104. JUDGMENT-Construction. - Where the construction of a will could have been settled with only the original parties before the court, the decrce would not have been binding, as res judicata, on proper parties not brouggt in. Katzenberger v. Weaver, Tenn., 75 S. W. Rep. 937. 105. JUDGMENT-False Allegation.-Where judgment is rendered on default without notice to defendant, a false allegation by plaintiff of a material fact is a fraud on the court.-Tremblay v. Ætna Life Ins. Co., Me., 55 Atl. Rep. 509. 106. JUDGMENT-Motion to Set Aside. - The remedy of a party desiring to be relieved from his stipulation, pursuant to which an interlocutory judgment was entered, held to be by motion to set aside the judgment. - - Aronson v. Sire, 83 N. Y. Supp. 362. 107. LANDLORD AND TENANT - Dangerous Premises.That an owner surrendered leased premises to his lessee will not relieve him of liability to third persons, where the premises were at the time in a condition dangerous to the public.-Isham v. Broderick, Minn., 95 N. W. Rep. 224. 108. LARCENY Appropriation of Public Property. New York city physician, charging and collecting for free antitoxin furnished him for a poor patient, held guilty of larceny.-People v. Lavin, 83 N. Y. Supp. 630. 109. LICENSES-Money Lenders.-Placing money lenders on personal property in a class different from banks for license taxing held not unconstitutional.-Cowort v. City Council of Greenville, S. Car., 45 S. E. Rep. 122. 110. LIFE INSURANCE-Assignment.-An assignment of a life policy, executed in accordance with its terms by the insured and the only beneficiary, vests the assignee with the entire legal interest. Tremblay v. Etna Life Ins. Co., Me., 55 Atl. Rep. 509. 114. LIMITATION OF ACTIONS — - Ejectment. The two years within which to bring a second action in ejectment held to begin to run from date of nonsuit in first action.-Richardson v. Riley, S. Car., 45 S. E. Rep. 104. 115. MANDAMUS Proceedings. -Mandamus to enforce a judgment on municipal bonds held not a new suit against taxpayers, but a substitute for execution. Kinney v. Eastern Trust and Banking Co., U. S. C. C. of App., Sixth Circuit, 123 Fed. Rep. 297. 116. MASTER AND SERVANT- Contributory Negligence. -The fact that dynamite might explode on an attempt to force it into a hole too small for its admittance held not a matter of scientific knowledge, so as to relieve servant so handling it from charge of contributory negligence.-Kopf v. Monroe Stone Co., Mich., 95 N. W. Rep. 119. MINES AND MINERALS-Contract for Sale of Claim. -A contract for the sale of a mining claim construed, and the vendor held to have fully complied therewith to entitle him to recover the purchase money. - Griffin v. American Gold Min. Co., U. S. C. C. of App., Ninth Circuit, 123 Fed. Rep. 283. 120. MORTGAGES-Notice.-Possession by the purchaser of part of mortgaged lands is not notice to an assignee of the mortgage of release of such land therefrom.Gibson v. Thomas, 83 N. Y. Supp. 552. 121. MORTGAGES Priority. - A second mortgagee, without notice of a prior unrecorded mortgage, is not a mortgagee for a valuable consideration, within the recording act, if the purpose of the mortgage is to secure an antecedent debt. O'Brien v. Fleckenstein, 83 N. Y. Supp. 499. 122. MOTIONS-Trial. Where a preliminary motion is heard before the cause is heard on its merits, the court can announce its decision in a separate order or embody it in the decree. - Halk v. Stoddard, S. Car., 45 S. E. Rep. 140. 123. MUNICIPAL CORPORATIONS-Bankruptcy.-Where, after discharge in bankruptcy on an offer by the debtor to pay the original obligation in installments, the creditor insists on payment of the whole amount, the debt is not revived. - International Harvester Co. v. Lyman, Minn., 96 N. W. Rep. 87. 124. MUNICIPAL CORPORATIONS Right to Examine Books. That a person making application for examination of the books of a city is politically hostile to the city administration is no excuse for refusing to permit such examination. - State v. Williams, Tenn., 75 S. W. Rep. 948. 125. MUNICIPAL CORPORATIONS-Street Improvements. -An assessment for street improvements held not invalid because assessed in terms by the abutting foot, where the amount of the assessment did not exceed the special benefit to the land. - Shoemaker y. City of Cincinnati, Ohio, 68 N. E. Rep. 1. 131. PARTNERSHIP- Action for Price.-Persons carrying on business under assumed name, in violation of law, may recover of debtor for goods sold and delivered. -Doyle v. Shuttleworth, 83 N. Y. Supp. 609. 132. PARTNERSHIP Authority of Partner.