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THE LAW

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Friday,December 22, 1905

No. z5

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Vol. I

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"Morituri te Salutamus,"
Mr. Landis.

LAW

Published by
THE LAW PUBLISHING
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Editors:

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Corporations
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Municipal Corporations
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Medical Jurisprudence
JOSEPH DICKSON, Jr., - Common Carriers
MONTAGUE LYON,
Commercial Paper, Banks and Banking
EDWARD S. MURPHY,

Accounts, Credits and Collections

HENRY

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BYRON F. BABBITT,
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Limitations and Statute of Frauds
GEORGE

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WALTER H. SAUNDERS, Constitutional Law

SPECIAL.
The columns of THE LAW are open to
the profession for fair discussion of courts,
decisions, ethics of the profession or any
subject relevant or interesting, within the
scope of legal information.
Its readers are
invited to send in their views, and if they
prove interesting we will give others the
benefit of them.
It is the ambition of the
publishers of THE LAW
to make it the
medium of
thoughtful discussion,
by the
legal fraternity, of subjects of interest to
the professlon.-EDITOR.

The Associated Press informs us that

Mr. Frederick Landis of Indiana has
made his maiden speech in Congress and
that the subject to which he directed his
eloquence was the Landis bill.
By this bill it is proposed to create a
division of insurance in ihe Department
of Commerce and Labor and to provide
a Superintendent of Insurance.
When this has been effected, then you
"subject these corporations to
national
supervision and the eagle will keep the
vuture from plucking the bodies of the
dead," or so Mr. Landis says.
Various other picturesquely eloquent
phrases seem to have been employed to
make that maiden effort the occasien of
frequent applause and of the speaker
being surrounded by members who extended' their warm congratulations.
The "atcst authentic information we
have of the vulture who has been plucking or is bent on "plucking the bodies of
the dead," is from the American Bar Association, which informs us that the vulture is anxious to come under the beak
and the talons of the eagle, which, Mr.
Landis says, will keep him from "plucking the bodies of the, dead."
Therefore, "the leading insurance companies," as the Insurance Committee of
the American Bar Association describes
them, going to meet the eagle, may exclaim, as did the gladiators in the Roman
arena. "Morituri te salutainus," being
about to die, we salute you.
Mr. Landis' eloquence may for a moment disturb the gravity of the insurance
plunderers, but when they catch their
second wind they may reflect that the

THE
glittering manifesto will far exceed the
war of destruction to insurance robbery
and peculation which would result. The
national government and its Department
of Commerce and Labor has not yet
struck any great amount of terror to the
souls of trust malefactors and they have
yet to make their first exhibit of a human
being in a striped suit.
Neither has its publicity, so highly
vaunted as a panacea, suggested a convalescent condition in any section of the
country of which we have heard. Indeed, we have come to wonder if, in its
treatment, the Department were not giving the public untriturated doses in homeopathic measures. If it is still acquiring
a stock for fin- heroic treatment, the argument to be made when it is ready for
delivery, no d6ubt, will be that, if you
turn it all loose at once, it will not only
shock American civilization, but panic
the financial world as well.
We may be over-pessimistic, but we
can but look at national supervision in
a matter of this kind as a consummation
most devoutly wished for by the insurance graters, more than by any one else.
Along with them are the stock jobbers, the grain and cotton gamblers of
Wall street, and all other interests of the
city of New York supported by in-fluences, centrifugal and centripetal, leaving at or bearing to that center the
tributes of the country.
But even if we were assured beyond
all peradventure that greater efficiency
in the detection and prevention of fraud
would result from national supervision,
is that an end of the question? Is it well
for the sake of a single interest, as vast
as it is., to enter upon a course of this
character ?
Is there not in it a tendency to those
things which, in the language of Justice
Miller in the Slaughter-house cases, "fetter and degrade the state governments
by subjecting them to the control of Congress in the exercise of power heretofore
universally conceded to them of the
most ordinary and fundamental character?" And to take this control from
comity, does not the legislation lean towards a change of "the whole theory of

LAW
the relations of the state and federal
governments to each other and of both
these governments to the people?"
No one may dispute the centralizing
tendencies in the affairs of our country,
and, while it may be true that business
conditions may sometimes have been
hampered by conflicting laws and decisions, state pride has been the surest
and most constant support of our national
fabric.
Where there have been, or will be,
clashing interests, they will never militate against national supremacy in a
union of states to the extent they might
if state lines were obliterated or state
sovereignty shorn of its rightful dignity
and control.
When an assumed inability on the part
of the states to apply the remedial processes to abuses, which arise out of contractual relations, voluntarily entered into
by state citizens, so admirably distinguished by Justice Miller, in the Slaughter-house cases, from United States citizens, we take a .step more serious than
the exigencies of war brought to us in
this passing decade of our history. What
war brought to us may not harm our
state autonomy, while what the corruption of peace threatens is an undermining
of its base.
The Ohio Statute for the Supression
of Gambling Houses
The Supreme Court of the United
States rendered a decision on November
13, 1905, which should encourage greatls
the moralists of the country with respect
to the gambling evil. Also, it may serve
as a pointer for application to other immoral practices, which defy suppression
or even visible abatement by the means
presently adopted.
The decision we refer to is in the case
of Marvin v. Trout, published in advance sheets of vol. 26, Supreme Court
Reporter, beginning at page 31.
One argument against the effectiveness of the legislation, considered in the
opinion in the case, may arise out of the
fact that it has been in existence since
1831 and its constitutionality has only

THE LAW
now met with a challenge. It would not
appear, from this circumstance. that its
remedial benefits had been often invoked,
and, perhaps, at this time its enforcement was something like the revival of a
statute which was regarded as a dead
letter in legislation.
However, its constitutionality being
firmly recognized by our highest judicial
tribunal, other state legislatures may
consider the advisability of its enactment,
without being embarrassed by any doubt
of its complete validity under our federal
constitution.
The Ohio statute provided for recovery by the loser from the winner of
money, or anything of value other than
money, lost in gambling, and in default
of his suing therefor in six months, a
qui tam action by any informer, first
suing therefor. And in the event of
judgment being obtained, a subsequent
suit could be begun to establish a lien
upon the building and the ground upon
which situated, where the lessor knowingly let or suffered the premises to be
used for gambling purposes, and, where
under control of a guardian, he became
personally responsible for the amount of
the judgment.
There were two judgments, aggregating some $4,700, recovered by a wife
against the gaming-house keepers, for
money lost to them by her husband.
In overruling the contention by the
owner of the leased premises, Justice
Peckham, speaking for the court, says:
"The statute, or one somewhat similar to
it. has been in force in Ohio ever since
at least 1831, and similar legislation is
found on that subject, or upon that of
the regulation of the sale of liquor, in
most of the states of the union. The
plain object of this legislation is to discourage, and, if possible, prevent gambling. The liability of the owner of the
building to make good the loss sustained
under the circumstances set forth in the
statute was clearly part of the measure
resorted to by the legislature for the
purpose of suppression of the evil in the
interest of the public morals and welfare. We are aware of no provision in
the federal constitution which prevents

this kind of legislation in a state for

such a purpose."
. The Justice then discussed the informer feature of the statute, saying that
such legislation has "been in existence
in England hundreds of years and in
this country ever since the foundation of
our government."
Thus, upon the ground that the purpose aimed at was the suppression of an
evil in the interest of the public morals
and welfare, and the liability of the
owner was clearly a part of such purpose, he was held not to have been denied due process of law.
The remedy against gaming-houses in
the mere right to recover of the winner
is largely no remedy at all, for their irresponsibility generally would make of
statutes a brutum fulmen, and so it would
be largely, if there were no informer
feature, though the owner of the premises leased were also made liable. But
adding both to such statutes constitutes
quite a menace to lessors.
Such a statute might be made still
more formidable by adding other features, such as taking away from witnesses testifying to establish a claim of
this nature all incriminating effect and
devolving upon admintrators and executors a duty to institute actions of this
nature, or take the direction of probate
courts in the premises. Also, the Ohio
statute could be strengthened by suing
winner and owner in the same action and
protecting the lien sought by a !is pendens.
Furthermore, gambling in grain and
other options, bucket-shops, futures, getrich-quick concerns and a great variety
of questionable businesses, which come
under the police power of the state and
by the policy of the state are sought to
be suppressed,, might have the benefits
of such legislation extended to them.
There are dives and other dives. Some
reek of corruption of the coarsest nature,
and some are ambitious enough to flaunt
their presence to the public in gilded
trappings and assume the airs of legitimate business.
All of them lead or tend to lead to
breach of trust, defalcation and the sap-

THE
ping of moral stamina and the undermining of business rectitude.
We do not greatly believe in legislating moralitv into a people. but if there
are any offenders against good morals
and the public welfare; for whom we
have less sympathy than others, they are
those who lease premises for questionable purposes and exact increased rental
therefor. They are not in the open like
the bolder offenders, but they are getting their price, nevertheless, and may
carry with them an oily sanctimoniousness to which the others make no pretence or claim.

Statutes of Limitation as to Bank

Accounts and Certificates
of Deposit.
Koelzer et al. v. First Nat. Bank of
Whitewater, 104 N. W. Rep. 838. (Supreme Court of Wisconsin, October 3,
1905.)
1.' *Banks and Banking-Deposits Subject
to Check-Demand.

A deposit in a bank subject to check imposes on the bank, in the absence of any
contract to the contrary, the duty of paying
on account of the deposit only on a proper
demand therefor by check at the bank during banking hours, and a breach of the
bank's obligation to pay on proper demand

is essential to a cause of action for the deposit and' to set the statute of limitations

Same - Limitationssions.

Action by Mary Koe'zer and another,

executrices of Jacob Koelzer. deceased,

against the First National Bank of
Whitewater. From a judgment for defendant, plaintiffs appeal. Reversed.
Appeal from the Circuit Court for
Walworth county. The action was to
recover moneys deposited by Jacob
Koelzer in the defendant bank subject to
be checked out in the regular course of
business. The last transaction between
the defendant and the depositor in respect to the account occurred more than
six years before the commencement of
the action. It was claimed in the complaint and denied by the answer that the
balance due after such last transaction
was $533.26. A balance at that time of
$8.25, was conceded. Plaintiff claimed
that a deposit of $525.00 was made,
which was disputed. The six-year statute of limitations was duly pleaded. The
cause was tried by the court, resulting in
findings to the effect that the true balance
was as claimed by plaintiff, but that the
cause of action accrued to recover the
same at the date of such last transaction,
and without demand for payment, and

hence such cause of action was barred by

the six-year statute of limitations. Judgment for defendant was rendered accordingly.
J. H. Page (William Smith, of counsel), for appellants. James G. Kestol
(Whitehead & Matheson, of counsel),
for respondent.
MARSHALL, J.

running in respect to it.

2.

LAW

Statutory

Provi-

An action against a bank for a deposit

subject to check is complete only on the
bank's failure to pay on proper demand
being made, and is barred In six years
thereafter by Rev. St. 1898, Sec. 4222, subd.
'3,and is not affected by section. 4226, pro.
viding that actions for the balance due on
account accrue at the time of the last item
in the account.
Appeal from Circuit Court, Walworth
County, E. B. Belden, Judge.
*Above headnotes copyrighted by West
Publishing Company and reproduced here by
its permission.

(after stating the facts).

