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PUBLICATION

THE LAW

OFFICE: SUITE
813-14 MISSOURI
TRUST BUILDING

ISSUE

SAINT LOUIS, MO.

EV ERY

FRIDAY

SUBSCRIPTION
PRICE, 64.00 PER
YEAR,
VANCE.

IN

AD-

SINGLE

COPY, 20 CENTS

Vol. I

Friday,Deemzber 9, 1905

TH E

Refusing to Perform

LAW

Published by

WM. H. O'BRIEN,
President and Manager.

Associate Editors:
ROBERT F. WALKER, Corporations
-

Insurance

RICHARD T. BROWNRIGG, - Real Property

McCUNE GILL,
Titles and Abstracts
BENJAMIN H. CHARLES,
Municipal Corporations
WM. F. WOERNER,
Administration
CLAUD D. HALL,
E Torts, Negligence and Damages
EDGAR R. ROMBAUER,
Medical Jurisprudence
JOSEPH DICKSON, Jr., - Common Carriers
MONTAGUE LYON,
Commercial Paper, Banks and Banking
EDWARD S. MURPHY,
Accounts, Credits and Collections
HENRY H. OBERSCHELP
Contracts
M. U. HAYDEN, - Partnership and Evidence
BENJAMIN J. KLENE,
Factors, Brokers and Commission Merchants
EDWARD E. LONGAN,
Patents, Trademarks and Copyrights
BYRON F. BABBITT,
Bankruptcy
JOHN M. DICKSON.
Limitations and Statute of Frauds
T.

DESLOGE,

In the issue of THE LAW Of last week

we published an article from. the Virginia Law Register under the title:
"Has a Minister of the Gospel the Right
to Refuse to Perform a Marriage Ceremony ?"

NEEDHAM C. COLLIER,
Editor.

GEORGE

Marriage

Persons.

Missouri Trust Bldg., St. Louis, Mo.

JAMES C. JONES,

Ceremony for Marriageable

THE LAW PUBLISHING COMPANY,

813-14

No. 16

Wills

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 profession.-EDITOR.

The view, that he had not, was based

largely on the statutes of Virginia, which
forbid common-law marriages and provide that only those may perform a marriage ceremony who are appointed by the
courts and give bond for the faithful
performance of their duties. This kind
of appointment creates an office and thus
the answer may be different, if there is
a mere permissive performance by a minister, recognized as valid by the state.
Our attention has been called since
then to an article -in the London Law
Journal, which presents the question as
it relates to ministers of the established
church of England.
The Law Journal gives an account of
a Church Congress, in which there arose
a discussion on marriage and divorce.
Among the ecclesiastical dignitaries
present was the Bishop of Rochester
who is reported to have said that "he
was prepared to inhibit any clergyman
who might remarry persons who had
been guilty parties in divorce cases," and
looking around among the assembled
clergymen the bishop added grimly that
he had the inhibition papers present with
him in his bag. Upon this the Law
Journal says: "What a pronouncement
when we think of it is this! The marriage of divorced persons is a perfectly
valid marriage. The state allows it.,
the

THE
law upholds it, yet here is the bishop of
a state church established by law declaring publicly that he will punish with the
loss of livelihood and office any clergyman who solemnizes such a marriage,
though according to law, as declared by
Parliament, and even according to the
conscience of the celebrating clergyman.
What greater disrespect could be offered
to the legislature than this -episcopal utterance; what greater disparagement of
the state's authority than by imputing
to it a lower standard of morals than
that arrogated to itself by the church?"
Here is suggested the principle that
he who feels a benefit, must also bear a
burden.

Re-Rating by Fraternal Beneficial

Associations.
A decision rendered during the past
week by Judge Wm. J. Gaynor, in one
of 'the New York courts .of original
jurisdiction, again brings to an acute
stage the question of the power of fraternal insurance associations to change
their rates of assessment.
Judge Gaynor seems to have held
quite broadly, that the recent re-rating
in the Royal Arcanum was void as being
in violation of rights secured by contract.
It does not appear from the short
statement given, that this holding is
governed by any peculiarity that may
exist in the charter, constitution or form
of benefit certificate in the Royal Arcanum case, but the inference rather is,
that it is general in its scope and applies
as well to other fraternal insurance societies as to it. Furthermore, the Royal
Arcanum is one of the largest and most
wide-spread of associations of this nature and it has not been the impression
that there are .any features in its charter, laws or form of certificate, which.
as to this question, would . particularly
differentiate it from the others.
Taking the decision as of general application, it is not entirely new in American courts, and of others we have not
sufficiently investigated to be able to
state. See Strauss v. Mutual Reserve

LAW
Fund, L. Assn., 126 N. C. 465, 39 S.E.
55, 54 L. R. A. 605, 83 Am. St. Rep.
699, and Hogan v. Pacific Endowment
League, 99 Cal. 248, 33 Pac. 924, in
which cases it was said that the insured
has a vested right to have the assessments remain at the original rate. In
other courts the right to change has been
held to depend upon the form of the certificate providing for the holder being
bound by amendments duly passed. See
Fullenwider v. S. C. Royal League, 180
Ill. 621, 54 N. E. 485, 72 Am. St. Rep. affirming 73 Ill. App. 321; Miller v.
Nat. Council K. & L. of H. (Kans.),. 76
Pac. 830, and Duer v. S. C. Order of
Chosen Friends 21 (Tex.), Civ. App.
493, 52 S.W. 109. And in the absence
of agreement not to be so bound. See case
from Kansas in 73 Pac. 88 and from
Illinois in 188 Ill. 431, 58 N. E. 966.
In Massachusetts it was ruled that where
the certificate makes no mention of the
rate of assessment, it was competent to
change from the level plan to one based
on classification according to age, as this
was merely the changing of general
forms and plans of business without affecting the general plan and purpose of
the organization. Messer v. 'A. 0. U.
W., 180 Mass. 321, 62 N. E. 252. But
the contract of the member with the association could not be enlarged so as to
require him to pay assessments for disability purposes, in addition to the mortuary. Margesson v. Mass. Ben. Assn.,
165 Mass. 262, 42 N. E. 1132. It is
readily understood, we think, why this
new feature could not be added without
unanimous consent of all concerned, for
it would be adding a new and distinct
purpose to that already existing.
But it has been held squarely that the
contract with an association of this character implies that the amount of assessments will vary according to the number of deaths, the growth of the association and the earning capacity of its
reserve fund, and that, therefore, there is
authority, rising out of the nature of the
relation of the member to the association and to other members, to change the
rate of assessment from time to time to
meet death losses and expenses, provided

THE
that the apportionment be equitable. See
Ebert v. M. R. Fund L. Assn., 81 Minn.
116, 83 N. W. 506. Some'of the courts
in construing the provision as to amendments take that as being limited to regulations in carrying out the contracts subsisting between members and association
and not as in anywise affecting vested
rights.
We believe that thus such a provision
is meant to be construed and that the
contention of right to change would rest
on very narrow ground, if that were its
only support. Certainly that is the extent to which such a provision would go,
if found in the constitution and by-laws,
or even the charter, pf a corporation organized purely for profit or business purposes.
But we believe the general principle
stated by the Minnesota Supreme Court
in the Ebert case, supra, is correct, as
we" will endeavor to show.
The ordinary form of incorporation 3f
these associations regards them as being
similar in purpose to those denominated
educational, religious, scientific, benevolent and the like. They are admitted to
charter rights because they are considered to subserve a useful purpose and are
entirely devoid of private gain, in the
sense of business profit. They are encouraged as combinations for mutual
protection and as shields against pauperism in the families left by members.
To insure their being reliable in the
pursuit of such a praiseworthy object
the state ordinarily requires that they establish and maintain -a reserve fund,
sometimes prescribing a minimum sum
according to age of charter and strength
in numbers. The organizers of such an
association are, therefore, primarily presumed to bend every regulation to the
accomplishment of the statutory purpose, and every law or rule that is prescribed under a charter, having permanency in view., should be construed
as temporary expedients subject to
change, as experience under changing
conditions may indicate the need of
change.
Furthermore., it is patent that the state
cannot conceive that any inequity reaped

LAW
by one member, through the association,
from other members would be in furtherance of a useful purpose, or that such
would not militate against the permanency its policy of providing for a reserve fund shows it has the purpose to
secure.
The state, therefore, intends that the
burden of membership in such a society
shall be as nearly equal and equitable as
is possible to be obtained. It does not
contemplate that a mere corporation,
which is in effect but a sort of clearing
house for the distribution of what its
members contribute to beneficiaries of
deceased members, shall by stipulation
and agreement destroy the equality that
should subsist between the contributors
and thereby endanger the permanency
which state policy cherishes. To hold
otherwise would give to form a potency,
which would be a destruction of effect.
This would be sacrificing substance to
shadow.
Take thus the fixing of the scale of
original assessments. Let us suppose
that. between one hundred charter members a scale is fixed based on initiation
age and to continue through membership.
As between them it might be, according
to actuarial experience, entirely and at
that time equitable and just. But, if at
the end of six months two hundred new
members are brought in, it becomes less
equitable than it was, because members
six months younger would be paying the
same rate as those six months older. As
time elapses and there are other accessions the inequality in burden increases,
until, if it be true that a member has a
vested right in his original assessment,
an invitation to a new member becomes
a request to lift a portion of the old burden from his shoulders.
This is so evidently true, unless there
is being paid to a reserve fund a sufficiently large sum to bridge over the inequality arising from advanced age between old members and new members,
that it cannot be supposed that a statute,
providing for permanency as a criterion
of usefulness in such associations, intended that regulations prescribing rates
should vest contract rights in members.

