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means of prevention is apparent. Though the assailant is a criminal, it is not the province of his intended victim to mete out punishment. His right is merely that of self-defence, and if retreat is an apparently reasonable means of exerting that right, then the sanctity of human life should be respected.



A QUESTION OF JURISPRUDENCE. While the careful demarcation of the regions of contract and tort is generally regarded as a mere scholasticism, it has in England - owing to the County Courts Act of 1846, which taxes costs differently as the action is "founded on contract or tort " become a living issue. The essential element of contract being the consensus, and that of tort the universal duty to refrain from injury, the question arises in which category shall a duty to act, imposed by law, such as the carrier's obligation to receive and carry safely, be placed. Clearly it is neither a tort, a duty to refrain, nor a contract, a voluntary obligation, but an entirely different thing, a legal duty, a relation which has found no expression in the forms of action, and must, therefore, be dealt with as either a contract or tort. In this country legal duties have been treated, generally, as torts (Ames v. Ry., 117 Mass. 541), while in England the authorities have differed widely, some regarding cases of this character as founded on contract, others, the most recent cases, as founded on tort, "the view which prevails in all the carlier authorities, and which underlay the action of assumpsit itself" (11 L. Q. R. 214). In the two latest cases on the subject, Taylor v. M., S. & L. Ry. '95 I Q. B. 134, 64. L. J. Q, B. 6 (commented on in 8 HARVARD LAW REVIEW, 290), and Kelly v. Met. Ry. '95, 1 Q. B. 944, the Court of Appeal has maintained the latter view and has arrived at the result that an action against a railroad company for an injury received, is, whether a contract exist or not, one founded on tort, within the meaning of the County Courts Act. In the former case, the negligence was a positive misfeasance, in the latter, a mere omission, so that a very wide field is covered by these two decisions.

If they are to stand as law, a very radical change will, probably, ensue. The case of Alton v. Midland Ry. Co. 19 C. B. N. S. 213, deciding that a master cannot recover for loss of a servant's services, caused by the negligence of a railway company, when the contract of carriage is with the servant, a case already tottering (Pollock on Torts, 446-447),· must now be considered as overruled; and a surprisingly large number of old cases, involving important points, will probably be unable to bear examination in the light of these decisions. The effect will not be confined to the subject of jurisprudence merely, but will have a great influence throughout the whole field of substantive law. Its theoretic correctness, on the other hand, may, perhaps, be doubted. There are certainly high authorities who oppose this view (Holland, Jurisprudence, 223-224), although it seems, after all, to be the better one. A legal duty resembles a tort very much, except that one is affirmative and the other negative; while between a contract, whose very essence is a voluntary personal relation, and a legal duty, an obligation forced on a party against his will, there is little in common. Granting this, a farther problem remains, how to treat those situations in which, presupposing a previous relation founded on contract, the parties find themselves under duties imposed by law practically similar to those which they have contracted to perform, as in ordinary bailment. This is not, perhaps, to be

considered as settled by these two cases, although it is believed that a similar decision would be equally satisfactory.

INNKEEPER'S LIEN. The recent case of Robins & Co. v. Gray, in the English Court of Appeal, according to the report in 11 The Times, L. R. 569, brings up an interesting point. A commercial traveller did not pay his hotel bill, and the proprietor set up a lien on certain articles in his custody, although he had known all along that they were the property of the salesman's employer. The court held that, as the innkeeper was bound to receive the articles, regardless of whose they were, he was entitled to his lien, notwithstanding his private knowledge of the ownership. Lord Esher's opinion is refreshing. Whether agreeing with his conclusion or not, all will welcome so clear and straightforward a treatment of a subject which has often been handled vaguely and unsatisfactorily.