The learned Circuit Court seems to have

applied to the facts of this case the doctrine which prevailed in Curran v. Witter, 68 Wis. 16, 31 N. W. 705, 60 Am.
Rep. 827. The question there was this:
Is a demand for payment of a bank's
written obligation in the form of an ordinary certificate of deposit essential to a
cause of action to recover thereon? For
the reason that the relations of the par-

ties to such an instrument are those of

debtor and creditor, and all its characteristics are identical with those of a

promissory note payable on demand, it

was held to be such a note and to be
governed by the law relating to such
contracts as regards necessity for demand

THE LAW
for payment as a condition precedent to
action thereon. That is, since in contemplation of law, a promissory note
payable on demand is due from its date
and affected by. the statute of limitations
from that time, such a note payable by a
bank, though called a certificate of deposit, must be governed accordingly.
That is well supported by judicial authority, though there is much authority to
the contrary, mainly based on the theory
that the relation between a bank and its
depositor is not that of a debtor and
creditor, but more like that of a bailee
and bailor. Obviously since the rule as
to a certificate of deposit is grounded on
the fact that it is a mere promissory note
payable on demand, it does not necessarily apply to ordinary indebtedness of a
bank to a depositor carried on its books
in open account subject to check.
If such indebtedness as that last mentioned were of the same character as
that on an ordinary account one would
be governed by the same rule as the
other as regards the statute of limitations. A cause of action to recover
thereon would not be dependent upon a
formal demand for payment. Manifestly
it is not of the same character. In case
of an ordinary account it is the legal
right of the creditor to have his .debtor
seek him out and pay him. There is no
such obligation as to a bank creditor.
The general custom in banking business
is to pay on account of such indebtedness
only upon a proper demand therefor by
check or its equivalent at the banking
house during ordinary banking hours.
One who deposits money for his credit
in such an account, without any special
understanding to the contrary, is presumed to accept the undertaking of the
bank to pay according to the general
usage in such cases, which is known to
all men. There being such a general
custom, without some special stipulation
to the contrary, the contract between the
bank and its general depositors, by necessary implication, accords therewith. So
a breach of the bank's obligation to pay
upon a proper demand being made, or
some act on the part of the bank dispensing with such demand, is.essential

to a cause of action to recover of it and

set the statutes of limitations running in
respect to the debt.
The judicial and elementary authorities are in substantial harmony with the
result above reached. In Wood on Limitations (3d Ed.), Sec. 17, the trend of
American decisions is stated in these
words:
"But it appears to be that an action
will not lie against a bank for a deposit
until after a demand has been made
iherefor. The engagement of a bank
With its depositor is not to pa' absolutely
md immediately, but when payment shall
be requested at the banking house, and
therefore it is not in default or to respond in damages until demand and refusal; nor does the statute of limitations
begin to run until demand has been duly
made."
The texts in Morse on Banks and
Banking (4th Ed.), Vol. 1, Sec. 322, and
the Am:& Eng. Ency. of Law (2d Ed.),
Vol. 3, p. 838, supported by numerous
authorities, are to the same effect.
It is suggested by counsel for respondent that as this court has held that the
relation between a bank and its depositor
is that of debtor and creditor and that
no demand for payment of its ordinary
certificate of deposit is essential to a
cause of action to recover thereon, it
must necessarily follow that the same
rule applies to an ordinary indebtedness
on open account, as in all jurisdictions
the rule is uniform as to both classes of
indebtedness. Counsel are in error in
that. True, many courts hold contrary
to the policy adopted here as to a demand being necessary to a cause of action on certificates of deposit. True, in
such jurisdictions there is no distinction
between indebtedness on such a certificate and indebtedness on open account,
but in every jurisdiction, so far as we
can discover, where it has been held that
the statute of limitations on such a certificate runs from its date, and the question has been determined as to when it
runs as to an ordinary bank credit subject to check, it has been held that a demand for payment is necessary to set
such statute in operation. As significant

THE
in that regard as any of the American decisions are those of the Supreme Court of
Minnesota, since the rule there is that
the relation between a bank and its depositors is that of debtor and creditor.
Branch v. Dawson, 33 Minn. 399, 23 N.
W. 552; Mitchell v. Easton, 37 Minn.
335, 33 N. W. 910. See, also, Morse on
Banks and Banking (4th Ed.), Vol. 1,
Secs. 302, 322.
We do not overlook the fact that the
account in question, as is usual, was an
open account current and that it is pro-

vided by statute that "in actions brought

to recover the balance due upon a mutual
and open account current the cause of
action shall be deemed to have accrued
at the time of the last item proved in
Section 4226, Rev. -St.
such account.1898. That does not apply where by
agreement between the parties the debt
is payable only upon the happening of
some particular event. Mere bank credits are an exception to accounts in general referred to in the statute, since, as
stated, demand for payment at the banking house during banking hours is essential to put the bank in default. Section
4226, Rev. St. 1898, does not, but subdivision 3, Sec. 4222, Rev. St. 1898, does
cover such cases .as the one before us; it
being understood that the statute commences to operate only from the time
the cause of action is complete.
The judgment is reversed, and the
cause remanded with directions to render
judgment in favor of the plaintiff for
$533.26, with interest thereon from the
5th day of February, 1898, with costs.
NOTE.-The principal case seems to be
the general, if not quite the universal, rule
and the reason of the rule is applied in
other kinds of deposits. Thus it has been
held in Georgia, that, where a wife places
money in the hands of her husband to use
for her benefit with no time fixed for an accounting, the statute does not begin to run
until there is a demand for its return.
Rucker v. Maddox, 114 Ga. 899, 41 S. E. 68.
And in the same state, in a case of the deposit of money in lieu of a bail bond, where
conviction was set aside, it does not begin
to run until the depositor demands its return. City of Savannah v. Kassell, 115 Ga.
310, 41 S. E. 572.

LAW
But if a situation arises where a demand
might be presumed or would be considered
to be waived, the statute begins to run from
the time of such occurrence. Thus it has
been held that suspension of payment and
discontinuance of banking operations starts
the statute from the date of suspension.
Schinotti v. Whitney, 130 Fed. (C. C. Dir.
Louisiana) 780. The date of the beginning
of the statute has also been placed at the
time when the depositor obtains knowledge
of the suspension. Union Bank v. Planters'
Bank, 9 Gill & J. (Md.), 439, 31 Am. Dec. 113.
In Maryland also it has been held that a
bank may, by notification to a depositor that
his claim for a deposit will not be paia at
the counter, start the running of the statute.
Bank v. Planters'
Farmers' & Mechanics'
Bank, 10 Gill & J. 4-22. In Massachusetts it
was ruled that the statute began to run
from the date of a monthly balance Etruek
in the bank book of a depositor. Union
Bank v. Knapp, 20 Mass. (3 Pick), 96, 15
Am. Dec. 181. As seen, however, in a late
case, the rule of the principal case is firmly adhered to in Massachusetts. Dickiinson
v. Leominster Say. Bank, 152 Mass. 49, 25
N. E. 12.
The fact of refusal to honor a check where
there was a larger sum in the bank than
the check called for starts the statute oaly
for the amount called for by tae check.
Viets v. Union Nat. Bank, 101 N. Y. 563, 5
N. E. 4.57, 54 Am. Rep. 743. Along the same
line of ruling it was decided in Vermont,
where an account was closed and a check
drawn for apparent balance, the statute did
not begin to run as to an amount erroneously charged the depositor. Goodell v. Brandon Nat. Bank, 63 Vt. 303, 21 Atl. 956.
In Schinotti v. Whitney, supra, which sustains the principal case upon such a state
of facts as therein existing, yet further h Id
that where the deposit draws interest this
constitutes, under the Louisiana statute,
"money lent," and the statute begins to rin
with the date of the deposit.
As to certificates of deposit the courts
of the state are in conflict, the weight of authority seeming to be that they stand upon
the same footing as an ordinary deposit with
the statute not beginning to run until demand for payment. See Sharp v. Citizens
Bank of Stanton (Neb.), 98 N. W. 50; Citizens Bank of Humphreys (Neb.), 89 N. W.
775; Fells Point Say. Inst. v: Weedon, 18
Md. 320, 81 Am. Dec. 603; Howell v. Adams,
68 N. Y. 314; McGough v. Jamison, 107 Pa.
St. 336; Bellows Fall Bank v. Rutland Co.

THE
Bank, 40 Vt. 377. In New York it was also
held that where the certificate payable on
demand on order of payee and to bear iiterest, if amount is left in bank for six
months, does not change this rule. In re
Cook 83 N. Y. S. 1009, 86 App. Div. 586.

Other state courts hold that the certificate

is due immediately with the statute beginning to run from its date. As a corollary of
this these courts generally hold, that transfers are affected by the rule as to negotiable
instruments purchased after maturity. See
Brummagim v. Tallant, 29 Cal. 503, 89 Am.
Dec. 61; Meador v. Dollar Say. Bank, 56
Ga. 605; Mitchell v. Easton, 37 Minn. 335,
33 N. W. 910; Tripp v. Curtenius, 36 Mich.
494, 24 Am. Rep. 610. In a later Michigan
case, however, the rule as to purchasing
subject to equities was not enforced, where
there was a purchase thirty-one days after
issuance, notwithstanding the certificate was
due from its date, as from the usages of
tra'de with respect to paper of this character, this was not a sufficient lapse of time
to put. the purchaser, who paid full value,
upon any inquiry as to the existence of any
equities, between the bank and prior holders.

Has a Minister of the Gospel the

Right to Refuse to Perform a

Marriage Ceremony?

The divorce evil is very properly receiving the renewed attention of religious
bodies. We are informed that many of
the leading denominations do not allow
their ministers to marry persons previously divorced on other than Scriptural
grounds, and that many individual muinisters of other denominations have prescribed the same rule for their own conduct. It is, therefore, getting more difficult for divorced persons 'to secure a
minister of standing to perform the marriage ceremony.
The question, therefore, arises as to
whether a minister has a legal right to
refuse to marry a person who is marriageable under the laws of the land.
The law treats marriage simply as a
civil contract, and a minister in the performance of the ceremony is acting in
the capacity of a public civil officer.
The fact that the minister makes the
ceremony of a religious nature does not
change its legal aspect, for a perfectly
valid marriage may be performed with-

out any religious ce.remony whatever.

LAW
In Virginia there is no such thing as a
common law marriage-thar is, there
can be no marriage except according to
statute. Unlike some of the other states,
the judges and justices are not by virtue
of their offices authorized to perform
the ceremony.
Indeed, no minister can p2rform the
rite unless specially authorized to do so
by the courts, in which case he is required to give bond for the faithful performance of his duties.
It would be an anomaly in the land, if
an officer were allowed to refuse to perform an official function wben the person applying for its exercise had in all
respects complied with the law.
It is unfortunate that the laws of the
state and those of the churchcs should be
at variance; but it would seem that a
minister in taking upon himself the duties of an officer of the law should be
governed by the law. Or perhaps it
would be better to say that a man should
not accept from the state an office, the
duties of which he can not conscientiously perform; or, having accepted such an
office, he should resign when he finds
such conflict exists.
It is true that in Virginia the courts
may authorize persons other than ministers to perform the marriage ceremony,
but, if the minister has the right to refuse to perform, because to do so would
be to violate his conscience or to break
the rules of his church, then any other
officer would have the same right, unless,
indeed, the minister's rights of conscience
are more sacred than the rights of other
citizens.
If the minister may refuse to marry
persons legally marriageable, would it
not be equally competent for the clerk
of the court, for the same reason, tc
refuse to issue the marriage license?
It is no answer to say that, if one minister refuses to perform the ceremony,
another minister or some officer may be
applied to, for if one may refuse, so may
all, and thus those appointed to perform
a duty might usurp the legislative function and practically prescribe the prerequisites of marriage.
If the question is ever brought before

460

THE

the courts, it would be interesting to observe whether it is possible to avoid a

clash between the law of the land and
advanced Christian sentiment.-Virginia
Law Register, September, 1905.
Lord Brougham.
Brougham was acutely alive to the importance of self-advertisement. In his
heyday no name was more frequently
in the mouths of men than his. In this
he showed his worldly wisdom. Notoriety is of vast importance in political life.
Those in whom the public take an interest are those who most speedily succeed. Cloistered virtue is disregarded
virtue. Men do not now seek Cincinnatus at his farm. A hundred vendors
are offering their abilities for sale. The
ambitious must press into the marketplace and cry their wares as loudly as
they can. The popular character of our
government puts a high premium on selfadvertisement. To receive the confidence of the democracy, you must be
known to the democracy. Brougham
was fully awake to these truths and lost
no opportunity of keeping himself well
before the public. He was vastly assisted by the support of The Times,
which flattered him outrageously for
years. He actually went so far as to
spread a report of his death, in order to
create a sensation and see what the newspapers would say about him. Some of
the obituary notices were not very flattering. He had many satellites, who
talked about him and advertised him in
society. One of the chief of these was
Lord Sefton, who is described in Greville's Journal as "Brougham's trumpeter." Sefton used to watch Brougham
in society and never listened to anybody
else when he was there.
Brougham's chief failing was his lack
of balance. He was wanting in judgment and prudence. He was greedy of
present approbation, and played many
strange tricks in pursuit of it. Sometimes his eccentricity was so great as to
suggest a mind that was unhinged.
Dugald Stewart, under whom Brougham
had studied as a youth, considered him
the ablest man he had ever known, but

