enough to justify the conclusion in Broom's Maxims, as a result of ancient and modern authorities, that with regard to the sale of ascertained chattels, there is not any implied warranty of title, unless there are circumstances beyond the mere fact of sale from which it may be implied." opinion are very strong. There was certainly maxim was bound to become the exception and not the rule. Judicial opinion was bound to recognize that the contract of sale from its very nature implied that the seller sold "as his own," for the only alternative was to say that the average buyer intended to get, not the article, but a chance a gambling risk- -a lawsuit. The recognition came fifteen years later in the case of Eicholz v. Bannister (17 C. B. R. n. s. 705). To be sure all that the facts of the case required was a declaration that where the seller is a job warehouseman he impliedly warrants the title to the lots sold unless the contrary appear. But Erle, C. J., met the issue squarely. "In almost all the transactions of sale in common life," he wrote, "the seller, by the very act of selling, holds out to the buyer that he is the owner of the article he offers for sale. The sale of a chattel is the strongest act of dominion that is incidental to ownership. A purchaser, under ordinary circumstances, would naturally be led to the conclusion that, by offering an article for sale, the seller affirms that he has title to sell, and that the buyer may enjoy that Meanwhile, however, English jurisprudence had been undergoing a decided development. Equity had exerted a broadening influence over the whole fabric of the law. With the disappearance of the market overt, a demand for the protection of the buyer arose. The old theory that the purchaser of a bad title was in some way guilty of contributory negligence was almost always contrary to fact. Moreover, a key that would reopen most inequitable transactions had been discovered in the theory of quasi-contract, and relief.was now allowed where money was paid under a mistake of fact, and which ex aequo et bono, ought not to be retained. This new principle and the old rule of caveat emptor could not stand together in the same room. The first case in which the doctrine can fairly be for which he parts with his money." Isaid to have come before the court was Morley v. Thus died a time-honored principle by the hand of Attenborough (3 Ex. R. 500), in 1849. Certainly a clearer-eyed justice. It required but an official at the argument the sole question raised by counsel statement to make the close of the chapter formal. The statement was was, in the words of the plaintiff's attorney, given by Stephen, J., in "whether, on the sale of a personal chattel, the law Raphael v. Burt (C. & E. 325 [1884]). The transimplies a warranty by the vendor that he has good action was a sale of United States bonds by the detitle to the thing sold." Baron Parke leaves no fendant to the plaintiff, in good faith and in the doubt but that his opinion was strongly in the common course of business. The bonds, however, negative. He repeatedly declares that under Eng- had been stolen, and the rightful owner claimed lish authorities there is no implied warranty on them of the plaintiff. The latter then sued the dethe sale of goods." Whether this was intended as fendant for the purchase-price. The court upheld the his decision it would be hard to say. A portion of suit. "A sale of chattels," it said, quoting Mr. the opinion is, however, rested on the particular Benjamin, "implies an affirmation by the vendor facts of the case, which were briefly an auction sale, that the chattel is his, and, therefore, he warrants by a pawnbroker of an unredeemed pledge to a party the title, unless it be shown by the facts and cirwho understood the nature of the bargain. Under cumstances of the sale that the vendor did not insuch circumstances, the court said that "it appears tend to assert ownership, but only to transfer such unreasonable to consider the pawnbroker as under- interest as he might have in the chattels sold." "It that the words taking anything more than that the subject of sale appears," continues the opinion, is a pledge and irredeemable, and that he is not cog-personal chattels' are too narrow, and that the nizant of any defect of title to it." Baron Parke, principle will apply equally to all sales of personal however, made two compromising admissions. The property, including such instruments as these now first was that with respect to executory contracts, in question." Thus both in maxim and in practice where the subject is unascertained, "it would prob- the rule so squarely put by the early commentators ably be implied that both parties meant a good title was pared away into the exception, and what was should be transferred." The second was that, "if then an exception was elevated into the rule. articles are bought in a shop professedly carried on for the sale of goods, the shopkeeper must be considered as warranting a good title. In such a case -and this is the important point "the vendor sells as his own, and that is what is equivalent to a warranty of title." This dictum rang the death-knell of the old common-law theory of caveat emptor in titles to personalty. The moment it was made clear that the test of an implied warranty was whether the vendor sells as his own," and whether he did or not depended on whether it was reasonable to suppose that he did, then in practice Coke's old In America this slow development was not found necessary. Early in the century, Kent (2 Com. 478) wrote: "If the seller has possession of the article, and he sells as his own, and not as agent for another, he is understood to warrant the title." It is true that the English authorities, to which he refers, do not, save for a vague passage in Blackstone, sustain him. But from that day to this the American courts have not deviated from the principle the great chancellor then announced. In Coolidge v. Brigham (1 Met. 551) Wilde, J., says: "The vendor in possession is always understood to affirm that the property he sells is his own. This rule of law is well