant was convicted of the crime of murder in the first degree. One Macomber was called as a witness by the state, and was permitted to testify to conversations which the defendant had had with Knight, a lawyer in Newark, and Davison, a lawyer in New York. It appeared that Macomber did not know of the crime, but simply took the defendant, who was his friend, to see a lawyer, because defendant was alarmed at the newspaper comment and charges. Under these circumstances was defendant's communication with his lawyers privileged ? A. The privilege is gone. While as between counsel and client, the communications would be protected from disclosure— 1 yet if heard by another, in whose presence they are made, th< confidential character is lost. The reason is that a communica.. tion intended to be confidential should not be made in the hear, ing of a third person; unless such person stands in a peculiar relation of confidence ; and this does not appear to have been th« case with Macomber. People v. Buchanan, 145 N. Y. 1, 26. Q. 84. Article 12 of the Declaration of Rights declares that no subject shall be compelled to furnish evidence against him- self. • Assume that a statute has the usual provision allowing a 25— L. S. Eev. 386 LAW STUDENTS' REVIEW defendant charged with a crime to testify ; but providing fur- ther that his refusal shall not create any presumption against him. Comment on this instruction to a jury : "that nothing is to be presumed against the defendant for not testifying — but that his failure to produce evidence which it is in his power to pro- duce, to meet the evidence of the government, is a proper mat- ter for the jury to consider." A. Erroneous. The jury should have been told that his last remark did not apply to defendant's failure to testify himself — but applied merely to his failure to produce other witnesses. The instruction is not sufficiently guarded. Commonwealth v. Harlow, 110 Mass. 411. Q. 85. In an action of trespass for mesne profits plaintiff showed that he had recovered judgment, and possession of the premises in question, in an ejectment suit; and plaintiff then offered to prove by the testimony of Harper and Dorsen, at- torneys : (1) That defendant Reinicker had retained and paid them to conduct his defense in the ejectment suit. (2) This question was also propounded to them: "Were you retained at any time as attorney to conduct the ejectment suit on-the part of defendant, for the benefit of said Reinicker as landlord of the premises? Are these proofs admissible? A. (1) Admissible. It is competent to show by the attorney the existence of the fact that he was the attorney for the de- fendant. So much is not privileged. (2) But any facts which are communicated by the client to counsel (not in the presence of third persons) is privileged; and "(2)"" involved the disclosure of professional confidence. It is therefore inadmissible. Query: If the question had stopped at the inquiry whether witnesses were employed by Reinicker as counsel to conduct the ejectment suit, might the privilege then have been invoked? It seems not ; for it is merely preliminary. But in asking for a disclosure of the title to seek to introduce a claim made by Reinicker to his counsel for the purpose of conducting the defense of the suit, clearly calls for disclosure of professional confidence. Chirac v. Reinicker, 11 Wheat. 280. EVIDENCE 387 Q. 86. Foster was indicted and tried for the larceny of a horse. He had an accomplice, McCoy, whom the state put upon the witness stand, and from whom evidence was elicited tending to show that Foster was guilty ; and also showing Mc- Coy's own guilt in receiving the horse in Detroit, and taking him to Toledo, where the witness was arrested with the stolen property. Upon cross-examination he admitted that he had made an affidavit that he believed he had a good defense; and he was then asked what that defense was. In this situation is the witness at liberty to refuse to answer on the ground that the answer might incriminate him ? A. No. As he has already incriminated himself, the privi- lege is rendered valueless ; and such a privilege as would allow a witness to answer a principal incriminating question and to re- fuse to answer as to its incidents, while it would not help the wit- ness, must inevitably injure the party who is thus deprived of the benefit of cross-examination. The witness is not allowed any arbitrary use of his privilege, whereby he may stop at a partial statement of the facts, to the prejudice of either party. Foster v. People, 18 Mich. 266. Q. 87. State what items of evidence are excluded on the ground of public policy— and the reason. A. Communications between husband and wife; attorney and client; state secrets; proceedings of grand juries; that which is indecent or offensive to public morals or unnecessarily injuri- ous to the feelings and interests of third persons. The reason is that greater mischief would probably result from requiring or admitting such evidence than from wholly excluding it. 1 Greenl. Ev., §§ 236-254. Q. 88. Plaintiff, as a stockholder, brought an action against his corporation and the directors thereof, and other persons, charging a conspiracy to defraud the corporation. Among other issues was a question "whether certain samples of ore were fair samples, and the assays thereof fair assays." Sundry witnesses were asked the question in this form. Why is it objectionable? 388 LAW STUDENTS' REVIEW A. Because it substitutes the conclusions or opinion of the witness for that of the court or jury called to determine the case. It is not proper to ask for the opinion or conclusion of a witness on an issue joined in the case. Fox v. Hale &c. (Cal. 1898), 53 Pac. 32, 40. Q. 89. Comment on the following as to whether it is leading or not: "State what you know, if anything, about your father ever recognizing Betsy, that afterward married Davis and afterward Hamilton, as his child." A. A leading question is one which suggests the answer desired or which embodying a material fact admits of a con- clusive answer by simply "yes" or "no." Applying this test, "yes" or "no" will not fit; and therefore it is not on that account leading; and all that is left to deter- mine, therefore, is whether the question suggests the answer desired. But there is nothing here suggesting what the answer desired or expected may be. All there is is a mention of the subject to which the witness is desired to direct his answer; and this is not "leading" in the sense of being obnoxious to objection. DeHaven v. DeHaven, 77 Ind. 236. Q. 90. Is the following a leading question ? "How did you address the defendant in respect to his being one of the persons concerned?" (The trial was with reference to a conspiracy wherewith the defendant stood charged.) It had been immediately preceded by the question whether or not witness in substance or effect addressed the defendant as one of those concerned in the transaction. A. While these questions under the "yes" or "no" test are not objectionable — yet they amount to asking the witness if he had addressed the defendant as one of the conspirators. In this aspect it plainly suggests to the witness the answer which the questioner wishes to get from him. It is therefore objectionable. People v. Mather, 4 Wend. 229, 247, 8. Q. 91. A witness friendly to the defendant in a homicide case was called by the state and asked if he had not shortly EVIDENCE 389 before stated to counsel that the defendant's eyes had a twitch- ing or rolling motion at the time referred to. The question, of course, is leading. May it be allowed? A. Yes. This on the principle that where the record dis- closes that a witness called by a party is not a willing witness leading questions may in the discretion of the court be pro- pounded to him, even on his direct examination by the party calling him. State v. Wright, 112 Iowa 436. So of ignorant witnesses. Q. 92. Plaintiff brought suit against the New York Herald for libel upon his character as an attorney. The libels consisted of what purported to be reports of proceedings before Recorder Scott. The defense was that they were correct reports of public legal proceedings. Plaintiff called the recorder, and after a preliminary examination as to his recollection of the facts, put into his hands a copy of the supposed libelous report of the proceedings before him, and asked the question "wherein as you now remember is that report incorrect ?" It was objected that such a question called for the testimony of the witness as to facts, after having refreshed his memory, by looking at memoranda not made at the time either by him- self or in his presence; and it was insisted that a witness could refresh his recollection only by examining memoranda either made by himself or in his presence. Discuss the objection. A. Although the rule is that a witness in general can testify only to such facts as are within his own knowledge and recol- lection, yet he is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book ; and it is not necessary that such writing should have been made by the witness himself, provided after inspecting it he can state the facts from his own recollection. Huff v. Bennett, 6 N. Y. 337. Q. 93. Suppose the writing in question is neither recognized by the witness as one which he remembers to have seen before, nor awakens his recollection of anything therein contained; 390 LAW STUDENTS REVIEW but that he knows the writing to be genuine, and on that ground he is ready to swear positively to a fact, e. g., the particular debts assumed by each partner in an adjustment, as shown by such writing, then may he be allowed to testify to such fact ? A. While there has been some difference of opinion about this, yet the established doctrine seems to be that his evidence will be received. The same principle applies where persons are' called to prove the execution of deeds, or to speak of dates, amounts and other details which a man can not carry in his mind but of which he has made memoranda. Martin v. Good, 14 Md. 398, 409, 410. Thus where an examining magistrate had taken an account of material facts in evidence before him on a charge against the accused, but stated that he could not on the strength of his recollection tell what the testimony before him had been, yet on his testimony that the writing contained a correct and true statement of such evidence, the writing was admitted. State v. Jordan, 110 N. Car. 491. Q. 94. Otis Savage and Frank Klein were jointly indicted for the larceny of $14,000 current gold and silver coin, the" property of the Pacific Express Company. A witness had testified on his direct examination that he had found on the premises of one Samuel Klein a sack containing $4,800 in gold. On cross-examination he was asked whether he had not been there before to search for this money, and whether on that occasion Sam Klein had not stood over witness and urged him to search under the walk. Objection as not proper cross-exami- nation, on the ground that this had not been gone into on the direct examination. Is the objection sustainable? A. On above record, objection should be sustained. The ques- tion does not relate to, nor is it connected with the testimony on the direct examination. If it be propounded for the purpose of testing the accuracy, veracity, or credibility of the witness, coun- sel must so state ; and the court would then consider its relevancy and materiality for that purpose. State v. Savage, 36 Ore. 191, 209. EVIDENCE 39I Q. 95, Suppose plaintiff offers a mere scintilla of evidence to support each material element in his case, but defendant's testimony is overwhelming; must the issUes go to a jury? A. In Ohio, and some other state courts, it must. But this is not the rule in the federal courts. Those courts will not go through "the useless form of submitting the issue to a jury, and correcting error if made, by setting aside the verdict." They will direct a verdict for the defendant. Ewing v. Goode, 78 Fed. 442. Q. 96. Action upon a sealed instrument in the form of a promissory note. Issue, that instrument was not under seal. Plaintiff offered the instrument, which appeared to be under seal, and rested. Defendant offered evidence tending to show that the seal was affixed without his knowledge or consent, by the plaintiff; and after the execution and delivery of the note. This was met by evidence on the part of plaintiff that seal was affixed before execution. The court instructed the jury that after testimony had been given to show that the seal was attached after the "inception" of the note, plaintiff was bound to establish by a preponderance of the evidence that the seal was not attached after the signature. Is the instruction correct? A. Correct. Plaintiff had made a prima facie case when he introduced in evidence the instrument under seal. But the de- fendant is not thereby concluded. If he does not controvert this evidence, he is cast. But here he did controvert it ; and upon the whole evidence the jury is properly instructed that all material issues tendered by the plaintiff must be established by him by a preponderance of the evidence. Farmers &c. v. Siefke, 144 N. Y. 354. Note that there is a difference between "burden of proof" and "weight of evidence." The "burden of proof" remains on a party affirming a fact, and does not change. The "weight of evidence" may, according to the strength and nature of the proofs offered, shift from side to side in the progress of a trial. Scott v. Wood, 81 Cal. 398. Central &c. v. Butler, 2 Gray 130. 392 LAW STUDENTS REVIEW Q. 97. In an action for malicious prosecution, must plaintiff prove that defendant did not take reasonable care to inform himself of the true state of the case, and did not act with rea- sonable care ? or is it incumbent on defendant to show that he did take such care? A. Plaintiff has the burden of showing lack of such care. When, however, the whole circumstances of the case are in them- selves sufficient to raise a presumption of want of reasonable care on the part of defendant, a slight amount of evidence may be sufficient to "launch the plaintiff's case." Abrath v. North-Eastern &c, 55 L. J. Rep. Q. B. D. 457. CHAPTER XV COMMON LAW ACTIONS AND PLEADINGS Question I. O sued the executor of a decedent in assumpsit for services performed for decedent in his lifetime; but did not plead that the services were performed "at the special in- stance and request" of decedent. Can he recover? Answer. No. Without those words, nothing is disclosed but a past consideration — not good in law. A man can not make a gift, and afterward sue for its value. Osborne v. Rogers, 1 Saund. 264, n. 1. Q. 2. A sued B, C and D in assumpsit, alleging that he had conveyed mining property to a corporation in which they were large stockholders, and that in consideration thereof they had promised to pay a certain draft on which A was liable. De- fendants demurred. Is the declaration good ? A. No. Bad for want of consideration. The conveyance was not to defendants. If A had alleged that he conveyed at their request he would have shown a consideration. People's &c. v. Adams, 43 Vt. 195. Q. 3. A sues B in assumpsit on a promise of B to pay the debt of C, B's brother, if A will not sue C, and alleges that he did not sue C. Assuming that the declaration is good in form and that there is no question of the Statute of Frauds, does it disclose a sufficient consideration to support the action ? A. Yes. It discloses a detriment to the promisee which is as valid a consideration as a benefit to the promisor. Tappan v. Campbell, 9 Yerg. 436. Q. 4. Suppose A is indebted to B, and delivers bills of ex- change to D to secure B, and C promises B that if the bills of 393 394 LAW STUDENTS REVIEW exchange are delivered to him he will pay the debt; can B maintain an action of assumpsit against C for the amount of the debt? A. Yes. There is a good consideration. Though C, a stran- ger to the bills, can make no use of them, he may obtain some advantage — and in any event parting with control of them is a detriment to B. Paynter v. Chamberlyn, 1 Eolles, Abridgement 22, plac- itum 21. Q. 5. R brought a suit in assumpsit against W for goods sold. After alleging the goods sold at W's instance and request, the declaration proceeded, "Which sum said defendant then and there promised to pay the said plaintiff for such goods, wares and merchandise." W demurred specially, for want of sufficient consideration for the promise averred in the declaration. Can the declaration be upheld? A. Though not averred in terms, there is a necessary impli- cation that the promise was in consideration of the goods sold, and the declaration can be upheld. Eead v. Walker, 52 111. 333. Q. 6. B brought an action of special assumpsit against D and F, husband and wife, on a contract concerning the sepa- rate estate of the wife. D and F plead the general issue. At the trial the contract when offered in evidence proves to be under seal. Motion to direct a verdict for the defendants. What should be the ruling? A. Granted. Assumpsit will not lie on a sealed instrument. Magruder v. Belt, 7 App. Cas. (D. C.) 303. O. 7. A and B entered into articles of co-partnership under seal with covenants to account and pay at the end of the term. A sued B in assumpsit, alleging in his declaration that the par- ties had agreed that A should carry or. the business alone, that they then came to a settlement of accounts, in which several COMMON LAW ACTIONS AND PLEADINGS 395 items were included that did not relate to the partnership ac- count, and that a balance of $1,401 being found in favor of A, B dad promised to pay it. After verdict in favor of A, B moved in arrest of judgment on the ground that the suit should have been in covenant. Should the motion prevail? A. No. When B promised to pay the general account there was an end of the covenant. Foster v. Allanson, 2 T. E. 479. • Q. 8. A brought an action against B in assumpsit. The evi- dence showed that A had a contract with B, to raise and deliver to him 1,000 tons of iron ore, but that after 500 tons had been raised and delivered, B had refused to receive any more — with- out fault in A. Are. the common counts sufficient here ? A. Sufficient. Indebitatus assumpsit lies where the law im- plies a promise. Draper v. Eandolph, 4 Har. 454. Q. 9. A, an attorney, gave a receipt to B for $20 in full of attorney's fees for the successful prosecution of a forcible de- tainer suit before a justice of the peace, and in the same paper agreed to prosecute the suit on appeal. The suit was appealed. A was successful, and sued B in indebitatus assumpsit for fees, filing the common counts. At the trial B introduced the paper above described. A proved the value of his services and re- covered a verdict for $30. Can the verdict stand? A. No. Indebitatus assumpsit will not lie where there is an express contract. Chambers v. King, 8 Mo. 517. Q. 10. N declared in assumpsit on a note given by C for a half interest in a stud horse, and payable by C when the horse should be sold, or in a reasonable time. The note offered in evidence read simply, when the horse should be sold. The proof showed that the horse was not sold, but died from de- fendant's ill-treatment. Can a verdict for plaintiff be upheld ? A. No. The contract must be proved as alleged. .The death 396 LAW STUDENTS' REVIEW c of the horse from defendant's ill-treatment should have heen shown, to make a legal intendment that the note should be paid within a reasonable time. Hilt v. Campbell, 6 Maine 109. Q. 11. B sued D in assumpsit upon an account annexed, which was in these words and figures: "To groceries as per bill of particulars rendered, $28.32." D demurred. Should the demurrer be sustained ? A. Demurrer good. A sufficient declaration must contain all the allegations necessary to make out the plaintiff's case without reference to a paper (bill of particulars) not attached. Bennett v. Davis, 62 Maine 544. Q. 12. A brewer brought an action of contract against S for the value of certain beer barrels, alleging that beer had been sent S at his request and that S had in consideration thereof agreed to return the barrels or pay therefor, but that he had done neither. There the declaration stops. Is it good? A. Bad. It does not state a cause of action. If the contract did not state a time for return, by intendment of law it should be returned in a reasonable time. This should be alleged; also that such time had elapsed. Eead v. Smith, 1 Allen 519. Q. 13. Lessor brought an action in debt against lessee, de- claring on a lease not under seal, but with a penalty of $250 for breach of the condition, and claimed that lessee should pay him half the crop. Lessor also claimed a breach, and forfeiture of the sum of $250. The forfeiture could not be maintained. Could he recover half the value of the crop ? A. No. Debt will not lie to recover unliquidated damages. It must be for a sum certain. Nelson v. Ford, 5 Ohio 473. O. 14. Obligee brought an action of debt against obligor on a money bond given to secure the purchase of land which obligor claimed from the United States. Oyer was had of the instrument, and, after the obligation to pay, this was first dis- closed: "Provided the pre-emption be good and lawful * * * COMMON LAW ACTIONS AND PLEADINGS 397 if not, return said pre-emption, etc." Obligor then demurred. Is the declaration good? A. Bad. The oyer incorporated the instrument in the decla- ration ; and the proviso was a condition precedent, of which per- formance must be alleged, or a legal reason for non-perform- ance set out. Kuykendall v. Gilbreath, 3 Ark. 222. Q. 15. Obligee sues obligor in debt on a bond conditioned to free land sold from all legal incumbrances* either by deed or mortgages, or otherwise, by a certain day; and alleges that obligor did not free the land from all legal incumbrances, etc., in the words of the condition of the bond. Is the allegation of breach sufficient? A. Insufficient. There should have been some incumbrances alleged. Non constat, from the pleading, that there were in fact any incumbrances. Julliand v. Burgott, 11 Johns. 6. Q. 16. In an action of debt on a specialty, plaintiff alleged that defendant made the instrument. Is the declaration good against a demurrer on the ground that he did not allege de- livery ? A. Yes. The allegation of making imports delivery. In other words, an instrument under seal is not made until it is delivered. Mitchell v. Conley, 13 Ark. 414. Q. 17. In an action of covenant on an instrument obligating defendant to pay $10,000 on the completion of certain work, plaintiff stated that he had performed "as nearly as possible." Is the declaration good? A. No. Plaintiff is bound either to aver performance, or offer an excuse for nonperformance. Stagg v. Munro, 8 Wend. 399. Q. 18. S brought an action of covenant against T, setting out the instrument sued on thus: "And thereupon the said defendant, on, etc., entered into a covenant" (setting forth the 398 LAW STUDENTS' REVIEW agreement verbatim) which concluded, "Signed and sealed the 24th day of March, 1814. T— L.S." Upon these allegations can the action of covenant be main- tained on the instrument? A. No. It must by express allegation appear that the con- tract was tinder seal. Van Santwood v. Sandford, 12 Johns. 197. Q. 19. A landlord declared on an absolute covenant to re- pair. Plea by tenant non est factum. The landlord at the trial produced a lease containing a covenant to repair at all times when there was need, etc., and ending, "and at furthest within three months after notice." Can he recover ? A. Not on these allegations. The covenant proved is not the covenant sued on. There is a fatal variance. Horsfall v. Testar, 7 Taunt. 385. Q. 20. A leased a house from B. He was unable to enter because N held possession claiming permanent title. A there- upon brought suit in covenant against B, claiming in his decla- ration breach of covenant of title. B pleaded non est factum. Could B prove title in himself under that plea? A. No. The breaches in the declaration in covenant are ad- mitted by the plea non est factum. Barney v. Keith, 6 Wend. 555. Q. 21. Plaintiff brought an action in detinue against de- fendant for a negro slave, alleging only that he, plaintiff, had delivered the slave to defendant for safekeeping, and to be re- turned to plaintiff, but that defendant, though often requested so to do, has refused, etc., and still refuses to redeliver said slave. Is the declaration good? A. Not good. It does not state property in plaintiff. Kent v. Armistead, 4 Munf. 72. Q. 22. A declared against B in detinue, and described the property involved as a horse, without giving his size, color, COMMON LAW ACTIONS AND PLEADINGS 399 age, name or any further marks of identification. Is the decla- ration sufficient? A. Insufficient. As the action is for recovery of the property itself, a more specific description is required than in actions sounding in damages like trover, etc. Boggs v. Newton, 2 Bibb 221. But a declaration for "a set of turner's tools" further de- scribed as the tools once owned by B, is sufficient. March v. Leckie, 13 Ired. 172. Q. 23. In an action of trespass quare clansum fregit, the plaintiff alleged that the defendant negligently started a fire on his own close adjoining plaintiff's close, and that the fire spread and destroyed trees and bushes on plaintiff's close. Is the declaration sufficient? A. Not sufficient. The words "broke and entered" preceded by "vi et armis" are necessary in trespass quare clausum. Sawyer v. Goodwin, 34 Maine 419. Q. 24. A brings an action of trespass de bonis asportatis against B and alleges that B vi et armis entered his close and took away certain articles of jewelry which were then and there rightfully in the possession of A. To this B demurs on the ground that A has not alleged title in himself. Should the demurrer be sustained? A. No. Possession, or the right to immediate possession, is all that is necessary to maintain this action. Moores v. Winter, 67 Ark. 189. Butotherwise in detinue, see Q. 21, supra. Q. 25. Plaintiff sued T in trespass, alleging that T negli- gently drove his wagon against plaintiff's carriage, and injured it, without alleging that the act was wilful. T requested a charge that the cause of action disclosed was not trespass, but case. Is the declaration in trespass good ? A. Good. Where the injury is direct, though not wilful, the action may be either trespass or trespass on the case. Howard v. Tyler, 46 Vt. 683. 400 LAW STUDENTS REVIEW Q. 26. Plaintiff declared against G and others in trespass on the case, alleging that they had cut a pulley and belt in plaintiff's possession through which plaintiff received power for manufacturing, and thereby interrupted the working of plaintiff's machinery. G filed a general demurrer. Should the demurrer be sustained? A. Sustained. The action should have been trespass, as the injury was direct, not consequential. It would have been other- wise had the pulley and belt been out of plaintiff's possession. Dale &c. v. Grant, 34 N. J. L. 138. Q. 2.J. R sued S in trespass on the case for operating quar- ries in such a manner that, in blasting, large quantities of rock were thrown on R's dwelling house and farm, to the great in- jury of same. Was the action rightly brought? A. Action misconceived. Should have been trespass. The in- jury was direct. (This is the common law rule. The distinction between trespass and case has been very generally abolished.) Scott v. Bay, 3 Md. 431. Q. 28. In a declaration in tort for fraudulently effecting the escape of a prisoner the plaintiff stated that he "on the 4th day of February, 1804, was legally deputed to serve a certain writ or process against S, in which J was plaintiff, demanding $800 damages, for a certain trespass alleged to have been com- mitted by S, that the writ was signed by T. L. Esq., a justice of the peace, and by him and in his handwriting, directed to the plaintiff, as an indifferent person" and then went on to set out the arrest and escape. Is the declaration good? A. Insufficient. Neither the jurisdiction of the justice to issue the writ, nor to appoint an "indifferent person" to serve it appears from the facts stated. In actions for escape, and like- wise in defenses for false imprisonment, the authority to arrest must be set out clearly. Stoyel v. Westcott, 2 Day 418. Q. 29. A master sues a railroad company for negligently injuring his apprentice, alleging that the apprentice became a passenger by paying his fare, in his master's absence. The COMMON LAW ACTIONS AND PLEADINGS 4OI railroad company demurred on the ground that it was not liable to the master for the breach of a contract of carriage to which he was not a party. Can the master recover ? A. He can. The relation of master and apprentice will sustain an action in the name of the mascer for an injury to the appren- tice causing disability — per quod servitium amisit. Ames v. Union Ry., 117 Mass. 541. Q. 30. Plaintiff brought an action in trespass on the case against K for damage to a stock of plaintiff's goods in plaintiff's store, which he alleged was brought about by K "by digging and undermining said brick store on, etc., by which it was thrown down and plaintiff's goods greatly damaged, and plain- tiff was put to great trouble and expense," etc. Is the allegation sufficient? A. Insufficient. There should have been an averment that the act complained of was wrongful or negligent. Guilford v. Kendall, 42 Ala. €51. Q. 31. D brought an action of trover against K and in his declaration described the goods as ten pair of curtains and valence. K pleaded the general issue. The jury brought in a verdict for D. A motion in arrest of judgment was urged by K on the ground that there was no proper description of the goods. Should judgment be arrested ? A. No. The same certainty of description is not required in trover, which is brought for money damages, as in detinue, which is brought for the thing itself. Originally it was other- wise. Taylor v. Wells, 2 Saund. 74 n. 1. Q. 32. After an acrimonious political meeting, Senator Ben- ton's remarks on the porch of his hotel led to a suit for slander by his opponent. In the declaration the following spoken words were alleged : "I wonder when the damned scoundrel whipped his wife last!" meaning thereby to charge, and being under- stood by those who heard him to charge, that plaintiff had been 26— L. S. Eev. 402 LAW STUDENTS REVIEW and was guilty of the dishonoring crime of an assault and bat- tery on his wife ; * * * by which plaintiff says he is dam- aged," etc. Does the declaration allege a cause of action? A. No sufficient cause pleaded. The words were not action- able in themselves, and there was no allegation of special dam- age, which in such cases is necessary in actions for slander for words spoken. Birch v. Benton, 26 Mo. 153. Q. 33. A supreme court commissioner, L, sued P, a news- paper publisher, for libel set forth in a newspaper article which, after calling him "old blear-eyed toady" and other op- probrious names, went on to say, "It is intimated that L will let off all witnesses who are sentenced for contempt by either house of the legislature for refusing to testify. Thus it is hoped that one man, we beg pardon for calling such an ass a man, will be enabled to undo all the legislature could do to expose the guilty." P demurred, alleging that the words were not actionable in themselves, and that no special damage was al- leged to make them actionable. Should the demurrer be sustained? A. Overruled. Words published which tend to bring a man into public hatred, contempt or ridicule, are libelous per se. Lansing v. Carpenter, 9 Wis. 540. Q. 34. A brings an action of trespass vi et armis and declares against B, C & D alone, when E, F & G are equally guilty of the offense — illegal imprisonment. Can the defendants sued take advantage of the omission? A. No. In such suits (where the tort does not arise out of the violation of a joint contract), the plaintiff has the option to sue one, any, or all of the tort-feasors, or to dismiss any out of the suit. Bloss v. Plymale, 3 W. Va. 393. Q. 35. In an action against the owner for injury from the bite of a vicious horse, plaintiff (a woman) declared that de- fendant "wrongfully and maliciously did keep a certain horse COMMON LAW ACTIONS AND PLEADINGS 403 * which was,. during all that time, used and accustomed to bite and attack mankind, and that defendant then and there had knowledge thereof" ; but did not allege that she was bitten by- reason of such wrongful keeping. Was she entitled to recover? A. Yes. The wrongful keeping made the defendant prima facie liable. If the biting was through her negligence, that was a matter to be pleaded in defense. Popplewell v. Pierce, 10 Cush. 509. Q. 36. H was bitten by a vicious dog; and brought an action of trespass on the case against K, alleging that K was the keeper of the dog. H proved that the dog was vicious to the knowledge of K, and that K fed him, and allowed him to stay about his premises. Could H recover on these facts ? A. Recovery here. This amounts to "harboring"; and one who harbors a vicious dog is liable for the damage he does. O'Donnell v. Pollock, 170 Mass. 441. Q. 37. To a declaration in an action of assumpsit against him, the defendant pleads that the promises declared upon, if any were made, were made jointly with one W, and that said W is, and was at the time the writ was issued, living at Z in the county of the venue. Is the matter alleged sufficient for a good plea in abatement ? A. Sufficient. Joint promisors must all be sued, if possible. It would be otherwise if the plea ha*d failed to state that the co- promisor was alive and within the jurisdiction. Goodhue v. Luce, 82 Maine 222. Q. 38. A sues R and T, part owners of a ship, declaring in trespass on the case, alleging that they had negligently spoiled his goods which they had contracted to carry for hire. R and T pleaded "not guilty." The evidence showed that the negligence was that of the master of the vessel, and that X and Y were also part owners. At common law, could the plaintiff recover ? 404 LAW STUDENTS REVIEW A. No recovery. Though the master is, for this purpose, but the servant of the owners, the action arises out of a violation of a contract, and all the joint contractors must be joined. Boson v. Sandford, 2 Salk. 440. Q. 39. A vessel owner sues his master (captain) for negli- gence in losing 16 out of 56 quarters of malt entrusted to him for carriage. In the declaration were two counts in case for wrongfully failing to deliver the malt that was lost, and a third count in trover for the value of the 16 quarters. Is the declaration good? A. Good. Case and trover may be joined in the same ac- tion. Dickon v. Clifton, 2 Wils. C. P. 319. Q. 40. A liveryman brought suit against a customer for the value of a horse which the latter had driven to death. He filed two counts in assumpsit based on the implied promise of a bailee to return the bailment undamaged ; and a third count in trover. A general demurrer was interposed. Can the declaration be upheld? A. No. Assumpsit and trover can not be counted on in the same action ; though, on the above facts, either assumpsit or tro- ver could be maintained. Howe v. Cook, 21 Wend. 29. Q. 41. A bought of B a bicycle partly for cash and partly on credit. After some of the deferred payments had been made A fell into arrears for the balance due. The sale was absolute, not conditional. B took and kept possession of the bicycle without A's consent. A brought assumpsit against B. Can the amount paid be recovered under the common counts ? A. No. Only when goods wrongfully taken have been con- verted into money can the tort be waived and assumpsit main- tained for the sum received. Quimby v. Lowell, 89 Maine 547. Q. 42. Plaintiff files against B a count in assumpsit for goods sold and delivered, alleging the sale and delivery of the goods COMMON LAW ACTIONS AND PLEADINGS 405 in exchange for bills which were not due at the beginning of the suit, but goes on to allege that the goods were bought not in the regular course of trade, but for the fraudulent purpose of immediately reselling below value to raise money. Can the count be maintained ? A. No. Suing on the contract plaintiff is precluded from re- covering on the theory of rescission. He must elect between con- tract and tort. Ferguson v. Carrington, 3 Car. & P. 457. Q. 43. A, the owner of certain logs, delivered them to B, the owner of a saw mill, to be sawed into lumber, and paid for the sawing. B did not return the lumber, and A sued B in assump- sit for the value of the lumber, filing the common counts. B demurred on the ground that the action should have been in trover. Can A recover? A. He can. Conversion by a bailee may be treated as a sale. Barker v. Cory, 15 Ohio 9. Q. 44. Holder sues maker on a promissory note which, on account of certain terms which were not disclosed in the dec- laration, was not in fact due when the suit was brought. In this state of the record defendant maker interposes a demurrer. Can he maintain it, on the ground that the suit was prema- turely brought? A. No. A demurrer reaches only matters which appear on the record. Nothing aliunde can be considered. Trentman v. Fletcher, 100 Ind. 105. Q. 45. A sued B, a justice of the peace, and C, a constable, for false imprisonment. B and C joined in a plea of justifica- tion, setting up a judgment of the justice, and a warrant of arrest thereupon, against A, upon a charge of bastardy. It appeared from the allegations of the plea that the justice had jurisdiction of the subject matter but did not have juris- diction of the case. A demurred. Should the demurrer be sustained? 406 LAW students' review A. Yes. A joint plea must be good as to all the defendants joining, or it is bad as to all. Poulk v. Slocum, 3 Blackf. 421. Q. 46. Obligee sues B, C and D on a bond of indemnity given by them to secure the payment of money collected by L, a public officer. On oyer of the bond granted, it is disclosed that L was appointed six months before the date of the bond. The declaration alleges a breach in not paying over a thousand dollars so collected by L, but does not allege that it was- col- lected after the bond was executed. B, C and D join in a plea of non est factum. Then D files a special plea to which obligee demurs. Should obligee succeed on his demurrer ? A. No. Though D's plea is open to demurrer because having once joined with his co-defendants in a plea he can not after- wards separate, yet the declaration is bad; and it is the rule that the demurrer searches the whole record, and judgment goes against him who committed the first error, ("carrying the de- murrer back"). United States v. Linn, 1 How. (U. S.) 104. Q. 47. A brought an action against B and, after stating a good cause of action in due form, alleged that he had been thereby damaged to the amount of one thousand dollars. B demurred to the declaration, and upon its being overruled, stood by his demurrer. On this record as it stands, is A entitled to a judgment for $1,000? A. Not entitled. The demurrer admits all facts well plead- ed; but does not admit the amount of damages. This must be assessed on proof. Havens v. Hartford &c, 28 Conn. 69. Q. 48. One Walker was indicted as for a misdemeanor con- sisting of carrying concealed weapons, and was tried in a district of the county where by virtue of a statute the court sat, outside the county seat, to try misdemeanors committed in the district. He was convicted, and moved in arrest of judg- COMMON LAW ACTIONS AND PLEADINGS 407 ment on the ground that the evidence showed that the misde- meanor was committed outside the district. Should the motion be allowed ? A. No. A motion in arrest of judgment is only grantable on the record. Defendant should have moved for a new trial. Walker v. The State, 35 Ark. 386. Q. 49. Holder sued maker in assumpsit on a promissory note. Maker pleaded a discharge under a state insolvency act. Holder replied that the discharge was obtained by fraud. Maker took issue on 'the replication, and the jury found for the defendant. It appeared on the record that the note was made before the passage of the insolvency act. Was maker entitled to judgment non obstante veredicto? A. Maker entitled to judgment. The issue raised by holder was no defense to the action. Burdick v. Green, 18 Johns. 14. O. 50. An Irish judge was indicted in the Court of King's Bench in London for libel, alleged to consist in the publishing of a pamphlet charging officers of the king with oppression in Ireland, with intent to incite the king's subjects in Ireland to hatred of the king's government. He pleaded to the jurisdic- tion of the court, that the acts charged as the crime were com- mitted in Ireland. Is the plea good? A. Bad. A plea in abatement must be to the particular court; it can not be on a matter that applies to all courts in the jurisdiction. He should have pleaded in bar, or introduced his evidence, under a plea of not guilty. The King v. Hon. E. Johnson, 6 East 583. Q. 51. Maker executes a promissory note to B, who assigns to C, simply for the purpose of having a subsequent suit on the note brought by C in a United States court, as maker and B are citizens of the same state and C is a citizen of another state. To this suit maker pleads the general issue and other pleas in bar. Can he introduce evidence of this colorable assignment at the trial? 408 LAW students' review A. He can not. Objections to the jurisdiction of the court must be pleaded in abatement, when the lack of jurisdiction does not appear on the face of the record. Smith v. Kernochen, 7 How. (U. S.) 198. Q. 52. A minor, by L, his next friend, brought an action on the case against D for personal injuries. D pleaded the general issue, and subsequently filed a plea in abatement denying the capacity of L to sue as next friend. Minor, by L, moved to strike the latter plea from the files. The court denied the mo- tion; and on the refusal of minor to reply, entered judgment for D. Should this judgment be reversed on appeal? A. Yes. A plea in abatement can not be filed after a plea in bar. Foreman v. Gibson, 15 Ark. 206. But, if pleaded in apt time, the question of minority may of course be raised by plea in abatement. Young v. Young, 3 N. H. 345. Q. 53. A glass manufacturing company, suing as a corpora- tion, brought an action against X on a promissory note. X pleaded in abatement that there was not, and is not now, any such corporation. On traverse of this, issue was joined. After the corporate papers relied on by both sides had been intro- duced in evidence, the court held the incorporation valid and then, over X's objection, submitted the damages to the jury, and excluded evidence that the note was without consideration. Can the verdict in favor of the company be sustained? A. Yes. When defendant fails in a plea of abatement on an issue of fact the proper judgment is quod recuperet. Boston &c. v. Langdon, 24 Pick. 49. Q. 54. A and B joined counts in trover for the value of certain hogsheads of tobacco, in an action on the case against Y, charging him as their agent or factor, by contract with them ; in other counts, with negligence in losing the tobacco. Assume that as to the counts in trover, Y pleaded in abatement that C and D were joint owners in the tobacco with A and B. COMMON LAW ACTIONS AND PLEADINGS 409 Should the plea as to any of the counts be sustained on demurrer ? A. Plea not sustainable. As it is bad as to the counts founded on the contract, the judgment in such case is respondeat ouster as to the whole declaration. Phillips v. Claggett, 10 Mees. & W. 102. Q. 55- F sued K in trespass quare clausum fregit. The stat- ute declared that each summons "shall in all cases briefly give to the defendant the same information which the declaration gives more at large and shall contain the substance thereof." K filed a plea in abatement alleging that the summons did not "give the same information, etc.," following the words of the statute. Is this sufficient? A. Insufficient. K should have set out the summons to show the deficiency. Dilatory pleas are not favored by the courts. They must be correct in form as well as substance. Dinsmore v. Pendexter, 28 N. H. 18. Q. 56. Administrator of H declared, in a suitable action, against S, a former sheriff, for failure to return an execution in favor of the intestate. S interposed the plea ne ungues ad- ministrator, without any plea denying the validity of the claim for damages. Is the plea good? A. Good. Defendant, by plea in abatement filed in apt time, may always deny the capacity in which plaintiff sues. Weathers v. Newman, Admr., 1 Blackf. 232. Q. 57. A brought a writ of error coram nobis, and the matter of fact relied on was that B, the plaintiff, was a feme covert at the time the action was brought. Can A maintain the writ ? A. No. He should have pleaded in abatement to the action. Gravenor v. Stephens, 10 Mod. 166. Q. 58. Plaintiff sued defendant in assumpsit, pleading money count in his declaration. Defendant pleaded the general issue, and the statute of limitations. Afterward defendant filed a plea 4IO LAW STUDENTS REVIEW puis darrein continuance, setting up a release under seal given after action brought. On trial the issue was found against de- fendant on the latter plea. The court refused to let in evidence that the claim was barred by limitations. - Did the court err? A. No. The plea puis darrein continuance waives all former pleas. Except as to it, the plaintiff's suit is confessed. Kimball Kiniston v. Huntington, 10 Wend. 675. Q. 59. Assume that A brings a suit against B upon a prom- issory note by its terms due July i, 1905. The suit is brought April 10, 1915. The note is set out in the declaration. By stat- ute, the execution of the note is acknowledged, unless the defendant denies it by plea verified by affidavit. The period during which suit could be brought is ten years. B pleads only the statute of limitations. A moves to strike the plea from the files. Should the motion be allowed? A. Yes. It is a sham plea. Its falsehood is declared on the record. Bank of Shasta v. Boyd, 99 Cal. 604. Q. 60. A sues B in assumpsit. B pleads specially in con- fession and avoidance, acknowledging the promise but alleging that he paid the money to A before suit begun. A demurs, re- lying on the general rule that no other plea that amounts to the general issue can be pleaded. Is this special plea good? A. Good. It gives color to the plaintiff's claim. Though pay- ment may be given in evidence under the general issue, origin- ally it was not so. Hatton v. Morse, 3 Salk. 273. Q. 61. Plaintiff, judgment creditor for $5,000 against B, brings an action of debt upon his judgment. In the mean- time B has sued out a writ of error on the original judgment. Can B defeat the action under a plea of nul tiel record ? A. No. The record is still in the court that rendered judg- ment. Only a transcript of it has gone up. To suspend the COMMON LAW ACTIONS AND PLEADINGS 41I effect of a judgment pending the decision of a writ of error, a supersedeas must be obtained. Supersedeas, 3 Salk. 333, (4). Q. 62. In debt for goods sold and delivered — plea nunquam indebitatus (never indebted). May defendant prove that the goods were sold and delivered under a contract which provided for a credit which had not expired when suit was brought ? A. He may. This falls under the general issue. He never was indebted until the credit expired. Broomfield v. Smith, 1 Mees. & W. 542. Q. 63. To an action of covenant against one alleged to be assignee of an indenture, alleging breach by failure to keep the tenement involved in repair, defendant pleaded that he was tenant in common possessed of an undivided one-sixth and had no greater estate, right, title, etc. Is the plea good? A. Bad. It is not a traverse nor is it a plea in confession and avoidance. Assuming it could have been good in bar to any part, it should have been confined to one-sixth. Then it would have been in confession and avoidance. Merceron v. Dowson, 5 Barn. & C. 479. Q. 64. A brought an action of replevin against B, who made cognizance that C, his master, was seized of a certain close, and that he, B, at C's command, took the cattle there, damage feasant. To this A replied that he himself was seized of one- third of the close and put in his cattle, absque hoc "that the said B was sole seized." B demurred. Should the demurrer be sustained because the traverse is broader than the plea? A. No. Sole seizin was necessarily implied. Such matters may be traversed. Gilbert v. Parker, 2 Salk. 629. Q. 65. A citizen of New Hampshire brought a suit in the United States Circuit Court in Massachusetts against a Massa- chusetts railroad corporation to collect a claim, beginning regu- larly by a summons and writ of attachment under which the 412 LAW STUDENTS REVIEW marshal seized some railroad cars as the property of the de- fendant. H, a mortgagee of the road, claiming under the mort- gage, brought a replevin suit for the cars in a Massachusetts state court. To H's declaration in replevin, F pleaded in due form his authority to hold the cars by virtue of the proceedings in the United States court. H demurred to the plea. Is the plea good? A. The plea is good. The question in issue was the right to possession. This was in F, until the right of property was de- cided in the United States Court. Freeman v. Howe, 24 How. (U. S.) 450. Q. 66. A alleges that B was "taken out of prison by virtue of a certain writ of habeas corpus." The question in the case is whether a writ, on account of its date, was a justification to the sheriff for releasing the prisoner. May a traverse of the words in quotation marks be sustained against a demurrer? A. Yes. A mixed question of law and fact may be traversed. Beal v. Simpson, Bailiff, &c, 1 Ld. Kay. 408. Q. 67. Action of trespass for running against the plaintiff's post-chaise in which he was travelling along the highway, with a cart, and killing one of the horses drawing the post-chaise, by the shafts of the cart ; plea of not guilty. May the defendant introduce evidence that the collision occurred through the neg- ligence of the plaintiff? A. No. The only thing here to be tried under a plea of not guilty, is killing the horse. Justification should have been plead- ed specially. Knapp v. Salsbury, 2 Camp. 500. Q. 68. Plaintiff brought an action of trespass on the case against defendant alleging that in a sale of gypsum defendant had used false weights whereby plaintiff received only 400 lbr.., but was charged with and paid for 500 lbs. ; that defendant did not use the standard weights, "contrary to the form and pro- vision of the said second title of the nineteenth chapter of the first part of the revised statutes." COMMON LAW ACTIONS AND PLEADINGS 413 Defendant demurred on the ground that the statute was not set out specifically. Should the demurrer be sustained ? A. Overruled. A party relying on a public statute need only state facts making it applicable, and refer to it generally. Bayard v. Smith, 17 Wend. 88. Q. 69. A town was made defendant in ejectment for land which it held, and which was claimed by a foreign religious society. The town pleaded the general issue. Might it then either by plea or by introducing evidence, contest the capacity of the religious society to sue ? A. Not permissible. The general issue admits the capacity of the plaintiff to sue. Society &c. v. Pawlett, 4 Pet. 480. Q. 70. R brought an action of trespass against S and declared that S broke his close and broke down the grass with his feet and other grass ate up with cattle. S pleaded that he acted under the orders of Sir Thomas, that Sir Thomas was seized of a manor to which the right of common, for all commonable cattle in the close in question, was appurtenant; that Sir Thomas had caused to be put divers commonable cattle of him, Sir Thomas, in the close in question which at the time when, etc., were in the place where, etc. Wherefore S as servant of Sir Thomas entered to attend to the cattle, and in so doing tram- pled the grass, which is the trespass, etc. R demurred on the ground that plea in bar only set forth that the cattle were in the place where, etc., but not that S put them there. Can the plea be sustained? A. Not sustainable. A plea must be to every part of the declaration that it purports to answer. Earl of Manchester v. Vale, 1 Saund. 28, n. (3). Q. 71. Action of audita querela by H against P to whom H had acknowledged a recognizance in £300, to be void if he paid £50 a year to one B at a certain time and place for six years. H declared that he was ready to pay at the time and place on each year, but B was not there to receive the £50. P 414 LAW STUDENTS REVIEW pleaded that B was ready at the time and place to receive the £50 absque hoc that H was there ready to have paid it. H demurred. Should the demurrer be sustained? A. Yes. The matter pleaded as inducement, contained a di- rect denial of the allegation that B was not there, and should have concluded to the country, i. e., tendered issue without the absque hoc. Hughes v. Phillips, Yelv. 38. Q. 72. Plaintiff sued H for breach of the condition of a bond to marry her, alleging she had tendered herself to marry and H had refused and married another woman. H pleaded that after the making of the bond he had offered to marry plaintiff absque hoc that he had refused to take her for his wife, before she had refused to take him for her husband. Is this plea good? A. Bad. The plea is a traverse of something that was not alleged. This is never allowable. A traverse can be taken only to something alleged in terms, or by clear implication of law. Crosse v. Hunt, Carthew 99 (K. B. — 90 Eng. Kep. Full reprint, 662.) Q. 73. In the preceding case plaintiff filed a replication tra- versing the plea, to which H demurred. Assuming that this is a traverse upon a traverse and comes within the rule against such a pleading, could H succeed on his demurrer ? A. No. A demurrer to a subsequent pleading is always car- ried back to the declaration and sifts all the pleadings. The party chargeable with the first error loses. Therefore judgment for plaintiff. H's plea was bad. Compare United States v. Linn, 1 How. (U. S.) 104 (Q. 46, supra) . Q. 74. To a suit by A, B pleaded in abatement, setting up 10 separate outlawries against A on mesne process, and prayed judgment whether any other answer ought to be made by him while these outlawries remained unreversed. A demurred. Is the plea good ? A. No. The demurrer should be sustained for duplicity. B COMMON LAW ACTIONS AND PLEADINGS 415 should have pleaded one outlawry. Judgment, respondeat ouster. S. H. Trevelian v. Seccomb, Carthew (8), (K. B.— 90 Eng. Eep. Full reprint, 610.) Q. 75. Lessor brought suit in debt against his lessee for years for the rent. Lessee pleaded that he had assigned the lease and that lessor had notice of the assignment. Lessor replied that he did not have notice ; and on that issue the jury brought in a verdict for lessee. Was lessee entitled to judgment on the verdict ? A. No. The verdict was on an immaterial issue. A valid assignment can not be established by notice. The court awarded a repleader to lessor. Serjeant v. Fairfax, 1 Lev. 32. Q. 76. Plaintiff, A, brought an action of trespass de bonis asportatis against B, who pleaded that property in the goods at the time of the taking was in S, and not in the plaintiff ; that he, B, was a deputy sheriff, and that he took the goods by virtue of a writ of attachment against S in favor of Y. Replication that B took the goods of his own wrong, traversing property in S and concluding with a verification. Rejoinder that the property was in S concluding to the country ; and issue joined thereon. The jury gave a general verdict that the defendant was guilty and assessed the damages. Should a repleader be awarded? A. Yes. The taking being admitted, the only pertinent issue was the right of A to the goods; and there was no finding on which the court could enter judgment. A should have traversed the plea. Accordingly the repleader should begin at the repli- cation. Gerrish v. Train, 3 Pick. 124. Q. yj. Plaintiff sued B in trespass for entering his close and taking away his boards. B pleaded that he was tenant in com- mon in the close, a lumber yard, and that the locus in quo had been set apart to him by his co-tenants as his separate place for piling lumber, but plaintiff without license or his consent entered his, B's, separate premises and he, B, "thereupon en- tered and removed plaintiff's boards." Plaintiff replied that the 416 LAW students' review locus in quo had been assigned to W, one of the tenants in common, and traversed that it had ever been allotted to B. In his rejoinder B admitted that W was one of the tenants in common, but alleged that before the supposed trespass W had conveyed his title and interest in the premises to Y. Plaintiff in surrejoinder admitted that W had conveyed to Y, but averred Y never entered, but suffered A to occupy without disturbance until B unlawfully entered and committed the trespass com- plained of. B demurred generally to the surrejoinder. The demurrer was carried back to the rejoinder. Is the rejoinder good? A. Not good. It is bad because a departure. The replication traversed the plea (as to B's separate allotment). The defendant should have taken issue. Keay v. Goodwin, 16 Mass. 1. Q. 78. C sued D in trespass for false imprisonment. D filed a plea in confession and avoidance, alleging that the arrest was on capias to compel the payment of a judgment of $200. C in confession and avoidance replied, alleging that D com- pelled him to pay $50 to obtain his release, besides the sum of money called for by the execution and the costs. D demurred. Is the replication good ? A. Yes. It is not a departure. It supports the declaration. Breck v. Blanchard, 22 N. H. 303. Q. 79. To an administrator's suit for the purchase price of land sold, as administrator, to B, the latter pleads that the land had been sold by the intestate and that the administrator had knowledge of the various sales and the recording of the same. Is this a sufficient plea to raise the issue of fraud by the administrator ? A. No. For this purpose it violates the rule that a plea should not be argumentative. Thompson v. Munger, Admr., 15 Texas 523. O. 80. A sues B in assumpsit for goods sold and delivered. B pleads that he delivered a pipe of wine to A and that A received it in full satisfaction and discharge of the promises COMMON LAW ACTIONS AND PLEADINGS 417 sued. A in replication says precludi non, etc., "because pro- testing that the said B did not give or deliver to him, the said A, the said pipe of wine as, etc. For replication neverthe- less in this behalf, the said A says that he did not accept the said pipe of wine in full satisfaction," etc. Is the protest in the replication of any use in fixing the issue ? A. No. A protest is only useful to avoid the effect of the non-denial of the part of the plea protested, as an admission in other actions. It has no effect in the original case. Holdipp v. Otway, 2 Saund. 103, note (1). Q. 81. In an action of trespass for entering into M's house, defendant pleaded that M's daughter gave him license to do so and that he entered by that license. M replied that he did not enter by her license. Is the replication good? A. No. It is a "negative pregnant;'' that is to say, ambigu- ous, though in form an express denial, as raising a double issue. Myn v. Cole, Cro. Jac. 87. Q. 82. To an action of trespass for fishing in A's fishery B pleaded that the locus in quo was an arm of the sea in which every subject of the realm had the right of free fishery. A for replication traversed that in the said arm of the sea, every subject had a right to fish. Is the replication good? A. Bad. The part traversed was an inference of law that could be attacked only by demurrer. Only the allegation that the locus in quo was an arm of the sea, could be traversed. Eichardson v. Mayor &c, 2 H. Bl. 182. Q. 83. The possessor of a copyhold estate brought replevin against the bailiff of the lord of the manor for an ox. The bailiff pleaded in justification that he took the ox as a heriot and alleged that the copyhold had been conveyed to the tenant without notice to the lord, and that a heriot was due upon every alienation without notice. The tenant in replication de- nied that a heriot was due upon alienation. Would a verdict avail the tenant? 27— L. S. Rev. 418 LAW students' review A. Not availing. He did not traverse that a heriot was due upon alienation without notice. Everything that is not traversed is admitted. Wilcox v. Servant of Skipwith, 2 Mod. 4. Q. 84. To an action on the case" for fraudulent representa- tions, the defendant pleaded the statute of limitations. The plaintiff replied that a suit seasonably brought was terminated by an arrest of judgment on verdict for the plaintiff and that this suit was brought within a year. (The statute allowing this applied only to involuntary dismissals.-) The defendant re- joined, confessing the preliminary proceedings and alleging that the supreme court granted a new trial on terms, and or- dered an arrest of judgment if a new trial on these terms was not desired ; that plaintiff refused the new trial ; and that the judgment afterwards was entered in the county court pursuant to this election. Plaintiff demurred to the rejoinder as amounting to the general issue. Was the rejoinder good? A. Kejoinder good. It is not a denial that the judgment in arrest terminated the suit, but an assertion that it resulted from the voluntary action of the plaintiff. Baker v. Sherman, 75 Vt. 88. Q. 85. Obligee brought an action of debt against D, his clerk, on a bond with covenants to account for all money col- lected. D pleaded performance of the covenants. C replied that on such a day £20 came into D's hands for which he had not accounted. D rejoined that he had accounted for the £20 thus, — that robbers had broken into the counting house and stolen the money. C demurred on the ground that .the rejoinder was a departure from the plea. Should the demurrer be sustained? A. No. In debt on a bond the defendant may plead perform- ance generally. The plaintiff should have traversed the robbery. Or he should have surrejoined in confession and avoidance something that would destroy the defense — such as negligence. Vere v. Smith, 2 Lev. 5. COMMON LAW ACTIONS AND PLEADINGS 419 Q. 86. The State ex rel. N brought an action of debt against P on a bond for the payment of money. P pleaded that the bond was conditioned for the performance by X of his duties as con- stable and that he had performed them. The state replied set- ting out in due form from a certain execution delivered to X to be executed and that he had failed to return it. To this P rejoined that there was no such execution issued, indorsed and delivered to X, nor did he neglect or refuse to return the same in manner and form, etc. Should a demurrer to the rejoinder be sustained? A. Yes. The rejoinder is bad for duplicity. It should either have denied the delivery, or affirmed a return. Boatright v. State, 8 Blackf. 8. Q. 87. N brings a suit in ejectment against P, setting up title in himself by patent from the United States. To this P pleads in confession and avoidance that N had been divested, and the title established in him, P, by virtue of a sheriff's sale under a judgment of a proper court against N and in favor of P, and setting out the judgment. By this it appears that, under the provisions of a statute, the service against N, who was a nonresident of the state, was by publication and that the property was not attached. Can P defend successfully under this plea? A. No. Personal service of a nonresident, or appearance, is necessary to give jurisdiction to render a judgment in, 'personam,. The publication gave jurisdiction only in rem,. Pennoyer v. Neff, 95 U. S. 714. Q. 88. A brought an action in a United States Court in Ohio, where the venue was laid, and complained against B for trespass in entering his close in West Virginia and cutting down trees and converting the lumber to his own use. Could the action be maintained ? A. No. Trespass upon land, like actions to recover the title, are local actions and can be brought only in the state where the land is situated, or county in a state court. Breaking the close was the gist of the case. Ellenwood v. Marietta &c, 158 U. S. 105. 