The statement in the opinion that the decision represents what has been the undisputed law for centuries seems rather broad. The judges who decided Broadwood v. Granara, 10 Exch. 417, and Threfall v. Borwick, L. R. 7 Q. B. 711, for instance, apparently had a contrary principle in mind. And Wharton, in his book on Innkeepers, page 119, makes the unqualified assertion that the innkeeper has no lien on goods he knows are not the property of the guest. That this view has often been taken in America, too, is shown by such cases as Cook v. Kane, 13 Oreg. 482, and Covington v. Newberger, 99 N. C. 523. However, the doctrine of the case under discussion seems clearly preferable. As the innkeeper's lien is grounded, not on the credit he gives his guest on the faith of the goods, but on the extraordinary liability imposed on him by law, it seems only just that on all goods which he is bound to receive he should have his lien, whether or not he knows them to be the property of another than his guest. As to articles which he is not bound to receive, his state of knowledge or ignorance may be material, but in the ordinary case, where he has no choice, it should not be the crucial test.

DECLARATIONS OF INTENTION. - A recent Indiana case seems to indicate that the law concerning declarations of intention is not everywhere in an advanced stage of development. The case was Wilson v. Smelser (41 N. E. Rep. 76), an action for breach of contract of marriage. The court held that although the plaintiff's intention (as showing consent on her part to the contract) was material, evidence that she had told her parents she was going to be married in October was inadmissible, because not made during the performance of an act, and so not part of the res gesta.

Three years ago the United States Supreme Court held that "whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party." Insurance Co.v. Hillmon (145 U. S. 285). This case has, of course, been of the greatest value in clearing up the law of a still developing subject and ridding it of the unwholesome influence of the res gesta doctrine. It would seem however if one may judge from the recent decision in Indiana that that doctrine still succeeds now and then in elbowing its way to the front and involving a stray case in confusion.

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CONSENT IN LARCENCY. - The question, what constitutes consent in larceny, has again been passed upon in Great Britain. The answer has been in the air since the cases of Reg. v. Ashwell,16 Q. B. D. 190 (1885), and Reg. v. Flowers, 16 Q. B. D. 643 (1886). In the first of these cases B. gave A. a sovereign, both supposing it a shilling. When A. discovered the mistake, he kept the money, was convicted of larceny, and by an evenly divided court, this conviction was affirmed. Less than three months later the same court, on substantially the same facts, unanimously quashed a similar conviction in Reg. v. Flowers. These decisions were reviewed in a discussion of Consent in the Criminal Law, by Prof. J. H. Beale, Jr., 8 Harvard Law Review, 317, and have elsewhere excited considerable controversy; so that the recent case of Reg. v. Hehir, 29 Ir. L. T. 323, which settles the law for Ireland, is of no little interest. A10 note was mistaken for a £1 one under circumstances similar to those of Reg.v. Ashwell, and by a vote of five to four the latter case was expressly disregarded, and a conviction quashed. This decision, coupled with Reg. v. Flowers, which, however, assumed to distinguish Reg. v. Ashwell, renders it very doubtful whether Reg. v. Ashwell would be followed even in England. The Irish court certainly seems to do less violence to any logical theory of consent.

INTERSTATE COMMERCE AGAIN. — The vexed topic of interstate commerce control has cropped up again. In both Swift v. P.& R. R. Co., 64 Fed. Rep. 59, per Grosscup, J., and in Gatton v. C., R. I. & P. R. Co., 63 N. W. Rep. 589, per Kinne, J., it is held that in the absence of legislation by Congress, excessive charges paid for carriages of goods from one State to another cannot be recovered by the shipper. The plaintiff's right to recover depended on the existence of a State common law controlling interstate commerce, or of a federal common law. The existence of either was denied. Such a doctrine would seem to mean that in the absence of legislation by Congress our courts are powerless to enforce the commonlaw liabilities of interstate carriers, and must leave the public at their mercy, for it appears to follow logically, as was pointed out by Shiras, J., in Murray v. C. & N.W. R. Co., 62 Fed. Rep. 24, 37, that it is " open to all common carriers engaged in interstate commerce to act as they please in regard to accepting or refusing freights, in regard to the prices which they may charge, the care they shall exercise, and the speed with which they shall transport and deliver the property placed in their charge." [See also 7 Harvard Law Review, 488, and 8 Harvard Law Review, 168.] The shippers have only the right to enforce contracts, and even in regard to making contracts, the interstate carriers are absolved from the common-law restrictions governing the contracts of common carriers.

