Слике страница

made, to notes other than the one in suit, held erro. neous, wbere other payments made during the same timo had been indorsed on such a note.-Estes v. Fry, Mo., 65 S. W. Rop. 741.

140. PRESOMPTION8-Uplavi rable Presumption from Faillog to Testily.-Where party pharged with fraud in an action failo to testily, an unfavorable presumption arises against him.-Stepbenson v. Kilpatrick, Mo., 65 8. W. Rep. 773.

141. PRINCIPAL AND AGENT-Expenditures Occurring Because of Agodt's Negligence.-An agent held not entitlod to reimbursoment for advances and expend. Ituros rendered necessary by reason of bis own fail. ore to exercise reasonable diligence in tbe conduct of the agency.-Veltum v. Koehler, Mion., 88 N. W. Rep. 432.

142. PRINCIPAL AND SURETY-Release Because of Ex: topsion.-Surety held not released because of exten. sion of time given his principal, where creditor ex. pressly roservos romedios against surety.-Doan v. Rice, Kan., 66 Pac. Rep. 992.

143. PROCE88-Service on Wile Where Husband Had Loft the State.-Substituted service of process on a husband by leaving copy with wife at the dwelling hoogo of a neighbor, the busband having permanently left the state, beld insuficient.-Phelps v. McCollam, N. Dak., 88 N, W. Rop. 292.

144. PROHIBITION- When Writ Lies.- The writ of pro. bibition only lios when some lower tribunal is acting witbout jurisdiction, or in excess of its jurisdiction, and there is no adequate remedy at law.- People v. District Court of socond Judicial District, Colo., 66 Pac. Rep. 1068.

145. PUBLIC LANDS Collateral Attack of Patent.Patent from land department held impervious to col. lateral attack for errors of law as well as mistakes or fact. -Kings v. McAndrews, U. S.C.C. of App., Eigbth Circuit, 111 Fed. Rep. 860.

146. RAILROAD8-Burdon of Prool for Killing Live Stock.-Under Acte 1886, No. 70, owner of stock killed on railroad need not prove degligence.-State v. Fog. ter, La., 31 South. Rep. 57.

147. RAILROADS Establishment of a Private Rail. road.- Establishment of a private rallroad cannot be sided by tho power of eminent domain.-Maginois V. Kuickerbocker Ice Co., W19., 88 N. W. Rop. 300.

148. RAILROSDI-Statutory Right to Recover Attor. Dey's Fees.-The statutory right to recover attorney's fees is an action aga'nst a railroad for property de. stroyed by fire negligently set out by it depends on the rigbt of the plaintiff to recover in the general action, and is not an independent cause of action.-St. Louis & 8. F. Ry. Co. v. Ludlum, Kap., 66 Pac. Rep. 1045.

149. RAILROADS Trespaeger on Track.- Plaintiff, whilo walking along the cross-ties of the track, caddot complaid that the train mon were guilty of negligence in faillog to give signals of approach.-Mizzell v. Southern Ry. Co., Ala., 31 South. Rep. 86.

150. RECORDI-Wrongful Retention.-The method or motive through which the court's attention was di. rected to the wrongful retention of cortain papers from the Oles is immaterial, since it could proceed on its own motion to have them restored.-Howes v. Mutual Reserve Fuod Lipo A88n., Iowa, 88 N. W. Rep. 338.

151. REFERENCE-Filing Exceptions.-It was error to copiirm a commissioner's report on the same day on whicb it was allod, as a reasonable opportunity should have been given the parties to file exceptione.- Egai. table Loan & Investmont Co. v. Smith, Ky., 65 8. W. Rep. 609.

152. REFERENCE Sttting Aside Reference.-Code 1980, § 3296, providing that the report of referees may bo set aside, and the matter again referred to the game or other referees, relatos only to partition, and does not govern references ol actions for trial.--Tufts v. Norris, lowa, 88 N. W. Rep. 367.

153. REGISTRATION-Probate Records as Notice. Probate records, showing a claim of title to land by a stranger to the record title, held not constructive do. tice to one who claims in the record cbain or titlo.Prost v. Black, Kap., 66 Pac. Rep. 1017.