420 LAW STUDENTS REVIEW Q. 89. Plaintiff sued a street car company "for damages caused by a door of one of defendant's street cars violently striking the car bumper and breaking the glass in the door and showering the broken glass on plaintiff, cutting the blood ves- sel and nerve in the back of plaintiff's right hand," and con- cluding with an allegation of damage, etc. Can he succeed in his action ? A. No. Not at common law, for he has not shown a cause of action. That is to say, he has disclosed an accident merely, but no duty (as of carrier to passenger) to himself, and no negli- gence of the company. Gillman v. Chicago, &c, 268 111. 305. Q. 90. A brought an action of debt in the detinet against B, as executor of C, on a promissory note C made in his lifetime. B demurred to the declaration on the ground that at common law debt can not be brought against an executor in a case where his testator would have been entitled to try the issue by wager of law. Is the demurrer good? A. Not in America. If it ever existed here, wager of law has been abolished by the constitutional guaranty of trial by jury. In England it has been abolished by statute. Childress v. Emory, 8 Wheat. 642, 675. Q. 91. In a proceeding (required by local law) to sell real estate to satisfy a judgment, defendant pleaded nul tiel record; and four other pleas. To two of the latter four a demurrer was sustained; and, over defendant's objection and exception, the court gave the case to the jury to find the issues under the remaining pleas. The jury found for the plaintiff. Can the judgment be sustained? A. No. The jury has absolutely no jurisdiction of a plea of nid tiel record. This can be tried only by the court, who tries it by inspection of the record. White v. Elkin, 6 Blackf. 123. Q. 92. A Spanish subject brought a suit in assumpsit on April 20, 1898, against S, a citizen of the United States, in an COMMON LAW ACTIONS AND PLEADINGS 421 American court. On April 25, 1898, the U. S. declared war upon Spain ; and afterwards S filed a plea of "alien enemy" in the suit, setting out the declaration of war and its continuance and concluding, "Wherefore he prays judgment whether the plaintiff ought to have or maintain his aforesaid action against him the defendant in this behalf," etc. Was the plea in proper form ? A. No. S should have pleaded "Further have or maintain," &c Plaintiff had a right to bring the suit. Le Bret v. Papillon, 4 East 502. Q. 93. A sued B in assumpsit on an account for $1,000. B pleaded in set off A's promissory note to him for $500, alleging that A before and at the time of the plea pleaded was and still is indebted to him, B, in the sum of $500. Is the plea good as to $500 of A's demand? A. No. The indebtedness should be alleged at the time ac- tion was brought. Set off can not be pleaded on claims accruing after suit brought. Evans v. Prosser, 3 T. E. 186. Q. 94. C brought trespass de bonis asportatis against D and declared for taking away timber from his land— put there for the construction of a house recently built. D demurred. Should the demurrer be sustained? A. Yes. The declaration is repugnant. The timber could not build a house already built. Nevil v. Soper, 1 Salic. 213. Q. 95. D had a contract to pave, curb and put a drain in a street. By the terms of the contract P, the city engineer, was to give D a monthly estimate of 75% for the work done and materials on the ground. P, in an estimate, omitted work on the drain and materials therefor. D filed a petition for mandamus to compel P to include the drain in the estimate. P, in his an- swer, set up that the drain and material therefor had been ren- dered useless to the city by reason of floods. The evidence on this point was conflicting. Was D entitled to the writ of mandamus asked ? 422 LAW STUDENTS REVIEW A. No. For two reasons. First, to entitle to mandamus the duty must be clear. Second, mandamus will not be granted to enforce a duty arising from contract, at all events not when there is any other remedy to enforce it. State v. Icke, 136 Wis. 583. Q. 96. The police commissioners of the city of S issued an order to the chief of police forbidding him and his subordinates to arrest or interfere with saloon keepers selling liquor on Sunday. This sale was forbidden by a state law, but the com- missioners assumed to act by authority of an election under a local option law. The election, however, was illegal. On the petition of A, the lower court issued a mandamus, commanding the police commissioners to vacate the order, and to cause the arrest of certain named persons for an acknowledged violation of the state law. On appeal, should the whole order be affirmed? A. No. The mandamus to compel the vacation of the order was proper. But as a ministerial body can not be controlled in detail, the orders for arrest were improper. The case was re- versed with directions to enter a proper order on amendment to the petition. State v. Francis, 95 Mo. 44. Q. 97. Petitioner was employed by the Commissioner of La- bor at an agreed remuneration of $25,000 to assist in the prose- cution of a suit in the United States district court for Massa- chusetts against a corporation for penalties under the immi- gration act. The suit was compromised and by consent of both parties the depositions in the case were sealed by order of the court to remain in the files subject to the right of either party to inspect. Petitioner was sued by parties who claimed a right to a large part of his fees. . To defend this suit successfully these depositions were important as evidence. The court denied his motion for access to them. He then brought an original proceeding in mandamus in the United States Supreme Court, setting out the facts and asking that the judge and clerk of the United States District Court for Massachusetts be directed to give him access to the depositions. Should the writ be granted ? ■ COMMON LAW ACTIONS AND PLEADINGS 423 A. Yes. Mandamus lies to a lower court. The order exclud- ing the public was proper; but one needing them as evidence had- a right to their use, whether a party to the suit or not. Ex parte Uppercu, 239 U. S. 435. Q. 98. Information in the nature of quo warranto. The information set out that the York Light and Heat Company has long since, to wit, on the first day of May, 1913, forfeited so much of its franchise as pertains to the purposes of supplying light, heat and power by the manufacture of gas and electricity in the town of Old Orchard, etc. ; and assigns as grounds that by the acceptance of its charter said company became charged with the duty of disposing of electric light ' and power at reasonable and equal rates to the public; and that since said date it has refused to perform its duty; but has abused its power and misused its privilege in that it has charged excessive and exorbitant rates and has discriminated between its patrons at Old Orchard; and is illegally and unlawfully preventing the occupation of the streets in said Old Orchard, to the great detriment of the public, and in violation of the trusts of it* charter. Is the foregoing demurrable as a statement of the abuse of franchise ? A. Demurrable. The information should set forth positively and with certainty the facts relied on. The foregoing allega- tions amount merely to conclusions of law. The facts from which these conclusions are drawn, should, as in any other common law pleading, be set forth, so that the defendant may know what he has to traverse. State v. York &c, 113 Maine 144. In a proceeding by information in the nature of a quo war- ranto, facts necessary to be alleged to show a neglect of duty must be set out with all the exactness of a pleading required in an action for a penalty. People v. Kingston, &c, 23 Wend. 193. CHAPTER XVI EQUITY JURISPRUDENCE AND PLEADING Question i. Complainant, the Earl of Derby, brought his bill in equity against the Duke of Athol, to have discovery con- cerning the general title to the Isle of Man, and to have relief as to the rectories and tithes within that island; and charged that although it was pretended that the bishop and clergy were evicted, yet this was by collusion; and that defendant made them an allowance equivalent to the profits. The Earl of Derby had granted the rectories and tithes to the same bishop and clergy, and had given as collateral security for the enjoyment thereof, certain lands in England; and the relief sought was by way of exonerating the security, which might be charged if the Earl's grant of the rectories and tithes should fail. Will the bill lie? Answer. The bill will lie. As to the general title, that might be determined in the law courts; but the relief prayed against the "collusive damnification" of the collateral security may, if properly presented, entitle complainant to be heard; and aside from that, complainant may apply to a court of equity for aid to discover his title, no right to discovery existing in a law court. Earl of Derby v. Duke of Athol, 1 Ves., Sr. 202. Q. 2. William Penn and Lord Baltimore entered into articles binding them respectively, to adjust certain differences as to the boundary line between Pennsylvania and Maryland, in accordance with the award of commissioners, and by certain prescribed methods, in that behalf appointed; and for making conveyances of the several parts from one to the other "in these boundaries." A bill in equity, for the specific performance and execution of these articles, was brought in England by Penn against his lordship. 425 426 LAW students' review Conceding that the court in England could not act in rem, how may it still take jurisdiction and determine the matter? A. Through the principle that having the parties within its jurisdiction, it may act in personam, that is, it may require the parties to obey its decree; and may punish them for contempt if they do not obey. Observe that the court, while decreeing specific performance, refused to decree that complainant and defendant should "quietly hold according to the articles"; this for the reason that it would be improper to have a decree in the English court for quiet enjoyment of lands in America, "which would occasion continual application to this court for contempt," &c. Penn v. Lord Baltimore, 1 Ves., Sr. 444, 455. Q. 3. A- trust is created by proper instrument, but no trus- tee is named in such instrument. In such an event will the trust fail? A. No. A trust is never permitted to fail for want of a trus- tee; and a court of equity will appoint a trustee to carry out and execute the trust. Adams v. Adams, 21 Wall. 185, 192. O. 4. All usurious contracts being declared void by the stat- ute against usury, how will equity treat such cases when brought before it (a) by the lender ? (b) by the borrower ? A. If the lender comes into a court of equity seeking to en- force such contract the court will refuse its assistance and repudiate the contract. If the borrower comes into equity seek- ing relief against the contract, the court will lend its aid only upon condition that he pay the lender what is really and bona fide due him, deducting the usurious interest; and if the com- plainant does not make such offer in his bill, the defendant may demur. 1 Story's Eq. Jur., § 301. Merwin Eq. and Eq. PL, § 120. Q. 5. A made a will devising and bequeathing all his prop- erty, real and personal, to B. A afterwards became a lunatic. The witnesses to the will were old and feeble, and B filed a bill to perpetuate their testimony, making the presumptive heirs EQUITY JURISPRUDENCE AND PLEADING 427 at law of A parties defendant. These heirs demurred to the bill. What should be the ruling of the court on the demurrer? A. Demurrer sustained. The complainant had no certain right to the testimony he desired to perpetuate. He had no interest which could be the subject of a suit. Story's Eq. PI., § 261. Q. 6. A died testate, bequeathing personal property to B, his •widow, with remainder to C, his son by a former wife. C "became apprehensive that B would sell the personal property and convert the proceeds to her own use. What proceeding should C bring ? A. In case C's apprehension be well founded, bill quia timet in equity, to require the widow to give bond for the future preser- vation and due delivery of the property. 1 Story's Eq. Jur., §§ 603, 604. Q. 7. A bill to remove cloud from title alleged that defen- dant was giving out and pretending that he was the owner, and entitled to the possession of the premises in question, and under such pretended claim was committing trespass, etc. Is the allegation as to the character of the cloud sought to be removed sufficient ? A. No. It does not show defendant's claim was based upon any matter of record which involved the title of complainant in doubt. Parker v. Shannon, 121 111. 452. Q. 8. A surviving partner gave partnership notes for a firm debt. He also gave a mortgage on an estate. A bill in equity to foreclose was brought against him, and the heirs and admin- istrators of his deceased partner. It turned out, on the hearing, that the estate on which the mortgage was given never belonged to the partnership. The lower court dismissed the bill as to the foreclosure ; but gave a decree for the amount of the notes. Is this correct? A. Error. As soon as it appeared that the mortgage was void, the court, sitting as a court of equity, lost jurisdiction (or rather, 428 LAW students' review it then appeared that such court had no jurisdiction) to proceed- further in the cause. It should have dismissed the bill, and left complainant to sue at law. A court of law would have full jurisdiction to give judgment on the notes. Dowell v. Mitchell, 105 U. S. 4S0. And as to a suit in equity on lost drafts, see Eogers v. Durant, 106 U. S. 644. However, equity jurisdiction seems to be denied, not as on a lost draft, but because there was no sufficient proof of the loss of the draft in 106 U. S. O. 9. A bill in chancery charges that defendant holds $1,000 in trust for complainant, and prays that defendant may be decreed to pay it over to complainant. Should a demurrer to the bill be sustained? A. Yes. There is a remedy at law. Courts of equity have no jurisdiction to give damages or compensation when these consti- tute the sole grounds of the bill. The mere allegation that the money is held in trust will not give a court of equity jurisdiction. 2 Story's Eq. Jur., §§ 794, 794a. Q. 10. Heller brought an action against Dillon to quiet title to lot number 10, in block number 33, in the city of Anthony, Harper county, Kansas. He could not procure service on Dillon in Kansas. Accordingly he made substituted service by publication. Motion to quash service, on the ground that the court could not thereby acquire jurisdiction in a suit to quiet title. How should the motion be decided ? A. While publication will not secure jurisdiction of the person of the defendant — nor will any process from a state court effect this — if defendant is outside the state, yet the "court has juris- diction of something." In this instance, the court has jurisdic- tion of the rem, that is, the land as distinguished from the personam. It should, however, be noted that a bill to quiet title was originally an action in personam; but that the statutes of various states hava provided that the action may bs in rem; i. c. against the land. Dillon v. Heller, 39 Kans. 599.- O. 11. A husband on March 29, 1899, brought suit in North EQUITY JURISPRUDENCE AND PLEADING 429 Dakota for divorce from his wife. The wife was served in New Jersey, by complaint and summons, April 4th. She still lived in New Jersey; and her husband had had his domicil there until the preceding month of December. He alleged in his bill that he had lived in North Dakota three months ; but this the wife, who filed her bill in New Jersey to restrain the prose- cution of his suit in North Dakota, alleged was false. Is the wife entitled to enjoin the husband from proceeding with his suit ? A. Yes. While the Dakota court has obtained no jurisdiction over the person of the wife; still, if no defense be made, it probably will proceed to decree affecting her status as a married woman. It is a hardship to require her to attend in Dakota and defend; and it will be no hardship to require the husband to show, if he can, in the New Jersey court that he has a bona fide domicil in Dakota. Kempson v. Kempson, 58 N. J. Eq. 94. Q. 12. Complainant, a milliner, filed a bill against the owner and original lessee of the premises in question to reform a contract for a leasing for eight years, and for specific perform- ance thereof, as reformed. It appeared that she had contracted, not with one Cumston, who was the owner of the premises, but with the Messrs. Ordway, wholesale merchants, from whom she purchased millinery. It further appeared that Cumston, while he had leased the premises for eight years to the Ord- ways, did not know of their arrangement with complainant, was not bound thereby, and had rightfully accepted from the Ord- ways a surrender of the lease. Therefore, a decree for specific performance would have been inoperative; though this the complainant did not know when she brought her bill. Has a court of equity, in lieu of granting her specific per- formance, jurisdiction to decree money damages against the Ordways in compensation? A. Yes. When a defendant, pending suit, disenables himself so that he can not comply with decree for specific performance; or, in this country, even where defendant's disability arose be- fore suit brought, but after he had made the agreement in 43° LAW STUDENTS REVIEW question, the court will retain the bill and determine and decree money compensation, provided complainant brings the bill in good faith, supposing himself entitled to the specific relief sought. And this is true though the relief he actually gets is such as might have been recovered at law. Milkman v. Ordway, 106 Mass. 232. As to "good faith" observe 'that where defendant maintained a dam across a river, thereby flowing plaintiff's land, the court in denying an injunction, took note that plaintiff had bought the lands in question not to cultivate or for other use, but to bring defendant to term in respect to other lands which he claimed were injured by defendant's dam. Bassett v. Salisbury &c, 47 N. H. 426. Q. 13. An attorney representing five creditors colluded with three of them, and fraudulently bought in at execution sale, for $625, property of the debtor which was worth much more, and which he sold shortly thereafter for $3,600. He recompensed the two innocent creditors only to the extent of their share of $625. Among the three colluding creditors he distributed the balance. Can the two defrauded creditors sue in equity? Or must they sue at law ? A. They may succeed at law; and still while the general prin- ciple of course is that a remedy at law defeats equity jurisdic- tion, yet in matters of account, and in instances where a multi- plicity of suits may be thereby avoided, equity will take jurisdiction. Hawley v. Cramer, 4 Cow. 717, 727. Merwin Eq. and Eq. PL, § 107. Q. 14. In and previous to 1829 appellant and another had a joint account at a bank kept by defendant Hill in Stourbridge. In April of that year, the sum of £6,117 was transferred from the joint account to an individual account then opened for appellant. Hill agreed to allow £3 per cent, on it. For five years thereafter, when the joint account was closed, appellant's share of certain profits was paid by checks on the joint ac- count, which checks were, defendant alleged, paid in cash or by bills drawn on London. None of them were entered in ap- EQUITY JURISPRUDENCE AND PLEADING 43I pellant's separate account. In that account, the only items were the above credits, and two debit items of £1,700 and £2,000 each, both for payments to or in behalf of appellant. In 1830 interest was also credited, up to December, 1831, but not thereafter. In 1838 appellant filed his bill against Hill for an account, and the vice-chancellor entertained the bill. The chancellor, Lord Lyndhurst, reversed the case and dismissed the bill. Which ruling is right? A. The chancellor's. Appellant's remedy was by way of action at law for money had and received. It was urged that it was the duty of defendant bank to calculate and credit in- terest from time to time, and to preserve vouchers, and that these duties "constituted a relation more complex thqji that of a mere debtor and creditor," and that an accounting in equity would lie. But it was held that there is here no such account as would induce a court of equity to maintain jurisdiction as if the question had turned upon an account so complicated and long as to make it inconvenient to have it taken at law. Held also that when the relation of banker and customer exists the money deposited becomes the money of the bank to do with as it pleases; the bank is guilty of no breach of trust in employing it, and is not bound as an agent would be bound, to keep it as the property of his principal. Foley v. Hill, 2 H. L. Cas. 28. Q. 15. A mortgagee, holding a mortgage for $7,000, repre- sented to a purchaser of the mortgage that he had sold the mortgaged premises to the mortgagor for about $50,000 ; that it was first rate property; that the land was good, and the timber thereon valuable ; that the mortgage was a good mort- gage and the interest thereon had been paid regularly; that the land would be more valuable after the timber was cleared off. These representations were false; but the purchaser relied on them, and accepted the mortgage at $7,000 to apply on the purchase money of certain property the purchaser was selling to mortgagee; and made a conveyance thereof to mortgagee. Do these statements of the mortgagee amount merely to 432 LAW STUDENTS REVIEW "puffing" the value of the mortgage — or is it deceit ; and what is the remedy of such purchaser, in case the misrepresentations amount to deceit ? A. This amounts to more than mere commendation of the mortgage. The misrepresentation amounts to deceit; and inas- much as there has been a conveyance induced by the deceit, the purchaser may file a bill in equity to have such conveyance set aside. Perkins v. Partridge, 30 N. J. Eq. 82. Q. 16. M had given a bond and power of attorney to secure an indebtedness. Judgment had been entered, but not executed. The bond and power of attorney came into the possession of L, the personal representative of the original obligee. For an expressed consideration of 10,000 rupees, L had many years before received some property in India from the father of M ; but except as to 1,200 rupees, the balance was purely a gift. M was about to marry. M's father told L that he was advised that if L did not abandon the claim on the bond, he, the father, might put an end to the conveyance of the property in India, as being a mere voluntary conveyance without consideration. L gave assurance that she would not enforce the bond if the father would abstain from interfering with the conveyance of the property in India ; and other evidence was given that she had expressed an intention never to accept the bond money of M. A decree was entered in equity releasing M from the bond, and requiring the power of attorney to be given up and can- celled. Is such a decree proper ? A. Improper. L possessed a legal right; and even though she made representations of her intention to abandon it; and even though the parties to whom these representations were made may have relied and acted upon and entered into irrevocable con- tracts ; yet this will not constitute an equity. To raise an equity, misrepresentations must be as to existing facts, and not as to a mere intention. Jordan v. Money, 5 H. L. Cas. 185. EQUITY JURISPRUDENCE AND PLEADING 433 Q. 17. Bill to rescind a contract made in New York for the purchase of land in Virginia. Assume that the seller made misrepresentations as to the existence of a gold mine on the land ; and that the seller knows the purchaser has not seen the land; but is relying on the statement of the seller. Assume further, however, that the seller does nothing to prevent the purchaser from going and seeing the land. Will a court of equity apply the doctrine of caveat emptor; or will it take jurisdiction to rescind the contract? A. Where property is sold at a distance, the representations of the seller in effect amount to a guarantee, at least to the extent that the seller is bound to make them good. If therefore the misrepresentations are false; and if they are material, and concern facts said to exist, and are relied upon by the buyer, a court of equity will decree a rescission of the contract. Smith v. Richards, 13 Peters, 26. And thus where a purchaser, colluding with a real estate broker to conceal material facts from his principal, has taken advantage of the fiduciary relation which the broker bears to his principal, and has thereby obtained an unconscionable contract, a court of equity will rescind the contract. Young v. Hughes, 32 N. J. Eq. 372. Q. 18. Knowing of a mine upon the land of B, of which he also knows that B was ignorant, A purchased the land from B at the price of agricultural land, without disclosing the fact of the existence of the mine. B, upon A's opening the mine, de- sires to file a bill in chancery against A for the value of the mine. Can he recover? A. No. B would not be entitled to relief; this for the reason that A was not bound to inform him as to the existence of the mine. To invoke the aid of equity you must show either the mis- take of both parties, or a mistake of one party, and some circum- stances of fraud connected with the concealment on the part of the other. Fox v. Mackreth, 2 Brown's Ch. Rep. 400, 420. Laidlaw v. Organ, 2 Wheat 178, 193. 28— L. S. Rev. 434 LAW STUDENTS REVIEW Q. 19. A desired to marry the daughter of E. B declined to consent because A was in debt. C thereupon gave to B a bond for the amount of A's debts, and A secretly gave C a counter- bond to indemnify him against the first. The marriage pro- ceeded on the faith of the extinguishment of the debt. Some time afterward B brought suit upon the bond of C. C there- upon set up the counter-bond of A as a defense. B filed a bill to enjoin suit upon the counter-bond. What should be the holding of the court of equity? A. Counter-bond treated as a fraud upon B, and suit on the same perpetually enjoined. 1 Story Eq. Jur. § 269. Q. 20. A was intending to convey certain lands direct to C when B interfered and advised A not to convey direct to C but to convey to him (B), promising if A would do so, he (B) would hold the land in trust for C. Subsequently B refused to recognize the trust and C filed a bill to compel B to convey. Should the bill be sustained? A. The bill should be sustained, for the reason that B ob- tained title by fraud upon A, and also in accordance with the maxim that "equity will regard that as done which ought to be done." Fischbeck v. Gross, 112 111. 208. Q. 21. A, a minor, was bound as an apprentice to B for the term of five years, A's guardian paying for such apprentice- ship the sum of $500. During the first year, B became a bank- rupt. What remedy has A and under what equitable principle can he obtain it ? A. The premium will be apportioned on the ground of ac- cident. 1 Story Eq. Jur. § 93. Q. 22. Explain the following maxims : (a) Equity follows the law. (b) First in time, first in right. (c) Equality is equity. EQUITY JURISPRUDENCE AND PLEADING 435 A. (a) It may mean that equity adopts and follows the rule of law in all cases to which those rules may, in terms be applic- able; or it may mean that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law. It is not universally applicable in either sense. There are many exceptions. Statutes of limitation, in terms, apply to courts of law ; yet courts of equity will generally apply them. The law regulates descents, and, in general, equity will follow its rules j but may, on equitable principles, abandon them. (b) Where the equities are, in other respects, equal, pre- cedency in time will, under many circumstances, give a priority in right. Equitable incumbrances, for instance, must be paid according to their precedence in time. (c) Out of legal assets, claims must be paid according to their dignity or priority of right at law. Out of equitable assets all debts must be paid pro rata. 1 Story Eq. Jur., §§ 64, 64a, 64d, 64f. Merwin Eq. and Eq. PI., §§ 110-118, 125-129. O. 23. A promissory note of $500 signed by one Pritchard, and by immediate indorsement transferred to plaintiff, was sued on at law. Assuming the general rule to be that where a writing is merely the evidence of a contract, its loss or destruc- tion does not destroy the cause of action; state what the law requires or permits when the party answerable upon such "con- tract (as a negotiable note) is sued, and the note is lost. A. This is an instance where the party answerable, upon performing the contract, is entitled to have the contract — that is the note — delivered up to him for his security; or to enable him to enforce his rights under it, when he is called upon to perform it. Acordingly an action can not be maintained unless such party's rights can be fully secured by a bond of indemnity, or other sufficient security. While this will protect the maker; yet where an action is brought against an indorser, he not only needs the note so that he will not be again sued on it by an innocent holder; but he also needs it to have recourse over against the maker. Therefore, in order that an indorser may be protected, plaintiff should file a bill in equity, so that the rights and claims and protection of all parties in interest may be presented, enforced and pro- tected. Tuttle v. Standish, 4 Allen 481. 436 LAW students' review Q. 24. Petitioner purchased from respondent a tract of land for a consideration which covered a right-of-way, and which would not have been paid for the land alone. Assume that there had been a right-of-way appurtenant to the land sold: but that by operation of law it had ceased ; and assume further that respondent, on selling to petitioner, represented that such a way still existed, and would pass under the clause in the deed covering privileges and appurtenances. Suppose then that the petitioner relies on this assurance, and takes a deed; but that both parties are mistaken, and that the right-of-way does not so pass. What, if any, remedy has the petitioner? A. He may sustain a bill in equity to correct the deed so as to make it embrace the right-of-way over adjoining land of grantor. This is a mistake in fact ; not a mistake as to the legal effect of the deed. If the right-of-way had been in existence it would have passed under the deed. There was no mistake in law. The mistake consisted in both parties supposing that the right-of- way existed when in fact none did exist. Blakeman v. Blakeman, 39 Conn. 320. Q. 25. Suppose in the previous question that the grantor had assured the grantee that distances given on a plat whereby sale was made would control ; that as shown on the plat the boun- daries of the land included the right-of-way in question; but in point of law the plat did not control ; on the contrary a natural boundary controlled and overcame the lines as shown on the plat, so that the right-of-way was not included within the legal description. In this instance, assuming further that both parties had the same means of knowledge, would the error be corrected ? A. No. Here is a mistake of law. The buyer misapprehended the rule of law that natural boundaries or monuments will con- trol where in conflict with lines laid down on a plat. The doctrine therefore applies that a mistake of law will not be relieved against. Erkens v. Nicolin, 39 Minn. 461. EQUITY JURISPRUDENCE AND PLEADING 437 Q. 26. Plaintiff was a lawyer. Defendant had obtained judg- ment against him in the Marine Court of the City of New York. Plaintiff took the case to the Court of Common Pleas, which court reversed the judgment; but later in another case the Court of Appeals held that the Common Pleas Court had no jurisdiction in a case from the Marine Court until such case had first been determined by the general term of the Marine Court. Defendant having issued an execution on his judgment in the Marine Court, plaintiff brought a bill in equity and ob- tained a perpetual injunction against proceeding under the judgment ; this on the ground that as above indicated the judg- ment in the Marine Court was erroneous, and that the parties had labored under the mutual mistake in the matter of the review of the Court of Common Pleas. Should the injunction stand? A. No. A later decision of the court of review interpreting the law differently from what it had been declared to be when a settlement between parties takes place, can not have a retroactive effect, and overturn such settlement. Here, although plaintiff was misled into his mistake of law by an erroneous decision of the court of review — still even this will not excuse his ignorance of the law; and he may not correct errors of law by way of process for injunction in equity. Jacobs v. Morange, 47 N. Y. 57. Q. 27. Plaintiff, a purchaser, filed a bill in equity for relief from the seller of land. His grounds were fraud and mistake in the following particulars : (a) That he was induced to agree orally to maintain a fence, and to consent to a provision therefor in the deed, by a false representation of seller that a neighbor was bound to maintain the whole fence on another side of the property. (b) That he turned over bonds at par to the seller on oral promise of defendant to pay him back a premium which plain- tiff said they were worth. (c) That certain land was omitted from the deed by fraud or mistake. Plaintiff prayed that he be released from the proviso regard- 438 LAW students' review ing the fence ; that defendant pay the premium on the bonds •, and that he convey to plaintiff the land omitted. The answer denied misrepresentations and pleaded the stat- ute of frauds. Discuss plaintiff's right to recover. A. (a) The statute of frauds, unless defendant is estopped from relying on it, is a sufficient answer here; and there is no showing that defendant is so estopped. (b) For the premium on the bonds, if entitled thereto, com- plainant has adequate remedy at law. (c) The statute of frauds again is a defense here. Such statute is not a mere rule of evidence ; it constitutes a limitation of judicial authority to afford a remedy. The provision that contracts for the sale of lands, in order to be enforced by judicia' proceedings, must be in writing signed by the party to be charged, can not be dispensed with merely because the lack of such writ- ing is occasioned by accident, mistake or fraudulent representa- tions, unless some other ingredient enters into the case to give rise to equities stronger than those which stand upon the oral contract alone. The equities must be such as estop the party sought to be charged from setting up the statute; and this is not shown to be the situation in the above case. Note, however, that, if the bill be supported by proofs, plain - tiff might be entitled to a rescission of the contract. But he does not ask for this. Glass v. Hulbert, 102 Mass. 24. Q. 28. The defendant, a married woman, being seized of certain real estate to her sole and separate use, quit-claimed the same to plaintiff. She did this in consideration of plain- tiff's agreement to support her and her husband during their lives ; and, to secure performance, took back a mortgage. De- fendant's husband assented, and it was understood that he would join in the conveyance. But the scrivener who prepared the deed said this was unnecessary. He was mistaken, and the deed was executed by defendant alone. Plaintiff entered into possession, supported defendant and her husband, and after the death of the husband, offered to support defendant; but she refused to allow him to occupy the premises, or to give him a deed, and brought suit to recover the value of crops produced by him. EQUITY JURISPRUDENCE AND PLEADING 439 Plaintiff files a bill to compel her to execute a valid con- veyance. Will it lie? A. No. Her deed at common law was absolutely void. The husband's death, though it enables her to make a valid deed if she chooses, does not render binding a contract made while her disability as femme covert continued. She made no valid con- veyance, and can not be required to make one. Townsley v. Chapin, 12 Allen 476. Q. 29. Two persons were, under the will of Vinnecombe, charged as trustees with a sum of stock invested for the benefi- ciaries, and bound to have it forthcoming at all times. The beneficiaries, having doubts as to the safety of the fund, brought a bill whereunder the fund was brought into court, and became vested in the Accountant General, for the purposes of the trust mentioned, which we will call the first trust. It appeared, however, that the trustees wrongfully converted other trusts ("second trust") property, in discharging their liability to bring the first trust fund into court, and brought in funds belonging to other beneficiaries. Upon petition of the beneficiaries of the second trust, will they be credited with the fund in question? A. No. As soon as the fund came into court the transfer operated to vest beneficial interest in the cestuis que trustent of the first trust. This of course works a hardship on the bene- ficiaries of the second trust; but if it be not the law, "I do not see," says Turner, L. J., "how any person could be safe in get- ting funds out of court which had been paid in for his benefit, without having made inquiry to whom the fund originally be- longed." Thorndike v. Hunt, 3 D. G. & J. 563, 571. Q. 30. An owner of a "corner lot" in Iowa City brought a bill in equity to enjoin a proposed assessment. He admitted that a certain sum would be due, but he complained that under the rule of assessment as fixed by the city council, he had been assessed too much, and prayed, as to himself, to enjoin the whole assessment. Assume his facts to be properly pleaded and to sustain his allegations, should the injunction issue on the above statement? 440 LAW STUDENTS REVIEW A. No. He admits a certain sum to be due, even on his owr : theory of the method to be followed in spreading the assessment. Before he can obtain any relief with reference to over-assess- ment, if any, he must pay, or offer to pay, the amount he admits would be due on his own statement of the case. Morrison v. Hershire, 32 Iowa. 271. Q. 31. Daggett and Vischer owned certain real estate, im- proved with a flour mill and storehouse, in the City of Stockton. They agreed that they would sell, and they did sell, to one Rankin their respective undivided halves, for $2,500 each; Rankin was to execute to each of them a mortgage for $2,500, secured by land in Woodbridge, to which Rankin was to remove the mill. Rankin carried out his part of the agreement, removed the mill and executed the mortgage ; Vischer received his note and mortgage first, and recorded his mortgage before Daggett's note and mortgage were received. When Rankin failed to pay the interest on the Daggett note, Daggett foreclosed, making Vis- cher a party. Vischer pleaded that his was the first lien, and the lower court sustained him. Is the lower court correct in this ? A. Incorrect. Vischer, when he contracted with Rankin, knew of Daggett's contract with Rankin, and that it was one of a class which a court of equity is competent to enforce, an agreement for a mortgage amounting in equity to a specific lien on the land. Equity, assuming that to be done which should be done, regards Daggett's mortgage as of equal standing with Vischer's. This is not an instance of "vigilance," or being "prior in time." Daggett might assume that Vischer should and would regard his, Daggett's, rights. Daggett v. Rankin, 31 Cal. 321. Q. 32. Testator bequeathed a fund to be at the disposal of his widow, "a part" to a charitable endowment for the poor of Offley, remainder to be at her disposal among testator's relatives, as the widow might direct. EQUITY JURISPRUDENCE AND PLEADING 44I The widow failed to direct as to any apportionment either as to charity, or as to relatives of testator. Assuming that the bequest is good, what disposition will a court of equity make? A. It will divide the fund into two parts — equality is equity. The half the widow might have appointed to any, even distant, relatives of the testator, equity will distribute among such of his relatives as are capable of taking under the statute of dis- tribution (descent). Salusbury v. Denton, 3 Kay & J. 529. Merwin Eq. and Eq. PL, § 125. Q. 33. One Dixon, vendor of land, sought to enforce a vendor's lien against his vendee, Kirkpatrick ; and also against one Mrs. Hume, who purchased from Kirkpatrick. The facts were these: In 1874 Dixon conveyed to Kirkpatrick, receiving in payment part cash, the balance in a note of hand due in three years, with no security other than his vendor's lien. Before the maturity of this note, Kirkpatrick sold and attempted to convey to Mrs. Hume; but through inadvertence the deed was defective, and she got only an equitable title. After Dixon brought his suit to enforce his lien, the defect in Mrs. Hume's deed was dis- covered and cured. The District Court found for Dixon, on the theory that Mrs. Hume got only an equitable title, and when equities are equal, the first in time will prevail. Is this doctrine applicable here ? A. Inapplicable. It is only where the relative characters of equities are equal that the earlier will prevail. Here Dixon had so far as appears a secret lien. The lower court should have taken into consideration all the circumstances; and if Mrs. Hume's equity was superior in merit, it should prevail, though junior in date. Hume v. Dixon, 37 Ohio St. 66. Q. 34. Plaintiff Rees obtained judgment against the City of Watertown upon certain bonds of the city. He sued out a man- damus, an alias mandamus, and a pluries mandamus, command- ing the city councillors to levy a tax to pay his judgment. 442 LAW STUDENTS REVIEW Enough councillors in one instance resigned to leave no quo- rum ; and in various ways the proceedings came to naught. Then he filed his bill in equity, setting out these facts, and praying that a decree might be made subjecting the property of the citizens of the city to the payment of his judgment, and that the marshal of the district might be empowered to seize and sell so much of such property as might be necessary to pay the debt, and to turn the proceeds over to plaintiff. The lower court dismissed his bill. Should this dismissal be sustained ? A. Yes. Plaintiff's remedy (though it availed him little) is mandamus; "repeated as often as the occasion requires." Not only has he this remedy at law, but the process he seeks is in- capable of operating with justice. Suppose a Watertown citizen owns a block of buildings worth $20,000, upon no principle of law could the whole of plaintiff's debt be collected from that property. It is liable only for its proportionate share. Merely because there is a right, but no remedy at law, equity can not create a remedy in violation of law. Once settlers disguised as Indians resisted legal process successfully; but this did not give equity jurisdiction. Eees v. Watertown, 19 Wall. 107, 119, 124. Q. 35. S, being threatened with a decree for alimony, con- veyed his real estate to his son,.B, a minor, for an expressed consideration of $3,000; but in point of fact, no money was paid therefor. The decree for alimony was rendered, and the conveyance set aside as fraudulent as to such decree. B then, while still a minor, reconveyed to S with an agreement that S should sell the property and discharge the lien for alimony. S then sold the land to W, who knew all the circumstances, for $3,800, which was paid in cash. The alimony was paid, and a mortgage for $500 was also paid. W took and retained posses- sion of the land. Soon thereafter B became of age and brought ejectment against W. Should B recover? A. No. The conveyance from S to B, being voluntary, was void as to the creditors of S. B was therefore a trustee for those •creditors and could have been compelled to convey in pursuance EQUITY JURISPRUDENCE AND PLEADING 443 of the trust. His conveyance back to S operated merely to re- lieve him from that trust, and could not be retracted by him. Starr v. Wright, 20 Ohio St. 97. Q. 36. Distinguish between resulting trusts and construc- tive trusts. A. Eesulting trusts ; those which are implied by law, in con- formity with the presumed intent of the parties, from the na- ture and character of their transactions, usually arising in two principal cases: (1) Where only a part of the trust is declared, and the result remains undisposed of; (2) where property is directed to be sold for certain purposes, and the proceeds are more than sufficient for the purposes of the trust. Constructive trusts; those which arise in favor of persons equitably entitled to property wrongfully obtained or withheld "by another. They are not trusts, technically, since no relation of confidence exists, and the person entitled seeks to enforce an equitable right, rather than to secure an equitable estate. Tiedeman Real Prop. (3rd ed.), §§ 364, 365. 1 Tiffany Real Prop, §§ 93, 94. Merwin Eq. and Eq. PL, §§ 222-224. Q. 37. A voluntarily conveyed lands to B, the latter taking no means to procure the conveyance, but simply accepting it, and verbally promising A to hold the property in trust for C. Subsequently B refuses to convey to C, and the latter files a bill to enforce the execution of the trust. B interposes the statute of frauds. Should the defense prevail ? A. The defense should prevail. Equity will not enforce a parol promise under such a state of facts. Lantry v. Lantry, 51 111. 458. Q. 38. A entrusts B with money with which to purchase land. B buys the land and takes the title in his own name. A files a bill in chancery to compel B to convey to him this land or to have the chancellor decree that B holds the title in trust for A. B defends by pleading the statute of frauds, that is, that the contract or transaction between himself and A was not evi- denced by any writing or memorandum. What say you to this defense? 444 LAW STUDENTS REVIEW A. The defense can not avail, for the reason that tii3 trust arose by operation of law, and was a resulting or implied trust, with reference to which the statute of frauds does not apply. Merwin Eq. and Eq. PL, § 225. Q. 39. A made a deed to B, his son, upon certain trusts for himself, and after his decease for his wife and her children by him. No trust was declared in the surplus, which after the death of A and after all the trusts were executed, amounted to $10,000. Who took this surplus ? A. B, the son, who took the legal title with no trusts to execute. 2 Story's Eq. Jur. (13th ed.), § 1200 (a). Q. 40. Distinguish between an express trust and an implied trust, and state how each may be created. A. An express trust is one created by words of a person having dominion over the property, evincing an intention to create a trust. (2) An implied trust is one which arises by operation of law, without any declaration of trust. The distinction, generally, is that an express trust is created by acts of the parties, usually expressed by written instrument; while an implied or resulting trust arises by operation of law. See Merwin Eq. and Eq. PI. § 149. Q. 41. Testator provides by will: "I will to be divided among the Sisters of Charity, by Wil- liam Toomey, William Moran, and Rev. H. V. Malone, five hundred dollars." Assume that Sisters of Charity are general throughout the state and country, and that they constitute a charitable sister- hood of the Catholic church. Is the bequest good ? A. Void for uncertainty. How are the trustees to execute it? There is no limitation as to locality, state, or nation; nor does the will give William Moran and his associates (trustees) power of selection. Moran v. Moran, 104 Iowa 216. Q. 42. Suppose that the foregoing bequest had been to "such EQUITY JURISPRUDENCE AND PLEADING 445 Catholic charities in the City of New York as my executors may select"; then would the bequest be good? A. Yes. Here the class of beneficiaries beside being specially designated is confined to the limits of a single city, and is readily ascertainable. Power v. Cassidy, 79 N. Y. 602. But a similar bequest involving selection by executors among all permanent incorporated charitable societies of the State of New York or the State of Maryland held void. Prichard v. Thompson, 95 N. Y. 76. Q. 43. Homans was a bankrupt. He had transferred a cer- tain note for $7,000 secured by his mortgage to the defendant Tullis, in apparent violation of the provisions of the bankruptcy act; and his trustees in bankruptcy sought by bill in equity to compel an assignment of the note and mortgage to them. It appears that in August, 1869, and for two years before, Homans had on several occasions purchased United States bonds for Tullis ; that these bonds were left with Homans for safekeeping, enclosed in envelopes, kept in a package by them- selves, placed in a separate box, and marked with the name of Tullis ; that about eighteen months before Homans failed, Tullis had permitted Homans to use $20,000 of the bonds thus pur- chased upon condition of substituting therefor an equivalent amount in bills receivable and of agreeing to replace the bonds when called for. These bonds were replaced; but in March, 1869, Homans took and used without 'permission, $6,000 of the bonds, substituting an equivalent amount in bills receivable; and in April, 1869, for these bills receivable he substituted the note and mortgage for $7,000 in question. Tullis, upon being informed of this about September 1869, signified his acceptance of the substitution, and directed pro- ceedings to be begun to foreclose the mortgage. Under these circumstances may the trustees follow and re- cover this $7,000 note ? A. They can recover, if at all, not by reason of any prefer- ence to a creditor in violation of the bankruptcy act; but only upon the ground that title to the note and mortgage never passed from the bankrupt. This must be based upon the fact that the 446 LAW students' review ratification of the unauthorized transaction was not made until after the rights of the trustees attached; or else on the ground that the note and mortgage never became subject in the hands of the bankrupt to the claim of Tullis as an investment of Tullis's property, for the reason that the bonds appropriated were not first sold, and the proceeds of them used in the purchase of the note and mortgage. 1. The rights of the trustees do not relate back so as to avoid the effect of the ratification of Tullis. This ratification validates the act of Homans in withdrawing the bonds and substituting his notes. 2. Homans held Tullis's bonds in a fiduciary capacity. It was his business to keep them safely. He misapplied them; but the substitute note which he put in their place clearly constitutes Tullis's bonds in a new form ; and it is subject when found in its new form to Tullis's rights. Observing, however, that as it is only $6,000 (the last misap- propriation of bonds) that is so traceable, equity will decree that, of the $7,000 note, $6,000 belongs to Tullis; the other $1,000 to the trustees. Cook v. Tullis, 18 Wall. 332. Q. 44. Suppose in the foregoing question instead of bonds, the stock of the Gas-Light Company, a corporation had been held, which was transferable only on the books of the corpora- tion ; and that the corporation had notice of Tullis's rights ; but that the stock is endorsed in blank, and demand of the corpora- tion is made to transfer the same on its books ; and that acced- ing such demand, and without any profit to itself, the corpora- tion does make the transfer. May the corporation be held as for a breach of trust? Or must the party injured look solely to the person who caused the breach of trust and the injury? A. The corporation is bound to use due and proper diligence to protect all parties interested in its stock from unauthorized transfers. If, therefore, with knowledge of the rights of a bene- ficiary in its stock, a corporation aids the trustee holding the same to convert it by change and re-issue of stock certificates and transfer on the books of the corporation, the corporation is EQUITY JURISPRUDENCE AND PLEADING 447 itself guilty of a breach of trust, and is liable for such damages as may be thereby occasioned. Caulkins v. Gas Light, &c, 85 Tenn. 683. Q. 45. An aged, infirm woman, Polly Rupp, was the owner of certain lands. She conveyed them by deed of trust to one Rath, to pay her several creditors sums due them (supposed to amount to about $30), to furnish support and maintenance to Polly for her natural life, and then upon further trust, wherein, while Rath took no beneficial interest, his wife and step-daughter had a beneficial interest. Plaintiff, Shryock, brought an action in ejectment, on the ground that Rath was indebted at the time the deed was made, and subsequently became insolvent; and that the provision in the deed to the wife and step-daughter of Rath was inserted in the deed for the purpose of defrauding Rath's creditors. Should Shryock succeed ? A. No. This is a simple and direct trust whereunder no beneficial interest is to vest in the trustees which his creditors can touch. While of course a debtor can not convey property in trust for the use of his family to the prejudice of creditors — yet this never was Eath's property, nor was any part of his estate taken to purchase it. His creditors could not be delayed or hin- dered by any use Polly might make of her estate. They had all the remedies against their debtor after the trust which they had before. Mere insolvency of the trustee will not preclude him from being constituted as trustee. Shryock v. Waggoner, 28 Pa. 430. Q. 46. One Ebbinghaus as trustee for the German Calvinist Society filed a bill alleging that he was trustee and legal owner of lot 9 in square 80 in the City of Washington for the use and benefit of such society, and was ready to pay the rents, issues and profits into court to be disposed of as the court might direct, and faithfully to perform his duties as trustee; that he brought the bill to have the court decide who were the legal beneficiaries under the trust. The bill further alleged that defendant Killian and others were in possession of the tract, and claimed, as trustees of the German Evangelical Concordia 448 LAW students' review Church of the City of Washington, to be the legal beneficiaries and entitled to such rents ; and had already received and con- verted to their own use a large sum of money, being the rents of the property in question, without the consent of complain- ant. The bill also made sundry other persons defendants as claiming to be the legal successors of the German Calvinist Society, and stated that these persons were "expected to sue the complainant for the recovery of their supposed rights." There was also a prayer for an accounting of the rents on the part of the German Evangelical Concordia Church representa- tives. Killian denied the trust and set up adverse title. The Supreme Court of the District of Columbia entered a decree in favor of plaintiff. Can decree be sustained? A. No. Decree unsustainable. The fundamental issue here is whether Ebbinghaus or Killian is entitled to the land in question. It was sought to sustain the bill as a bill of inter- pleader; but this is unwarrantable; for the complainant here claims the property; and a bill of interpleader will not lie unless the party filing the bill disclaims title in himself, and simply asks the court to determine to whom the property, whether real or personal, belongs. The fatal objection to Ebbinghaus's bill is that under the guise of a bill in equity in the nature of a bill of interpleader, he is endeavoring to prosecute an action in ejectment, and get the property away from the defendant Killian. Killian v. Ebbinghaus, 110 U. S. 568. Q. 47. A creditor had judgment against his debtor. The debtor had an interest in rights in patents for inventions. Such rights are not subject to execution and sale at law. How shall the creditor make them available? A. Sue out an execution on his judgment and allow it to be returned nulla bona. Then file a bill in equity to enjoin debtor from assigning his patents rights; praying that the patents be sold under the direction of the court of equity; that debtor be required to execute such assignment as may be necessary to vest title in the purchaser or purchasers in conformity with the pat- ent laws ; and that the proceeds of the sale be applied to the pay- ment of the judgment debt. Ager v. Murray, 105 U. S. 126. EQUITY JURISPRUDENCE AND PLEADING 449 (The foregoing is the simplest form of a "creditor's bill." The judgment at law, execution and return of nulla bona, prove that the creditor can get nothing at law. This entitles him to come into equity, and by operating in personam against the debtor, to make him discover and assign any property he has, not subject to exemption, to apply on the payment of his debts.) Judgment and fruitless execution amount, however, only to evidence that legal remedies have been exhausted; but they are not the only means of proof. Accordingly it has been held that where it is shown by the bill that the debtor is insolvent, the issuing of an execution is not a necessary prerequisite to equit- able interference; likewise, that a creditor may, to set aside fraudulent conveyances of his debtor made for the purpose of hindering and delaying creditors, come into equity to set aside such conveyances without having first obtained judgment at law. Case v. Beauregard, 101 U. S. 688. O. 48. Plaintiff, Lynch, was a sub-lessee under a lease as- sented to by the predecessor of defendant in the title, and bind- ing on the defendant, Union Institution for Savings, and an- other. At the time of plaintiff's filing a bill in equity to enjoin defendant from evicting him, his term had three years to run. Upon hearing, the evidence tended to show that to restore plaintiff's premises, which in violation of his rights had been altered by defendant, to their former condition, would involve material and extensive changes ; would require the Institution for Savings to remove a vault inclosed in masonry, thus leaving its vault and safe in the banking room above unsupported; that this would cost about $3,500, and would compel the insti- tution to find some other place of deposit for its valuables while the work was going on. The portion of plaintiff's premises occupied by the vault was only a small part, about 12x13 ^ eet in area, of plaintiff's entire premises. The defendant Institution asked for a decree which would allow it to retain this small space — to build a brick wall in- closing vault — to give the plaintiff a space larger than this in the front part of the basement adjoining the portion covered by his lease, and consented that the decree might require it to restore the remainder of plaintiff's premises as far as possible 29— L. S. Rev. 4SO LAW STUDENTS REVIEW to their original condition. Plaintiff objected. The lower court made a decree requiring the removal of the vault, and the case went to the Supreme Court to determine whether, assuming that the plaintiff's rights had been violated by the Institution for Savings, it might be permitted to retain the small space occupied by its vault and to restore plaintiff, etc., as above, or whether the lower court should be sustained, the masonry pulled out, the vault removed, and the plaintiff re-possessed of his 12x13 feet. Assume that while the defendant had trespassed upon the rights of the plaintiff, yet the evidence tended to show that the defendant did not, until the first hearing on the injunction suit, believe the plaintiff's claim to be valid. Should the court order the masonry removed and plaintiff put back? Or should de- fendant's readjustment offer be adopted by the court? A. This involves the question whether the plaintiff's injunc- tion should be simply prohibitory, or whether, the work affecting the property having been done, a mandatory injunction will issue requiring the restoration of the estate to its former condition. In determining this, a consideration of all the equities between the parties is appropriate. Where a defendant has gone on without right and without excuse in an attempt to appropriate plaintiff's property, and has changed the condition of plaintiff's real estate, defendant will be compelled to undo so far as possible what he has wrong- fully done in derogation of plaintiff's rights and pay the damages. On the other hand, if by an innocent mistake erections have been placed a little upon the plaintiff's land; but the damage caused to the defendant by removal of them would be greatly disproportionate to the injury whereof plaintiff complains; the court will not order their removal, but will leave the plaintiff to his remedy at law. In the above case it was held that if the plaintiff receives the premises substantially as they were before the work was begun, so that they are as good for the kind of use to which he can put them during the remainder of his short term ; and if also he receives full compensation in money for injuries which he has suffered ; the court will not require defendant to remove at great expense and embarrassment its vaults which encroach 12x13 feet on the premises leased to plaintiff. Observe that there ap- EQUITY JURISPRUDENCE AND PLEADING 45 1 pears here to have been no wilful or wanton violation of plain- tiff's rights. Lynch v. Union, &c, 158 Mass. 394. And especially S. C. 159 Mass. 306. Observe, however, that where in the obstruction of plaintiff's right defendant acts "without excuse or palliation in a wilful at- tempt to have his own way," defendant can not under such cir- cumstances compel the plaintiff to sell his rights at a price fixed by a master or by the court. So held where defendant deliberately obstructed a well defined, visible pathway leading to a well which plaintiff for 50 years had access to, and had a right to use, in connection with his premises. O'Brien v. Goodrich, 177 Mass. 32. Q. 49. It is conceded that a court of equity will not under- take to enforce specific performance of a contract for ordinary personal services. Assume however that the plaintiff Rogers Cutlery Company entered into a contract with defendant Rogers, whereby Rogers among other things agrees to remain with and serve plaintiff as general agent and manager for five years ; and will not during that period be engaged or allow his name to be employed in any manner in any other cutlery busi- ness ; but will give his entire time and services to the interests of plaintiff Cutlery Company, such services to consist in the main of the duties of general agent and manager. Assume further that defendant secretly negotiates with others, competitors in like business, to the extent of allowing his name to be used in connection with the competing business and of taking part therein himself. What means, if any, may the Cutlery Company avail itself of to protect itself in the premises ? A. Where services are special or extraordinary or purely intellectual, or peculiar and individual in their character, the court will grant an injunction in aid of a specific performance. Lumley v. Wagner, 1 DeG., M. & G. 604. But in default of a showing that the services are of a char- acter above specified, and unless it appears that the use of de- fendant's name by competitors would injure plaintiff beyond such injury as might grow out of a lawful business rivalry, defendant 452 LAW STUDENTS REVIEW will not be enjoined. If defendant's proposed course of conduct would be especially injurious, the facts showing or constituting such special injury should be set out that the court can pass upon them, in determining whether or no an injunction should issue. The enforcement by injunction of an agreement not to enter the service of others is often referred to' as injunction based on a "negative covenant." Eogers Mfg., &c, v. Eogers, 58 Conn. 356. O. 50. A common provision in contracts of professional base ball clubs, or organizations, with players, is a clause purporting to give the organization the right to "reserve the (player) for the season next ensuing" the year which is the immediate sub- ject of the contract. Containing such a provision, and in con- sideration thereof, the contract in question provided that the salary for the "ensuing" year should not be less than the salary for the then current year, and that not more than fourteen players should be so reserved. Ewing of New York entered into such a contract with the New York Baseball Club. He then engaged his services for the ensuing year to another club. Can he be enjoined from playing with such other club ? A. No. The right to "reserve" players is too vague, or at least is too vaguely expressed to be enforced. If the parties had meant that Ewing should play ball with New York the following year, it was easy for them to say so, and to fix the terms, salary, "conduct" and the like. But failure to specify in these respects makes the clause so uncertain and indefinite that it can not form the basis of equitable relief. Metropolitan v. Ewing, 42 Fed. 198. Metropolitan Exhibition Co. v. Ward, 9 N. Y. Suppl. 