THE
It would be to say the state aims at a
useful purpose, but will allow inequity
to prevail by reason of vested rights obtained through the agency selected to
bring it about.
A society of this kind has no capital
of its own but its furniture, and even
as to that it stands similarly as it stands
to its reserve fund. It is a mere conduit
through which the means of its members
are passed, as by their laws they agree
they should be passed. It has the right
to sue and be sued, but this is a mere
representation of itself to the public, and
for convenience in transacting business,
for in all other respects it is simply a
trustee. Its members know that its contracts have no responsibility from assets
it holds, in its own right, and that inequality of burden defeats the end and
purpose of its being created the agent of
those it is intended to serve.
So far we have proceeded upon the
theory that a change of rate, involving
an apparent change of ratio of burden
between members, is an impairment of
the position of a member, as indicated by
his original assessment.,
Let us suppose again that the original
assessment of a member was just and
equitable and accessions at initiation
changed it to injustice. That change
necessarily would be the lightening of
the burden to the extent that every new
member is paying more than he should
pay. Now, if there are so many new accessions that the burden is very greatly
less than what it would be, is there any
impairment of a vested right, if there
is a vested right, if change of rate puts
it where it would be had the new members not come in?
The princie
that there can be no impairment of
vested rights is one of law; whether or
not there is impairment is one of fact.
When the courts deny a re-rating, because there is merely a change in amount
of assessment, they may not be protecting a right secured by contract, but they
may be giving an unconscionable advantage, under a claim of impairment of
right.
It is the history of fraternal insurance
societies, that assessments grow more

LAW
frequent or less frequent, accordingly as
new blood keeps aloof from or joins the
old stock. Ii actuaries may figure, with
the old stock only on hand, losses will
amount to so much per month and with
new stock added they will proportionally
decrease, does the principle of no impairment of vested rights demand that
that decrease shall enure entirely to
him who has the vested right? The
change of rate may be the exact equivalent of that right. If there has to be a
change merely in the appearance, but
not in the substance, of that r-ight, has
not the old member invited that appearance? Is it not true, as a fact of which
courts take judicial notice, that this new
blood is contemplaied as a necessity in
securing the fruit of the contract each
member enters into with the others,
through their common representative?
When his needs h ave been met shall he
be heard to complain, that though -his
contract is the same in substance as it
would be were there no new blood, it
does not appear to be so?
We are loath to believe that the courts
will be alert to declare that the forms of
law necessarily plant a cancer in the
vitals of fraternal insurance associations
from their first start -in business.
Such a holding would not greatly exalt the law as a science in the estimation
of the general people, but rather would
the tendency be to the debasement of
our jurisprudence as being a misnomer
for pitfalls of destruction.
Fraternal insurance, whatever may be
its defects in eomparison with insurance conducted by organizations formed
to write contracts as a business, has
its friends and adherents, and the more
than two hundred years of its existence
do not yet give promise of its decay and
death. Its record shows some defalcations and breaches of trust, but no festering corruption has found lodgment in
its affairs such as has startled the almost fatigued indignation of our age.
If it has been able to live so long under
the crude and unscientific plans devised
for its maintenance, this is proof that
the principle, which is its inspiration, is
one near the heart of the people.

THE LAW
If the American Bar Association and
its Commissioners on Uniform State
Laws will take note of this wide-spread
and deeply-rooted sentiment, they will
bend their attention to the perfection and
uniformity of legislation to further its
aspiration. It seems to us idle to say
the scheme of fraternal insurance is
wholly impracticable and
therefore
should be dismissed from consideration.
With a carefully prepared statute providing for a large reserve fund to guaranty fixed periodical assessments and an
actuarial re-rating every five or less number of years, it could be made safe, and,
if safe, it certainly is every whit as
cheap as old line insurance, and has other
advantages in sentiment which the other
can never know. And what is especially
true about it is that thousands of people want it, whom old line insurance will
never reach,
Take up this subject, gentlemen of the
American Bar Association, and you will
begin to put yourself, where as yet you
have shown no great desire to be-in
touch with the people.
When you do this you may cultivate
a very large sympathy towards the securing of the other things you have been
interesting yourselves about.
When Does Exempt Property Become Subject to Attachment
Against a Resident Removing from the State?
Brown v. Beckwith, Constable, et al.,
51 S. B. 977. (Supreme Court of Appeals of West Virginia, Oct. 24, 1905.)
1. Exemptions-Personal Property-Forced
Sale-How Lost.
A person who has acquired, under the provision of chapter 41 of the Code of 1899, the
right to have personal property exempted
from forced sale, does not forfeit it on the
ground of non-residence until he begins to
remove his person from his place of abode
in this state to another state or country,
with intent to fix his residence in such other
state or country, although he may intend to
leave the state permanently, and has made
complete preparation so to do, and delivered his personal property and effects for
shipment to a point outside the state.

2. Judgment-Res Judicata.
A finding of non-residence on a sugges-

tion and motion to require security for costs

in a pending action is not res judicata in
another action between the same parties.
Such proceeding is a collateral one, not
reaching the merits of the case.
3. Exemption-Claim-Sufficiency.

An exemption list and claim, irregular in

form, considered, and pronounced sufficient.
4. Same-Order

of Attachment.

An order of attachment is process, within

the meaning of sections 23 and 24 of chapter 41 of the Code of 1899, against which
the right to exempt personal property may
be exercised.
(Syllabus by the Court.)
Appeal from Circuit Court, Wood
County.
Bill by Minnie Brown, alias Minnie
Blake, against B. F. Beckwith, constable,
and others. Decree for defendants, and
plaintiff appeals. Reversed.
Walter E. McDougle, for appellant. H.
B. Dodge and L. R. Via, for appellees.
POMENBARGER, J. Minnie Brown complains of a decree of the circuit court
of Wood County dissolving an injunction by which she attempted to prevent
the sale of certain personal property
claimed by her as exempt under the provisions of sections 23 and 24 of chapter
41 of the Code of 1899, and dismissing
her bill. The property consisted principally of household goods, and B. F.
Beckwith, constable, was proceeding to
sell the same under orders of a justice
of the peace in attachment proceedings
instituted by three several creditors of
the plaintiff, Samuel L. Koonse, Samuel
Cross, and A. E. Beatty. The attachments were levied on the 9th day of December, 1902, exemption claims were delivered to the officer on the 13th day of
December, 1902, judgments were rendered and orders of sale made on the
18th day of December, 1902, and on said
last-named day the debtor served on the
constable written instruments demanding
the release of the property, notifying him
that, in case of his refusal to do so, she
would claim the damages allowed by law
for detention thereof. By some collateral

THE LAW
proceedings which need not be here detailed, action was delayed, so that the
time fixed for sale was the 5th day of
March, 1903, on which day a preliminary
injunction was awarded on the plaintiff's
bill against the justice, constable, and
creditors, restraining the sale. Answers
were filed by the defendants, depositions
were taken and filed, and on the 20th dav
of August, 1903, the order complained
of was made and entered.
The defense relied upon mainly is
the alleged non-residence of the plaintiff at the time she presented her claim
of exemption. She had occupied as tenant a certain house in the city of Parkersburg, from which, on the day on
which the actions were commenced and
her property seized, she had removed all
,er property and effects, including her
wearing apparel not in actual use, to the
wharfboat at said city, and had them
consigned to herself at Marietta, in the
state of Ohio, and had vacated the house
in which she had resided. She testifies
that she stayed at the De Witt hotel, in
Parkersburg, on the night of the day on
which her property was sent to the
wharfboat and levied upon, and later
went to the residence of a Mrs. Core, in
Parkersburg, with whom she stayed for
some time, and then went to another
place in said city. She denies that
she ever had any intention of leaving the city, and explains the shipment of her property by saying she had
rented it to certain persons in Marietta.
In addition to the fact of the removal of
plaintiff's property and the evidence of
intent on her part to take up her residence at Marietta, the defendants rely
upon testimony showing her presence at
Marietta at a time subsequent to the
presentation of her exemption claim, and
also an admission made by her in an action which she prosecuted in a justice's
court against the constable for damages
for the detention of the property. This
trial was had at Williamstown, directly
opposite the city of Marietta, and a witness testifies that she came to Williamstown on the morning of the trial from
Marietta. On that occasion she testified
that she had no legal residence. If it

be conceded that the evidence justifies

the finding by the court of a fixed intention on the part of the appellant to remove from Parkersburg to Marietta, and
of preparation by her to do so, we are
confronted with the question whether
there does not yet remain to be supplied
one essential element of change of residence, namely, actual commencement of
removal, not of the property, but of the
person-personal departure from the old
place of residence in the state for the
new outside of it. Burt v. Allen, 48 W.
Va. 154, 35 S. E. 990, 50 L. R. A. 284,
868 Am. St. Rep. 29, decides that within
the meaning of the attachment laws a
person becomes a non-resident the moment he begins the removal of his person from the place of his residence with
intent to acquire a residence in another
state, even before he gets outside the
state. To the same effect are Moore v.
Holt, 10 Grat. 289, and Clark v. Ward,
12 Grat. 440. According to many authorities, such commencement of removal, coupled with an intent to abandon the
state, falls short of the requisites of nonresidence.
Shinn on Attach. Sec. 96,
says it is necessary that the defendant
acquire a residence and place of abode
outside of the state. Drake on Attach.
Sec. 64, says a mere purpose to change
residence, evidenced by acts of the removal of the party's property, will not
make him a non-resident of the state
from which he purposes to depart until
he shall have begun at least the removal
of his person. Wade on Attach. Sec. 78,
accords with the proposition last above
stated. No case has been found which
propounds a doctrine more rigid and illiberal toward the defendant. Hence it
may be safely said that by the great
weight of authority nothing short of
such act of removal, accompanied by intent to abandon the state, will render the
party amenable to an attachment on the
ground of non-residence.
This proposition seems to be in accord
with the general principles of the law
relating to domicile and residence, enunciated by this court in White v. Tennant,
31 W. Va. 790, 8 S. E. 596, 13 Am. St.
Rep. 896, as follows: "The original

