LORD TENTERDEN'S ACT IN THE UNITED STATES, AND AN IMPORTANT OMISSION THEREFROM.

The provision of the statute of frauds, that no action shall be maintained "tc charge any person, upon any special promise, to answer for the debt, default, or miscarriage of another," unless the promise be in writing, was held in the case of Pasley v. Freeman,1 decided in 1789, not to apply to false and deceitful representations as to the credit or solvency of third persons. This case held that an action would lie against a defendant who orally made a false affirmation, or told a lie, respecting the credit of a third person, with intent to deceive, by which the third person suffered damage. The doctrine of the case commends itself as a firm stand taken by the courts against actual frauds, but it came dangerously near to an invasion of the statute intended to prevent them. To remedy this, parliament, in the year 1828, enacted what is commonly known as Lord Tenterden's Act, providing that "No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money or goods upon credit, unless such representation be in writing, signed by the party to be charged therewith." The object of the statute was to put representations in mercantile cases upon the same footing with guarantees. This statute has been widely adopted in this country. In 1834 the state of Massachusetts enacted a similar law,3 worded as follows: "No action shall be maintained to charge any person by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such person may obtain credit, money or goods thereupon, unless such representation or assurance be made in writing and signed by the party to be charged thereby." Two years later, in 1836, the Massachusetts statutes were revised and the words

13 T. R. 51.

29 Geo. IV, ch. 14, § 4. 3 Acts 1834, ch. 182, § 5.

The

"to the intent or purpose that such person may obtain credit, money or goods thereupon" were omitted. Concerning this omission, the Supreme Court of Massachusetts said in Medbury v. Watson:5 "The 3rd section of ch. 74 of the revised statutes varies from it (the original enactment) in this respect, by omitting the words 'to the intent or purpose that such person may obtain credit, money or goods thereupon.' motive for leaving out the clause contained in the statute of 1834 is not obvious; and as no reason for doing it is assigned by the learned commissioners, in their report, we presume they considered the clause superfluous, and therefore omitted it. We are of opinion that both sections are to receive the same construction, and consequently that a fraudulent representation, not affecting the title of a third person to credit, is not within the statute, and need not therefore be in writing." In a recent case the Supreme Court of Massachusetts affirmed this construction of the statute. The interesting and peculiar feature of the situation is this: Many of the states of the union, which have adopted a similar provision, have copied it from the Massachusetts statute, evidently from the revision of 1836, instead of from the original enactment of 1834, and have likewise omitted the clause "to the intent," etc.

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It is a well recognized canon of construction that where a particular statute has been adopted in one state from the statutes of another, after a judicial construction has been given it in such last mentioned state, it is but just to regard the construction as having been adopted, as well as the words.7 In fact, it was said in Coulter v. Stafford, concerning a statute of the state of Washington, which was substantially a copy of one from Wisconsin, that "in adopting a statute of Wisconsin after it had been construed by the decisions of the highest court of that state, it must be conclusively presumed that the legislature intended to adopt the decisions expounding it as well as the letter of the law." The statute in question, as copied in the revision of 1836, was first construed by the

4 Mass. R. 8. 1836, p. 472, ch. 74, § 3.

5 47 Mass. (6 Metc.) 246.

6 Stannard v. Kingsbury, 179 Mass. 174.

7 Cooley, Const. Lim. (6th Ed.) 66; McDonald v Hovey, 110 U. S. 619, 628.

8 48 Fed. Rep. 266, 270.

courts of Massachusetts in September, 1843, in the case of Medbury v. Watson, supra. It would seem reasonable that those states which have enacted the statute since that date should be bound by the decision of this case, under the rule of construction just referred to." But there were several states which adopted this statute from Massachusetts before its construction, and it presents a nice question whether the subsequent construction should be followed in these states. It was held in Myers v. McGavock10 that "the rule that when one state adopts the statutes of another that it thereby adopts the construction placed on such statute by the highest court of the state from which it is taken, has no application when such construction is not placed on the statute until after its adoption," and the Nebraska court refused to adopt the subsequent construction in Wisconsin, principally, however, on the ground that Wisconsin had since overruled its own construction of the statute. This case was hardly intended to stand for the doctrine that when a state copies a statute from another it cannot adopt the construction subsequent to such adoption, should that construction seem the better one. It was said by the Supreme Court of the United States in Hardenbergh v. Ray,11 in which case a statute of Missouri had been adopted in Oregon, that "the construction which the Supreme Court of the state of Missouri has thus given to its statute since its first adoption thereof does not have the same controlling effect it would have if the decisions had been rendered before such adoption, still, they are strongly persuasive of the proper interpretation of the act, and have been so regarded by the courts of Oregon, which have clearly indicated that the statute of wills of that state should receive the same construction which has been placed thereon by the Missouri decisions." While the construction of the original statute after its adoption in another state is by no means binding on the latter, yet if it be reasonable and just it will be given due credence. The states which adopted the statute under consideration prior to its judicial construction are