779. Q. 51. Plaintiff, Elizabeth Wadd, brought an action on the following facts : Albert Hill, testator, died in 1884, aged 87 years, leaving neither widow nor children. Elizabeth, in 1867, had entered his service as a servant in his household. Her wages were paid up to the time of his death. Testator told his lawyer that he had made up his mind to give Elizabeth about $2,000, beside what he had provided for EQUITY JURISPRUDENCE AND PLEADING 453 her in his will. He owned a "bond and mortgage" of the value of $2,000. In 1884 he requested one of his (designated) execu- tors to draw an assignment thereof to plaintiff, and "said some- thing about" his intention to give it to her. The assignment was drawn and given to the testator, but he did not then execute it. His final illness lasted nine days. On the second day of his illness he gave the assignment, not acknowledged or recorded, to the same executor, with other papers, and told him to deposit them in a bank. There was no evidence that it was ever deliv- ered to plaintiff. The bond and mortgage went into the posses- sion of his executors, after his death. Did testator, as to the bond and mortgage, constitute himself trustee for plaintiff ? A. No. The evidence fails to establish a completed gift, or a trust. An intention to give seems to be made out, but not a gift, for there is no delivery of the gift, or valid assignment of it. There is no declaration of trust ; nor is there any act of testator not entirely consistent with an intention to retain possession of the papers. Wadd v. Hazelton, 137 N. Y. 215. O. 52. Assume that a husband, his wife joining, executes, acknowledges and records a deed to real property, the effect of which is, if there be delivery, to convey to a third person in trust for the wife. The husband afterwards speaks to his wife and to other persons of the deed as a provision he has made for her and their children in case of accident. The third party never hears of the transaction until long afterward, when he repudiates it. The husband denies that he delivered the deed. What do you say as to the net result ? A. That the husband is simply denying the law. As a matter of law a delivery is here shown, and the fact that the third per- son repudiates the transaction does not impair the wife's right. A voluntary settlement is binding on the settlor unless the evi- dence is clear that he never parted with and never intended to part with the possession of the deed. Adams v. Adams, 21 Wall. 185. 454 LAW STUDENTS REVIEW Q. 53. A held B's note, secured by first mortgage, and C held B's note, secured by second mortgage on the same property. The debt to A exceeded the value of the premises. B owned no other property. To avoid the expense of foreclosure, A and B agreed in good faith that B should convey the land to A, which was done. C sued to foreclose his mortgage, claiming that A's lien was lost by merger. What are the rights of the parties? A. There was no merger. The question of merger depends on intent of parties. Under above circumstances, equity would not permit the mortgaged premises to be swept away without pay- ment of A's mortgage, under the pretense that its lien had been lost by merger. Brown v. Blydenburgh, 3 Seld. 141. O. 54. A executed a promissory note to B, due one year after date, C signing as surety. The indebtedness was secured by mortgage on A's real estate. (1) At maturity, A and C execute a new note for the in- debtedness, A receiving back the old one marked cancelled. Is the mortgage lien released ? (2) Suppose C did not execute the new note as surety, would the mortgage lien be released ? (3) Suppose B secured judgment at law, at maturity, for the amount due on the note; would the mortgage lien be re- leased ? A. No to all three questions. The lien of a mortgage is not withdrawn or interrupted by taking up the original note and giving a new one in renewal; or by accepting a new note without the surety the original note had; or by reducing the note to judgment. Change in form of the evidence of the indebtedness does not release the mortgage lien. Darst v. Bates, 51 111. 439, 95 111. 493. Merwin Eq. and Eq. PL, § 626. Q. 55. A was a tenant for life with power to raise money by mortgage upon the premises. He made a mortgage to B for $5,000 without reference to the power and not in conformity to it. C was the remainderman. A died without paying off EQUITY JURISPRUDENCE AND PLEADING , 455 his mortgage. B sued in foreclosure, making C a party de- fendant. C demurred to the bill. What should be the ruling of the court upon the demurrer ? A. Bill dismissed for want of equity. B had no power to mortgage except in accordance with certain forms which were not complied with ; and the mortgage was void as to C, who took title free from it. 1 Story Eq. Jur., § 97. Q. 56. A executed a note, secured by mortgage on his real estate, as part payment of the purchase price of the mortgaged premises. His wife did not join in the execution of the note or of the mortgage, but B signed the note as surety. The note remained unpaid, without agreement of extension, for 21 years after maturity, except for instalments of interest paid annually by A. The last payment of interest was made and credited on the note 15 years after maturity. The mortgagee brought fore- closure, making A, his wife, and B, parties defendant. Pur- suant to decree of foreclosure, the premises were sold free and clear of dower, and for an amount less than the mortgage in- debtedness; whereupon a personal deficiency judgment was rendered against both A and B. Point out error, if any, in the proceedings. A. Mortgagee had right to foreclose. The note being kept alive by payment of interest, the mortgage is not barred by limitation. Buchanan v. Lloyd, 88 Md. 642. Wife had no dower in the premises, as against mortgagee, the lien being for part of the purchase price, and was therefore not even a necessary party. 1 Jones Mortgages, § 470. It was error to render judgment against B, a personal judg- ment against him being only obtainable in a court of law. 3 Jones Mortgages, §§ 1710-1711. Q. 57. In cases of account where there are several items of charges and several payments, by what rule are the payments applied to charges? A. The debtor has a right to appropriate his payments at the time they are made. If he does not, then the creditor has a right 456 LAW students' review to make the appropriation. If neither party makes an appro- priation, the law appropriates the payment according to its no- tions of justice and equity. 1 Story Eq. Jur., § 459c. Q. 58. A loaned to B $10,000 taking as security a power of attorney authorizing him in case the debt should not be paid in three months, to sell the ship R, and reimburse himself from the proceeds of the sale. Before the three months were up, B died, insolvent. A filed a bill in equity against the administra- tor of B, asking to reform the instrument, or to have a priority of lien on the ship in exclusion of other creditors. What should be the decree of the court ? A. Bill dismissed for want of equity. B's death revoked his power of attorney; and A had nothing but a claim against B's estate in which he must share pro rata with other creditors. Hunt v. Rousmaniere, 1 Pet. 1. Q. 59. A sold a house to B for $10,000 receiving in payment $2,000 cash, one note of P for $2,000, which proved worthless, and three unsecured notes of B for $2,000 each. Six months afterward B sold the house to C for $12,000 of which C paid $6,000 cash. B died insolvent. D and E filed mechanics liens for $2,000 each against the premises for improvements made while B owned the house. A filed a bill to enforce a vendor's lien, making B's representatives and C, D and E parties. No fraud appearing anywhere in the transactions, what are the rights of the respective parties? A. C must pay $6,000, of which D and E will each get $2,000. A will receive $2,000 and a decree against the estate of B for $4,000, to be paid in course of administration. 2 Story Eq. Jur. (13th ed.), § 1226 and notes. Q. 60. D gave to M a written option for the purchase of certain premises at any time within twenty years. The contract was not recorded. Four years afterwards D, with the knowl- edge of M, sold the premises to F, who subsequently sold to other purchasers. After three years more M filed a bill against D, F and other purchasers for the specific performance of the EQUITY JURISPRUDENCE AND PLEADING 457 contract of sale, tendering the purchase price, as per his con- tract with D. In the alternative he asked for $1,000 damages for breach of the contract, and averred that D had sold the premises to an innocent purchaser for value. D, F and the other purchasers demurred to the bill. What should be the judgment of the court? A. Demurrer sustained and bill dismissed for want of equity. M knew that D could not perform his contract; hence his suit was really for damages, and should have been brought at law. (See question 12, supra). Doan v. Mauzey, 33 111. 227. Merwin Eq. and Eq. PL, § 103. Q. 6i. A in consideration of a payment of $5,000 made him by B, contracted to sell to B a certain estate at a price to be fixed by an award to be made by C, D and E during the lives of A and B. On his way home, A was thrown from his horse, and killed. B filed a bill against the heirs of A for a specific performance of the contract. What should be the decree of the court? A. Bill dismissed for want of equity. The time for making the award was part of the contract; and equity will not substi- tute a different time. " Story Eq. Jur., § 103. Q. 62. Ripley and Barnes owned a quarry. Ripley quit- claimed to Barnes ; and a contract was entered into between them, whereby Barnes for himself, his successors and assigns agreed to quarry and furnish to Ripley all the marble of a certain kind and size, that R might want to manufacture and sell, not less than 75,000 feet per annum. On failure of B to perform R might re-enter and quarry the marble. R might also terminate at a year's notice. For several years the contract was performed; but it became burdensome to Barnes's successor; while highly profitable to Ripley. The parties disagreed; the successor filed a bill to cancel the contract; Ripley filed a crossbill praying specific performance. Is this a case for specific performance ? 458 LAW students' review A. No. The duties of Barnes and his successors are continu- ous. They involve skill, personal labor and cultivated judg- ment. The court can not superintend the enforcement of such a decree. Note also, however, that the fact that the contract has become burdensome upon complainant will not entitle him to cancella- tion, especially where it is contemplated at the outset that the contract may be in operation through an indefinite number of years, or perpetually. Marble Co. v. Eipley, 10 Wall. 339. O. 63. What other feature exists in the foregoing contract which will preclude a court of equity from enforcing specific performance ? A. Want of mutuality. Where from the nature of the con- tract, it is incapable of being enforced against one party, that party can not require it to be enforced against the other party. Here Eipley's right to terminate involves lack of mutuality. Marble Co. v. Eipley, 10 Wall. 339. O. 64. Plaintiffs owned a steamship, the "Bolivian." They contracted with Miller & Sons to cut her in two and lengthen her, according to specifications. In case Miller & Sons should fail to complete the work, then it was provided that plaintiffs should be entitled to all parts, machinery, etc., built in, and to all articles, matters and things lying about the dockyards, and intended for the alteration of the ship. Miller & Sons became bankrupt, and the trustee in bank- ruptcy advertised the property of Miller & Sons for sale ; not excluding, but intending to exclude divers articles intended for the alteration of the vessel. Plaintiffs prayed an injunction against removing these articles, offering to pay for them, as provided in the contract. Should the injunction be granted? A. No. The court likens this to a prayer for specific perform- ance; and says that as the court can not perform the contract as a whole, it will not undertake to perform a part. If there is any remedy, it is at law. Merchants &c. v. Banner, L. E. 12 Eq. Cas. 18. EQUITY JURISPRUDENCE AND PLEADING 459 Q. 65. February 23, 1902, a house, described as being in good repair, and a farm of 150 acres, part arable, part marsh, in a high state of cultivation, all within a ring fence, were sold at auction. On bill against purchaser for specific performance, it was objected that the house was out of repair; the land impover- ished ; and no ring fence. The purchaser saw the farm. Notwithstanding such defects, may the seller have specific performance ? A. Yes. As long as the purchaser gets substantially what he bargains for, it is sufficient; and he may have compensation al- lowed for defects which are not serious. In above instance it was held that he might have compensation for the "defects of the house and the cultivation of the marsh land." Dyer v. Hargrave, 10 Ves. 505. So of a small incumbrance, Winne v. Reynolds, 6 Paige 407. Merwin Eq. and Eq. PL, § 753. Q. 66. A village ordinance provides that no livery stable shall be erected or maintained within a certain district. A citizen files a bill in chancery against a man who he al- leges is about to erect a livery stable in the district in violation of this ordinance. He also alleges in his bill that such a stable would prove a nuisance, and would seriously inconvenience him, he having a residence in the vicinity. The bill asks that the defendant be enjoined from the erection of such a building. Defendant answers and denies that he is about to erect a livery stable, as charged; but alleges he is about to erect a garage and boarding stable. Under bill and answer what should be the ruling of the court as to issuing an injunction against defendant ? A. Bill should be dismissed for want of equity for the reason (1) complainant has a remedy at law; (2) it does not appear from the bill that the livery stable would be a nuisance per se. If after the building is erected it proves to be a nuisance per se, a chancellor might restrain its operation. Sheldon v. Weeks, 51 111. App. 314. Village of St. John v. McFarlan, 33 Mich. 72. 460 LAW STUDENTS' REVIEW Q. 67. What do you say as to the propriety of issuing an injunction at the suit of the householder next door, who had built before the defendant built, against an Electric Light and Motor Company in the city of Mobile, which supplied the public with light and power, prohibiting the company from causing noise, smoke, soot and vibration? Assume that ma- terial annoyance and inconvenience had been thereby caused to the complainant; but that defendant, especially as to the escape of steam, had made alterations and improvements which greatly diminished the evils complained of. A. Unless the evidence shows the case to come -within a class involving irreparable or continuous injury which can be re- dressed only by injunction, and in all cases where the right to an injunction is doubtful, and especially where issuance of the writ would interfere with industries promotive of public utility,, the court should refuse to issue the writ. English v. Progress &c, 95 Ala. 259. Merwin Eq. and Eq. PL, § 784. Q. 68. Plaintiffs were the owners of a certain garden. They also owned adjacent and neighboring property, all under the management of a real estate agent who acted in behalf of the occupiers of neighboring houses. These occupiers were entitled to the enjoyment of the garden. Defendant caused sand to be removed from the garden, and sold it. He also allowed refuse to be dumped there, some of which was burned. This he did under cover of a contract he had made with the real estate agent for improving the garden. How far and on what theory may defendant be restrained from such acts ? A. On the basis of the right of the owner of the fee, he may be prohibited from taking sand away. This is waste, and may be enjoined against. On the theory of a continuing trespass under color of right, he may be restrained from making a dumping ground of the garden. The writ will be so framed as to allow the bona fide improve- ment of the garden to continue. Allen v. Martin, L. R. 20 Eq. Cas. 462. EQUITY JURISPRUDENCE AND PLEADING 461 Q. 69. It was admitted on the record that one William J. Killifer was a baseball player of "unique and extraordinary skill and experience," and that the Chicago Federal Baseball League was in 1914 in need of the services of players of skill and expertness. Killifer was "under contract" with the Philadelphia Club, of date April 18, 1913, and thereby had agreed to continue in its service "for the first part of the succeeding season" ( 1914) at a salary to be determined by the parties. He subsequently ex- pressed his readiness to play for it during 1914. On January 8, 1914, the Chicago Federal League "signed him up" to a contract for playing ball for that organization solely, and for no other, during the years 1914, 191 5, 1916. The Fed- eral League knew of the Philadelphia contract, but offered Killifer twice the salary he had been getting. They paid him. .$525 down ; but this he returned. He thereafter made another contract to serve the Philadelphia club ; and the Federal League filed a bill to enjoin him from playing ball for that organization. Should it succeed? A. No. It does not come into equity with clean hands. It induced Killifer to break his contract with the Philadelphia Club, and especially in view of the fact that there had been no effort to agree on his salary for 1914 with Philadelphia, the Federal League has no standing in a court of equity, and this is true even though the Philadelphia agreement of 1913 may not have been enforcible. Weeghman v. Killifer, 215 Fed. 289. Q. 70. The Boston, Hartford and Erie Railroad and its prop- erty were put into the hands of a receiver. It appeared that there was a locomotive in the repair shop which had been per- sonally bought by one Farwell, a director of the . railroad. Farwell had turned it over to one Parker, the superintendent of the road, to be used on the road. It became disabled and was sent to the shop. While there, Farwell sold it to plaintiff, who, -without leave of court to sue the receiver, replevied it. Will his action lie? 462 LAW students' review A. Yes. The receiver is not protected in taking possession of property other than the property of the railroad. When he as- sumes to take possession of any one else's property, he is a mere trespasser; and, like any other trespasser, may be sued for dam- ages in any appropriate court. Hills v. Parker, 111 Mass. 508. Q. 71. A claims to be the owner of certain lands as to which B asserts an adverse title. A desires a judicial determination as to the title to these lands. Under what circumstances should A proceed by ejectment; and under what circumstances by a bill in equity? A. If B is in possession of the lands A should bring eject- ment. If A is in possession he should file a bill in equity to quiet title; styled — a bill quia timet. Martin v. Graves, 5 Allen 601. Boardman v. Jackson, 119 Mass. 161. Q. 72. From a bill in equity, in what respect does a declara- tion in a suit at law differ, as to allegations anticipating or avoiding a defense; and what effect may result from such difference ? A. In a bill it is usual andsometimes necessary to state and avoid anticipated defenses. Not so in a declaration. Thus the whole case for both sides may be presented in a bill, and the merits of the whole case may be determined on a demurrer to the bill. Landsdale v. Smith, 106 U. S. 391. Q. 73. Name the different pleadings in equity and state the office or function of each. A. Bill, to set forth the plaintiff's cause of action. Answer, to meet generally the allegations of bill. Plea, to interpose some single .or special defense. Replication, to take issue upon the answer. Demurrer, to test the sufficiency of bill. Disclaimer, as indicated by the term. Amended bill sets up additional facts which should have been in the original. Supplemental bill sets up facts occurring since original was filed. Story, Eq. PI., §§ 5, 332, 436, 877. Merwin Eq. and Eq. PI., §§ 972-995. EQUITY JURISPRUDENCE AND PLEADING 463 Q. 74. Bill in equity alleged a case entitling complainant to equitable relief. Defendant filed answer, amounting to con- fession and matters of avoidance. Complainant filed replica- tion, meeting the new matter set up in the answer. Under modern rules of chancery pleading, was such replica- tion correct on its face ? If not what would be the correct form of pleading to meet the situation ? A. Incorrect. Pleadings should be confined to bill, answer or plea, and general replication. Complainant should have taken leave to amend ; should have stated the new matter in his amend- ment, and also stated the facts to meet such new matter. Story, Eq. PL, § 878. Q. 75. A bill in chancery was founded upon the supposed due execution of a power and alleged that certain facts "con- stituted a due execution of the power at law, or, if not, that it was a good execution of the power in equity." The bill was demurred to on account of the use of these words. Should the demurrer be sustained ? A. Sustained for uncertainty; for if the power was well exe- cuted at law, there might be no remedy in chancery. Story Eq. PI. § 246. Q. j6. What is the function of a bill of peace? A. A bill of peace is brought by a person to establish and perpetuate a right which he claims and which from its nature may be controverted at different times, and by different actions ; or where separate attempts have already been unsuccessfully made to overthrow the same right, and justice requires that the party should be quieted in the right, if it has been sufficiently established or shall be established under direction of the court. 2 Story Eq. Jur., § 852 et seq. Q. J J. Certain lands were devised to complainant. They were sold by a judgment- creditor of complainant, under execution. Complainant filed his bill in equity (i) attacking the validity of such sale on the ground that the lands were not subject to execution but (2) if the sale should be upheld, praying that he be allowed to redeem, on the ground that he had been f raudu- 464 law students' review lently induced by the judgment creditor, who was the pur- chaser, to allow the statutory time for redemption to pass by without redeeming. Is this bill bad for duplicity ? A. No. If each alternative case made by the allegations of the bill entitles the complainant to relief, he may frame his bill in a double aspect. Henderson v. Harness, 184 111. 520. Q. 78. How may advantage be taken of ( 1 ; a defective bill in chancery; (2) a defective answer; (3) a defective plea in chancery ? A. (1) By demurrer to bill; (2) by exceptions to answer; (3) by motion to set the plea down for argument. Merwin Eq. & Eq. PI., §§ 961, 986, 977. Q. 79. If it appeared from the allegations in a bill in chan- cery that the remedy is barred by the statute of limitations, how should the defendant meet the bill? Suppose it appears on the face of the bill that the statute of frauds bars the defendant's right to relief, how should the bili be met ? A. By demurrer in both cases. Story Eq. PI., §§ 484, 762n (b). Q. 80. Where the answer is insufficient do you demur ? A. No. Never demur to an answer. Except to it; or set down for hearing on bill and answer. Story Eq. PL, § 456. Q. 81. (a) What is the function of a cross bill ? (b) When and for what purpose may it be filed ? A. (a) A bill filed by a defendant against a complainant, or against other defendants or against both, in the same suit, touching the matters in the original bill. Story Eq. PL, § 389. (b) After answer filed and for purpose of securing affirmative relief or making discovery necessary to defense. Merwin Eq. and Eq. PL, §§ 936-939. EQUITY JURISPRUDENCE AND PLEADING 465 Q. 82. Major Kingsbury died intestate June 25th, 1856, seized of certain real estate in Chicago. He left him surviving his widow and two children, Mrs. Buckner and Henry W. Kingsbury, his only heirs. The plaintiff, son of Henry W., filed a bill claiming this res! estate by inheritance from his father against certain defendant? who on their part claimed that the deed under which the father held, though absolute in form, yet had been accepted by the father for the purpose of placing the title in trust for the benefit of one of the defendants. And these defendants so claiming against plaintiff, under- took to set up their claim by cross bill. Will such cross bill lie? A. It will lie. The original bill asserts ownership by plaintiff as to the very property in question. Plaintiff claiming under the deed to his father; and the defendants claiming under the same deed by averring that the deed was in trust, the claim presented under the cross bill is germane to that exhibited in the bill, and this is true even although the cross bill alleges additional facts. The subject matter is none the less the same. Kingsbury v. Buckner, 134 U. S. 650. Q. 83. A bill was filed by creditors of a testator's estate which had been declared insolvent. The personal representa- tive, and purchasers from him were made parties ; likewise the widow of decedent who was a legatee under the will. A devas- tavit (wasting of the estate) was charged against such per- sonal representative and purchasers ; and the creditors prayed to have the lands sold for the payment of purchase money said to have been unpaid. The widow exhibited her cross bill praying for an assign- ment of dower in the lands in question, and took a decree thereon. Is the cross bill well brought, and shall her decree stand? A. No. She is a party to the original suit only as a legatee under the will of her husband. There is no antagonism between her claim to be endowed and the rights asserted by the cred- itors. If she has any right it is one to be asserted against the 30— L. S. Eev. 466 LAW students' review personal representatives, heirs and devisees, and against the purchasers of the lands. The cross-bill can be entertained only on matter growing out of the original bill; not on rights or equities which have no connection therewith. Shelton v. Carpenter, 60 Ala. 201. Q. 84. The defendant was called upon in a partnership ac- counting, and it was by the bill sought to require him to answer as to whether or not he had received certain specific sums and amounts. To this he answers that he does not know, is not informed, has no means of knowing and can not answer. It was urged that as the matter of receiving these moneys or not receiving them was within his own knowledge he should as to a period of six years next preceding be required to answer explicitly that he had not received any sums other than those he men- tioned. Discuss the sufficiency of defendant's answer that he is not informed and has no means of knowing. A. The general rule is that as to a matter charged to be defendant's own act, the answer must be direct ; and that saying that it is to defendant's remembrance or as he believes, if it be laid to be done within seven years before, is insufficient unless the court find special cause to dispense with a positive answer. Certain facts and transactions are presumed to make such an impression on the mind of defendant that he is presumed to know whether they occurred or not. But where a man has been collect- ing outstanding accounts for many years, it is unreasonable to require him to swear positively that he has not received any other sums than those entered on his books of account. This might make a man swear to what he could not know. Hall v. Wood, 1 Paige Ch. 404. And thus where one Jones was charged with being the sub- scriber to certain shares of the capital stock of a corporation, while the fact charged must be considered as within the knowl- edge of Jones, because it was an act charged to be done by him; yet it is held that the rule requiring the defendant to answer positively as to facts charged to be within his positive knowl- edge, applies only to recent facts; and the period of six years is suggested as a period anterior to which a fact can not be regarded as "recent." Carey v. Jones, 8 Ga. 516. Merwin Eq. and Eq. PI., § 981. EQUITY JURISPRUDENCE AND PLEADING 467 Q. 85. Complainant in his bill set forth that (a) Michael Cummings and Catherine Cummings are husband and wife; (b) the Northwestern Guarantee Loan Company to whom a certain note and mortgage named in the bill were executed, was at the date of such execution a Minnesota corporation; and (c) said corporation had complied with the statutes of Montana in regard to foreign corporations, and their right to do business in the State of Montana. Assume that defendant, said Michael Cummings, in his answer ignores these allegations, not answering them at all; and further assume that appropriate exceptions or objections to the answer are interposed. Rule on these exceptions. A. (a) Exception sustained. This is a fact obviously within his own knowledge, and he should either admit or deny it. (b) This allegation should have been either admitted or denied, or the defendant should have stated that he had no knowl- edge, information or belief on the subject. The plaintiff in a bill in equity has the right to elicit by way of answer all the in- formation defendant has. Exception sustained. (c) Exception overruled. The allegation is unnecessary. It is not requisite for a plaintiff corporation to allege its power to contract, or to allege that any corporation under which it claims has power to contract. Express Co. v. Railroad Co., 99 U. S. 199. Accordingly defendant may properly ignore such alle- gation. Commonwealth, &c, v. Cummings, 83 Fed. 767. O. 86. Suppose as to subdivision (b) of the foregoing ques- tion, instead of ignoring and not answering, the defendant had said, "having no personal knowledge thereof, the defendant leaves the said complainant to make such proof as he may be • advised." Is this a sufficient answer ? A. No. This is said to be "no answer at all." It is not enough to say that defendant has no knowledge, since he may have information or belief of a very strong character; and as stated the plaintiff is entitled to the benefit of such information and belief. Restricting his answer to denying any "personal 468 LAW students' review knowledge," clearly would prejudice the plaintiff, in denying plaintiff the right to the disclosure of such information, though not at first hand, as the defendant might have. Eyan v. Anglesea, &c, 12 Atl. 539 (N. J. 1888). Q. 87. Plaintiff filed a bill to be relieved against a bond of £2,000 setting forth facts indicating that it was a mere accom- modation bond and was stale; that defendant had afterward borrowed £300 of plaintiff on a bond, and that this bond had been "somehow lost" ; but that he had exhibited his bill in chancery on this last bond against defendant and had had a decree for the payment thereof. Defendant answered that he did not know or believe that the plaintiff lost the bond, but that he believed that the plain- tiff had fraudulently concealed or destroyed it. To this latter clause of the answer plaintiff excepted for scandal. Defendant urged that the answer was not scandalous, because it was pertinent. What should be the ruling of the court on the exception? A. Though the matter in itself may be scandalous; yet if pertinent it is not to be considered as scandalous; e. g., if the plaintiff asks impertinent questions, though the answer be "re- flecting and impertinent," yet it is not scandalous. But above, the allegation relating to losing the £300 bond was mere induce- ment, being merely as to a fact or transaction tending to show that the stale bond was not valid; thus the defendant when he says that he believes the plaintiff did not lose it, is denying something that is not material, and something he is not required to answer to. Accordingly the exception should be sustained. But the Lord Chancellor (King) adds that if the plaintiff had ques- tioned the defendant, then the above answer would not have been scandalous, though the question was not material. This for the reason that plaintiff in such instance would have himself led the defendant into it. Smith v. Reynolds, MoseJy 69, Woods v. Morrell, 1 Johns., Ch. 103. Q. 88. Bill to foreclose "a bond for $1,200 and interest and mortgage." Defendants, representatives of deceased mortga- gor answered there was nothing due on the bond and mortgage. That mortgagee boarded with mortgagor, who was his brother, EQUITY JURISPRUDENCE AND PLEADING 469 and was furnished with board, washing and lodging from Sep- tember 5, 1839, to January i, 1847, at the price of $3 a week under an agreement that the same should be furnished and re- ceived on account and in payment of the debt due on the bond and mortgage, and that mortgagee would permit and allow the same as a set off in payment and discharge of the debt. No express agreement was proved by the defense; but it was proved that during the period in question mortgagee, a single man, did stay at the house of mortgagor, receiving board and lodging and having his washing done ; and that mortgagee had complained of the treatment accorded him by mortgagor's children, had said that he would not go on boarding there except that he held a bond and mortgage against mortgagor for $1,200, and had intimated that he did not expect to get any- thing on the mortgage except what he "boarded out." It was objected that the agreement in the terms as set out in the answer was not proved. Should the objection be sustained? A. No. There is sufficient here on which to base an implied agreement substantially equivalent to the agreement set out in the answer. The same strictness of proof is not required in the above case as would be required in a case for specific perform- ance, where the very terms of the agreement must necessarily be ascertained in order to obtain a decree ; the substance only of the issue need be proved. It is not necessary that the same degree of accuracy should be observed in an answer, as is re- quired in a bill; and while there must be a correspondence be- tween allegata and probata, yet an allegation of payment in a chancery pleading is sufficiently sustained by proof of satisfac- tion of the demand in any way, as by set-off, accord and satis- faction, &c. King v. King, 9 N. J. Eq. 44. Q. 89. Rouskulp held two mortgages upon property owned by Kershner. To accomodate K. he allowed a mortgage for $8,000 to be executed to take precedence of his, Rouskulp's, mortgages; and papers were drawn to effect this. It after- ward appeared, however, that K. first procured the release of the mortgages held by Rouskulp and thereupon obtained a loan of $6,000 from a third party, Hinks ; and also obtained a loan of $2,000 from another party, Carroll. 47° LAW students' review Carroll afterward foreclosed, and the property was sold in the foreclosure proceedings to one Batzler. An appeal, how- ever, from the sale on foreclosure was taken; and meanwhile Rouskulp filed a bill praying that the sale to Batzler might be annulled and that the trustee appointed to make the sale under the Carroll mortgage might be restrained from further pro- ceeding therewith. Assuming that Batzler had without notice paid the money to the trustee in the Carroll foreclosure sale, what is the proper pleading whereby Batzler should meet Rouskulp's bill ? A. By plea. Batzler's position is that he is ■ an innocent purchaser for value, having paid his money without notice of any infirmity, or of the fraud practiced by Kershner upon Rouskulp. Accordingly with the controversy between these two he has nothing to do. His plea should simply state what the facts are so far as they relate to him ; and he should not under- take to answer any of the charges which Rouskulp is making against Kershner. If he can sustain the facts upon which he relies, as to him there is an end of Rouskulp's bill. Rouskulp v. Kershner, 49 Md. 516. Q. 90. In the foregoing case Batzler did file a plea ; and this was demurred to. Is this correct practice ? A. No. If the plaintiff considers the plea of defendant de- fective, he should "set it down for argument;" and then the court will examine it, to see if it is sufficient. But in the case under consideration, the court treated the demurrer as if the plea had been set down for argument; and found the plea to be good. Observe that where a single issue determinative of the whole matter is present as a defense, it is preferable as narrowing the issue to interpose the same by plea rather than to take issue by way of answer on various matter with which the defendant has nothing to do. Rouskulp v. Kershner, 49 Md. 516. Q. 91. Ray Tompkins, the youngest son of Daniel D. Tomp- kins, deceased, filed a bill to establish, in right of his late father, his title to 250 acres of land in Castleton, Richmond County, New York. His claim was that as to said tract one EQUITY JURISPRUDENCE AND PLEADING 471 Caleb T. Ward and others, who had been trustees under a deed in trust from his father, had, after the debts of his father had been paid, fraudulently secured, by an unwarranted foreclosure, title to the 250 acres. Among other parties to the bill was one Anthon; the com- plainant alleging that Ward had sold various portions of the tract but that complainant was ignorant as to what part Ward had sold, and what part he had not sold. He charged, however, that Anthon and divers others claimed to have some right or title "in some parts or portions of the 250 acres" under deeds executed by Ward. No discovery was asked from Anthon ; but discovery was required from Ward, which would embrace the above particulars. Anthon filed a plea professing to be to the whole bill, set- ting up : (a) That he was a bona fide purchaser, without notice, of two separate parcels, specifying them, of the 250 acres; (b) Denying notice of the facts and circumstances of the fraudulent and improper manner in which Ward was charged to have violated his trust; but alleging that he is a bona fide purchaser without any notice of the matters above in the bill alleged or any of them. Comment on the foregoing pleas. A. (a) As to this point the plea is defective. The trouble with it is that it does not aver that Anthon claims no right, title or interest in any portion of the 250 acres other than those he purchased, and the omission in the bill to describe the parcels claimed against Anthon does not help the plea; for the plea must be complete within itself, and must show a perfect defense to so much of the bill as it professes to cover. (b) The denial of notice of facts and circumstances of fraud is open to the objection that it is a negative pregnant; denial should be in the disjunctive; but this is cured by the averment which follows it that Anthon is a bona fide purchaser without any notice of the matters above in the bill alleged or any of them. This traverses notice of any adverse claim of any kind or character. Tompkins v. Anthon, 4 Sandf. Ch. 104. Gallatin v. Cunningham, 8 Cow. 361. 472 LAW STUDENTS REVIEW Q.. 92. A bill set up a cause of action entitling the plaintiff to an accounting. The plaintiff apprehended that the defendant would rely upon a release. Accordingly plaintiff alleged that such release did not exist, or if it did exist that it was procured by fraud ; and he set out the particular facts in which the fraud consisted. Assume that the defendant relies on his release; should he meet the plaintiff's case by simply setting up the release by way of plea? or should he in this case support his plea by answer ? A. Had the plaintiff in his bill not sought to anticipate and meet the defense of the release, then the defendant might well simply plead the release. But here the defendant must negative plaintiff's averments setting forth that the release was pro- cured by fraud. Accordingly he can gain nothing by pleading his release separately; for he must meet by answer the facts alleged and relied on as sweeping away his release. "He can gain nothing by a plea to a part of the bill, if his plea fails to meet other allegations, which, if true, would, notwithstanding the matters alleged in the plea, entitle the plaintiff to all the relief sought." Note that in the above case, the plaintiff having moved to strike the plea from the files, it was held that the proper method by which the plaintiff should meet the situation was not to move to strike, but to set down for argument; the matters al- leged in the plea being good in substance, and therefore consti- tuting "an authorized pleading." Inasmuch, however, as they should have been presented by answer, the proper proceeding was to set down the plea for argument. Armengaud v. Coudert, 27 Ted. 247. Q. 93. Motion to withdraw replication of plaintiff because the plaintiff wished to except to the answer, and to amend his bill. Will the motion be allowed as of course ? and if not, how must it be supported ? Assume that replication has been on file for three months. A. Motion will not be allowed as of course. It must be sup- ported by a showing as to the matters wherein the answer is defective ; also as to why the defects, if any, were not discovered before. And as to amending the bill, the plaintiff must show EQUITY JURISPRUDENCE AND PLEADING 473 the materiality of the amendments, and why the matter to be in- troduced by amendment was not stated before. Brown v. Kicketts, 2 Johns. Ch. 425. Q. 94. Appeal from a decree in the Circuit Court of Balti- more City. The property of one Fayette Plummer, testator, was in the hands of an executor; and a bill of interpleader was filed to determine the ownership thereof. The parties inter- pleaded. Assume that a decree was entered appointing a trus- tee to receive the fund ($4,000) in question, and adjudging that the executor pay over to such trustee, and that the conflicting claims of the parties be referred to an auditor to take the evidence, the decree substituting a trustee of the court's own appointment in the place of the executor. Was this a final or an interlocutory decree? A. Interlocutory. The decree is preliminary. The interplead- ing plaintiff, claiming no pecuniary interest, is clearly entitled to such a decree, so that the defendants may have an opportunity to present their conflicting claims and support the same as a foundation for the final determination of the court in regard to their respective rights; but the court can not undertake to determine the validity of these claims until all the evidence has been introducd and considered. Even though there be a peculiar phraseology of a portion of the decree which tends to give it an air of finality, yet no effect can be given to such phraseology; for in its essence the decree is preliminary and interlocutory, and not final. Owings v. Rhodes, 65 Md. 408. Q. 95. When is a decree in chancery said (1) to be final? (2) to be interlocutory? A. (1) Final when it decides and disposes of the whole merits of the case. (2) Is interlocutory when it reserves some question or questions for future consideration. Merwin Eq. & Eq. PL, § 1013. Q. 96. The Bank of the United States in 1826 brought a. bill in equity against appellees Hugh Glenn, James Glenn and Thomas Graham, to set aside certain conveyances of real estate made by appellee White to other appellees Cummins and Ben- 4/4 LAW STUDENTS REVIEW nefil, on the ground that they were fraudulent. White, the Glenns and Graham were judgment creditors. A decree pro confesso was taken ; arid defendants were enjoined from assert- ing title under their deeds as against complainants. In July, 1830, appellees filed a bill of review. Assume that certain parties to the original decree were not made parties to the bill of review. May the court proceed as to the defendants who were made parties to the bill of review ? A. No. The principle is unquestionable that all parties to the original decree ought to join in the bill of review; if they are not made parties, the bill of review will not be entertained. Bank v. White, 8 Pet. 262. 0. 97. A corporation executed its promissory notes for the benefit of one of its officers, apd of one Van Tassel. Thereupon Van Tassel negotiated the notes, and assigned as collateral thereto a contract he had with a third party, to trustees, upon trust that the proceeds of such contract should be used to create a fund to take care of "these Van Tassel notes," with the fur- ther provision that any sums received from the corporation by the holders of the notes should be credited upon them. Subsequently the corporation became insolvent and made an assignment for its creditors. The general creditors thereupon attempted to require bona fide holders of the Van Tassel notes to resort first to the special fund above mentioned ; and to ex- haust that before sharing with the general creditors in the corporate assets generally. It appeared that the special fund -was not large enough to meet the notes in the hands of these bona fide holders ; that such fund depended upon carrying out the contract (for cutting bark), and that it would take an in- definite time to do this. Can the noteholders, under the doctrine of marshalling assets, be required to exhaust their special security first, before coming upon the general assets of the corporation? A. No. While there is a general rule that where a creditor has two funds or securities to which he may resort, and other creditors have only one fund or security, the creditor who has the two will be required to come upon the fund to which he alone EQUITY JURISPRUDENCE AND PLEADING 4/5 may resort; yet this rule will not be applied in a case where so to resort to such fund will materially delay him in obtaining payment; and this is especially true where such fund is not sufficient to pay him in full. The corporation is the principal debtor here; and it would be inequitable to require of a creditor who has more security than other creditors, to be delayed in recovering of the principal debtor, while such creditor is at- tempting to realize on the security he has taken. Carter v. Tanners' Leather Co., 196 Mass. 163. CHAPTER XVII CODE PLEADING AND PRACTICE (Note: References to statutory provisions taken from New- York Code of Civil Procedure. Variations therefrom in other states noted, where material.) "There is only one form of civil action. The distinction be- tween actions at law and suits in equity, and the forms of those actions and suits, have been abolished." § 3339, N. Y. Code Civ. Pro. Question i. In an action to recover possession of land and for other relief the complaint demands ( i ) that a certain mis- description in plaintiff's title deeds be corrected to include therein the land in controversy; (2) that he be awarded pos- session; (3) that he be awarded damages for the defendant's withholding of the land. Is it proper to join. these prayers for equitable and legal relief ? Answer. Yes. This could not have been done under the for- mer practice, but the Code is designed to permit the complete settlement in a single action of all controversies between the parties arising out of the same matter. All appropriate forms of relief may be granted in one action. Laub v. Buckmiller, 17 N. Y. 620. Q. 2. A's wall encroached upon the adjoining land of B. B got judgment in ejectment but the sheriff made return that it was impracticable to remove the wall. Thereupon B brought a second action for a mandatory injunction to remove the wall. Was he entitled to the additional relief? A. No. B had but a single cause of action, though he might be entitled to different kinds of relief. The Code intends not only that a plaintiff may but that he must dispose in one action 477 478 LAW students' review of all questions arising out of a single cause of action. B should have pleaded in the first action the facts entitling him to full relief and have asked for same. Hahl v. Sugo, 169 N. Y. 109. Q. 3. Suit upon a note for $100. Plaintiff alleges that it was intended, when note was executed, that the note should be for $1,000; that the amount as written was a mutual mistake; and asks judgment merely for $1,000. May he recover, on proving the note and the other facts alleged ? A. Yes. The facts pleaded show a right to reformation and the court will grant any relief legal or equitable to which plain- tiff is entitled on the facts pleaded and proved, whether the specific relief be asked or not. Dreyer v. Hart, 147 Ind. 604. Q. 4. The owner of a right to collect wharfage from a certain wharf (but not owner of the wharf itself) sued for an injunction against the collector of taxes to prevent the sale of the wharf for taxes alleged to have been illegally imposed, and averred that the plaintiff would suffer irreparable injury from the sale ; but did not set out any facts from which such injury would appear. On a demurrer for insufficiency, plaintiff argued that under the code the rights to legal and equitable relief were concurrent, and the right to the latter no longer depended on the inadequacy of the former; hence that it is unnecessary to show that the legal remedy is inadequate. Should the demurrer be sustained? A. Yes. The change made by the Code goes to the forms of actions, not to the actions themselves. To obtain equitable relief, one must still show the existence of established equitable grounds. Dewitt v. Hays, 2 Cal. 463. Q. 5. A sues B alleging that they are partners having an equal share in the business, and that B has $5,000 of partner- ship funds and refuses to pay over A's half, and demands judgment for $2,500. On motion to set aside, should a judgment for A on a jury trial be sustained? CODE PLEADING AND PRACTICE 479 A. No. To obtain legal relief it is equally necessary to show the existence of legal grounds. Partners, being joint owners of the partnership property, one can not be indebted to the other for any part thereof. A money judgment could be rendered only after an accounting in equity and dissolution. Russell v. Byron, 2 Cal. 86. Q. 6. A complaint sets out facts showing plaintiff's right to a money judgment only ; but demands an accounting. Should a demurrer for insufficiency be sustained? A. No. The facts averred show that he is entitled to some relief; and relief will be given to him, even though he has asked for relief other than that to which he is entitled; and even though one be legal, and the other equitable. Wisner v. Consolidated, &c, Co., 25 App. Div. (N. Y.) 362. Q. 7. A complaint alleged, in substance, that the plaintiff had been induced to sell certain land to the defendant by the latter's false and fraudulent representations ; and demanded the cancellation of the deed and restoration of the land. The case was tried without a jury. The court decided that the plaintiff was not entitled to the equitable relief asked ; but was entitled to a money judgment on the facts pleaded and proved, and gave judgment accordingly. Is this correct? A. No. Although the court may give legal relief where equitable relief is asked, the abolition of the distinction between forms of action can not deprive the defendant of his constitu- tional right to a trial by jury of the issue at law. Bradley v. Aldrich, 40 N. Y. 504. Q. 8. A complaint alleges facts showing that plaintiff is the equitable owner of certain land, and is entitled to the legal title and possession thereof; and asks for a recovery of the land against the defendant in possession. Is he entitled to the relief sought on the facts alleged ? A. No. The relief asked is that formerly granted in eject- ment; and now as then can only be had by one having the legal title. Eaton v. Smith, 19 Wis. 537. Note: — This is the prevailing rule; but see Phillips v. Gor- ham, 17 N. Y. 270, contra. 480 LAW STUDENTS' REVIEW Q. 9. A complaint alleges that the plaintiff consigned goods to the defendant, as agent, to sell ; that the defendant sold the same and collected the proceeds, but refused to pay them over "and converted them to his own use." Defendant moves to nonsuit plaintiff on the ground that the facts alleged constitute a cause of action ex contractu, while the allegations of the conversion set forth a cause of action ex delicto. Should the motion be granted ? A. No. The Code has abolished the distinctions between forms of different actions at law as well as between forms of actions at law and in equity. The complaint is sufficient if it exhibits facts showing any cause of action, even though it be expressed in language that would be inappropriate to that form of action at common law. Conaughty v. Nichols, 42 N. Y. 83. Q. 10. Complaint, in substance, alleged that the defendant induced the plaintiff to buy a horse by false and fraudulent representations that it was sound, when in fact the horse was not sound ; and that plaintiff was damaged thereby in the sum of $500, for which he asked judgment. On the trial, plaintiff failed to prove that the defendant had made the alleged fraudulent representations, but did prove that he had warranted the horse to be sound, and that it was not sound. Can he recover? A. No. The complaint as drawn was clearly for fraud and not for a warranty. The facts stated set out a cause of action in fraud; there was no allegation of a warranty. The Code has not destroyed the distinction between causes of action go as to permit one who plainly sues for one cause to recover for an- other. Ross v. Mather, 51 N. Y 108. "Every action must he prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this sec- tion." § 449, N. Y. Code Civ. Pro. CODE PLEADING AND PRACTICE 48 1 Q. 11. May the assignee of rents sue to recover them in his own name ? A. Yes. He is the real party in interest. Mills v. Murry, 1 Nebr. 327. Q. 12. A gives B in payment of a debt an order upon C for the whole of a debt due from C to A. May B sue C in B's own name ? A. Yes. Under the Code even an equitable assignee not only may, but must, sue in his own name. Walker v. Mauro, 18 Mo. 564. Q. 13. A assigns a claim against B, to C. The assignment is absolute on its face; but is in fact made as security. May C sue upon the claim in his own name ? A. Yes. If the apparent legal title vests in the assignee, the debtor may not object that the assignment was in fact condi- tional. Lawrence v. Congregational, &c., 164 N. Y. 115. Manley v. Park, 68 Kans. 400. Note: — The real question in cases of this class is whether payment to the assignee would bar a subsequent claim made by the assignor for the same debt. If so, the defendant can not object to the assignee's suing in his own name. Q. 14. The assignee of a chose in action sued upon it in his own name. There was evidence to prove that the assignment was in writing, duly executed and delivered; but that it was made without consideration, and on a secret understanding that the transfer was not intended as an actual sale by the parties. Should a motion to dismiss on the ground that the plaintiff was not the real party in interest be granted ? A. No. The plaintiff is regarded as the real party in interest if he has a valid transfer as against the transferor, and holds the legal title of the demand. Sheridan v. New York, 68 N. Y. 30. 31— L. S. Kev. 482 LAW STUDENTS' REVIEW Q. 15. The owner of a claim assigns a part of it. Can the owner thereafter maintain an action for the entire claim in his own name as sole plaintiff ? A. Yes. The action can not be brought in any other way. The statute requiring the real party in interest to sue must be construed in reference to the principle of the common law that a cause of action can not be divided. The statute must be lim- ited to those cases in which the real party in interest has the entire cause of action. Cable v. St. Louis &c, 21 Mo. 133. to Q. 16. A loans money to B on B's promise to pay.it to C, whom A was indebted. Can C sue B on this agreement ? A. Yes. He is the person for whose benefit it was made. Lawrence v. Fox, 20 N. Y. 268. Q. 17. May a mortgagee sue to recover the mortgage debt from a grantee of the mortgagor who has covenanted to assume the debt ? A. Yes. The covenant was made for his benefit. Beeson v. Green, 103 la. 406. Q. 18. A conveyed mortgaged premises to B, who did not assume payment of the mortgage debt. B conveyed to C, who did assume the debt. Can the mortgagee sue C ? A. No. To enable a third person to sue upon a contract, it must appear (1) that there was an intent upon the part of the promisee to secure a benefit to the third party; and (2) that there is some privity between the promisee and the third party, and some obligation or duty from the promisee to the third party, giving the latter a legal or equitable claim to the benefit of the promise. A mere stranger can not claim the benefit of the contract. Vrooman v. Turner, 69 N. Y. 280. Iowa and Wisconsin courts hold to the contrary; that is, that there need be no obligation from the promisee to the third party. Marble Sav. Bank v. Mesarvey, 101 Iowa 285. Enos v. Sanger, 96 Wis. 150. Q. 19. A agreed to pay one-fourth of B's debts. Can a creditor of B sue A on this agreement? CODE PLEADING AND PRACTICE 483 A. No. Because no one creditor could show that the agree- ment was made for his benefit, or identify himself as one of the creditors for whose benefit it was made. Wheat v. Rice, 97 N. Y. 296. Q. 20. A contracted to pay all outstanding debts of B. Can a creditor of B sue A on the contract ? A. Yes. The creditors were sufficiently identified as members of a class, all of whom were to be paid. Barlow v. Myers, 64 N. Y. 41. Q. 21. A, B, and C, being joint owners, deed land to D, who gives a note in payment to X in his individual name for the benefit of A, B and C. May X sue on the note? A. Yes. He is the trustee of an express trust. Scantlin v. Allison, 12 Kans. 85. Q. 22. A sheriff sold goods on execution and the buyer failed to pay for them. May the sheriff sue for the price ? A. Yes. The contract to buy was made with him for the benefit of the judgment creditor and judgment debtor. Armstrong v. Vroman, 11 Minn. 220. Q. 23. A subscribes for stock of a corporation at the solici- tation of B, its agent, and gives a note to the order of B in payment of his subscription. May B sue upon the note ? A. Yes. He is a person with whom a contract has been made for the benefit of another, and is therefore the trustee of an express trust. Consider ant v. Brisbane, 22 N. Y. 389. Q. 24. A and B are partners. A having entire management of the business, which he conducts in his own name, makes a deposit of partnership funds with C to secure a running ac- count. C supposes that A is the sole proprietor of the business, and knows nothing about the partnership. , C having become obligated to return the deposit, and having refused to do so, must A join B, with him in suit against C? 484 LAW STUDENTS' REVIEW A. No. As to the partnership funds in his hands, A is an express trustee of B, and may sue alone. Meinhardt v. Excelsior Brewing Co., 98 App. Div. (N. Y.) 308. Q. 25. One G L and the A & R Co. made an agreement of purchase and sale which was in part as follows : "I, G L, agent of Hoglund Sons & Co., agree to sell, and we, A & R Co., agree to buy" certain goods described. G L signed the contract in his own name. May G L sue on the contract ? A. Yes. If the agreement is personal to him he is the real party in interest ; if it was made by him on behalf of a principal, he is a trustee of an express trust. Albany, &c, v. Lundberg, 121 U. S. 451. Q. 26. Assume in the last question that G L made the agreement in the name of his principal. Could he then sue? A. No. He is not then legally the person with whom the contract was made. Ferguson v. McMahon, 52 Ark. 433. Q. 27. Can one who makes a contract to buy goods in his own name on behalf of an undisclosed principal sue on the contract for the failure of the other party to deliver ? A. Yes. He is the person having the legal interest in the contract. Brown v. Sharkey, 93 Iowa 160. Q. 28. May the undisclosed principal in the last question sue in his own name ? A. Yes. The former rule in most states was that an undis- closed principal could sue on the contract, and it has not been changed by Code. Barham v. Bell, 112 N. Car. 131. Q. 29. A and B each own 20 head of cattle, all of which B ships by railroad as his without disclosing the real facts as to ownership. Can A and B sue separately to recover injuries to their respective cattle, due to the negligence of the railroad company ? CODE PLEADING AND PRACTICE 485 A. Yes. B may sue for the damage to his cattle, being as to them the real party in interest; and either A or B may sue for the damages to A's cattle. With respect to the latter A is the real party in interest, while B is a person with whom the contract to carry was made for the benefit of A. The provision of the Code is that the trustee of an express trust may sue, not that he must sue. St. Louis, &c, v. Thacher, 13 Kans. 564. "All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plain- tiffs, except as otherwise prescribed in this act." § 446, N. Y. Code Civ. Pro. O. 30. A house was burned through the negligence of a rail- road, and the loss was paid jointly by two insurance companies in which the owner had policies. The two companies brought an action jointly against the railroad to recover on the owner's cause of action. Defendant demurs on the ground that each insurance company has a separate cause of action for that part of the loss paid by it. Should the demurrer be sustained? A. No. There is but one cause of action, belonging originally to the owner of the house, and in this both insurance companies have an interest as equitable assignees. Swarthout v. Chicago &c, 49 Wis. 625. Q. 31. A, having goods of A and B in his possession, sold them by bill of sale made in A's name only, to C. C did not know of B's interest. Who is entitled to sue for the pur- chase price? A. A may sue alone or B may join with A, being a person having an interest in the subject of the action and in obtaining the judgment demanded. Silliman v. Tuttle, 45 Barb. 171. Q. 32. The owner of a ^Itore mortgaged the fixtures and stock in trade separately to two different persons. May the mortgagees join as plaintiffs iri a single action for damages against one who converted both stock and fixtures ? A. The interests of the mortgagees were separate. The subject matter of one action was the conversion of the fixtures; that of the other the conversion of the stock. Neither mortga- 486 LAW STUDENTS' REVIEW gee had any interest in the damages to be recovered by the other. The mere fact that they were injured by the same act does not give them a right to join as plaintiffs in a single action. State v. Beasley, 57 Mo. App. 570. Q. 33. The proprietor of a dam obtained a preliminary in- junction against A and B, restraining them from floating any logs over the dam, and furnished a bond. The injunction was dissolved. A and B were severally damaged by the injunction, because it prevented them from fulfilling contracts which sev- erally and independently they had made for the delivery of logs. May they join as plaintiffs in an action on the injunction bond to recover damages for their respective injuries ? A. Both having an interest in the subject of the action and in the relief demanded, that is, in the damages arising out of the operation of the injunction, they therefore may join. The statute does not require a joint or equal or even a common in- terest in the plaintiffs. Loomis v. Brown, 16 Barb. 325. "The subject of the action" is the bond. See Rutledge v. Corbin, 10 Ohio St. 478. Q. 34. In 1865, A, B, C and D executed the following agree- ment : "We agree in case any of us is drafted into the service of the United States to pay our proportionate amounts to hire substitutes." A and B were drafted, and paid $1,500 and $1,100 respectively for substitutes. They sued C and D on the contract in one action to recover the shares which the latter were obligated to contribute. Was this a proper joinder of parties plaintiff? A. Held that the obligation of each party to the engagement was strictly several, and runs to each of the others severally; neither plaintiff has any interest in the success or failure of the other in recovery; there is no joint or common interest in the relief sought, or in the subject of the action, namely, the failure of the defendants to pay according to the contract. The only common element is that the right each one has to enforce is founded upon a contract which happens to be written upon the same sheet of paper. Therefore they can not join. Goodnight v. Goar, 30 Ind. 418. CODE PLEADING AND PRACTICE 487 Q. 35. Should adjoining property owners along the same street unite as plaintiffs in an action against a railroad com- pany which maintains a' nuisance in the street, in which they demand both an injunction and damages for the injuries caused to them severally thereby ? A. They may Join in such an action if it is brought for an injunction only, but not if it is brought for damages. Several plaintiffs by one complaint can not demand several matters of relief which are plainly distinct and unconnected, as are the damages which they severally suffer. But where there is one common interest centering in the point at issue, the plaintiffs have one general right to be relieved from a nuisance which affects all of them. Tate v. Ohio &c, 10 Ind. 174. Palmer v. Waddell, 22 Kans. 352. Q. 36. One Lawrence, the owner of a going business, trans- ferred his entire property and business to Lawrence Brothers, Inc., a corporation formed for the purpose of carrying on the business, of which he was the president and principal stock- holder. The corporation assumed all his debts and issued its stock to him. Certain creditors both of Lawrence and the corporation thereafter brought separate proceedings in bank- ruptcy against Lawrence and the corporation. These were groundless, and were instituted for the sole purpose of harass- ing the alleged bankrupts and injuring their credit. Can Lawrence and the corporation join as plaintiffs in an action against the creditors as for a conspiracy to injure their credit ? A. No. Assuming that Lawrence has a cause of action on the facts stated, the subject matter of that action is the injury to his own personal reputation and credit, and the corporation has no interest in the subject of that action or in the obtaining of a judgment therein. Conversely, if the corporation has a cause of action, it is for the injury to its business credit as a separate entity. Lawrence has no interest in the subject matter of that action. Lawrence v. McKelvey, 80 App. Div. N. Y. 514. Q. 37. A father and son, plaintiffs, joined in an action to set aside a contract which the defendant had fraudulently in- 488 LAW STUDENTS' REVIEW duced both plaintiffs to make, and in which each plaintiff undertook to sell to the defendant all the shares of stock of a certain company which each severally owned. The fraud was contrived to mislead both plaintiffs, who acted concurrently in the execution of the contract to sell. Is there a misjoinder of parties plaintiff? A. Yes. Neither plaintiff had any interests in the stock owned by the other, or in the damages sustained by the other. Bradley v. Bradley, 165 N. Y. 183. Q. 38. Several persons, joint owners of certain land, simul- taneously conveyed their respective interests by separate deeds to X, being thereto induced by his false and fraudulent repre- sentations. They then brought a single action, in which they united as plaintiffs to obtain cancellation of the several deeds. Is this a proper joinder of parties plaintiff? A. No. Had they jointly conveyed the whole fee by one deed, they would all be necessary parties. But where each conveyed separately his undivided interest, the only wrong each suffered was the wrong to himself; he had no interest in the cancellation of the others' deeds. It is not enough that all should have an interest in the subject of the action; they must all have also an interest in obtaining the relief demanded. Jeffers v. Forbes, 28 Kans. 174. Q. 39-. May two judgment creditors unite in an action to set aside a fraudulent conveyance by the judgment debtor? A. Yes. Both have a direct and common interest in the subject matter of the suit and in the relief sought. Gates v. Boomer, 17 Wis. 455. "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein, except as otherwise expressly prescribed in this act. * * * " § 447, N. Y. Code Civ. Pro. "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as a plaintiff, can not be obtained, he may be made a defendant, the reason therefor being stated in the CODE PLEADING AND PRACTICE 489 complaint. And where the question is one of a common or general interest of many persons; or where the persons, who might he made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or de- fend for the benefit of all." § 448, N. Y. Code Civ. Pro. Q. 40. A claims title under a single deed to a tract of land comprising several parcels, each in possession of a different occupant claiming a right thereto under a separate and distinct title. In an action of ejectment brought by A to recover the whole parcel, may the various occupants be joined as defend- ants? A. Yes. They all have an interest in the controversy adverse to A, to wit, a common interest in defeating his alleged title. Lewis v. Hinson, 64 S. Car. 571. Q. 41. When land claimed in ejectment is in the actual possession of a tenant, may the landlord be joined with him as a co-defendant? A. He may if he has in any way interfered to resist the plaintiff's claim or has aided or abetted the tenant in his re- sistance, or has asserted the right of ownership to be in himself as against the plaintiff. Abeel v. Van Gelder, 36 N. Y. 513. Q. 42. A and B contract jointly. B dies. Can his representa- tives be joined with A as defendants in a legal action upon the contract ? A. The provision of the Wisconsin Code as to who may be made a party defendant has not abrogated the common-law rule that the representatives of a deceased joint obligor can not in a legal action be joined with the survivors. There are, however, in a few states, special provisions allowing them to be so joined or to be brought in by order of the court. Dishneau v. Newton, 91 "Wis. 199. O. 43. May A, B and C, partners under the name of A & Co., maintain an action upon an account stated against C, D and E, partners under the name of E & Co. ? 