THE

LAW

domicile continues until it is fairly states that she came from Marietta to
changed for another. It is a legal maxim Williamstown to attend the trial of an
that every person must have a domicile action brought by her against the consomewhere; and he can have but one at stable, and that on that occasion she said
a time for the same purpose. From this she had no legal residence. Her coming
it follows that one cannot be lost or ex- from Marietta is in no sense inconsistent
tinguished until another is acquired. with the retention of her residence in
Baird v. Byrne, 3 Wall. Jr. 1, Fed. Cas. Parkersburg at the time, which she esNo. 757. When one domicile is defi- tablishes by the testimony of herself and
nitely abandoned and a new one selected other witnesses. The statement that she
and entered upon, length of time is not had no legal residence must be subject
important. One day will be sufficient, to the rule that she did have a legal
provided the animus exists. Even when residence somewhere; for, having had a
the point of destination is not reached, residence in this state, it continued until
domicile may shift in itinere, if the she acquired one elsewhere. The lanabandonment of the old domicile and the guage in Burt v. Allen, importing that
setting out of the new are plainly shown. one need not acquire a domicile or resiMunroe v. Douglass, 5 Hadd. 495. Thus dence in another state in order to render
a constructive residence seems to be suf- him a non-resident of this state, means
ficient to give domicile, though an actual that there need not be an actual domicile
residence may not have begun." Burt or residence in another state. There may
v. Allen, cited, further declares that the be a constructive residence in either state
elements of non-residence in the law of for the purpose of working out the legal
attachment and the elements of non- rights of parties. Appellant not having
residence within the meaning of the acquired either an actual or constructive
statutes conferring a right to exempt residence elsewhere, her residence in this
personal property from forced sales are state must be deemed to have continued.
the same. This position seems to be sup- Our conclusion is that the evidence wholported by both principle and reason. ly fails to establish the element of actual
Surely the law is not less favorable to removal to a place out of the state, and
the claimant of a constitutional right of also the inception or beginning of such
a character so high that the statutes pro- removal with it. On the question of
viding for its vindication are by the residence, the principle of res judicata is
courts of almost all the states liberally relied upon. In the action by the appelconstrued (12 Am. & Eng. Enc. Law, lant against the constable, an affidavit of
75) than to the right of a debtor to de- her non-residence was filed and a defeat an attachment. In the former case mand made for security for costs. This
the law impresses upon the property a motion was resisted and evidence was
status, immunity from forced sale, and heard upon it, and the justice, believing
withdraws it from the reach of the non-residence to have been established,
creditor; in the latter, the party is only required security to be given, and, in degiven the benefit of a strict construction fault thereof, dismissed the action. This
of remedial statutes, designed to give the was not a hearing on the merits, but one
"A
creditor a means of obtaining from him upon a more collateral motion.
what he is entitled to have, satisfaction judgment not based upon the merits is
of his debt out of the property. In both not final and conclusive in the sense that
instances the law is liberal to the debtor. a plea of res judicata may be founded
Hence it would seem that in both cases on it." 21 Am. Eng. Enc. Law, 266. A
the same rules for determining the ques- nonsuit is not res judicata. Id. 271. The
tion of non-residence ought to govern. dismissal in equity for want of jurisdicWhat evidence in the case supplies tion, or any cause precluding inquiry into
this element of personal removal? No- the merits, is not res judicata. Id. 271.
But one other proposition remains to
body testifies to any departure by the appellant from Parkersburg. A witness be disposed of, namely, that the claim- of

THE
exemption is insufficient, which contention is based upon two grounds, one of
which is predicated upon the folio.wing
language in the affidavit: "That she is
entitled to have and claims all the abovelisted property claimed by her as husband and parent exempt from execution
or other process in the above cause."
The point made is that she does not
specify the character in which she claims.
To determine this question it is necessary
and proper to read the language above
quoted in connection with another part
of the affidavit, in which the appellant
says she is a parent and resident of the
state. This language established her
character as a female parent, and is
wholly inconsistent with the character of
husband. Moreover the word "husband"
was used by way of recital and description of the property, and its use appears
to have been a mere inadvertence.
So
read, the affidavit plainly asserts a claim
as parent and resident. In this respect
the demand is sufficiently certain in a
legal sense.
The other is based upon the assertion
that at the time the officer received the
lists and claims of exemption he held no
execution or other process authorizing a
sale of the property. The statute clearly
includes an order of attachment within
the term "process."
In section 25 of
chapter 41, attachment is specifically
mentioned, and provision made for release by the officer of claims and demands garnished under the order of attachment. While there is no specific direction to him as to property levied upon
and taken into his possession under an
order of attachment, the provision for
the release of claims and demands suggested and garnished shows a clear legislative intent that the officer shall not,
after the delivery to him of the lists
specified in the statute and the lapse of
the time prescribed for appraisement,
withhold the possession of the property
taken under process of any kind, unless
it be in respect to claims which are excepted from the operation of the exemption laws.
The conclusion resulting from this examination of the record and authorities

LAW
is that the circuit court erred in dissolving the injunction and dismissing the
bill, and that the decree must be reversed, with costs in this court to the
appellant, the bill reinstated, and a decree entered perpetuating the injunction
and requiring the appellees to pay to the
appellant her costs in the circuit court.
NOTE.-While the exact situation de
scribed in the principal case may have fre
quently arisen, or at least existed so that
attachment might have been sought, there
are not found many decided cases "on all
fours" with it. Though the condition of
things has seemed yet more a'dvanced than
the principal case shows, still non-residence
has been ruled not to have arisen. Thus it
was ruled in two cases, that mere starting
even of the person is not sufficient and
residence continues until he who is removing actually gets out of the state. Ballinger
v. Lautier, 15 Kan. 608; Degnan v. Wheeler,
2 ott & McC. (S. C.), 323. This gives, so
to speak, a sort of locus poenitentiae for
his intention. In New Jersey it was ruled
similarly to the principal case, where the
facts made an exact parallel to the principal case. Kugler v. Schreve, 2!8 N. J. L.
129. And so in Alabama, Herzfleld v. Beasley, 106 Ala. 447, 17 So. 623. In a case in
Kentucky where the facts as to intention
were somewhat more fully developed, residence was still deemed to continue. Thus
the debtor's family had absolutely gone to
the other state and his joining was merely
delayed for the necessary closing up of his
business, when he was to join them. His
exemption could still be claimed. Stirman
v. Smith, 8 Ky. L. Rep. .781, 10 S. W. 131. The general rule as to interpretation is
liberal, where the benefit of exemption is
intended for the family of the debtor and
presumptions are indulged in their favor and
conditions which would otherwise work adversely are shorn of their force.
Thus
abandonment by husband does not deprive
the wife of the exemption, as the husband
may return. Baum v. Turner, 23 Ky. L. Rep.
600, 76 S. W. 129. Nor is an absconding
debtor to be presumed a non-resident. Field
v. Adreon, 7 Md. 209; Croxall v. Hutchings,
12 N. J. L. 97; McCauley v. Shute, 5 Harr.
(Del.), 97; Bank v. Griffith, 8 Pa. Dist. R.
333; Green v. Simon (Ind. App.), 46 N. E.
693. Where the debtor had concealed himself, leaving his children at his place in
care of their grandfather, the grandfather
may claim for them the exemption on the

THE LAW
presumption that the father had given him
temporary charge of them. Wilson v. Swan,
68 Ark. 102, 56 S. W. 635. And where he
had absconded, he was still adjudged the
head of his family engaged in agriculture
so as to allow his wife to claim a team of
horses allowed to one so engaged. Frazier
v. Lyas, 10 Neb. 115, 4 N. W. 1034; 35 Am.
St. Rep. 466; Bonnel v. Dunn, 29 N. J. L.
435. But in Michigan exemption was denied to an absconding merchant, who
abandons his business, in his merchandise.
the court saying the abandonment of his
business was abandonment of exemption in
the assets thereof. Betz v. Brenner, 106
Mich. 87, 63 N. W. 970.
As to fugitives the rulings have differed
with the circumstances surrounding each
case. Thus where only four days had
elapsed and the leaving was without having
made any provision for his family, residence
will not be deemed to have changed. Starke
v. Scott, 78 Va. 180. The court appears to
have seized on the fact in the last case
that process was served at the debtor's residence to save the exemption for the family,
making such seemingly operate as a kind
of estoppel against the creditor. Starke v.
Scott, 78 Va. 180. In Washington it was
held that a fugitive leaving with intent to
'defraud his creditors, prevents wife, as his
agent, from claiming the exemption. Carter v. Davis, 6 Wash. 327, 33 Pac. 833. We
have not examined the Washington statutes
to discover how much this ruling turns
upon their precise language. As seeming
to go either upon the theory of ex turpi
causa non oritur actio or on the presumption
that for escape to be effective the debtor
would go beyond state lines, it was ruled
in New York, that a fugitive from justice,
who escaped from the sheriff subsequent
to conviction will, for every purpose, be
regarded as a non-resident. New York v.
Gepet, 63 N. Y. 646, 4 Hun. 487.
As to an absentee it has been held that
the mere formation of intention to remain
away without actual change of domicile does
not make him a non-resident. Smith v.
Story, 1 Humph. 420.
In the line of liberality in favor of the
exemption it has been ruled that residence
on an Indian reservation, which is territory in a state under the jurisdiction of the
United States, is residence, under the exemption laws, within the state. Coey v.
Cleghorn (Idaho), 79 Pac. 72; and as soon
as one comes into the state with his family