154. REPLEVIN-Against Co Topant,-Tepant in com mon held not entitled to maintain replevin for the common property against his co tenant, nor against one in po 38ession as joint agent of therapante in com. mon.-Smith.McCord Dry Goods Co. V. Burke, Kan., 66 Pac. Rp. 1086.

155. SALES – Damages for Falling to Deliver.- Whero defendant failed to but did not refuse to make delivery until some time later, the breach of the contract oc. curred at the time of the refugal, for the purpose of fixing the measure of damagra.- Rulli v. Rockmore, U.S. C. C., N. D. Ga., 111 Fed. Rep. 874.

156. SALE8Subsequent shipments Alter Relusal ol Vendee.-In an action for breach of contract, consigt. ing in defendant's fallure to accent telegrapb polos purchased of plaintiff, beld, that plaintiff was not re. quired to continuo to ship poles alter dependant's re. lusal to accept the same.- Berthold v. St. Louis Elec. tric Const. Co., Mo., 65 S. W. Rep. 784.

157. SCHOOL AND SCHOOL DISTRICT8-Contractor's Right Where Bill Exceodg Constitutional Indebtedne88.-That contract with a school district, which in: creases its indebtedness beyond the constitutional limitation, is not soverable, will not deleat con. tractor's right to enforce the contract within the con. stitutional limitation.-MeGillivray v. Joint school Dist. No. 1, Wis., 88 N. W. Rep. 310.

158. SEAMEN-Validity of Releaso.-A release ex ecuted before a shipping commissioner on & settle. ment and discharge of seamon, in conformity to kev. St. $ 4552, 1s conclusive on tbe parties, in the absence of fraud or coercion.-Pettersson v. Empire Transp. Co., U. 8. C. C. of App., Nintb Circuit, 111 Fed. Rep. 931.

159. SET-OFF AND COUNTERCLAIM - Partnership and Individual Debts.- Under Codo, § 3728, held, that a part. ner, aned individually for a partnersbip dobt, cannot set off a debt owned by the partnership.-Drennen v. Gilmore, Ala., 31 South. Rep. 90.

160. SHERIFFS AND CONSTABLR8 – Contradicting Returp.-A sheriff's return on an execution cannot be contradicted by him in a collateral action on his official bond.-Breckenridge Mercantile Co. V. Ballil, Colo., 66 Pac. Rep. 1079.

161. SHERIFFS AND CONSTABLTA-Suspension by Gov. ernor.- The power of a governor to suspend a sheriff during investigation Involves the exerelee of discre. tion and good judgment by the governor.-State v. Megaarden, Mion., 89 N. W. Rep. 412.

162. SHIPPING-Oral Representations of Shipper as to Speed.-Representations made by a shipowner. prior to a cbarter, respecting the speed of his vergel, but which are not embodied in the chartır, aro superseded by that instrument, in the absence of fraud or mutual mistake.- Matthias v. Beecbe, U. S. D. C., E. D. N. Y., 111 Fed. Rep. 940.

163. STATE8 - Breach of Contract of Purchase.-In an action by the financial agent of the stato penitentiary on potes given in settlement of purchases, held, that the defense of a breach of the contract of purchase was not an action against the state. -Rice v. Dickson Car Wheel Co., Tex ,65 S. W. Rep. 645.

164. STATUTES Changing Punctuation.-The su. preme court, in the construction of a clause or sen. tence in the statute, which is upgrammatical and not 80 punctuated as to make sense, may cbange the punctuation and capitalization to carry out legislative intent. -State 7. Deuel, Kan., 66 Pao. Rep. 1037.

165. SUBROGATION- Property Subject to Mortgago apd Judgment.-Parties purchasing realty subject to mortgage and judgment, and payiog mortgage, bold

not entitled to be subrogated to the mortgage on sale of property at execution under the judgment.-Hargis V. Robinson, Kan., 66 Pac. Rep. 988.