490 LAW STUDENTS REVIEW A. Yes. While firms having a common partner could not formerly sue one another at law, yet they could do so in equity. The purpose of the code provisions with respect to parties is to extend to common-law actions the rules with respect to parties in equity. Cole v. Reynolds, 18 N. Y. 74. Q. 44. A by fraud obtained goods from X on credit, and assigned them to B for the benefit of A's creditors. In an action to recover the goods, X joined A and B as defendants. Was this proper? A. Yes. Both defendants are interested in the goods ad- versely to X. A is interested, claiming that the purchase from X was free from fraud, and that the goods should be held by his assignee for the benefit of his creditors. B is interested, claim- ing the right to the goods for the same purpose. Nichols v. Michael, 23 N. Y. 264. O. 45. Three adjacent buildings on a city street having one solid continuous front wall were owned by three several owners. A fire destroyed the buildings, but left the front wall standing. The wall then began to lean toward the street all along the front of the three lots, all of it being obviously inse- cure, and finally that part opposite the middle lot fell, carrying with it the rest. Pieces from that part of the wall in front of the middle lot and of one of the end lots fell on a pedestrian and killed him ; but none of the material from that part of the wall in front of the other end lot struck him. Can an action for damages for negligently causing the death of the pedes- trian be maintained against all three owners jointly? A. Yes. The fall of the wall was the direct consequence of the several acts of all the defendants in suffering the wall to remain in a dangerous condition; it was obvious that if any part went, all would go. Simmons v. Everson, 124 N. Y. 319. (Joint tort-feasors may be sued under the code just as for- merly. Gittleman v. Feltman, 191 N. Y. 205.) Q. 46. Are the obligees in Q. 33 obliged to join as plaintiffs ? A. Held in Missouri that the complaint is demurrable for de- fect of parties plaintiff if they do not. To permit one party to CODE PLEADING AND PRACTICE 49 1 sue alone might result in great injustice. He might recover the entire penalty of the bond, yet this would not bar another action by the other obligee ; and there can be no apportionment between them in an action brought by one alone. Dewey v. Carey, 60 Mo. 224. "Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a prom- issory note, whether the action is brought upon the instrument or by a party thereto to recover against other parties liable over to him, may, all or any of them, be included as defendants in the same action, at the option of the plaintiff." § 454, N. Y. Code Civ. Pro. Note: — This provision varies somewhat in the different states. Q. 47. Twenty-seven persons executed an instrument, the material part of which was as follows : "We, the undersigned, agree to become bound to A as sureties for B, each for the sum of $100, the liability of each of us to be separate." May they be joined as defendants in an action by A upon the bond ? A. Yes. They are persons severally liable upon the same written instrument. Wilde v. Haycraft, 2 Duvall 309. Q. 48. S, by writing, acknowledged receipt of $1,000 from D and agreed to buy certain property therewith for D. P, in a writing on the same paper, guaranteed the performance by S of his agreement. May S and P be joined as defendants in an action by D to recover damages for a failure to make the purchase ? A. No. P's guarantee is a separate instrument, although writ- ten on the same paper. DeRidder v. Schermerhorn, 10 Barb. 638. The courts in Iowa hold contra. Tucker v. Shiner, 24 Iowa 334. Q. 49. May the holder of a promissory note join as defen- dants in an action upon the same the maker and one who has guaranteed the payment by a writing on the note ? A. No. The provision permitting the joinder of parties to negotiable instruments allows the joinder of a maker and an in- dorser, but does not allow the joinder of a maker and one who is 492 LAW STUDENTS REVIEW a mere guarantor. The latter is not a party to the negotiable instrument, and his contract is distinct from that of the maker. It is otherwise if he signs as guarantor at the same time as the maker and upon the same consideration and before delivery, as he is then in the position of a surety and jointly liable. Mowery v. Mast, 9 Nebr. 445. Gale v. Van Arman, 18 Ohio 336. Q. 50. A and B executed a bond jointly to X, who sued A on the bond without joining B, merely alleging in his complaint that the bond was executed by A. A answered and proved that the bond was jointly executed by himself and B, and prayed judgment. Should he succeed? A. Yes. Parties to a joint contract must all be joined. Sundberg v. Goar, 92 Minn. 143. Note: — Provisions in the codes of Arkansas, Colorado, Iowa,. Kansas, Kentucky, Missouri, Minnesota and North Carolina make all joint contractors both jointly and severally liable. In those states A and B would not have to be sued jointly. Q. 51. A trespasser enters upon land owned jointly by two owners. One owner wishes to commence an action ; the other refuses to join. What should the first owner do ? A. He should make the second owner a defendant. The pro- vision of the Code that parties united in interest must be joined as plaintiffs or defendants is intended to apply to all actions, the former rule in equity requiring necessary parties to be so joined, and providing that any necessary party plaintiff who refuses to join as such might be made a party defendant. In an action for trespass joint owners are persons united in interest, for the trespass is an injury to possession, and at common law the possession of one is the possession of all. DePuy v. Strong, 37 N. Y. 372. Q. 52. How is the question to be determined whether in a given case the parties are sufficiently numerous and it is suffi- ciently impracticable to bring them all before the court, so that one may sue or defend for the benefit of all? A. No fixed rule can be given. In Tobin v. Portland Mills Co., 41 Ore. 269, ten persons sued as plaintiffs, and it appeared that ninety others were united in interest with them. In the course of CODE PLEADING AND PRACTICE 493 the litigation, affidavits from these other ninety were submitted to the court. The court held that the fact that the plaintiffs were able to get the affidavits from the other ninety showed that they were not too numerous, and that it would n?t have been imprac- ticable to bring them in as plaintiffs. Q. 53. A mortgagor who had procured insurance on the mortgaged property under a fire insurance policy payable to -the mortgagee as his interest might appear, joined the mort- gagee, who refused to come in as plaintiff, as a defendant with the insurance company. Is a demurrer interposed by the latter for misjoinder of parties defendant good? A. No. The mortgagee is a necessary party. The mortgagee might sue alone, and hold the surplus over the mortgage debt as trustee for the mortgagor. But the mortgagor may not sue alone. He has an interest in obtaining the surplus; also in see- ing that the mortgage debt is satisfied; and his interest there- fore extends to the whole of the insurance moneys. But he must make the mortgagee a party; for by the terms of the policy a payment is first to be made to the mortgagee to the extent of his interest. Lewis v. Guardian &c, 181 N. Y. 392. Q. 54. A testator left $400 to A, B and C jointly, and sep- arate legacies to D, E and F. A, B, C and D brought an action in behalf of themselves and all of the others interested, against the administrator and the residuary legatee, among other things to compel the sale of the decedent's real estate and the applica- tion of the proceeds to the payment of the debts and legacies. Is this a proper joinder of parties plaintiff? A. The interest of A, B and C in the estate rests upon their legacy of $400. As this was a joint legacy, A, B, and C were properly joined. Inasmuch as all the legatees had a common interest in having a fund provided for the payment of the lega- cies, the question involved was one of a common or general in- terest of many persons, and any one or all might sue for the benefit of all; therefore, D was a proper, though not a neces- sary, party plaintiff. McKenzie v. L'Amoureux, 11 Barb. 516. Q. 55. In the same case, could A or B have sued alone or with D? 494 LAW STUDENTS REVIEW A. No. The interest of A, B, and C in the joint legacy, like every joint interest, is deemed a unit, and therefore can not be enforced by a part only of those entitled to enforce it. Accord- ingly, if any one of them sue alone or with D, the other two are necessary parties. McKenzie v. L'Amoureux, 11 Barb. 516. Q. 56. V contracted to convey an undivided one-half interest in certain land to A; but thereafter conveyed the fee of one- third the land to B and another one-third to C, both of whom took with notice. A brought an action for specific performance against V and B to compel them to convey a one-half interest in the parcels which they respectively held. Should he have joined C? A. C was a necessary party. A was entitled to an undivided interest in the whole, but noi to an undivided interest in any specific part. Nor could he compel V and D to convey an undi- vided one-half interest in their parcels, and then assert his right against C in a second action. There was but one contract, and one cause of action under it, and it can not be split up into sev- eral actions against the several grantees. The rights of all the parties must be adjusted in one proceeding. Agard v. Valencia, 39 Cal. 292. Q. 57. A and B were joint owners of a herd of cattle that broke into X's field and injured his crops. Can X sue A alone ? A. Yes. The code has not changed the common-law rule that joint tort-feasors are severally liable. Brady v. Ball, 14 Ind. 317. Observe that the New York Code provides : "In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife. The husband is not a necessary or proper party to an action or special proceeding to ' recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation." § 450, N. Y. Code Civ. Pro. Note: — In some states the provision with respect to married CODE PLEADING AND PRACTICE 495 ■women suing alone is permissive only. There are other slight variations, for which the statutes must be consulted. Q. 58. May a wife sue her husband for assault and battery ? A. No. The code provisions allowing her to sue and be sued separately have not abrogated the common-law rule that a wife may not sue her husband, so far as concerns personal in- juries. Longendyke v. Longendyke, 44 Barb. 366. Q. 59. May a wife sue her husband to recover possession of her separate real property? A. Yes. The statutes giving married women control over their separate estates, coupled with the code provision under consideration, have changed the common-law rule referred to in the last answer so far as to permit a wife to maintain against her husband any action for the recovery of or for injuries to any part of her separate estate. Wood v. Wood, 83 N. Y. 575. Q. 60. An action is brought against a husband for a tort committed by his wife in his presence ; but no proof is offered that he instigated her to commit the tort. Should the action be dismissed on the ground that he was not properly made defen- dant, but that the action should have been brought against his wife alone ? A. No. The code has not changed the common-law rule that torts committed by the wife in the presence of the husband are presumptively committed by his direction. Defendant could not obtain a dismissal, but he might rebut the presumption. Cassin v. Delany, 38 N. Y. 178. The New York Code provides : "The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights ; but where a complete determination of the controversy can not be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, 496 LAW STUDENTS' REVIEW and makes application to "the court to be made a party, it must direct him to be brought in by the proper amendment." § 452, N. Y. Code Civ. Pro. Q. 61. A mortgagor brings an action to cancel a mortgage executed by. him to two mortgagees jointly, making only one of them party defendant. Can the court enter a decree, sup- posing the defendant to make no objection to the defect of parties ? A. Inasmuch as a complete determination of the controversy can not be had without the presence of the other mortgagee, and a decree of cancellation can not be entered 'without prejudice to his rights, the court must direct him to be brought in, and can not enter a decree unless he be made a defendant. Osterhoudt v. Board &c, 98 N. Y. 239, 244. Q. 62. A defendant is sued alone upon a joint contract but offers no objection to the non-joinder of his co-contractor. May the court enter judgment against him? A. Yes. A judgment against him alone 'will not prejudice his co-contractor, but may relieve him from liability. There is, therefore, no need to bring the co-contractor in, either to protect his rights or completely to determine the controversy. Osterhoudt v. Board &c, 98 N. Y. 244. Q. 63. A sheriff seized on execution against a judgment debtor property claimed by a third person, who thereupon insti- tuted an action in the nature of replevin against the sheriff to recover the property. Should the judgment creditor, who peti- tions to be allowed to defend, be brought in by the court? A. Yes. He has an interest in the subject of the action, and therefore must be let in if he petitions ; although he be not such a necessary party that the court would be obliged to bring him in on its own motion. Eosenberg v. Salomon, 144 N. Y. 92. Q. 64. A sued B in an Iowa court on a promissory note. The Iowa statute provides that a person should be allowed to intervene who has an "interest in the matter in litigation." C petitioned for leave to intervene, alleging that he was the real CODE PLEADING AND PRACTICE 497 owner of the note ; that it had been delivered to A by the maker for his, C's, benefit ; and that A had no interest therein except the legal title. Should the petition have been granted ? A. Yes. The matter in litigation was the debt which B owed. To avoid the necessity of suing A separately afterward for the proceeds, the real owner of the debt should be allowed to estab- lish his right in it in that action. The interest of the intervenor does not have to be a legal interest. Taylor v. Adair, 22 Iowa 279. The New York Code provides: — «* * * rpjjg cojupjajnt mus t contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition; and a demand of the judgment to which the plaintiff supposes himself entitled." § 481, N. Y. Code Civ. Pro. O. 65. A complaint states that "on or about the iSth day of February, 1868, plaintiff sold and delivered to the defendant 4,000 pounds of flour, and that the same was worth $212," and prays judgment for that amount. Should a demurrer on the ground that the facts stated do not constitute a cause of action be sustained? A. Yes. The code has not abrogated the necessity of pleading every fact which formerly was essential to a cause of action. There is nothing here to show any obligation on the defendant to pay at any designated time, or that the time of payment has arrived. The flour may have been sold to be paid for at a time in the future, or on the credit of some third party. Bowen v. Emmerson, 3 Ore. 452. Q. 66. A complaint alleged that defendant was indebted to plaintiff in the sum of $591.18 for work, labor and services in advertising for and at the special request of the defendant. On trial the plaintiff proved the facts as alleged, except that the evidence showed that the defendant had promised to pay in property of the value of $591.18, not money; that plaintiff had demanded the property, and that the defendant had refused. Should a motion to dismiss on the ground that the evidence did not prove the allegations of the complaint be granted ? 32— L. S. Eev. 498 law students' review A. The legal effect of the defendant's refusal was to render him liable for the money value of the property in -which he had contracted to pay. The Code has not destroyed plaintiff's option of pleading the facts, either as they actually exist, or according to their legal effect. Motion should be denied. New York &c. v. National &c, 148 N. Y. 39. Q. 6y. The complaint alleges that the plaintiff performed certain work, labor and services for the defendant at the lat- ter's request, of the reasonable value of $1,479.54, and that defendant was indebted to plaintiff in that sum ; but failed to aver the promise on the part of the defendant to pay. Was this sufficient? A. Yes ; all the actual facts are set out. That the defendant promised to pay is implied by law from the facts, and need not be averred. Farron v. Sherwood, 17 N. Y. 227. Q. 68. In an action of slander, plaintiff alleged that the de- fendant in the hearing of others, falsely said to plaintiff : "You have took my money and have it there in your bucket," and further averred "that the defendant meant thereby to charge the plaintiff with larceny." Discuss the sufficiency of the complaint. » A. The question as to what facts are necessary to constitute a given cause of action must be tested by common-law rules. Where, as in this case, slanderous words do not in themselves necessarily import the charge of a crime, it is necessary to aver not merely that there was an intent to charge a crime, but also such facts and circumstances must be alleged as will show that the words were used with intent to charge the crime. Christal v. Craig, 80 Mo. 367. Q. 69. Could the plaintiff, under the pleading in O. 67, prove an express promise to pay an agreed sum ? A. Held in Montana that he could not. He could prove the reasonable value of the services if he relied upon the promise implied by law; if he relied upon an express promise, he must plead it. Higgins v. Germaine, 1 Mont. 230. CODE PLEADING AND PRACTICE 499 Q. 70. In an action of ejectment, the complaint alleged "That the plaintiffs are the lawful owners in fee as tenants in common" of the premises described, and that the defendants were in possession and wrongfully withheld possession of the same. Should a demurrer for insufficiency on the ground that the complaint does not state facts showing plaintiffs' right to possession be sustained ? A. No. The complaint sufficiently states the fact that the plaintiffs are seized of the premises. This is the ultimate fact, from which the right to possession follows as a conclusion of law, and it is ultimate facts which are required to be pleaded, not evidentiary facts. Payne v. Treadwell, 16 Cal. 220. Q. 71. A complaint in ejectment alleges that defendant agreed with plaintiff to convey certain property for a consider- ation named; that plaintiff paid the consideration; that de- fendant delivered the deed to plaintiff, but refused to deliver, and retained possession of the property. Should a demurrer on the same ground as last stated be sustained ? A. Yes. There is no sufficient allegation here of the ultimate fact of seizin. Where the complaint merely states the evidence by which the ultimate fact is to be proved, the complaint is bad under the code, as it would be at common law. McCaughey v. Schuette, 117 Cal. 223. Q. J2. A contract with a building contractor provided that he was to be paid for his work when he had procured a certifi- cate from the architect that it was complete. In an action upon the contract, the agreement was set out in the complaint, and it was alleged that the building was complete, but there was no allegation that the certificate had been procured. Was the com- plaint sufficient? A. No. The procuring of the certificate was a condition pre- cedent to any recovery, and should have been alleged. Weeks v. O'Brien, 141 N. Y. 199. Q. 73. Would the pleading have been good if the complaint had contained an allegation "that the plaintiff has duly per- 500 LAW STUDENTS REVIEW formed all the conditions of the said contract on his part to be performed" ? A. In some states, including New York, it is sufficient in pleading performance of a condition precedent to state gener- ally that the party has duly performed. In states in which there is no such provision it is necessary to allege the time, place, and manner of performance of each condition. Murphy v. Hart, 122 App. Div. 548. Korbly v. Loomis, 172 Ind. 352. The New York code provides: "Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered." § 483, N. Y. Code Civ. Pro. Q. 74. A complaint alleged in a single count that while the plaintiff was driving, both his person and his vehicle were injured in consequence of a collision, due to the defendant's negligence, and prayed damages for the injuries so sustained. Was the complaint good? A. No. The causes of action for injury to his person and for injury to his property are distinct and separate, and they should be set out separately in different counts. Eeilly v. Sicilian &c, 170 N. Y. 40. Q. 75. In an action against a city for damages, the com- plaint alleged for the first cause of action that plaintiff was the owner of certain improved property; that the city without right had built a sewer across it; that the sewer was so con- structed and maintained that gases escaped therefrom ; that the plaintiff had notified the city of the same ; that the city had not repaired it; that the plaintiff was obliged to repair it himself at an expense of $922.98. For a second cause of action the complaint alleged "that the existence of said sewer is a permanent injury to plaintiff's property, whereby he is damaged to the sum of $3,000." Should a demurrer to the second count as not stating facts sufficient to constitute a cause of action be sustained? A. Yes. The rule that every cause of action must be separately stated requires that it be complete in itself, and contain all the CODE PLEADING AND PRACTICE 5OI facts constituting the cause of action. The allusion to "the said sewer" does not operate to incorporate in the second count the allegations of the first count respecting the sewer. There is, therefore, nothing in the second count to show that the maintain- ing of the alleged nuisance was unlawful. Murray v. Butte, 35 Mont. 161. Q. 76. Is an allegation in a count that plaintiff repeats "all the matters and things set forth in" specified paragraphs of a preceding count sufficient to incorporate the allegations of the preceding count in the later one? A. It is where the reference to the preceding count is perfect- ly definite ; as for instance, a reference to paragraphs by number. Treweek v. Howard, 105 Cal. 434. Eealty &c. v. Farm &c, 79 Minn. 465. Q. 7J. In a complaint in an action for slander containing one count only the following slanderous words were alleged: "You swore to a lie in the probate court; you were in my smoke-house, pilfering," with appropriate allegations that the defendant intended thereby to accuse the plaintiff of the crimes of perjury and larceny. Is the complaint good? A. No. It sets out two separate slanders constituting two distinct causes of action. These should be separately stated and numbered. ' Christal v. Craig, SO Mo. 367. The New York Code provides: — "The plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly de- nominated legal or equitable, or both, where they are brought to recover, as follows : 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal con- versation or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Eeal property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or deten- tion thereof. 5<32 LAW STUDENTS REVIEW 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or trans- actions connected with the same subject of action, and not in- cluded within one of the foregoing subdivisions of this section. 10. For penalties incurred under the forest, fish and game law. 11. For penalties incurred under the agricultural law. 12. For penalties incurred under the public health law. But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the action ; and it must appear upon the face of the complaint, that they do not require different places of trial." § 484, N. Y. Code Civ. Pro. Q. 78. A complaint alleged for the first cause of action that plaintiff and defendant were tenants in common of a mill, had contracted with one another for the alternate use of it, and for the payment by each of an agreed part of the expense of main- tenance, and alleged a breach by the defendant, to the plaintiff's damage. For a second cause of action, the complaint alleged that the defendant had wrongfully drawn off and diverted the water from the stream on which the mill was, thus interfering with the operation of the mill, to the plaintiff's damage. Are these causes of action properly united? A. No. One is in tort, the other in contract. The acts of the defendant in breaching the contract and diverting the water are not the same transactions; nor are they transactions connected with the same subject matter. In the one case a contract, in the other a water right is involved. Gertler v. Linscott, 26 Minn. 82. Q. 79. A complaint in an action against an administrator sets out two causes of action; one for a debt due from the deceased to plaintiff; the other for a gravestone furnished by the plaintiff at the request of the administrator. Are these properly united? A. No. The causes of action must not merely be both of them against the defendant, but they must affect him in the same ca- CODE PLEADING AND PRACTICE 503 pacity. He is liable for the debt of the decedent only as admin- istrator; his liability for any debts contracted by him after the death of the decedent, even though in connection with the dis- charge of his duties, is personal. Ferrin v. Myrick, 41 N. Y. 315. Q. 80. A complaint alleged for a sole cause of action that the plaintiff contracted with the defendant to sell and deliver two machines to the defendant; that plaintiff delivered the same ; that defendant claimed that they were not according to the specifications of the contract, and directed the plaintiff to remove them; that plaintiff sent for them, and that the de- fendant then forcibly prevented their removal, and converted them to his own use. Do the claims here for the breach of the contract and the conversion arise out of the same transaction ? A. Held in Connecticut that they do; that a transaction means "an act or agreement or several acts or agreements, hav- ing some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered." All the facts consti- tute one whole, and, without taking all into consideration the legal rights of the parties, could not be determined. Craft &c. v. Quinnipiac &c, 63 Conn. 551. Since plaintiff may recover either on the contract or the con- version, as the facts appear on trial, but not for both, he has really but one cause of action. Otherwise he would have to state the two claims separately. Craft &c. v. Quinnipiac &c, supra. Note: — The courts of the various states have put a great vari- ety of irreconcilable constructions upon the phrase "same trans- action." The cases here referred to must simply be taken as illustrative of the views of different courts. The Connecticut view represents the most liberal interpretation of the phrase; the New York decisions, the narrow interpretation. Q. 81. A conveyed wild land by warranty deed in exchange for a house and lot, falsely representing that he had title to the land, when in fact he had not. In a complaint in an action brought by the grantee against A there were two counts: (i) on the warranty of title in A's deed ; (2) for damages by reason of his fraud. Are the causes of action properly united? 5O4 LAW STUDENTS REVIEW A. Yes. They are claims arising out of the same transaction, namely, the exchange of the house and lot for the wild land. Koepke v. Winterfield, 116 Wis. 44. Q. 82. A complaint alleged two causes of action, one for slander, and one for false imprisonment, upon the following facts: defendant met plaintiff in the presence of others and called plaintiff a thief, said plaintiff had stolen a horse, and caused plaintiff's arrest and imprisonment. Are they properly- united ? A. Yes. They arise out of the same transaction. Harris v. Avery, 5 Kans. 146. Q. 83. A complaint alleged in one count that plaintiff while in defendant's store as a customer was slandered by a clerk, who accused her of shop-lifting; and in a second count that plaintiff was then arrested by the store detective maliciously and without probable cause. Were the counts properly joined? A. Held in New York that they were not. The events hap- pened simultaneously, but beyond that were totally disconnected.- DeWolfe v. Abraham, 151 N. Y. 186. Q. 84. Assuming the causes of action referred to in Q. 74, to be separately stated, are they properly united in one com- plaint ? A. Yes. They grow out of the same transaction, namely, the collision. Mclnerney v. Main, 82 App. Div. 543. Q. 85. A complaint set out for a first cause of action the making of a lease by defendant to plaintiff of certain premises, with a covenant of quiet enjoyment, and a breach of covenant on the part of the lessor by a forcible entry; and for a second cause of action that the defendant on the same occasion broke into and entered the leased premises and broke open a trunk and removed the contents thereof. Are these causes of action prop- erly united? A. In New York they are not regarded as arising, out of the came transaction. Keep v. Kaufman, 56 N. Y. 332. CODE PLEADING AND PRACTICE 505 Q. 86. A complaint alleged for a first cause of action an agreement whereby defendant agreed to sell an automobile to plaintiff for $8,500 and to take in payment $5,500 cash and a second-hand automobile at a valuation of $3,000; that plain- tiff performed ; that defendant failed to deliver the new auto- mobile, returned the cash payment, but refused to return the old automobile and converted the same to his own use, to plaintiff's damage $3,000; and for a second cause of action alleged the same facts except with respect to the demand for the old machine and the defendant's refusal and conversion of the same ; and further alleged an agreement between defendant and plaintiff, in consideration of the cancellation of the original contract, to return to the plaintiff the purchase money paid, to wit, $5,500, and $3,000 additional, the defendant to retain the second-hand machine, and that no part of the sum had been paid except the sum of $5,500. Are these causes of action properly joined? A. No. The claims grow out of the same transaction, but the causes of action are not consistent with each other. The first cause proceeds upon the theory that the title to the automobile was in the plaintiff, and that the defendant wrongfully deprived him of it by converting it; the second cause of action proceeds upon the theory that the title to the automobile was vested in the defendant. They are contradictory. The proof to establish one would destroy the other. Drexel v. Hollander, 112 App., Div. 25. The New York Code provides: — "The only pleading, on the part of the defendant, is either a demurrer or an answer." § 487, N. Y. Code Civ. Pro. "The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof : 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties, for the same cause. 5. That there is a misjoinder of parties plaintiff. 506 LAW students' review 6. That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to consti- tute a cause of action." § 488, N. Y. Code Civ. Pro. Note: — The grounds of demurrer vary somewhat in the differ- ent states. "The demurrer must distinctly specify the objection to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth, or eighth of § 488 of this act, may be stated in the language of the subdivision; an objection taken under either of the other subdivisions must point out specifically the particular defect relied upon." § 490, N. Y. Code Civ. Pro., "The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may answer the causes of action not demurred to." § 492, N. Y. Code Civ. Pro. "Where any of the matters enumerated in § 488 of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer." § 498, N. Y. Code Civ. Pro. "If such an objection is not taken, either by demurrer or an- swer, the defendant is deemed to have waived it; except the ob- jection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action." § 499, N. Y. Code Civ. Pro. O. 87. A complaint is entitled "The Phoenix Bank against Ezekiel Donnell." The complaint duly sets out the execution of a note by "the said defendant" to "the said plaintiff" and nonpayment, but does not allege that the plaintiff is a corpora- tion. Should a demurrer be sustained interposed on the grounds "that it does not appear that the plaintiff is a corpor- ation duly incorporated, and entitled to sue" and "that the facts alleged do not constitute a cause of action"? A. No. The only defect in the complaint is that it does not show, upon its face, affirmatively, that the plaintiff has capacity to sue. To sustain a demurrer it should appear upon its face that the plaintiff had not such capacity. Neither is the allega- tion of incorppration regarded in the code states as being any CODE PLEADING AND PRACTICE $07 part of the cause of action, which is fully stated by the other averments. Phoenix &c. v. Donnell, 40 N. Y. 412. Los Angeles &c. v. Davis, 146 Cal. 179. Q. 88. How could defendant take advantage of the failure to allege incorporation ? A. If the plaintiff is not in fact a corporation, that should be alleged in the answer. If it is a corporation, defendant can not take advantage in his pleadings of the failure so to allege. Phoenix &c. v. Donnell, supra. Los Angeles &c. v. Davis, supra. Q. 89. A complaint, after alleging In due form a debt from defendant to one A, and that it was not paid, and that A had title, further averred that "letters of administration upon the estate of A were duly issued to plaintiff, who as administrator has sole power to collect the debt above described." Should a demurrer interposed on the ground that the facts are not sufficient to constitute a cause of action because there is no allegation that the intestate died leaving property in this state, or that letters in administration had been issued by any surrogate having authority in this state, be sustained? A. No. The cause of action is the debt from the defendant to A, and the facts as to this are fully alleged. Secor v. Pendleton, 47 Hun 281. Q. 90. How should the defendant take advantage of the defect in plaintiff's allegations ? A. The defect in the complaint is that on the facts as alleged the plaintiff has not capacity to sue; and the defendant should demur upon that ground, not for insufficiency. Secor v. Pendleton, 47 Hun 281. Q. 91. The Golden Valley Company, vendor, executed a con- tract of sale of certain land with one Johnstone, which was signed by both parties; also by Johnstone's wife, though the latter was not a party thereto or mentioned therein. The vendor brought an action against Johnstone alone for a can- 508 LAW students' review cellation of the contract. Johnstone demurred to the com- plaint on the ground that there was a defect of parties de- fendant, in that his wife was not joined with him. Assuming that she had rights under the contract, is the demurrer good? A. No. The provision that the defendant may demur for defect of parties is subject to the limitation, which has always prevailed, that it must affirmatively appear that the party demurring is to be prejudiced by the omission to make the omitted party a defendant. Johnstone was not prejudiced by the omission of his wife. Randall v. Johnstone, 20 N. Dak. 493. Q. 92. A complaint alleged that each of the plaintiffs was the owner of a specified undivided part of certain lands (the sum of the specified fractions being less than the whole) ; that the defendant trespassed upon the land; and demanded dam- ages. Is the complaint demurrable? A. Yes. All the owners must be joined in an action for tres- pass to realty. As it appears on the face of the complaint that some were not joined, there is a defect of parties. De Puy v. Strong, 37 N. Y. 372. O. 93. Several causes of action were united in one count in a complaint. Should defendant's demurrer be sustained? A. No. A demurrer lies where causes of action which may not be joined are improperly united in one complaint, but not where separate causes of action are united in one count. The remedy in the latter case is by a motion to require the plain- tiff to state separately his causes of action. Kurtz v. Ogden &c, 37 Utah 313. Q. 94. A complaint alleged that in March, 1900, plaintiff and defendant made an oral agreement whereby for the space of one year from April 1, 1900, the defendant agreed to buy all the milk produced upon plaintiff's farm at a specified price, and further alleged a breach of the contract and damages. How should the defendant avail himself of the statute of frauds to defeat the action ? A. He should demur, as it appears on the face of the com- plaint that the contract was not in writing. If the complaint CODE PLEADING AND PRACTICE 509 had simply alleged an agreement without stating whether or not it was in writing, it would have been necessary to set up •jy answer the fact that it was oral. Seamans v. Barentsen, 180 N. Y. 333. Q. 95. A complaint alleged that the plaintiff was "on the '19th day of November, 1856, entitled to the possession of and the rents and profits of" certain property described, and that the defendant was in possession and collecting rents, and prayed that the defendant might be enjoined from paying out any of the rents collected, and reqired to pay the same to the plaintiff. Is the complaint demurrable? A. Yes. It does not state the facts which show that the plaintiff is entitled to the rents, but simply alleges a conclusion of law. Sheridan v. Jackson, 72 Ni Y. 170 Q. 96. A demurrer in an action reads as follows: "the de- fendant demurs to the complaint herein on the ground that there is a defect of parties defendant." Does this raise an issue as to the parties ? A. No. The court will overrule the demurrer without con- sidering the alleged defect, because, when the objection is that there is a defect of parties, the demurrer must distinctly specify who are the parties omitted. This was the former rule of chancery practice, and still obtains. Jaegar v. Sunde, 70 Minn. 356. Q. 97. Assuming that the defendant in Q. 72 did not demur to the complaint, could he take advantage of the defect upon the trial ? A. Yes. The objection being to the sufficiency of the com- plaint, it was not waived by failure to demur; and he might have moved to dismiss. Weeks v. O'Brien, 141 N. Y. 199. Q. 98. In an action to contest a will, some of the legatees were made defendants; others were not. None of the defen- dants objected in any way to the failure to join all the lega- tees until after judgment was entered for the plaintiff. Then £lO LAW STUDENTS REVIEW a motion was made to set aside the judgment for defect of parties defendant. Plaintiff opposed the motion on the ground that the objection, not being to the jurisdiction of the court or the sufficiency of the complaint, had been waived by failure to take it by way of demurrer or answer. Should the motion be granted ? A. It should be granted. While a defendant may waive his own rights by neglecting to demur or answer, he may not waive the rights of third parties. The court should have directed the other legatees to have been brought in on its own motion. Reformed Church v. Nelson, 35 Ohio St. 638. The New York Code provides: — "The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. (2) A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language without repetition." § 500, N. Y. Code Civ. Pro. "A defendant may set forth, in his answer, as many de- fenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counter-claim must be separately stated, and num- bered. Unless it is interposed as an answer to the entire com- plaint, it must distinctly refer to the cause of action which it is intended to answer." § 507, N. Y. Code Civ. Pro. "A partial defense may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defense, within the meaning of this section." § 508, N. Y. Code Civ. Pro. "Each material allegation of the complaint, not controverted by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where a reply is re- quired, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply i CODE PLEADING AND PRACTICE 51I is not reauired, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires." § 522, N. Y. Code Civ. Pro. Q. 99. Is a denial in an answer of "each and every material allegation" of the complaint sufficient ? A. No. It does not sufficiently indicate which allegations are denied, as it is a question of law which are and which are not material. Mattison v. Smith, 1 Eobt. 706. Q. ioo. Is a denial of "each and every allegation in the paragraphs of the complaint numbered I and II" sufficient ? A. Yes. This specifically identifies the allegations which are denied. Curran v. Arp, 141 App. Div. (N. Y.) 659. Q. ioi. In answer to a complaint setting out a cause of ac- tion for a debt, the answer denied "that the defendant was at the time of the commencement of the action indebted to the plaintiff." Is the denial sufficient? A. No. This is an allegation of a legal conclusion. It does not put any fact in issue. Emery v. Baltz, 94 N. Y. 408. Q. 102. A complaint alleged that the defendant was em- ployed to collect a note for the plaintiff; that he collected the same and failed to turn over the proceeds. The answer alleged that the collection was made for one X, and that the proceeds were duly turned over to X. Should the plaintiff's motion for judgment on the pleadings be granted? A. Yes. The answer contains a version of the transaction in some respects inconsistent with the allegations of the complaint., but that does not amount to a denial. In the absence of a direct and unequivocal denial, the allegations of the complaint are taken as true. West v. American &c, 44 Barb. 175. Q. 103. A complaint alleged that defendant made an excava- tion in the street and left it unguarded, and that plaintiff fell 512 LAW STUDENTS REVIEW into it and was injured. The answer alleged for a first defense that the injuries resulted from plaintiff's contributory negli- gence ; and for a second defense, that plaintiff had theretofore compromised his claim with the defendant; and for a third defense, that defendant "denied each and every allegation in the said complaint not hereinbefore specifically admitted, qual- ified or denied." On the trial plaintiff offered no evidence that defendant made the excavation, claiming that that was admitted by the answer. Is his contention correct? A. Yes. The allegation of the complaint that the defendant made the excavation was not specifically admitted or denied, and a statement to the effect that the defendant "denied each and every allegation in the said complaint not hereinbefore admitted," etc., is too indefinite to raise an issue. Clark v. Dillon, 97 N. Y. S70. Q. 104. Is a denial of any "knowledge or information suffi- cient to form a belief as to" any specified allegations in the complaint sufficient ? A. Yes. The courts have held that the various sections taken together of the code with respect to complaints manifest an in- tention to allow such denials. Wilson v. Eastman, &c, 56 Hun 194. Q. 105. In an action against a director of a corporation to enforce a statutory liability, the complaint alleges the incor- poration of the company, and the answer, verified by a director, denies any knowledge or information sufficient to form a belief as to this allegation. Is this a good denial ? A. No. The defendant is not permitted to deny knowledge or information of matters presumptively within his knowledge, and the denial will be stricken out on motion. Church v. Hendrie, &c, 47 Colo. 544. Q. 106. A plaintiff sued a railroad for negligently causing the loss of live stock shipped by plaintiff. Defendant interposed a general denial, and offered upon the trial to prove the con- tract of shipment between the plaintiff and defendant, which CODE PLEADING AND PRACTICE 513 provided that the defendant should be liable for injury to live stock only upon the giving of certain notice by the plaintiff, and to prove that the notice had not been given. Should the evidence be admitted? A. No. This is an affirmative defense, and should have been so pleaded. Libby v. St. Louis, &c, 137 Mo. App. 276. Q. 107. A complaint in an action for negligence alleged that the plaintiff was not guilty of contributory negligence. Defen- dant's answer denied each and every allegation contained in the complaint. On trial may the defendant offer evidence of contributory negligence on the part of the plaintiff? A. No. Contributory negligence is an affirmative defense and must be so set up in the answer. The defendant is not relieved of this necessity by plaintiff's allegation of lack of contributory negligence. Cincinnati, &c. v. Forrest, 73 Ohio St. 1. Q. 108. In an action for a divorce, defendant moved for leave to appear specially for the purpose of filing a plea in abatement to the jurisdiction of the court on the ground that plaintiff was not a resident of the state. Should the motion be granted ? A. No. There is no such practice under the code as a sep- arate plea in abatement. There is but one answer, and defend- ant must set up in it all his defenses simultaneously. McKim v. Dist. Court, 33 Nev. 44. Q. 109. In an action of ejectment the answer denied posses- sion, and, as a separate defense, alleged that defendants were in possession of the premises as servants of another, and not claiming any right in themselves. Is it proper to plead both ■defenses ? A. Yes. Defendants are not required to elect between in- consistent defenses, but may plead all the defenses they have. Buhne v. Corbett, 43 Cal. 264. N te: — This is the prevailing rule. But it is held in some .33— »L. S. Eev. 514 LAW STUDENTS REVIEW states that defenses may not be united which are inconsistent to the extent that one or the other must necessarily be false. Seattle, &c, v. Carter, 13 Wash. 281. Q. 1 10. In an action on a contract, the answer (1) denied the making of the contract; (2) alleged that the defendant had been induced to make the same by fraud and had rescinded. Are these defenses inconsistent? A. No. Pleadings are to be construed according to their legal effect. The rescission of a voidable contract avoids it from the beginning, and one may properly deny altogether the making of such a contract. This answer would be good even where incon- sistent defenses are not allowed. Loveland v. Jenkins-Boys Co., &c, 49 Wash. 369. Q. in. In an action for services rendered the answer (1) denied the rendition of the services, and (2) alleged that de- fendant had settled plaintiff's claim for the same in a general compromise of all demands between them. Would this be al- lowed in a state which does not permit inconsistent defenses? A. Yes. The defenses are not necessarily inconsistent. De- fendant might have compromised plaintiff's claim without ad- mitting its validity. Steenerson v. Waterbury, 52 Minn. 211. Q. 112. A brings an action to replevy personal property from B. B's answer alleges that B took the property from A under a chattel mortgage covering it given by A to secure his note for $600, payable 30 days after date thereof; that the mortgage (which is set out) recites that it was given to secure a note for $500 payable one year after date thereof ; that this misdescription of the note secured was a mistake due to the fact that the parties did not have the note before them when they drew the mortgage; and that the said note for $600 is due and unpaid. The answer concludes with a demand for judgment for the return of the property and damages. Should plaintiff's demurrer to the answer be sustained ? A. Yes. Although equitable" defenses may be interposed to legal actions, the facts here sought to be shown do not- consti- tute an equitable defense, but a legal defense, once they* are es- CODE PLEADING AND PRACTICE 5 15 tablished. The defendant must have the instrument reformed before he has any right to possession which he may use to justify his taking. FoUett v. Heath, 15 Wis. 601. Q. 113. A sues B in ejectment, alleging title in A by deed from B's deceased father. B's defense is that the inclusion of the parcel in the deed from his father to A was a mistake, and that he is entitled to the same as heir. Must he establish his legal title in a separate action ? A. No. He may set up these facts by way of counterclaim and ask reformation of plaintiff's deed by way of affirmative re- lief. The court will then try the equitable issue first and the issue at law separately afterward. DuPont v. Davis, 35 Wis. 631. Q. 114. A sues B in ejectment and proves on trial that he has legal title to the premises in question. B alleged in his answer that he occupied the premises as tenant of one H ; tbat the land was included in a purchase by H of a large tract from plaintiff's grantor, but was not included in the deed by a mutual mistake in the description. Should the evidence of these facts be admitted? A. According to the prevailing rule (illustrated in the last two answers) the evidence should be excluded. But in some states (including New York, where this question arose) a de- fendant may interpose equitable defenses and defeat the action, even without asking, in such a case as this, for a reformation. Crary v. Goodman, 12 N. Y. 266. Q. 115. A complaint set out a cause of action for the con- version of a note and mortgage. The answer alleged "as a de- fense" that by the law of the state where the maker resided and the land was located the note and mortgage were outlawed. Plaintiff demurred on the ground that the answer was insuffi- cient in law on the face thereof. Is the demurrer good ? A. Yes. The facts pleaded were not a complete defense. As- suming them to be true, the plaintiff was still entitled to at least nominal damages; they merely affected the value of the note and mortgage. Had they been pleaded "as 1 a partial defense" a demurrer would not lie. Thompson v. Halbert, 109 N. Y. 329. 