9 Missouri R. S. 1899, § 3422 (adopted March 15, 1845); Utah R. S. 1898, § 2468; California Code 1876, § 11974. In Utah and California, while the clause omitted, the statute is worded differently from that of Massachusetts, being a copy in substance only.

10 39 Neb. 843, 863.

11 151 U. S. 112, 123.

Michigan, Vermont, Maine and Indiana.12 The state of Maine has construed this statute, with the clause "to the intent," etc., omitted, in Hunter v. Randal, 13 following the Massachusetts construction, and holding that "the statute was evidently intended to bar only actions for verbal representations, made with the intent that the person concerning whom they are made may obtain credit, money or goods thereupon." In the case of Cook v. Churchman, 14 the Supreme Court of Indiana, in a very able opinion, also construed the statute. The court had before it the case of Medbury v. Watson, supra, pointing out the error made in Massachusetts, and while the Indiana court did not expressly refer to the cause of the omission, it followed the construction laid down in Massachusetts. It said: "The statute we are now considering is in all respects the equivalent of what is commonly known as Lord Tenterden's Act." Further: "The question of liability must be determined by the inquiry, where the representations made concerning the character, ability, etc., of ‘any other person,' with the intent that the person concerning whom they were made should obtain goods on credit thereby?"

เ

The above case has been thus cited in Heintz v. Mueller:15 While the statute in the form in which it has been enacted in this state does not expressly require that the representations be made with a particular intent, it is held in Cook v. Churchman, that our statute is in all respects the equivalent of Lord Tenterden's act, and it is said that one of the tests, whether a case is within the statute or not, is whether the representations were made with the purpose to establish the credit or pecuniary ability of another." The question has never arisen in Vermont or Michigan, and it is speculative whether these states would follow the Massachusetts construction, as Maine and Indiana have done. All doubts on the subject could easily be removed if each of these states would at a subsequent session of their legislatures incorporate in the statute the omitted clause. A number of the states 16 have enacted this

12 Michigan R. S. 1838, p. 330, § 5; Vermont R. S. 1839, ch. 61, § 3; Maine R. S. 1841, ch. 136, § 3; Indiana R. S. 1843, ch. 33, § 7.

13 62 Me. 423, 427.

14 104 Ind. 141.,

15 19 Ind. App. 240, 246.

16 Kentucky R. S. 1899, § 470; West Virginia Code

The best evidence of a world advancement in the domain of morality and intelligence, would be the organization of an international court of arbitration, whose opinions and judgments would be sustained and enforced by the public opinion of the world. It would be to national and international peace and order, what the courts of justice now are to the order and welfare of the domestic relations of peoples in civilized nations. One of the greatest blessings of established courts and codes of procedure in the settlement of disputes and the punishment of wrongs is the fact that they secure the peaceable settlement of such controversies, and thus avoid the waste and spreading disorders that follow the attempt of men to settle them by force and strong right arms. An active participation of over thirty years as a lawyer in the trial of cases in the courts convinces me, that is at last, the greatest merit of our judicial systems and administration of justice. It is doubtful whether actual natural justice is done in half the cases tried. But a decision is reached that is accepted by all concerned, and that alone is a great benefit to the parties and society in general. And while engaged in the contest of the trial the parties are under the eyes of the officers and judges of the law, restrained by their influence, and thus taught the necessity and the benefits of modertion and peaceable proceedings and methods. A personal combat between two or more persons disturbs the individual and domestic peace and tranquillity; the participants violate the peace and the law, and at last do nothing but make a test of force that in fact and law set

tles nothing. War between two or more nations violates the peace of the world and does civilization an actual injury by its scenes, examples and suggestions, and really settles nothing but the question of force and violence. When one or both of the combatants have so exhausted their energies that they are compelled to cease hostilities, they are compelled at last to recur to reason and common sense, to bear and forbear, to make a treaty of amity and peace. Ten to one, from the standpoint of real right and wrong and real material interests, each of them has more grievances and causes of war against each other, if there really are any such causes, than they had before they came together in actual hostilities. And from every humane and philosophic standpoint the obligation of nations to estab

Six

lish and maintain a court of arbitration of national differences by peaceable methods, to avoid national wars and to maintain international peace, is a thousand-fold greater than that of individuals in the same regard. to ten of the principal nations of the world could by international agreement organize a court of arbitration whose opinions would receive substantial obedience in the civilized world.