to acquire residence therein, he becomes a

resident, though he has not yet acquired a
permanent residence. Chesney v. Francisco,
12 Neb. 626, 12 N. W. 94; and resident includes a temporary resident. Everett v. Hardin, 46 Me. 357, 74 Am. Dec. 455; Lowe v.
Stringham, 14 Wis. 222. And where such a
case is not in terms excluded by the statute
a debtor whose family resides without the
state is' entitled to the exemption. Pettit
v. Muskegon Booming Co., 74 Mich. 214, 41
N. W. 900. So held' where the exemption
was to "a householder having a family,"
though the family was in Canada and had
never been within the state. The contra
was held in Zimmerman v. Franke, 34 Kan.
650, 9 Pac. 747.
It is said by Shinn on Attachment, sec.
96, for which he cites authority, that there
is an obvious difference in acquiring a residence elsewhere in states which make "nonresidence" a ground for attachment and a
statute which authorizes attachment where
the debtor is "not a resident of the state,"
the requirements of the latter being more
easily satisfied than those of the former,
as by the latter departure from the state
makes him "not a resident," while under
the other he has his residence in the state
he is leaving until he acquires a residence
elsewhere. This distinction seems quite refined. It is also ruled that though temporary absence does not constitute one a
non-resident, yet a mere intention to return at a remote and indefinite time, no
matter how often expression is given to
such intention does not give residential
rights in the state to which return is proShinn on Attachment, see. 92
posed.
citing. Hanson v. Graham, 82 Cal. 631,
23 Pac. 56; Wheeler v. Cobb, 75 N. C. 21;
Carden v. Carden, 107 N. C. 214, 12 S. E.
197; Charles v. Amos, 10 Colo. 272, 15 Pac.
417.
It it
occupy
able to
in two

were otherwise held a debtor might

the very favorable position of being
secure exemption, at the same time,
different states.

Life Tenure of Federal Judges.

In speaking of defects in the federal
constitution, Judge Walter Clark, Chief
Justice of the Supreme Court of North
Carolina, said, among other things:
"But by far the more serious defect

THE LAW
and danger in the constitution is the appointment of judges for life, subject to
confirmation by the Senate. So far as
corporate wealth can exert influence
either upon the President or the Senate,
no judge can take his seat upon the federal bench without the approval of allied
plutocracy. It is not charged that such
judges are corruptly influenced. But
they go upon the bench knowing what
influence procured their appointment, or
their confirmation, and usually with a
natural and, perhaps, unconscious bias
from having spent their lives at the bar
in advocacy of corporate claims. Having
attempted as lawyers to persuade courts
to view debated questions from the
standpoint of aggregated wealth, they
often end by believing sincerely in the
correctness of such views, and not unnaturally put them in force when in turn
they themselves ascend the bench. This
trend in federal decisions has been pronounced. Then, too, incumbents of seats
upon the federal circuit and district
bench cannot be oblivious to the influence which procures promotion; and
how fatal is the expression of any judicial views not in accordance with the
'safe, sane and sound' predominance of
wealth.
"As far back as 1820, Mr. Jefferson had
discovered the 'sapping and mining,' as
he termed the life tenure, appointive federal judiciary, owing no gratitude to the
people for their appointment and fearing
no inconvenience from their conduct,
however arbitrary, in the discharge of
such office. In short, they possess the
autocratic power of absolute irresponsibility. 'Step by step, one goes very far,'
says the French proverb.
"This is true of the federal judiciary.
Compare their jurisdiction in 1.804, when
Marshall ascended the bench, and their
jurisdiction in 1904. The constitution
has been remade and rewritten by the
judicial glosses put upon it. Had it been
understood in 1787 to mean what it is
construed to mean today, it is safe to
say not a single state would have ratified
it. This is shown by the debates in the
state conventions, in many of which the
bare possibility of much less objection-

able construction was bitterly denied and

yet nearly caused defeat of ratification.
In 1822, in his letter to Mr. Barry, Mr.
Jefferson said that it was fmperative that
the United States judges should be made
elective for a term of years and suggested six years as the period. The tenure of judges for a term of years is the
popular will and judgment, as is shown
by the adoption of that method in fortyone states. It has worked satisfactorily
in those states, else they had rettirned
to the appointive life tenure. The latter
system of selecting the United States
judges has not proved satisfactory. It
lends itself to the appointment of corporation attorneys, whose natural bias,
however honest they may be, is adverse
to any ruling that will conflict with the
views maintained by them while at the
bar. The life tenure is especially objectionable, because the conduct of the
judge is beyond review by any authority.
A more autocratic and utterly irresponsible authority nowhere exists than that
of the United States judges, clothed witt
the power to declare void acts of Congress, and -rendered by life tenure free.
from any supervision by the people or
any other authority whatever. An elective judiciary is less partisan, for in many
states half the judges are habitually taken from each party and very often in
other states the same men are nominated'
by both parties, notably the recent selection by a Republican convention of a
Democratic successor to Judge Parker.
The people are wiser than the appointing power, which viewing judgeships as.
patronage has with scarcely an exception filled the federal bench with 'appointees of its own party. Public opinion, which is the corner stone of free
government, has no place in the selection or supervision of the judicial augurs
who assume power to set aside the will
of the people when declared by Congress
and the Executive.
Whatever their
method of divination, equally with the
augurs of old, they are a law to themselves and control events. A people's
destiny should always be in their own
hands.
"As was said by a great lawyer, mow

THE LAW
As the same words do not mean the
deceased, Judge Seymour D. Thompson,
thing to different courts, it may be
same
in 1891 (25 Am. Law Review, 288):
different states different words
in
that
'If the proposition to make the federal
to be employed to reach idenhave
may
judiciary elective instead of appointive
These things represent
results.
tical
the
is once seriously discussed before
or limitations, but they
biasses
human
of
growth
the
stay
can
people, nothing
respected.
to
be
have
that sentiment, and it is almost certain
We were visited with this view of
that every session of the federal Supreme
in connection with our other readthings,
Court will furnish material to stimulate
this law, on perusing the adabout
ing
that growth.'
dress on "The Negotiable Instruments
"Great aggregations of wealth know
Law of Missouri," lately delivered by
their own interests, and it is very cerM. Harris, trust officer of the
-Virgil
tain that there is no reform and no conMercantile Trust Company of St. Louis
stitutional amendment that they will opbefore "Group Six, the Missouri Bankpose more bitterly than this. What then
ers' Association," Fulton, Mo. Mr.
is the interest of all others in regard to
Harris made a very creditable address
it?"-The Arena.
and it gives evidence of the effort the
bankers are making to adjust practice to
new conditions, and a law journal ought
to be in hearty sympathy with his sugThe Negotiable Instruments Law.
gestion that where bankers are "in doubt
The Uniform Negotiable Instruments as to duties, rights or liabilities a good
Law, which has been adopted in nearly lawyer should be consulted."
But there are details in the working
two-thirds of the states, is being subthe
by
of the law, which such officials as Mr.
analysis
out
critical
to
not
only
jected
courts, but by the banking institutions Harris daily encounter, which will tend
as well. Its departures from former con- to formulate practical suggestions, that
ditions, and its improvements and defects the "good lawyer" might not happen to
are being noted, and, without doubt, the hit upon, and, therefore, the need of the
commercial world will be prepared by the co-operation we have adverted to, we
time of the.next meeting of the commis- wish to specially emphasize..
sioners on uniform state laws to submit
The bankers of the country have an
practical suggestions as to its working. excellent opportunity to demonstrate the
In all new legislation there are rough beneficial effect of the work done by the
places, for a time, which disappear as lawyers in causing the adoption of this
conditions more and more adjust them- law. We would like to suggest that in
selves to a new regime. But also there its perfection earnest care should be
are, often, radical defects, which may not taken to avoid too much amendment, and
be fully understood, until the new law that none be resorted to unless it be
has had a reasonable period of trial.
through the medium which procured the
Now that the American Bar Associa- law as it is. If there be independent
tion has put in legislative form its propo- tinkering, ere we may be aware, uniform
sition, it devolves upon the bankers of legislation on this subject will have bethe country to co-operate with the law- come a record of yesterday.
yers to the perfection, by amendment, of
Another suggestion comes to us, which
what has been submitted.
we have been trying to impress when, In the courts, too, there will be differ- ever a place to hang it on appears, is that,
ences of construction, which will have to if uniform legislation is to be sought by
be harmonized by such legislation, and any particular class in the business world,
this, too, can be more successfully accom- sympathy for it must be created among
plished by co-operation between business the kind of people who create the legismen and lawyers, than if either alone un- lative bodies. If the bankers, the common carriers, the warehousemen, the
dertake the task.,

THE
merchants generally, wish uniformity of
legislation on any subject, they would
do well to become interested in other
matters that the general public might also
desire uniform legislation about.
This movement is progressive in its
nature, and no set form of similar language in statutes adopted in different
states is an end of the matter by any
means, even if subsequent experience
might not call for change and extension.
The bankers have, no doubt, already
discovered provisions that were faulty in
some respects, and they will no doubt
discover others. To secure their elimination there must be liberality and respect for the desires of others. There is
believed to be a method of sometimes securing legislation, that on its merits
would not greatly attract support, but we
are assuming that the kind of lobbying
alluded to is to have no place in the uniform state laws movement.
The Lighter Vein.
(Readers of THE LAW are kindly invited
to help along this column with any incident,
witty or humorous, in their knowledge or
experience.)

THE JUDGE EVENED UP WITH THE LAW-

YERs-The judge had his patience sorely

tried bylawyers whowished to talk and by
men who tried to avoid jury service. Between hypothetical questions and excuses
it seemed as if they would never get to

LAW
the actual trial of the case. So when
the puzzled little German who had been
accepted by both sides jumped up, the
judge was exasperated.
"Shudge!" cried the German.
"What is it?" demanded the judge.
"I tink I like to go home to my wife,"
said the German.
"You can't," retorted the judge. "Sit
down."
"But, Shudge," persisted the German,
"I don't tink I make a good shuror."
"You're the best in the box," said the
judge. "Sit down."
"What box," asked the German.
"Jury box," said the judge.
"Oh,. I though it was a bad box that
the peoples gets in somedimes."
"No," said the judge, "the bad box is
the prisoners' box."
"But, Shudge," persisted the little German, "I don't speak goot English."
"You don't have to speak any at all,"
said the judge. "Sit down."
The little German pointed at the lawyers to make his last desperate plea.
"Shudge," he said, "I can't make nodings out of what these fellows say."
It was the judge's chance to get even
for many annoyances.
"Neither can any one else," he sai
"Sit down."
With a sigh the little German sat
down.
-Exchange.