516 LAW students' review Q. 116. In an action for libel based on a letter, the answer alleged "for a defense and justification of the statements con- tained in the letter" that they were true. Is this demurrable ? A. Yes. For the same reason as in Q. 115. It is not a com- plete defense. Jac^oby v. James, 136 App. Div. 431. The New York Code provides: — "The counterclaim, specified in the last section (§ 500 pre- ceding Q. 99, supra) must tend, in some way, to diminish or de- feat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: 1. A cause of action arising out of the contract or transac- tion set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, existing at the commencement of the action." § 501, N. Y. Code Civ. Pro. O. 117. In an action to recover the price of goods sold and delivered, the answer sets up as a counterclaim facts showing that the defendant is entitled to a conveyance of certain land of which plaintiff holds title, and asks judgment for the con- veyance. Will a demurrer to counterclaim for insufficiency be sus- tained ? A. Yes. It in no way tends to defeat plaintiff's recovery. A judgment for the defendant on the counterclaim would not di- minish the amount of the judgment for the plaintiff, assuming both causes of action to be proved. Mattoon v. Baker, 24 How. Pr. 329. Q. 118. A sues B to recover the price of goods, wares, and merchandise. Assuming that the transaction sued on has no connection with a partnership, may B allege, by way of counterclaim, that he and the plaintiff had been partners ; that it had been arranged between them that plaintiff should wind up the business ; that pursuant to such arrangement the plain- CODE PLEADING AND PRACTICE S l 7 tiff had disposed of the partnership assets; that defendant was entitled to a share therein, and asking for an accounting? A. Yes. If it appears on such an accounting that there is money due from the plaintiff to the defendant, the amount so due will diminish the amount due from'the defendant to plaintiff; and the amount of any judgment which may be rendered for the plaintiff will be less by so much. Waddell v. Darling, 51 N. Y. 327. Q. 119. May the plaintiff demur to the counterclaim set forth in the last question on the ground that only liquidated damages may be set off against the plaintiff's cause of action ? A. No. It was formerly the rule that unliquidated damages could not be set off, either at law or in equity, except under cer- tain special circumstances; but this rule has not been adopted by the codes. Shelton v. Conant, 10 Wash. 193. Q. 120. The New York Code provides that in an action of ejectment "where permanent improvements have been made in good faith by the defendant * * * while holding under color of title adverse to the plaintiff, the value thereof must be allowed to the defendant in reduction of the damages of the plaintiff." In an action for ejectment and to recover damages, the defen- dant set up by way of counterclaim the value of permanent improvements made by him, claiming under this section. Is this a proper counterclaim ? A. No. A counterclaim must be a cause of action. The Code provision allows to the defendant the value of improvements to reduce plaintiff's claim, and he may therefore allege such im- provements and their value by way of a defense. The Code does not give him any independent right of action for them; they may not be counterclaimed. Pierson v. Safford, 30 Hun 521. Q. 121. An action was brought against an insurance company on a fire insurance policy which by its terms took effect Febru- ary 1, 1891, to recover for a loss from a fire which occurred February 6, 1891. Defendant's answer denied the allegations 518 LAW students' review of the complaint ; and alleged as a counterclaim that the policy was intended to take effect February 17, 1891 ; that it was made to take effect February 1st by mistake, and asked for its reformation. The plaintiff having served no reply, the defen- dant moved for judgment on its counterclaim. Should the mo- tion have been granted ? A. No. It was not a counterclaim. Had the facts been pleaded as an equitable defense, they would have been a com- plete defense; but facts which controvert plaintiff's claim and serve to defeat it as a cause of action are inconsistent with the idea of a counterclaim, which is a separate and distinct cause of action which meets the plaintiff's cause of action not by denial of it or by an attack upon its existence, but by opposing a balanc- ing demand on the part of the defendant. Walker v. American &c, 143 N. Y. 167. Note: — This counterclaim would be allowed, however, in those states which do not permit a defendant to set up equities by way of defense in a legal action. See Wisconsin cases cited in answer to Questions 112 and 113. Q. 122. An administrator sold assets of the estate and sued the purchaser for the price. The latter counterclaimed on a debt due him from the decedent. Should a demurrer to the counterclaim be sustained? A. Yes. The requirement that the counterclaim must be a cause of action against plaintiff means that he must be liable ■ for it in the same capacity in which he sues. An administrator is liable for the debts of the decedent as administrator only, while the contracts which he makes in the course of administra- tion are personal to him. Thompson v. Whitmarsh, 100 N. Y. 35. Q. 123. A, B & C bought cheese of D, and each gave his note in payment for one-third the purchase price. D sues A upon A's note and A sets up a counterclaim for a breach of warranty by D in the sale of the cheese, but makes no other defense. Is D entitled to judgment on the pleadings? A. Yes. The alleged counterclaim is not a cause of action in favor of the defendant, but in favor of himself and B and C jointly. No one of them could sue upon it alone without joining CODE PLEADING AND PRACTICE 519 the others; therefore, no one of them can set it up as a coun- terclaim. Hopkins v. Lane, 87 N. Y. 501. Q. 124. A sues B and C upon B's and C's joint and several undertaking. B and C are the owners of separate, claims against A, each of which is greater than the amount for which A sues. Can they interpose these counter claims in separate answers ? A. Yes. A cause of action to be available as a counterclaim need not be one in favor of all the defendants, but any defend- ant, between whom and the plaintiff a separate judgment may be had in the action, may set up as a counterclaim, any cause of action against the plaintiff belonging to himself alone. The un- dertaking upon which this action is brought is joint and sev- eral; separate judgment might be recovered in favor of the plaintiff against either one of the defendants. Atwater- v. Spader, 46 Hun 680. Q. 125. A complaint alleged that plaintiff was the owner of certain timber land obtained by deed from X ; that simultane- ously with the deed X granted to plaintiff a right of way over adjoining land owned by X for a logging railroad; that the plaintiff had constructed and was maintaining such a road; that defendant was unlawfully obstructing it, and prayed an injunction. Defendant's answer denied all these allegations, and set up two counterclaims: (1) that the defendant was the owner of the land over which the railroad ran, and that plaintiff was unlawfully trespassing upon it in maintaining the railroad; (2) that by the operation of his engines on the road in a negligent manner the plaintiff frightened defendant's cattle in the adjacent fields, and hindered defendant in the pursuit of his occupation of farming. Damages were demanded on each counterclaim. Are these counterclaims demurrable ? A. The first counterclaim is proper. The subject matter «of the action is the asserted right of each party to the exclusive possession of the land over which the road extends, and a com- plaint to recover damages for the wrongful interference with defendant's right of possession is connected with the subject of the action. The second counterclaim is bad. The injuries suf- 520 LAW STUDENTS REVIEW f ered by defendant from the negligent operation of the railroad have no connection with the subject matter of the action. Wild &c. v. Benson, 114 Minn. 92. Q. 126. What is the "subject of an action" within the mean- ing of the sections respecting counterclaims ? A. It is "the things in respect to which the plaintiff's right of action is asserted, whether it be specific property, a contract, a threatened or violated right, or other things concerning which an action may be brought and litigation had." Phillips Code Pleading, 229. Glen & Hall Mfg. v. Hall, 61 N. Y. 226. Cornelius v. Kessel, 58 Wis. 237. Q. 127. In an action by a carrier to recover freight charges, may the defendant counterclaim for loss occasioned by wrong- ful delay of the carrier? A. Yes. The subject matter of the two actions is the same. Elwell v. Skiddy, 77 N. Y. 282. Q. 128. Where a plaintiff sues for injury to his boat caused by a break in the defendant's canal, may the defendant ask by way of counterclaim damages for the break in the canal caused by the plaintiff's negligence ? A. Yes. The subject matter is the same. McArthur v. Green Bay & M. Canal Co., 34 Wis. 139. Q. 129. A lessor sues for rent. May the tenant assert a counterclaim for damages for wrongful interference by the lessor with the tenant's enjoyment of the premises ? A. If the interference amounted to an eviction, the counter- claim may be interposed, as such an eviction amounts to a breach of the very contract on which the landlord sues, and the. two claims arise out of the same contract. Goebel v. Hough, 26 Minn. 252. If, however, the landlord is guilty of a mere trespass, the counterclaim does not rest in contract, but in tort, which has no more connection with the original cause of action than if it had been committed by a stranger to the lease. Boreel v. Lawton, 90 N. Y. 293. CODE PLEADING AND PRACTICE 52 1 Q. 130. In an action upon an account, the defendant alleged by way of counterclaim that the plaintiff had deprived her of the use of a certain wagon which she owned, and refused to de- liver the same to her, and demanded judgment for the reason- able value of such use. The plaintiff demurred on the ground that a counterclaim in tort can not be interposed in an action upon a contract where the two were unconnected and did not arise out of the same transaction. Was the demurrer well taken? A. No. The defendant had the option of waiving the tort and suing upon the contract, and it is apparent that this is what the defendant intended to do. In an action upon a contract any other cause of action on contract existing at the commencing of the action may be counterclaimed, even though the two be en- tirely unconnected. Jansen v. Dolan, 157 Mo. App. 32. Q. 131. In an action by a mortgagee against a mortgagor to enforce a purchase money mortgage, may the defendant by way of counterclaim rely on the fact that he was induced to purchase the property and to give the mortgage to secure part of the purchase price thereof by the fraudulent representations of the mortgagee as to the situation and extent of the premises, and that he was damaged thereby, and ask judgment for the damages ? A. Yes. The original cause of action and the defendant's. claim arise out of the same transaction, to wit, the purchase and sale of the property. Pierce v. Tiersch, 40 Ohio St. 168. Q. 132. A gave a note to B and executed a chattel mort- gage to secure it, but retained the mortgaged property in his possession. The note becoming due and being unpaid, 13 brought an action to recover possession of the security, alleging the foregoing facts, and took the same under process at the be- ginning of the action. The defendant's answer admitted the facts set out in the complaint, but alleged by way of counter- claim that the property so taken by the plaintiff far exceeded the amount of the debt in value ; that plaintiff had wasted and 522 LAW STUDENTS REVIEW converted the same ; and demanded judgment for so much of its value as exceeded the amount of his debt Is the counterclaim demurrable on the ground that defend- ant's claim did not exist at the commencement of the action? A. No. This requirement applies only when in an action upon a contract a counterclaim founded upon a distinct contract is interposed. It does not apply where the counterclaim arises out of the same transaction or is connected with the subject matter of the plaintiff's cause of action. Smith & Co. v. French, 141 N. Car. 1. Q. 133. Prior to December 11, 1866, A executed his note to B payable December 19, 1866. On December 11, 1866, A assigned to C an account which he had against B. After De- cember 19, 1866, C as assignee of the account sues B. May B counterclaim for the note? A. No. A defendant may set up as a counterclaim in an action by an assignee only such claims as the defendant had against the assignor at the time of the assignment. The note in question, was executed prior to the assignment, but was not due and pay- able until afterwards. Fuller v. Steiglitz, 27 Ohio St. 355. CHAPTER XVIII DAMAGES Question i. Assume that a railroad company brings an action to condemn a right of way. That the property to be taken is farming land; but it lies only a few miles from a fashionable suburban residence neighborhood, near which ex- pensive country places and golf links are in process of con- struction, or likely to be built. The land owner offers evidence of real estate experts that this property will increase rapidly in value. This evidence is objected to by the railroad company, but is received, and the court gives judgment on the verdict. Can the judgment be sustained? Answer. No. Present or market value is all the owner is entitled to. Speculative value can not be considered. He can only take advantage of it so far as it enhances the present price in the market. Fairbanks v. Fitchburg, 110 Mass. 224. Elliott E. E. (2d. ed.) § 994. Q. 2. A railroad condemned a right of way through a farm in which the proposed track would cross a stream. The farmer was apprehensive that the obstruction of the stream by the embankment would cause him damage by flooding. Is he entitled to damages in the condemnation suit on account of this danger ? A. No. The law requires the railroad to construct a proper and sufficient culvert. The farmer will have an action on the case for flooding if due to an insufficient culvert. Only the dam- age present and future incident to lawful construction of the road are assessable in a condemnation case. March v. Portsmouth &c. E., 19 N. H. 372. Elliott E. E. (2d. ed.) § 1005. Q. 3. A boy 15 years old was severely injured though a fall caused by an obstruction, negligently put in his way by the 5 2 3 524 LAW STUDENTS REVIEW Crane Elevator Company. Medical evidence tended to prove that owing to his weakened condition tuberculosis had devel- oped from microbes, before latent but innocuous in his system. He sued the company for damages. May the jury hold the defendant answerable for the devel- opment of tuberculosis ? A. They may. The aggravation or development of disease as the natural result of an injury is an element of damages. Crane Elevator Co. v. Lippert, 63 Fed. 942. Q. 4. Cornelius Luyster purchased a tract of land which was subject to a lease, and for $300 purchased from the lessee a surrender of the lease, and waiver of the statutory notice to quit. The premises however were in the possession of one Eten, a subtenant of the lessee. Luyster forcibly ejected Eten, tore down a building he had erected on the premises, and scattered his goods. Eten did not gather together what he could. In trespass against Luyster, will Eten's damages be affected by his failure to gather up what he could? Could he recover the value of these goods as damages ? A. Eten could recover the value of the goods as the direct consequence of the tort (including in this case money in a tin box whose presence was unknown to defendant). Eten did not have to gather up the goods to lessen the damages, as the goods had been taken out of his possession by the wrongful act of Luyster. Eten v. Luyster, 60 N. Y. 252. Q. 5. Blake was assaulted by Lord and his brother. The brother hit him in the face. He was allowed by the trial judge to testify that since the assault the tear duct on one side had been closed, and his eyesight permanently weakened. The suit for the assault was against both the Lords. Should this testimony have been received? A. Yes, it was competent. The closing of the tear duct was the natural result of the assault, whether intended or not. In case of a joint assault both tort-feasors are liable for the great- est damage done. Blake v. Lord, 16 Gray 387. DAMAGES 525 Q. 6. For alienating the affections of her husband, plaintiff Katherine Osenton recovered against Margaret H. Williamson a verdict of $35,000. Defendant contended that there had been no alienation of affection for the reason that there had been an estrangement between plaintiff and plaintiff's husband; the inference being that there could be no alienation of affection when there was none to alienate. Assuming the estrangement to be proved, what effect if any should be given this contention? A. The bearing of the evidence as to estrangement should be limited to the subject of mitigation of damages. Estrange- ment is obviously not a bar to the recovery of either compen- satory or punitive damages; providing the evidence warrants damages of either character Williamson v. Osenton, 220 Fed. 653. O. 7. Plaintiff, in a suit for breach of promise of marriage, showed that she had been seduced by the defendant. Excep- tion by the defendant; exception over-ruled. On what ground ? A. For the reason that while damages for seduction as a distinct cause of action, can not be added to the damage for the breach of promise of marriage; yet the damages caused by reason of the breach cannot be justly estimated without taking into consideration the increased humiliation, and keener sense of shame and disgrace, which by reason of the seduction, added to the breach of promise, the defendant has caused. Hickey v. Kimball, 109 Maine 433. Q. 8. Mrs. Russ was a passenger on a steamboat. While she was sitting, and was leaning against the rail, a yawl de- fectively fastened fell from the upper deck, and some of the tackle hit her arm, causing a complicated fracture. She brought suit; and at the trial the judge charged the jury that if they believed from the evidence that the injury would be long con- tinuing or permanent, they should take into account future suffering and disability. What would you say about the instruction ? 526 LAW STUDENTS' REVIEW A. Correct. Future disability is an important element in many personal injury cases, and must be estimated by the jury from the evidence in the case. Euss v. Steamboat &c, 14 Iowa 363. Q. 9. Mrs. Kehoe was injured in a street car accident and her husband brought suit in her right. By the sudden stopping of the car she was thrown violently down on a seat and the tip of her spine was, injured. The defendant company, rely- ing on the rule that one injured is bound to take ordinary precautions to minimize the ill effects of the injury, introduced medical evidence tending to show that future disability and suffering could be relieved by a surgical operation. Was the company entitled to an instruction that the jury should mitigate the damages because plaintiff refused to under- go the operation ? A. Not if the operation is serious or dangerous. She has the option to endure the suffering, and avoid the risk. Kehoe v. Allentown &c, 187 Pa. 474. 6 Thomp. Neg. (2d. ed.) § 7210. Q. 10. Plaintiff, a woman, stepped into a hole in a defect- ive sidewalk, and sued the city for the injuries received. At first she did not take much account of the accident, and went about her ordinary housework. She did not call a surgeon for several weeks. The city asked an instruction that if she failed to use proper care and precautions, and to take the proper treat- ment looking toward a recovery, and if she aggravated the injury in any manner by her own acts, then defendant would not be in any way responsible for that portion of the injury or suffering caused by reason of the conduct of the plaintiff herself. How should the court modify this ? A. By adding — That if she did what a reasonably prudent person would have done under the same circumstances, then it would not have been negligence on her part. A person is not held to foresee the consequences of a serious injury which is at first apparently slight. Moore v. Kalamazoo, 109 Mich. 176. DAMAGES 527 Q. 11. A woman sued a man for an aggravated assault. The judge at the trial charged the jury that after fixing the amount of the damages they might, if they saw proper, award interest at the legal rate from the time of the injury. Was the instruction correct ? A. No. It was erroneous. Exemplary damages may be awarded in such a case; but not interest, in cases of suit for personal injuries. Rattersee v. Chapman, 79 Ga. 574. O. 12. Jones entered into a contract under seal with one Mrs. Dermott to build a block of stores for $5,000. The stores were not completed at the time agreed upon, and were not built entirely according to the specifications, but were used by Mrs. Dermott. Jones not being paid brought suit against her in assumpsit. On what theory can he recover, if at all? A. Jones can not recover the compensation agreed upon under the contract, because he has not done that which was to be the consideration of it. Still, it would be unjust to allow Mrs. Dermott to obtain the benefit of Jones's work without paying anything for it. Jones can recover on a quantum meruit less what Mrs. Dermott may show a right to recoup as damages for his breach of contract. Dermott v. Jones, 23 How. (U. S.) 220. This case is said to illustrate "how simple a cause of action may be stifled under the old system of pleading." N. P. Pratt &c. v. Buffalo Forge Co., 184 Fed. 287. Q. 13. Smith agreed orally to work for Emery for two .years as clerk in a shop. The first year he was to have $100 ; the second year, $200. Smith was paid the first 'year's salary only, and brought suit. Assuming that the contract was void, as being within the Statute of Frauds : Was Smith entitled to recover? and if so, what? A. He was entitled to recover what his services were rea- sonably worth ; but he could not offer the verbal contract as evi- dence of their value. Emery v. Smith, 46 N. H. 151. 528 LAW STUDENTS' REVIEW Q. 14. Adams's minor daughter was employed at a cotton mill at a distance from her home, at the regular price paid for services such as she performed. Adams forbade the mill- owners further to employ his daughter ; and notified them that if they nevertheless persisted in employing her, he would charge them for her services $10 per week in addition to her board. This was a much larger sum than had been paid for her work. The mill continued to employ her ; and Adams brought assump- sit for her services. To what was he entitled? A. Not to $10 a week; but to what her services were reason- ably worth. Adams v. Woonsocket Co., 11 Mete. 327. Q. 15. Clow had an easement as to Dixon's land, to main- tain a ditch for the supply of water. He tore down a few feet of Dixon's boundary fence which was erected across the ditch. The fence was not an unreasonable obstruction to the easement. Dixon sued in trespass quare clausum, but did not prove any damage to his land. What damages if any was he entitled to recover ? A. Nominal damages, for the invasion of his right of prop- erty. Dixon v. Clow, 24 Wend. 188. Q. 16. The defendant, honestly mistaken in his belief that he had rightful title to the premises, when, in fact, owing to defect in legal process he had no such title, tore down an old worthless mill and replaced it with a good mill, at an expense of $2,000. Some of the old material was used; and plaintiff, the owner of the old mill, suffered some loss of profits by tem- porary expulsion from the premises. He brought suit in tres- pass. To what damages is he entitled ? A. To nominal damages only. To these 'the plaintiff is enti- tled for the invasion of his rights; although he was left better off than before. Jewett v. Whitney, 43 Maine 242. DAMAGES 529 O. 17. An association had the right, by private statute, to the exclusive privilege of dipping water to be drunk by visit- ors at Tunbridge Wells. There were no emoluments incident to the employment except tips. They brought suit against a woman who dipped, though a non-member. The proof showed a custom among the visitors to give tips to the dippers ; but there was no direct evidence that she received any. Could a verdict for 5s be sustained? A. Yes. The verdict was warranted. An action will lie for an injury with a possibility of a damage. But there is a real damage in this case in depriving the plaintiff of some gratuity which they might otherwise have received. Weller v. Baker, 2 Wils. 414. Q. 18. Dearden operated a coal mine contiguous to one owned by Clegg. He ran a drift through into Clegg's coal. Clegg brought an action in trespass and recovered. Afterward Clegg brought another suit against Dearden, for f ailure to stop up the hole, thereby flooding his mine. Can Clegg recover ? A. No, the former judgment bars him. This does not come under the rule allowing repeated actions for a continuing nui- sance. The flowing of the water is merely consequential to the making of the aperture. Clegg v. Dearden, 12 Q. B. 575, 602. Note that a continuing nuisance, such as building a railroad unlawfully over privately owned land, may be sued for after the statute of limitations has run on the original trespass, and a recovery had for the damage accruing within the period of lim- itations. Savannah &c. v. Davis, 25 Fla. 917. Q. 19. Smith brought suit against Jones for flooding his land by a dam, and alleged that thereby his crops were injured. The proof showed that the flooding of the land by the dam was only to the extent of an inch, and that the crops were uninjured. The trial judge charged that the specific damage alleged was a matter of substance and must be proved, else there could be no recovery. Was the charge correct? 34— L. S. Rev. v 530 LAW STUDENTS REVIEW A. Incorrect. On proof of the wrongful flooding of the land by Jones's dam, Smith is entitled to- nominal damages. Pastorius v. Fisher, 1 Rawle 27. Q. 20. The premises of a deceased owner of coal land were invaded during decedent's lifetime by a coal mining company, with knowledge that it had no title thereto. The coal was mined in such a manner that the supporting pillars were left unsafe, so that some of the remaining coal could not be got out, and the rest only with extraordinary expense. In a suit by the owner's executors for the trespass, what should be the measure of damage's ? A. (1) The value of the coal taken when severed without deduction of the cost of mining, as the trespass was wilful. (2) The depreciation in value of the land from difficulty of ac- cess to the remaining coal ; for, as the action was entire, all the damages may be collected by the executors to the exclusion of heirs. Barton &c. v. Cox, 39 Md. 1. Q. 21. Beale committed an assault and battery on Fetter, for which the latter sued and recovered £11. Afterward, as a consequence of the injury occasioned by the battery, part of Fetter's skull sloughed away, and he brought another action for that injury. Can Fetter recover ? A. No. The battery was an entire cause of action; and all the damages were assessable in the first action. Fetter v. Beale, 1 Ld. Kaym. 339. Q. 22. A has a contract with B to manage a branch store at a salary of $3,000 a year for two years. At the end of a year B discharges him without cause. A, with due diligence, is unable to obtain employment as a manager of a store; but is offered the position of school teacher. In an action against B for the breach, must he either accept this position, or credit B with the pedagogue's pay he might have earned? A. No. Although the law requires him to make reasonable efforts to reduce the damages, it does not require him to take DAMAGES 531 an entirely different kind of employment, or employment of a much lower order, or that which would take him from his home. I Sedgwick Damages (9th ed.) § 207. O. 23. Wyer, a theatrical manager, engaged Sutherland to play first old man in his company for 36 weeks at $35 a week. During the nineteenth week he discharged Sutherland because Sutherland would not accept a one-third reduction of salary. Sutherland sued. He had received the sum of $60 for acting after the breach; and this was all that he could have earned with reasonable efforts, except that he had abandoned an en- gagement in which he would have earned $57 more, before the termination of his contract with Wyer. What should be the measure of damages ? A. The contract salary for the unexpired term of his con- tract with Wyer after the nineteenth week, less the $60 he had earned, and the $57 he might reasonably have earned. Sutherland v. Wyer, 67 Maine 64. Q. 24. Westcott had a next-door neighbor who carried on an undertaking establishment, and shocked him extremely by washing the boxes used for icing corpses in the back yard ; and by doing other similar unpleasant things connected with his business. Westcott filed a bill to have the establishment de- clared a nuisance. Can he succeed on the above facts ? A. No. The business is lawful, though it may be carried on in such a way as to be a nuisance ; but the facts disclosed do not make it so. Westcott v. Middleton, 43 N. J. Eq. 478, 483. Q. 25. An owner of city property through which an alley ran sued a railroad company for depreciation of the value of his property arising from its laying and operating a track in this alley without warrant of law, alleging nothing in aggrava- tion of the illegality of the location of the track. Assume that the law was with him as to the illegality : Is he entitled to punitive damages ? 532 LAW STUDENTS REVIEW A. Not as he presented his case. He should have alleged and proved that the trespass was wanton, wilful or malicious. This rule applies as well to trespasses to real as to personal property. Carli v. Union &c, 32 Minn. 101. Q. 26. The Haytien schooner "Amiable Nancy" was visited at sea by a boarding crew from the American privateer "Scourge" who robbed the master and seamen of all their money and valuables, and also took away the ship's papers. For the lack of these papers the Amiable Nancy was seized by a British man of war and taken before a prize court in Antigua. To secure the release of vessel and cargo and thus save them from being entirely lost, the master was compelled to pay $500 court costs. The owner of the Amiable Nancy sued the owners of the Scourge for a marine tort claiming, among other items, the $500 court costs at Antigua and exemplary damages for the outrage. Were they entitled to these damages? A. As to the first, yes. It was a natural and direct result of the wrong. As to the second, no. If the suit had been against the actual spoliators, vindictive damages would have been proper; but not against the owner who was innocent of wrong intention, and was only constructively liable. The Amiable Nancy, 3 Wheat. 546. Q. 27. The executors of the deceased owner of a foundry were sued in trover for some old castings which were lying in the foundry, and which it was natural to suppose had belonged to the deceased. The claimant proved that the executors re- fused to deliver the castings to him on demand. The jury awarded him $100 over the value of the castings. Can the verdict stand ? A. No. No malice is shown in the action of defendants. In actions for taking property, as well as in other torts, it is neces- sary to show malice in order to entitle plaintiff to exemplary damages. Wentworth v. Blackman, 71 Iowa 255. Q. 28. A depositor in a bank drew several checks which were thrown out by the bank on which they were drawn, al- DAMAGES 533 though there were funds sufficient to meet them. He thereupon sued the bank claiming exemplary damages and alleging in his declaration that the wrongful act of the bank had been repeated and that his credit had been thereby injured. Discuss the question whether he was entitled to exemplary damages. A. That depends upon whether the bank had committed the wrongful act wilfully or through the simple negligent mistake of a bookkeeper. In the first case plaintiff is entitled to puni- tive damages; in the second case only to actual damages. The allegation of repeated acts is a sufficient basis for punitive damages. Wood v. American &c. Bank, 100 Va. 306. Q. 29. Suppose a church has been built and occupied by its congregation for a number of years when a railroad company builds a round-house on its own property, within six feet of the church and so conducts it as greatly to disturb the congregation by smoke, blowings off of steam, the noise of hammering, etc., both week days and Sundays. Assume that the facts alleged and proved make the railroad company liable in suit brought by the church. Should the measure of damages be computed exclusively on the depreciation of the church property ? A. Not exclusively. The plaintiff is entitled to recover on account of the inconvenience to the congregation. The property might be worth more, because of the proximity of the round- house if the church were abandoned. Still the congregation is damaged in the purpose for which the church was built. In it they have the same right to quiet as a gentleman in his resi- dence. Baltimore &c. v. Fifth &c, 108 U. S. 317, 335. Q. 30. Sims rented land from Glazener, payment to be made in a third of the corn raised. Glazener took not only the third set apart for him, but took also part of the corn rightfully be- longing to Sims. Sims brought suit for trespass de bonis, etc, and by way of obtaining punitive damages, offered in evidence the fact that he was a poor man ; and that as a result of being wrongfully deprived of the corn, he was obliged, in order to 534 LAW STUDENTS REVIEW obtain seed corn for his next crop, to go to work and take his pay in corn. Should this evidence be received or excluded? A. It should be excluded. The damage alleged is not the direct consequence of the act. It is too remote and tends to es- tablish a criterion varying according to the pecuniary circum- stances of the plaintiff. Sims v. Glazener, 14 Ala. 695. Q. 31. Plaintiff was in rightful possession of a dam and fish trap ; but was not the owner. He brought an action against a corporation for destroying the dam and trap by unlawfully floating logs on the stream. It was not by law a floatable stream. May he recover ? A. Possession is sufficient to maintain the action. He may re- cover according to his interest; and evidence of the annual value of the fishery is competent for estimating the damage. Gwaltney v. Scottish &c, 115 N. Car. 579. O. 32. Trott was in a wagon waiting to cross the track, when the engineer of a railroad locomotive negligently blew off steam at the crossing, thereby frightening the horses and causing them to break the wagon, and very much frightening Trott. He sued the company; and the trial judge instructed the jury that they could consider his mental suffering, through fright, as an element in assessing damages. Was the instruction correct? A. No, erroneous. Mental anguish can not be considered as an element of damage, when the tortious injury is to property alone, and not to the person. Gulf &c. v. Trott, 86 Tex. 412. 4 Elliott E. E. (2d ed.) § 1817. O. 33. A lady was going home on a late street car. Two drunken men were on the car and the conductor in ejecting them, did so negligently, and created such an unnecessarily alarming disturbance that she suffered great agony from fright and nervous shock. DAMAGES 535 Can she recover against the street car company on that ground ? A. No. Fright through the negligence of another, unattended by physical injury, is not a basis for damages. Spade v. Lynn &c, 168 Mass. 285. O. 34. In 1864 a great fire broke out in Gloucester. De- fendant, a fire warden, to stay the progress of the conflagration, blew up plaintiff's house. Assume that the fire had not then reached the house, but appeared likely to do so within a short time ; that the plaintiff did not consent to the blowing up of his house ; and that the defendant fire warden, while he acted with- out authority of law, still exercised honesty of intention and good faith. Instruct the jury as to the measure of damages. A. The jury should consider the circumstances in which the house was situated, its chance of being saved, and its value with reference to the peril to which it was exposed. Parsons v. Pettingell, 11 Allen 507. O. 35. Plaintiffs, husband and wife, brought suit against defendant for an assault arising out of a dispute regarding the possession of a cow. The trial judge charged the jury that they might consider, in fixing the damages, loss of reputation caused by the airing of their domestic difficulties incidental to the trial. What would you say about this instruction ? A. It is clearly wrong. This is not the immediate result of the injury. Barnes v. Martin, 15 Wis. 240. Q. 36. Booth published a libel against Andrews, accusing him of burning his property to collect the insurance. Andrews brought suit, and the jury gave him, with other damages, $600 for injury to his reputation. May this item stand? A. It may. In actions in tort damage may be given for in- jury to plaintiff's reputation. Andrews v. Booth, 148 Mich. 333. 536 LAW students' review Q. 37. The schooner "Robert Graham Dun" ran down a small smack drowning its crew of three. In a libel again3t the schooner the administrators of the drowned seamen were al- lowed in each case $3,500 for the sufferings of the deceased during the hour they remained in the water alive. Would such a finding be allowed to stand ? A. No. It would be considered excessive. In this case it was reduced to $350 on appeal. The Robert Graham Dun, 70 Fed. 270. Q. 38. Dean, 32 years old, was a track hand earning $1.10 a day. As he stood aside to let a train pass, he was hit in the knee by a fragment of coal split from a piece hurled from the tender. Up to the time of trial he had not been able to work, and there was evidence that tuberculosis of the knee had set in, and that his disability would be continuing. Otherwise there was no evidence directed explicitly at his probable loss of the fruits of his future labor. The court instructed the jury that they might consider in assessing damages, his loss of future earning capacity. Was the instruction correct or erroneous? A. Correct. The loss of earning capacity was a reasonable inference from the evidence. A verdict for $5,000 was held not excessive. Dean v. Kansas &c, 199 Mo. 386. Q. 39. Baker, a stevedore 48 years old, fell into the hold of a vessel by reason of the collapse of a hatch on which he was working and was permanently disabled. Assuming the acci- dent was due to negligence of libellee, what should the court regard as the main element of damage ? A. Loss of earning capacity based on libellant's occupation, physical condition before the accident, and expectancy of years of activity. In this case the court said he could not award less than $4,500. Baker v. Hamburg-American &c, 179 Fed. 271. Q. 40. An owner of a lot of land in a town with a dwelling house upon it was vested with title to the middle of the street, DAMAGES 537 subject to the easement of the public and to the control of the selectmen representing the public. He planted trees between his fence and the sidewalk and maintained them, and his next door neighbor, entertaining different views from such owner, regarding the comparative value of sunlight and shade, girdled the trees. Has the owner a right to recover damages? A. He has, for the injury to his land. In this case he was awarded $400 for four trees. Shade and ornamental trees in- crease the value of land more than their timber price. The spoliator can not defend on the ground that the trees are a public nuisance. That is a matter to be determined by the sound discretion of the selectmen. Bliss v. Ball, 99 Mass. 597. Q. 41. Certain Indians knowingly and wrongfully cut tim- ber from a reservation belonging to the United States, trans- ported it some distance and sold it to the defendant. The United States brought trover against the purchaser. The tim- ber was worth $60 where severed; $650 where sold. The defendant acted in good faith. What should be the measure of damages ? A. Should include enhanced value which the wilful wrong- doers had given the property by their labor, in this case $650. Wooden &c. v. United States, 106 U. S. 432. Q. 42. Livingstone bought a small tract of an acre and a half of land improved with miners' cottages. He supposed that his grantor, who owned the surrounding land, had reserved the underlying coal; but the deed in fact was absolute. The grantor afterwards conveyed to the Rawyards Coal Company the exclusive right to mine coal at a royalty of 2s a ton on all his property. He and they both believed that the coal under the tract conveyed to Livingstone was included. The company mined. the coal under Livingstone's tract; and he, discovering his rights, brought suit claiming £1 a ton for his coal taken, which was the value of the coal when mined. Was this the proper measure of damages? 53^ LAW STUDENTS' REVIEW A. No. When anything is severed from real property by mistake and in good faith, the measure of damages is the value of the article in its original state, added to any damage to the land. In this case the royalty paid, 2s a ton, is good evidence of the value of the coal in situ. Livingstone v. Eawyards &c, L. E. 5 App. Cas. 25. Q. 43. Moore sold Butler some millet seed, warranting it. Butler planted the seed carefully, but it failed to come up. He sued Moore for breach of the warranty, and claimed the ex- pense of planting, preparing the ground, etc., and his anticipated profits from the crop. Moore insisted that the damages should be limited to the price paid for the seed. Discuss the opposing contentions of the parties. A. Neither party was right. Moore could not confine his lia- bility to the price of the millet seed. He must also pay all ex- penses necessarily incurred in preparing the ground and plant- ing. On the other hand, Butler can not recover estimated profit on his anticipated crop. This is too remote. Butler v. Moore, 68 Ga. 780. Q. 44. A manufacturer of cigarettes has a valid contract with a tobacco dealer to furnish him with a hundred thousand packages of a certain brand of cigarettes, of a certain quality, at 7 cents a package; and the dealer, at the end of two months, sells out his business to a corporation, having taken but 20,000 packages of cigarettes ; and both he and his purchaser refuse to receive any more cigarettes. What remedy has the manufacturer? A. He can sue the dealer and recover the difference between the contract price for 80,000 packages and the amount it would have cost him to fill the order. This of course is a matter to be proved by ordinary evidence, and determined by the jury. Ellis v. Miller, 164 N. Y. 434. Q. 45. A merchant at Quebec orders a lot of timber of a mill-owner at Ashland, Wisconsin. The lumber is to be shipped to Quebec and is bought for that market to the knowledge of the mill-owner; but is to be delivered and paid for on board steamer at Ashland. The mill-owner defaults. DAMAGES 539 Is the measure of damages the difference between the con- tract price and the price at Ashland, or the price at Quebec less freight? A. At Quebec. Although the general rule is that the damages are measured at the place of delivery, there is an exception when there is a market of destination in the contemplation of both parties. Cockburn v. Ashland &c. Co., 54 Wis. 619. Durst v. Burton, 47 N. Y. 167. Q. 46. Jordan, Marsh & Co., plaintiffs, had a contract with Patterson to furnish them a large quantity of knit underwear. Patterson defaulted. Plaintiffs had, on the faith of this con- tract, secured a large number of sub-contracts through travel- ing salesmen, for the sale of some of these goods at an enhanced price. Accordingly plaintiffs sued Patterson, and claimed as a basis for damages the market value of the goods at the place where they were contracted to be sold. Patterson had knowl- edge of the intended destination of the goods. Evidence of the traveling salesmen was offered concerning the amount and price of the sales, as tending to prove their market value. Should the plaintiffs contention prevail ? A. It should prevail. This was a damage that was within the reasonable contemplation of the parties under the circum- stances of the case. Jordan v. Patterson, 67 Conn. 473. O.. 47. The privateer "Jefferson" in 1812 captured the schooner "Lively" and took her into Salem, where the prize court decided the capture was illegal, and that the claimant was entitled to damages ; and as an item thereof allowed $624 for loss of the profits of the contemplated voyage. Should this item be sustained on appeal ? A. No. Mr. Justice Story said: "I am not aware of a single authority in the higher courts of admiralty in which supposed profits have formed an item of damage in cases of restitution." The Schooner Lively, 1 Gall. 315, 324. O. 48. A manufacturer contracted with the owner of a jilaning mill to furnish him an engine, for the disclosed pur- 540 LAW students' review pose of driving the machinery of the mill, on a certain day. The manufacturer failed to deliver on time, and there was a delay of a week, during which the owner lost the use of the mill. The manufacturer sued for the price of the engine ; and the mill owner sought to recoup the profit he testified he would have made had the mill been running. How should the referee decide? A. That the defendant was entitled to recoup; not however the estimated profits, but the rental value of the machinery shut down for a week. Griffin v. Colver, 16 N. Y. 489. Q. 49. Hartman brought suit against the Central Coal & Coke Company to recover treble damages, under the provisions of the Sherman Act. He proved the Company's illegal acts in restraint of trade; and testified that his sales of coal had fallen off in consequence from 15 to 20 cars a month, on which he would have made from $12 to $20 a car. He had kept no books, however, and could not give the relative amount of his business profits or expenses before and after the acts complained of. He recovered below for loss of profits. Can the judgment be sustained? A. No. Prospective profits can be recovered only when they are made reasonably certain by the proof of actual facts which furnish data for a rational estimate of their amount. Central Coal &c. v. Hartman, 111 Fed. 96. Q. 50. The City of Baltimore executed a contract with a wire cable company by the terms of which the company was to put in cables and conduits in certain streets for a police and fire alarm system, at an agreed remuneration of $100,000. The con- tract was executed by the city in pursuance of the terms of an ordinance. When the company gave notice it was ready to pro- ceed, the city, on the unfounded advice of the corporation counsel that the ordinance was defective, assumed to revoke the contract. Would the company be entitled to anticipated profits ? DAMAGES 541 A, Yes. In. this case the profits would be the direct and im- mediate fruit of the contract. The company would be entitled to those it can prove clearly. Safety &c. v. Mayor of Baltimore, 66 Fed. 140. Same case reversed (but on another point), 74 Fed. 363. Certiorari denied, 165 U. S. 720. Q. 51. Ha'dley's mill was stopped by the breaking of the shaft, which was of special design. He took it to Baxendale, a common carrier, to be delivered to a machine shop in London as a model for a new shaft, stating that there was great need of haste and that the mill was stopped; but not stating that the shaft was one not sold in the market, and could be replaced only by following the pattern of the pieces which he was ship- ping. Baxendale negligently delayed delivery of the broken shaft. Hadley brought suit, and the jury included in its dam- ages the loss sustained by the continued stoppage of the mill. Could v L he verdict be sustained ? A. No. "Where two parties have made a contract which one of them has broken, the damage which the other ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." Hadley v. Baxendale, 9 Exch. 341; 26 Eng. Law & Eq. 398. Q. 52. Davis bought out Gillett. As part of the transaction Gillett executed a bond in the sum of $1,000 conditioned that he would not engage in the stove or tin business in the town of Keene for ten years. Gillett breached the condition ; and Davis brought suit on the bond. On this showing was Davis entitled to judgment for $1,000? A. No, He was entitled only to the actual damages he can prove, within the amount of the bond. This case comes under the general rule that the sum named in a bond to secure perform- ance of a contract is a penalty, and not liquidated damages. Davis v. Gillett, 52 N. H. 126. 542 LAW students' review Q. 53. Studabaker wished to banish the sale of liquor from the town where his factory was located. For this purpose he- made an agreement with White, the only saloon keeper in the town, that the latter should quit the business. White executed a bond for $r,ooo conditioned that he would not directly or indirectly sell or manufacture liquor in the county, or bring it in, or encourage its importation. On suit for the breach of the bond, no special damage was averred, and it was claimed that only nominal damages could be recovered. Is the contention sound? A. Unsound. Where the covenant is for the abstaining from doing some particular act, or for its performance, and the dam- ages in case of breach are not measurable by any exact pecuni- ary standard, the sum named in the bond is to be deemed liqui- dated damages, and not a penalty. Studabaker v. White, 31 Ind. 211. Q. 54. Suppose an automobile manufacturer doing business in Chicago, has a contract to sell an automobile of a particular pattern known as his 1916 model, and warranted in certain par- ticulars, to a customer to be delivered at his home in Honolulu, and the customer refuses to take the machine, falsely alleging that it did not come up to the specifications. The contract price is $2,500; and the best price obtainable in Honolulu is $500. How should the manufacturer proceed to enforce his rights? A. After giving the defaulting customer reasonable notice he may sell the machine for $500 if that is the best price rea- sonably obtainable at Honolulu and recover $2,000 of the de- faulting customer. On the breach of executory contracts for the sale of goods the measure of damages is the difference between the contract price and the market price at the place of delivery, and a resale with notice and due diligence is evidence of the market price. 3 Sutherland Damages (3d ed.) § 647. Q. 55. Suppose the manufacturer had a contract with a concern in Akron, Ohio, to furnish him with 5,000 rubber tires of a standard make at $25 apiece to be delivered to him in Chi- DAMAGES 543 cago during the current month ; that tires have gone up to $40 and that the concern defaults. What are the manufacturer's rights ? A. To buy 5,000 similar tires in Chicago at the market price on the first day of next month and to recover from the vendor the difference between the contract price and the market price. Saxe v. Penokee &c, 159 N. Y. 371. O. 56. Horst Brothers, merchants in New York, made a contract in August with Roehm, another merchant, to ship him a hundred hales of hops, to be shipped in five months, October to February, 20 bales each month, and to be paid for at the rate of 22 cents per pound. The price of hops went down; and Roehm by letter repudiated the contract. Horst Brothers shipped 20 bales in October, which Roehm refused to receive, and before November sued Roehm for breach of the entire contract. What damages if any can they recover on account of the 80 bales contracted for future delivery ? A. The difference between 22 cents a pound, the contract price, and the price at which they can make a subcontract to de- liver the eighty bales at the time designated in the original con- tract. Where one party definitely repudiates the entire contract, the aggrieved party need not wait for the time of its expiration, but may sue for his present damage, measured by the market value of his contract, if fulfilled. But he has the option still to regard the contract as subsisting and wait until expiration by its terms. Through fluctuations in the market, the amount of damages may then be very different. Roehm v. Horst, 178 U. S. 1. Q. 57. A ward brought suit to impeach his guardian's ac- count for fraud and mistake, and recovered a judgment for $99. Assume that the guardian was entitled to charge all the items involved, except $10 credited by mistake. Was he entitled to final judgment on appeal ? A. No. The amount is substantial, especially in relation to the amount charged against the guardian. It would be a mis- application of the maxim de minimis non curat iex to disregard it. Euble v. Helm, 57 Ark. 304. 544 LA W STUDENTS REVIEW Q. 58. Sir Frederick left his estate to trustees for the bene- fit of his widow and two children. After devising certain arti- cles to friends, he directed the trustees to permit his widow to appropriate such parts of the plate and plated articles as she should desire to possess. She applied to the proper court of chancery for a declaration that she was entitled to the whole of the plate and plated articles. Should her application be granted ? A. Yes. Following the words literally, she might take the whole of the plate, with the exception of one article, of probably no value, when the maxim de minimis non curat lex would apply. Arthur v. Mackinnon, L. E., 11 Ch. Div. 385. CHAPTER XIX STATUTES: INTERPRETATION Question i. Plaintiff in error was a duly incorporated re- ligious society. Prior to September, 1887, Warren was an alien residing in England. Plaintiff made a contract with Warren whereby he was to remove to the city of New York and enter into plaintiff's service as rector and pastor; and in pursuance thereof Warren did so remove and enter upon such service. This was claimed to be a violation of the federal law pro- hibiting any person * * * or corporation from in any way assisting or encouraging the importation of aliens under con- tract made previous to the importation of such alien, to per- form labor or service of any kind in the United States. The Circuit Court of the United States (36 Fed. 303) held the contract within the prohibition of the statute. Is, this sound ? A. Unsound. The act in question .was intended to restrain and prohibit immigration of laborers whose only object is to obtain labor at the lowest possible rate; and it was to stop the influx of this cheap unskilled labor that the law was passed. * * * "no purpose of action against religion can be im- puted to any legislation, state or national, 'because this is a re- ligious people." While the contract with Warren is within the letter of the prohibition, it is still not within the spirit of the prohibition. "All laws should receive a sensible construction." Church v. United States, 143 U. S. 457, 461, 465. Q. 2. A statute provided that when any property of a bank- rupt acquired by his trustee consisted of land of any tenure burdened with onerous covenants * * * by reason of its binding the possessor thereof to the performance of any onerous act, or the payment of any sum of money, the trustee might dis- 35— L. S. Eev. 545 546 LAW students' review claim ; and upon the execution of such disclaimer, if the prop- erty is leased, the same shall be deemed to have been surren- dered on the date of the disclaimer. The bankrupt had underlet to another certain property for nine and a half years for £ ioo paid down ; and at the annual rent of £55, entering into no covenant except for the quiet enjoyment of bankrupt's sublessee. The trustee undertook to disclaim this lease of the bankrupt. May he do so ? A. No. While literally the statute authorizes him to disclaim land of any tenure burdened with onerous covenants ; yet to sup- pose that, the bankrupt having had and enjoyed the £100 ster- ling, his trustee might disclaim and dispute the rights of a third party is an absurdity which parliament can not be supposed to have intended. "If a lease had been mortgaged by deposit and the lessee became bankrupt, it would be a strange thing that the equitable mortgagee should lose his money because the bank- rupt's trustee disclaimed the lease." While, therefore, as in the preceding question, the letter of the statute might apply; yet, by reason here of the absurdity of the consequence, the letter of the statute .will not govern. Ex parte Walton, L. R. 17 Ch. Div. 746, 753. Q. 3. "There was a law that those who in a storm forsook the ship, should forfeit all property therein ; and that the ship and lading should belong entirely to those who staid in it." Through impending danger all mariners forsook the ship ex- cept one passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man stayed aboard and claimed the benefit of the law. Shall he prevail? A. By no means. "Now here all the learned agree, that the sick man is not within the risk of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither staid in the ship upon that ac- count, nor contributed anything to its preservation." 1 Blackst. Com. 61. Q. 4. Upon a bench warrant issued by a state court of comp- etent jurisdiction, upon an indictment therein found for mur- STATUTES : INTERPRETATION 547 der, one Farris, a United States mail carrier, was arrested. He was at the time engaged in the performance of his duty in carrying the mail ; and the arrest operated to delay him and to retard the mail. Assume that the defendant Kirby, who made the arrest, was then and there the sheriff of the county wherein the in- dictment was found, was duly commanded to serve the process of arrest, and that in obedience to this command he made the arrest. Will an indictment lie against Kirby for knowingly and wil- fully obstructing or retarding the passage of the mail, or of any driver or carrier thereof? A. Indictment will not lie. General terms of a statute should be so limited in their application as not to lead to injustice, op- pression or to an absurd consequence. The legislature is pre- sumed in such an instance to intend exceptions to its language which would avoid results of this character. United States v. Kirby, 7 Wall. 482. Q. 5. A state statute provided that an attachment of prop- erty "by any court of competent jurisdiction in this common- wealth" on mesne process should be dissolved by the appoint- ment of a receiver to take possession of such property. Subsequent to the levy of the attachment a receiver to take possession of certain property was appointed by the Circuit Court of the United States within and for the commonwealth in question. The statute also provided in effect that the proceedings for the appointment of a receiver should not thereafter be dis- missed and the receiver discharged unless the claim upon which the attachment was made had been fully paid and discharged, or unless the debtor should deposit sufficient funds to secure the attachment creditor. Will the appointment of the receiver in the federal court operate to dissolve an attachment issued by the state court? A. No. The words "by any court of competent jurisdiction in this commonwealth" mean any court which is subject to the legislation of the commonwealth. While it is true that legal and equitable rights of a general character may be enforced either in 54-> LAW STUDENTS REVIEW the federal or in the state courts ; yet in the present instance the statute intends to furnish some protection for domestic creditors against such adjustments as may be made through receiver- ships for the benefit of creditors in other states. It does not in- tend to compel the dissolution of attachments and perhaps to compel domestic creditors to attempt the collection of their debts in other states or jurisdictions. Borden v. Enterprise &c, 198 Mass. 590. Q. 6. An act of the legislature authorized the mayor and aldermen of the City of Pensacola, with the consent of a ma- jority of the corporation comprising said city, to subscribe money to any railroad leading from the city, and to borrow money to pay the subscription. Accordingly, money was borrowed and bonds were issued to repay the same ; and such bonds came into the hands of inno- cent holders for value. The bonds were unpaid and suit was brought. The defense was urged that after the issue of the bonds the municipal body known as the City of Pensacola ceased to exist by reason of the repeal of its charter, and that the "pres- ent" City of Pensacola was organized under another law, is a distinct and different corporation, and is therefore not liable on the bonds. The clause of the act relied on as excusing the new city corporation was, "it shall be lawful for any previously incorporated city or town to re-organize their municipal govern- ment under the provisions thereof, by voluntary surrender of their charter and privileges, and by an organization under this act." Comment on the defense. A. A construction of the law which would charge the Florida legislature with an attempt to perpetrate a most unconscionable and bare-faced fraud ought to be avoided if it can be fairly and reasonably avoided consistently within the terms of the act. The "re-organization" contemplated will not be held to involve either the destruction of the original municipal corporation, or the creation of a new corporate entity. It will be construed as recognizing the continued and unbroken life of the city of Pen- sacola. Milner v. Pensacola, 2 Woods 632. statutes: interpretation 549 Q. 7. The Iowa Code provided that the District Court of each county should have original and exclusive jurisdiction of the probate of appeals and the appointment of executors, ad- ministrators or trustees thereunder; also of the settlement of estates of decedents. Appellant contended that courts of counties where property of a decedent was located, would have concurrent jurisdiction to administer; the first one taking action, to hold as against the others. Appellee insisted that the county of the residence of decedent was the seat of exclusive jurisdiction. What consideration should determine the interpretation of this section? A. It would obviously cause much confusion and perhaps loss or damage, if upon the death of a resident who owned prop- erty in foreign counties, administration of his estate might be entrusted to the first comer, simply because at decedent's death some part of his estate might be found there. Of course if the legislative intent is clear, the courts would necessarily follow it ; but where a statute is ambiguous or obscure, results may be considered in interpreting it; and inasmuch as the decedent could have had but one legal residence, and such residence is readily ascertainable, the jurisdiction in the settlement of his estate is declared to be determined by the place of residence of decedent at the time of his death. In the Matter of the Estate of King, 105 Iowa 320. Q. 8. The Texas legislature passed an act authorizing ap- peals from interlocutory judgments, orders or decrees. The statute required such appeals "to be regulated by the law regu- lating appeals from final judgments in the District Court so far as the same may be applicable thereto." An important and essential provision regulating appeals from final judgments required a bond ; and the question arose what sort of bond, there having been no judgment for damages or loss in an interlocutory appeal, appellant must file. Assume there is no provision for a bond which fits an interlocutory ap- peal ; then what happens ? Does the interlocutory appellant go up without a bond? or does the act of the legislature in this particular fail? 550 LAW STUDENTS REVIEW A. While a law of this character is not strictly speaking un- constitutional, yet where a court finds itself unable to admin- ister a law by reason of the uncertainty or ambiguity thereof, the law must be pronounced nugatory or void for want of some adequate provision enabling it to be executed. Ward v. Ward, 37 Tex. 389. Q. 9. A district attorney for Solano county had the sum of $305 in his hands, being the one-fourth of certain fines col- lected within the period from May 22 to December 31, 1885, in cases prosecuted by him for violations of law. He had already received for his own use one-fourth, and the informer had received one-half, of these fines. Section 636 of the penal code was amended March 30, 1878, so that it then provided that half of all moneys collected for fines should be paid to informers, the other half to the district attorney. Until March 12, 1885, Section 634 of said code contained no provision as to fines ; but it was then amended so as to provide that half of all money collected for fines should go to the in- former, one-quarter to the district attorney and the other quar- ter to the fish commission fund. The district attorney claimed that as Section 636 was last in numerical order, it should control, and that he should get half of the $305 in question. Should the district attorney succeed? A. No. While if the two conflicting sections had been passed by the legislature at the same time, the latter would be held to prevail; yet when two laws on the same subject passed at dif- ferent times are inconsistent with each other, the last passed must prevail as being a later expression of the legislative will; and so it was held in the above case notwithstanding Section 4484 of the political code, which provided that if conflicting provisions are found in the same Chapter or Article, the provision of the sections last in numerical order must prevail unless such con- struction is inconsistent with such Chapter or Article. People v. Dobbins, 73 Cal. 257. Q. ro. The Alma Spinning Co., Ltd., was registered in 1876 under the Companies Acts. In its articles of incorporation is the following provision, "business of the company shall be statutes: interpretation 551 conducted by not less than five, nor more than seven directors." There was a further provision that the office of a director should become vacant if the holder became bankrupt or in- solvent. Originally six directors were appointed. One died; and one became bankrupt. Accordingly, at the quarterly general meet- ing in' November, 1877, there were but four directors. These directors declared a call upon shareholders ; and the same four in April, 1878, held a meeting forfeiting the shares of a share- holder who had not responded to the call. Is the forfeiture valid ? A. This depends upon whether the clause contemplating the conduct of the business of the company by not less than five nor more than seven directors, is to be treated as directory only, or as obligatory. Held, that the clause was obligatory; and the court in passing upon the matter observes that in a similar case even though ordinary business could not be transacted by four, yet Mr. Justice Coleridge was not "frightened at that result." Accordingly, forfeiture was held to he invalid. In re Alma Spinning Co., L. R. 16 Ch. Div. 681, 690. Q. 11. Testator by will made provision for his wife, who at the date thereof was insane and so continued until her death. Her death occurred more than four years after testator died. After her death, her administrator filed a renunciation of the will. Assume that during her life she received benefits under the will, but that upon her death it was contended that being insane, she was not and could not be bound as having accepted the will; and assume further that the statute of Maryland provided "a widow accepting or abiding by a devise in lieu of her legal right should be considered as a purchaser with a fair consideration"; is the insane widow and is her estate bound here? A. On the argument for the administrator of the will it was strongly urged that a wealthy but unfeeling husband might sub- ject an unfortunate wife to the danger of being but poorly pro- vided for, and of being left remediless. The court remarks that a supposed evil or hardship of this character should in cases where the language of a statute is ambiguous or doubtful, exert an influence in construing; but says that when the statute is 552 LAW STUDENTS REVIEW plain and explicit, care should be taken not to allow such con- sideration to exert an undue influence. And after noting the Maryland statute to the effect that provision for a widow shall be in bar of dower unless otherwise expressed in a will, and adverting to the provision for renouncing and quit-claiming within six months after the authentication or probation of a will, the court holds that the widow and her estate are barred. Collins v. Carman, 5 Md. 503. Q. 12. A statute provided that a railroad corporation should not charge a larger sum for freight, etc., for a less distance than is charged for a greater distance ; and that in case of viola- tion the excess might be recovered from the corporation by the party aggrieved. The state of Vermont was plaintiff. It had supplied an asylum with coal shipped over defendant's railroad by the Hall Coal Company which company sold the coal to the state. The railroad collected from the Hall Company a larger sum for freight than it would have charged for hauling it a greater distance, the Hall Company added the freight to the price of its coal ; and the state paid the Hall Company such freight as a part of the purchase price of the coal. Can the state recover ? A. No. It is not the party aggrieved within the meaning of the law. It had no relations with the railroad company. The meaning of this term "party aggrieved" must be taken to mean the one who is involved in a legal sense, according to the rules of the common law. Such rules are not to be changed by doubtful implication, or overturned except by clear and unambiguous language. State v. Central &c, 81 Vt. 459. O. 13. The Cumberland Telephone Company was required by the statute of Tennessee to supply all applicants for tele- phone facilities without discrimination or partiality, provided applicants complied with the reasonable regulations of the com- pany. Discrimination among applicants was prohibited under the penalty of $100 a day. Assume that the foregoing is only declaratory of the common law not to discriminate; although it of course enforces that law by the imposition of a penalty. statutes: interpretation 553 The city of Memphis passed a valid ordinance requiring the company to place and operate its wires under ground ; and this necessitated cables and conduits. When a conduit was full of wires, it was impracticable to supply any fresh applicants without laying a fresh cable — or unless a pair of wires in a cable in use became vacant through the giving up of a tele- phone. But 'it appeared that while the cable leading to plaintiff's district was full when plaintiff applied for service; yet other patrons for service in plaintiff's district were furnished service prior to plaintiff; although the service so furnished was a "party line service," a much cheaper and less competent method than the direct line service, and was one which plaintiff did not want. Discuss the question whether by reason of the delay in serv- ing the plaintiff the company incurs the penalty provided by statute. A. Where a statute in general terms merely declares what is already the common law, it should be construed as near as may be in accordance with the rule and reason of the common law, and by the method observed by the common law in other similar cases. In the first place it is obvious that a mere inadvertent omission to supply a telephone would not amount to a violation. Secondly, it is not to be assumed that the Tennessee legislature ever intended that the common-law duty on the part of a com- mon carrier of providing facilities reasonably adapted to the business which might reasonably have been anticipated, should be enforced by an arbitrary penalty of $100 a day from a time when telephone connection might have been supplied if the company's cable capacity had not been full. This construction would operate to ruin any ordinary compmany. It is accordingly held that the circumstances disclosed do not require a departure from the company's usual custom in the service of patrons, and an immediate increase of the company's cables for the purpose of serving the plaintiff. Cumberland &c. v. Kelly, 160 Fed. 316. Q. 14. An immature youth was at work at a machine in Providence. There was a statute in Rhode Island providing* that "all belting and gearing shall be provided with a proper safeguard." Assume the absence of such a safeguard ; but suppose also that the risk of operating the machine without it was a risk assumed by plaintiff, and that plaintiff was injured. 