166. TAXATION - Assessment of Franchises.-In ag. sessing the taxes of a telegraph company existing un der the laws of another state, the board of equaliza. tion properly took into consideration its franchise, together with the actual cost of its tangible property. - State v. Western Union Tel. Co., Mo., 65 S. W. Rep. 775.

167. TAXATION-Taxable Property of Insurance Com. panies.-Comp. Law8, § 3834, providing that the tax. able property of insurance companies shall be com. puted by deducting the value of taxable real estate from its net agsets above liabilities, as shown by the report of the commissioner of insurance, is not in conflict with Congt. art. 14, § 11.-Michigan Mut. Life Ing. Co. v. Hartz, Mich., 88 N. W. Rep. 405.

168. TAXATION-Void Tax Sales.-A sale for taxes which have been pald confers no title on the purchaser. -Hake v. Lee, La., 31 South. Rep. 54.

169. TELEGRAPHS AND TELEPHONES Damages for Fallure 10 Deliver Telegram. - Father held not entitled to damages for mental anguish caused by failure to deliver meggage, whereby a brother in law was pre vented from being present at the death of a daughter. - Western Union Telegraph Co. v. Ayers, Ala., 31 South. Rep. 78.

170. TRIAL AND PROCEDURE-Defense of Former Suit Pending.-The defense of a formersult pending must be raised by a verified plea in abatement, and not by a motion to quash the proceedings.-Ryan v. Mills, Mich., 88 N. W. Rep. 392.

171. TRIAL AND PROCEDURE Special Findings. Where special findings and general verdict are incon. sistent, the special findings are the verdict.-Garth v. Board of Comrs. of Edwards County, Kan., 66 Pac. Rep. 999.

172. TROVER AND CONVERSION- Measure of Damages. -It property converted be returned, the measure of the defendant's liability is the difference between the market value when taken and the market value when returned, with interest.-Prinz v Moses, Kap., 66 l'ac. Rep. 1009.

173. TRUST8–Beneficiaries bound by Stipulation of Trust Deed.-Beneficiaries in a trust deed, claiming title to the land by virtue of its recitals, are bound by its other conditions, and cannot repudiate a stipula. tion therein that the trustee shall have power to sell the property.- Kahle v Stone, Tex , 64 South. Rep. 623.

174. USURY-Recovery of Usury Paid.-A defendant who has paid a judgment may recover usury embraced therein, though the defense that the claim sued on embraced usury was available in the original action.Equitable Loan & Investment Co. v. Smith, ky., 65 S. W. Rep. 609.

175. USURY-Recovery of Usury Paid.-Where de. fendant paid an attorpey's fee stipulated for in a mortgage and erroneous'y allowed, ho cappot recover the amount as usury paid, as it was a penalty merely, and not usury.- Equitable Loan & Investment Co. v. Smith, Ky., 65 8. W. Rep. 609.

176. WATERS AND WATER COURSK8-Flowing Waste Water as Natural Stream.-Waters flowing through a tunnel derived from drainage, pumpings, and a waste weir of electrical machinery, do not constitute a natural stream, and are not subject to appropriation. --Cardelli v Comstock Tunnel Co., Nev., 66 Pac. Rep. 950.

177. WATER COMPANIES-Requiring Payment in Ad. vance.-A water company, though exercising quasi public functions, may reasonably require payment in advance by the consumer, and enforce the require. inept by cutting off the supply for non-compliance therewith.-Hieronymus v. Bienville Water Supply Co., Ala., 31 South. Rep. 31.

178. WILLS--Devise During Widowhood.-Will con.

strucd, and held, that a widow under a devise to ber so long as she remained testator'e widow, etc., took only an estate limited on her remarriage, and not a fee.-Shaw v. Shaw, Iowa, 88 N. W. Rep. 327.

179. WILLY-Evidence as to Tostator's Dislikes.Where the meaning of a will can be gathered from the instrument itsell, declarations of testatrix, showing her feelings towards a person affected thereby, held properly excluded.-Webb v. Hayden, Mo., 65 S. N. Rep. 760.