LAW
mind constantly oscillating on the verge
of insanity. Greville, in 1834, applied to
him the lines:
"Great wits are sure to madness near
allied,
And thin partitions do their bounds divide.
"* *

In spite of his faults,

Brougham's character had many noble

aspects. He conferred great services on
his countrymen. Setting his mind on
certain reforms, he labored on through
session after session until he achieved
them. Education, the abolition of slavery, charitable trusts, law reforms, were
all subjects of his unremitting efforts.
He had a passion for the spread of
knowledge. 'To diffuse useful information,' he once said, 'to further intellectual refinement, sure forerunner of moral
improvement-to hasten the coming of
the bright day when the dawn of general knowledge shall chase away the lazy,
lingering mists-even from the base of
the great social pyramid-this, indeed, is
a high calling, in which the most splendid talents and consummate virtue may
well press forward, eager to bear a part.'
To this ideal Brougham devoted a large
part of his own life, and his services in
the diffusion of knowledge would alone
bestow on him a title to public remembrance and public gratitude."-Extracts
from article by J. A. LOVAT-FRASER in
The Judicial Review.

Amendment of Constitutions of Incorporated Associations.

In New Jersey a question has arisen,
as to amendment of the constitution of
the Plainfield Country Club, to which the
New Jersey Law Journal gives considerable of its space in its December, 1905,
issue.
It seems, that a majority, but not a
two-thirds majority, of that club are very
desirous of amending its constitution so
as to permit golf playing on Sunday.
The constitution provided for its
amendment by a two-thirds vote. The
majority secured opinions from eminent
lawyers, that a two-thirds vote was not
necessary for amendment, and the minority obtained opinions of equally eminent

THE LAW
essary. On the one side in these opinions appears Hon. Wm. B. Hornblower,
a sometimes member of the United States
Supreme Court, and on the other Hon.
John W. Griggs formerly United States
Attorney-General.
The reasoning advanced by Mr. R. V.
Lindabury and approved by Mr. Hornblower, as to the -sufficiency of a majority
vote to effect such change is in effect
as follows: The general rule that change
must be made as indicated by the charter
and by-laws is conceded, but it is limited
to .interference with vested property
rights. Otherwise a majority suffices.
The fact of designating one portion of
the laws or rules of an incorporated association constitution and another part
by-laws, is immaterial, as all are merely
by-laws. The statute authorizing the incorporation merely empowered it to
adopt and from time to time amend or
change its constitution.
The constitution in question was looked
on as a provision simply for the regulation of the affairs of the club in the
ordinary way and for the admission of
new members, and therefore was amendable by a majority vote, despite what it
said on this subject.
Mr. Griggs (upon the same side with
whom is Mr. John E. Parsons of New
York) thought that a constitution, when
once adopted, becomes a compact between the members, and members newly
admitted accept its obligations. He supposes the case of its providing for
amendment at an annual meeting and
thinks if the two-third rule as to one
thing could be set aside it could also as
to this. Thus, in one way or another,
instead of a constitution, though unanimously adopted at the beginning, being
an instrument upon which reliance may
be placed, it is always "subject to the
capricious act of a majority of the members present at any meeting." Mr.
Griggs does not care to distinguish between the terms constitution and by-laws,
but believes there is a compact upon
which reliance can be placed as to
either.
Mr. Parsons agrees with Mr. Griggs
in quite emphatic terms, and does not
concede the point, that no property in-

terests are involved in mere regulation.

The corporation is possessed of property
and is dependent upon dues, and how it
shall be managed affects its pecuniary
interest.
We think Mr. Griggs and Mr. Parsons have decidedly the better of the
argument in this matter, especially as it
seems to us, that the statement of a twothirds vote being necessary has reference
to other provisions prescribing quorum.
Feeling on the Sunday golf question appears to have very thoroughly divided
the members of the Plainfield Country
Club. In that situation, unless some restriction were placed on the power of
amendment, whatever is the majority at
one meeting might be a minority at another.
With constitutions and by-laws, under
majority amendment, there could be the
game of battledore and shuttlecock, until
members would not only not know what
was the latest provision, but factional
strife would destroy the beneficent objects aimed at.
It has become a too firmly recognized
view in the formation of associations, incorporated and unincorporated, that a
limitation such as is considered is a
good limitation against what a chance
majority may otherwise desire.
Then, too, the basis upon which the
right of majority amendment may be exercised, if Mr. Hornblower is correct, is
a hazy, uncertain kind of foundation.
What regulation affects property or vested interests and what fails to affect such,
would, in a great many cases, furnish
very debatable questions.
One might contend that every regulation pertains to general welfare, and
general welfare is a property right, paid
for by dues and assessments, contributed
to its preservation.
In a great number of associations
membership has a tangible market value,
and wrongful deprivation of privileges
involves property loss.
It ought not to be said that the vested
interest should be directly affected, but
incidental harm should constitute sufficient reason for restraint according to a
prescribed way.
Like Mr. Griggs, we think: "It would

THE

LAW

any and horsehair chairs, and obsolete

tables with spindle legs.
There are plenty of lawyers in "Bleak
that all such provisions * * * are
besides Tulkinghorn. ConverHouse"
appeal
whensubject -to alteration and
of Kenge & Carboy, Linsation
Kenge,
the
members
vote
of
a
majority
ever
coln's Inn, was a portly, important lookpresent at any meeting may so declare."
ing gentleman, dressed all in black, with
a white cravat, large gold watch-seals, a
Vein.
Lighter
The
pair of gold eye-glasses, and a large seal
(Readers of THE LAW are kindly invited
to help along this column with any incident,
ring upon his little finger. Mr. Guppy
or
knowledge
in
their
humorous,
witty or
experience.)
was employed in Kenge & Carboy's office, where he learned enough to file his
LAWYERS.
DICKENS'
OF
CHARLES
SOME
-Here is Jaggers, the criminal lawyer of declaration of love to Esther "without
"Great Expectations." With Pip we prejudice."
may check off in detail "his large head,
. Mr. Vholes was another solicitor in
his dark complexion, his deep-set eyes, Jarndyce v. Jarndyce. He was a sallow
his bushy black eyebrows, his large man, with pinched lips, that looked as if
watch-chain, his strong black dots of they were cold, a red eruption upon his
beard and whisker, and even the smell face, tall and thin, high shouldered and
of scented soap on his great hand." Mr. stooping, always dressed in black, black
Jaggers' office was a most dismal place., gloved, and buttoned to the chin. Mr.
and there were some odd objects that Vholes used to say that when a client of
you would not expect to see, such as an his laid down a principle that was not
old rusty pistol, a sword, strange-looking of an immoral nature it devolved upon
boxes, mementoes of clients dead and him to carry it out; the ethical force of
gone, and on a shelf two dreadful casts which was rather marred by his explanaof faces peculiarly swollen and twitchy tion that by immoral he meant illegal.
But, of all Dickens' disreputable lawabout the nose. "These are two celeyers,
Sampson Brass, Daniel Quilp's atbrated ones," as Wemmick, Jaggers'"
was probably the lowest. He
torney,
"Famous
to
Pip.
satellite, explained
clients of ours that got us a world of was a tall, meager man, with a nose like
credit. This cast was made in Newgate, a wen, a protruding forehead, retreating
directly after he was taken down. You eyes, and hair of a deep red, with a
cringing manner and a very harsh voice
had a particular fancy for me, hadn't
you, Old Artful?" Jaggers himself sat -his face being, indeed, "one of nature's
in a deadly black horsehair chair, with beacons, warning off those who navigated
the plaster casts perched above him, and the shoals and breakers of the World,
treated his clients like criminals, as in or of that dangerous strait, the Law."
But, as he was wont to boast, he was a
fact they were.
Here is Mr. Tulkinghorn, the sly, un- gentleman-by Act of Parliament. "I
scrupulous old family solicitor, "the stew- maintain the title by the annual payment
ard of the legal mysteries, the butler of of twelve pounds sterling for a certifi-'
the legal cellar of the Dedlocks, sur- cate. I am not one of your writers of
rounded by a halo of family confidences, books, or painters of pictures, who asof which he is the silent depositary." He sume a station that the laws of their
was of the old school, and wore knee- country don't recognize. If any man
breeches, tied with ribbons, and gaiters. brings an action against me he must deHe was a hard-grained man, close, dry, scribe me as a gentleman, or his action is
silent, with a priceless bin of port in null and void." Well might the words
some artful cellar under his chambers in of Sir Thomas Smith apply, "Gentlemen
Lincoln's Inn Field, where he sits alone bee made good cheape in England."after dinner to enjoy his wine, with the Extract from "The Law and Lawyers'"
Allegory in a Roman helmet sprawling of Charles Dickens. Article in Amerion the painted ceiling above him, while can Law Register by John Marshall
around about are old-fashioned mahog- Gest.
be a matter of astonishment to most of
the incorporated social clubs to be told

THE

LAW

REAL PROPERTY.
By R. T. BROWNRIGG, Esq.

Tenancy by the Entirety.-In the case of

Darden et al. v. Timberlake, decided by
the Supreme Court of North Carolina, October 3rd, 1905, 51 S. E. 895, the court construed a deed in which the grant was to
"Sam'l Williams and. wife Annie and their
heirs, including the former children of said
Annie by another husband." The court rejected the words "and their heirs" as surplusage, and construed the grant as a grant
to Samuel Williams and wife Annie and to
the children of Annie by a former husband.
There were three of these children. The
court held that Samuel and Annie Williams,
being regarded in law as one person, took
one fourth as tenants by the entirety, and
the three children took one-fourth each, and
that, upon the death of his wife Annie, the
one-fourth which was vested by the deed
in Samuel and Annie became his alone by
right of survivorship.
In view of recent enactments concerning
the property rights of married women, it
is of interest to inquire whether or not
there still exists such a unity of person in
the case of husband and wife as will result
under such statutes in the creation of an
estate by the entirety wherever there is a
grant to a husband and wife jointly. In
the case above cited, it does not appear
from the opinion at what time the 'deed
construed was made, therefore we can not
say that this is a decision to the effect
that under the married woman's act of
North Carolina, there has been such a
change in the unity of person of husband
and wife as to do away with tenancy by the
entirety.
In the State of Missouri, in case of a
conveyance to husband and wife prior to
the married woman's act of 1875, there
seems to be no doubt that an estate by
entirety is created. See National Bank of
Chicago v. Fry, 168 Mo. 492, 1. c. 508.
But the Missouri decisions are not in a
very satisfactory state as to the effect of
such conveyance made subsequent to the
married woman's act. In the case of McLeod v. Venable, 163 Mo. 536, a wife in
1876 inherited money from her father and
this money, together with other money belonging to her husband, was invested in real
estate, and the deed was made to the husband' and wife jointly. Upon the death of
the wife, it was held that the husband and

wife were in such case not tenants by the

entirety, and, therefore, the whole did not
survive to him, and a court of equity would
declare a resulting trust in the land in
favor of the wife's heirs.
In the case of Armstrong v. Johnson, 93
Mo. App. 492, there were certain certificates
of deposit made out jointly in the name of
husband and wife, all after the year 1895.
It was held that upon the death of the
wife, the husband did not take the entire
fund by survivorship, but that each was
presumed to have a one-half interest which
descended to their personal representatives
upon the death of both.
In State ex rel. Toebben v. Brady, 53 Mo.
Ap. 202, the decision was to the same
effect.
In the case of Russell v. Russell, 122 Mo.
235, it was decided that where land is
owned by a husband and wife as tenants
by the entirety prior to a divorce, they may,
after divorce, have partition. The court
recognizes the principle that there can be
no partition of property between persons
who hold as tenants by entirety, but holds
that the only basis of such a tenancy is the
unity of husband and wife.
After that
unity is destroyed by divorce, the tenancy
by entirety ceases and they become tenants
in common, and, therefore, may have partition.
It would seem, therefore, that as the maried woman's act, as to property rights,
recognizes the separate personality of husband an'd wife and that, since, so far as
property rights are concerned, the unity of
person upon which tenancy by entirety alone
has its basis is destroyed, there should be
no tenancy by entirety in case of a conveyance to husband and wife made in Missouri
subsequent to the married woman's act, at
least, not as to such property as by the
terms of the act is made the separate
property of the wife. But in the case of
Bains v. Bullock, 129 Mo. 117, the property
in question was conveyed to the husband
and wife jointly by two deeds, one executed
in 1888 and one in 1891. It was held that,
notwithstanding the married woman's act,
such conveyance created a tenancy by entirety. The husband and wife were still living at
the time of the filing of the suit, and the
wife sued in ejectment for the recovery of
the property from a third person without