-An agreement by partner to share with plaintiff certain compen. sation for services payable to firm under an agreement with others, held binding on both partners.-Boice v. Jones, 83 N. Y. Supp. 230. 133. PAYMENT Certificate of Deposit.-Where certificates of deposit were indorsed as security for the payment of the price of a farm, plaintiff's failure to protest the certificates on payment being refused held no defense to his action to recover such portion of the price. -Gallagher v. Ruffing, Wis., 95 N. W. Rep. 117. 134. PRINCIPAL AND AGENT - Notice to Agent. An agent employed by the grantor in a deed of trust to collect the rents held unaffected by actual notice that the purchaser claimed the land and would hold the agent for the rents collected. - Embry v. Galbreath, Tenn., 75 S. W. Rep. 1016. 135. PRINCIPAL AND AGENT-Pledges.-A tender of the amount of a debt secured by a pledge to redeem the property held waived, where the pledgee refused to deliver, except on payment of other debts than those secured. Memphis City Bank v. Smith, Tenn., 75 S. W. Rep. 1065. 136. RAILROADS - Barbed Wire Fence.-The construction of a barb-wire fence by a railroad on its own land did not render it liable for injuries sustained by one accidentally riding into it. Bishop v. Gulf, C. & S. F. Ry. Co., Tex., 75 S. W. Rep. 1086. -- 137. RAILROADS Communicated Fire. In an action for the destruction of cotton by fire alleged to have been communicated by defendant's engine, the fact that plaintiff held an equitable title only to a part of the cotton sued for was immaterial.-Alabama Great Southern R. Co. v. Clark, Ala., 34 So. Rep. 917. 138. REFORMATION OF INSTRUMENTS-Mistake.-A deed will not be reformed for mistake, unless the terms of the real agreement are shown with such certainty that the proven averments of the bill will form a basis for the decree.-Keith v. Woodruff, Ala., 34 So. Rep. 911. 139. RELEASE-Joint Maker.-A parolrelease of one of several joint and several makers of a note from further payment thereof does not release the others.-Valley Sav. Bank of Middletown v. Mercer, Md., 55 Atl. Rep. 435. 140. RELIGIOUS SOCIETIES - Liability for Damages. An incorporated religious society held not liable for damages for expulsion of a member by the congregation. - Reinke v. German Evangelical Lutheran Trinity Church, S. Dak., 96 N. W. Rep. 90. 141. RELIGIOUS SOCIETIES Rights of Members. - A member of a parent church held estopped to contest the right of members of certain chapels maintained by the church to vote on questions concerning current disbursements.-Davie v. Heal, 83 N. Y. Supp. 723. 142. SALES-Receipt Construed.-The word "receipts," as used in the indorsement on a contract for the purchase of machinery for a creamery, construed.-Creamery Package Mfg. Co. v. Benton County Creamery Co., Iowa, 95 N. W. Rep. 188. 143. SCHOOLS AND SCHOOL DISTRICTS - Right to Attend School. Where a child is wrongfully denied admission to a public school, an injunction may issue to restrain the directors from interfering with her attendance.-Mizner v. School Dist. No. 11 of Sherman County, Neb., 96 N. W. Rep. 128. 144. SHIPPING-Joint Liability for Negligence.-Where an ocean carrier undertook to tranship goods, and em ployed a lighterage company for the service, they are jointly liable for a loss of the goods through the negligence of the lighterage company.-Smith v. Booth, U. S C. C. of App., Sixth Circuit, 122 Fed. Rep. 626. 145. STREET RAILROADS-Rate of Speed in Fog.-The motorman may be negligent in running a car at a high speed in a fog, though he discovers the peril as soon as possible, and does everything in his power to avert collision.-Fisher v. Union Ry. Co., 83 N. Y. Supp. 694. 146. STREET RAILROADS-Right of Way.-In an action for injuries to the driver of a hose cart in collision with a street car, an instruction as to the custom to give fire apparatus right of way held proper.-Hanlon v. Milwaukee Electric Ry. & Light Co., Wis., 95 N. W. Rep. 100 147. TRADE MARKS AND TRADE NAMES-Infringement.The registration of a trade-mark confers no right or title thereto on the registrant, and is at best only prima facie evidence of his right, which is not sufficient to warrant a court in granting a preliminary injunction against its infringement.-A. Leschen & Sons Rope Co. v. Broderick & Basscom Rope Co., U. S. C. C., E. D. Mo., 123 Fed. Rep. 149. 148. TRIAL-Order of Evidence.-Permitting the introduction of evidence out of its proper order held to have been within the discretion of the court.