established, and does not trench unreasonably upon the rule of the common law, caveat emptor." Of the basis on which this principle is rested there can be no doubt. "Possession of personal property implies title" (Burt v. Dewey, 40 N. Y. 283). Again, in Hoe v. Sanborn (21 N. Y. 556), "The vendor knows the source from which his title is obtained, and has, therefore, means of judging of its validity which the purchaser cannot be supposed to have. Hence it is the doctrine, both of the civil and the common law, that every vendor impliedly warrants that he has the title to what he assumes to sell." Of course such an implication will not be made when the facts show that the vendor "did not intend to assert ownership in himself, but simply to transfer such interest or title as he has (Cohn v. Ammidown, 120 N. Y. 398). Such would be the conclusion when the buyer has equal opportunity with the vendor of investigating the title, as in the sale by a pawnbroker of an unredeemed pledge, or by a seller in an official capacity. The ordinary presumption, also, would be negatived where the seller is an owner of only a limited interest, such as an administrator, an executor, a trustee or an assignee in bankruptcy, in which the character of the sales and the objects for which they are made, are well known to the purchaser. An auctioneer, who sells as agent for a disclosed principal, is probably entitled to exemption for himself. But if he fail to tell for whom he is selling, he contracts personally, and if "the property is afterwards claimed by a superior title, the purchaser may, in an action for money had and received, recover the purchase-price from the auctioneer" (Seemuller v. Fuchs, 64 Md. 217). CHARLES HENRY TUTTLE. 6 WEST 82D STREET, NEW YORK CITY. Notes of Cases. Common Carriers Rights of Passengers to Carry Small Parcels in Passenger Cars.-The decision of the Court of Errors and Appeals of New Jersey in Runyan v. Central R. R. of N. J., presents the latest phase of a litigation which has been many times before the New Jersey appellate courts. It was held that the evidence of usage presented was sufficient to support a verdict that the defendant company, a common carrier, had adopted a rule that passengers might carry with them in the passenger cars small parcels of merchandise belonging to them, and that a notice that passengers would not be allowed to act as express messengers was not inconsistent with such rule. It was further held that when a person has purchased a legal right to enter as a passenger the train of a common carrier, but is notified by an agent of the carrier that his right is denied, he may nevertheless make reasonable efforts bona fide to exercise his right, and physical resistance interposed by the carrier's agents to such efforts will constitute a tort, and in an action therefor the indignity, as well as the personal violence, may be considered by the jury as an element of compensatory damages. The court said in part: Numerous witnesses testified that for many years past passengers had been in the habit of taking into the cars, and keeping near them throughout their journey, all sorts of merchandise, sometimes in closed packages, sometimes in open receptacles, and sometimes entirely uncovered, and that this common practice was never interfered with by the agents of the company, unless the articles were so bulky as to incommode other persons. This evidence formed a legal basis for an inference that the practice was known, not merely by the station and train men, but also by those to whom they were responsible, the officers and directors of the corporation, that the practice had the sanction of the company, and that the regulation relied on by the plaintiff really existed. Secondly, the defendant insists that notice of the rescission of this regulation was given to the plaintiff. But we think the testimony afforded no evidence of such rescission. The matter proved was that the plaintiff, and perhaps the public, were notified that persons would not be allowed to use the passenger cars for the purpose of carrying on an express business, but no attempt was made to interfere with the common practice of passengers in possession of their own parcels. The objection to the plaintiff's entrance upon the cars arose wholly from a false suspicion that he was acting as an express messenger, a suspicion which he tried to dispel by repeated assertions that the packages were his own, and that he was acting for himself only, as at the trial the fact appeared to have been. * Fifthly, it is objected that the judge refused to charge the following request: "The racks which were placed in the cars being shown to have been made and used for personal baggage, no presumption arises that the company thereby invited their use for the carrying of merchandise." The evidence did not show that these racks were used for personal small packages of merchandise was one of the cirbaggage exclusively, and their common use for cumstances from which the plaintiff sought to have an inference drawn that they were provided for such packages as well as for baggage. But there were and a judge is not required to charge whether part other circumstances to support such an inference, of a group of incidents adduced to prove a fact is alone sufficient to establish the fact (Traction Co. v. Chenowith, 61 N. J. Law, 554, 39 Atl. 1067). 