THE

LAW

CORPORATIONS.
By ROBERT F. WALKER, Esq.
This department of "THE LAWT" will be devoted to a succinct presentation of the
latest rulings of the Courts in regard to corporations, with such terse comments thereon
as the Editor may see fit to make.-Publisher.

Corporation-Setting Aside Judgment by

Default.-The St. Louis Court of Appeals in
Billingham v. Miller & Teas Com. Co., 89
S. W. Rep. 356, holds, that to authorize a
corporation to set aside a judgment by default when it is shown that it has been
summoned by the delivery of a copy of the
petition and writ to its secretary at its
usual business office, the president not being found, it must in explanation of its failure to answer and its right hereafter to do
so show negligence in the secretary in notifying the corporation of the service.

Directors Cannot Sell Corporate Assets

and Business.-It is held in many jurisdictions that the directors of a corporation
cannot, unless thereto authorized by the
stockholders, put an end to a corporation's
business and thereby defeat the object of
its creation by selling out all of its property, or any portion of its real estate necessary for the transaction of its ordinary
business.
Chicago City Ry. Co. v. Allerton, 18
Wall. (U. S.) 233, 21 Law Ed. 902;
Coleman v. East Co.'s Ry. 10 Beav. 1;

Who Are Passengers-ObligatIons of Carriers.-The Court of Civil Appeals of Texas

in Green v. Houston Electric Co., 89 S. W.
Rep. 442, holds that one hurt in the act of
getting on a street car, by the violent and
sudden starting of same, is a passenger although not entirely on. the car at the time
the injury was inflicted; that the duty of
exercising such foresight by those in charge
of the car as to prevent dangers to those
getting on or off of same is imposed as
would be used by very prudent and competent persons under like circumstances.
Fraud Defense Against Contract for Subscriptions.-The Supreme Court of Michigan
in French v. Ryan, 104 Mich. 625, holds that
fraud may be a good defense to an action
for the subscription price of shares of stock;
and the Upper Canada Common Pleas holds
in Provincial Ins. Co. v. Brown, 9 U. C. C. P.
286, that where the evidence tends to show
that one soliciting 'subscriptions to stock
falsely represented such stock, it was error
to direct a verdict for plaintiffs.
See also 70 N. H. 350.
Parol Representations Varying Written
Contract in Regard to Stock.-The Supreme
Court of Alabama in Smith v. Ta. Br. Cent.,
30 Ala. 650, holds that parol representations
made to induce a person to take shares
of stock cannot be urged to avoid the contract when such representations will cause
a variance or contradict the written contract. See also
Evansville, etc. v. Posey, 12 Ind. 363;
Miller v. Han. June. Ry., 87 Pa. St. 95.

Rollins. v. Cray, 33 Me. 132;

Metro. El. Ry. v. Same, 14 App. N. Cas
(N. Y.), 103;
Clay v. Rufford, 19 L. & Eq. (Eng.), 350.
Cannot Use Funds of Corporation to Buy
Its Own Shares.-It is held in Evans v. Coventry, 2 Jur. N. S. 557, that a corporation
has no power to buy its own shares and 'distribute its capital among its stockholders
in advance of its creditors and to the possible prejudice of future creditors. See also
Currier v. Leb. St. Co., 56 N. H. 262;
Bedford Ry. Co. v. Bowser, 48 Pa. St.
29; and
Lauman v. Leb. Val. Ry. (Pa.), 72 Am.
Dec. 685.
Owner of Shares of Stock Liable, When..
-The
Supreme Court of California in
Barnes v. Babcock, 95 Cal. 581, holds that
one whose name appears as owner of shares
on the books of a corporation is to be regarded as the shareholder both as to the
corporation and as to the public. See also
State v. Ferris, 42 Conn. 560; Holyoke Bank
v. Burnham, 11 Cush. 183; Night Co. v.
Stenkemeyer, 6 Mo. App. 575. The foregoing is true although he may hold the shares
as trustee for others. Borland v. Haven, 37
Fed. 394; Force v. Dalonegha, T. etc. Mfg.
Co., 22 Ga. 86; Richmond v. Irons, 121 U. S.
27; or he may hold them for the company
itself. In re Natl. Finan. Co., L. R. 3 Chan.
791; or as collateral for money loaned, Sim-

THE

LAW

mons v. Hill, 96 Mo. 679; Pullman v. Upton,

96 U. S. 328.

John's Ch. (N. Y.), 388, and Galbreath v.

Elder, 8 Watts (Pa.), 220.

Directors Cannot, at Same Time, Deal for

Corporation and Themselves.-The Supreme
Court of Missouri in Ward v. Davidson, 89
Mo. 445, holds that -directors will not be allowed to assume the double relation of dealing for themselves and a corporation at the
same time; and that so doing they will be
required to account to the corporation for
any secret profits they may make by such
dealing. See also Wardell v. U. P. Ry. Co.,
103 U. S. 651, 26 Law Ed. 509; Attaway v.
St. L. 3rd Natl. Bank, 93 Mo. 485, and the
annotated case of Cook v. Sherman, 20 Fed.
167, 4 McCrary 20; Van Home v. Fonda, 5

When Executive Officers May Act for

Corporation.-The U. S. C. C. of App. in
Cunningham v. Ger. Say. Bank, 101 Fed. R.
977, holds, where shareholders of a corporation either by direct act or acquiescence,
invest executive officers with the powers
and functions of the board of directors as
a continuous arrangement, the board being
entirely inactive and the officers discharging all 'duties, a mortage on the property of
the corporation made by such officers is
valid although not formally sactioned by
the shareholders or directors.

INSURANCE.
By JAMES C. JONES, Esq.
Employers' Indemnity Insurance-Policy-Damages
Outside of Terms of Policy.The policy agreed to indemnify the insured
against loss for damages on account of bodily injuries accidentally suffered by any employe of insured while on duties on or about
its vessels, caused by the negligence of the
insured and resulting from the operation
of its vessels.
An employe of insured
suffered an injury and brought suit claiming damages for the injury suffered and for
failure to furnish proper medical and surgical assistance. Held, that the insurance
company was liable for the whole expense
of the defense, though under the policy it
was not liable for damages on account of
failure to furnish surgical treatment.
Same - Same - Same - Estoppel. - The
insured notified
the
insurance
company of the suit and furnished it a copy of
the libel. The insurance -company took
charge of the suit and after judgment was
rendered against Insured directed it to take
an appeal. Afterwards, under advice from
the insurance company, the appeal was
abandoned, the Insurance company agreeing
to reimburse insured for the amount, which
insured thereupon paid. Held, that the insurance company was liable for the amount
of the judgment and the subsequently incurred costs, although the judgment against
plaintiff was based upon a claim outside the
provisions of the policy.
(Ju'dgment for plaintiff below.

Here af-

firmed against insurance company.)

Globe Nav. Co. v. Maryland Casualty
Co., Wash. S. C. 81 Pac. Rep. (September 11, 1905), 826.
Storm Insurance-Ice Gorge.-The plaintiff's property, situated about 200 yards
from a creek and about half a mile from a
river, was insured against "all direct loss
or damage by fire or storm." During March
6 and 7 there were light rains and on March
8 when the weather was clear, the Ice, which
had sometime previously gorged about five
miles up the river, broke and again gorged
below the mouth of the creek, forcing back
up the creek water and Ice, which destroyed
the plaintiff's property. Held, that the plaintiff could not recover under this policy.
Same-Loss Not Covered.-Damage by a
storm anywhere but at the place where the
property is located, is not contemplated in
such policy.
Same-Same-Court and Jury.-The question of proximate cause is for the jury, but
where the facts are undisputed and the intervening agency is manifest the court may
withhold the evidence from the jury.
Riale v. Old Guard Mut. Fire & Storm
Ins. Co., 62 The Legal Intelligencer
(Oct. 13, 1905), 408, 14 Pennsylvania
District Reporter 639.
Concealment.-A party is not excused
from the consequence of concealment of
material facts by the mere fact that it was
due to his ignorance or mistake. He must

THE LAW
disclose facts not only of which he has
actual knowledge, but those of which the
law requires him to have knowledge. Hence
if the fact is such which comes within the
scope of this rule, and is not disclosed to
the insurer, the policy cannot be enforced,
although the failure to disclose it was due
to his negligence or mistake, or was a mere
accident.
Weigle v. Cascade F. & M.
Wash. 449; 41 Pac. 53.

Co., 12

See alsoCarpenter v. American

(Story), C. C. 57.

Ins.

Co.,

Negative Answers.-A mere check mark

placed after a question cannot be deemed
a negative answer when the same kind of

marks appear after other questions not

answered and deeme'd immaterial.
Manhattan L. I. Co. v. Willis, 60 Fed236; 8 C. C. A. 594.
to Inquiries.--In.
Incomplete Answers
Parker v. Otsego County, etc. F. I. Co., 47
N. Y. App. 204, the court said:
"The failure to answer the question implied in the paragraph referred to or ans-wering it to a certain point and' not completing the answer was notice to the com-pany simply to divulge and the companymight or might not issue to him the policy
as it pleased or such facts as the companyhad."
Same.-No breach of warranty can. be
based upon such an answer, as a breach of
warranty must be based upon the affirmation of something not true.

TITLES AND ABSTRACTS.

By McCUNE GILL, Esq.