First, its jurisdiction should be carefully and legally defined; and the character of the disputes and controversies carefully outlined upon which its jurisdiction should be exercised.

Second, the manner of choosing, the qualification and personnel of the court, should be carefully defined. The court should be composed of about thirty-three members from the greatest lay jurists of the nations interested and for certain terms, so that no suspicion could arise in any case of packing the court to secure predetermined opinions.

Third, the manner of commencing proceedings before it and calling its jurisdiction into exercise, should be plainly and carefully outlined in the mode of impleading and summoning a party or parties to answer specific complaints.

Fourth, this would necessitate the forming of a plain and simple code of pleadings to be used before the court. There should be first a plain, precise complaint, stating the facts that constitute the matters of grievance. Next, an answer plainly admitting or denying or confessing the facts stated in the complaint

and stating any other facts that in the opinion of the defendant under international law and the jurisdiction of the court would constitute an excuse and defense to the facts stated in the complaint. Last a reply on the part of the complainant to be governed by the same rules as the answer. Either party of course at any stage of the pleadings to have the right to take the judgment of the court as to questions of jurisdiction and whether a given state of facts in a pleading stated such a cause of action as came within its jurisdiction.

Fifth, the manner and nature of proofs when called for the order in proceedings and arguments of counsel. The number of judges to make a quorum and to concur in an opinion to make it binding.

Sixth, the nature and extent and effect of the judgments that the court may pronounce upon the parties and matters in controversy.

In a word, a plain simple code of procedure to be applied to the conduct of controversies before the tribunal. The late Portsmouth Treaty between Russia and Japan in the midst of an awfully destructive war, that decided momentous national interests for both combatants and involved vast disappointment to the administration of each country; that too when both armies in the field were rested, recruited and demanding another chance at the awful game of war, demonstrates that as many as six of the greatest nations of the modern world by mutual international agreement, can organize an international tribunal, whose opinions and judgments could not and would not long be resisted by any power or powers. The court should be composed by choosing the greatest lay jurists of the nations interested, none of them to be related to any of the reigning families or executives of any of the nations interested. All national parties should have the right to go before the court with any matter of national difference, they think comes in the pale of its jurisdiction. The terms on which other sovereignties might enter and become parties to the treaty should be clearly defined. Ample provision should also be made for those sovereignties not members to submit their matters of dif- ference, no matter what they might be, to the court. It would be a new era in the history of the world. The other nations would soon ask to become parties to the treaty for the protection of its moral influence. And when

them to give by

once it had become established and inspired confidence it would lead to an actual world disarmment. The most difficult question to deal with will be found, that of the so-called colonies or dependencies of the great nations. A safe and perhaps satisfactory basis of agreement on that part of the subject would be, that no dependency or colony should have the right to file its complaint against its principal government, unless with its permission; or unless the contest and hostilities between the dependency and principal government, reached such proportions and involved such interest as in the judgment of the court to dis urb the international peace and to invite its intervention. That to that end the authorities of a dependency should have the right at any reasonable time to file complaint, to test the judgment of the court as to its jurisdiction on that subject. It seems that the modern sense of justice and charity of the great nations would lead agreement or rule an opportunity to any such considerable people of its citizens or subjects, such as a dependency, the right to state its grievances in an orderly and legal way before a tribunal of such men. Of course no nation could or would bind itself to modify its constitution or laws at the opinion or suggestion of the court except in special instances, in which for the sake of peace, with one or more of its dependencies, it agreed to submit some matter of that nature to the court. It would be found in practice to be a great source of consolation like a safety valve and oil on the troubled waters, to any such people feeling themselves aggrieved to have the right to thus state their complaints to the world and take its opinion. War is no more nor less than a return in so much to savagery; it is an evidence that the parties engaged in it have not attained the mind plane that enables them to direct their material interests and relations without an appeal to mere animal force. It is an admission in plain terms that the contestants are below that state and condition. As in every other instance in such case when men individually or collectively discard their better sense and mind power and submit to be led by ignorant resentment or any other uncontrolled passion, both must suffer the consequences. It seems that six or ten of the greater nations of the world to-day might rise to that plane.

Supreme Court of Alabama, February 9, 1905.