66 track, where danger from the cars still threatened her, rolled from the track, and in doing so was carried down an embankment, was guilty of contributory negligence, was a question for the jury. It was further held that the allegation of a complaint that plaintiff, a passenger on a train, in her effort to escape the danger of a threatened collision, was thrown on the track and injured," is supported by evidence that she jumped from the train, and, falling face down on the track, where aanger from the cars still threatened her, she rolled from the track and down an embankment, as all this may be grouped as a single act, especially where it went to the jury without objection that it was not within the pleadings. The court said, in part: "This is an action to recover damages for personal injuries. Defendant appeals from the judgment and order denying a motion for a new trial. Defendant was engaged in the lumber business and in connection therewith operated a railroad. Plaintiff was a passenger upon this railroad, traveling from the town of Scotia to Alton. The railroad was a single-track road, and between these two points, while the train was going at the rate of eight or ten miles an hour, an approaching freight train disclosed itself in front, a few hundred feet distant, as it emerged from around a curve. A collision seemed certain and the plaintiff, as well as others upon the train, escaped therefrom to the ground. In her efforts to escape the threatened danger she jumped or stepped from the train, fell upon the track and rolled down an embankment, suffering great personal injuries. Various questions are raised by this appeal upon the giving and refusing of certain instructions as to the law, and some rulings upon the admission and rejection of evidence are also assailed. It may be conceded that when the defendant attempted to operate two trains upon a single track at the same place and time, traveling in opposite directions, it was guilty of gross negligence. But defendant now insists that plaintiff was guilty of contributory negligence - first, in this, that if she had not jumped from the train she would not have been injured, and, ergo, she should not have jumped; and, second, that, after having jumped, she should not have fallen and rolled down the embankment. When a passenger upon one railroad train observes a second train upon the same track a few hundred feet distant, the two trains rapidly approaching each other, danger is right at his elbow, and it behooves him to do something and do it quickly. There is no time to enter into mental calculations, mathematical or otherwise, as to whether or not it is best to stand your ground, and trust to some avertment of the collision, or, upon the contrary, to escape from the scene of the danger at the quickest possible moment. And the law recognizes that under these circumstances a man may do the wrong thing, his act thereby resulting in an injury to himself, and yet not be held guilty of contributory negligence. This principle of law may be thus stated: 'If a railroad company so operates its trains as to place its passengers in situations apparently so dangerous and hazardous as to create in their minds a reasonable apprehension of peril and injury, and thereby excite their alarm and induce them to make efforts to escape, and if in such efforts to escape they receive personal injuries, it is responsible in damages for its negligence.' Under the circumstances of this case, tested by this principle of law, it was essentially a question of fact for the jury as to whether or not plaintiff was justified, in view of all the surrounding conditions, in jumping from the train. "The same principle of law may be invoked upon the second contention made as to contributory negligence. If the danger of collision is hanging right over a passenger's head, the proprieties and niceties usually demanded of passengers in alighting from trains certainly need not be observed to their full extent. Under those circumstances a person does not stand and ponder upon the order of his going, but goes at once. A safe or unsafe spot may be chosen upon which to alight from the cars. If the spot be unsafe and dangerous, that fact, of itself, will not necessarily defeat a right of recovery, even though a safe and secure spot was at hand, and equally ready of access. The plaintiff testifies that in jumping from the train she fell upon the track face downward; that danger still threatened her there as the cars were liable to pass over here, and in rolling from the track she was carried down the embankment. Certainly this court will not hold, as matter of law, that her acts, under the circumstances detailed, amount to contributory negligence." DISTURBING RELIGIOUS ASSEMBLIES. TH have decided questions as to the criminal liability of persons who misbehave themselves at religious meetings. It is no exaggeration to say that in some of these cases the conduct of the offenders was more indecorous and flagrant than has ever characterized a political meeting. Apropos of a recent case in Georgia, it is proposed to mention here a few of the cases in which it has been decided that a church-goer must not disregard the common proprieties that are usually insisted upon by society. WHERE are numerous cases in which the courts In Bice v. State (109 Ga. 117) the defendant was indicted under Penal Code (Ga. sec. 438), which prohibits any person from carrying to a church or other place where people have assembled for divine worship any liquor or intoxicating drink. To this mandatory provision of the statute certain exceptions are made in section 441, which provides that it shall not be unlawful to use intoxicating liquors at such places in case of accident or misfortune, and that practicing physicians may carry As regards the nature or character of the religious meeting which is entitled to the protection of the law against boisterous and disorderly persons, it may be said that the protection which the law throws around religious worshipers extends to all, irrespective of creed, opinion or mode of worship; and it has been accordingly held that where a person attends a meeting of the Salvation Army he must behave himself in a decorous manner. Hull v. State (120 Ind. 153), in which case the meeting was not conducted in the street, but in a hall, it was held that the defendant, upon being courteously requested to refrain from smoking a cigar and to remove his hat, was bound to do so. It has likewise been held that the disturbance of a camp-meeting is an indictable offense, and that a person who fires pistols in the neighborhood of a camp-meeting and otherwise makes night hideous and terifies the men, women and children who are attending the camp-meeting, is guilty of a criminal offense (Ball v. State, 67 Miss. 358). and use in such places such liquor as they may persists