Administration.-It is often the case in

the smaller communities that abstractors
ignore probate proceedings. This is usually
the result of an intimate knowledge of the
affairs of the owner of the land, but even
where there exists no such information,
there is a tendency to shirk the examination
of proceedings in probate. This custom is
much to be decried; it is not only unfair
to the client, who pays for all the record
information, but is likewise disastrous in
its ultimate effect on the business or profession of title-examining. The more information furnished by the examiner, the
more confidence will be placed by the customer in the abstract or certificate; this in
turn effects the ouster of the professional
attorney from the field of title-examininga result which, from the point of view of
the title-examiner, is much to be desired
and which has already been accomplished
by the trust companies of the great cities.
The subject of probate sales to pay debts
is perhaps the most important for the examiner, but aside from this phase of the
subject-considered in a former issue-there are other items of Information that
are indispensable to the client in forming
his estimate of the validity of the title,
which are obtainable only from the files or
records of the probate court. From the
probate proceedings the client is informed
whether or not the debts of the estate have
been paid, whether the legacies, if any, have
been satisfied, the number and names of

the heirs, and the fact of assessment of

the collateral inheritance tax.
An adherence to the following form ofabstracting probate matters, with a notation
of any element that a search of the files
and records fails to disclose, will furnish all
the data necessary to the intelligent formation of a correct opinion of-title, whether
this opinion is to be arrived at by the client
upon an abstract, or is to be furnished by
the examiner in the form of a certificate.
Estate of
John Smith.

N
No. 3220.

26 Jan. 70. Died.

3 Feb. 70. Renunciation to Mary Smith,
widow, of right to administer,
filed. (If the letters are issued
within 30 days after the death
of the decedent,. and there appear to have been relatives
capable of administering-nonresidents and married women
are incapable-there must be a
Skelly v. Veerrenunciation.
kamp, 30 Mo. App. 49.)
3 Feb. 70. Letters of administration granted to James Smith.
(It
3 Feb. 70. Bond filed and approved.
was decided in 71 Mo. 152, that
the administration is valid, even
though the probate records do
not state that the bond was approved, if it appears that the

THE

LAW
the administrator
thereupon
files an amended settlement, that
the original publication does
not support the amended settlement. This state of affairs
is of frequent occurrence, and,
while not a serious defect in
the title, should at least be
brought to the client's attention by a suitable note.)

court allowed the administrator

to proceed with his duties, in
the same manner as if the approval had been made.)
10 Feb. 70. Administrator's affidavit as to
the number and names of heirs.
15 Mch. 70. Proof of publication for four
weeks of notice to creditors.
(The creditors of the deceased
have two years after the publication, in which to prove up
their claims, and if no publication be made, the only bar is
the general statute of limitations, which is usually 5 or 10
years.)
20 Mch. 70. Inventory filed.

10 May 73. Final settlement filed.

Show
balance in hands of administrator, and order of distribution.
15 June 73. Final receipts filed for amounts
in above order of distribution.
15 June 73. Administrator discharged.

15 Apr. 70. Appraisement for and assessment of collateral inheritance

tax, showing amount of same.
The payment or non-payment of
this tax as indicated on the
books of the collector, should
be shown.
16 June 71. Annual settlement.
15 June 72. Annual settlement.
10 May 73. Proof of publication for five
weeks of notice of final settlement.
(It was decided in
54 Mo. 102, that if a final settlement is filed pursuant to a
notice, and this settlement is
disapproved by the court, and

If there was a will, it and the attestation

and the probate of it should be copied verbatim, and there should appear receipts for
cash legacies. That is, it is not necessary
that there be receipts for legacies of specific
personal property, nor for general legacies
(as where the entire estate is bequeathed to
the widow), nor for residuary legacies, nor
for devises of realty. If there has been a
sale for the payment of debts, the following proceedings should appear-petition, order of publication and personal service,
proof of publication and personal service,
order of sale, proof of publication of notice
of sale, oath of appraisers, appraisement,
report of sale, confirmation.

TORTS, NEGLIGENCE AND DAMAGES.

By CLAUD D. HALL, Esq.

Master and Servant-Master's Duty to

Furnish a Safe Place to Work-Qualifications of Rule.-It is a master's duty to use
reasonable care to provide the servant a
safe place to work. The phrases used by
the courts to express this duty of the master are numerous. Such terms as, "reasonable skill," "reasonable caution," "reasonable
prudence," "reasonable diligence," etc. are
frequently used as synonymous with the
words, "reasonable care" and "ordinary
care." The best expression, however, is
probably the term, "reasonable care," which
means "ordinary care." This is defined by
the courts as "such care as reasonable and
prudent men would use under similar circumstances."
The care required of the
master, of course, in furnishing the servant
a safe place to work, depends on the na-

ture of the employment, the dangers to

which the servant is exposed, and the dangers which the master can apprehend and
avoid. The rule is thus laid down in a
Missouri case:
"It is well-established law that the master impliedly agrees with his servant, when
he employs him to perform any work or
service, to use reasonable care to provide
him with suitable means, appliances and instrumentalities, to do his work as safely
as necessary hazards of the employment
-will permit. This duty includes that of
care to provide as safe a place to perform
the service as the character of the work
will permit."
Bradley v. Ry. Co., 138 Mo. I. c. 302.
The measure of

the

master's

duty

is

THE LAW
largely determined by the facts and circumstances of each case.

is the master's duty to see that the place is

kept in a reasonably safe condition.

Claybaugh v. K. C. F. T. & Memphis

R. R. Co., 56 Mo. App. 630.

Zellars v. Mo. Water & Light Co., 92

Mo. App. 107;
Turner v. Haar, 114 Mo. 335.

The master's duty to furnish the employe

a safe place to work is a continuing one.
Zellars v. Mo. Water & Light Co., 92
Mo. App. 107.
It is a personal one to the master, and
it cannot be delegated.
Zackewitz v. American Biscuit Mfg. Co.,
78 Mo. App. 144.
And the servant has the right to presume that the matter has performed this
duty and that he will not send the servant
into a dangerous place.
Doyle v. M. K. & T. Trust Co., 140
Mo. 1.
But the master is not an insurer against
accidents, nor is he chargeable or responsible for not providing against all possible
and unanticipated happenings.
Grover v. K. C. Nut & Bolt Co., 153 Mo.
327.
Nor is the duty to furnish the servant a
safe place to work an absolute one, but it

And this does not take away from the

master his right to conduct his business in
his own way as long as the place is kept
reasonably safe.
Bradley v. Ry. Co., 138 Mo. 293;
Doyle v. M. K. & T. Trust
Mo. 1.

Co.,

140

There is a necessary exception to the

rule requiring the master to furnish the
servant a safe place to work in cases where
the place where the servant is employed is
necessarily made dangerous in performing
the required services, and the rule is thus
expressed by Mr. Justice Gray in Armour v.
Hahn, 111 U. S. 318:
"The obligation of a master to provide
reasonably safe places and structures for
his servants to work upon does not impose
upon him the duty, as toward them, of keeping a building, which they are employed in
erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work
by them and their fellow servants."

MEDICAL JURISPRUDENCE.
By EDGAR R. ROMBAUER, Esq.
Dentists-Degree of Care Required of.In the absence of express agreement, dentists do not insure or warrant the result of
their work, nor do they engage to bring to
it the highest skill known to the profession
and they are not answerable for mere mistakes in judgment. But the law does place
upon them the duty, and hold them liable
for the want thereof, of possessing and exercising that reasonable degree of diligence,
learning and skill ordinarily possessed by
dentists in similar localities and of keeping
abreast of the times and exerting their
best judgment.

liability to respond for damages resulting

from not exercising them.
Dubois v. Decker, 130 N. Y. 325.
Fees of Physician.-A physician is not
precluded from recovering the reasonable
value of his services by the fact that he has
sent 'the patient a bill for an amount less
than the services were reasonably worth.
Where there is no conflict in the expert
testimony concerning the value of the services rendered, the jury are not at liberty to
disregard such testimony and enter the field
of their own uninstructed conjecture.
Ladd v. Witte, 116 Wis. 35.

McCracken v. Smathers, 122 N. C. 797.

Physician Rendering Service Without
Charge-Degree of Care Required of.-The
fact that the services of a physician or surgeon were rendered gratuitously 'does not
affect his duty to exercise reasonable and
ordinary care, skill and knowledge, nor his

Osteopaths-Medical Practitioners within Illinois Statutes.-A person who gives

treatment after a diagnosis, by rubbing or
kneading the body to free the nerve force,
as in osteopathic treatment, practices medicine within the meaning of a statute providing that any person shall be regarded as

THE LAW

502

practicing medicine who "shall treat or profess to treat, operate on or prescribe for any
physical ailment, or physical deformity, or injury of another," although such practitioner
does not use drugs, medicine or instruments
nor does he by means of such treatment,
treat the sick by mental or spiritual means
alone.
People v. Gordon, 194 Ill. 560.
Physicians-Duratidn of Employment of.
physician called in generally, without
-A
limitation as to his attendance, is Impliedly
engaged to attend the patient through the
illness, or until his services are dispensed
with.
Dale v. Donaldson Lumtner Co., 48 Ark.
188.
Liability of Accident Insurance Company
for Negligence of Its Examining Physician.
-A physician, who at the request of an accident insurance company examines the
limb of one insured in such company, the
person injured permitting the examination
to be made in pursuance of a clause in the
insurance policy providing that "any medical adviser of the company shall be allowed

to examine the person, or body, of the injured in respect to any injury or cause of
death in such manner and at such times
as he may require," is a servant of the insurance company so as to render the company liable for an injury caused the insured by the negligence of the physician in
making an examination.
Tompkins v. Pacific Mutual
Co., 53 W. Va. 479.

Life

Ins.