180. Wills-Executed During Period of Delirium Tremens.-A will, executed during attack of delirium tremens, will be maintained, if executed during a lu cid interval.- Succession of Crouzeilles, La., 31 South. Rep. 64.

181. WILLS-Illicit Relation as Proof of Undue lo. fluence.-An instruction, in a will contest case, that illicit relation with the principai beneficiary 1$ a strong circumstance showing undue influence, held not erroneous.-Waters v. Reed, Mich., 88 N. W. Rep. 394.

182. WILL8-Oral Congont of Wife.-The wife's oral consent to the will at the time it was written is not binding on her.-Cook v. Lawson, Kan., 66 Pac. Rep. 1028.

183. WILLS-Rebutting Presumption of Undue lofiu. ence from Confidential Relations. In order to re. but the presumptions of undue influence as to dispo. sitions of property arising from confidential rela. tions, the party seeking benefit thereof must show that the confidential relations were severed, and the other party had independent advice.- McQueen . Wilson, Ala., 31 South. Rep. 94.

184. WILLS-Suficiency of Attestation. The sigba. ture of witnesses to a will will not constitute a suffi. cient attestation thereol, where the testatrix does not indicate to them in any way what the paper is.-Rich. ardson v. Orth, Oreg., 66 Pac. Rep. 925.

185. WITNESSES-Conversation With Deceased Per. son.-A party is pot rendered competent to testify as to conversation with person since deceased by the foot that a third person beard the conversation and testified as to it.-Payne v. Long, Ala., 31 Soutb. Rep. 77.

186. WITNESSK8-Husband and Wile.-Husband held competent witoess in case, after his wife had heen dismissed out of it.-Van Valkenburg v. Lynde, kad., 66 Pac. Rep. 994.

187. WITNE88 E8-Mortgagor Iocompetent to Testify as to Acts With Deceased Mortgagee.-Mortgagors held to be persons from, through, or under wbom the mortgagee derives title, so as to be incompetent, under Code, $ 4604, to testify as to transactions with a decedent.-Clinton Savings Bank v. Grohe, Iowa, 58 N. W. Rep. 357.

189. WITNESSES-Refreshing Memory.–Testimony of a police officer at a preliminary examination may be read to him on a criminal trial to refresh his memory. -People v. Joy, Cal., 66 Pac. Rep. 964.

189. WITNES8E8-Surgeon's Testimony as to Charac. ter of Wound.-Under Code, $ 4608, a surgeon was not precluded from testifying on a trial for murder that he was called to attend deceased, and found her guf. fering from wounds which he believed were received in an attempt to petorm a criminal operation.-State v. Grimmell, Iowa, 88 N. W. Rep. 342.

190. WITNESSES-Testimony of Heiry as to Advance. mente.-Heirs held incompetent, under Code, $ 4604, to testify that notes given by one of the heirs of the de. ceased were in advancement and not a debt.-Ruggell v. Smith, Iowa, 88 N. W. Rep. 361.

191. WORK AND LABOR-Services of Daughter to Mother.-To enable a daughter to recover from her mother's estate for services in caring for her mother, there must be sufficient evidence of at least an im plied agreement for reimbursement, to overcome the presumption of gratuitious service. - Decker V. Kanous' Estate, Mich., 88 N. W. Rep. 398.

Central Law Journal. court n'ay compel obedience to its order, it

must have the right to inquire whether there

has been any disobedience thereof. To subST. LOUIS, MO., MARCH 21, 1902.