554 LAW STUDENTS REVIEW The question thereupon is whether, notwithstanding his as- sumption of risk, he could recover as for a breach on the part of defendant, a milling company, of a statutory duty ? What is the law here ? A. A statutory duty is no more imperative in law than a common-law duty. While a penalty may be imposed upon the com- pany for a breach of statute, yet this does not change the rela- tion of the above parties. A servant who goes to work in the face of a known defect due to the negligence of the master, as- sumes the risk of the employment; and the court will not as- sume that a statute is intended to change a rule of common law unless such an intent appears. There being nothing in the stat- ute in question to show such an intent to abrogate the rule of assumed risk, plaintiff can not recover. Langlois v. Dunn &c, 25 R. I. 645. Note: — While the rule is not uniform in all the states, yet the foregoing seems to be supported by the authorities. Q. 15. Action of debt brought by the treasurer of the state of Maine, upon a bond given by defendants as managers of the Sullivan Bridge lottery pursuant to private statute of 1826, Chap. 430. It appeared that in conducting the lottery, a loss had been sustained ; that is it was claimed that the managers should pay to the treasury of the state the price of every ticket sold or unsold ; although the managers claimed that they were held only for such tickets as they were able with due diligence to sell. In stipport of the contention of the managers, the court was invited to consider the act of February 11, 1823, authorizing a lottery for the benefit of the Cumberland & Oxford Canal coi'poration. This act contained provisions more liberal to the manufacturers of the lottery than were contained in the Sulli- van bridge act. But this the court declined to do. On what theory? A. Because a private act, though passed with all statutory sanction, possesses no binding force unless accepted by the grantees; and being for private benefit must be construed by a careful examination of its language and in no other way. Even in the construction of public statutes, when they relate and ex- tend to distinct and independent subjects, it is doubtful whether one statute may be considered in construing another; but in the statutes: interpretation 555 case of private statutes, there are held to be more like contracts and each must stand on its own language. Thomas v. Mahan, 4 Maine 513. Q. 16. An ecclesiastical society sued the president, directors and company of the Eagle bank. This bank had become insol- vent. The society claimed the right, on six months notice, to withdraw certain shares of stock the bank subscribed for by it, and to receive back its money paid for the stock. This claim was founded on a clause in the act of the legislature incorporat- ing the bank, and providing that in case of subscriptions from the funds of any ecclesiastical society, "shares so subscribed shall not be transferable but may, at any time, be withdrawn, on six months notice to the directors." In seeking to sustain its right, plaintiff had recourse to the charters of several banks from which subscribers were per- mitted to withdraw "their subscriptions" and "their moneys" after six months notice ; this on the ground that the laws as to the other banks and as to the Eagle bank, were in pari materia. Comment on this contention. • A. Not only are private acts, not being parts of a general system, not to be interpreted by a mutual reference to each other, but here the contention of plaintiff is not of like tenor ■with the statutes from which it seeks help. What the society is entitled to withdraw is its shares; but the other statutes re- ferred to permit withdrawal of "subscriptions" or "moneys." While it may be said that the statutes are similar; they still are not in pari materia. United Society v. Eagle &C, 7 Conn. 456. Note also that while public statutes relating to the same subject, are to be construed together, yet a supposed policy of former statutes will not operate to control a later statute on the same subject. Goodrich v. Eussell, 42 N. Y. 177. Q. 17. A statute provided that whenever the Boston Ele- vated Railway Company is authorized to begin the construction of its railroad over a certain route, the Boston Transit Com- mission should construct certain tunnels with approaches and connections at designated places, or as such board might deem proper. 556 LAW students' review Assuming that the commission made a report to the City Council of Boston containing an estimate of the cost of a cer- tain tunnel; and assuming that a copy of such report was mailed to the members of the legislature soon after their elec- tion, and that in point of fact such report was relevant as affecting the vote of a legislature on the question of whether or not the statute should pass; may the report be considered by the court, in construing the statute ? A. The report is not to be considered. It was not made to the legislature. It was doubtless only one of many documents sent to the different legislators; and it can not be assumed that any member read it, or paid any particular attention to the esti- mate. Nor would the statement of any member that he was influenced by the report be admissible. Browne v. Turner, 174 Mass. 150. Q. 18. Under the tariff act of July 24, 1907, tin plate, and articles wholly or partially manufactured from tin plate, were subject to ij^c a pound duty. Certain small discs or circles imported from Canada, and constituting simply the round piece cut out of the top of a can to provide an aperture by means of which the can could be filled, were made from the by-products or cuttings of tin plate, and by the process were reduced to only one-fifth of the value of the plate from which they were made. Do such discs come within the classification of being manu- factured from tin plate, in which case the duty would be about 200 per cent, ad valorem; or. are they dutiable as articles of metal not specifically provided for, whether partially or wholly manufactured? (duty 45 per cent, ad valorem) ; and in ascer- taining the intent of congress, may resort be had to its records and debates upon the subject? A. Duties are not imposed upon a citizen upon vague or doubtful interpretations; and if the question is one of doubt, it will be resolved in favor of the importer. Duties being in dero- gation of common-law right, the statutes imposing them must be construed most favorably to the importer. Held, that the lower duty should be imposed; also, that the purpose of the congress might be ascertained from its records and debates upon the sub- ject; and that it was manifest therefrom that the purpose of statutes: interpretation 557 congress was to protect, and not prohibit ; to raise, not to cut off revenue; to promote legitimate business, not to destroy it. Shallus v. United States, 162 Fed. 653. Q. 19. The parents of a child brought suit against Chicago and Alton Railroad Company for causing by the wrongful act of the company the death of their child. The death was im- mediate. At the common law, therefore, no one could have maintained a civil action in respect thereof. But the Missouri legislature had enacted a statute on the subject. Assuming that if such statute created a new cause of action, plaintiff's suit would lie ; but that if it simply sought to transmit a cause of action, the suit would not lie ; and assuming further that this precise point never had in terms been decided by the Supreme Court of Missouri, although the logic of its opinions would indicate that where death was instantaneous no action could be maintained ; will the court give any weight to "the uniform and contemporaneous action and opinion of the bench and bar in determining the matter" ? A. Yes. While the logic of the situation and of the decisions might be against plaintiff, yet as the precise point had not been decided against his contention, and as "learned" judges and counsel engaged in deciding and prosecuting such suits under the act must have assumed that a right of action was thereby created, the court will in the absence of an express decision to the contrary adopt the assumption of the courts and the bar that the statute does give the right to sue and recover even where death is instantaneous. Note, however, that mere dicta of a state court are not binding. Matz v. Chicago &c, 85 Fed. 180. Q. 20. In 1883 an Act of Parliament of 1858 was involved in a case pending in the House of Lords. The issue was as to whether the word "river" comprehended the whole waters of Clyde River ; or whether it was to be restricted to those portions of the channel of that river which had been artificially deep- ened. The question of the levy of rates on timber floated in the river being involved it appeared that by duly constituted au- thorities such rates had been levied for a period of eighteen 558 LAW STUDENTS' REVIEW years, on timber floated to the yard outside such channels; and had been paid by wealthy timber merchants. To what weight if to any, is this practice entitled in con- struing the act of parliament involved? A. The fact that officials charged with the administration of the law, had construed the meaning of the word "river" as in- cluding the waters outside the channel; and that timber mer- chants "an acute and wealthy body, by no means inclined to pay money gratuitously or to shrink from litigation, have submitted and paid levy," raises a strong prima facie ground for thinking that there must exist some legal ground by reason whereof they could not resist. The court will be cautious and will not "decide unnecessarily that there is no such ground." (Lord Blackburn.) But Lord Watson, though of opinion that such usage, if con- tinued throughout a long course of years, without protest, may legitimately be considered, yet states (in 1883) that it is of no value whatever "in construing a British statute in the year 1858." Clyde v. Laird, L. R. 8 As>p. 658, 670, 673. Q. 21. The comptroller of currency made an assessment against one Studebaker in respect of Studebaker's holding of stock in a national bank. Studebaker defended on the ground that under the national banking laws the comptroller could make only one assessment upon the shareholders of an insol- vent national banking association; and that the assessment in question was a second assessment. It was also urged by Stude- baker that contemporaneous and practical construction put upon the statute by executive officers was that the power to assess was exhausted by a single exercise. The statute in ques- tion provided that shareholders of a national bank should be responsible to the extent of the amount of their stock at par in addition to the amount invested in such shares. Comment on the doctrine of practical construction here sought to be invoked. A. "The docrine invoked is a useful one, but its application should be restricted to cases in which the construction involved is really one of doubt and where those to be affected have relied on the practical construction, and rights have accrued by reason of such reliance." Here the statute is so plain that such con- struction must be rejected. Studebaker v. Perry, 184 U. S. 258, 269. statutes: interpretation 559 Q. 22. The statute of California concerning the probate of wills in the probate courts of that State did not in terms pro- vide or specify whether or not a formal judgment or decree admitting the will to probate should be entered. A question arose upon the probate of a will where no judgment was en- tered as to tlii? fact ; but there was a recital that the executor "now proves the execution of the will," and letters were thereon issued. It appeared that in the County of San Fran- cisco, during a period of five years, it had been the practice to probate wills and issue letters without any such order. In addition to contemporaneous construction, what other principle, to sustain such practice, is here applicable ? A. That of sustaining property rights acquired under such interpretation. In the instance here noted, the Court observes that to declare the probate of the will invalid would in effect declare void the probate of every will in the county of San Francisco for five years. Property rights having vested under "contemporaneous interpretation" of the statute, the Court feels itself constrained to uphold such interpretation. In the Matter of Will of Warfield, 22 Cal. 51, 71. Q. 23. In California, a husband and wife may hold "com- munity property." As to such property, prior to 1905, the Supreme Court of that state had held that the wife held no vested interest in such property, but that she held merely an "expectancy" — which expectancy, however, her husband could neither alienate nor by will deprive her of; and that on the death of her husband she takes as heir, not as survivor. In 1905 the legislature enacted a law subjecting to inheri- tance tax all property which shall pass by will or "by the intest- ate laws of this state" from any person dying seized or pos- sessed of the same. On an attempt to tax community property passing .to the widow, it was urged that the widow took not as heir, but as survivor. In determining this question, what effect, if any, is to be given to the holding of the Supreme Court, prior to 1905 ? A. The legislature will be presumed to know the latest ex- pression of the Supreme Court upon the subject and as the Court had declared as above, it will be presumed that had the 560 LAW STUDENTS' REVIEW legislature intended that the widow's share should not be subject to this tax, the law would have explicitly excepted it. In case the legislature was ignorant of the decision of the court — then it, and not the court, is responsible; and it and not the court must find the remedy. In the Matter of the Estate of Moffitt, 153 Cal. 359. Q. 24. The Judiciary Act of 1891 provided that where an injunction shall be granted or continued by an interlocutory order or decree, an appeal therefrom will lie. In 1895 the sec- tion here concerned was amended, and it was provided that where an injunction shall be granted, continued, refused or dis- solved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, an appeal will lie; and in 1900, without referring to the Act of 1895, the Act of 1891 was amended to provide that where an injunction shall be granted or continued or a receiver appointed by an inter- locutory order or decree an appeal will lie. Assuming the act of 1900 to contain "all the law on the subject." (a) Is the last act invalid because it purports to amend a section of the original act which had already been amended? (b) If the last act be valid, did its enactment operate to repeal the Act of 1895? A. (a) In the absence of constitutional restriction an amendatory statute will be upheld though it purport to amend a statute which had already been amended, or which was for any reason invalid. (b) The act of 1900 repeals that of 1895. The congress must by the courts be presumed to be acquainted with the existing law in respect to subjects upon which it legislates; and the supposition that the act of 1900 was framed in ignorance of the provision of the act of 1895 can not be entertained. Columbia &c. v. Boyce, 104 Fed. 172. Chicago &c. v. Miller &c, 133 Fed. 541. O. 25. A Nebraska statute of 1887 amended an Act of 1885, which Act of 1885 was itself an amendment of a still earlier act. The Supreme Court of Nebraska held the act of 1885 to be void. Must the Act of 1887, being amendatory thereof, fall with the Act of 1885 ? statutes: interpretation 561 A. Upon this there is some conflict of opinion; but the weight of authority sustains the position that an amendatory act is not invalid though it purport to amend a statute which had previously been amended or for any reason has been held invalid. Beatrice v. Masslich, 108 Fed. 743. Q. 26. The tax law of New York in 1905 imposed a tax of 2c on each hundred dollars of face value or fraction thereof on all sales or transfers of certificates of stock. In 1906 the section was amended so as to impose a tax "on each share of one hundred dollars of face value or fraction thereof" instead of on "each hundred dollars of face value or fraction thereof." Assume that the amendment is void, as being arbitrary dis- crimination (the sale of 100 shares of the face value of $10 might be taxed $2.— while the sale of 10 shares of the face value of $100 would be taxed only 20c, the shares sold in each case being worth the same amount) ; yet may the amending statute be regarded as valid for the purpose of substitution for or repeal of the earlier statute? A. No. The rule is that a statute is never repealed by impli- cation when a provision of a later act which would effect a repeal is itself unconstitutional and void. People v. Mensching, 187 N. Y. 8, 23. Q. 27. In 1887 the territorial legislature of Arizona, for the purpose of refunding territorial indebtedness, constituted a Board of Loan Commissioners. In 1890 the congress passed an act approving and confirming the above Act of 1887 — but "subject to future territorial legislation," and adding pro- visions against any further increase of indebtedness, with cer- tain exceptions, beyond that limited by former act. In 1899 the legislature passed an act to "Abolish the Loan Com- mission." The Act of the Congress of 1890, while it purported to amend the earlier territorial act, and, as amended, to approve and confirm it — did not use the language of an amending act, nor did it call attention to the amendments; but its language was 36— L. S. Eev. 562 LAW STUDENTS' REVIEW that of a repeated and substituted act. Both acts were complete in themselves; and each on its face (except as above) was independent of the other. Will they stand together as two independent acts? or will the later act operate, without any repealing clause, to repeal the earlier act? A. Where there are two acts on the same subject, and the later act embraces all the provisions of the first, and also new provisions, and imposes different or additional penalties, the later act operates, without any repealing clause, as a repeal of the first. United States v. Tynen, 11 Wall. 88. Applying this rule in the above case, the act of the congress must be considered as repealing the territorial act. It is noted that in cases where certain provisions of the earlier act are left in force, then the earlier act will not be held, in the absence of repealing words in the later act, to be repealed. Murphy v. Utter, 186 U. S. 95, 104, 105. Q. 28. In 1848 the Detroit and Howell Plank Road Com- pany was incorporated for the purpose of building and main- taining a plank road from the City of Detroit to the Village of Howell. The act provided that the legislature should not within thirty years after the passage of the act alter, amend or repeal the act, unless there should be a violation by the com- pany of its provisions; and it was further provided that after said thirty years no alteration or reduction of the tolls of the company should be made unless the yearly net profits of the company should exceed 10% on its capital stock. In 1879 an act was passed providing that without the con- sent of the local authorities, no toll gate should be maintained within the limits of any city or village ; and thereupon the City of Detroit called upon the Company to remove its toll gate within the limits of that city. It was not claimed that the com- pany had earned 10% on its stock. It was established, however, that the removal of the toll gate would take from the company about 23^ miles of its road. Has the legislature the right to authorize, and the City of Detroit the right to require, the removal of the toll gate? statutes: interpretation 563 A. No. Where the elements of contract, concession and con- sideration do not appear, a legislature can not bind its suc- cessors so that they may not legislate in reference to the subject matter. And where the essential elements of a contract are not apparent in a statute granting the franchise, the courts will not scrutinize closely to discover contract obligations. But here the contract feature is unmistakable. It was a part of the original contract that the tolls should not be reduced by the state until the minimum upset of 10% of returns should have been reached; and the state may no more exclude the company from Detroit than from Howell, or from any township on the line. A statute which could have this effect would not be a statute to amend a franchise. It would be a statute to confiscate property. Detroit v. Detroit &c, 43 Mich. 140. 0. 29. Testatrix made Cornell University her residuary legatee. The charter of the University provided that it might hold real and personal property in an amount not to exceed $3,000,000 in the aggregate. At the time of her decease, the Court of Appeals of New York had held that under the New York law the heirs at law and next of kin of testatrix had the right to avail themselves of the fact, and held it to be a fact, that at her death the Uni- versity held property exceeding $3,000,000, and therefore it could not accept her legacy. Is the Supreme Court of the United States bound by this conclusion of the New York Court of Appeals? A. Yes. Both as to law and fact. No federal question is involved in this determination. It depends entirely upon the construction of the provisions of the charter of the university, and upon the municipal law of the state of New York. Cornell &c. v. Fiske, 136 U. S. 152. Q. 30. Suit was brought by Andrew Carnegie against one Jessup and others to enforce their liability as stockholders in the Davenport Railway Construction Company, to which "com- pany" Carnegie had sold railroad iron, and which "company" was intended to be incorporated under the laws of the state of Iowa. Proceedings had been taken for that purpose, but it was said that such proceedings were defective ; and that in consequence defendant stockholders were personally liable. 564 law students' review Their liability involved the interpretation of the statutes of Iowa. Assume, in determining the interpretation to be placed upon those statutes, that courts in other states will follow the Supreme Court of Iowa. But assume further that the Supreme Court of Iowa had given a construction to a statute and obliga- tions on the faith of such construction have been entered into ; and that thereafter a subsequent decision of that court con- strues the Iowa statute differently: Will the court of a sister state follow the earlier or the later interpretation of the Iowa court ? A. It will follow the earlier interpretation. Property rights having vested thereunder, the rule of stare decisis may be in- voked. Parties have a right to assume that the law as laid down by the Supreme Court is correct, and to act upon that assumption ; and the courts of another state will not upset rights thus acquired, even though the law be differently interpreted at a later date. Jessup v. Carnegie, 80 N. Y. 441. Gelpcke v. Dubuque, 1 Wall. 176. Q. 31. The Ohio legislature passed an act to reorganize and consolidate cities of the first grade of the second class (Colum- bus). It sought to grant authority to such city to appoint a board of control, the City Council to exercise this authority. This was held to be in violation of a section of the Ohio Consti- tution prohibiting the conferring of corporate powers by a special act. The act also authorized the reduction of tax levy, and the re-districting of the City of Columbus into wards ; and the last named features were held not to be violative of the constitution. Can the act stand as to such features as do not violate the constitution ? A. No. It is highly improbable that the legislature would have enacted the provisions for re-districting the city without those for its reorganization; and therefore it can not be said that the legislature would have passed the re-districting portion without the reorganization feature. Accordingly the whole act must fail. State v. Paugh, 43 Ohio St. 98, 124. statutes: interpretation 565 Q. 32. Isaac Davis and his wife, Jessie, adopted as their child the natural daughter of Elizabeth Davis. About a year after the adoption of the child, Jessie died, leaving as her only heirs her husband and her adopted daughter. Within a year the adopted daughter also died. The natural mother claimed two-thirds of the land which Jessie was seized of,' and which passed by inheritance to the adopted daughter. This claim the surviving husband resisted ; and the question was raised, shall the land go to the surviving husband, or to the natural mother? In the case of Davis v. Krug, 95 Ind. 1, it was held that property derived by a child from one of the persons by whom the child had been adopted went to the other parent by adop- tion, rather than to the natural mother of the child. Assuming that in an earlier case the Supreme Court of Indiana had held that the natural mother would take, and the adopted father would be excluded; has a purchaser the right to rely on such a decision? and if he purchased from the natural mother, will his title be sustained ? A. A judicial decision does not make unalterable law, nor is it law in the sense that the statutes are law. It is simple evi- dence of the law; and not conclusive evidence, but only prima facie evidence. Where a judicial decision is palpably errone- ous and plainly productive of injustice, it should be overruled; and a party who buys lands during a pending litigation can not hold them as a bona fide purchaser solely on the ground that in former decisions the Supreme Court had declared the law to be as claimed by his grantor. Paul v. Davis, 100 Ind. 422. Note : — That in the foregoing decision the court observes that Krug v. Davis, 87 Ind. 590, in part overruled, is a single case upon an isolated question, affecting very few persons, and upon a subject then recently introduced into the law of Indiana, (p. 428. ) Note also question 30, supra. The net result of the decisions seems to be that the courts of sister states follow an earlier decision establishing a property right, and refuse to follow a later decision overturning such right; while the court which renders the earlier decision may (though with reluctance) upset it. Q. 33. By a statute of the state of Maine, it was provided that the defendant, the New England Telephone and Telegraph 566 LAW students' review Company, should pay an excise tax which should be in lieu of all taxes upon its property used in the conduct of its business, including the poles, wires, insulators, office furniture, batteries, instruments, telegraphic and telephonic apparatus, telephones, and transmitters. The statute was passed in 1883. At that time, the method of using conduits underground, instead of poles and arms above the ground, had not been adopted by telephone com- panies. But later the company adopted and used this method. Are its conduits taxable, or are they exempt? A. Exempt. It was urged that the mention of all these par- ticular appliances, and the omission of conduits, brought the case within the rule that the expression of one thing excludes the other not expressed (expressio unius est exclusio alterius). But it is held that mere particular expressions will not be allowed entirely to exclude a more general intent clearly manifested by a statute. That intention is often best served by permitting the subject matter of the particular provision to stand side by side with that of the general provision. Portland v. New England &c, 103 Maine 240, 249. Q. 34. Earl Russell, a peer of England, became involved in conjugal infelicities, which resulted in his living apart from his wife, but not in divorce. But on April 14, 1900, he obtained in the state of Nevada, a divorce from his wife. The next day he went through the form of a marriage with a Mrs. Somer- ville, a widow. It was admitted that the divorce proceedings in Nevada were not effectual to dissolve the English marriage. Upon his return to England the Earl was indicted for big- amy. The statute provided that whoever being married, shall during the life of his wife marry any other person, whether the second marriage shall have taken place in England or Ireland "or elsewhere," shall be liable, etc., (penalty). It was contended that "or elsewhere" meant elsewhere within the King's dominions, not in a foreign country; and another sec- tion of the same statute which section dealt with murder, was adverted to; the words were "within the Queen's dominions or without." Shall the contention prevail ? statutes: interpretation 567 A. No. The statute is plain in its ordinary signification. Its plain meaning will not be controlled or varied because of the existence of other words in other statutes enacted under other circumstances in relation to other crimes. Eex v. Earl Eussell, 85 L. T. Eep. (N. S.) 253. Q. 35. A statute provided that the county auditor should act as member of the county board of review, and that each mem- ber of the board of review should be entitled to the sum of $3 a day while acting as a member of said board. Ten days after the statute was passed, another statute, concerning fees and salaries, was enacted requiring county auditors to tax and charge upon proper books the fees and amounts provided by law on account of services performed by said officers, that such fees and amounts should be designated as "auditor's costs" ; but that they should belong to the counties respectively, and not to the auditors. A scale of fees was set forth, for vari- ous specified services. One Seiler acted for twenty-six days as member of such county board; and received $78. The state, suing for the county, obtained judgment for this sum, on the ground that he should have turned it over to the county. Is the judgment sustainable ? 1 A. Not sustainable. When two statutes are passed at the same session of the legislature, they should be construed to- gether, and if possible each should stand and be enforced as enacted. Here, if the judgment be allowed to stand, the law will be taken to mean that Seiler should collect $3 a day from the county for his services on the board of review; and must thereupon turn it back to the county; an absurd interpretation. Accordingly it is held that the "fees and amounts provided by law on account of services performed," refer to particular acts done and amounts collected (as administering oaths, making copies &c.) ; and do not include the $3 per diem compensation. Seiler v. State, 160 Ind. 605, 611-621. Q. 36. Action by the United States to confiscate 99 dia- monds. The statute provided that: "If any owner shall make any entry by means of any false invoice * * * or shall be guilty of any wilful act or omission by means whereof the United States shall be deprived of the 568 LAW STUDENTS' REVIEW lawful duties accruing upon the merchandise embraced or re- ferred to in such invoice, or affected by such act or omission, such merchandise shall be forfeited." The claimant, in making his entry, declared that he was the owner, and one Fink was the seller of the diamonds ; when in fact claimant was consignee and Fink was consignor. But the government lost nothing. Assume that claimant's statement was untrue; must the government, in order to convict, show that the United States was by reason thereof "deprived of lawful duties"? A. This depends on whether the clause "by reason whereof the government is deprived" &c, is to be taken to apply to the making of a false entry; or whether it applies only to "any wilful act or omission." Must the false entry be the means of depriving the government of customs? Or, if made, is it a com- plete offense, in itself, whether the government loses customs or not? Clearly the former; for if the congress deems it imma- terial whether the government loses or not, why insert the words, "embraced or referred to in such invoice"? As these words have a meaning, if you assume that to constitute the offense the government must lose customs; but have no meaning otherwise; then the government, in order to convict, must show that the false entry deprived it of custom duties. United States v. Ninety-nine Diamonds, 139 Fed. 961. Q. 37. Settlor granted certain property to trustees, in trust ; one-half for missionary work of the Moravian church; one- quarter for the maintenance and educating of children of min- isters and missionaries of that church, especial regard being had to those in straitened circumstances ; the remaining quarter to provide homes for female (Moravian) teachers who have become incapacitated for work. The statute with reference to exempting property devoted to "charitable purposes" was relied on; and exemption was claimed for above trust. Is the popular meaning of the term, "charitable purposes," namely, relief from physical necessity, or supplying physical, mental or religious wants, the meaning to be followed? A. No. For example, you may desire to convert the richest people, and very often do so desire, to your religious opinions. statutes: interpretation 569 To be a charity, the trust need not be restricted to mission work among the poor heathen ; it may be used to convert the heathen without regard to their poverty at all. If any doubt as to the intention of the law-giver arises, the ground and cause of mak- ing the statute are considered; and the above case reviews, in statutes and decisions from 43 Elizabeth, the interpretations given to the term "charitable"; and trusts for the advancement of education, and of religion, though rich as well as poor may benefit thereby, are found to be "charitable trusts." The classi- fication is of course not exclusive. Income Tax Comrs. v. Pemsel, 65 L. T. Kep. (N. S.) 621, 637. O. 38. By the words of a statute, the common council of a city "is authorized to audit and adjust the amount of damages" (involved in taking property), and when appraised "the same shall be raised * * * and the amount paid over," etc. Under this statute plaintiff, Reynolds, claimed that as to certain property of hers said to be damaged by the City of Buffalo, in extending Elmwood avenue, it was the duty of the council to audit and pass upon her claim. Assuming the language of the statute is permissive rather than mandatory in form, may plaintiff still sustain a writ of mandamus to compel the council to audit and pass upon her claim ? A. Yes. The rule of law is that permissive words used in statutes conferring power or authority upon public officers or bodies, will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of indi- viduals. People v. Buffalo, 140 N. Y. 300, 306. O. 39. Suppose in the previous question the words had been "may, if deemed advisable" audit and pass upon claims. Then would mandamus lie ? A. Yes. The power is given for the benefit of a third person ; not for the benefit of the council. In such cases the legislative in- tent, which is the test, is not to invest with a mere discretion ; but to impose "a positive and absolute duty." So where justice or the public good is involved, the sheriff "may take bail." This means he shall take bail. Supervisors v. United States, 4 Wall. 435. 57° LAW STUDENTS REVIEW Q. 40 Action to recover penalty against defendant for re- fusing to permit plaintiff, who was standard-keeper of Surry County, to examine and adjust defendant's scale used by defen- dant at Pilot Mountain, North Carolina. The statute relied on provided that no trader or other person shall buy or sell or otherwise use in trading; and, in another section, that if any person, after demand by the standard- keeper for permission to examine and adjust shall buy, sell or barter by any weight or measure not tried by the standard- keeper, he shall forfeit, etc. And still another section provided that "every person using" weights, etc., should, under penalty, permit the standard-keeper to examine and adjust. The defendant was a railroad company; and claimed that it neither bought, sold nor bartered; but it was sought to hold defendant by reason of its using weights and measures. The lower court nonsuited plaintiff. Is this correct ? A. Yes. The railroad company neither bought, sold nor bartered. The law can not be extended to include corporations, unless the extension may fairly be said to include citizens as well. A housewife, for instance has a pair of scales, but neither buys, sells nor barters, though she "use" them ; it would be most unreasonable under a statute of this character, to penalize her for refusing to permit the standard-keeper to examine and ad- just them every two years. Nance v. Southern Ry., 149 N. Car. 366. Note, however, dissenting opinion by Hoke, J. Q. 41. A patent for inventions was sustained in the Circuit Court of the United States for the Eastern District of Penn- sylvania. Upon rehearing, however, the same Court decided against the patent. On appeal the lower court was reversed, and the patent was upheld ; but one of the three Circuit Court of Appeals judges dissented. This was in the Third Circuit. The patent came up next in the Second Circuit and was in the lower courts sustained. The Circuit Court of Appeals, however, reversed the lower court. By reason of these conflicting decisions in the second and third circuits, the Supreme Court of the United States allowed statutes: interpretation 571 a certiorari in the latter case, and it was supposed that then the law would be settled. It turned out, however, that the Su- preme Court was evenly divided. Apply the doctrine of stare decisis to this situation. A. An affirmance of this character in such a situation estab- lishes no precedent or principle. It was formerly the practice at common law that when there was an equal division of the judges upon a question of law, no judgment should be given. While the practice has now been changed, and it is now the general rule that where a cause comes up from a lower court on a question of law, either by exception or appeal, and there is an equal division of judges, the judgment of the lower court is, as a rule, affirmed; yet such an affirmation establishes no prece- dent or principle. Hanifen v. Armitage, 117 Fed. 845. 7 Encyc. P. & P. 44. Q. 42. Plaintiff brought suit against the defendant, who was a stakeholder, to recover back a sum of money bet on the result of a. congressional election. The bet was between the plaintiff and one Donnell. There was in Pennsylvania a statute in force, declaring a forfeiture of money bet on an election, to the authorities in charge of the poor of the district where such bet was made. The statute continued: "provided suit is brought within two years from the time of making such bet." Does this proviso, after the period of two years, operate to divest the authorities of the right to the thing forfeited ; or does it simply limit their right of action therefor? A. It was urged that while, if the authorities brought suit, and the proviso were relied on, their action for the money would be defeated; yet that the right of property continues in the au- thorities; and if the statute were not pleaded they might re- cover. But it was held that the proviso is not a statute of limita- tion; but is a conditional limitation on the right to recover. When the right is not exercised, the money or thing bet stands as to ownership where it did before the enactment of the statute. The forfeiture being in the nature of a penalty, freedom of con- struction is forbidden by the common law, and the condition can not be disregarded. Accordingly, the plaintiff was held to be entitled to recover from the stakeholder — on the ground that the 572 LAW students' review money being bet on a contract prohibited by law, the contract is void, and the owner's right of reclamation is not thereby impeded. Forscht v. Green, 53 Pa. 138. Q. 43. In an action of trespass the defendant was charged with entering the close of the plaintiff in the township of Gallo- way and taking and carrying away oysters of the plaintiff. The locus in quo was a flat over which the tide ebbed and flowed at the mouth of Mott's creek in said township. The plaintiff owned the land adjoining, his title calling for the creek, the flat lying between the channel of the creek and plaintiff's upland. Usually the surface of the flat was below low water mark; but in very low tides, perhaps twenty times a year, its surface was uncovered by water. Plaintiff had marked it out with stakes, and had planted oys- ters in some parts ; in other parts they grew naturally. Defen- dant took the oysters when the flat was uncovered — 100 bush- els of natural oysters, and 100 which had been planted. Plaintiff relied upon a statute making it lawful for any person owning flats along the shores of tide water to mark them out by stakes, and to plant oysters, provided the stakes should not include any natural oyster beds always covered with water beyond low water mark, nor injure any navigation publicly used. It was urged that if the proviso be construed to limit the grant to low water mark, the whole object of the section would be defeated; for inasmuch as oysters would not grow above low water mark, it was said there could be no possibile utility in staking out above low water mark. Does this contention control? A. No. The first proviso is held to protect the natural oyster beds; the second with reference to navigation is to express the precise intention of the legislature against any construction that could lead to an encroachment upon the public rights. Even if the contention made indicates ambiguity or confusion; yet the doubt must be resolved against a private grantee. If the legis- lature really meant to grant to individuals the right of several fisheries below low water mark, it is easy to do so in plain terms. Townsend v. Brown, 24 N. J. L. 80. statutes: interpretation 573 Q. 44. A statute conferred the franchise on the defendant, a bridge company, to erect and maintain a toll bridge across the Monongahela River at Pittsburgh ; but it was coupled with the proviso that the company should not erect the bridge "in such manner as to injure, stop or interrupt the navigation of said river by boats, rafts or other vessels." Plaintiff sued the bridge company in case, claiming that the second pier of the defendant's bridge was located in the coal boat channel at ordinary stages of the water; that it was an obstruction of the navigation of the river; and that while plain- tiff used due care and skill in navigating his boat, she was wrecked and lost against said second pier. It was contended for the defendant bridge company, and this contention was sustained by the lower court, that if con- strued according to the strict letter of the proviso, the act of in- corporation would be a nullity, unless the bridge could have been thrown across the river by a single span. This, the jury were told, "according to the science of bridge building at that early date (1810) you may perhaps think was impracticable"; and they were instructed that the statute must have a reasonable construction, and that the defendant was authorized to erect the bridge "causing as little injury and obstruction to the navi- gation of the river as possible." Is the lower court correct in this? A. No. Where a proviso or saving clause is directly repug- nant to the purview of the act, then the proviso will not be given effect. But in the above case the court will not take notice that a pier in a river is per se injurious to navigation, Accordingly, the construction might have proceeded, from all that appears, in a manner not to obstruct, but perhaps to assist navigation, should a pier be so placed as to throw an increased volume of water into the channel. The court reaffirms the doctrine of the preceding case (Q. 43) resolving doubts in favor of the public and against the grantee; and refused to construe the proviso as meaning that a method of building a bridge doing "as little injury as possible" to navigation, was authorized, in case it did any injury. Dugan v. Bridge Company, 27 Pa. 303. CHAPTER XX CONSTITUTIONAL LAW Question i. What is the meaning of "constitution" as ap- plied to the various states and to the United States? Answer. A constitution is an instrument of government made and adopted by the people for practical purposes connected •with the common business and wants of human life. It is a form of government established by the people, designed for their general welfare as a society and as individuals. It is the funda- mental or basic law to which all others must conform. The ulti- mate distinction between it and other forms of written law re- lates to the formal mode by which they are adopted and may be changed. 6 A. & E. Encyc. L. (2nd Ed.), 889. Q. 2. The State of Maryland undertook by statute to tax bank notes issued by any bank not thereto authorized by the state, and to impose a penalty upon officers violating the stat- ute. McCulloch, the cashier of the Baltimore branch of the United States bank, was adjudged guilty, under this statute, in reference to issuing notes of said bank. Is the statute valid ? A. Statute invalid. The government of the Union, though limited in its powers, is supreme within its sphere of action, and (a) Under the constitutional authority to raise revenue to lay and collect taxes; to borrow money; to raise and support armies and navies, and to make necessary and proper laws to execute its powers, and to apply its revenues to national pur- poses, the power of congress exists to select and employ usual means of effecting this result. He who asserts that an incorpo- rated bank is not a reasonable and appropriate means has the burden of establishing that exception. The law to incorporate the United States Bank is in pursuance of the Constitution. (b) The bank being a government instrumentality, there is no power in a state to tax it. For the power to tax implies the 575 576 LAW students' review power to destroy; and to urge (as was urged) that the state would not in fact exercise the power to the extent of destroying, does not meet the situation. May they tax the mail? the mint? judicial process? Clearly not. McCulloch v. Maryland, 4 Wheat. 316. Q. 3. The legislature of South Carolina undertook by stat- ute to regulate the liquor traffic. The constitution of that state provided that "the enumera- tion of rights in this Constitution shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people." Under the foregoing. provision, it was urged that the legis- lative powers must be special and enumerated powers, like those of the congress of the United States; and that powers not granted must be regarded as withheld. That is, no power to enact a "dispensary law" having been granted, none existed, in the legislature. What is the law here? A. That the general capacity to legislate can not be regarded as withheld. On the contrary, that such power, except as re- stricted in terms by the constitution of South Carolina, inheres in the legislature. That as a law regulating the liquor traffic is unquestionably sustainable under the police power, the law in question is one which the legislature had the power to pass. In this respect (i. ,e. that special power need not be granted), the state constitution is to be construed differently from the Con- stitution of the United States. State v. Aiken, 42 S. Car. 222, 243, 244. O. 4. (a) What is the office of and what effect do courts give to the Bill of Rights inserted in the American Constitution ? (b) What is the source of Bill of Rights ? A. (a) These bills are regarded as parts of the Constitution in which they are found, and are to be construed with other constitutional provisions. (b) They are copied from Magna Charta, and the English Bill of Eights of 1689. 8 A. & E. Encyc. L., p. 743. 8 Cyc. p. 743. CONSTITUTIONAL LAW 577 Q. 5. Writ of error to the Supreme Court of Oklahoma to review the judgment of that court. The legislature had on December 29, 1910, enacted a law providing for the removal of the state capital from Guthrie to Oklahoma City. The act of congress (1906) under which Oklahoma was admitted to the Union provided that the state capital should temporarily be at Guthrie, and should not be changed prior to 1913; and the last section of such act provided that the Oklahoma consti- tutional convention should irrevocably accept the terms and conditions of the act. This is of course repugnant to the change by the Oklahoma legislature. Which shall prevail? A. It was urged that, as the congress may impose conditions upon the entry of a new state into the Union ; therefore, if these conditions are accepted, they become binding, even though the result be that the state admitted would then not be admitted upon "an equal footing with the original states." But it was held that the Union is a union of states equal in power, dignity, and authority. If as to new states, the congress may bargain with them to surrender, or not to exercise the powers the other states have, then inequality would result. Moreover, the several states have all the attributes of sover- eignty, except those surrendered to United States. But if a state be shorn of some of these attributes of sovereignty, and they are not vested in the United States, what becomes of them? The act of the Oklahoma legislature prevails. Coyle v. Smith, 221 U. S. 559. Note, however, that as to "Insular Possessions," only the express prohibitions in the Constitution restrict the congress; and that importations from Porto Rico may be subject to a customs duty; Downes v. Bidwell, 182 U. S. 244. and that the constitutional provision, securing right of trial by jury, where the value in controversy shall exceed twenty dol- lars, does not, without legislation, and of its own force, carry such right to the Philippine Islands; and this is true although most, if not all, the privileges and immunities in the Bill of Eights of the Constitution are extended to apply from the mo- ment of annexation. Dorr v. United States, 195 U. S. 138. 37— L. S. Rev. 578 LAW students' review Q. 6. By constitutional amendment the citizens of the state of Oregon reserved power to themselves to propose laws and constitutional amendments, and to enact and reject the same at the polls, independent of the legislature ("Initiative"), and to approve or reject at the polls any act of the legislature ("Ref- erendum"). By way of the "Initiative," telephone and telegraph com- panies were taxed 2% on their gross revenues from business done within the state. The companies claimed that this was in violation of Sec. 4, Article IV of the Constitution, that "the United States shall guarantee to every state in the Union a republican form of government." They sued out a writ of error from the United States Su- preme Court to reverse a judgment in an Oregon state court for this tax. Will the writ lie ? A. No. The question here is not justiciable in the United States Court. As long as the senators and representatives are admitted to congress, this is a recognition of the government of the state of Oregon, and that it is republican in character. The congress, not the Supreme Court, is arbiter here. Pacific &c. v. Oregon, 223 U. S. 118. Q. 7. Name some provisions in a constitution which are regarded as self-executing without supplemental legislation. A. Provisions against gaming, usurious contracts, discrimi- nating charges by railroads, the taking of property without compensation by right of eminent domain, and generally all provisions to protect the public against fraud, are regarded as self executing. 8 Cyc. 752. Q. 8. When is a constitutional provision said to be self- executing? When not? A. When there is a manifest intention that it should go into immediate effect and no ancillary legislation is necessary to the enjoyment of the right given or the enforcement of the duty imposed. It is the prevailing doctrine that prohibitory constitutional provisions are self -executing without regard to legislative sanc- tion. CONSTITUTIONAL LAW 579 In general when a constitutional provision furnishes no rule for its own enforcement, or where it expressly or implicitly requires legislative action to give effect to the purpose contem- plated, it is not self-executing. 6 A. & E. Encyc. L. (2d ed.), 912, 915. Q. 9. What is the distinction between express and implied powers as conferred in a constitution ? A. When a constitution confers a power or enjoins a duty it also confers by implication any incidental power necessary for the exercise of the one or the performance of the other; but where the means for the exercise of a granted power are also given, no other or different means or power can be implied, either on account of convenience, or of being more effectual. 6 A. & E. Encyc. of Law (2d ed.), 928. Q. 10. Congress passes an act establishing a reasonable maximum rate for long distance telephone calls between points in different states. Is the act valid ? A. Such an act would probably be valid and within the province of the congress to regulate interstate commerce, granted by the Constitution. Commerce is construed here to mean not only the exchange of commodities or their transportation, or the transportation of passengers, but to embrace "intercourse" between the states and foreign nations. The word "commerce" is generic and is not confined to what is commonly designated as "trade." Welton v. Missouri, 91 U. S. 275, 280. O. 11. During the War of the Rebellion, notes of the United States were issued under acts of Congress, declaring them to be legal tender in payment of private debts. After the war they were redeemed in gold ; and were re-issued under the Act of 1878. They were then adjudged legal tender. Why? A. By reason of the power to borrow money, and to provide a national currency. The power of making United States notes a legal tender in payment of private debts may incidentally affect the property or the contracts of individuals; but as this power is vested in the congress, it is not defeated or restricted because of this incidental effect of exercising it. Juilliard v. Greenman, 110 U. S. 421. 580 LAW STUDENTS' REVIEW Q. 12. ( i ) What do you understand by an unwritten consti- tution? Give an example of one. (2) What is the basis of a written constitution ? A. (1) A constitution is said to be unwritten when its source is in precedents and customs. Such is the constitution of Eng- land. (2) A written constitution is a stipulation agreed upon by the the people of a state or nation as a rule of action binding upon all its officials and departments, and susceptible of inter- pretation only by a tribunal established by its provisions, and of modification or repeal only by the authority creating it. 8 A. & E. Encyc. L. 715, 716. Q. 13. Plaintiff, Marbury, had been appointed a justice of the peace for the District of Columbia. He applied to the Su- preme Court of the United States for a writ of mandamus, commanding the secretary of state to issue to him a commission as such justice. Assuming that the judiciary Act of Congress in terms au- thorized the court to issue the writ in such cases, will the court issue the writ? A. No. The provision of the act of congress is unconstitu- tional, and the court is not bound by it. The constitution da- limits the powers of the legislative branch of the government; and that branch may not transcend its functions, as appointed by that instrument. And as the Constitution especially enumer- ates the cases in which the Supreme Court is to have original jurisdiction, and as mandamus is not one of them, jurisdiction is not conferred by the act; and the court, and not the congress, is to determine the extent and the limitations of the powers granted by the Constitution. Marbury v. Madison, 1 Cranch 137. Q. 14. On July 2, 1894, acting under the instructions of the attorney general of the United States, the United States district attorney for the northern district of Illinois, filed in the Circuit Court of the United States for that district a bill in equity against one Debs and others, alleging that twenty-two railroads named as defendants were engaged in the business of interstate commerce, and were under contract to carry the U. S. mails. CONSTITUTIONAL LAW 58 1 That Debs and others were combining together in large num- bers by threats and violence to prevent the railroads from em- ploying persons to take the places left vacant by striking em- ployes ; and with force and violence did obstruct, derail and wreck, the engines and trains of said railways. An injunction against doing these unlawful acts was prayed and granted ; and for violating the injunction Debs was sentenced to jail. On what theory is the injunction sustainable? A. (1) That the government of the United Sates may, throughout the country, by means of physical force exercised through its official agents, execute the powers and functions which belong to the government. (2) Among the powers expressly conferred is the control of interstate commerce, and the creation and management of a postoffice system for the nation. (3) The United States has a property right in the mails; and equity may be invoked to protect that right. (4) That while the executive branch of the nation may keep channels of interstate commerce unobstructed; still neither this fact, nor the fact that criminal proceedings at law may be taken to punish the acts of violence complained of, ousts proceedings of a civil character ; and that the jurisdiction of a court of equity by injunction, to protect such channels of commerce, and to punish for contempt of its writ, is one recognized from ancient times, and by indubitable authority. In re Debs, 158 U. S. 564. Q. 15. Upon what foundation does the authority of the con- gress to exclude lottery tickets from the mails rest ? A. By reason of its exclusive control of the entire postal system of the country, the congress may designate what may and what may not be excluded from the mails. In excluding matter deemed by it to be injurious to the public morals, it does not interfere with the freedom of the press, or with any other right of the people. It does not undertake to forbid the transportation of lottery tickets in any other manner. In re Eapier, 143 U. S. 110. O. 16. A statute required that every person who shall use, or furnish to any other person to use, in, with or for the sale of any goods, etc., any stamps which shall entitle the person re- 582 LAW students' review ceiving the same to procure goods free of charge, or for less than the retail market price thereof (trading stamps) shall obtain a license therefor from the county auditor; and fixed the license fee at $6,000. Violation of the act was made "a gross misdemeanor." Is such a statute a constitutional exercise of the police power ,of the legislature? A. Yes. The system of trading stamps amounts to more than the mere giving of discounts, or the mere laudation of wares. If the legislature of a state "upon a belief of evils that is not arbitrary enacts such a statute, the belief of the legisla- ture must be followed ; and will not be overruled by the courts." Such belief has many examples in State legislation, and * * * "it has persisted against adverse judicial opinion." Tanner v. Little, 240 U. S. 369, 385, 6. East v. Van Deman, 240 U. S. 342. Note: Sundry state courts have held such a law unconsti- tutional, as being "a palpable attempt, under the guise of a license tax, to penalize a merchant for conducting his business in a legal, harmless way." Montgomery v. Kelly, 142 Ala. 552. Q. 17. The legislature of the state of Illinois enacted a statute fixing the maximum charges for the storage of grain at Chicago and other "places" in the state having not less than one hundred thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels can not be accurately preserved." In 1874 there were in Chicago fourteen grain warehouses or elevators, holding from 300,000 to 1,000,000 bushels each, located with a navigable river on one side and railway tracks on the other. About thirty persons owned them. Nine business firms controlled them. Prices for storage were agreed upon and fixed each year. Is the statute constitutional ? A. Yes. It was objected that the statute conflicted with (1) the interstate commerce clause; (2) the clause prohibiting preference by any regulation of commerce or revenue to the CONSTITUTIONAL LAW 583 ports of one state over those of another; and (3) the provision that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. But it was held that no statute should be declared unconsti- tutional unless it clearly is so. That the storage of grain is a business comparable to, that of common carriers, ferries, inn- keepers and the like; and that where private property is thus devoted to a public use, it is subject to regulation. That these warehousemen in question pursue a sort of public business ; and are thus subject to public regulation. The court refers such regulation to the police power ; the power of government to gov- ern men and things. Munn v. Illinois, 94 U. S. 113. Note that to the exercise of the same power is referable the act of the Louisiana legislature granting privileges to a certain corporation for stock landing and slaughtering. The business affects the public health. Butchers' &c. v. Crescent City &c, 111 U. S. 746. (Slaughter House Cases.) Q. 18. M was the owner of a brewery and fixtures for brewing of great value, in the City of A. Under the local option laws of the state, the City of A passed an ordinance forbidding the sale of beer in that city, whereby the said brewery became of little value. M brought an action against the City of A for damages caused to his property by such ordinance. To what extent, if any, can he recover ? State the principles governing the action. A. To no extent whatever. The city did not take or damage his property. It merely exercised a right given it by law to prevent him from using his property to the injury of the public. Mugler v. Kansas, 123 U. S. 623. Q. 19. The City of Baltimore diverted certain streams of water from their usual course. As diverted, the streams caused deposits of sand and gravel near the plaintiff's wharf, made the water shoal, and prevented vessels from docking. The city claimed the right to change the stream, by reason of its au- thority, under Maryland law, over the harbor, over paving and grading streets, and over the health of its citizens. 