Poison-Restriction on Sale of-Canvasser for Orders with Authority to Receive

Money.-A shopkeeper who, acting as agent
upon commission for the manufacturers of
a poison within the meaning of the Pharmacy Act, 1868, receives at his shop orders
for the poison and the purchase money for
it, and does not make aiy binding contract
of sale with respect to it, but merely forwards the orders and the money to the
manufacturers for them to deal with, does
not "sell" the poison within the meaning
of section 15 of the act, and does not keep
open shop for the purpose of retailing
poison within the mean-ing of that section.
Pharmaceutical Society v. White, 70 L.
J. K. B. (England), 386.

COMMERCIAL PAPER, BANKS AND BANKING.

By MONTAGUE LYON, Esq.

Liability of Individuals Signing as Trustees.-Certain trustees for creditors took

over the construction of a building from
the owner, and in furthering the work of
completing the building it became necessary to give a note to a sub-contiractor, who
was aware that the trustees were not acting
as individuals but in behalf of cre'ditors.
The note was signed
"Andrew Ruegamer, Jr.,
Daniel Moore,
Leon Raunheim,
As Trustees, etc."
There was also evidence that the trustees informed the plaintiff, the sub-contractor, that they would not be liable individually, but only to the extent of the property
of the owner in their hands.
The plaintiff tried to hold the trustees individually, and the argument was made that
there was nothing on the face of the note
that showed that its consideration was for
the benefit of the creditors of the owner or
that the note was given by the defendants

as the trustees for such creditors. The court

held that the fact plaintiff knew that the
trustees signed the note as trustees and
not as individuals made such statement in
the note unnecessary. The court saying,
the purpose of the statute is limited to putting the payee of such a note in possession
of the knowledge that in its execution and
delivery no personal liability was intended to
be assumed by the makers, and where, as
in this case, the payee knows that the makers are trustees, and the object and purposes of their trust, as well as their powers
thereunder, has contracted with them in
their representative capacity, and furnished
certain property to be used, in furtherance
of their trust duties, and requests a note
as evidence of the indebtedness so created,
it is not necessary, as to him, and the makers are not required, to relieve themselves
from personal liability on such note, to repeat to him in writing upon the face of the
instrument, or orally, information that he
already possesses. If it be held that such
a requirement was necessary, the evidence

THE LAW
of Raunheim establishes that when the note
was given the plaintiff was informed substantially that the defendants would not
incur personal liability, and would not give
their individual notes or indorsements because they were acting as trustees only,
which brings the case within the decision

of First National Bank v. Wallis, 150 N. Y.

445. These facts furnish a complete defense to plaintiff's claim of individual liability, and, abundantly satisfy the requirements of the negotiable instruments law.
Kerby v. Ruegamer, 95 N. Y. S. 408.

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 (Continued).-Continuing the subject of guaranty from last
week's issue wherein we discussed the contract with reference to the statute of frauds
and as to requisites and consideration, we
shall, in this issue, give attention to its
construction and operation.
As we have noted-, no special form or words
are necessary; an'd to be construed to be a
guaranty, any writing claimed to be such,
must show plainly such intention. When
found to be a guaranty at all, the contract
is interpreted liberally as to the meaning
of its express terms, keeping in view the
circumstances surrounding the parties, their
evident intention, and the known usages of
trade. In a word, it is generally to be construed as are other contracts, but its provisions cannot be extended by implication;
the guarantor cannot be held liable except
as per the express terms of his contract, and
a 'deviation from the express terms on the
part of the guarantee may release the guarantor entirely. It is a contract "strictissimi
juris, i. e., to be applied most strictly. And
this is the point most to be emphasized. A
guarantor can only be charged when the
case comes within the precise terms of his
contract. A guaranty covering advances
made to a firm has been held not to cover
advances made to the individuals composing
the partnership. Where the guarantee was
a corporation known as C. Bros. the guarantor was held no longer liable, after the
name of 'the corporation was changed to C.
Company. And' in a New York case (
Lansing, 181) it was held that a guaranty
to be responsible for "chamber suits" does
not apply to isolated articles of chamber
furniture, merely because these were capable of being made up into suits.
Unless a letter of guaranty is generalthat is, not addressed to any particular per-

son-the guarantor can only be held by its

being accepted and acted upon by the particular person to whom it was addressed.
A letter of guaranty addressed to two persons, but delivered -to and acted upon by but
one of them, does not bind the guarantor.
In general the guarantee must use due
diligence and all the means within his power
-to recover the 'debt from the principal debtor
before he can resort to the guarantor. But
the intention of the parties, as evidenced by
the express terms of the contract, must govern. For instance, the guarantor may expressly waive anything more than a demand upon the principal debtor by the
guarantee.
Unless the principal is insolvent when the
debt falls due, notice of default on his part
must be given the guarantor with reasonable promptness. But when it can be proven
that the guarantor had actual knowledge of
default of principal, formal notice is unnecessary.
Decisions.-A guarantor, like a surety, is
bound only by the strict letter and precise
terms of his contract.
McAfee v. Wykoff, 44 Misc. 380.
A guarantor in a written guaranty Is not
rendered liable by mere ratification or acquiescence for matteris or items not falling
within the express terms of the guaranty.
Shine's Admr. v. Bank, 70 Mo. 524.
A guaranty addressed to a particular person cannot be acted upon by another so as
to hold the guarantor.
McCollum v. Cushing, 22 Ark. 540.
Edmonston v. Drake, 5 Peters, 624;
Birkhead v. Brown, 5 Hill, 634;
Taylor v. Wetmore, 10 Ohio, 490.
A guarantor, agreeing, at the time of a

THE LAW
sale, to be responsible for the price, is liable
for interest on the price, if not paid by the
principal when due.
Rubber Co. v. Benedict, 5 Jones & S.
430.
Looney v. LeGeirse, 2 Wilson, 534.
It is not a breach of the terms of a guaranty for a specified amount that credit was

extended to the principal for more than that

amount. Fish v. Stone, 50 N. W. 125. But
where, in a contract of guaranty, the guarantor stipulates that consignments are not
to exceed a certain sum at any one time, this
is a condition of his liability, and if credits
exceed that sum at any time he will be released.
Brez v. Warner, 1 Ky. Law Rep. 226.

PATENTS, TRADE MARKS AND COPYRIGHTS.

By-EDWARD E. LONGAN, Esq.

Respective Rights of Employer and Employes in Inventions. (Continued.)-A recent case relating to this subject is the case
of the Pressed Steel Car Co. v. Hansen, decided by the Circuit Court of Appeals, Third
Circuit, reported in the "Federal Reporter,"
Vol. 137, pages 403 to 418.

assign to the complainant letters patent in

question."
In the above decision the Circuit Court of
Appeals reviews prior decisions relating to
this subject matter:

In this case, Hansen was employed by the

complainant company as chief engineer, "under an agreement and understanding to devote his entire time, ability and skill to your
orator's business and its advancement, and
that all inventions and improvements that
he might make during the period of his employment, and all letters patent that might
be obtained therefor, should be the sole property of your orator."

Hapgood v. Hewitt, 119 U. S. 226.

Solomons v. United States, 137 U. S.
342, and decides as follows,:

There was no written contract between

Hansen and the Pressed Steel Car Co., but
it was attempted to prove the above allegation on the part of the complainant by oral
testimony.
Hansen denied the existence of any such
agreement, "and positively asserted that no
contract of any kind existed between complainant and himself by which he was to

The case of Gill v. United States, 160 U.

S. 426.

"We have been referred to no case, nor

have we been able to discover one in which
apart from express contract or agreement,
and upon the mere general relation of employer and employe and of the facts and circumstances attending it, the employer has
been vested with the entire property right in
the invention and patent monopoly of the
employe, or with anything other than a
shop right, or irrevocable license, to use the
patented invention." Such a right' in the
employer, the employe may be estopped to
deny, by the fact of his employment and his
conduct in relation to the use of his inventions by his employer, and to that extent
and no further have the cases gone."

THE

LAW

WILLS.
By GEORGE T. DESLOGE, Esq.

Effect of Probate of WilI.-A decree admitting a will to probate is not an adjudication of the effect or construction of any provision of the will, but only that the will was
executed by the person whose will it purports to be, and that such person was competent to make a will.
Greenwood v. Murray, 26 Minn. 259.
Though under Rev. Stat. of Wisconsin,
See. 2294, the probate of the will is "conculsive as to its due execution," it calls for
no construction of the provisions of the will,
at least no such construction as will bind
the rights of parties under the will.
Jones v. Roberts, 84 Wis. 465.
Although under the statute a will does not
become effectual until proved, yet, when
proved, it takes effect by way of relation so
as to vest the title of property *devised by
it in .the devisees Immediately upon the
death of the testator.
Graves v. Mitchell, 90 Wis. 306.
The subsequent probate of a will gives
vitality to a previous conveyance of property passing under it, executed by a devisee,
so far as that devisee is concerned.
Ryan v. Texas & P. R. R., 64 Tex. 239.
A paper purporting to be the will, under
which the devisees claimed, but having no
entry of record or probate thereon, though
coming from the ordinary's office, into whose
hands it was shown that it went at the death
of the testator, is not sufficient proof of the
probate and record of the instrument to
maintain a bill in equity by the devisees
thereunder.
Rogers v. Rogers, 78 Ga. 688.
Effects of Proof of Testator's Signature.Proof of the testator's signature to a will is
prima facie evidence of his having understandingly executed the same. A will prepared at the request of a testator, even under general directions and afterward, executed in the manner provided by law, should
not be set aside on the ground that he did
not understan'l what it contained, except
upon clear and satisfactory proof of that
fact. The rule of law is. "where the testator is shown to have executed an instrument as his will, being in his right mind,