It is not disputed that before the adoption of the Constitution the vari ous States could enforce the common-law liabilities and duties of carriers engaged in interstate commerce. The moot point is the effect of the adoption. The view necessarily involved in the cases under discussion is that the control of interstate commerce by State common law was destroyed, and accordingly that until some Act of Congress no tribunal could enforce the common-law liabilities of interstate carriers. On the other hand, it has been held that the Constitution adopted a federal common law, which took the place of State common law on questions of interstate commerce, and was supreme until in turn superseded by Act

of Congress. As to the existence of a federal common law, however, authorities are as widely at variance as ever. The adherents of its existence from Du Ponceau down are at least equally matched by its opponents [see authorities collected in 63 N. W. R. 589,supra]. If, then, the existence of a federal common law is not firmly enough established to afford escape from the results of the doctrines of the principal cases, escape may still be found in controverting the view that the power to control interstate commerce, which was reserved to Congress by the Constitution, excludes, even before legislation, the State common law on the subject. There is a possibility that this contention may prevail.

The exclusiveness of the power of Congress to control depends, according to the test given in Cooley v. Wardens, 12 How. 299, on whether the nature of the matters to be controlled makes necessary a uniform rule throughout the States. Accordingly States may pass bankruptcy laws in the silence of Congress on the subject; but not statutes controlling interstate commerce [ Wabash Ry. Co. v. Illinois, 118 U.S. 557]. The above test, at first thought final and confidently applied, has been more recently questioned, and the tendency of the United States Supreme Court is toward a greater hesitancy to discover the necessity of a uniform rule [2 Thayer's Cases on Const. Law, 2190, note]. In fact, though the last decided cases on the point are hostile to any control by the states of interstate commerce in the absence of congressional legislation, it would not be suprising to see the law circle back to the position taken by Matthews, J., in the case of Smith v. Alabama, 124 U. S. 465. He stated that the duties and liabilities of interstate carriers, before Act of Congress, are enforceable only under State common law, and "the failure of Congress to legislate can be construed only as an intention not to disturb what already exists, and is the mode by which it adopts, for cases within. the scope of its power, the rule of the State law." Certainly, the last word on this confused subject is far from said.


AGENCY- INSURANCE POLICY ISSUED BY INTERESTED PARTY.- Defendant company's agent, who issued an insurance policy to the plaintiff corporation, was a stock. holder and officer in that corporation. On that ground defendant company refused to pay plaintiff corporation's loss for the recovery of which this action is brought. Held, that the defendant company is justified in his refusal to be bound by the policy. Green wood Ice & Coal Co. v. Georgia Home Ins. Co., 17 So. Rep. 83 (Miss.).

This decision seems clearly right and in accord with authority. New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85. The agent for the one party appears from the statement of facts to have been in effect the agent of the other also, and this relation of parties cannot exist, owing to the antagonistic interests represented. The exception made in the case of auctioneer's clerks does not apply here, as in that case the clerk is agent for a simple ministerial purpose, and it is a custom well understood by all parties concerned. In general, an agent for one party cannot act in the same transaction for the other party, and in such a case the contract is voidable. I Biddle on Insurance, § 497.

BANKS AND BANKING-INSOLVENCY OF COLLECTING BANK-TRUST FUNDS.A bank received a note for collection and remittance, but, instead of remitting, credited its correspondent with the proceeds, and three days later failed. At the time of failure the cash on hand was less than the amount collected, but the receiver realized from the assets enough to pay all preferred claims. Held, plaintiff has a lien on cash on hand

at time of failure, but cannot come in as preferred creditor with respect to the amount since realized from the assets by the receiver. Boone County Nat. Bank v. Latimer et al., 67 Fed. Rep. 27.

It is now pretty well settled that where trust property has been confused with other property of the same kind the equity is not destroyed, but converted into a charge upon the entire mass, giving the cestui que trust a prior right over other creditors. l'eters v.