584 LAW STUDENTS' REVIEW Plaintiff claimed that his property had been taken for a public use without compensation, in violation of the Constitu- tion of the United States. The Maryland Court of Appeals found against him; and he prosecuted a writ of error to that court from the Supreme Court of the United States, on the ground of the violation of his constitutional rights. What disposition of his writ should the Supreme Court make? A. Dismiss it. While it is true that the federal Constitution contains (V Amendment) a provision prohibiting the taking of private property for public use without just compensation; yet this clause operates only as to the federal government; not as to the several states. Each state settles a matter of this char- acter by its own constitution. Note especially as illustrative, Art. I, Sec. 8 (3) of the Con- stitution: "No bill of attainder or ex post facto law shall be passed" (prohibits the congress from passing these laws) and Art. I, Sec. 10 (1) "No state shall enter into any treaty * * * pass any bill of attainder, ex post facto law, or law impair- ing the obligation of contracts * * * Here the second prohibition expressly mentions states. Why repeat the provision, in the same words mentioning states as prohibited, if the first prohibition includes states? Barron v. Baltimore, 7 Pet. 243. Q. 20. State the scope of the clause in the Federal Constitu- tion which provides that "no state shall pass any law impairing the obligations of contracts 2" A. Any law is obnoxious to this provision of the Constitution which (1) undertakes to preclude a recovery upon any contract; (2) undertakes to render void a contract which thereto- fore was valid; (3) which in any manner puts such obstacles in the way of its enforcement as to preclude a recovery and prac- tically annul it. 8 Cyc, 932 et seq. O. 21. The legislature of the state of Georgia made a grant of land to a railroad company. A subsequent legislature claimed the land was sold at too low a price, and passed an act purporting to annul the grant. The railroad company sues the state in a Federal Court, claiming the last act to be uncon- stitutional as impairing the obligation of contract. The state CONSTITUTIONAL LAW 585 claims (a) that this clause does not apply to executed contracts ; and (b) that it applies only to impairment of contracts between individuals. Which party is entitled to judgment, and why ? A. The judgment should be for the railroad company, and against the state. The prohibition of the state against impair- ing the obligation of contract, as stated in the federal Constitu- tion, is construed broadly. The evident meaning of the Constitu- tion, when it used the word "contract" without restricting the prohibition to executory contracts alone, covers also executed contracts, and thus covers the grant here. (b) Likewise, as the language of the clause does not restrict the prohibition to contracts between individuals alone, a contract between a state and an individual is within its meaning. Fletcher v. Peck, 6 Cranch 87. Dartmouth &c. v. Woodward, 4 Wheat. 518. Q. 22. In 1892 plaintiff became a creditor of the Western Farm Mortgage Company, a Kansas corporation. By a law of Kansas then in force, stockholders in the company were sev- erally liable to creditors thereof, in an amount equal to the amount of their respective stockholdings. Defendant Reckless, a citizen of New Jersey, was then a stockholder. Upon notice, and after execution against an insolvent corporation, returned nulla bona, execution might be issued against any stockholder, to an amount equal to his holding of stock. In 1897, the legislature of the state of New Jersey passed a law prohibiting the maintenance against any stockholder of a domestic or foreign corporation by any creditor thereof, of a suit based on liability arising from the statutes or laws of any other state or foreign country; but the New Jersey statute provided for a suit for an equitable accounting for the benefit of all parties interested. The New Jersey Constitution pro- hibited the passing of any law impairing the obligation of con- tracts ; and prohibited depriving a party of any remedy which existed when the contract was made. Does the New Jersey statute (a) Deprive a party of a remedy? (b) Impair the obligation of a contract? 586 law students' review A. (a) The statute deprives of a remedy; for prior to its enactment, plaintiff, not as a matter of comity, but as a matter of right, might have sued Reckless and recovered judgment in New Jersey. As the contract was made prior to the passage of the New Jersey statute, the remedy existed then; and plaintiff could not be deprived of it by the statute. Western &c. v. Eeckless, 96 Fed. 70. (b) It will be observed that the provision of the New Jersey Constitution prohibiting the impairment of the obligation of contracts is (except as to depriving of remedy) the same as the Federal Constitution. The provision as to depriving of remedy in the New Jersey Constitution was probably inserted, because the Supreme Court (Bronson v. Kinzie, 1 How. 311, 316) had said that whatever belongs merely to the remedy may be altered according to the will of the state. But though the form of a remedy may be changed, its substance must be protected; other- wise there will be an impairment of the obligation of a contract. The question is : Does the act materially abridge the remedy, without supplying an alternative remedy equally adequate and efficacious? In the above instance, this question must be an- swered in the affirmative. Hence the statute is unconstitutional. Knickerbocker &c. v. Myers, 133 Fed. 764, 139 Fed. 111. Byran v. Virginia, 135 U. S. 685, 693. Q. 23. On the ground that stfch a tax was unconstitutional, a stockholder of the Farmers' Loan and Trust Company filed a bill to restrain that company from paying to the United States a tax of 2% on its net profits, including the income from real estate and municipal bonds. This was for the alleged reason that the tax on income of real estate is a direct tax; and the tax upon income from municipal bonds is a tax upon the power of the state and its instrumentalities to borrow ' money. Should the stockholder succeed on either ground? or on both grounds? A. On both grounds. As to the tax on the income from the real estate, the tax falls within the same class as the source from which the income is derived, that is real estate; and as a tax upon real estate would be a direct tax, so is a tax upon the income of real estate direct. The constitution forbids all unap- portioned direct taxes. As to the tax upon interest on municipal bonds; this is a tax upon the power of the state and its instrumentalities to borrow money; and is therefore repugnant to the constitution. Neither CONSTITUTIONAL LAW 587 the United States on the one hand, nor the states on the other can interfere with the borrowing power possessed by each, as an essential element of the sovereignty of each. Pollock v. Farmers &c, 157 U. S. 429, 158 U. S. 601, 618. See McCulloch v. Maryland, Q. 2, supra. Q. 24. (a) What is an ex post facto law? (b) What is a bill of attainder? A. (a) One which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment, or changes the rules by which less or different testimony is sufficient to convict. 8 Cyc. 1027. (b) A legislative act which inflicts punishment without a judicial trial. 8 Cyc. 1036. Q. 25. By the common law as interpreted in a certain state (a) no man could be convicted of murder upon the uncorrobor- ated evidence of an accomplice, (b) nor was the testimony of a wife admissible against her husband. By statute, both rules were changed, and thereafter a man was convicted of murder committed before the statute was passed, on the uncorroborated evidence of his wife that he had committed the crime at her instigation and with her help. Should his conviction stand? A. No. A criminal statute which alters the legal rules of evidence and permits less or different testimony than the law required at the time of the commission of the offense is one variety of an ex post facto law and is unconstitutional, (a) A statute permitting uncorroborated testimony of an accomplice to suffice requires less evidence than the former common law rule and hence is void as per the foregoing, (b) A statute allowing a wife theretofore incompetent to testify allows a different kind of evidence to go in and is likewise objectionable.. If, however, the effect of the statute were to mollify the rigor of the former rules, it would not be open to the objection that it was an ex post facto law. (Note : — The above question is so framed that either division (a) or (b) will constitute a complete answer.) Cummings v. State of Missouri, 4 Wall. 277. Boston v. Cummins, 16 Ga. 102. 588 LAW STUDENTS' REVIEW Q. 26. A state legislature passed an act which authorized A to sell at public vendue so much of the lands (describing them), late the property of B, as would be sufficient to raise $1,000 with costs and interest, and provided as to publishing notice of sale, etc. Provided that the proceeds of sale of such lands should be applied to the extinguishment of a certain claim against the estate of B in favor of C, and for bond to be given by administrator of B conditioned for faithful application of proceeds of sale, etc., such bond to be approved by the probate court of the county in which the lands were situated. Sale was made in compliance with this act of the legislature, and the purchaser brought ejectment against the person in possession of the premises so bought. Upon the trial plaintiff's attorney offered in evidence the above act of the legislature and all the facts as to sale and purchase. A general objection was made to this testimony by attorney for the defendant. What should have been the ruling of the court upon this objection? A. The objection should have been sustained, chiefly because the act of the legislature relied upon and all proceedings there- under were in violation of the constitution, as attempting to confer upon the legislature judicial functions. The act was plainly in violation of the constitutional provision as to the di- visions of the powers of government into executive, legislative and judicial. The legislature may pass laws ; but may not assume judicial function and attempt to execute them. The heirs of B could not. be deprived of their property without due process of law. Lane v. Dorman, 3 Scam. 238. Q. 27. Sommers was indicted and put upon his trial for grand larceny. The jury failed to agree, and the judge, after leaving them out for what he considered a sufficient time to show that they could not agree, discharged them. At the time of this discharge of the jury Sommers was not in court but was confined in jail, and the discharge was without his knowledge or consent. The state's attorney called the case for trial a second time, and Sommers interposed a plea of former jeop- CONSTITUTIONAL LAW 589 ardy, setting forth the above facts. The court sustained a de- murrer to this plea and Sommers was tried a second time and convicted. On appeal should the conviction stand ? A. It should not. After a prisoner has been duly indicted, and a jury has been sworn to try the case, he has been put in jeopardy. Though a jury may be discharged in case of necessity, and inability to agree is such necessity, yet the prisoner has a right to be present at all steps of his trial, including such dis- charge of the jury. If present he might have shown good cause why the jury should not be discharged. In this case he was put twice in jeopardy, and is entitled to his liberty. State v. Sommers, 60 Minn. 90. Q. 28. Assume that in the last case the state's attorney had, when the last juror had been accepted, but before the jury were sworn, on discovering that an important witness was absent, nolle prossed the case and that Sommers had then demanded his liberty. Should he be discharged? A. Not in this case. The state's attorney has direction to enter a nolle prosequi any time before the jury is impanelled, and in contemplation of law the prisoner has not been put in jeopardy. Commonwealth v. Tuck, 20 Pick. 356, 365. Q. 29. Wong Kim Ark, born at San Francisco in 1873 of Chinese parents, subjects of the Emperor of China, then per- manently domiciled at San Francisco, alleged in a petition for a writ of habeas corpus, that he was a citizen of the United States. That on returning in 1895 to San Francisco, from a temporary visit in China, he was by the collector of the port restrained of his liberty, and was denied permission to land. Assume that if he was a citizen of the United States the "Chinese Exclusion Acts" would not apply to him. And assume also that his parents were carrying on business in the United States, were not employed by the Emperor of China, that Wong never had any residence other than California, never renounced allegiance to the United States, and never committed any act 590 LAW STUDENTS REVIEW to exclude him therefrom. Also that he once went to China, re- turned, and landed without objection. Should the writ issue ? A. This of course depends on whether he was a citizen of the United States. The Constitution provides "All persons born or naturalized in the United States, and subject to the jurisdic- tion thereof, are citizens of the United States and of the state where they reside." (XIV Amendment.) But the Constitution nowhere says who are natural born citizens. To determine this, resort must be had to the common law. While in the sense of a natural customary law, there is no common law of the United States, as there is by adoption in each state; yet the interpre- tation of the Constitution is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. Smith v. Alabama, 124 U. S. 465, 478. Under the common law, as well in the colonies as in England, a child born within the allegiance and jurisdiction of the King of England, is born a British subject; and this notwithstanding the fact that his parents are foreigners — unless (1) his father is in the diplomatic service of a foreign potentate or (2) he is born in a part of the British dominions which at the time of his birth is in hostile occupation, his father being an alien enemy. Accordingly the writ should issue. United States v. Wong Kim Ark, 169 U. S. 649. Q. 30. Sing Tuck, a person of Chinese parentage, presented himself at the Canadian boundary, claimed that he was an American citizen, and demanded that he be admitted. The immigration inspector decided against him; he was denied admittance; and was detained. He sued out a writ of habeas corpus ; the Circuit Court of the United States decided that the detention was lawful; the Circuit Court of Appeals re- versed the lower court; and the Supreme Court reversed the Circuit Court of Appeals, and dismissed the writ. On what ground? A. That the congress had the right to commit the question to the immigration inspector to decide in the first instance as to whether the applicant was entitled to be admitted to the United States; and that this constitutes "due process of law." In this instance, the statute having provided that an appeal might be taken to the Secretary of the Treasury, and applicant having CONSTITUTIONAL LAW 59I failed to take that appeal it was held that applicant had not put himself in position to apply to the courts for a writ of habeas corpus. But Brewer, J., in a vigorous dissenting opinion, (Peckham, J., concurring in the dissent), points out that this was exactly the status of Wong Kim Ark, to whom (see pre« ceding question) the writ was granted. United States v. Sing Tuck, 19'4 U. S. 161. O. 31. Mrs. Minor, 'a citizen of Missouri, and of the United States, claimed the right to vote. Assuming that the constitution and laws of the state of Missouri restrict the right of suffrage to men ; is this restriction in violation of that provision of the Constitution (XIV Amendment) which provided that no state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States ? A. No. Women were citizens before the adoption of the Constitution, as well as after; and have been accorded many of the privileges of citizens. And if the right of suffrage is a necessary privilege of every citizen of the United States, then the Missiouri law is void. But it is not such a privilege; and the Fourteenth Amend- ment did not add to the privileges and immunities of citizens, as they existed at the time it was adopted. If it had been in- tended, by the framers of the Constitution, to make all citizens voters, such an important privilege would not have been left to implication ; it would have been expressly declared. And again in this same amendment, it is provided that "when the right to vote * * * is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in re- bellion or other crimes, then the basis of representation shall be reduced in proportion to the extent such denial bears to the whole number of such male citizens in the state." Therefore as women did not originally have the right to vote ; and as such right is inconsistent with the operation of the foregoing limitation, based upon male inhabitants, the Missouri law deprives Mrs. Minor of no privilege to which she is entitled. Minor v. Happersett, 21 Wall. 162. Q. 32. By the Constitution of the United States, Art. IV, Sec. 2, Chap. 2, it is provided that a person charged in any state with crime who shall flee to another state, shall on demand of the governor of the state where the crime was committed, 592 LAW STUDENTS REVIEW be delivered up to be removed to that state. X was charged with burglary in Connecticut. The governor of that state made requisition on the governor of New Jersey for his surrender. X was found in New Jersey, under indictment for murder, of which crime he was subsequently convicted and sentenced to be hanged. AVhat return should the governor of New Jersey make to the governor of Connecticut, and why? A. That X could not be surrendered until the justice of that state should be satisfied. There would then be no prisoner to de- liver. The Constitution of the United States refers only to fugitives at large. Sedgwick Stat. & Const. L. (2d ed.) 569. O. 33. A statute authorized mortgage debtors to redeem their property within one year from the date of sale. In April, 1838, the law was repealed to take effect November 1, 1838. A sale took place in December, 1837. What was the effect of the repeal on that sale? A. No redemption could be had after November 1, 1838. The right of redemption was a mere inchoate right, and the repeal of the statute authorizing it necessarily destroyed that right. Sedgwick Stat. & Const. L. (2d ed.) 112. O. 34. A rule of a state university required all students to attend morning service at chapel unless excused for good cause. The fact was that such morning service consisted of the reading by a member of the faculty of a portion of the New Testament and of the repeating of the Lord's prayer, the sing- ing of religious hymns, and occasionally of the giving of brief morning talks; but that otherwise such exercises were not sectarian. They lasted about five minutes. The constitution of the state provided "no person shall be required to attend or support any ministry or place of worship, against his consent." Discuss the question whether above rule is constitutional. A. The rule seems constitutional. No student seems to have been called upon to "support" a "ministry or place of worship" — especially against his consent. Should it be claimed that a stu- CONSTITUTIONAL LAW 593 dent presenting a "good cause" in excuse of his refraining from attending, had on that account been punished or denied other privileges of the university, a different question might arise. See North v. Trustees &c, 137 111. 296. Q. 35. Defendant in a decree for divorce, who was in de- fault on an order to pay alimony as provided in the decree, was committed to jail for contempt of court. He moved the court to be discharged from arrest and imprisonment on the ground that his arrest and imprisonment were in violation of a constitutional provision against imprisonment for debt. The decree was that he should pay a stated amount of money as alimony at stated times until the further order of the court. It appeared that the defendant had certain real estate, and it was urged that the master should have levied upon this prop- erty, and thereby enforced the decree. What should be the ruling of the court? A. Motion should be overruled, as the debt contemplated by this constitutional provision is one arising from a contractual obligation. The commitment was because of the wilful disobedi- ence of the order of the court, and so was a contempt of court. State v. Cook, 66 Ohio St. 566. Q. 36. In 1912 the state of Mississippi passed a statute di- rected against Greek letter societies in the State University, an institution of learning controlled and supported by the state; but provided that members of such societies might on filing with its chancellor a pledge prescribed, which in effect suspended their activities as such members during their course of instruc- tion, be admitted to the university. Waugh, as a student at Millsaps College, had become a member of the Kappa Sigma fraternity, one of the prohibited societies. He applied for admission to the law department of the State University, claiming right thereto as a resident of the state. He was denied admission, because he refused to sign the above described pledge. He filed a bill in chancery to compel his admission. The university defended, on the basis of the Mississippi statute above described. He demurred ; and the 38— L. S. Rev. 594 law students' review court sustained his demurrer and gave him a decree. This was reversed by the Supreme Court of the State, with an order to dismiss the bill. Waugh sued out a writ of error from the Su- preme Court of the United States. What should that court do? A. Affirm the judgment. The XIV Amendment is not violated. The act applies equally to all similar societies, and to all persons situated similarly to complainant. Waugh v. Mississippi University, 237 U. S. 589. Q. 37. In 1898 the congress passed an act for the regulation of carriers engaged in inter-state commerce. By the 10th sec- tion of this act it was, among other restrictions, made a mis- demeanor for any employer, coming under its provisions, or his agent, to discharge any employe on account of his mem- bership in a labor union. Assume that Adair, as an agent of the Louisville and Nashville Railroad Company, came un- der the act, and that he discharged from the service of the road one Coppage, a member of the order of locomotive fire- men, a labor union, on account of such membership. Adair was tried and convicted of violation of above 10th section and fined $100. Is section 10 constitutional ? A. Unconstitutional. It is both as to personal liberty and property right, violative of the Fifth Amendment to the United States Constitution. Adair had the same right, however unwise it might be to do so, to discharge Coppage because he belonged to a labor union, that Coppage had, however unwise it might be, to leave the employment of the road because it employed other persons who were not members of the same labor union. Adair v. United States, 208 U. S. 161, 175. Q. 38. The commonwealth of Massachusetts, in 1904, passed an act relative to the height of buildings in the city of Boston. By this act the mayor of the city of Boston was required to appoint a commission whose duty it was to divide the city into districts A and B. A to consist of the district the majority of the buildings in which were used for business purposes, and B of the districts used for residence and other non-business purposes. The height of buildings to be erected in future was CONSTITUTIONAL LAW 595 limited to 125 feet in class A and 80 feet in class B. Welch, the owner of a lot situate in a portion of the city which by the commission had been placed in district B, applied for a building permit. This was refused on the sole ground that the plans submitted called for a building more than 80 feet in height. Welch applied for a mandamus to compel the commission to issue the permit, alleging that the act was unconstitutional. The mandamus was refused by the Supreme Court of Massa- chusetts. Welch sued out a writ of error from the United States Supreme Court. Should the act be declared unconstitutional ? A. No. It does not deny Welch the equal protection of the law. Other lot owners can build no higher than he. When the classification between commercial and residential property is founded on practical and not aesthetic grounds, it is well found- ed; and on this question the United States Court will as a gen- eral rule accept the decision of the highest state court. Welch v. Swasey, 214 U. S. 91. Q. 39. In 1900 the board of equalization for the State of Illinois neglected to make an assessment against the capital stock and franchises of a number of corporations in Chicago, including the traction companies. By mandamus the board was compelled to reconvene and assess such capital stock. In obeying the writ as they construed it, and without exercising independent judgment, they made an assessment which was enormously discriminative against the traction companies, in comparison with the assessments of other corporations. It was also glaringly higher than the assessment of these same traction companies when they were assessed by the same rules, and at the same time, with all other corporations by the board of equalization for the succeeding year, and within a month from the time of making the former assessment. The Chicago Union Traction Company filed a bill in chancery in the United States Circuit Court against the collector, to restrain him from taking any further proceedings for the collection of this tax. There was no appeal from the action of the board of equalization to the state courts. Has the Federal Court jurisdiction? 596 law students' review A. Yes. The discrimination shown against the plaintiff and others similarly situated, and in favor of all other corporations, is violative of the Fourteenth Amendment to the Constitution, as it denies plaintiff the equal protection of the law. Eaymond v. Union Traction Co., 207 U. S. 20. Q. 40. The Mutual Reserve Fund Life Association was or- ganized in 1886 under a statute of the state of New York passed in 1875. I n I 9 02 under the provisions of another stat- ute passed in 1901, the directors voted to reorganize and en- large the scope of the company. Originally it was simply a mutual assessment company. By the terms of the reorganiza- tion, which were authorized by the statute of 1901, the amounts of the annual assessment were increased in some classes, and the company changed its name and entered into a general life insurance business. The question of reorganization was not, nor did the statute of 1901 require it to be, submitted to the stockholders. The reorganized company became insolvent, and a policy holder of the original company filed a bill in chancery asking to have the assets of the old company set apart for the benefit of its members, attacking the reorganization on the ground that the act of 1901 was unconstitutional. In the sec- tion of the New York constitution concerning corporations occurred this clause : "All general laws and special acts pur- suant to this section may be altered from time to time or re- pealed." Was the statute of 1901 unconstitutional? A. No. "The effect of such a provision, whether contained in an original act of incorporation, or in a constitution or gen- eral law, subject to which a charter is accepted is, at the least, to reserve to the legislature the power to make any alteration or amendment of a charter subject to it, which will not defeat or substantially impair the object of the grant, or any right vested under the grant, and which the legislature may deem necessary to carry into effect the purpose of the grant, or to protect the rights of the public or of the corporation, its stockholders or creditors, or to promote the due administration of its affairs." Polk v. Mutual &c, 207 U. S. 310, 325. Q. 41. Choate was a Choctaw living with his tribe on a reservation in what is now the state of Oklahoma. In pur- CONSTITUTIONAL LAW 597 suance of an act of congress passed in 1898, an agreement was made between the United States and the tribe, whereby tribal organization was relinquished, and the lands of the reserva- tion were distributed among the Indians in severalty, with a provision that the allotments should be inalienable and untax- able for 21 years. A tract of land was allotted to Choate. Afterward the state of Oklahoma was organized, and in 1907 was admitted into the Union. In 1908 the congress passed an act removing the restriction on alienation ; and by another sec- tion of the same act removed the restriction on taxation. The state of Oklahoma made no attempt to tax these Indian lands in 1907 ; but in 1908 instituted proceedings to assess them. Choate, together with 8,000 other Indians similarly situated, filed a bill to enjoin these proceedings. The bill was dismissed, and the decree was affirmed by the Supreme Court of Oklahoma. How should the United States Supreme Court rule ? A. Eeverse the cause on writ of error. The congress could remove the restrictions on alienation. But the exemption from taxation for twenty-one years was a property right, a vested right, that could not be taken away by act of congress, any more than by the act of a state legislature, or a clause in the state constitution. Choate v. Trapp, 224 U. S. 665. Q. 42. In 1871 Mottley and wife were injured in an acci- dent said to have been owing to the gross carelessness of the Louisville and Nashville R. R. Company. In adjustment of their claim for damages the road entered into a written agreement to issue to them annual passes during the lifetime of either of them. It adhered to this contract for many years; but finally refused further to perform, on the ground that an amendment passed in 1906 to the interstate commerce act of 1887 made further compliance with the terms of the contract unlawful. Mottley and wife then brought suit to enforce the contract. Assume that the period of limitations in which to bring suit for the original claim had long elapsed, and that the act pro- hibited the road from issuing passes : May the Mottleys still recover, because the act can not invade their vested rights? 598 LAW STUDENTS' REVIEW A. No. Congress has full power given it by the Constitution to legislate oh interstate commerce. The act was within this power. And all contracts are entered into subject to the possi- bility that the legislature acting within the limits of its power, may pass laws that operate to destroy their value. Louisville &c. v. Mottley, 219 U. S. 467. Q. 43. Explain the phrase, "due process of law." A. It (ordinarily) means law in its regular course of admin- istration through courts of justice. 2 Kent Com., part 4, p. 13. But the United States Supreme Court, by a majority ruling, sustains the right of an inspector to pass upon the right of a person of Chinese extraction claiming United States citizenship, to enter the United States. United States v. Sing Tuck, 194 U. S. 161. See Q. 30, supra. Q. 44. By virtue of the Constitution of the state of Cali- fornia, offenses theretofore required to be prosecuted by in- dictment, were allowed to be prosecuted on information, after examination by a magistrate. One Hurtado was, on information, held to answer to a charge of murder ; and, without any indictment in that behalf, had been tried and convicted of that offense. He claimed that an indictment by a grand jury as known to the common law, is essential, in a felony case, to "due process of law" ; and that he was therefore entitled to protection under that clause of the fourteenth amendment which provides "Nor shall any state deprive any person of life, liberty or property without due process of law." Is his claim sound? A. Unsound. "Due process of law" is equivalent to "law of the land" as used in Magna Charta; such law in this country, deriving its authority from the legislative powers conferred upon the congress by the Constitution, exercised within the limits therein prescribed, and interpreted according to the prin- ciples of the common law. As applied to the case at bar, the "law of the land" intended, is the law of California; and such law need not require indictment as a prerequisite to prosecution. Hurtado v. California, 110 U. S. 516. CONSTITUTIONAL LAW 599 Q. 45. Mulligan was a citizen of the United States, having lived twenty years in Indiana. He never had been in the mili- tary or naval service of the United States. October 5, 1864, while at his home, he was arrested by order of General Hovey, then commanding the military district of Indiana; and was thereafter kept in close confinement. October 21, 1864, he was brought before a military commission, tried on certain charges and specifications, found guilty, and sentenced to be hanged on May 19, 1865. In January, 1865, a federal grand jury had met at Indian- apolis and were charged to inquire whether the laws of the United States had been violated; and if so to make present- ments. No indictment was found against Mulligan. Mulligan sued out a writ of habeas corpus, on the grou that he was entitled to a trial by jury, and that the military commission had no jurisdiction to try him. Had it that right? A. No. There are of course occasions when martial law can be properly applied. If in foreign invasion or civil war, the courts are closed, and it is impossible to administer criminal justice according to law, then where war really prevails, courts martial are necessary; but martial rule can never exist where the courts are open, and in a proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Ex parte Mulligan, 4 Wall. 2 (majority decision). O. 46. The United States brought proceedings in the Circuit Court of the United States, for the southern district of Ohio, to condemn the site for a postoffice, courts and other United States institutions in Cincinnati. Has it that right? Upon what theory? and within what limits ? A. Yes. Upon the theory that the right of eminent domain was a right at common law. It was not a right in equity, nor was it even the creature of a statute. And it was not enforced through the agency of a jury; but this is immaterial. The right is the offspring of political necessity; and, unless denied by fun- damental law, is inseparable from sovereignty. It is limited by the requirements of the general government for exercising 600 LAW students' review the powers wherewith, by the constitution, the general govern- ment is vested. Among other requirements for which land must be taken are forts, naval yards, light houses, postoffices and courthouses. Kohl v. United States, 91 U. S. 367. Q. 47. Assume that an elevated railroad, to the extent nee essary for the prosecution of its business as a common carrier, occupies a public street adjoining plaintiff's premises; and that a series of iron columns abridges the street, and the super- structure thereon erected obscures the light and thereby depre- ciates the value of plaintiff's property. Is this a "taking" of plaintiff's property? A. Yes; and this is true whether plaintiff owns the fee to one-half the street, or not. The extent to which plaintiff's prop- erty is apropriated is not material; no part of it can be appropriated to the public use without compensation; and such a structure closes the street pro tanto, and thus directly invades the plaintiff's easement in the street. Story v. New York &c, 90 N. Y. 122. Williams v. Brooklyn &c, 126 N. Y. 96. But otherwise as to "street railways." Rafferty v. Central &c, 147 Pa. 579. Fifth Nat. &c. Bank v. New York El., 24 Fed. 114, contra. CHAPTER XXI CONFLICT OF LAWS Question i. Chetti, a high caste Hindu, domiciled in Madras, but temporarily residing in England, there married an English woman. Shortly afterward he sailed for India; and, after some correspondence and remittances, aban- doned her. During a subsequent visit to England, she caused him to be served in a suit for judicial separation. He pleaded, in defense, the invalidity of the marriage, alleging his inca- pacity according to Hindu law. Assume that by Hindu law he was incapable of marrying outside his caste, and that the Brit- ish government of India recognized the personal law of the various races and religions of India. Is the defense tenable? Answer. Untenable. A personal incapacity to marry by the law of a man's domicil is not recognized in another country, at least where the marriage is with a domiciled citizen of that country, and celebrated in that country in conformity with its laws. Chetti v. Chetti, L. E. (1909) P. D. 67. Q. 2. Mrs. Pratt executed a guaranty to plaintiff in the sum of $500 to secure credit for her husband. Plaintiff resided and was doing business at Portland, Maine. Mrs. Pratt resided with her husband at Boston, Massachusetts, and there signed the guaranty, and mailed it to the plaintiff at Portland. On its faith credit was given to Pratt; and plaintiff sued her in a Massachusetts court, for an unpaid balance owed by Pratt. Assume that by the law of Massachusetts the guaranty was void, but that by the laws of Maine it was good : Can the action be maintained? A. Yes. Though written in Massachusetts, it did not take effect until received and acted on in Maine. It was therefore a 601 6(32 LAW STUDENTS' REVIEW Maine contract. The capacity to contract by the law of the state where the contract is made will be recognized by the courts of the forum, unless public policy forbids. Milliken v. Pratt, 125 Mass. 374. Conversely the action could not have been maintained had the guaranty been good under Massachusetts but void under Maine law. Nichols &c. v. Marshall, 108 Iowa 518. Q. 3. In 1846, at Dublin, Ireland, Mary Jane Butler, a minor domiciled in Ireland, was married to Henry Ritchie Cooper, a domiciled Scotchman. They intended to live in Scotland. By an ante-nuptial agreement signed at Dublin immediately before the marriage, she in consideration of a fixed sum settled on her by way of annuity, released her widow's rights. Assume the agreement good in Scotch law, but void under Irish law. After a long residence in Scotland, the husband died ; and the widow brought an action for the reduction of (to set aside) the ante- nuptial contract. The Court of Sessions found against her. Was this decision sound? A. No. Undoubtedly erroneous. Both by the law of her domicil, and the law of the place of contract, in this instance the same, the contract was void. The "intention" of the parties to live in Scotland does not affect the case. There is no contractual obligation to make Scotland their domicil. Cooper v. Cooper, L. E. 13 App. 88. Q. 4. Col. Udny was born at Leghorn, in 1779. His father, a domiciled Scotchman, was consul there. At the age of 15 he was sent to Edinburg, where he remained for three years. In 1797 he became an officer in the British army. In 1812 he mar- ried, retired from the army, and took a long lease of a house in London, where he resided for 32 years, paying occasional visits to Aberdeenshire, where he owned an estate to which he had succeeded in 1802. He was appointed a magistrate in Scot- land but it did not appear that he had ever served in that capacity. His visits were mainly for the purpose of inspecting his estates; and he visited with friends, or stopped at hotels while in Scotland, as his castle was very much out of repair. He resided in England to gratify his fondness for the turf. This was so great that it brought him into pecuniary difficul- CONFLICT OF LAWS 603 ties ; and these in 1844 became so acute that he was compelled to seek the seclusion of Boulogne. Before doing this he sold his lease and all the belongings of his house. He lived in Boulogne for nine years with occasional visits at Aberdeen. In 1846 his wife died, and he formed an illicit connection with a young woman. This resulted in the birth of a son in 1853 at London, whither Col. Udny took the mother to be attended by an English physician and where he remained two days. What was Col. Udny's domicil at the time of the birth of the child? A. Scotch, because — 1. His domicil of origin was Scotland, as by law it was that of his father; and the father did not change his domicil by diplo- matic duty abroad; no matter how long a foreign residence it required. 2. Even if Col. Udny had lost his Scotch domicil, and had, by his residence in England, acquired an English domicil, he had abandoned his English domicil; and as he could gain no domicil by a residence abroad, simply to escape his creditors, with no intention of remaining permanently, he reverted in- stantly to his domicil of origin. Udny v. Udny, L. E. 1 H. L. (Sc.) 441. As to the American law on this point, see Pro-Allen Admr. v. Thomason, 11 Humph. 536. Contra — First Nat. Bank v. Balcom, 35 Conn. 351. Q. 5. Col. Udny afterward in Scotland married the mother of his son. Assume that her domicil was France. By the law of Scotland such a marriage legitimates pre-nuptial children. By the law of England it does not (and that is the law in the United States where the common law prevails and has not been altered by statute). What was the domicil of the child, — (a) Before this marriage? (b) After the marriage? A. (a) France, the domicil of its mother; that is the domicil an illegitimate child takes. Story, Conn, of Laws (8th ed.), § 46. (b) Scotland, the domicil of its father, as a legitimate child. •The domicil of such a child is that of the father. Udny v. Udny, L. R. IE L. (Sc.) 441. 604 LAW students' review Q. 6. Suppose that Col. Udny had died intestate, leaving real and personal property both in England and Scotland, and leaving this son as his sole surviving descendant. The law of Scotland is founded on the civil law. What property would the son take and why ? A. (1) All the Scotch property both real and personal; this under the civil law rule that a legitimated child takes as heir. Story, Confl. of Laws (8th ed.), § 87 et seq. (2) The personal property in England; because the status, legitimate or illegitimate, which a person received from the law of his domicil, follows him everywhere. In re Goodman's Trusts, L. R. 17 Ch. D. 266. (3) By reason of the Statute of Merton, the son could not take the real property in England. This statute provides that those only shall inherit who were born in lawful wedlock. Birtwhistle v. Vardill, 7 CI. & F. 895. Q. J. Suppose Col. Udny's domicil had, at the time of the birth of his son, been found to be English : What and where would the son have inherited? A. Nothing anywhere. The status of illegitimacy would have followed him everywhere. Smith v. Kelly's Heirs, 23 Miss. 167. Note that there is no uniform rule throughout the United States concerning heirship of those legitimated by foreign law. Where the Statute of Merton (20 Henry 3 Ch. 9) is held to be an integral part of the common law of the state, those legitimated can not inherit land. Smith v. Derr's Admr., 34 Pa. St. 126. Lingen v. Lingen, 45 Ala. 410. Q. 8. General Dalyrymple was domiciled in England. His son, at the age of 19, was a cornet of dragoons stationed at Edinburg. There he paid court to Miss Johanna Gordon ; and they, after mutual acknowledgment of each other, both verbally and in writing, as husband and wife, sustained intimate rela- tions. The verbal acknowledgments and the "marriage lines" were at his request kept secret. This was because of anticipated opposition from General Dalrymple. Young Dalrymple's service took him abroad; after a time his letters ceased; in a few years he returned to England and there by the legally CONFLICT OF LAWS 605 prescribed religious ceremony, married Miss Laura Manners. Miss Gordon then filed in the ecclesiastical court which then (1811) had exclusive jurisdiction of matrimonial cases in England, a petition for restitution of conjugal rights. The court found that according to Scotch law there was a valid marriage between Mr. Dalrymple and Miss Gordon. Accord- ing to English law, the transactions between the parties could not by any possibility constitute a marriage. Was there a marriage with Miss Gordon? A. Yes. This under the rule that a marriage valid where celebrated (or contracted) is valid everywhere. Dalrymple v. Dalrymple, 2 Hagg. Cons. 54. Q. 9. From North Carolina, in the early 70's, two white women went to South Carolina to marry negroes. One married Ross, who was then domiciled in South Carolina, but after- -ward removed with her to North Carolina. The other married Kennedy, with whom she went to South Carolina to be married, and immediately returned. The statutes of North Carolina de- clared marriages between whites and negroes void. The statutes of South Carolina did not so declare. Both women together with the negroes, were indicted in North Carolina for unlawful cohabitation. Discuss the question whether or not they should be convicted. A. (a) In the Kennedy case, this depends on whether the prohibitory act declares the public policy of the state in such terms (e. g., "incestuous;" or "void" wherever celebrated) that it must be held to prevail against the universal rule that a mar- riage valid where celebrated is valid everywhere. It was so con- sidered in the Kennedy case, and the pair were convicted. State v. Kennedy, 76 N. Car. 251. But in a similar case where the parties went from Mas- sachusetts to Ehode Island to evade the statute of the domicil, the marriage was held valid. Medway v. Needham, 16 Mass. 157. (b) On the other hand in the Eoss case, the man's domicil being in South Carolina, the woman at the instant of marriage took his domicil, and the marriage was held good under the universal rule. State v. Eoss, 72 N. Car. 242. 606 LAW students' review Q. io. Norman, a youth just tinder 22, in 1897 persuaded defendant, a girl just under 16, to board a fishing and pleasure smack licensed under the laws of the United States, and sail from Los Angeles County, California, where they both were domiciled, to a point nine miles beyond the boundary of the state and of the United States, and there to make an agreement with him immediately to assume the relation of husband and wife. Pierson, the captain of, the boat, then celebrated a ceremony of marriage between them. Consensual marriages had been abol- ished in California, by a law enacting that marriages should conform to the ceremonies required by the statute. The parties cohabited as husband and wife for a week; at the end of this time the girl refused to recognize the marriage. Norman trought an action to have the marriage declared valid and binding between the parties. Should the action be maintained? A. No. A marriage void where celebrated is void every- where. This is the converse of the rule that a marriage valid where celebrated is valid everywhere. In this case, it was held that there was no law of marriage on the high seas, hence there was no marriage. Norman v. Norman, 121 Cal. 620. O. 1 1 . Is a marriage always void when entered into where there is no local law ? A. No. Where marriage is impracticable between the par- ties in the place where they are sojourning, a marriage accord- ing to the law of their domicil may be valid. Culling v. Culling, L. R. (1896) P. D. 116. Observe that in the California case the attempted marriage was in evasion of the law of the domicil of the parties. Q. 12. Sarah Helen Williams was married in London to Leon Philip, a French minor, without the knowledge or con- sent of the parent of either party. Assume that the marriage was valid according to English law. Philip was domiciled in France, but was sojourning in England for the purposes of study. When his father heard of the affair, he took Philip back to France and instituted proceedings in Paris to have the mar- CONFLICT OF LAWS 607 riage annulled, and obtained a decree therein. Assume that the decree was in accordance with the French law for the preven- tion of the marriage of minors without parental consent, and that it declared the marriage void ab initio. Philip then remar- ried, and Sarah Helen filed a bill in England for divorce, or in the alternative a declaration that her marriage be annulled. Her petition, though undefended, was dismissed. Afterward she celebrated a ceremony of marriage in due form with the complainant Ogden, and he in turn filed his petition to have his marriage with Sarah Helen annulled. Should or should not the petition be granted? A. The petition should be granted, for the reason that the marriage was bigamous. A nation can not recognize the decree of a foreign court declaring that the marriage of one of its own citizens in its own jurisdiction, and good according to its laws, is void. Ogden v. Ogden, L. R. (1908) P. D. 46. See also Cummington v. Belchertown, 149 Mass. 223. Q. 13. Suppose all the facts stated in the former question to remain the same, except that the parties had gone to France to be married, and Sarah Helen had then gone back to and re- mained in England, without physical or moral compulsion pro- ceeding from Philip. , What should the decision be? A. The other way. The proper French court would have had jurisdiction over the status of the parties, and its decree would then have been binding internationally. Thompson v. Thompson, 226 U. S. 551. Q. 14. A man married a woman in New York, but never lived with her ; and she always remained in New York, while he deserted her, went to Connecticut, obtained a domicil there, and there was granted a decree for divorce on constructive service. Thirty years afterward, the woman brought suit in a New York court for judicial separation, and obtained per- sonal service on him. In defense of the suit he offered in evi- dence his Connecticut decree. Was it admissible? 608 LAW students' review A. Inadmissible. A husband can not desert the matrimonial domicil and by substituted service obtain elsewhere a decree of divorce which the courts of another state are bound to recognize under the "due faith and credit" provision of the Constitution of the United States. Haddock v. Haddock, 201 U. S. 562. Note that in this case the New York court was affirmed by a divided court five to four; but that if the husband had not in good faith gained a domicil in Connecticut, the opinion would doubtless have been unanimous. Streitwolf v. Streitwolf, 181 U. S. 179. Q. 15. An Englishman married a Rhode Island girl in New York, lived several years with her abroad, and then deserted her in Massachusetts. She returned to Rhode Island and there brought suit for divorce with statutory constructive service on her husband, his whereabouts being unknown, and obtained a decree. Was the divorce void for want of jurisdiction ? A. No. Valid. Though domicil is necessary to give jurisdic- tion for purposes of divorce and as a general rule the wife takes the domicil of her husband, this case comes under the American doctrine of the separate domicil of the wife when she is com- pelled to live apart from him without fault on her part. Ditson v. Ditson, 4 R. I. 87. Q. 16. Suppose a state passes a law that upon a decree of divorce on the ground of adultery, the guilty party (but not the other party) shall be incapacitated to remarry, either for life, or for a term of years, or unless he obtains leave of court. Suppose that after a divorce granted in such state the guilty party goes into another state or country and marries, within the prohibited period, and without leave of court. Is the marriage valid or void? A. Valid, at least outside the state where the divorce is granted. The prohibition against the guilty party to remarry is a penalty, and as such by a universal rule of law it will not be enforced in any other jurisdiction. Scott v. Attorney General, L. R. 11, P. D. 128. CONFLICT OF LAWS 609 Q. 17. Suppose, however, that the law prohibits either party to a divorce from remarrying for a certain period, and one party during the prohibited period remarries in another juris- diction and returns to the state of his domicil where the di- vorce is granted. Discuss the question whether the latter state will recognize that marriage. A. That is a question of public policy as against the univer- sal rule analogous to the question of miscegenation (discussed in Q. 9, supra) . The weight of precedent seems to be in favor of the recognition of the marriage. Commonwealth v. Lane, 113 Mass. 458. Note that the remarriage may, in the jurisdiction where the statute is enacted, be made void by adding to the statute the words "wherever celebrated." In this case the marriage would have been void by the statute if it had been proved that the parties had resorted to a foreign state in evasion of the Massa- chusetts law. Commonwealth v. Lane, 113 Mass. 458. Other cases, with strong reasoning, hold the marriage void. Lanham v. Lanham, 136 Wis. 360. O. 1 8. By the law of Missouri, after two full annual prem- iums have been paid on a life insurance policy, it can not be forfeited for nonpayment of premiums until the surrender value has been applied to the payment of premiums, and ex- hausted. Wall applied to the St. Louis agent of the Equitable Life, a New York company, and received a policy of $5,000 on his life. It was mailed to the agent at St. Louis who de- livered it to Wall and received the premium. After paying three annual premiums, Wall defaulted on the fourth, and died a month afterward. The surrender value of his policy was enough to carry it for more than a year. The beneficiary, Wall's widow, sued the company, which defended on the ground that the policy was forfeited by its terms. Assume that these terms were valid and enforcible by the law of New York. What is to be said of this defense? 39— L. S. Rev. 610 LAW students' review A. Untenable. The policy was delivered in Missouri and was a Missouri contract. Any provision in the poficy contrary to that law was void. Equitable Life v. Clements, 140 U. S. 226. Q. 19. Suppose, however, that the facts had been the same as in the last question except that the company had received Wall's application by mail in New York, there acted upon it, and mailed the policy direct to him in St. Louis. What would you say about the case in that event? A. The defense would be good. The policy would be a New York contract, taking effect where the last act was done, and the written contract mailed. Northampton &c. v. Tuttle, 40 N. J. L. 476. Q. 20. Mrs. Bleecker, the wife of a United States navy offi- cer, took passage at Antwerp, for New York, on the steamship Kensington. On the back of her ticket was a printed provision whereby as to baggage the carrier sought to limit its common law liability to $50; unless, for excess value over that sum, a' bill- of lading be taken, and one per cent of such excess value be paid. Assume that such xestriction was valid in Belgium ; but invalid in New York ; and that the provision on the ticket also contained a clause to the effect that all questions arising thereunder were to be settled according to Belgium law. Through bad stowage, Mrs. Bleecker's baggage was de- stroyed. If the limitation is valid the carrier had a defense. Discuss the question of its validity. A. Invalid in our courts. A contract made in a foreign country, to be executed in part in the United States, can not be held to overthrow the public policy of the United States; and such a contract as the above is against public policy. While, as a general rule, it is true that the lex loci governs, and that the intention of the parties will be sought out and enforced; yet neither by comity, nor by the will of contracting parties, can public policy be set at naught. The Kensington, 183 U. S. 263. Held otherwise in Massachusetts as being neither "illegal nor immoral" though "against public policy," there, Fonseca v. Cunard &c, 153 Mass. 553. CONFLICT OF LAWS 6ll Q. 21. (a) Vendor and vendee do business in different states. Vendor sends an offer of certain goods at a certain price to vendee and vendee accepts the offer within a reasonable time by mail. (b) Vendee sends a promissory note by mail to vendor to be used as payment for goods. In which state is the contract made ? A. (a) In the state of the vendee. The mailing of the letter is the last act to be done and completes the contract. Vassar v. Camp, 11 N. Y. 441. (b) In the state of the vendor. A promissory note takes effect as a contract when it is delivered to the payee. Staples v. Nott, 128 N. Y. 403. Q. 22. A gave B chattel mortgage on a pair of horses in New York. Without discharging the lien, B ran the horses into Lower Canada, and through D, a horse dealer, sold the horses to F, who took them back to New York. , Thereupon for the first time hearing of the lien, F ran them back into Lower Canada, and sold them to G, a resident of New York, telling G why he had taken them to Lower Canada. By the laws of Lower Canada, a sale by a regular dealer has the effect of a sale in market overt. B brought an action against G for the conversion of the horses. Can B maintain his action ? A. Yes. Though the usual rule is that the law of the situs fixes the title to personal property, that rule does not apply to property that is brought into the jurisdiction of the situs by a wrong-doer. So G can not rely on title in F. Edgerly v. Bush, 81 N. Y. 199. Q. 23. A man bought a horse and buggy at Hillsdale, New York, giving a note secured by chattel mortgage on the prop- erty for part of the purchase price. The purchaser took the horse and buggy into Massachusetts, where the chattels were seized on an attachment against the purchaser. Plaintiff, the assignee of the note, brought an action of tort against the deputy sheriff who levied the attachment, proved that the chat- 6l2 LAW STUDENTS' REVIEW tel mortgage was properly recorded in Hillsdale, and was a valid lien on the property in the state of New York. Assume that by New York law, plaintiff got title sufficient to maintain trover against a wrong doer. Can he maintain such title in Massachusetts ? A. Yes. If title to a movable chattel is validly acquired by the law of the situs the title is good wherever the chattel may be carried subsequently. Langworthy v. Little, 12 Cush. 109. Q. 24. T. B. Blackstone of Chicago died, and an inheritance tax on the total value of his personal estate was assessed under the laws of the state of Illinois. The administratrix paid it. One item of this estate was a sum of nearly five million dollars which had been lying on deposit for over a year in a New York trust company awaiting investment. The state of New York levied an inheritance tax on this sum under the provision of its law. Assume that decedent was domiciled in Illinois, and that the rule mobilia sequuntur personam was recognized by both states ; and that the Illinois tax was valid : Can the New York tax be sustained? A. Yes. An inheritance tax is not a tax on property. It is on the right to inherit, or take by devise. This asset, i. e., the debt of the trust company to the estate, had its situs in New York; it was not in transitu ; and thus the tax in New York is consti- tutional. Blackstone v. Miller, 188 U. S. 189. O. 25. Assume that Ram Island in Long Island Sound was, for the purposes of the case, to be regarded as in the state of New York when mortgaged; that afterward a boundary line was established which included this island within the state of Connecticut. By the law of New York the mortgagor retained the legal title to land mortgaged. By the law of Connecticut, the legal title passed to the mortgagee. In whom was the legal title after the cnange in boundary? A. Still in the mortgagor. "It is an acknowledged principle of law that the title and disposition of reai property is exclu- CONFLICT OF LAWS £13 sively subject to the laws of the country where it is situated, which can alone prescribe the mode by which title to it can pass from one person to another." McCormick v. Sullivan, 10 Wheat. 192. "The laws of this state (Connecticut) could not make a new contract for the parties or add to one already made." Chappell v. Jardine, 51 Conn. 64. O. 26. A married woman, in Ohio, executed a mortgage as surety for her husband on land in Indiana. In a suit upon this mortgage her capacity to execute it was challenged. By the law of which state must her capacity be tested ? A. By the laws of Indiana where the property is situated. The conveyance of immovables must be according to the law of the situs. Swank v. Hufnagle, 111 Ind. 453. The same principle applies to questions of minors coming of age. Sell v. Miller, 11 Ohio St. 331. Q. 27. Plaintiff sued in the United States District Court for the District of Massachusetts and recovered a money judg- ment against defendant for breach of a covenant of warranty in a deed. The deed was given to land in Florida. Assuming interest to be allowable from date of breach ; that the legal rate of interest in Florida is 8 per cent, per annum, in Massachu- setts, 6 per cent. ; which rate shall be applicable here ? A. Six per cent. Where the parties have not agreed to a rate of interest, the law of the forum governs in determining the rate. Mather v. Stokely, 218 Fed. 764. Q. 28. Jose Sevilla, domiciled in Peru, died and left a will good according to the laws of Peru, by which he left a large amount of personal property situate in New York to found there a charitable institution to be known as the Sevilla Home for Children. The bequest, if made by a testator domiciled in New York, would have been void under the laws of New York concerning wills. Is the bequest void? 614 LAW students' review A.' No. The testator had a right to dispose of his personal property in New York according to the law of his domicil. In executing the trust, however, while the courts would not contra- vene public policy, yet they may not divert the title of a desig- nated legatee, and turn the property over to some one else. Dammert v. Osborn, 140 N. Y. 30. Q. 29. Robertson brought suit in ejectment in the District of Columbia. To prove his title he offered a transcript of pro- ceedings in the Hastings Court of Petersburg containing a copy of the will of a former owner and of its probate. That court had, by the laws of Virginia, jurisdiction of the probate of wills; the time during which the proceeding could be reviewed had elapsed, and the will was uncontestable by the laws of Virginia. The transcript, however, did not show that the witnesses to the will were called or that their signatures were proved. The law of Maryland which governed the District did not require the probate of the will in the District of Columbia, but to pass title there to land, a will must have been attested by at least three witnesses. The court refused to receive the transcript in evidence. Was this error? A. No. The "full faith and credit" provision of the Con- stitution of the United States was not violated. The probate of the will took effect only as an adjudication that it was valid to pass title to land in Virginia. To pass title to land in the District of Columbia the will must be shown to have complied with the local law. Kobertson v. Pickrell, 109 U. S. 608. Q. 30. Mrs. Bell, domiciled in Kentucky, made a will by which she devised land belonging to her in Tennessee. By the law of Kentucky she as a feme covert had no power to devise, and so the will there was void. The will, however, was in due form according to the law of Tennessee. She died and the heir attacked the will in Tennessee. Should the Tennessee court declare it invalid? A. No. "As to immovable property the rule is that the lex rei sitae governs as to the capacity or incapacity of the testator, CONFLICT OF LAWS 615 the extent of his power of disposition, and the forms and solem- nities necessary to give the will its due authority and effect." Carpenter v. Bell. 96 Tenn. 294. Q. 31. James Ross, domiciled in Pennsylvania, by due form of local law adopted an infant. He afterward acquired a domicil in Massachusetts, and there gained title to land and died intes- tate. Massachusetts had a similar statute regarding adoption, the only pertinent difference from the Pennsylvania statute, being that the consent of the wife as well as of the husband was necessary. Assume that in both states adopted children are given the right to inherit from their adopted parents, and that the Statute of Merton is not a part of the common law in Massachusetts. On a contest for the possession of the land, between the brother of the deceased and his adopted son, which should prevail ? A. The adopted son. The law of the domicil of the fathet, fixes the status of the son by adoption and this status will be.. acknowledged everywhere for the purposes of inheritance, at least where the status is one that can be acquired by the local law. Note, however, that this rule does not usually apply to entitle an adopted child to inherit from collaterals through the adopting parent, by representation. Eoss v. Ross, 129 Mass. 243. Q. 32. The Belgian steamer Noordland was moored to a dock in Jersey City. An affray occurred on board, in which Wildenhus stabbed Fijens. They were both Belgian subjects. There was a treaty between the United States and Belgium by the terms of which the preservation of order on board Bel- gian ships in United States waters was under the jurisdiction of the Belgian consul. Fijens died of his wound, and Wilden- hus was arrested and confined in a New Jersey jail. The Bel- gian consul applied for his release from jail upon a writ of habeas corpus, and for his delivery to him, the consul. Should the petition be granted? 