-Walton v. Wild Goose Mining & Trading Co., U. S. C. C. of App. Ninth Circuit, 123 Fed. Rep. 209. 149. TRIAL-Separation of Jurors.-In the absence of injury, a mere separation of the jury in civil cases without the consent of the court is not per se sufficient ground for a new trial.-Walton v. Wild Goose Mining & Trading Co., U. S. C. C. of Arp., Ninth Circuit, 123 Fed. Rep 209. 150. TROVER AND CONVERSION-Privity of Ownership' -In an action for conversion, the fact that there was no privity of ownership between the person from whom defendant obtained the property and defendant held not defeat [plaintiff's right of action.-Rosenkranz v. Saberski, 83 N. Y. Supp. 257. to 151. TROVER AND CONVERSION-Right to Maintain.One having the legal title and the right to possession of personalty mày sue for conversion by a stranger without joining equitable beneficiary.-Chamberlain v. Woolsey, Neb., 95 N. W. Rep. 38. 152. TRUSTS-Assignment of Legacy. - A trustee, to whom an interest in a legacy is assigned to secure the payment of certain judgments against the legatee, may maintain a suit to set aside conflicting assignments and to establish the priority of his own, without joining his cestui que trust.-Tompkins v. Tompkins, U. S. C. C., S. D. N. Y., 123 Fed. Rep. 207. 153. TRUSTS-Statute of Frauds.-A purchase of land by an agent for himself held to create a trust for the principal, enforcement of which is not prevented by the statute of frauds.-Brookings Land & Trust Co. v. Bertness, S. Dak., 96 N. W. Rep. 97. 154. VENDOR AND PURCHASER-Change of Possession -Where land in possession of a tenant is conveyed, his continued possession as tenant of the grantee is not constructive notice of the unrecorded deed.-Stockton v. National Bank of Jacksonville, Fla., 34 So. Rep. 897. 155. VENUE-Joinder of Causes.-Where there are distinct causes of action of such a nature that they may be joined in the same suit, venue as to one of them will confer venue as to the other.-First Nat. Bank v. Va lenta, Tex., 75 S. W. Rep. 1087. 156. WATERS AND WATER COURSES-Duration of Franchise. A city ordinance granting to a water company the privilege of using the public streets, without fixing any term, gives a license only, revocable at the will of the city.-Boise City Artesian Hot & Cold Water Co. v. Boise City, U. S. C. C. of App., Ninth Circuit, 123 Fed. Rep. 232. 157. WATERS AND WATER COURSES - Flooding Land.In an action for unlawfully flooding land, the measure of plaintiff's damage held to be the difference between the value of the land before and after the flooding.Post v. Merritt, 83 N. Y. Supp. 611. 158. WHARVES Unsafe Condition of Bottom.- - The owner of a wharf is liable for injury to a vessel through his failure to keep the bottom in such condition that vessels can lie safely, or to take special care of a vessel brought there at his instance without a master.-Lewis v. Barber Asphalt Paving Co., U. S. C. C., S. D. N. Y, 123 Fed. Rep. 161. 159. WILLS-Damages to Real Estate. Money paid by an elevated railroad company for damages to real estate to the executors of the deceased owner is the proceeds of real estate, and not income.-In re Levy, 83 N. Y. Supp. 647. 160. WILLS-Death of Landlord. Where life tenant dies after March 1, rent contracts made before that date go to the personal representatives of the life tenant.Newton v. Odom, S. Car., 45 8. E. Rep. 105. 161. WITNESSES-Physicians.-A physician may testify as to the condition and state of health of his patient, as well as the treatment prescribed. - Metropolitan Life Ins. Co. v. Howle, Ohio, 68 N. E. Rep. 4. Central Law Journal. ST. LOUIS,MO., DECEMBER 11, 1903. THE THEORY OF A CASE AND ITS IMPORTANCE. Some of the younger element of the bar and among our subscribers have requested occasional discourses upon practical themes, relative to the subject of advocacy. Our more experienced readers, we are sure, will most cheerfully indulge this request, and possibly may even find something of benefit in the discussion of such themes. We shall endeavor at this time to give a clear statement of what is meant by the theory of a case and its importance. A theory of a case is that particular line of reasoning, of either party to a suit, which sims to bring together certain facts of the case, in a certain order or logical sequence, and interrelate them in such a manner as to produce in the mind one definite result or conclusion, which the advocate believes entitles him to the judgment or decree of the court, under the application to such result or conclusion of certain well known principles of law. This definition is a composite