THE
joining her husband, and it was held that,
being a tenant by the entirety, an'd- since
each of such tenants is eotitled to possession of the whole and since a wife, under
the married woman's act, may sue for injuries affecting her property without joining her husband, the wife might sue and
The
recover the property in ejectment.
court says, 1. c., p. 120:
"The statute abolishes the legal unity between husband and wife, which gave rise
to estates by the entirety, but the estate
itself has not been abolished. (Sec. 8844,
R. S. 1889.)"
It is also held in Hume v. Hopkins, 140
Mo. 1. c. 72, that a deed to husband and' wife
jointly, made in 1876, creates an estate by
the entirety with a right of survivorship in
the husband. It does not appear in this
case as in the case of McLeod v. Venable,
supra, that part of the purchase price paid
for the land was the separate property of
the wife. Therefore, these cases are not
necessarily in conflict.
But we have this anomalous situation in
the decisions. It is held in Russell v. Russell, supra, that the sole basis of tenancy
by the entirety is unity of persons and
where that unity is en'ded by divorce, the
tenancy by entirety no longer exists.

LAW
It is held in Bains v. Bullock, supra, that,
though the statute has abolished the legal
unity between husband and wife, a tenancy
by entirety may, nevertheless exist.
Two of the principal incidents of tenancy
by the entirety are survivorship and that
each tenant is seized not of a moiety but
of the whole, per tout et non per my. But
in the case of McLeod v. Venable, supra, it
is held that where a deed is made to husband and wife jointly and part of the purchase price belonged to the wife, tenancy
by entirety has been so far abolished by the
married woman's act that the husband doe6
not take by right of survivorship upon her
death. In the case of Bains v. Bullock,
supra, it is held that, notwithstanding the
married woman's act, in case of a grant to
husband and wife, there is still such a
tenancy by entirety that each is seized of
the whole.
The decision of McLeod v. Venable, in
163 Mo., does not expressly overrule any of
the earlier decisions above referred to, and
in this state of the law, it is exceedingly
difficult to say in what cases a conveyance
to husband and wife will create an estate
by the entirety, in Missouri; and to what
extent this sort of estate is affected by statutes relating to the property rights of married women.

TITLES AND ABSTRACTS.

By McCUNE
Sale of Decedent's Real Estate to Pay
Debts.-Perhaps the most urgent need for
the laws compelling administration of a decedent's estate arises from the helplessness
of the dead man's creditors. That the administration law is a most beneficent one
in this respect is attested by the number
of instances where the real estate must be
sold, to satisfy the debts. There are few
titles in which this form of involuntary conveyance does not exist, and while few sales,
though irregular, are contested-most people
are honest-yet an examiner can hardly afford not to scrutinize with the utmost care
these proceedings, created as they are by
statute, and encumbered with a not inconsiderable amount of legal technicality.
There are ten distinct steps established
by the Missouri statutes and decisions, which
go to form a perfect transfer of real estate
to pay debts of a decedent. Each of these
requisites should be abstracted or Its absence noted.

GILL, Esq.
1. Petition. If any person die and his
personal estate be insufficient to pay debts,
a petition to the proper court praying for a
sale of the real estate. Such petition shall
be accompanied by a true account of the
administration, a list of the debts and of
the executor or administrator shall present
the real and personal estate belonging to
the estate, the whole being verified by affidavit. Sec. 145, 147, R. S. Mo. 1899. By
way of comment and elucidation of the foregoing basic statutes, it will be well to add,
that it is not essential that the executor or
administrator present the petition. A creditor or "other person interested" may do this,
upon giving 20 days' notice to the executor
or administrator. Sec. 150. Furthermore,
it is not necessary that the perconal property be exhausted; the petition may pray
that the personal estate be reserved and the
real estate sold to pay the debts. Sec. 161.
In Bray v. Adams, 114 Mo. 486, It was decided that "if the exhibits filed with the

THE

LAW

petition for order of sale are not found

among the papers of the estate, this fact
does not impair the validity of the order;
and it is not necessary that the land to be
sold be specifically described in the petition." Lastly, if the court at any regular
time for settlement is of the opinion that
a sale would be for the best interests of the
estate, it may of its own motion, and without petition, exhibits or inventory, order
that a sale be had. Day v. Graham, 98 Mo.
398.
2.
Order of Publication and Personal
Service. When such petition is filed, the
court shall order that all persons interested
shall be notified thereof and that unless the
contrary be shown on the first day of the
next term, an brder will be made for a sale
to pay debts.

5. Notice of Sale. The executor or aaministrator shall prepare a notice of the proposed sale, containing a description of the
property zo be sold and specifying the time,
No notice is
terms and place of sale.
necessary when the court ordeis a private
sale, and the sale is made in that manner.
6. Proof of Publication of Notice of Sale.
This must be an affidavit of a manager of a
newspaper published in the county, ietting
out a publication in his journal for 'four
weeks prior to the day of sale.
7. Oath of Appraisers. Three d.sintererted householders of the county in which
the land lies, must make affidavit that they
will view and appraise the property in question to the best of their ability.
8. Appraisement. This is simply a signed
statement of the appraisers of the value of
the interest to be sold.

3. Proof of Publication and Personal

Service. There must be affidavits proving
a publication for four weeks in a newspapex
published in the county in whica the proceedings are had, or by ten handbilis rut up
in ten public places twenty days before the
term. There must also be affidavit showing
personal service on all heirs and devisees
residing in the county where the administration is had ten days before the term. It is
decided in 133 Mo. 400, 413, and 114 Mo. 486,
that when the order is made at an annul
settlement fixed by law (with or without petition), the parties are supposed to be in
court, and must take notice of orders af.
fecting their interests, but when the order
is made at a time other than an annual settlement, the heirs are not in court, and the
notice required by law must be given, to
give the court jurisdiction to make the order
of sale.

9. Report of Sale. The administrator's

report of sale is the only record of the
actual sale, and' it must show that (if the
sale was public), it was inadc at the court
house door, or, in cities of ov,' 100,000, on
the floor of the real estate exchange or at
the court house door; that it was made during the sitting of the circuit, county or
probate court, and that the sale was at public auction. If the sale was private, it must
appear that the price obtained was more
than % of the appraised value. All reports
of sale must be accompanied by an affidavit
of the administrator that ale did not directly
or indirectly purchase said real estate or
any part thereof or any interest therein, and
that he is not interested in Lhe property
soil except as stated in cite report.

4. Order. The order must id.ePntify th,

property to be sold, order a sale thereof, at
public or private sale, and prescribe the
time, terms and place of such sale.

10. Confirmation. This' the last of the

steps in a valid sale for the payment of
debts, need only be a simple order of the
court confirming and approving the sale.

THE

LAW

TORTS, NEGLIGENCE AND DAMAGES.

By CLAUD D. HALL, Esq.

Master and Servant-The Master's Nondelegable Duties to the Servant.-The

duties of the master to his servants arise
out of the contract of employment and are
limited to the obligation which, under that
contract, he has impliedly agreed to perform. The assumption of risk by the servant
likewise grows out of the contract of employment by which the servant impliedly
contracts to assume the ordinary risks of
the employment in which he engages.
The servant, however, does not assume
any risk of the master's negligence. He
assumes no risk which may be obviated by
reasonable care on the master's part, or,
to state it in another way, the servant only
assumes the risk of the employment after
the master has done everything that he is
bound to 'do for the purpose of protecting
his servant.
The master is bound to use reasonable
care, or such care as an ordinarily prudent
person would use under the circumstances,
in the discharge of the duties imposed upo'
him by law for the protection of his servants.
These duties which the law imposes npon
the master (and of which the servant does
not assume any risk as a result of the master's failure to discharge them) and which
the master can not delegate to others, are
as follows:
1. To use reasonable care to provide a
safe place to work.
2. To use reasonable care to provide

proper tools and appliances for the conduct

of the work in which the servant is engaged,
and to see that they are maintained in proper condition as long as they remain in use.
3. To employ a sufficient force of competent workmen as may be necessary for the
safety of the servant. (Some writers also
put under this head the duty to furnish reasonably gentle animals, where animals are
used in doing the master's work.)
4. The promulgation and enforcement of
reasonable rules for the conduct of the work,
if the business is sufficiently complicated to
necessitate such rules. These rules may be
general orders issued for the guidance of
the servant or particular orders with reference to the details of specific work, and
in connection with such rules are the fol(1) They must be formlowing requisites:
ulated; (2) They must be brought to the
knowledge of the servant for whose benefit
they are framed; (3) The rules must be
carried out so their purpose will be accomplished.
5. To -use his superior skill, knowledge
and judgment to protect the servant from
latent and unseen danger so far as reasonable foresight can accomplish this result.
Where the master has properly discharged
all of these duties, and the servant is injured by a third person, or as a result of a
pure accident, or through his own contribstory negligence, or through assumed risk,
or through the negligence of a fellow sirvant, there is no liability on the master.

COMMON CARRIERS.
By JOSEPH DICKSON, Jr., Esq.