mit the question of disobedience to another

tribunal, be it a jury or another court, would Right OF LEGISLATURES TO ABRIDGE THE operate to deprive the proceeding of half its POWER OF COURTS TO Punish For CONTEMPT. efficiency." See also to same effect: Wat-In some quarters there has been a strong son v. Williams, 36 Miss. 331; Interstate tendency to curtail the power of courts to Commerce Commission v. Brimson, 154 U.S. punish for contempt. Probably the main. 447; Bradley v. State (Ga.), 36 S. E. Rep. spring of this tendency is to be found in the 630; Brown v. Circuit Judge, 75 Mich. 274 ; hard feelings which have been engendered Hale v. State (Ohio), 45 N. E. Rep. 199. by the action of the courts in the settlement of the great labor controversies of the last DUTY OF ATTORNEY TO DEFEND PRISONER few years in which the right to punish for Whom HE MAY BELIEVE TO BE Guilty.--Laycontempt has been exercised with as free a men not infrequently charge the lawyer very hand as the right to grant an injunction in unjustly for permitting his services to be rethe first instance. This has brought the tained in defending some noted criminal general subject of contempt into great prom toward whom the public mind is wildly inence and there has been a strong demand inflamed and whom he may believe to be for abridgment of the present rights of guilty. It has been a difficult task of the courts in contempt cases. The recent case profession, in standing up for its privileges of Smith v. Speed, 66 Pac. Rep. 511, pre and duty in this regard, to convince the pubsents an instance of this tendency and the lic that no lawyer has the right to injure bis effort the courts are making to check it. It fellowman's defense by judging his case appears that the legislature of Oklahoma without trial. No better argument bas ever enacted that contempts should consist of been advanced than that offered by Lord two kinds: those committed in the presence Erskine in vindicating himself from the of the court, and indirect contempt, such as public odium which attached to him by reawillful disobedience or resistance to the exe son of his defense of Thomas

The cution of any process or lawful order of the great barrister said: court, and providing further that in cases of “In every place where business or pleasure indirect contempt the party cbarged shall be collects the public together day after day, notified in writing, have a reasonable time my name and character have been the topic for defense, and may demand a change of of injurious reflection. And for what? Only judge or venue and a trial by jury. The for not having shrunk from the discharge of court held this act to be unconstitutional on duty which no personal advantage recomthe ground that the legislature had no power mended, and which a thousand difficulties to take away from the courts whose juris. ¡ repelled.

Little, indeed, did diction originated in the organic act the they know me, who thought that such calright to punish & contempt, and to turn it umpies would influence my conduct. I will over to a separate tribunal, and remove the forever, at all hazards, assert the dignity, inhearing of it to another county, or to cause dependence and integrity of the English bar, the matter to be submitted to a trial by jury: without which impartial justice, the most The most recent authoritative decision on valuable part of the English constitution, this question is that of Re Debs, 158 U. S. can have no existence. From the moment 594, 15 Sup. Ct. Rep. 910, where the court, that any advocate can be permitted to say through Justice Brewer, says: “The power that he will or will not stand between the of a court to make an order carries with it crown and the subject arraigned in the court the equal power to punish for a disobedience where he daily sits to practice, from that of that order, and the inquiry as to the ques moment the liberties of England are at an tion of disobedience has been, from time end. If the advocate refuses to defend from immemorial, the special function of the court. what he may think of the charge or of the deThis is no technical rule. In order that the fense, he assumes the character of the judge

—nay, he assumes it before the hour of cree in divorce to pay alimony refused to comply judgment; and in proportion to his rank and with an order that he pay the alimony forthwith, reputation, puts the heavy influence of per

and he being then personally before the court,

the court found that he had money in his pohaps a mistaken opinion in the scale against session with which he might obey the decree, the accused, in whose favor the benevolent the court had authority to punish him by im. principle of English law makes all presump-mediate imprisonment until the order was comtions, and which commands the very judge plied with. Cases of this kind, of course, come to be his counsel.”

within the power and jurisdiction of the court to punish for contempt. Statutes in many of the

states provide that when a contempt consists in NOTES OF IMPORTANT DECISIONS.

the failure or refusal of one to do an act wbich

he is able to do, he may be imprisoned until he TRIAL AND PROCEDURE-ERROR IN JUDGE performs it. Such a provision gave authority to GOING TO SLEEP DURING TRIAL.-Poor human

the court in the principal case. The court said: nature sometimes exhausts itself even in the ef

"Where the statute is silent as to the remedy, the fort to do justice. In the making of laws and in

court has inherent power to enforce its judgtheir enforcement legislators and executive of

ments or decrees and orders according to its ficers should continually bear in mind the weak

equity powers. The silence of the statute in ness of human flesh and make some allowance

this respect does not take away any power for the man in whom the spirit is willing, but the lodged in the court by its equity jurisdiction. flesh is weak." A notable instance of the force