in disorderly conduct. The foregoing deem necessary in their regular practice. In the propositions are abundantly sustained by authority, above-mentioned case it appeared that the defend- and particularly by Wall v. Lee (34 N. Y. 141), in ant went to church carrying his wife in a buggy. which case it was said: "As the acknowledged "On arriving there he detached his mule and left presiding officer of the meeting, it is his duty to the buggy one or two hundred yards' distant from check all attempts to interrupt its order, quietness the church. He had some whiskey in a bottle, and solemnity, and for this purpose he unquestionwhich he left in his buggy when he and his wife ably has full power and authority to call upon went into the church building, where a religious others to aid him, or direct them to remove the meeting was in progress." Upon this state of offender. In this sense, therefore, he has a facts it was held that the defendant was guilty of greater right to enforce order and use force for violating the statute. The defense relied on by the that purpose than any other member of the accused was that his wife for two years had been congregation." 1 troubled with heart disease, and that a physician furnished him the whiskey and told him it was necessary to take it along for her. It does not seem to have been questioned that the defendant carried the liquor to church in good faith, and, under the circumstances set up by him, nor did it appear that the defendant or his wife drank or had drunk, any of the liquor, or that either of them was intoxicated or disorderly. Nevertheless, a judgment of conviction was affirmed. Although, on the facts stated, the case was a hard one, it would seem that it was correctly decided. Any other decision would have opened the door for evasions of the statute which would have rendered it nugatory. Said the court, per Little, J.: "The object of this provision of the law was to absolutely prevent the indulgence in intoxicating liquors at a church where people were assembled for worship, and such object would be defeated, if the provision were so construed as to permit persons to take such liquors to a point within one or two hundred yards of the church building, within ready reach of the thirsty. It was hardly contemplated that the statute would only be violated by taking the liquor into a church. Certainly its purpose was to preserve order and promote that decorous conduct on the part of those who attend the services which befit the occasion, and to absolutely prohibit the introduction into the assembly of an influence which might defeat these objects." In every congregation assembled for religious worship or any other meeting assembled for a law ful purpose there must necessarily exist the power to preserve order and to expel and remove by necessary force any person guilty of a disturbance of such meeting who shall persist in such disturbance so that it cannot be conducted in an orderly and proper manner, and it is not necessary that such disturbance should be wilful. If the person is guilty of disturbing the meeting and interrupting its order and decorum, the application of such force as may be necessary to remove him is justified. Ordinarily, or at least, very often, the duty of preserving the peace and maintaining order devolves upon the pastor or occupant of the pulpit. A minister has ample authority to preserve order and to rebuke all persons who are guilty of disorderly conduct pending the services, and he is empowered to put out of the church a person who In addition to what has been held as above mentioned, with reference to the firing of pistols, smoking cigars and refusal of a man to remove his hat, it has been declared that the striking of matches and lighting and smoking a pipe is such misbehavior as will subject the offender to punishment (Taff v. State, 90 Ga. 459). A person who goes to church and attends religious worship has no right, pending the service, to call the preacher or pastor to account for statements made by him in his sermon; and where a member of the congregation calls upon the pastor for an explanation of what he has said in his sermon, in such a way as to disturb the meeting, the pastor may put him out of the church (Wall v. Lee, 34 N. Y. 141). In State v. Linkhaw (69 N. Car. 214), the defendant was indicted for disturbing a religious congregation, and the evidence showed that the disturbance consisted in his way of singing so that at the end of each verse his voice was heard after all the other singers had ceased, and that he thereby excited mirth in one portion of the congregation and indignation in the other. The church members and authorities expostulated with him about his singing and the disturbance growing out of it, but he replied that he was merely worshiping God, and, in performance of his duty to worship God, was singing. Because of a stipulation between the The court was crowded to the door, religious services, it was held that he was guilty MAUD Muller. (WITH APOLOGIES.) Maud Muller, same old Maud again, And vowed she'd quit, and never more So she thought a while until she saw, So she dropped the rake and left the farm, Midst male attorneys of the bar, When at the court she'd plead a case, So she started in with an awful vim, And soon the news spread near and far, And it came to pass she got a case, Then she pondered some, for quite a while, But finally the day drew near, And argue, talk and intercede, And as the jury took its seat, And when the judge assumed the chair, He knew he had seen her some time ago, At last he recalled he had seen that face, But her costume was changed, she was stylish and And no longer she trod in her lovely bare feet. And these were his thoughts as the trial had Until the bright sun was well in the west. And as she so sweet at the jury would nod, And it set all his sensitive nerves so ajar, And at last when he started the jury to charge, Most harshly on poor little Maud did he pounce, announce, "Of all sad things, the saddest by far, Maud Muller, after that trial day. Of the New York Bar. 132 NASSAU STREET, NEW YORK CITY. |