Passengers- Expulsion by ConductorCharacter of Act.-Where a conductor, to

whom a ticket is presented' by a passenger,
believes it to be his duty to reject the ticket
because of its invalidity for travel on the
date on- which it is presented, and the passenger fails to pay the fare demanded of
him, the conductor is not guilty of a tort
in expelling the passenger from the train,
unless he accompanies such expulsion with
unreasonable or unnecessary force or insult.
Southern Ry. Co. in Kentucky v. Hawkins, 89 S. W. Rep. 258 (Ky.).
Street Railroads--Injuries to Passengers
here, in an action for injuries
Alighting.-

to a female passenger while alighting from

a street car, negligence was charged in that
the car platform and steps were wet, mud'dy,
and slippery, rendering them dangerous for
ladies unassisted to alight, whether the carrier owed plaintiff a duty either to warn
or assist her was for the jury.
Flory v. San Antonia Traction Co., 89
S. W. Rep. 278 (Tex.).
Railroads-Collision with Street Car-Concurring Negligence-Joint Liability.-Where,
in an action for injuries to a passenger of
a street car in jumping therefrom to escape
a threatened collision with a railroad train,
there was evidence that, if the railroad, com-

THE
pany had kept a proper lookout, the street
car would have been seen and the train
would not have rapidly approached the crossing in the manner it did, and that, if it had
given a proper statutory signal of its approach, the car would not have gone on the
crossing, and also that, if the street car
had. stopped as required by a city ordinance
before attempting to cross the railroad, the
approach of the train would not have
alarmed plaintiff, the railroad and street car
companies were each guilty of concurring
negligence which caused the accident, and
were each, therefore, liable.
Galveston, H. & S. A. Ry. Co. et al. v.
Vollrath, 89 S. W. Rep. 279 (Tex.).
Connecting Carrier-Through ShipmentContract.-Where a bill of lading issued by
an initial carrier showed that it was a contract for a through shipment, when the
goods were delivered to the connecting carrier and carried by it under the bill of lading, such carrier became a party to the
original contract by adoption and ratification.
Chicago & E. I. R. Co. v. Chestnut Bros.,
89 S. W. Rep. 298 (Ky.).
Injury to Person on Track.-Where, in an
action against a street railway company for
injuries received by a pedestrian in a collision with a car, the evidence showed that
plaintiff was attempting to cross a street,
that she looked in both directions and saw
cars coming on both tracks, that she started
diagonally across the street, that before
reaching one of the tracks she was intercepted by a wagon, and that as she passed
behind it and was about to enter on the
other track a car struck her before she
could cross the track, the refusal to charge
that it was plaintiff's duty to not only look
before attempting to cross the track, but
also after she had been intercepted by the
wagon, and that if her failure to so look
was the direct cause of the injury there
could be no recovery, though the company
was negligent, was reversible error, though
the court charged that, if plaintiff failed to
exercise ordinary care, and her negligence
was the proximate cause of the injury, there
could be no recovery.
Knoxville Traction Co. v. Brown, et ux.,
89 S. W. Rep. 319 (Tenn.)
Delay in Freight Delivery- Damages.Where the plaintiff, in an action against the
railroad company, seeks to recover damages
for delay in delivering frieght, to entitle the

LAW
plaintiff to recover, the damages sought
must be such as may freely and substantially be considered as arriving naturally, in
the usual course of things, from the breach
itself, or such as may reasonably be supposed to have been in contemplation of the
parties at the time they made the contract;
and, if special circumstances under which
the contract was actually made, were communicated and made known to the railroad
company, the damages resulting from the
breach of such a contract would be the
amount of injury which would ordinarily
follow from a breach of contract under such
special circumstances so communicated and
known.
Choutaw, 0. & G. R. Co. v. Jacobs, 82
Pac. Rep. 502 (Okla*.).
Damages for Loss of Freight.-Where a
box of pictures was shipped with a lot of
household effects and billed as glass, in the
absence of actual fraud, the carrier is only
liable for the value of a box of household
glass.
Bottum v. Ry. Co., 51 S. E. Rep. 985
(S. C.).
Liability of Carrier After Arrival of Baggage.-When baggage has arrived at its destination, and- been deposited in the usual or
customary place of delivery, and kept there
sufficient time for the passenger to claim
and remove it, the carrier's liability as such
ceases, and it is thereafter only a warehouseman.
Charlotte Trouser Co. v. Ry. Co., 51 S. E.
Rep. 973 (N. C.).
Responsibility of Railroad Company for
Abuse by Depot Custodian.-In the case of
the Gulf, Colorado and Santa Fe Railway
Company against J. T. Luther, the Texas
court of civil appeals has decided that a
railroad is responsible for abusive language
used by a custodian of a waiting room
toward passengers waiting for a train. The
appellee, who was plaintiff in the lower
court, recovered $2500 from the railroad
company for the suffering of the plaintiff's
wife by reason of insults offered her by a
negro woman in charge of the waiting room
of the depot in Fort Worth during June,
1903.
The court finds that, while the plaintiff
was away from the depot on business, the
negress became very angry with his wife
on account of one of the plaintiff's small
children spilling water upon the floor. Mrs.
Luther told the woman it was an accident,

468

THE

as the child did not know there was water

in the cup, whereupon the woman called her
a liar and said other abusive things to her,
from the effect of which Mr. Luther is alleged to have suffered nervous prostration.
The judgment of the lower court was affirmed, Justice Neill, who wrote the decision,
saying, in part:

LAW
"The outrageous language and conduct of
the negro woman, whether denominated
negligence or not, were, because done by
her in 'discharge of the duties of her employment, acts for which the appellant, as
a common carrier, is responsible and liable
to plaintiff for all the "damage proximately
following therefrom."

ACCOUNTS, CREDITS AND COLLECTIONS.

By EDWARD S. MURPHY, Esq.
This department of THE LAW will be maintained in such a manner as to keep the busy
lawyer and business man up to date In the current law pertaining to the business interests of
this country, as handed down in the late decisions.
Contract of Guaranty.-A contract which
has ever been in very common use among
merchants, and which Increases in importance with the progress of commerce, is the
k.ontract of guaranty. Since the law of govQrning this contract is somewhat complicated and since, from the nature of the
undertaking, there is a strong temptation for
the guarantors to evade the consequences
of a default of the principal debtor, it has
been the source of a great amount of litigation.
Perhaps there is no contract the
terms of which should be more distinctly
defined thaii that of guaranty. The lew
governing guaranty is such that without
some technical knowledge thereof on the
part of a guarantee he will, in very many
instances, lose the benefit he counts upon.
For instance:
generally
(practically always), this contract must be in writing and
signed by the guarantor; generally
the
guarantee must notify the guarantor of an
acceptance of the guaranty; the terms of
the original contract between the guarantee
and the principal debtor must be strictly
complied with or the guarantor is released.
We will, therefore, endeavor to give a
somewhat thorough outline of the subject
as it affects sales and credits only.
The contract of guaranty is one whereby
one person binds himself to answer for a
debt, or the performance of a 'duty, of anothif.r person in case such debt or perfornance of duty cannot be satisfied as against
such other person. This definition excludes suretyship.
The original statute for the prevention
of frauds and perjuries was passed in the
29th year of Charles II. (1677). It required
written evidence of many contracts, Including that of guaranty. This statute, and
similar ones enacted by most of the United
States, is meant when, in legal parlance,
the "statute of frauds" is referred to. A con-

tract, purely of guaranty, therefore, must

be in writing and signed by the guarantor.
If A and B come into the store of C and
A guarantees the payment of any bills B
may purchase, the original promise Is between B and C-the collateral promise is
between A and C. In case A should say:
"Let B have what he wants and I will pay
you," we would have an apparent exception to the rule that a guaranty must be in
writing. Such a verbal promise would be
binding upon A, for the reason that it is
not a collateral undertaking upon his partbut an original one. In the former case
there are two distinct contracts covering
the one transaction; B in consideration of
,he goods ;-old and delivered him undertakes
to pay C for them; A in consideration of
C's granting credit to B undertakes to pay
C if C cannot collect from B. In the latter
case there is but one contract. The sale is
to A an'd, in legal contemplation, B only
figures in the transaction as the servant of
A in receiving the goods.
No special form or words are necessary
so long as it is clear that the guarantor
intended to bind himself as such. Mere requests to sell goods to another are not
guaianties; nor is a statement as to the
responsibility of another, unless there is a
wilful misrepresentation as to such responsibi'ity.
Where the principal contract is invalid,
the guara-ty Is not binding, but infancy or
coverture of the principal debtor cannot be
availed of as a defense by the guarantor.
In other words, while the principal debtor,
being an infant or a married woman, is not
answerable for his or her contracts, the
guarantor for such a person may be held.
An offer of guaranty must be accepted to
become operative. But such acceptance
need not be formal, but may be shown from
circumstances. It Is advisable to notify the

THE
guarantor formally, however, of an acceptance of his guaranty.
Like other contracts, the contract of
guaranty must be based upon a consideration to be valid. But "a valuable considertion, however small or nominal, if given or
stipulated for in good faith, is, in the absence of fraud, sufficient to support any
parol contract." Therefore, the fact that
credit is given the principal debtor by the
guarantee is sufficient consideration to bind
the guarantor. "Any act in the nature of
a benefit to guarantor, or to any person at
his request, is sufficient consideration for
his agreement of guaranty." A guaranty of
an existing debt is not void for lack of consideration, unless some new consideration
is supplied; as where one un'rtakes to
guaranty an existing debt in consideration
of an extension of time, or in consideration
of further credit to be extended.
The following syllabi will throw further
light upon the points considered in this
issue:
By the statute of frauds no action may be
maintained on a contract of guaTanty unless it be in writing.
Cases cited in 3 Current Law-1566.
A promise to pay the debt of a third person is void, unless in .writing.
Tanquary v. Walker,
Beerkle v. Edwards,
Shoch v. McLane, 62
Harris v. Frank, 81
856.

47 Ill. App. 451.

55 Iowa 750.
Mich. 454.
Cali. 280, 22 Pac.

A verbal promise to pay the debt of another, not founded on a new obligation supported by sufficient consideration is within
the statute of frauds.
10 N. Y. St. 280.
To bring a case within the statute of
frauds it is necessary that the undertaking
should be collateral to and in aid of the
promise of another.
Wainwright v. Straw, 15 Vt. 205, 40 Am.
Dec. 675.
Our statute that no evidence of a contract
to answer for another shall be competent
unless in writing, amounts to the same as
the English statute 2 Clarke 528 (Iowa).
A mere request by one person that credit
should be given to another does not create
a legal liability. There must be either a
guaranty of the debt or a misrepresentation
as to the responsibility of the person to

LAW
whom the goods are sold before a liability
exists.
Bushnell v. Bishop Hill Colony, 18 Peck
240.
If goods are sold on defendant's promise
to pay for them, and the credit is given to
him as the purchaser, he will be liable as
an original promisor, though the goods were
at his request delivered to a third person.
Geary v. O'Neal, 73 Ill. 593.
A guarantor agrees to pay if the debtor
cannot; a surety, if the debtor does not.
Appeal of Bell, 1 Penny 416.
The assignors of a judgment who "guarantied payment thereof in one year from this
date," held, sureties, and not guarantors.
-

Riddle v. Thompson, 104 Pa. 330.

Where the principal obligation Is invalid

the guaranty is not binding.
Merchants Bank v. State Bank, 93 Iowa
650.
But the guarantor is not 'discharged because the contract of the principal is void
from coverture or infancy.
Nabb v. Koontz, 17 Md. 283.
Hesser v. Steiner, 5 Watts and S. 476.
An offer of guaranty must be accepted to
become operative.
Sears v. Swift & Co., 66 Ill.
App. 496.
Lachman v. Block, 47 La. Ann. 505'
Wilkins v. Carter, 84 Tex. 438.
Where a guaranty is an offer to
responsible for a credit which may
not be given, the guarantor is not
unless notified within a rearonable
the acceptance of the guaranty.

become
cr may
bound,
time of

10 Peters, 482.
Sears v. Swift & Co., 66 Ill. App. 496.
The mere naked promise in writing to pay
the existing debt of another, without any
consideration therefor, is void.
Blakely Printing Co. v Barnard, 63 Ill.
App. 238.
Fuller v. Scott, 8 Kan. 25.
Bailey v. Freeman, 4 Johns 280.
A guaranty made at the time of the princih al contract is binding on the guarantor,
)c'cause it :s founded on the conblderation
existing between the principal paities.
Osborne v. Gullikson, 64 Minn. 218, 66
N. W. 965.
Brewster v. Short, 63 Hun 630, N. Y.
Supp. 799.

THE
'"here a guaranty is given after the execution of the principal contract a new considi.ration is necessary to suppoet the guarantj.
Peck v. Harris, 57 Mo. App. 467.
Baker v. Wahrmund, 5 Tex. Civ. App.
268, 23 S. W. 1023.
'The extension of time for payment of a
,lebt is a good consideration for a contract
guarantying its payment.
Peterson v. Russell, 62 Minn. 220.
64 N. W. 555, 29 L. R. A. 612.

LAW
Featherstone v. Hendrick, 59 Ill. App.
497.
!N here a guarantor acknowledges receipt
or e consideration in the contract, he is
estopped to deny it.
Taylor v. Tolman, 47 Ill. App. 264.
Sears v. Swift & Co., 66 Ill. App. 496.
Unless its terms forbid, a contract of continuing guaranty may be revoked on notice
to the guarantee.
Gay v. Ward, 67 Conn. 147, 34 AtI. 1025.