616 LAW students' review A. No. The treaty was the supreme law of the land, but it provided only for the preservation of order — and did not cover the commission of crime. Unless exempted by treaty, a foreign merchant vessel, entering a port of the United States for the purpose of trade, is subject to local law. Wildenhus' Case, 120 U. S. 1. Q. 33. Sirdar Gurdyal Singh was employed as treasurer by the Rajah of Faridkote, and at the end of his term removed from Faridkote and never re-entered it; but remained in an- other native state where he was domiciled. The Rajah sued him in the courts of Faridkote for matters arising out of his treasurership, and caused him to be served personally. The ac- tion was not defended, and the Rajah obtained judgment for more than R's 76,000, and afterward brought an action on this judgment in the British Court of India. The trial court held his judgment void for want of jurisdiction and dismissed the suit. This dismissal was reversed by the chief court of the Punjab ; and Sirdar appealed to the Privy Council. Which Indian court was right ? A. The lower court. There was nothing in the case to take it out of the general rule that jurisdiction of the person can only be obtained by personal service within the jurisdiction of the court to which the defendant is subject at time of suit. Sirdar &c. v. The Rajah &c, L. R. (1894) App. 670. See also Pennoyor v. Neff, 95 U. S. 714. Q. 34. Hamilton in Pennsylvania executed a judgment note for $5,000 in favor of Schoenberger, who in pursuance of its terms caused judgment to be entered according to the warrant to confess judgment, in Benton county, Iowa. Assume that the power to confess judgment was valid in Pennsylvania and was strictly followed. Hamilton filed a peti- tion to have this judgment declared void and cancelled. On what law should the decision hinge ? A. On the law of Iowa. As it was held that warrants to confess judgment had no place in Iowa law, the judgment grant- ing the petition was affirmed. Hamilton v. Schoenberger, 47 Iowa 385 CONFLICT OF LAWS 617 Q. 35. Taylor, by reason of the nondelivery of a telegram ordering stable room for a car load of horses, lost from expo- sure a horse worth $150. The telegram was sent, and was to be delivered, between points in North Dakota. By a statute of that state, a telegraph company was liable to the party injured for $50 in excess of the actual damage sustained by the nondelivery of a telegram. Taylor sued the telegraph company in Iowa. The trial court instructed the jury to add this $50 if they found for the plaintiff. Was this instruction correct ? A. Error. An extra-territorial effect will not be given to penal statutes, whether the penalty provided for is given to the public or to individuals; nor have the principles of interstate comity any application. Taylor v. Telegraph Co., 95 Iowa 740. Q. 36. Abraham White died leaving real property in Balti- more, and also in Pennsylvania. The property in Baltimore was mortgaged. Some of the heirs filed a bill for partition in Maryland, making the rest of the heirs parties defendant, and praying that, as the property was not advantageously divisible, it might be sold, and the proceeds distributed among the heirs. The Chancellor dismissed the bill as to the lands situate in Pennsylvania. Was the decree correct? A. Yes. Chancery can have no jurisdiction when it can give no relief. A trustee appointed by the court in Maryland could thereby acquire no title to the Pennsylvania land. White v. White, 7 Gill & Johnson 208. Note the distinction between this and cases where chancery acts in personam to require specific performance which will affect title to land in a foreign jurisdiction. Penn v. Lord Baltimore, 1 Ves. Sr. 444. (See Chap. XIV, Q. 2.) 0. 37. De la Vega, a Spaniard, by proceedings in England where both parties then were, caused one Vianna, a Portuguese, to be arrested for a debt contracted in Portugal. Vianna ob- tained a rule to show cause why he should not be discharged, 618 LAW students' review and in support proved that by the law of Portugal he was not liable to arrest. Assume that the arrest was warranted by the law of England: Was Vianna entitled to his discharge? A. No. The remedy must be pursued by such means as the law points out. A person suing in a foreign country must take the law as he finds it; he can not, by virtue of any regulation in his own country, enjoy there greater advantages than other suit- ors; he ought not therefore to be deprived of any superior ad- vantages which the law of the country where he brings suit may confer. De la Vega v. Vianna, 1 Barn. & Ad. 284. Q. 38. Roberts was delivered up in Georgia to an agent of the state of New York on extradition demanded by the gover- nor of the latter state. By indictment of a grand jury of the proper county in New York, he stood charged with stealing from the Bethlehem Iron Company of New York, ten bonds of a South Carolina railroad company. Roberts applied for his discharge by write of habeas corpus alleging (a) That the bonds were originally taken by him in Georgia and accordingly if any crime was committed, it was committed in Georgia, (b) That the Bethlehem Company had no power to own the bonds, (c) That he was not when indicted, or at any time since, in New York. Assuming that Roberts stole the bonds in Georgia and took them to New York, what is to be said of the defenses? A. All untenable, (a) If a crime was committed in Georgia, one was also committed in New York, and Georgia may waive its right to hold him. (b) The power to own property is not a matter of law arising upon the face of the indictment. (c) If the crime was committed within the state of New York and he was found outside that state after indictment, he was in contemplation of law a fugitive from justice. Roberts v. Eeilly, 116 U. S. 80. Q. 39. White was arrested in California, on a warrant issued by a magistrate of that state upon an affidavit charging White CONFLICT OF LAWS 619 with grand larceny committed in Massachusetts, and alleging that he was a fugitive from justice. There was no allegation in the affidavit that any criminal proceedings had been insti- tuted against him in Massachusettts. There was no statute in California authorizing the arrest of a foreign criminal to await extradition. White obtained a writ of habeas corpus. Was he entitled to his discharge? A. Yes. In legal contemplation he was not a fugitive from justice unless criminal proceedings had been begun against him in the state where the crime was committed. Ex parte White, 49 Cal. 433. O. 40. Neely was arrested in New York on a warrant issued by a United States judge on the charge of embezzling $10,000 in Havana, Cuba, on June 28, 1900, while acting as a public officer, namely as a postal official. Cuba was then occupied by United States troops and under a military government. Neely resisted extradition, asking for a writ of habeas corpus, al- leging that the proceedings in the criminal court of Cuba did not accord him the constitutional guaranty of trial by jury that he was entitled to in the United States, and that the treaty of extradition with Spain was abrogated by the expulsion of the Spanish authorities from the island. An act of congress pro- vided for extradition to countries under military occupation of the United States. Should the writ issue ? A. No. Though Spain had been expelled the laws remained to be administered for the benefit of the people of Cuba. Neely v. Henkel, 180 U. S. 109. Q. 41. In 1901, Terlinden, a Prussian subject, was at the instance of the German consul arrested in Chicago and brought before a United States commissioner. Extradition for forgery committed in Prussia was applied for, based on the provisions of the treaty of 1852 between the United States and Prussia. Terlinden brought habeas corpus proceedings in the United States District Court, and alleged, as a ground for his dis- 620 LAW STUDENTS' REVIEW charge, want of jurisdiction in the commissioner because, ow- ing to the subsequent absorption of the kingdom of Prussia into the German empire, the treaty had become impossible of ex- ecution. Assuming that the German government recognized the obli- gation of the treaty, is the defense tenable? A. Untenable. The question of the power of a foreign state to carry out its treaties is political, not judicial. Terlinden v. Ames, 184 U. S. 270. Q. 42. In the same proceeding Terlinden made various objections to the sufficiency of the evidence and the rulings of the commissioner. Could these objections avail him? A. No. A writ of habeas corpus can not take the place of a writ of error. Terlinden v. Ames, 184 U. S. 270. Q. 43. In 1859 the grand jury of Woodford county, Ken- tucky, indicted Willis Lago, a free negro, for assisting Char- lotte, a negro slave, to escape from her master. Lago fled to Ohio. Thereupon the governor of Kentucky issued a requisi- tion on the governor of Ohio for the arrest and return to Kentucky of Lago. The governor of Ohio, acting on the advice of his attorney general, refused to deliver Lago. Assume that the advice was legally unsound. The governor of Kentucky then applied to the Supreme Court of the United States for a writ of mandamus commanding the governor of Ohio to deliver Lago to the proper authorities of the state of Kentucky. Should the writ issue ? A. No. The phrase "it shall be the duty of the executive to cause the fugitive to be delivered" &c, contained in the extra- dition act refers to a moral duty only, hence mandamus will not lie to enforce it. Commonwealth of Ky. v. Dennison Gov., 24 How. (U. S.) 66. Q. 44. Jemison, a citizen of Alabama, sued Townsend, a citizen of Mississippi, in the United States District Court in CONFLICT OF LAWS 621 Alabama for breach of a contract made in Mississippi. Town- send pleaded the Mississippi statute of limitations. Jemison demurred. What should be the order of the court? A. Demurrer sustained. The ordinary statute of limitations affects the remedy only, and the law of the forum prevails. No matter what is the period of limitations where the contract is made, if the statute of the forum has run, the suit is barred; and conversely, it seems, if that statute has noc run the suit is not barred. Townsend v. Jemison, 9 How. (U. S.) 407. Note, however, that where a statute goes directly to the extinguishment of a right as distinguished from merely barring a remedy, then the lex loci contractus will prevail. Townsend v. Jemison, 9 How. (U. S.) 407, p. 419, and cases. CHAPTER XXII ADMIRALTY Question i. In the state courts of New York, the plaintiff sued the executors of the deceased owner of the yacht Yo- semite, for decedent's having so negligently navigated the yacht as to run down and sink plaintiff's steamboat, the Char- lotte Vanderbilt, in the Hudson river, ninety miles north of New York. Judgment for plaintiff for $27,768. This the Court of Appeals affirmed. Defendants sued out a writ of error from the Supreme Court of the United States. Is a federal question involved here, so that the Supreme Court will take jurisdiction? Answer. Yes. The action was for a maritime tort, commit- ted upon navigable waters, and within the admiralty jurisdic- tion; and the appellate jurisdiction of the Supreme Court over an admiralty question can not be restrained by the fact that the party plaintiff has elected to pursue his common law remedy in a state court. Observe that the difference at common law and in admiralty of the result where both parties are negligent, is stated ; at the common law neither could recover; in admiralty, the damages are divided. {Judicium rusticum.) Belden v. Chase, 150 U. S. 674. Q. 2. Defendant in error McCaffrey, in 1893, made a con- tract with the Schulenberg company, which, after reciting that McCaffrey had purchased three steamboats of the company, provided that McCaffrey was to tow all the rafted lumber the company could furnish him at or below Stillwater, Minne- sota, to St. Louis, at $1.12% per thousand feet. One of Mc- Caffrey's boats towed a raft part way (to Boston Bay) ; and there divided it, towing one half to St. Louis and returning to 623 624 LAW STUDENTS' REVIEW Boston Bay and "laying up" for the winter beside the other half. This was on November 4. On November 5, the company sold the half raft — and on purchaser's attempting to take possession, McCaffrey filed a bill for a lien against the half raft. This the state court gave him; and the purchaser sued out a writ of error from the United States Supreme Court. Is there a federal question here? A. No. Conceding that towing a raft gives a lien on the raft (as to this the authorities are divided) ; yet a bill to enforce such a lien is not a proceeding in rem within the exclusive juris- diction of admiralty. It is a suit in personam to enforce a com- mon law remedy. It therefore falls under article 3 of section 2 of the Constitution, which, in fixing admiralty jurisdiction, saves "to suitors in all cases the right of a common law remedy, where the common law is Competent to give it." Knapp &c. v. McCaffrey, 177 U. S. 638. Note that in case stated in Question 1, the common law is not competent to give the remedy. Q. 3. Libellants were the owners of the schooner Cuba. Respondents owned the propeller Genesee Chief. As the Cuba was proceeding in May, 1847, on a voyage from Sandusky, Ohio, to Oswego, New York, the Genesee Chief ran foul of her, about 50 miles below Niagara, and so seriously damaged her that she sank. The United States District Court for the northern district of New York rendered a decree in favor of libellants. It was objected that the collision occurred within the terri- torial waters of the state of New York; and not on the high seas ; and that there was therefore no jurisdiction of the cause in the federal court. Is the objection sustainable? A. Not sustainable. The act of congress (1845) extending the jurisdiction of the United States District Courts to include "certain cases" upon the lakes and the navigable waters connect- ing the same is valid ; not as resting on the power of regulating interstate commerce, but because such lakes and connecting waters are within the scope of admiralty and maritime juris- diction, as understood in the United States when the Constitu- tion was adopted. The Genesee Chief v. Fitzhugh, 12 How. (U. S.) 443. ADIUIKALTY 625 The restricted English doctrine that admiralty jurisdiction extends only to waters where the tide ebbs and flows is not appli- cable in this country. Q. 4. Suppose the collision had occurred in Canadian waters ; and that the laws of Canada gave the owners of the Cuba no right to libel the Genesee Chief. In that event, would the libel lie in the federal court? A. Yes. Like jurisdiction has constantly been exercised in cases arising upon the high seas, and upon bays and rivers in any part of the world; and the circumstance that a portion of them lay within the limits of another sovereignty does not, pro- vided an American ship is concerned, defeat the jurisdiction, now that the lakes and connecting waters have been declared to be "public waters." The Eagle, 8 Wall. 15. Q. 5. The Winnebago, a steel steamer of 1,091 tons, was built in Michigan by the Columbia Iron Works, under contract of March 2, 1902. Price $95,000. She was launched March 21, 1903. The work under the contract continued after she was in the water. In July she was enrolled and licensed under the laws of the United States, and sailed for Lorain, Ohio, where additional work on her was done ; and she afterward was en- gaged in the carrying trade on the Great Lakes. Assume that a Michigan statute purported to give a lien on vessels to persons furnishing work or material for con- struction, may such a lien be enforced in the state courts ? A. Enforcible. A contract to build a ship is not a maritime contract; and while it is true that a maritime lien might arise which would displace the lien authorized by the state statute, yet until such a lien does arise, the above lien is valid and en- forcible in the state courts. The Winnebago, 205 U. S. 354. Q. 6. June 10, 1871, a libel was filed in the United States District Court, Louisana, by Doyle and another, for their wages as sailors against the Steamer Lottawanna, owned in New Orleans ; and afterward sundry other parties filed libels of 40— L. S. Eev. '626 LAW STUDENTS' REVIEW intervention for advances for sailors' wages, and for salvage, supplies, materials and repairs, furnished in the port of New- Orleans. June 20, 1871, a mortgagee of the vessel intervened. The vessel was sold. The District Court decreed the surplus of the proceeds to the mortgagee, to the exclusion of material and supply men; the Circuit Court reversed this. Which court is right? A. The district court is right. The vessel was in her home port; and by general maritime law, as received in the United States, material men furnishing supplies and repairs in the home port, do not thereby acquire a lien. It is said that they are presumed to rely on the credit of the owners. The Lottawanna, 21 Wall. 558. Q. 7. Suppose the Lottawanna had been in a foreign port ? ' A. Then the lien for necessary supplies attaches, unless "it can be inferred that the master had funds, or the owner had credit, and that the material man knew of this or knew of such facts as should have put him on inquiry." The burden of showing this is on the person who seeks to dis- place the lien. The Patapsco, 13 Wall. 329. Q. 8. The steamship Roanoke was engaged in summer in commerce between Seattle and the mouth of the Yukon river ; in winter between San Francisco and southern ports. She was registered at Chicago; and the name "Chicago" was painted on her stern. Her owner was an Illinois corporation. At a port in the state of Washington she was repaired by a contractor, who was paid by the owner. Libellants furnished labor and materials to the contractor who made the repairs; and filed a libel in rem for the same ; but no order therefor was given by the owner. Assuming that the statute of the state of Washington pro- vides for a lien on the vessel for such labor and materials, is it enforcible ? A. No. To enforce it would amount to an unlawful interfer- ence with the exclusive jurisdiction of admiralty and maritime ADMIRALTY 627 cases, vested by the constitution in the courts of the United States. An ocean going vessel not supplied in her home port, is as to these matters not subject to the local laws of the states whose ports she visits. The Roarioke, 189 U. S. 185. Q. 9. The British steamship Jersey City, on August 17th, 1893, took on a pilot, licensed under New Jersey law. He took the vessel to the port of New York; and on August 23rd he took her to sea. His pilotage fees were not paid. He brought a libel against the owner, in the southern district of New York. It was objected that the laws of New York provided only for pilots licensed under the laws of that state, and that the laws of New Jersey, though similar, as to pilots, to New York law, have no extra-territorial effect. Can the pilot recover ? A. Yes. Although a New Jersey pilot is not in terms pro- vided for by New York law, when piloting in New York waters, yet the act of congress authorizing a pilot's employment in such waters, and also declaring that "pilotage shall be regulated by the law of the state where the pilot may be" adopts the local law and makes it applicable to the New Jersey pilot so "em- ployed;" that is, where the service is rendered. Reardon v. Arkell, 59 Fed. 624. U. S. Rev. Stat, §§ 4235, 4236. Q. 10. The French ship Apollon, owned in France, sailed from France bound for Charleston, S. C. ; but with orders in the alternative, to sail for a Spanish port, in case congress passed a law imposing tonnage duty on French ships. Before her arrival off Charleston, congress (May, 1820), passed such a law. With the permission of the Charleston collector she sent ashore, by means of a revenue cutter, some gold belonging to the United States Bank ; and then proceeded to the port of St. Joseph's, on Belle river, then a Spanish possession. While at anchor there she was seized by a United States collector, and proceedings were instituted to subject the ship to tonnage duty, and the cargo to forfeiture. Assuming that in proceeding from off Charleston to St. Joseph's she passed, in going up St. Mary's river, to Belle 628 LAW STUDENTS' REVIEW river, through territorial waters of the United States, is she liable to seizure ? A. No. She did not enter St. Mary's river to go to a United States port. To seize her in Spanish waters because in reaching those waters (port St. Joseph's) she passed through United States waters, would constitute an invasion of the rights of Spain. The Apollon, 9 Wheat. 362. Q. 11. The ship Andrew Johnson of Thomaston, Maine, with a cargo of nitrate of soda, bound from Caleta, Buena, Chili, to Hamburg, Germany, sprung a leak, and put into the port of Callao. There she was repaired; and trans-shipped 1,200 tons of her cargo to another vessel, the Leslie. Her captain, to pay or secure, payment for the repairs, exe- cuted a bottomry (on the ship) and respondentia (cargo) bond, which in terms purported to bind the portion of the cargo trans-shipped to the Leslie. Excluding claims on the part of the vessel (or owners) carrying the trans-shipped portion of the cargo, is that portion bound ? A. Yes. The bond is not void as to that portion of the cargo which was trans-shipped. Such bonds are favored in admiralty, as being for the advantage of commerce; and though the sub- sequent loss of "the vessel" ordinarily avoids the bonds, yet here, if the Johnson were lost, and the Leslie came to port, the 1,200 tons aboard the Leslie might be held. O'Brien v. Miller, 168 U. S. 287. Q. 12. July 4, 1898, La Bourgogne, a French steamship, and the Cromartyshire, a British ship, collided, about 60 miles of Sable Island. The Bourgogne was sunk; and many pas- sengers were drowned. Her owner petitioned the United States Court, southern district of New York, to limit their liability (U. S. Stat. § 4283) to the value of their interest in the vessel and her freight then pending, provided the accident be occa- sioned without the privity or knowledge of such owner. Assume that the owners promulgated rules exacting compli- ance by its captains with the international rules relating to ADMIRALTY 629 reduced speed while running in a fog; but that the captains did not observe these rules ; and that the Bourgogne was violat- ing the rules when the accident occurred. Is this sufficient to charge the owners personally? A. Insufficient. In order to charge them personally, it must be shown that there was a wilful departure from the rules and that this was brought home to, or was countenanced by, the owners. La Bourgogne, 210 U. S. 95. Q. 13. The steam towboat Ocklahama had the barge Colum- bia in tow. Both were leased by their owner to a common carrier. There was a collision against a wharf at Astoria, Oregon, and the barge sank, damaging the cargo of wheat which she carried, and killing the captain and two deck hands. The owner of both tug and barge surrendered the appraised value of the barge ($100) and sought to limit his liability to that sum. It was sought to require him to surrender both tug and barge, on the ground that they constituted, for pur- poses of Section 4283 U. S. Revised Statutes, but one vessel. Is the contention correct? A. Correct. Both belonged to one owner; were operated by the same carrier; and were necessarily under the control of the master of the tug. They together constituted the instrument of carriage. The Columbia, 73 Fed. 226, 238. Q. 14. In the case of the Columbia just noted, assume that the lower court had held that the tug need not be surrendered ; and that while the case was pending on appeal, the owner sold the tug to a purchaser who knew of the suit; does he take subject to the lien — that is, to the requirement that the tug, as well as the' barge, be surrendered ? A. Yes. The lien is one which will bind the property in the hands of the purchaser. He should have known that under the petition to limit liability, she was subject to be surrendered along with the barge. Oregon &c. v. Balfour, 90 Fed. 295. 63O LAW STUDENTS' REVIEW Q. 15. Appellant, Leah M. Saville, was sued in the state courts of New York by the administratrix of a deceased em- ploye who came to his death by reason of an accident in loading rails upon a barge. Appellant owned 39 or 40 barges. She supplied sets of tongs for gripping the rails. The barge Tommy was without these ; and as was the custom, the master, Thomp- son, of the barge, borrowed a set from one Benson, the master of another barge. The tongs were obviously old, worn and defective; they slipped; a rail fell and killed decedent. Both masters were experienced. Appellant sought in admiralty to limit her liability, on the ground that she was not negligent in selecting Thompson and Benson; but the lower court dismissed her libel. The Circuit Court of Appeals reversed this. Why? A. Because the rule in admiralty (differing from the com- mon law in this) is as above by appellant contended. The fact that the masters of the barges were apparently competent men, and that the appellant is not shown to have had knowledge of the defect in the appliances, operates to bring her within the protection of the law which limits her ability. The Tommy, 142 Fed. 1034, 151 Fed. 570. Q. 16. Contract of affreightment between Bancroft- Whitney Company, and Pacific Coast Steamship Company. Assume that the goods were shipped; there was a breach; that an at- tempt was made to libel the vessel to answer for the breach; and that the defense was interposed that the contract was per- sonal and not maritime, and therefore that admiralty had no jurisdiction. Can the defense be sustained ? A. No. The contract is both personal and maritime; and as the goods have been shipped, the shipper has his election to en- force his contract, either in personam against the steamship company, or in rem against the vessel. Note that in the contract in above case, a provision in the B/L that all claims must be presented within thirty days from date as a condition precedent to suing the company is held (1) void, as being unreasonable and (2) as not discharging the vessel's liability. The Queen of the Pacific, 61 Fed. 213. ADMIRALTY 63 1 Q. 17. Libel for $12,000 against 844 tons of coal on board the ship Orphan. A charter party was made at New York, February 1, 1850, the ship being then on her voyage to London. The charter party called for all the ship except the deck, cabin and crew room, for a voyage from London, or from Cardiff (to load) to a port or ports on the Pacific between such ports as charterers might elect, thence at their option to be returned to New York or London; 15 to 24 months, at $2,000 a month, payable semi-annually at New York. The ship sailed from Cardiff May 4, and a B/L issued on the cargo called for delivery "at the port according to orders." She reached San Francisco December 2, 1850. The semi-annual charter money was then overdue and unpaid ; and the captain claimed a lien on the cargo for it. Can the lien be sustained? A. Not sustainable. While where the whole ship (without exception) is chartered, a lien on the cargo for freight will ordinarily attach; yet a time and place for the payment of freight other than those specified for the delivery of the cargo, indicate a waiver of the lien. In the above case, while in point of fact the vessel did not arrive at San Francisco until after the charter money was due, yet she might have arrived before ; and then of course there could have been no lien. More- over, freight due and payable in New York can not be required as a condition precedent to the delivery of a cargo in San Fran- cisco. Eaymond v. Tyson, 17 How. (U. S.) 53. Q. 18. Suppose a cargo to be larger than can be discharged and delivered in a day: (1) must consignee pay the entire freight before getting all the shipment? (2) or may he insist on having all the goods before he pays any freight? (3) or is the freight to be pro-rated, and paid day by day as the goods are delivered? A. (3) is correct; and the shipmaster, having control of the cargo and landing it, must keep track of the quantities he lands, so that the pro rata freight may be ascertained "in the only way in which it can be done." Unless he does this, he may not de- mand freight until he discharges all the cargo. Brittan v. Barnaby, 21 How. (U, S.) 527. 632 LAW STUDENTS' REVIEW Q. 19. A steamship company negligently filled a tank with highly explosive gas, during the course of alterations on its vessel. It knew that workmen were to drill holes in the tank, and allowed them to do so, without warning. An explosion was caused, whereby such workmen were injured. The workmen were employed by an independent contractor; and were not mariners. The vessel was moored at the contractor's dock. Owner petitioned to limit liability. Assume that the workmen were guilty of contributory negli- gence, in drilling by candle light : Can they or their representatives recover in admiralty ? A. Yes. Where the concurring act of negligence, though to a certain extent unusual, might have been foreseen, and its consequence provided against, the first negligent act is the prox- imate cause of the injury. McGill v. Michigan &c, 144 Fed. 788, 203 U. S. 593. And it is not required that the vessel shall be on a voyage in order that the owner's liability may be limited under the act of congress. In re Michigan &c, 133 Fed. 577. Q. 20. A statute of California provided that vessels should be liable for injuries committed by them to persons or prop- erty; and for a lien in such cases. In 1863 the steamship Moses Taylor, owned in New York, was carrying freight and passengers between Panama and San Francisco. Plaintiff entered into a contract with the ship's owner, for $100, to transport him from New York to San Francisco as a steerage passenger ; and to furnish proper food and lodging on the voyage. Assuming that defendant's vessel broke the contract; and that plaintiff got judgment against the vessel in a California state court, can he sustain it? A. No. This is clearly a maritime contract. There is in prin- ciple no distinction between a contract to transport a passenger and one to transport freight. Passenger money is equivalent to freight money. This is a proceeding in rem; and admiralty has exclusive jurisdiction. The Moses Taylor, 4 Wall. 411. ADMIRALTY 633 Q. 21. The defendant railroad company began to build a bridge over the mouth of the Susquehanna river, agreeing with contractors to prepare the foundations and to construct a pier. The contractors drove a "sight pile" in the river. Afterward the work was abandoned; and the sight pile was cut off. In- stead, however, of cutting it off at the bottom, it was cut a few feet under the surface of the water. The steamboat Supe- rior, leaving a Maryland port, collided with the pile and was damaged. It was contended that the leaving of the pile was a nuisance at common law ; and that where this was done within the body of a county the remedy of the owners of the steamboat should have been by action on the case ; not in admiralty. Is the contention sound ? A. Unsound. This is a marine tort. In matters of con- tract, the jurisdiction of courts of admiralty depends on the nature of the contract ; whether maritime or otherwise. In cases of tort, such jurisdiction depends on locality. If committed on the high seas, or within the ebb and flow of the tide, admiralty has jurisdiction; though in above case, it seems that the party may sue at law or in admiralty. Philadelphia &c. E. R. v. Philadelphia &c. Tow Boat Co., 23 How. (U. S.) 209. Q. 22. Libellant, a woman, was a passenger on the steam- boat Western States, and was proceeding from Buffalo to Detroit, September 12, 1904. At about 2 o'clock a. m. an assailant, who proved to be an oiler on the ship, entered her stateroom, and chloroformed and robbed her. She immediately made complaint to the captain. He was incredulous ; and was also discourteous to her. (a) Assume that the boat is liable ; and bearing in mind that the federal statute (U. S. Comp. Stat. 1901, p. 461 ; Rev. Stat. § 566) provides that in matters of contract or tort on the Great Lakes, issues of fact shall be tried by a jury when either party requires it; is the verdict of the jury binding? or, as in case of a feigned issue out of chancery, is it simply advisory? (b) Of what crime is the oiler guilty? 634 law students' review A. (a) Binding — at least to the extent that the power of the court can go no further than to grant a new trial. (Note that the lower court held the verdict only advisory.) (b) Piracy. The Western States, 151 Fed. 929, 159 Fed. 354, 358. Q. 23. Libellant, a deckhand on the steamship Troy at Du- luth, was paying out the bowline to make fast at a dock. His leg was caught in a bight of the hawser, and was crushed off by being drawn to the bitts before he could be released. He was familiar with handling lines on lake boats. Assuming that the owners had used due diligence in furnish- ing officers and crew, has the deckhand any right of recovery? And if so to what extent may he recover against the vessel ? A. If without fault he is entitled to be cured of his injuries, so far as that is possible, at the expense of the ship; and if it be shown that the ship failed to furnish him proper support, medical attendance, nursing and care while his wounds were healing, he may also recover for the additional suffering caused by such failure. But for the injury as such ("loss of his leg") the ship is not liable. The Troy, 121 Fed. 901. Q. 24. Suppose in the previous question that it appeared that the accident happened through the failure of the mate to ■direct the hawser to be untwisted and coiled before using it; then might the ship be held for the injury? A. Not unless it be shown that the owners failed to use reasonable care in selecting and retaining competent men to navigate the ship. The Osceola, 189 U. S. 158. Q. 25. Again suppose that in the preceding instance the hawser was defective : would this entitle the deckhand to re- cover full damages for the injury? A. Yes. Where a vessel is "unseaworthy" and the injury arises from her unseaworthiness libellant may recover against her in rem. This is put on the ground that the owner is required to furnish appliances adequate to the place and occasion where . used; and if he neglects to do so both the owner and the ship ADMIRALTY 635 may be held, "for the unseaworthiness of the ship and her appli- ances." The Osceola, 189 U. S. 174. Q. 26. Libellant, a seaman, who was not an American citi- zen, was injured by falling, being then on a tramp steamer flying the German flag, of German registration, upon the high seas. When the vessel arrived in New York he libelled her in the United States District Court, Eastern District of New York, alleging negligence on the part of the owners, and claiming $15,000 damages. The owners had given bond to release the vessel ; the libellant remained within the jurisdiction of the court; and could not pursue his former occupation of seaman. A treaty with Germany provided that consuls-general and similar officials should have exclusive charge of the "internal order" of merchant vessels of their nation, and exclusive power to determine differences, either at sea or in port, between the captains, officers and crews, especially as to wages and con- tracts. No court, it was provided, should interfere in these differences, except where they are likely to disturb the peace in port. The vessel contended that by the terms of this treaty, the jurisdiction of the United States Court was precluded. Is the claim sustainable? A. No. The cas'e is one where the court may take jurisdic- tion, though it need not do so. This is a matter of discretion. Accordingly, without finally precluding the court from exercising its discretion later to dismiss the case, it will require an answer to the libel and examine into the facts. The Baker, 157 Fed. 485. It was held (as to wages) in The Bound Brook, 146 Fed. 160, that inasmuch as the libellants were not citizens of the United States, and the vessel was foreign ; yet the voyage having ended, the court usually exercises jurisdiction ; and this it may do even against the protest of the consul. Q. 27. The Brig Atlantic, while on a voyage from Phila- delphia to New Orleans, with a cargo of coal, sprung a leak 636 LAW STUDENTS' REVIEW and put into Key West. The captain was a stranger there ; and having no other means of obtaining money to make the neces- sary repairs, borrowed $813 of the firm of Wall & Co. at Key West, hypothecating and mortgaging the brig, her cargo and freight. To enable him to make repairs so that the ship might complete her voyage, he further drew a one-day draft for this amount with interest and commission, aggregating $862, upon Simpson & Co. of Philadelphia. The mortgage concluded: "It is expressly understood and agreed that the said Wall & Co. do not take upon themselves the marine risks usual in cases of bottomry and hypotheca- tion." The draft was assigned to libellants. They, being unable to find Simpson & Co., libelled the brig. Can the libel stand? A. Libel not well brought. The master in this instance, being in a port of a state other than the residence of the owner, might validly pledge the ship, and if the instrument in question could be regarded as a bottomry bond with the usual stipulations, the ship might be held. But the lender on a bottomry bond — or a respondentia bond — must be willing to stake his money upon the safe arrival of the ship or cargo— that is to say, upon the com- pletion of the voyage. This is just what the lender here stipu- lated he would not do. Accordingly, the principle which governs the security he took is not that of a bottomry bond enforcible in admiralty. It should be proceeded on as at common law. K. L. Maitland v. The Brig Atlantic, 1 Newb. 514. Q. 28. One Taylor, a resident of Massachusetts, doing husiness in Boston, in form transferred the bark George T. Kemp to a resident of New Zealand, in order to obtain a Brit- ish register, so as to avoid capture during the War of the Rebellion ; but Taylor remained the true owner. Certain mate- rial-men furnished supplies in Boston while the ship was there. Libellant, a material-man, had taken a note of Taylor, giving a receipt that the note when paid should operate as a payment of the account. (1) Is the George T. Kemp a foreign vessel? (2) Does the fact that the owner was present when the sup- ADMIRALTY 637 plies were furnished preclude the presumption that credit was given to the vessel ? A. (1) When a ship is put by her owner under a foreign flag, he obtains all the benefits of that position. But he must bear the burdens; and accordingly in the above instance the ship must be treated as foreign, and may be held. (2) While it has been held that if the true owner is present when the supplies are furnished there could be no credit given to the vessel; yet this has been overruled; and the presence of the owner does not preclude the possibility of credit given to a vessel in a foreign port by the general maritime law. The George T. Kemp, 2 Low. 477. Q. 29. A stevedore, Joseph Keating, libelled the schooner John Shay in Philadelphia, her home port. It was objected: (a) that the services of a stevedore do not give a maritime lien; and (b) that such services rendered to a domestic vessel in her home port are not the subject of such a lien. Can these contentions be sustained? A. (a) Unsustainable. The contract of a stevedore is a maritime contract, and if performed on a foreign vessel, is cog- nizable in admiralty, and may be made the foundation of a lien. (b) Sustainable. In the home port such services rendered are presumed to be on the credit of the owners and not on the credit of the ship. The John Shay, 81 Fed. 216. Q. 30. Leyland & Company, owners of the ships Allerton and Otterspool, contracted with the Columbia Stevedore Co., on February 17, 1898, for such stevedoring services as might be required by these ships, during the term of one year, at Port- land and Astoria. The ships arrived in ballast for wheat and cargoes. The Stevedore Company stood ready to perform the services required in unloading and loading; but Leyland & Co. refused to permit it to perform these services. Will a libel against the vessel lie ? A. No. While the contract is maritime, yet no service was in fact rendered; and as the contract for services was without 638 LAW STUDENTS' REVIEW reference specifically to either of these vessels, no maritime lien exists. The remedy is by action in personam against the owners. The Allerton, 93 Fed. 219. Q. 31. Assume that three boats of the Schuyler Steam Towboat Company, operating between New York and Albany, had after close of navigation "laid up" at the docks of libellant in Brooklyn. They were laid up empty for over one hundred days. Two other boats were laid up three days each, in the sum- mer. Would a maritime lien, and if so as to what vessel, lie for compensation for wharfage ? A. As to the vessels which "laid up" for only three days the wharfage service is an essentially maritime service; and sup- ports a maritime lien. It is a necessary instrumentality in en- abling the ship to discharge and load cargo and freight. But as to an empty ship made fast to a wharf because she is taken away from navigation, the case is different. She is not at the dock for passengers, freight or repairs — but only because she is gone out of commission. Accordingly this disconnects her with navigation, and no lien will lie. Therefore, as to the three ships there will be no lien; as to the two there will be a lien. The C. Vanderbilt (and other ships), 86 Fed. 785. Q. 32. At about midnight May 28, 1898, the City of Worcester left New London bound to New York by way of the Thames river and Long Island sound. As she was passing from the river into the sound she struck a rock known as Cormorant Rock, which tore out a part of her bottom forward. Being in danger of sinking, she was run ashore. The captain thought he had a sand bottom; in fact the bottom was soft mud; the steamer stuck in the mud, and settled. until she sank; and the cargo was thereby damaged. The cargo was carried on deck; and at the time she went ashore, it had sustained no damage. It was found that the cargo was damaged to the extent of upward of $100,000 ; and that the total losses and expenses aris- ing from the accident amounted to $157,207, of which $32,780 ADMIRALTY 639 was treated as particular average; and $125,426 as general av- erage. The underwriters contended that the damage resulting from the submerging of the cargo and main deck of the steamer should be charged as particular and not as general average; though it wa$ admitted that if the stranding was the proximate cause of the loss, it should fall tinder general average and be contributed to by the vessel. They contended, however, that the striking upon the rock, and not the stranding, was the proxi- mate cause ; and that the cargo for that reason should not be entitled to contribution. A. The beaching of the ship, and not the striking of the rock, was the proximate cause of the damage to the cargo. Hence, the loss should be made the subject for general average; and the cargo, for that reason, should be entitled to contribution. If a maritime loss results inevitably from the original cause of danger, then that cause is the proximate cause; but in cases where a voluntary act supervenes, and the voluntary act is the actual cause of the loss — then such act must be regarded as proximate cause, so far as general average is concerned. Norwich &c. v. Insurance &c, 118 Fed. 307. Affirmed in 129 Fed. 1006. Note that general average applies where a loss has been voluntarily incurred for the general benefit of the owners of the vessel and of the cargoes ; and that such owners must contribute proportionately toward making good the loss; while where the loss has been purely accidental there is no general contribution ; this being known as particular average. Thus, where the master of a ship which is imperiled exer- cises his volition, and adopts that one of several courses which seems to him least perilous, and most conducive to common benefit; and as the result the ship is wrecked, such a loss is ground for general average to which the property preserved must contribute. The volition and election of the master is the controlling feature. Rea v. Cutler, 1 Sprague 135. Columbia &c. v. Ashby, 13 Peters 331. 0. 33. There were two vessels, one the Globe, the other the George Washington, engaged in the business of assisting vessels which were wrecked, or in danger of being wrecked, on the coast of Florida. Between these two there was an agree- ment of consortship. The Globe assisted the ship Mississippi 64O LAW STUDENTS' REVIEW and cargo, and for this assistance the sum of $5,522 was decreed as salvage. Andrews, appellant, was part owner of the Globe; and Wall was part owner of George Washington. It appeared common among owners of wreckers on the Florida coast to agree that their vessels should act as consorts, one with the other, in salvage services, and share mutually with each other in the moneys awarded as salvage, whether earned by one vessel or by both. Assuming that the fund of $5,522 had been paid into the admiralty court by the Mississippi under libel, may Wall re- cover one-half thereof ? A. Yes. A consortship contract is maritime contract for services to be rendered on the sea, and for an apportionment of salvage earned therein; and admiralty possesses jurisdiction over such contract. Note also that it is an incident inherent to the jurisdiction of an admiralty court, to entertain supplemental suits by par- ties in interest to whom a fund in court rightfully belongs, and to deliver it over to the parties thereto entitled. This practice is frequent in prize cases, and in "remnants and surplusses'' ; that is, as to whatever is left of moneys in the registry of the ad- miralty after satisfying the claims of seamen, bottomry bonds, salvage services, supplies of material-men, and the like. Andrews v. Wall, 3 How. (U. S.) 568. Q. 34. Dunham, insured, a citizen of New York, had a policy of insurance, dated at Boston, March 2, 1863, whereby the Insurance Company, a Massachusetts corporation, agreed to insure him in the sum of $10,000.00 on a vessel called The Albina, for one year, against the perils of the sea, and other perils in the policy mentioned. Within the year the Albina was run into on the high seas by another vessel, through the neg- ligence of those navigating the other vessel; and sustained much damage. Dunham sued the Insurance Company in ad- miralty in the District Court for the District of Massachusetts. Has that court jurisdiction? A. Yes. The locus of maritime jurisdiction, where torts must be committed and business must be done in order to be maritime, extends not only to the high seas, but to all the navigable waters of the United States or bordering upon the ADMIRALTY 64I same, land-locked or open, salt or fresh, tide or no tide. The criterion is, is the contract in question a maritime contract hav- ing reference to maritime service, maritime transactions or maritime casualties? Held that a contract of marine insurance is a maritime contract within the exclusive jurisdiction of the United States courts. Insurance Co. v. Dunham, 11 Wall. 1. Q. 35. The brig Gracchus stranded March 23, 1833, in the Mississippi river below New Orleans. A steamboat came to her assistance, and attempted to haul her off; but the hawser parted. Thereupon a part of the cargo was discharged aboard the steamboat ; and the brig was got off, and proceeded to New Orleans, leaking badly. The steamboat claimed a salvage of fifty per cent ; and on the 27th libelled the brig in the District Court' of Louisiana. April 22d the owners addressed a letter to a company which had insured the vessel stating that in con- sequence of the damage (indicating that the cargo consisted of pork and sugar, and about half of the sugar was damaged), the detention incident to the lawsuit, "the voyage being broken up we do hereby abondon to you the brig Gracchus * * * and claim for a total loss." The insuring company refused to accept the abandonment ; and demanded that the owners should do what was necessary in the case for the safety and relief of the vessel. The district court, May 9th, decreed as salvage one- fourth of the value of the vessel and cargo. The repairs amounted to less than one-half of the total value. May 14th the master again got possession of the vessel, having paid the salvage ; and on June 3d she was repaired and ready for freight. Early in July she sailed for Baltimore with a partial cargo on board, on freight, and duly arrived there. The lower court instructed the jury that unless they believed from the evidence that the Gracchus suffered damage to more than one-half the sum at which she was valued in the policy, the owner was not entitled to abandon the vessel to the insurers as a total loss; and that in estimating such damage, the jury 41— L. S. Rev. 642 LAW STUDENTS* REVIEW ought to take the cost of her repairs only, deducting one-third therefrom (new for old), as in the case of adjusting a partial loss. Is this instruction correct ? A. Correct. In cases where abandonment is founded upon a supposed total loss by damage or injury exceeding one-half the value of the vessel, such damage or loss to the extent indicated must, in order to warrant an abandonment, in fact exist. Strong evidence that she was not injured to exceed one-half her value is that the repairs, subsequently made, came to less than one- half the value; and accordingly the foregoing instruction to the jury is well founded. Note, however, that where a vessel strands under circumstances of imminent peril, and the apparent cost necessary to deliver her therefrom is great; then if the peril be such as would induce a considerate owner, uninsured, and upon the spot, to withhold every attempt, because of such apparently great expenditure, to get the vessel off — the abandonment would be good. Bradlie v. Maryland &c, 12 Pet. 378. Q. 36. The tug Helen was, along with the tug Alice, tow- ing a barge, in December, 1906, from Norfolk to Newport News. A fire was raging in the ship yard of the Newport News Dock Company; and thereupon libellant Simmons, the master of the tug Helen, docked his tow and came to the assist- ance of the steamship Jefferson, which was in a dry dock, from which all the water had been emptied, and was afire. He lay at a bulkhead as close to the dock as he could, and played streams of water upon the Jefferson, extinguishing the fire; and en- dured great hardship from smoke, flame and sparks, and from exposure to wind and water, in cold we'ather. Libellant claimed salvage against the Jefferson. Was this a salvage service? A. Yes. It was urged that the Jefferson was not engaged in maritime commerce; and that while in dry dock from which all the water had been emptied, she was not a subject of salvage service. But it was ruled that the status of a vessel in a dry dock is not different from that of a vessel floated into a wet dock ; and after the analogy of a maritime lien given for making repairs to a ship, whether in or out of the water, it was held that ADMIRALTY 643 this was a salvage service over which a court of admiralty has jurisdiction. The court may accordingly decree salvage for sav- ing the vessel from destruction. The Steamship Jefferson, 215 U. S. 130. Q. 37. A suit against remnants and oil, of the whale ship Holder Borden. The crew had an interest in the catch. The ship, of 442 tons burden, sailed from Fall River in 1842, on a whaling voyage to the South Seas and the Pacific Ocean. After seventeen months, having been successful in taking oil, she struck on the weather side of a coral reef, four miles from a small uninhabited island in the Pacific. It was impossible to get her off ; but out of such portions of her as they could bring ashore to the island, and after manufacturing saws, augers and other tools, the captain and crew finally constructed a small schooner of 37 tons burden, which they christened the "Hope." They saved and placed aboard all the oil they could, made sail (the sails were the ship's sails, cut down) and reached Oahu, in 23 days. Assuming there were no other means of escaping, and that the service while laborious and prolonged, was not especially dangerous ; have the captain and crew the right to salvage (a) as to the Hope? (b) as to the oil saved? A. (a) The remnants of the ship were of no use to the own- ers. They were rightfully used by the master and crew in build- ing the Hope ; and the Hope belonged to the master and crew. (b) As to the oil, the crew were not salvors. It is only under very extraordinary circumstances that master and crew can be deemed salvors; and especially is this true when the crew has an interest in the catch. In the present instance, while there was great labor in saving the oil, yet there was no great danger; and it was the duty of the crew to save what they could of it; and for doing this they are not entitled to salvage. The Holder Borden, 1 Sprague 144. Q. 38. While on a voyage from Norwich to New York, in 1866, the steamboat City of Norwich came into collision with 644 LAW STUDENTS' REVIEW a schooner, thereupon caught fire, and sank. She was after- ward raised. The owners of the schooner libelled the City of Norwich ; and the owners of the steamboat were successful in limiting their liability to the value of the vessel. , As of what time, and how, is the value to be ascertained ? A. The "value" is that of the boat as she lay sunk. It is reached by taking her value when raised, less the expense of raising. In Matter Norwich &c, 8 Ben. 312, 17 Blatch. 221. See also Norwich &c. v. Wright, 13 Wall. 104. Q. 39. In the foregoing case, the freighters claimed that their right of action accrued at the time of the collision, and the value should be taken as of that time, that is, before the fire ensued. Is this claim sustainable? A. Not sustainable. The fire was a part of the original dis- aster — not a subsequent occurrence. After the collision all that was left of the steamboat was a vessel doomed to burn and sink. Her value is to be taken after the burning and sinking. In Matter Norwich &ic., 8 Ben. 312, 17 Blatch. 221. See also Norwich &c. v. Wright, 13 Wall. 104. Q. 40. The captain of the steamer Montserrat picked up the steamer Wellington, in the Pacific, and for an agreed con- sideration of $15,000 towed her to San Francisco, a distance of 500 miles. This consumed four days. The money was recovered and paid to the Montserrat owner, as for salvage service. A year after the payment of the money, a member of the crew of the Montserrat sued the Montserrat owner for his share of the $15,000. Assuming that his labor was but little in excess of what it would have been had the towing not been done, can he recover ? A. While the delay in suing is not to be encouraged, and is taken into consideration, yet the member of the crew is entitled to salvage. $100 allowed him. McMullin v. Blackburn, 59 Fed. 177. ADMIRALTY 645 Q. 41. The British steamship Elfrida, 1,454 tons register, while proceeding to the port of Velasco, Texas, grounded on a bar between two jetties which projected into the Gulf of Mex- ico, at the mouth of the Brazos river. The captain could not get her off; and wind and sea were increasing. Libellants offered for $22,000 to furnish labor, material and to get her off and examine her bottom, and to tow her to a safe anchorage, within twenty-one days. This was accepted, and preparations were made. While libellants were making preparations, the captain, unassisted, got the Elfrida off under her own power. Assum- ing that $10,000 would have compensated libellants, . should a recovery by them of the $22,000 be sustained ? A. Yes. A stipulated compensation, although the amount may be much larger than a mere quantum meruit, will be re- coverable, unless corruptly entered into, or unless tainted with fraud or compulsion or clear mistake. If the weather had been, bad, libellants might have got nothing. The Elfrida, 172 U. S. 186. Q. 42. The U. S. ship of war Seminole, on June 24, 1863, captured the' British steamship Sir William Peel, off the mouth of the Rio Grande. The Peel was taken to New Orleans. She had no papers aboard. They had been left at Matamora. She was captured in Mexican waters. At the time there was an effective blockade of all the ports of Texas. Should she be condemned? A. Not until opportunity be offered to produce the papers. Then if it appeared that she was not attempting to run the blockade, restitution should be ordered. Note, however, that neither an enemy, nor a neutral acting the part of an enemy, can demand restitution on the sole ground of capture in neutral waters. Sir William Peel, 5 Wall. 517. O. 43. The American ship Admittance was during the Mex- ican war captured by a United States man of war off the coast of Mexico. Her papers showed that she was engaged in com- 646 LAW STUDENTS' REVIEW merce with the enemy. But the commander of the man of war, in place of bringing her to a United States court for condemna- tion, sold her at a foreign port. This he did under the claim that he was at a great distance from the United States, and it would too greatly weaken his ship's force to detail officers and crew to take her to a port in the United States. Does the commander forfeit prize money, under these cir- cumstances ? A. No. While his judgment as to whether it is consistent -with the public interest to detail officers and crew is not conclu- sive; and while it is his duty to send in his prize for adjudica- tion, yet this is not an absolute obligation. If, with reasonable discretion and an honest purpose he decides otherwise, he can not be deemed guilty of misconduct which works a forfeiture. Jecker &c. v. Montgomery, 18 How. (U. S.) 110. TABLE OF ABBREVIATIONS (Ordinary abbreviations used for States of the Union) A A. & E. Ency. Law. . . . American and English Encyclopedia of Law. Ad. & El. Adolphus & Ellis's English King's Bench Reports. Allen Allen's Massachusetts Reports. Am. E. R. & Corp. Rep. American Railroad and Corporation Reports. App. Cas Appeal Cases, English Law Reports. B Barb Barbour's Supreme Court Reports, New York. Barb. Ch Barbour's New York Chancery Reports. Barn. & Ad Barnewall & Adolphus English King's Bench Reports. Barn. & Cr. Barnewall & Cresswell English King's Bench Reports. (Also abbreviated B. & C.) Beav. Beavan's English Rolls Court Reports. Ben Benedict's United States District Court Re- ports. Best & S Best & Smith's English Queen's Bench Re- ports. Bibb Bibb's Reports, Kentucky. Bing. Bingham's English Common Pleas Reports. Blackf. Blackford's Reports, Indiana. Blackst. Com Blackstone's Commentaries. Blatchf. Blatchford's United States Circuit Court Re- ports. Brown Ch. Rep Brown's English Chancery Reports. Bull. N. P Buller's Law of Nisi Prius. Burrow Burrow's English King's Bench Reports. Bush Bush's Kentucky Reports. c C. B. (If. S.) Common Bench Reports, New Series. C. L. J. Central Law Journal, St. Louis. C. & P. Carrington & Payne's English Nisi Prius Reports. Caines Caines's New York Term Reports. Camp Campbell's English Nisi Prius Reports. Car. & P. Carrington & Payne's English Nisi Prius Reports. Carthew Carthew's English King's Bench Reports. CI. & F Clark & Finnelly's House of Lords Reports. 647 648 LAW students' review C(m Cowen's New York Reports. Cowp Cowper's English King's Bench Reports. Cox C. C Cox's English Criminal Cases. •Cranch Cranch's United States Supreme Court Re- ports. Cro. Jac Croke's English King's Bench Reports temp. James (Jacobus) 1. (2 Cro.). Cush Cushing's Massachusetts Reports. Cyc Cyclopedia of Law and Procedure. D D. F. & J. DeGex, Fisher & Jones's English Chancery- Reports. DeG. & J. DeGex and Jones's English Reports. DeG. M. & G. DeGex, Macnaghten & Gordon's English Chancery Reports. Dall. Dallas' Pennsylvania United States Reports. Dana Dana's Kentucky Reports. Day Day's Connecticut Reports. Den Denio's New York Reports. Denison C. C Denison's English Crown Cases. Dowl. & By. Dowling & Ryland's English King's Bench Beports. Duer Duer's New York Superior Court Reports. Duyall Duvall's Kentucky Reports. E last East King's Bench Reports. East P. C East's Pleas of the Crown. Encyc. P. & P Encyclopedia of Pleading and Practice. Eng. Com. L English Common Law Reports (American Reprint) . Esp Espinasse's English Nisi Prius Reports. Exch English Law Reports, Exchequer. F Fost. & FinI Foster & Finlason's English Nisi Prius Re- ports. G •Gall Gallison's Reports, United States Circuit Courts. Gilm Gilman's Illinois Reports. Gratt Grattan's Virginia Reports. Gray Gray's Massachusetts Reports. H H. Bl Henry Blackstone's English Common Pleas Reports. M. L. Cas House of Lord's Cases. TABLE OF ABBREVIATIONS 649 Hagg. Con Haggard's English Consistory Reports. Harr. Harrington's Reports, Delaware. Head Head's Tennessee Reports. Heisk Heiskell's Tennessee Reports. Hill Hill's New York Reports. How. Howard's United States Supreme Court Re- ports. How. Pr. Howard's New York Practice Reports. Humph Humphrey's Tennessee Reports. Hnn Hun's New York Supreme Court Reports. Hurl. & Nor. Hurlstone & Norman's English Exchequer Reports. I Ired. L Iredell's Law Reports, North Carolina. J Johns Johnson's New York Reports. Johns. Cli Johnson's New York Chancery Reports. K Kay & J. Kay & Johnson's English Vice-Chancellors' Reports. Keen Keen's English Rolls Court Reports. L L. J. Exeh Law Journal, New Series, Exchequer. L. J. M. C Law Journal, New Series, Magistrates' Cases. L. J. (IT. SO The Law Journal, New Series, London. 1. E. App English Law Reports, Appeal Cases, House of Lords. L. E. C. P. English Law Reports, Common Pleas. L. E. Ch. D English Law Reports, Chancery Division. L. E. Eq. Cas English Law Reports, Equity. L. B. Ex English Law Reports, Exchequer (or L. R. Exch.). L. E. H. L English Law Reports, English and Irish Appeal Cases. L. B. Q. B. Div. Law Reports, Queen's Bench Division. X. B. Sc. & Div English Law Reports, Scotch and Divorce Appeal Cases. L. E. P. Div English Law Reports, Probate, Divorce and Admiralty Division. L. B. P. & D English Law Reports, Probate and Divorce. L. T. (ST. S.) Law Times (New Series) Reports, London, 1843. Ld. Eaym Lord Raymond's English King's Bench Re- ports. £, ea Lea's Tennessee Reports. Lev. '. ........ '. Levinz's English King's Bench Reports. Low. Lowell's United States District Court Re- ports. 650 LAW students' review M M. & S Maule & Selwyn's English King's Bench Reports. M. & W. Meeson & Welsby's English Exchequer Re- ports. Madd Haddock's Reports, English Chancery. Man. & G. Manning & Granger's English Common Pleas Reports. Mason Mason's United States Circuit Court Reports. McLean McLean's United States Circuit Court Re- ports. Mees. & Wels Meeson & Welsby's English Exchequer Re- ports. Mete Metcalf's Massachusetts Reports. Mod Modern Reports, English King's Bench. Mosely Mosely's English Chancery Report, Munf. Munford's Virginia Reports. N Newb Newberry's United States Admiralty Re> ports. O Owen Owen's English King's Bench Reports, P Paige Paige's New York Chancery Reports. Penn Pennewill's Delaware Reports. Pet. Peters's United States Supreme Court Re- ports. Pick Pickering's Massachusetts Reports, Q Q. B Queen's Bench. Q. B. D Queen's Bench Division, English Law Re- ports. R Rawle Rawle's Pennsylvania Reports. Robt Robertson's New York Superior Court Re- ports. Russ. & R. Russell & Ryan's English Crown Cases Re- served. S Salk Salkeld's English King's Bench Reports. Sand. Ch Sandford's New York Chancery Reports. Saund Saunders's English King's Bench Reports. TABLE OF ABBREVIATIONS 651 Scam. Seammon's Illinois Reports. Seld Selden's New York Court of Appeals Re- ports. Serg. & K. Sergeant & Rawle's Pennsylvania Reports. Sess. Cas Session Cases, Scotch Court of Session. Spr. Sprague's United States District Court (Admiralty) Decisions. Story Story's United States Circuit Court Reports. Swan Swan's Tennessee Reports. T T. R. Term Reports (Durnford & East). Taunt Taunton's English Common Pleas Reports. V Ves Vesey, Senior's, English Chancery Reports. Tes. Jr. Vesey, Junior's, English Chancery Reports. Vroom Vroom's New Jersey Reports. w Wall Wallace's United States Supreme Court Re- ports. Watts & Serg. Watts & Sergeant's Pennsylvania Reports. Wend Wendell's New York Reports. Wh Wharton's Pennsylvania Reports. Wheat. Wheaton's United States Supreme Court Re- ports. Wils Wilson's English Common Pleas Reports. Woods Woods's United States Circuit Court Reports. Wright Wright's Pennsylvania Reports. Y Telv. Yelverton's English King's Bench Reports. Yerg. Yerger's Tennessee Reports.