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fact has rarely been disputed since Bowen, L. J., declared, in Edgington v. Fitzmaurice, L. R. 29 Ch. Div. 459, that "the state of a man's mind is as much a fact as the state of his digestion." If, then, this misrepresentation of a present fact is accompanied by the other elements of deceit, it seems clear on principle that the action should be allowed. See 1 Bigelow on Fraud, 484. Whether or not it would be expedient in practice is quite another question.

SPECIAL LEGISLATION CLOSING BARBER SHOPS ON SUNDAY.-The constitutionality of so called "special legislation" has again been denied in Illinois. An act to close barber shops on Sunday was reviewed by a minor court in The People v. Eden (28 Chicago Legal News, 100), and decided squarely on the ground that the legislature made an arbitrary discrimination. against a special class. Although the court remarked upon there being a deprivation of liberty and property, it admitted at the end of the decision that, had the law applied to all kinds of business, it would have been valid. The objection was, then, not that the legislature had forbidden an occupa tion on Sunday, but that it had singled out a particular trade, and had not extended its prohibition to others also. It is submitted that this omission is a matter of legislative discretion, and does not furnish a proper occasion for interference by the judiciary.

The way in which American courts have come to exercise a supervision over legislation, and the limits to which such supervision is subject, have been discussed elsewhere. (Professor Thayer, in 7 HARVARD LAW Review, 129. See also 9 HARVARD LAW REVIEW, 277.) It is enough to say here that the making of laws has been intrusted to the legislative branch of the government, and so long as the actions of the legislature are such that one could conceive them to have been actuated by some rational public reason, the legislature must be deemed to have acted within its province. An analogy may be found in the discretion given to a jury on matters of fact; a verdict will not be set aside so long as a reasonable man could possibly have entertained the jury's opinion.

Applying this test to the subject of special legislation, can it be said, for example, that a reasonable man could not by any possibility have seen fit to apply a Sunday closing rule to barber shops without at the same time applying it to other trades? Some rational reason must be found, it is said, for singling out barber shops; another way of putting it is to say that some rational reason must be shown why the legislature did not go farther. It would not be argued that the legislature must go, if at all, to the full length of closing all shops, including that of the apothecary. Some line must be drawn; and it is conceivable that the legislature may from their present knowledge feel incompetent to draw that line. They may feel sure that barbers should fall on the prohibited side, and yet be in just doubt as to other occupations. Can it be said, then, that the legislature might not have had a reasonable ground for declining to carry their prohibition to its utmost extent? If not, then there is a conceivable reason why it should have stopped where it did. If, whenever a mischief arose in any particular instance, it were necessary for the legislature to consider all other possible instances to which they might think the mischief applied, legislation would indeed be a slow process.

There has been a tendency in some of our States, especially in Illinois, to drift away from what is here conceived as the proper view of the power of a legislature to pass "special legislation." On the other hand, the

Supreme Court of the United States has repeatedly affirmed that becaus legislation is special it does not therefore deny the equal protection of the laws. Missouri Pac. R. R. v. Humes, 115 U. S. 512; Barbier v. Connolly, 113 U. S. 27; Missouri R. R. v. Mackey, 127 U. S. 205; Minnesota R. R. v. Beckwith, 129 U. S. 27. In Soon Hing v. Crowley, 113 U. S. 704, it was said, “The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws." See also an able dissenting opinion in State v. Loomis, 115 Mo. 307.