CONTRACTS.
By HENRY H. OBERSCHELP, Esq.

As a general rule, one can tell at the very

time a contract is entered into, whether or
not all the stipulations and, agreements
therein are binding on the parties or not;
but, paradoxical as it may seem, i.he circumstanices may be such that the lawyer when
consulted in such a matter would have to
reply that whether or not certain stipulations in a contract were binding, would depend upon whether or not the 1 artles are
citizens of different states and in what court
the case is tried? This is due [o the fact
that under certain circumstances the suit
might be brought in a state court or in a
federal court and under certa;n circumstances a defendant sued in a sLate court
can have the case tried in a state court, and
then appeal it to the state supreme court
and thereafter to the United States Supreme
Court, or ean have the case remoied at onci,

and tried in a federal con-' and thcn appeal

in the United States Supreme Court.
The state courts and federal courts hold
diametrically opposite opinions regarding
the common law as applied to certain cases.
Accordingly such a defendant can ascertain
whether it is the state or federal court which
is in his favor, and remove or not remove
the case to the federal court, as it may be
to his advantage. This is exemplified in the
case of Pennsylvania R. R. v. Hughes, 191
U. S. 477, wherein the court held that according to the decisions of the federal courts
and courts of New York a certain stipulation
was binding on the shipper, but not according to the Pennsylvania courts; that if the
suit had been tried in a federal court or a
New York court the shipper would have
been bound by the stipulation, but that inasmuch as it was tried in a Pennsylvania
court, the shipper was not bound.

FACTORS, BROKERS AND COMMISSION MERCHANTS.

By

BENJ. J.

Hypothecation of Consignor's Goods by

Factor.-Last week we reviewed a case in
which the right of a bank, under the circumstances there detailed, was denied the right
to retain cotton hypothecated by a factor
for loans. We propose to briefly review a
case in this issue in which the bank was
sustained in its right to retain cotton hypothecated to it for advancements.
The action was one in replevin to recover
39 bales of cotton. The bank brought the
suit. The cotton was stored in the warehouse, each bale being numbered, and
against it the warehouse company issued its
cotton note, as it was called, with a corresponding number. The business of the fac-

KLENE, Esq.
tors was to sell to buyers. The buyers in
turn assort and grade the cotton and sell
the same to Eastern customers. With the
cotton notes the warehouse company delivered samples of each bale. The factor sells
by sample, sending at the time an order to
the warehouse company to turn the cotton
out in the warehouse for inspection. The
buyer and employees of the factor inspect
and report to their principals the bales
coming up to sample, and so much as does
Is accepted by the buyer, who then calls
upon the factor for the cotton notes,
on the surren'der of which by the buyer the
warehouse company delivers the cotton to
the buyer, or to the transportation company

THE
named by him. After the inspection the
bales are weighed and marked with buyer's
marks.
M was a cotton buyer who had failed and
whose credit was gone, and he could no
longer get cotton except by paying for it
in cash. In this situation M arranged with
the agent of a transportation line that the
latter should get the cotton from the warehouse. The agent of the transportation line,
when he received the cotton ftom the warehouse, issued to the factor his receipt for
the cotton notes representing the bales received by the freight line. The freight line
was not to deliver the bills of lading for the
cotton to M until M redelivered the transportation receipts or bills of lading to the
freight line, which receipts M could not get
from the factor until he had paid for the
cotton which they called for. All arrangeroents to this effect were made between M
anl the freight line agent, and the factors
had no conversation with the freight line
agent. M told the factors that the freight
line agent would do as M reported he
could. The factors looked upon the arrangement as safe for them. The transportation company's receipts for the cotton
notes were sent by the factors to M, who
took up enough of them, as he said, to
cover the rhipment. M and the agent of
the freight line disregarded the arrangement
reported to the factors by M. The agent
habitually surrendered the receipts or bills
of lading to M, without requiring the surrender of the cotton notes from the factors,
so that on May 1st, 1880, the cotton for
.which bills of lading had been issued was
greatly in excess %f the quantity for which
receipts had been surrendered by M to the
agent of the freight line. M testified that
he could do no business without getting the
bills of lading in order to raise money in
bank to pay for the cotton, and there was
no concealment about the matter. But it
does not appear that the factors knew anything about this, and claimed to have first
discovered this about April 26th, 1880, on
which day they delivered to the agent of
the freight line at M's request 157 cotton
notes for cotton that they had theretofore
sold to M, and took the freight line way bill
for 157 bales of cotton. The 39 bales in
suit were among the lot of 157 bales called
for on April 26, and represented cotton sold
by the factors to M between January and
April, which had been replaced by M with
warehouse receipts for other cotton between
April 26th and May 1st. Finding that 39
bales of a lot he had pledged to the bank as

LAW
collateral would suit a particular shipment
he substituted them at the bank for 39 cotton notes already held by it and gave to
the freight line agent the notes he took from
the bank. It seems that exchanges of this
kind were customary, and was done to enable the shipper to make up assorted lots.
On May 1st, 1880, M failed a second time,
owing the factors about $18,000, at which
time the factors held the receipt of the
freight line for 157 cotton notes, and enough
more not delivered to the freight line to
make M's net liability to the bank $10,000.
There is nothing to show that the bank
had any notice of the arrangement between
M and the freight line agent and the factors, and took the cotton notes in question
for value in the ordinary course of business
as collateral security for advances made by
it to M.
The factors claimed the 39 bales, the
cotton notes representing which had been
obtained from the freight line without their
consent, and obtained' possession of game by
replevin, and then again stored the goods
with the warehouse company. Then the
bank brought this suit to recover the goods,
and had judgment in the circuit court.
The court held that the cotton notes represented the cotton itself and was as competent with which to make a pledge as the
cotton itself would have been. That had M
stolen the cotton notes he could not have
passed title, but the fraud practiced by a
vendee of a chattel, whereby he obtained a
sale and delivery of the same to himself,
will not authorize the vendor to take if from
one who has subsequently purchased for
value without notice of the fraud.
Also, that if by the arrangement described
above the factor, or in this case the vendor,
hoped to retain his lien after delivery to
the transportation company of the cotton
notes, his lien ought not to be allowed to
prevail against innocent third persons, and,
that the lien claimed by the factors here
could not be retained as against the bank.
Fourth Nat. Bank v. St. Louis Cotton
Comp. Co., 11 Mo. App. 333.
The distinction between this case and the
case noted in THE LAW last week lies here.
In this case the bank took for value without
notice of the factor's lien, and that the
factor had made it possible for M to commit a fraud and hence between an innocent
person and the factor the latter must stand
the loss.
In the other case the bank took with
notice of the infirmity in the factor's title,
and with notice of the plaintiff's rights.

472

THE

LAW

STATUTES OF FRAUDS AND STATUTES OF LIMITATIONS.

By JOHN M. DICKSON, Esq.

Adverse Possession in Particular Cases.

-- The fundamental question in determining the effect of limitation statutes (adverse possession) in respect of land titles
is, can an adverse possession be predicated
of open, notorious, uninterrupted and visible possession, for the time limited by
statute under color of title or otherwise
except in connection with the plaintiff or
defendant's right of entry.
Mr. Wood in discussing desseizin, refers
to certain statutes of the several states,
saying:
"In Maine the language of the statutes
is, 'No person shall commence any real
or mixed action for the recovery of lands,
or make an entry thereon, unless within
twenty years after the right to do so first
accrued; or within twenty years after he,
or those under whom he claims, were
seized -or possessed of the premises;' and
this is practically the provision in Vermont, New Hampshire, Connecticut, Massachusetts, Arkansas, Delaware, Illinois, Mississippi, Minnesota, North Carolina, Ohio,
Oregon, Michigan, Nebraska, Tennessee,
Virginia, West Virginia, New Mexico and
Wyoming.
The language of the statute
in all of the states is not identical with
that of the Maine statute, nor is the period
of limitation; but the practical effect is
the same, and in none of them is there
any provision as to what shall be deemed
an adverse possession sufficient to bar a
suit or entry.
For this summary of the
statutes it will be observed that the statute will not commence to run until a cause
of action has arisen in favor of the person having the rightful title; in other
words, until he has been disseized by the
person in possession."
Section 4262, R. S. 1899, provides that
"no action for the recovery of any lands,
tenements or hereditaments or for the recovery of the possession thereof, shall be
commenced, had or maintained by any
person, whether citizen, denizen, alien,
resident or non-resident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person was seized or possessed of the premises
in question, within ten years before the
commencement of such action."
From the revision of Wagner in 1872
(at least) there has been no change In the
language of this Missouri statute.

The question presented is whether, under the class of statutes named, they can
have any operation until a cause of action
or right of entry accrues. The statute of
Missouri assumes that no cause of action
or right of entry accrues, until the removal of the disabilities therein named.
Under Wag. St. p. 91584 (and subsequent revisions) parties to a suit for the
recovery of land who were under a disability when their right of action or entry first accrued may commence their action or make their entry within three years
after their disability had been removed, if
that event does not occur more than twenty-four years after
the accrual of the
right.
Poe v. Dornie, 54 Mo. 119.
Dyer v. Brannick, 2 M. A. 432.
In Douthittiv. Stinson, 63 Mo. 268, the
court held "Where the owner of land was
absent in the confederate states during the
civil war, from April 19, 1861, to the close
of the war in 1865, must be deducted in
calculating the length of the adverse possession of such property by another."
In State v. Bishop, 22 M. A. 435, the
court held "Where occupation of a road
by the public was begun after the owner,
who was a woman, married, limitation
would not run in favor of the public until
removal of such disability."
In Jones v. Thomas, 124 Mo. 586, it was
held "Possession of land by a divorced
wife of the owner, claiming under a void'
order, rendered in divorce proceedings,
allotting the land to her, is not changed
into possession under her dower right by
the death of the husband pending the running of limitations."
The rule adopted in Douthitt v. Stimson,
63 Mo. 278, at least, has no regard to the
disabilities named in the Missouri statute.
This statute exempts from the operation of
the first and succeeding section of the
Missouri limitation acts persons "within
the age of 21 years, insane, Imprisoned on
any criminal charge, or in execution upon
some conviction of a criminal offense for
any time less than life, or a married woman," when their right of action or entry
accrued, and all such were given three
years after the removal of disabilities to
commence an action or to make an entry,
provided such action was commenced or

THE
entry made within twenty-rour years from
its accrual. "The rule as to disabilities is,
that when the statute begins to run, it is
not arrested by any subsequent disability,
unless expressly so provided in the statute;
and a person who claims the benefit of the
general exceptions in the statute can only
avail himself of such disabilities as existed.
when the right action first accrued."
Wood on Lim. p. 11.
This rule is well settled in all of the
states as well as in Missouri.
Smith v. Newby, 13 Mo. 159;
McDonald v. Hovey, 110 U. S. 619.
As is also the rule that disabilities cannot be tacked. Thus in Missouri infancy
and coverture cannot be added together.
State v. Bishop, 22 M. A. 435;
Wood Limitations, p. 14;
McDonald v. Hovey, 110 U. S. 619.
These are, therefore, statutory exceptions to the first and second sections of
the Limitation Act of Missouri (Secs.
4262 and 4263, R. S. 1899) postponing the
accrual of the right of action and all other
states having similar statutes. The character of the disabilities must be learned
from the several statutes.
The question to which I recur, however,
is, can an adverse possession be pleaded
or set up by any one, however long, continuous, when visible and notorious until
a right of entry or a cause of action accrues. This is wholly distinct from any
question of disabilities, where the right of
entry existed, but the law stops the running of the statute notwithstanding until
the removal of disabilities named in the
statute.
Thus the law carves out certain estates
such as dower and curtesy; yet the heir's
right of action cannot be *defeated by the
interposition of the particular estate,
though many more than ten years elapse
before that particular estate is terminated.
And estates may be created for life or
years by the ancestor which would postpone the right of entry of a devisee. A
widow, whose dower has not been assigned
to her, cannot set up possessipn as adverse
to the heir.
Holmes v. Kring, 93 Mo. 452;
Null v..Howell, 111 Mo. 273;
Fischer v. Sieckman, 125 Mo. 165.
Or the grantee of a widow whose dower
has not been assigned.