3 Pom. Eq. Jur. $1318; 2 Daniell, Ch. Prac. *1042 of these observations is to be found in the recent

et seq.; 2 Bish. Mar. Div. & Sep. $1114; 1 Enc. Pl. case of Chicago City Railway Company v. Ander & Prac. pp. 431, 437; O'Callaghan v. O'Callaghan, son, 61 N. E. Rep. 999, in which the Supreme

69 111. 552. In this state no rule is provided by Court of Illinois held that where a trial judge slept

statute for the enforcement of such decrees, but four or five minutes during the introduction of

the rule of attachment has been generally followed evidence, but neither party objected to his being

in the practice and approved by this court. asleep, or called bis attention thereto, and no

In the case of State v. Smith, 17 Wash. 430., 50 objection appeared to have been taken to evidence Pac. Rep. 52, where the plaintiff was allowed introduced during the period, it was not cause

by final decree $25 per month as alimony and for reversal. The court said: “This trial occupied

for the support of said cbildren,' this court said: eight or nine days, and may have been conducted 'It is the duty of courts to enforce their orders, in such man ner as to exhaust almost any one

and when it comes to their knowledge that such compelled to listen to it, as was the presiding

orders are not obeyed they should require and judge. Conceding the irregularity of the pre

enforce such obedience by punishment for considing judge going to sleep while a trial is pro

tempt.' In the case of State v. Ditmar, 19 Wash. gressing, we cannot hold the mere circumstance

324, 53 Pac. Rep. 350, this court said: 'It will be of his having slept four or five minutes reversible

conceded that, if it is out of the power of the error. If the judge was asleep, as certified, party against whom the decree is entered to comcounsel must have known it, and knowing it they

ply with its conditions, and this showing is made should either have suspended the examination of

to the court, he has purged himself of tbe conthe witness then testifying until the judge awoke, tempt. But the case cited is authority on the or have awakened him by calling his attention, proposition that the remedies are cumulative, in a voice sufficiently loud to awake him, to the and that where other remedies exist, and the fact that the trial was progressing. Counsel did party has contumaciously refused to obey the neitber, but proceeded with the examination,

decree of the court, he may be punished for conand after the judge awoke failed to call his at tempt.' We are not disposed to depart from tention to the fact that testimony bad been

the rule in these cases. The case entitled In re given while he was asleep, or to object in any

Van Alstine, 21 Wash. 194, 57 Pac. Rep. 318, is way. It does not appear what testimony was

cited as announcing a different rule. In that taken while the judge was asleep, or that there

case, however, the court declared that the decree is any objection to it, or that it was in the least, was for money, “a decree analogous to a money prejudicial to either party."

judgment at law which may be enforced by proc.

ess against property,' and for that reason it DIVORCE-IMPRISONMENT FOR DEBT IN CASES

was held that the court was without power to reOF NON-PAYMENT OF ALIMONY.-We sometimes quire the money to be paid into court and enhear it stated broadly that there is to-day no im

force such payment by imprisonment." prisonment for debt. Technically speaking this is correct, but one apparent exception must RELEASE-VALIDITY OF CONTRACTS BY NEXT be kept in mind, which is clearly illustrated by OF KIN RELEASING COMMON CARRIERS FROM the recent case of In re Cave, 66 Pac. Rep. 425, LIABILITY FOR NEGLIGENCE.--In Tarbell v. where the Supreme Court of Washington held Rutland R. R., decided by the Supreme Court that where one who had been required by a de of Vermont in December, 1901 (51 Atl. Rep. 6),

neglect, such a law constitutes a definite expression of public policy which, in any event, would preclude the recognition of a contract of exemption from liability. See Starr v. Great Northern Railway (Minn.), 69 N. W. Rep. 632. It might be argued that the grant by statute of a right of recovery to, or in favor of, the next of kin of a decedent is such an explicit declaration of public policy that it could not be contracted against, even though contracts of immunity may be upheld as against living persons who sue upon common-law rights. We own that we do not consider this point a very strong one.- New York Law Journal.