IS A TRUST INVALIDATED BY LACK OF BENEFICIARIES? A recent Alabama case, Festorazzi et al. v. St. Joseph's Church of Mobile et al., 18 So. Rep. 394 (Ala.), raises again the question involved in Morice v. Bishop of Durham, 10 Vesey, 521, whether under a bequest for an indefinite object the trustee shall be allowed to carry out the testator's wishes. The court decreed that the trustees of a bequest "to be used in solemn masses for the repose of my soul," should not perform the trust, but that the sum must be held in trust for the testator's next of kin. This accords with Morice v. Bishop of Durham, and decisions in several of the American States, particularly New York, where the doctrine was made famous by the ruling on the "Tilden Trust." The doctrine obviously is based on the fact that there is nobody who can compel performance according to the terms of the will, and therefore there is no legal trust. But under this doctrine the testator's wishes are utterly defeated. It is admitted that if the honorary trustee does not choose to fulfil his trust, he should become constructive trustee for the testator's next of kin, since the testator never intended him to receive the benefit, and next to the intended beneficiary the testator's next of kin have the best equitable right. But it would seem to be better justice and equally good law that where the trustee is willing to fulfil his duty he should not be interfered with.

In most jurisdictions an exception to this doctrine of Morice v. Bishop of Durham is taken in the case of charitable trusts. Even in New York the exception is now established by statute. The place of the cestui que trust is assumed by the State. In Massachusetts and Pennsylvania a bequest for masses is held to come within this exception. But elsewhere, on the theory of Morice v. Bishop of Durham, a bequest for masses is void, except in Ireland, where by numerous decisions the trustee is allowed to fulfil the trust. In England such a bequest is void as a superstitious use ( Ames's Cas. on Trusts, 210, 211); yet a gift inter vivos upon trust for masses is in general valid, even in New York, where Morice v. Bishop of Durham is in other respects followed to the bitter end. In addition to these departures from Morice v. Bishop of Durham, there are several groups of cases indistinguishable from it in principle, in which equity judges have declined to prevent the performance of a purely honorary trust. Such cases are those of bequests in trust for erection

of monuments, maintenance of pet animals, and transportation and liberation of slaves.

Both on principle and on the authority of the adverse decisions, the doctrine of Morice v. Bishop of Durham, it is submitted, ought not to be followed except in jurisdictions absolutely bound by their own precedents. The court should interfere at the instance of the testator's next of kin only where there has been a failure or refusal to perform the imposed duty. See 5 HARVARD LAW Review, 389-402.

PURCHASE OF OUTSTANDING TITLE BY A TENANT IN COMMON. - In Van Horne v. Fonda, 5 Johns. Ch. 388, Chancellor Kent declared that it was inconsistent with good faith and the mutual obligations arising from community of interest for one tenant in common to purchase an outstanding paramount title for his exclusive benefit, and that he did not propose to sanction it. Thus was laid the foundation of a rule which has since become well settled in our law. Whatever title is so acquired inures equally to the benefit of the cotenant, provided only the latter elects, within a reasonable time, to accept it and bear his portion of the expense. Courts follow the lead of the distinguished Chancellor in finding a reason for the rule in the relations of mutual trust and confidence created by joint interest in a common subject. That there may well be cases of cotenancy where no such relation in fact exists, has always been recognized (see Van Horne v. Fonda, supra), and accordingly an exception, which two recent cases illustrate, has grown up beside the rule. In Stevens v. Reynolds, 41 N. E. Rep. 931, the Indiana court held that the rule does not apply where the original interests of the cotenants were acquired under different instruments, from different sources, and at different times; and the Texas court, in Fielding v. White, 32 S. W. Rep. 1054, reached a similar conclusion, laying stress on the additional fact that there had never been any understanding between the parties concerning their interests in the land. Both courts base their conclusions on the absence of that relation of mutual trust on which Chancellor Kent founded his rule, and the results reached are in accord with the weight of authority. Elston v. Piggott, 94 Ind. 14; Roberts v. Thorn, 25 Tex. 728; King v. Rowan, 10 Heisk. 682; Freeman on Cotenancy and Partition, § 155. Contra, Bracken v. Cooper,

80 Ill. 229.

The doctrine laid down in these cases certainly seems unexceptionable. But the general rule itself, to which they establish an exception, though unassailable in point of authority, appears to be somewhat objectionable in principle. Apart from special circumstances, what relation of trust exists between tenants in common which the law can recognize? They may in general deal with each other as with strangers. One may drive as sharp a bargain as he pleases in buying out the other's interest. Unfair and dishonorable as it may often be for one to oust the other by the purchase of a superior outstanding title, it is hard to see what principle of law there can be to forbid it. If, indeed, the tenants are partners, or if one is given charge of the common property by the others, or any other circumstances exist which give rise to a real fiduciary relation between them, the courts may well regard the act under discussion as a breach of obligation. But the bare fact of tenancy in common, where there is actually no relation of mutual confidence, should entail no such consequences.