result of the writer's careful comparison of the views of many eminent authorities, none of which seemed to him to state with sufficient accuracy the exact extent and limitation of this term in its relation to the trial of a case. Of course, the general idea conveyed by the word theory, is the important thought in the definition, and must be carefully understood. Quincey says: "A theory takes a multitude of facts, all disjointed, or, at most, suspected of some interdependency; these it takes and places under strict laws of relation to each other." The theory thus constructed lies at the foundation of the advocate's case. His pleading outlines his theory; his evidence fills it in and gives it shape; and the principles of law which he cites should support the result which his theory has produced. "The same case," says Mr. Elliott, "may be gained on a sound theory that would be lost on a bad one. One advocate may take the same facts and secure a verdict, while another will be unable to frame a theory that can be successfully maintained. A case is De given by Mr. Bishop in which goods were brought into this country in violation of our revenue laws; they passed the custom house officers under a permit genuine in form and signature, but procured by bribery. Counsel to whom the revenue officer first applied for advice searched the statutes, and, finding no provision applying to the particular case, advised that no prosecution could be maintained. Another counsel took up the case and secured a verdict. His theory was that the case was the ordinary one of smuggling, and so he put it to trial. When the permit was offered it went in evidence, but was assailed and overthrown on the ground of fraud. The mistake of the counsel first consulted, was in framing the theory of the case." Elliott's Work of the Advocate, p. 76. The law insists that every case proceed upon some definite theory. Although under our modern codes, pleading has been made so simple a matter as almost to encourage negligence, nevertheless the courts draw the line at hap-hazard and speculative litigation. A party cannot make indefinite and uncertain allegations in his pleading and then enter a trial aimlessly, permitting the evidence to carry him where it will, and finally insist on one or the other of the different phases of his case which seem to him at that time most desirable. Moveover, while a failure to determine a theory at all, or a mistake in selecting a proper theory, is not necessarily fatal, it always injures a case. Sometimes a trial court will assist the young advocate, who comes into court without any definite theory as to his case to find one, by inquiring, upon objection of the other party to the introduction of certain evidence, what the advocate is "trying to prove by that witness" and then as to "what bearing that evidence will have upon the case." In his answer to these questions an attorney who comes into court without a well constructed theory of his case, is forced to declare one on the spur of the⚫ moment or seriously affect his chances of a verdict. More important in some respects, probably, than the construction of a theory, is the determination of an accurate hypothesis on which to base the theory. Uberweg defines an hypothesis as "the preliminary admission of an uncertain premise which states what is held to be a cause in order to test it by con sequences." The hypothesis, therefore, precedes the theory, and upon a proper hypothesis dépends the success of the theory. The first thing, therefore, which an advocate is to do, after having secured a full statement of the facts from his client, is to fix upon a proper hypothesis. Revolving in his mind the various explanations suggested to his mind of the occurrence related to him by his client, the advocate should finally determine on the one which fits in most accurately with all the facts in the case and on that hypothesis or explanation construct theory, weaving into the fabric all the evidence which goes to sustain the hypothesis thus selected, and ignoring or discarding for his own purpose, at least, all facts in the case which would seem to support a different hypothesis. For these latter phases of the evidence the adversary will undoubtedly find convenient uses in establishing an alibi or other parts of his defense. his NOTES OF IMPORTANT DECISIONS. NEGLIGENCE-ACTION BY CHILD FOR DAMAGES SUSTAINED WHILE EN VENTRE SA MERE.Can a suit be maintained by a child for the wrongful death of its father after recovery has been had by its mother before the birth of the child, and