it was held that a contract between a railroad company and the next of kin of an employee, whereby the latter released the railroad from all damages that might accrue by reason of its negligence, was void as against public policy. It appeared that the plaintiff, as next of kin of a proposed employee, before bis employment by tbe defendants and in consideration that it would employ him, entered into a written agreement with the defendant by which the plaintiff released and discharged it from all damages that might accrue to the plaintiff as next of kin, by reason of the defendant's negligence during the employment. The suit was brought by the plaintiff as administrator of the employee for damages for negligence causing his death. It was contended on behalf of the defendant that, conceding that a contract for immunity from liability for negligence between itself and an employee would not be upheld, the contract in question, being with the next of kin of the employee, is not objectionable. The court had little difficulty in demonstrating that the same considerations that have led the federal courts and the courts of many of the states, including Vermont, to bold contracts with an employee himself contrary to public policy, apply with equal force to a contract of the kind under consideration.

The question is suggested whether any distinction between the two kinds of contract could be made in such a state as New York, where contracts by employees or passengers themselves, exonerating a carrier from liability for negligence, if sufficiently definite and specific in their terms, are upheld. Kenney y. Railway Co., 125 N. Y. 422, and cases cited. The better view would seem to be that there is no logical distinction between the two classes of cases. It might be said that a contract by a next of kin of à proposed employee is contingent. He agrees that if the employee subsequently be killed, and that he (the contracting party) be the dext of kin at the time of the death, he will not

claim. Neverthe. less, according to the usual analogies of the law, there is no objection to a person releasing in advance a benefit or right wbich contingently may accrue to him. On the question of consideration, the position of the company is that it made a contract of employment wbich presumably it would not have made unless, as one of the elements of consideration moving to it, the next of kin executed the release. The contract is analogous to one of suretyship which is enforcible though no consideration moves to the surety.

Another somewhat technical ground may be suggested for a distinction. Actions for damages for death are statutory, the remedy being founded upon enactments modeled upon Lord Campbell's act in England. There are cases in some of the states holding that where by statute special precautions for the safety of passengers, employees and the public are prescribed, and a cause of action expressly granted for their

Two recent cases, one in Missouri, the other in Wisconsin, exhibit a peculiar difference of opinion on an exactly similar state of facts. In the Missouri case, Edwards Brokerage Co. v. Stevenson, the defendant, in St. Louis, authorized the plaintiff, a brokerage company, to purchase stocks for him on margin. The plaintiff purchased them in New York, but the market falling they were afterwards sold out and the plaintiff sued for money advanced and commissions. The transaction was illegal under the provisions of the Missouri statute concerning option sales. It did not appear, however, that such contracts were illegal by the law of New York, and on the ground that it was a New York contract which was sued on and not a Missouri contract the plaintiff was beld entitled to recover. "The plaintiff," said Burgess, J., in a very brief opinion, “in its purchase of the stock, was not restricted to any particular market, and, having purchased and paid for it in the city of New York, it was to all intents and purposes a contract of that state."

In the Wisconsin case, Bartlett v. Collins, the action was by brokers to recover for moneys advanced and services performed in the purchase of grain for the defendant on the Chicago Board of Trade. Both parties, as in the Missouri case, were residents of the same state (Wisconsin). The defense, as in the Missouri case, was that the transaction was in violation of the Wisconsin statute as to gaming. This was admitted, but it was insisted by the plaintiffs that the grain baving been purchased in Chicago, the contract was an Illinois contract and was not in violation of any law of Illinois. But the court properly held that it was a Wisconsin contract and, therefore, to be governed by the law of Wisconsin." "The contract in question," said Winslow, J., "is the brokerage contract by wbich the defendant employed plaintiffs to sell wbeat for him in Chicago,

make any

1 160 Mo.; 61 S. W. Rep. 617. 2 85 N. W. Rep. 703.

« ПретходнаНастави »