In an action against a connecting carrier for injuries to goods, contributory negligence of the shipper in loading the goods on the car of the initial carrier was no defence.

Where, in a suit against a connecting carrier for injuries to goods, the carrier filed a plea of contribu tory negligence, an amendment thereto, denying that the goods were injured or damaged while in the defendant's possession, was repugnant to and inconsistent with the admission of defendant's negligence, implied in the allegation that plaintiff's negligence contributed to the injury.

Where plaintiff shipped household goods over a route consisting of several connecting carriers, under a bill of lading limiting the liability of each to negligence occurring on its own line, the discharging or delivering carrier was only liable for injuries to the property occurring on its line, or while the goods were in its possession.

Where, in a suit against a connecting carrier for injuries to goods, there was evidence that the defendant was the discharging or delivering carrier, and that the goods were received in a damaged condition, though delivered for shipment in good condition, the burden was on the defendant to show that the goods were not injured while in its possession, but were delivered in the same condition they were received from its connecting carrier, though the shipment was made under a contract limiting the liability of each carrier to injuries occurring on its own line.

Where a shipment containing household goods, some of which belonged to a husband and wife, some to the husband, and others to the wife, were all consigned to the husband at the point of destination, he had capacity to sue for injuries to the entire shipment, though he was not the absolute owner of all the property.

The complaint originally filed contained only one count, which was in words and figures as follows: (1) The plaintiff claims of the defendant the sum of $1,000 damages, for that, whereas, on, to wit, the 19th day of October, 1901, the plaintiff delivered to New York Central & Hudson River Railroad Company, at Syracuse, in the state of New York, a lot of household goods, to be carried to Ensley, Ala., and there delivered to the plaintiff. Said household goods were delivered to and received by the defendant, and by the defendant carried to said Ensley. The defendant received said household goods as a common carrier, and as a connecting carrier on the route between said Syracuse and said Ensley, to be delivered to the plaintiff at said Ensley for reward. Said defendant did not safely carry and deliver said household goods, as it was its duty to do, but on the contrary, conducted itself so carelessly in and about carrying, transporting, and delivering the same that said household

goods were damaged, broken, destroyed, injured, and rendered valueless to the plaintiff, to the damage of the plaintiff and in the sum of $1,000, which amount to recover he brings this suit.” The complaint was amended by adding two other counts, which were in words and figures as follows: "(2) The plaintiff claims of the defendant the sum of $1,000 as damages, for that on, to wit, the 19th day of October, 1901, the defendant was a common carrier, and defendant has ever since said date been such common carrier, and that on, to wit, the said 19th day of October, 1901, the plaintiff delivered to the New York Central & Hudson River Railroad Company, at Syracuse, in the state of New York, a lot of household goods, to be carried to Ensley, Ala., and there delivered to plaintiff, and the defendant, as a common carrier aforesaid, operating a connecting line of railway on the route from Syracuse, N. Y., to Ensley, Ala., received the said goods, and undertook to deliver the same to the plaintiff at Ensley, Ala., for a reward. And the plaintiff avers that the defendant did not deliver said goods to the plaintiff in good or proper condition, or in the condition they were in when received by it, but that said goods, when delivered to plaintiff, were badly broken, injured, and damaged, and a large part thereof rendered wholly unfit for use, and the plaintiff was damaged thereby to the amount above claimed."

To the second count of the complaint the defendant demurred upon the following grounds: "(1) Said count does not aver or show that the goods of the plaintiff were in good condition when delivered to the New York Central & Hudson River Railroad Company. (2) Said count does not aver or show that the goods of the plaintiff were in good condition when received by the defendant as a connecting or delivering carrier. (3) Said count does not aver or show that the goods were injured or damaged or broken while in possession or under the control of the defendant. (4) Said count does not aver or show that defendant, or any of its agents or servants, in any way injured or damaged the goods of plaintiff." These demurrers were sustained.

The defendant pleaded the general issue, and assigned special pleas numbered 3 and 4. The substance of the third plea, as originally filed and as amended, is sufficiently shown in the opinion. The fourth plea, as amended was in words and figures as follows: "(4) That the car in which the plaintiff's goods were transported was received by the defendant from the Southern Railway Company at Chattanooga, in the state of Tennessee, closed and sealed, and remained closed and sealed from the time of its reception to the time of its delivery to the plaint iff at Ensley; and the defendant avers that the contents of said car could not be seen by the defendant without its breaking the seal and opening the car; and the defendant further avers that the condition of the contents of said car was not