WHEN DOES A COLLECTING BANK BECOME A DEBTOR?- Two recent cases sharply illustrate the divergence of judicial opinion regarding the liabilities of a bank that has collected paper for another. In one instance the collection was made before the insolvency of the collecting bank, and after insolvency the latter was held a trustee for the amount collected. Winstandley v. Second Bank of Louisville, 41 N. E. Rep. 956 (Ind.). In the other case the collection was made after insolvency, but before assignment, and the collecting bank was held a debtor. Sayles v. Cox, 32 S. W. Rep. 626 (Tenn.).


'The Indiana court assumes that the collecting bank was a trustee, and devotes itself chiefly to the discussion of whether the trust fund can be traced into the bank assets. This assumption seems erroneous. The ordinary understanding and usage between banks and their customers, when notes are indorsed to a bank for collection, is not that the bank is to keep separate the proceeds and remit them in specie, but that they are to be turned into the general funds of the bank, which then becomes liable for the amount either by a check to the customer, or a draft in his favor upon some third person. Such being the usual understanding, it is just to hold, in the language of the Massachusetts Supreme Court, that one who collects commercial paper through the agency of banks must be held to impliedly contract that the business may be done according to their well known usages, so far as to permit the money collected to be mingled with the funds of the collecting bank." Freeman's Bank v. National Tube Co., 151 Mass. 413. As pointed out in Tinkham v. Heyworth, 31 Ill. 519, banks charge no fee for holding money collected, except the right to use it until it is demanded, and if they are not to be allowed to exercise this, they must be entitled to compensation as safety deposit companies for moneys collected, an idea not apt to enlist commercial favor. Certainly all arguments based upon commercial convenience and usage support the view that after collection the collecting bank should be considered a debtor, and if it becomes insolvent before the customer has been paid the latter must come in with the other general creditors. Nothing in this, of course, prevents a collecting bank from making itself a trustee by special understanding with its customer, as in Bank v. Weems, 69 Tex. 489.

The Tennessee case errs in the opposite direction. When the officers of a bank know it to be insolvent at the time they accept the paper for collection, it is a fraud upon its customer for the bank to take the proceeds in exchange for its own liability, and after collection they should be treated as trust property for the customer's benefit. Somerville v. Beal, 49 Fed. Rep. 790; Fockusch v. Towsey, 51 Tex. 129.




Held, under a policy insuring "against the loss of the money value of his time," a recovery may be had for time actually lost, though the employer of the insured continued his pay during his dis ability. Globe Acc. Ins. Co. v. Helwig, 41 N. E. Rep. 976 (Ind.).

Whether or not an ordinary accident policy is a contract of indemnity, there can be no doubt that the court was right in assuming this particular one to be of that nature. As to the question of loss to the plaintiff when his employer had continued his wages,

it would seem to turn on whether the amount received was derived from the enforcement of a legal right, or was a pure gift. Proceeding on the latter assumption, as the court did, the decision is sound, but the former case might easily arise, as, for instance, by the temporary illness of a school teacher.

ADMIRALTY SUBJECT MATTER OF SALVAGE-GAS FLOAT IN A RIVER. — A float, fifty feet long, with ends shaped like the bow of a vessel, but without mast or rudder, was moored in a river as a beacon. It contained a gas cylinder, the light being fixed on a structure fifty feet high, the gas supplying it continuously for six weeks. No one was stationed upon the float, which went adrift, and was secured by the plaintiff, who assisted the Trinity yacht in getting it off. Held, the float was not subject matter of salvage. Gas Float Whitton, No. 2, 12 The Times Law Rep. 109.