without the making of the child a party or disclosing the fact of its probable birth? This question was before the Supreme Court of California in the case of Daubert v. Western Meat Co., the decision in department being reported in' 69 Pac. Rep. 297, and in banc in 73 Pac. Rep. 244. The majority of the court held that under section 377, Code Civ. Proc., there can be but one recovery either by the heirs or the personal representatives, and that upon the rendering of a judgment in favor of the widow the right thus given by the statute is exhausted. The court remarks, further, that whether the same rule would apply in a case where another heir was in being or where the existence of an unborn child was known to the defendant at the time of the previous trial are questions which are not intended to be here decided. All that the majority opinion purports to decide is that where a child is unborn, and its existence is unknown to the defendant at the time of the recovery by the widow, an action cannot be maintained for the child after its birth, notwithstanding the provisions of section 29 of the Civil Code to the effect that an unborn child is deemed to be in existence so far as necessary for its interest in the event of its subsequent birth. The provision of section 291 of the Civil Code are as follows: "A child conceived but not yet born, is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth." Chief Justice Beatty, in his dissenting opinion, asks in regard to this provision of the code: "Why does not this plain declaration of the statute place a posthumous child upon the same footing with a living child with respect to an action under section 377 of the Code of Civil Procedure? If it would ever be necessary for the interests of a living child to prosecute a separate action after a recovery by its mother, how can it be less the interest of a posthumous child to prosecute the action? Is it again denied that a posthumous child is heir to its father? Has it less interest in the amount recoverable as compensation for the loss of family support? Is it better able than a living child to intervene in the first action? Is there some ground of estoppel against it that could not be urged against the suit of the living child? Is he participant of his mother's fraud in concealing his existence? These and similar questions affecting the decision of the second point have been asked. Not one of them has been answered. The point is decided, but the reasons are withheld." In Texas, it is held that a previous unsuccessful attempt by a father to recover damages for the death of his wife did not bar a subsequent action by his children for the same damage, where they were not made parties. G. H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S. W. Rep. 127; Nelson v. G. H. & S. A. Ry. Co., 78 Tex. 621, 22 Am. St. Rep. 81. In Kentucky á contrary rule is laid down. L. & N. Ry. Co. v. Sanders, 86 Ky. 260. Speaking on this point Chief Justice Beatty said: "If an action is brought by some of the heirs without joining the others, that is not the action which the statute provides for, and it would be dimissed upon demurrer or plea, unless the proper parties were brought in. But if the defendant failed to make the objection in either mode that there was a nonjoinder of necessary parties plaintiff, and suffered a recovery by a part of those entitled to sue, he could not resist a recovery in a subsequent action by the other heirs of their share of the damages, 'unless he could show that the plaintiffs in the second action were estopped by some fraud or laches on their part. In this case the present plaintiff cannot possibly have been guilty of fraud or laches in connection with the former suit, for she was not born when the judgment was given, and, if there was any fault, it was the fault of the defendant in failing to make the issue and exact the proof that the mother was the sole heir. A very clear and, to many minds conclusive answer to the contention stated in the foregoing paragraph, is that of Henshaw J., in his separate opinion, concurring with the result reached by the majority. He said: "Our law contemplates that an action for a recovery in a case such as this may be brought either by the personal representative or by all the heirs. In the nature of things, where a pleading expresses the fact that the action is so brought by and on behalf of all the heirs, it is not expected that the defendant can or will controvert such an allegation, except upon the rare chance that he may happen to know of some one heir unmentioned