Bain, 133 U. S. 693. But here the assets realized on by the receiver were not, in part or in whole, the product of the converted money, and the principle just stated has never been extended to allowing a priority against funds other than those with which the trust money was mixed. The case is clearly right on both points.

BILLS AND NOTES- NEGOTIABILITY. - A promissory note contained an agreement that if there should be any depreciation, before the maturity of the note, in collateral deposited to secure its payment, the payee or holder might call for further security, and if it were not furnished within two days, might sell the collateral and apply the proceeds towards extinguishing the note. Held, non-negotiable. There might be a payment of an uncertain sum before maturity, thus rendering the amount payable at maturity somewhat less than the amount specified on the face of the paper. Lincoln Nat. Bank v. Perry, 66 Fed. Rep. 887.

This decision is based on the principle that a note for an uncertain amount is nonnegotiable. But, it is submitted, there is no uncertainty here as to amount; a definite sum, $5000, must be paid, and the only uncertainty is as to the time of payment, the holder having an option under certain circumstances to force payment of the whole or part before maturity. This option should not be held to destroy the negotiability of the note. The time of payment must certainly come, and an option in the maker to pay, or in the holder to enforce payment, before maturity, does not affect the negotiability of notes. Jordan v. Tate, 19 Ohio St. 586.

CONSTITUTIONAL LAW BAR OF STATUTE OF LIMITATIONS VESTED RIGHT. A school district issued bonds that were declared void after the statute of limitations had run against the recovery of the original consideration. The Illinois Legislature passed an act giving holders of such bonds one year in which to sue for the recovery of their money. It was objected that this was a taking of property without due process of law within the meaning of the prohibition in the State constitution. Held, that the right to set up the bar of the statute of limitations as a defence to a debt was a vested right, and could not be suspended by the legislature. Board of Education v. Blodg tt, 40 N. E. Kep. 1025 (Ill.).

The authorities are practically unanimous that a title to property acquired by the statute is a vested right. Cooley. Const. I im. (6th ed.) 448. In regard to the right to plead the statute as a def nce to a debt, the great authority of the United States Supreme Court is against it. Campbell v. Holt, 115 U.S. 620, 6 Supr. Ct. 209. So in Texas and Alabama. Bentinck v. Franklin, 38 Tex. 458; Jones v. Jones, 18 Ala. 248. But in eighteen other American jurisdictions where the question has arisen a contrary result has been reached, as shown by the cases cited by the Illinois Court. It is a question scarcely to be argued according to any principle, and the present case follows the overwhelming weight of authority.

CONSTITUTIONAL LAW-VALIDITY of A PARTLY UNCONSTITUTIONAL STATUTE. Held, that where one entire scheme of taxation is provided for in certain sections of an act, so that to declare part of the tax unconstitutional, would leave in operation a tax which Congress would never have intended to stand alone, all the sections are invalid. Pollock v. Farmers' Loan & Trust Co., 15 Sup. Ct. Rep. 912, 920.

The principle recognized in this "income tax" decision has long been well established; but the notoriety of the case due to the importance of the interests at stake, and the exceptional features that attended its course to a final decision in the Supreme Court of the United States, will probably make it a leading authority on the point. See 9 HARVARD LAW REVIEW, 198.

CONTRACTS CERTIFICATE OF ARCHITECT. — Held, that, notwithstanding the stipulation in a building contract that prior to payment the architect's certificate must be obtained, the builders are entitled to the balance due on their account, although no certificate is obtained, the unsatisfied claims of sub-contractors being the only objection to granting certificate, although same had been provided for by builders to be paid out of the amount due. Mahoney et al. v. Rector, etc. of St. Paul's Church, 17 So. Rep. 484 (La.).

Such a stipulation as we find in a contract of this kind is an express condition, which the English courts enforce with logical rigor. The present case illustrates the general American rule, which is based on equitable grounds and followed in the different States, with varying degrees of leniency. Thurt here pronounces the objection

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