The opinion emphasizes the point that jurisdiction as to salvage is limited to claims for services to a ship, her equipment, cargo, etc. And the term "ship" is to be used only in the ordinary meaning among those conversant with shipping business. A more liberal construction seems to have been placed upon the word in The Mac, L. R. 7 Pro. Div. 127, where a hopper barge was held subject of salvage. Certain passages in the opinions in the latter case might well justify the position taken by the respondents in the present appeal. In America the cases conflict upon both points. A Raft of Spars, Abb. Adm. Rep. 485; Fifty Thousand Feet of Timber, 2 Lowell, 64, and Bywater v. A Raft of Piles, 42 Fed. Rep. 917, hold the articles named subject to salvage, though of course not to be defined as "ships." Tome v. Four Cribs, Taney's Dec. 533, and the English case of Palmer v. Rouse, 3 H. & N. 505, are apparently contra, though perhaps affected by custom or statute. Cope v. Valette Co., 119 U. S. 625, held, that the District Court had no jurisdiction over the salvage of a floating dry dock, and the court seems to incline to the strict definition of the principal case, though noticing (p. 630), without comment, the conflict of authority in regard to timber. But perhaps, as is said in 42 Fed. Rep. 917, the cases vary so widely in their circumstances that all of the decisions may be reconcilable, though not without infringing upon the strict rule laid down in the principal case.

AGENCY-VICE-PRINCIPAL BECOMES FELLOW SERVANT WHEN.— Plaintiff's intestate was killed while engaged in a work in which the foreman of the shop was assisting him. It was no part of the business of the foreman to assist the deceased. Held, the foreman was a fellow servant of the deceased, not a vice-principal, by virtue of their being engaged upon the same work. Hartford v. No. Pac. R. R., 64 N. W. Rep. 1033 (Wis.).

The decisions on this point are numerous and there is some conflict in the results reached, but since Railroad Co. v. Baugh, 149 U. S. 368, the doctrine of the principal case has been pretty well established. Hanna v. Granger, 28 Atl. Rep. 659 (R. I.), is a recent well considered decision in accord.

CARRIERS LIABILITY OF A RAILWAY COMPANY For a Tort oF ITS SERVANT. - Plaintiff's intestate was shot by the depot agent of the defendant railway for abusive language. Deceased had called to receive his baggage, and, having been given receipts for it, was stepping out of the door when he was hit by the bullet. Held, a finding by the jury that the agent was acting within his employment so as to render the railway company liable will not be disturbed. Daniel v. Petersburgh Ry. Co., 23 S. E. Rep. 327 (N. C.).

The case is a close one. The trial court might have been justified in ordering a contrary finding, on the ground that the agent was acting from a sole motive, and that his employment as regarded the decedent had ceased. As to such action by the trial judge, it is interesting to compare the case with McGilvray v. West End St. Ry., 164 Mass. 122, deciding that a street railway company is not liable for an assault by a conductor on a person who had just alighted from the car outside the car-house. If the decision of the majority of the court is not open to exception in the principal case, the language of the concurring judge is, as he seems to put the liability on the ground of common carrier, regardless of whether or not the agent was acting at the time in the course of his employment. Does a railway company owe the duty of insurer to a man on its premises in decedent's position? Surely not. The contract of carriage was at an end.

CARRIERS SLEEPING CAR COMPANIES LIABILITY FOR MONEY LOST BY PASSENGER.- The plaintiff sues the Pullman Company for a sum of money lost at night while he was a passenger on one of its cars. Held, the company's duty is to maintain such a watch " as may be reasonably necessary to secure the safety" of such of the passenger's goods as are properly in his possession as a traveller. If the loss occurs while the passenger is asleep, the burden is on the company to prove such case. Kates v. P. P. C. Co., 23 S. E. Rep. 186 (Ga.).

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