LAW
Colvin v. Hauenstein, 110 Mo. 575;
Melton v. Fitch, 125 Mo. 281;
See Thomas v. Black, 113 Mo. 657.
Limitation does not begin to run against
the right of the heir to the mansion house
"until the assignment of dower, or if it is
until the death of the
not assigned
widow."
Brown v. Moore, 74 Mo. 633.
A tenant for life "could not by his declarations, acts and conduct, and claim of
a greater or different estate, make his
possession adverse to the remainder man."
Keith v. Keith, 80 Mo. 127;
See Salmons v. Davis, 29 Mo. 176.
Nor can a tenant for years and, for that
matter, any tenant at all, set up his possession as adverse to the intestate or his heir.
No act of theifs, no claim, hwowever adverse
in character, no purchase of outstanding
titles, nothing whatever, can avail them
against the intestate or the heir. This
rule applies to tenant by dower, elegit, curtesy also, and is based upon the estoppel
which their relation to the inestate creates..
Wood Lim. 618.
All this is horn-book law, and the difficulties arising in particular cases of this
class are easily soluble.
A Suit Pending.-In Blake v. Haywood
Bailey, Esq. (S. C.), 208, the rule is laid
down that "where a purchase is affected
only by lis pen'd-ens, the statute of limitations against the enforcement of the judgment or decree will begin to run from the
termination of the lis pen'dens."
In 27 Am. & Eng. Ency. Law (2d Ed),
653, it is said: "After a suit becomes lis
pendens, the statute of limitations will no
longer run in favor of a pendente lite purchaser regardless of the question whether
he was or was not a party to the suit."
And in 1 Am. & Eng. Encyc. L. (2d Ed.),
the editor says: "The statute of limitations
has no operation upon the subject of litigation and' hence does not run in favor of
the purchaser pendente lite, who cannot
be regarded as holding adversely to the
parties to the suit during the continuance
of the litigation."
And in Lynch v. Andrews, 25 W. Va., 751,
it was held that: "Where land was sold at
a judicial sale, the sale confirmed, and the
.litigation continued, and after ten years the
decrees ordering and confirming the sale

THE

LAW

It is said the law of uis pendens Is not

were reversed and declared void, and the
to the principle that the property
-referable
sale set aside for want of jurisdiction in the
is in the custody of the court, since such
court to order it, during which time the
custody is itself the possession of the court
purchaser had been in the actual possession
through its officer, and so long as its custhat
held
was
of the land, paying taxes, it
tody continues a fortiori no adverse possessuch possession was not adverse, that he
But, "Is pendens
sion could be installed.
stood in only the same relation to the land
decree interests
or
judgment
the
to
subjects
as
was
and
vendor,
as
his
in controversy
acquired pendente lite from parties to the
much bound by the proceedings in the suit,
suit, in property not in possession of the
and could therefore claim no protection from
court by seizure or otherwise."
the statute of limitations, or adverse possession which his vendor could not claim,
See also Bennett on Lis Pendens, Sec.
and he, being a party to the suit, has no
192, p. 251.
such claim whatever."Wickliffe v. Breckenridge Heirs, 1
In Hanly v. Gore, 4 Dana, 133, it was held
Bush (Ky.), 1. c. 443.
that: "During the pendency of the suit, the
statute of limitations will not run in favor
As to when statute begins to run in sales
of the purchaser so as to defeat lIs pendens."
by administrator against the purchaser at
Nor can purchasers from such purchasers
such sales and in favor of heirs or their
avail themselves of the bar of the statute.
grantors see
In 21 N. & E. Ency. L. 647,.it is held that
"The operation if lIs pendens is not confined
Sherwood v.'Baker, 105 Mo. 422.
to the person who purchases pendente lite
directly from a party to the suit, but bin'ds
The question when adverse possession
the property in the hands of any one who
against purchasers at administration sales
obtains title from such purchaser or those
begins, is one of apparent, but in the writer's
claiming under him by successive transfers."
view, of no real difficulty, but it leads Into
a discussion of probate jurisdiction, under
See Union Tr. Co. v. S. U. Co., 130 N. Y.
statutory laws, too extensive to be consid565.
ered here, though one of deep interest.
Jackson v. Peirson, 60 Fed. Rep. 113.

WILLS.
By GEORGE T. DESLOGE, Esq.

Attestation Clause Not Necessary.-The

Missouri statute prescribes that "Every will
shall be in writing, signed by the testator,
or by some person, by his direction, in his
presence; and shall be attested by two
or more competent witnesses subscribing
their names to the will in the presence of
the testator."
In this case the names of the subscribing
witnesses were written immediately below
that of the testatrix and with no word' of
description to distinguish them.
The court held that an attestation clause
was not necessary, using the following argument: "At common law attestation of a
will was not necessary. That requirement,
in order to its execution, is purely statutory.
The statute says the will shall be attested
by two or more competent witnesses subscribing their names thereto. It does not
say that the word attest shall be written
on, or at the conclusion of, the will, or that
there shall be written thereon anything

whatever other than the names of the attesting witnesses."

Berberet v. Berberet, 131 Mo. 399.
Competency to Make Will, and Undue Influence upon the Testator.-In 1899, Judge
Marshall of the Missouri Supreme Court
gave the following definitions of the competency required of the testator, and' what
degree of undue influence is sufficient to
invalidate his will:
"By competency is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition he is making of it and the persons or
objects he makes the beneficiaries of his
bounty. Imperfect memory, caused, by sickness or old age, forgetfulness of the names
of persons he has known, idle questions. or
requiring a repetition of information, will
not be sufficient to establish incompetency,
if he has sufficient intelligence remaining to
fulfill the above definition."

THE
"By undue influence is meant such influence as amounts to force, coercion or overpersuasion which "destroys the free agency
and will power of the testator. It is not
merely the influence of affection or desire
to gratify the wishes of one who is near and
dear to the testator."
Sehr v. Lindemann, 153 Mo. 288, 289.
Construction of a Will.-Where a testetor
bequeathed property to his grandchildren,
children of his daughter, and declared, "It
is also my will, desire and intention, that if
either of my daughter's children should depart this fe after marriage, and should die
without leaving any child or child'rn. at
the time of his or her death, that his or hur
share of all or any part of the property or
the proceeds thereof, in whatever the same
may be invested, herein devised or bequeathed by this will or any clause thereof,
shall revert to, and be equally divided between her surviving children and their legal
representatives," this created in the grandchild of the testator an estate in fee subject
to be determined or divested if, after marriage, such grandchild should die without
leaving any child or children at the time of
her death, and a child of a g.-andchild of
the testator took no estate in the remainder.
Hill et al. v. Terrell (Ga. 1905), 51 S. E.
Rep. 81.
Right to Devise Insurance by. Will--Held
by the Supreme Court of Mississippi, 1905,

LAW
that the proceeds of the policy of insurpnce
of a benevolent order, payable to "the widow
or other heir" of the member, cannot be de
vised by him to a woman with whom he has
been living and to whom he was in form
married, wh'Ie he still had, a legal wife
from whom he was not divorced and who
survived him, because of the by-law of the
benevolent brder requiring payment of the
policy to the "widow or other heir" only.
Tutt v. Jackson, 39 S. Rep. 420.
Letter Admitted to Probate as Will.- A
paper writing in the form of a letter addressed by Sarah B. Vernon to her brother,
William Vernon. It plainly expresses an intended disposition of property after her
death, and is stated therein to be her "last
will and testament." The writing had appended to it the signature "Sarah B. Vernon."
Below the signature, on the left, are the
words, "Signed by Florence K. Howland,
Elizabeth Dunn." The usual attestation
clause was absent. Florence K. Howland
testified that "the signature war made by
her in the presence of both herself and Elizabeth Dunn, and they immediately signed
their names in her presence and in the presence of each other, and at her request. Held,
to be a valid will and its admission to probate affirmed.
Vernon v. Vernon (New Jersey), 1905,
61 Atl. Rep. 409.

U. S. TREASURY DECISIONS.
By WM. H.

O'BRIEN, Esq.

In. this department will be noted important decisions of the Board of General
praisers, Internal Revenue Department, affecting exporters and importers, under

tariff laws.

Chrome Metal, Molybdenum, Tungsten

Metal, Etc.-Chromium, chrome metal, molybdenum, molybdenite, and other similar
substances used for hardening of steel are
dutiable under the provisions of paragraph
f22, tariff act of 1897, by similitude t6 ferromanganese.-G. A. 6173 (T. D. 26788), and
the authorities cited therein, followed.
Suits Against Revenue Officers.-Decision
of the Circuit Court of Appeals in Agnew,
collector, and Beamer, deputy collector, v.
Haymes, reversing Haymes v. Beamer (132
Fed. Rep. 525). The Commissioner of Internal Revenue has a right to order seizure
of property when, in his opinion, based upon
information deemed reliable, the property
has become forfeited. The order of the

Apour

Commissioner to the collector of the district

directing him to make a seizure is in law a
reasonable cause and. a protection to him
against damages for such action.-Sections
970 and 989, Revised Statutes, are both existing laws and are not inconsistent or repugnant.
Horsehair and Imitation Horsehair Braids
and Hat - Siimilitude.-Braids composed
wholly of imitation horsehair, and hats composed either wholly or in chief value of that
material, are dutiable by similitude to silk
braids and silk hats respectively, at the rate
of 60 per cent ad valorem under paragraph
390, tariff act of 1897. Braids composed in
part of horsehair and dutiable by similitude
to braids composed of the material other

THE
than horsehair; that is, the most valuable
component in the merchandise. Donat v.
United States (134 Fed. Rep., 1023; T. D.
25113), G. A. 5496 (T. D. 24817), G. A. 5590
(T. D. 25022), G. A. 5614 (T. D. 25109), and
G. A. 5965 (T. D. 26150) cited and followed.
Validity of Protest-Unauthorized Reliquidation.-A voluntary reliquidation of an

LAW
entry by a collector, changing the rate or
amount of duty upon the merchandise, if
made while a protest against the original
liquidation is pending, is unauthorized and
void in so far as its effect will be to invalidate the protest, and thus divest the importer of the right to have the decision complained of reviewed by the Board and the
courts.

BOOK NOTICES.
Brief Making and the Use of Law Books. By
William M. Lile, Henry S. Redfield,
Eugene Wambaugh, Alfred M. Masor
and James E. Wheeler. Edited by
Nathan Abbott, Dean of the Leland
Standford, Jr., University School of
Law. West Publishing Co., St. Paul,
Minn., 1906.
The gentlemen whose names appear above
are, respectively, as mentioned, Dean, University of Virginia School of Law; Professor
of Law, Columbia University; Professor
of Law, Harvard University; Editor American Law School Review; Lecturer Yale University Law School, and Mr. Abbott, as above
stated. The volume is inten'd-ed to facilitate
proper, ready and intelligent recourse to and
use of the sources of authority. The first
department succeeding the introduction by
Mr. Lile is the brief making, which is a logical arrangement, in that it advises of the nature and importance of the brief, and the
other departments advise as to the most
effective way of procuring the material of
which it should be composed. The brief
maker who can fix his mind upon the principles he wishes to develop and not be led
too far afield by the distinctions in the cases,
and then is practically instructed how to
save time and labor in his research after authority, is not only satisfied in reasonable
measure with himself, but his briefs become welcome to the courts for their absence of tedious details, which often tend to
impairing instead of aiding what is sought
to be impressed. We feel confident that
the volume will meet with a welcome. There
is added an appendix containing Abbreviations of Law Publications alphabetically ar-

ranged, based on those compiled by the

late Elliott Howard Gilkey, Librarian Ohio
Supreme Court Library.
Bender's National Lawyers' Diary, 1906.
From January 1st, 1906, to February
1st, 1907. Published annually. Third
year. Price, $2.00. Matthew Bender
& Co., Albany, N. Y.
This is a very excellent publication. It
gives the officers of the United States government, including those of the executive
departments at Washington, and all of the
federal and territorial judges, clerks, district attorneys and marshals and addresses.
There are also given the bankruptcy act
and amendments, and the federal constitution, with index. It also gives the several
life tables of expectancy in parallel columns
with very extended annotation of cases, in
which one or the other of the tables have
been used. The rules of the federal supreme and circuit court of appeals, showing
additional rules for different circuits, and
the rules of practice for courts of equity
of the United States are given, followed by
the terms of all federal courts. The naturalization laws, the act to regulate immigration of aliens, rules governing the granting of passports follow, and the tex: of the
"Diary" closes with "Rates of Interest and
Statutes of Limitation" in the various states
and territories and Canada, weights and
measures, and acknowledment and proof
of deeds in the several states. A number
of blank memoranda with dates and days of
the week follow, all of which makes a
"Diary" as complete and handy for ready
reference and use as it has been our pleasure to see.