and omitted. Otherwise he is entitled to rest without denial upon the allegation of the complaint, secure in his right to be subjected to the harassment of but one action, and, should recovery be had against him, to go free from further vexation and from being mulcted a second time by payment of the amount of this judgment. Therefore, to my mind, it matters not whether the omitted heir be an unborn child or be a living person. In the case where the defendant has suffered and paid judgment, he may plead that judgment in bar to any future action, because the judgment itself could not have been given against him excepting upon the implied finding, necessarily made by the court in rendering judgment, that the action had been prosecuted by and on behalf of all the heirs. To this the answer may well be made that, in the case of an unborn or a minor child, a fraud will have been perpetrated upon it: and this is true, but the redress for this fraud does not lie in an action against the innocent party defendant who has once paid a judgment for his tort, but it lies against the fraudulent plaintiffs, and the omitted heir must seek his redress and recovery against them. In this case the child's right lies in an action against her mother for her fraud in omitting her as an heir in the action which she brought against defendant. RATIFICATION IN THE LAW OF General Introduction. The foundation principle of our system of jurisprudence is justice. Its desired end is the administration of justice. As society develops and new relations and changed conditions come into existence, the law must, if the demands of justice are to be met, be a progressive science. Such it in truth claims to be. In no branch or division of the law is this development more apparent than in the law of agency. The Romans, who gave to the world its system of jurisprudence, and who developed other branches of law to a great extent, recognized the principles of agency in only a few cases; and in no instance did they recognize the modern doctrine of ratification. "This very limited use of agency constitutes a most important difference between Roman and modern law."1 During the middle ages the theory of free agency was worked out, this with the abolition of slavery, an institution which largely 1 Sohm's Institutes of Roman Law. took the place of agency in Roman life, served as the basis and impetus of the modern system of agency. Meaning of the Term. An agent is one who represents another, called a principal, in dealings with third persons. He usually receives his authority by appointment from his principal. In this case the relationship of principal and agent rests upon an agree-ment. Where an agent thus authorized! represents his principal in transactions with third persons the principal is bound in like: manner as if he had acted for himself. One person may, however, assume to act in behalf of another where no previous relationship of principal and agent existed. Under these conditions the act is clearly not binding on the person in whose behalf it is assumed to be done, unless he chooses to make it such. when the unauthorized act comes to his knowledge he elects to sanction or confirm it and expressly or impliedly adopts it as his own, he thereby creates the person, who has assumed to act, his agent. In this case the relationship of principal and agent rests upon ratification. If Definition. -"Ratification is the adoption of an act or contract entered into in behalf of the one adopting it by one who had no previous authority to represent the one so ratifying in the doing of the act or the making of the contract."2 Essential Elements and Conditions of Ratification. To constitute a valid ratification certain essential elements and necessary conditions must be fulfilled. For convenience these essential elements and conditions may be divided into three classes: 1. Those having reference to the act. 2. Those havhaving reference to the assent. ing reference to the principal. 3. Those - With Reference to the Act. The act must be one which the principal could lawfully do himself or authorize to be done in his behalf, both at the time of performance and at the time of ratification. 4 Furthermore since ratification is a question that can arise solely in connection with the law of agency the unauthorized act must have been done in behalf 2 Huffcut on Agency, sec. 30. 3 Davis v. Lane, 10 N. H. 156; Zottman v. The City and County of San Francisco, 20 Cal. 96. 4 McCracken v. The City of San Francisco, 16 Cal. 591; Marsh v. Fulton Connty, 10 Wall. 676. |