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THE

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Pattison's Missouri Digest

VOLUME 7, READY INDECEMBER " PRICE S7.50 DELIVERED
M ILL form a continuation
to date of this valuable series,
and include Supreme Court Reports volume 186, and
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COMPLETE INDEX
to the Ordinances of the
City of St. Louis, giving
the number and title to every ordinance from the incorporation of the City to date. Indispensable to lawyers,
real estate agents, trust companies, title companies, railroads, investigators and business people.
This index will give you information at a glance that
would be impossible to get without it. It is a time-saver
that no one having anything to do with city affairs, lands,
streets and legal work can afford to be without.
It will save you the amount it costs the first time
you desire to find a city ordinance.
The number of copies are limited and we would advise
you to order before the edition is exhausted.
Price complete, $12.50.
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NORTHWEST CORNER FOURTH AND PINE STREETS, ST. LOUIS
Capital, Surplus and Profits, $8,5oo,ooo
The Business of this Company is conducted in five departments, as follows:
FINANCIAL OR MONEY DEPOSIT-Receives deposits on time, savings and checking
accounts and pays interest thereon; loans money on St. Louis city real estate and listed high
grade securities; buys and sells domestic and foreign exchange; issues its own letters of
credit available everywhere
(2) TRUST OR FIDUCIARY-Executes all manner of trusts; acts, under authority of the
law, as executor, administrator, trustee, guardian, curator, register and transfer agent of
bonds and stocks, receiver and financial agent for non-residents and others; becomes sole
surety on bonds Kequi red by law to be given
(3) BOND OR INVESTMENT-Buys and sells selected high-grade investment securities.
List of bonds for sale mailed on application. Commission orders, at usual rates, executed
with promptness
(4) REAL ESTATE-Manages, buys, sells, rents and appraises St. Louis city real estate.
Pays taxes, places insurance, collects rents
(5) SAFE DEPOSIT OR STORAGE VAULTS-Rents safe deposit boxes in fire, burglar
and mob'proof vault at $5 and upwards per annum; stores, at special rates, trunks and boxes
containing silverware and other bulky valuables
(1)

CORRESPONDENCE INVITED

ALL BUSINESS STRICTLY CONFIDENTIAL

OFFICERS
JULIUS S. WALSH, President
BRECKINRIDGE JONES, Vice- President and Counsel
JOHN D. DAVIS, Vice-President
SAMUEL E. HOFFMAN, Vice- President
JAMES E. BROCK, Secretary
HUGH P. LYLE, Assistant Secretary

HENRY C. IBBOTSON, Assistant Secretary

FREDERICK VIERLING, Trust officer
HENRY SEMPLE AMES, Assistant Trust Officer
WILLIAM G. LACKEY, Bbnd Officer
TOM W. BENNETT, Real Estate Officer
WM. MCC. MARTIN. Safe Deposit Officer

DIRECTORS
JOHN I. BEGS,) United Railways Co. of St. Louis
Union Electric Light & Power Co.
Presiden,
I
Laclede Gas Light Co.
WILBUR F. BOYLE, Boyle & Priest
JAMES E. BROCK, Secretary
MURRAY CARLETON, President Carleton D. G. Co.
CHARLES CLARK
HORATIO N. DAVIS, Pres. Smith & Davis Mfg. Co.
JOHN D. DAVIS, Vice-President
HARRISON I. DRUMMOND, President Drummond
Realty and Investment Co.
AUGUSTE
EWING
DAVID R. FRANCIS, President D. It. Francis & Bro.
Commission Co.
AUGUST GEHNER, Pres. German-American Bank
GEO. H. GODDARD

S. E. HOFFMAN, Vice-President
CHAS. C. HUTTIG. President Third National Bank
BRECKINRIDOE JONES, Vice-President and Counsel
WM. F. NOLKER, Treasurer St. Louis Brewing Ass'n
SAUNDERS NORVELL, President NorvelI-Shapleigh
Hardware Co.
ROBERT J. O'REILLY, 51. D.
WM. D. ORTHWEIN, President Win. D. Orthwein
Grain (:o.
H. CLAY PIERCE, Chairman Board Waters-Pierce
Oil Co.
JOSEPH RAMSEY, JR.
ROBERT H. STOCKTON, President Majestic Mfg. Co.
JULIUS S WALSH, President
ROLLA WELLS, Mayor of City of St. Louis

Volume I

Number 16

FRIDAY, DECEMBER 29, 1905

km

7-

L
A
w
Y
E
R

AWPUBLISHED
TELWPUBLISHING COMP'Y
T13-814 Missouri Trust Bldga.,'
ST. LOUIS

THE

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MV ST.LAIS
CAPITAL,

SURPLUS,

DEPOSITS,

A
982MK
$ 2,000,000
1,900,000
26,000,000

0OFFICERS.
W. B. WELLS, Vice-President
C. H. HUTTIG, President
G. W. GALBREATH, Cashier
D'A. P. COOKE Ass't Cashier
J. R. COOKE, Ass't Cashier
DIRECTORS.
ADOLPHUS BUSCH,
Pre't Anhouser-Busch Brew. Ags'n.
G. W. BROWN,
Pres't Brown Shoe Co.
GEO. T. CRAM,
Prest American Central Ins. Co.
JNO. N. DRUMMOND,
Capitalist
NORRIS B. GREGG,
Pres's Mound City Paint and Color Co.
G. W. GALBREATH,
Cashier
C. H. HUTTIG.
President

H. F. KNIGHT,
Vice-Pres't A. G. EdWards & Sons Brok. Co.
P. A. VALENTINE,
Vice-Pres't Armour & Co., Chicago.
THOS. WRIGHT,
Capitalist
W.B. WELLS,
Capitalist
F. WEYERHAUSER,
Pres's Weyerhauser Timber Co.,
St. Paul, Minn.
B. F. YOAKUM,
Chairman Board of Directors
St. Louis & San Francisco R. R. Co.

THE LAW

Will Go on Your Bond

T
Vice-President and Attorney

AMERICAN BONDING COMPANY

All Kinds of Surety Bonds
All Kinds of Burglary Insurance Policies

713-714 EQUITABLE BUILDING

Telephones: Bell, Main 1514; Kinloch, B 74

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National
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OFFICES FOR RENTMechanics'

Bank Building +

Broadway and Locust Street

ENTIRE BEZIVETE AND 6UET11 FLOOBS-ABOUT 3,600 SQUARE FEET SACA

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TELEPHONES
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SMALL AND LARGE OFFICES ALSO

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.......
9E5.

::::: ACCOUNTANT

J. T. DODDS
CITY SU RVEYO
0R
813% Chestnut Street

W shington street
Suits 6t

AND AUDITOR. :::::

WANTED-A full set of Federal

Reporter and Digest, 809 Laclede
Building.

City lots surveyed. Surveys, plans and estimates made for all kinds of construction work.
Kinloch B 851...

Kinloch B 10...

J. PERCIVAL SMITH
.Accountant...
ROOM 33 THIRD NATIONAL BANK
BUILDING
422 OLIVE STREET

...SAINT LOUIS

Bell Main 290

T. F. McLAUGHLIN
TYPEWRITERS AND

SUPPLIES

We eell typewriters to the largest concerns

in the city; wise buyers want to save money

Any -ake you want

715 Locuist Street,

SAINT LOUIS

MISS A.W. HOUCK

BOTH PHONES

SHORTHAND REPORTER

511 Security Building

4th and Locust Sts.

LOUIS A. DAMMERT
COUNSELOR AT
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GUSTAVE DAMMERT
.. NOTARY..

Louis A. Dammert & Bro.

TITLE EXAMINERS AND
ABSTRACTORS
Complete Abstracts of Titles a Specialty
..BOTH PHONES..

511 Chestnut Street

iMn'. Xd.,O'I "Xv

Statement of the Condition

OF THE

St. Louis Union Trust Com

Sany
Ii

AT ST. LOUIS
At the Close of Business, May 29, 1905
LIABILITIES.

RESOURCES.
$12,680,793.37
Time Loans ...............
4,747,689.47
Bonds and Stock ..........
16,472.38
Overdrafts ...............
Company's Office Building
531,822.01
and other Real Estate..
100,000.00
Safe Deposit Vaults ......
Call Loans .. $7,612,953.31
Cash on hand
and Due from
Banks ...... 5,296,197.47 12,909,150.78

Capital Stock .............

Surplus ..................
Undivided Profits, net ....
Dividends unpaid ..........
Deposits:
Banks and Trust Companies. .. $ 1,224,225.77
Individual. 18,961,888.11

$30,985,928.01

0
$5,000,000.o0
5,000,000.00
799,214.13
600.00

20,186,113.88

"

$30,985,928.01

OFFICERS

President
THOMAS H. WEST ............
ROBT. S. BROOKINGS .... Vlce-President
HENRY C. HAARSTICK..Vice-President
Vice-President
JOHN D. FILLEY ........
JOHN F. SHEPLEY ...... Vice-President
Vice-President
N. A. McMILLAN .........
Counsel
A. C. STEWART .................
ISAAC H. ORR... Trust Officer and Secy.

DIRECTORS.
Chairman Board American Car & Foundry Co.
WILLIAM K. BIXBY ...................
Broderick & Bascom Rope Co.
JOSEPH D. BASCOM..................................
Sam'l Cupples Woodenware Co.
ROBERT S. BROOKINGS.............................
President Anheuser-Busch Brewing Association
ADOLPHUS BUSCH ..................
Capitalist.
DANIEL CATLIN .........................................................
Capitalist.
JOHN T. DAVIS .............................................................
R. R.
Pacific
President Northern
HOWARD ELLIOTT .................................
Capitalist.
S. W . FORDYCE ..........................................................
Trustee The Liggett Estate.
JOHN FOWLER ........................................
Capitalist.
WILLIAM E. GUY .........................................................
Capitalist.
..............
HENRY C. HAARSTICK .....................................
Co.
Printing
Globe
President
D. M. HOUSER ..........................................
Robert McK. Jones & Co.
ROBERT McK. JONES ......................................
President Mallinckrodt Chemical Works.
EDWARD. MALLINCKRODT ..................
President Hargadine-McKittrick Dry Goods Co.
THOS. H. McKITTRICK ..............
L. M. Rumsey Manufacturing Co.
L. M. RUMSEY ......................................
Capitalist.
JOHN A. SCUDDER .......................................................
Capitalist.
JOHN SCULLIN ..........................................................
Chairman Board Simmons Hardware Co.
E. C. SIMMONS ...............................
Co.
Milling
Stanard
0.
E.
President
E. 0. STANARD ...................................
President St. Louis Bridge Co.
WILLIAM TAUSSIG ..................................
Co.
Trust
Union
Louis
St.
President
THOMAS H. WEST ...............................
Whitaker & Co.
EDWARDS WHITAKER ............................................
Chairman Board St. Louis & San Francisco Railroad Co.
B. F. YOAKUM ................

so

oI

I
Io