and there is nothing of fraud or imposition,

it will be presumed that he was aware of its
contents."
Sheer v. Sheer, 159 Ills. 591.
Construction of Will.-A will provided
that: "To provide to the extent of my ability for the support and education of such of
my children as shall be unmarried and
minors, and such of the married or adult
ones as may, by innocent misfortune, become
really needy, I give and bequeath to my beloved husband all my property, that he may
use the same for the maintenance and e'ducation of my said children, and that he may,
from time to time, advance to each of them
as he may deem best to start them in life."
The husband was appointed "executor, with
full power to control, manage, use, convey,
sell and dispose of said property as his own
absolute property, without being required to
file or ren'der any account, or give any bill."
Held, that the husband took an absolute
title free from any trust.
Randall v. Randall, 135 Ills. 398.
Property-Will
Codicil-Description of
Not Sufficiently Identified.-Testatrix directed by her will the appraisement of a "dwelling house, lot, and appurtenances," and provided that a son should have the option to
take it at the appraised value, and that on
his declining to do so the option should be
extended to the other children in order of
their ages. After the will, and shortly before her death, she signed a paper, a'd-dressed
to such -son, stating that she had bequeathed
to him "the house I now live in for $1,000,
as expressed in my will, written by Judge
M," which paper the register admitted to
probate as a codicil. On appeal to the orphans.' court it was held that there was nothing in the unattached writing to identify the
dwelling house, lot, and appurtenances
named in the will as the house named in the
unattached writing, and that the reference
to "my will written by Judge M.," without
other evidence, was not a sufficient identification of the will offered as the will referred to in the alleged codicil.
(Supreme Ct. of Pa. 1905.)
In re
Bright's Estate, 61 A. Rep. 941.
Cy. Pres. Doctrine Held Not to Apply.Testatrix bequeathed the surplus of her

THE
estate to "the hospital fund for sick 'seamen
at navy yard, Brooklyn, N. Y., care of W.,
chaplain." W. was not chaplain of the navy
yard and died before testatrix, and there
was no fund maintained for the benefit of
such seamen. Held, that the court of
chancery, under the cy. pres. doctrine, could
not decree such bequest to another institu-

LAW
tion conducting religious and charitable
work among the sailors of larger scope than
that conducted by W., but that the bequest
lapsed and passed, to the testatrix's next of
kin.
Brown v. Condit (N. J. 1905), 61 A. Rep.
1055.

U. S. TREASURY DECISIONS.
By WM. H. O'BRIEN, Esq.

In this department will be noted Important decisions of the Board of General Appraisers, Internal Revenue Department, affecting exporters and importers, under our
tariff laws.
Eggs of Fish-Cod Roe.-Cod roe preserved by salting or brining was classified as
salted fish under the provisions of paragraph
261, tariff act of 1897; held, that the merchandise being unfit for use as food for human beings, is entitled to free entry under
the provisions of paragraph 549.
Stuffed Olives.-Stuffed olives are dutiable
under ,the provision for "olives, green or prepared," in paragraph 264, tariff act of 1897,
and not under that for "all vegetables prepared or preserved, including pickles and
sauces of all kinds, not specially provided
for in this act," in paragraph 241.
Imitation Parchment 'Paper not Printing
Paper.-Imitation parchment grease-proof
paper held to be dutiable as paper not specially provided for under the provisions of
paragraph 402, tariff act of 1897.-Germania
Importing Company v. United States (T. D.
26876), affirming G. A. 6060 (T. D. 26442),
cited and followed.
Brooches, Enameled and Plated-Jewelry.
-Enameled, brooches, plated with gold or
silver, indicative of membership in an organization, and designed to be worn in an exposed manner for personal adornment, are
commonly known as jewelry and are dutiable as such at the rate of 60 per cent ad
valorem under paragraph 434, tariff act of
1897, and not at 45 per cent ad valorem
under the provision of paragraph 193 of said
act for the manufactures of metal.
Reflectors for Lamps-Manufactures of
Glass and Metal.-Reflectors for lamps manufactured from glass, polished, beveled, silvered, and backed with a heavy plating of
copper, are dutiable at the rate of 45 per
cent ad valorem under paragraph 112, tariff
act of 1897, and not at 1% cents per pound
under paragraph 101, 11 cents per square

foot under paragraph 105, nor under one of

the above paragraphs, in conjunction with
paragraph 107, at the appropriate rate or
rates provided by the latter paragraph of
said act.
Scrap Iron-Old and Worn-out Iron Chains.
-Old,
worn-out iron chains, fit only for remanufacture, are dutiable as scrap iron under the provisions of paragraph 122, tariff
act of 1897. The claim that said paragraph
covers only waste or refuse of new iron, and
that waste or refuse of old iron is free as
junk, held unwarranted either in law or in
fact.-Schlesinger v. Beard (120 U. S. 264),
Dwight v. Merritt (140 U. S. 213), In re Solomon (47 Fed. Rep. 711), Train v. United
States (113 Fed. Rep. 1020), Carberry v.
United States (116 Fed. Rep. 773), Robertson v. Edelhoff (132 U. S. 614), and Ingersoll
v. Magone (53 Fed. Rep. 1008), cited and
followed.
Imitation Coral Made of Glass or PasteImitation Precious Stones.-Manufactures of
glass or paste made to imitate coral, designed for use in the construction of cheap
jewelry and belonging to a class of merchan.
dise commercially known as imitations of
precious stones, held dutiable at 20 per cent
ad valorem under paragraph 435, tariff act
of 1897, and not at 45 per cent ad valorem
under the provision of paragraph 112 of said
act for manufactures of glass or paste.United States v. Weinberg (139 Fed. Rep.
1006; T. D. 26483) and United States v. Goldberg (139 Fed. Rep. 706; T. D. 25919) cited.
Commissions-Entered
Value-Duress.Nonduttable items of commissions, If voluntarily added to the value of the merchandise
by the Importer in making his entry, become
part of the 'dutiable value, under section 7
of the customs administrative act of June 10,

THE LAW
1890, requiring that "duty shall not * * *
be assessed in any case upon -an amount less
than the invoice or entered value." It does
not render such an addition less binding that
the right of the customs officers to assess
duties on such charges was disputed and in
litigation when, the entry was made, at least
where the addition of the charge would not
relieve the importer from any unlawful exaction-. The mere apprehension on the part
of importers of incurring additional or penal
duties does not make such an addition in
the entry coercive, where slight investigation would have shown that it was not the
practice of the customs officers to impose
additional duties in such cases. Whether
the addition of a nondutiable charge in the
entry would be conclusive upon importers
where it was induced by a known and settled practice of the customs officials to impose penalties or additional duties where
such charge was not added, query.

Books for a Law Library Other than Public.

-A law library association which exten'ds
privileges only to certain classes of people,
and the terms of whose constitution necessarily limits the membership, Is not a public
library within the meaning of paragraph 503,
tariff act of 1897, and law books imported for
such library are properly dutiable under
paragraph 403 of said act, as books 'specially provided for.

Collector of Customs-Power to Reliqul.

date.-The collector's power to make a reliquidation, which will amount to a new decision respecting any merchandise covered
by a protest, is suspended while the protest is pending, except in so far as the collector may exercise that power to comply
with the demands of the protest while it is
still in his hands.

The use of a public library must not be

confined to privileged individuals, but must
be open to the enjoyment of the indefinite
public, in order to give the library a public
character. Whether compensation is exacted or not Is immaterial so long as all the
public are on equal terms.-Donohugh's Appeal (8 Penn. St. Rep. 313); Gerke v. Purcell (25 Ohio St. Rep. 229).

The Cleveland Law Library Association,

a coiporation constituted un'dvr the laws of
Ohio, which provides in its constitution ihat
the capital stock of the association shall
be $20,000, to be divided into shares of $25
each, and that any person may become a
member by becoming the owner of two
shares of stock, necessarily limits Its membership and becomes a private library. The
fact that it is supported in part out of public
funds does not change its character In this
respect.

THE LAW
The Voting Machine.
The voting machine having been, tried
in New Jersey, we think it not uninteresting to see what is thought about it, and
make extracts from New Jersey Law Journal, December, 1905, in regard thereto.
The Newark "Evening News" declares:
"Never before have the returns in 361 districts been made so accurately and so
promptly, and never before has every mistake been ma'de known to the people with
such absolute fidelity. The machine has,
by the very announcement of the blunders
of the election officers, shown itself a miracle of reliability. Think then, what a safeguard to a pure, true electorate has been
found in the voting machine. To the honest, intelligent man it is an inestimable
boon; to the corruptionist, the ballot-box
stuffer, the repeater, the men who make
false returns and the other assassins of
the government, it is a thing to
dread.
The only weakness it has is not its own, it
is the personal equation that must ever be
guarded against in the setting and operating of every piece of machinery, great
or small. But the absolute honesty of the
voting machine in showing mistakes as
well as totals, tends to prevent Improper
manipulations and makes it more indisL
pensable to the voters.
The -sooner all
election 'districts in this state are supplied
with voting machines the sooner will the
people have fair voting and true counting."
Then follows the Law Journal's comments: We regard the Newark "Evening
News" as one of the ablest and most reliable of the newspapers in this state. It
is abreast of public sentiment, and rarely

takes the wrong side of any important

state question. In the matter in hand,
however, we do not think it pays sufficient
attention to those arguments against the
voting machine which we hold should finally decide against its further use. First,
however, let us say that while we have
doubts as to all its statements concerning
the absolute accuracy of each machine now
in use in New Jersey being substantiated,
yet, assuming, for the sake of present argument that it is a machine which cannot
commit a blunder if properly fixed at the
time of beginning an election contest, that
alone is one of the very things which condemns it. When once it is understood that
either collusive election officers, or experts
on whom election boards must rely as to
the condition of the machine, may so arrange the machine, by interlocking (as In
Madison or Red Bank), or by the use of
rubber bands (as in Jersey City), that it
shall incorrectly register the votes cast upon it as to certain candidates for an entire day, and then, when the count Is recorded, of necessity must leave the result
as to those candidates in an inexplicable
muddle, it is certain- that grave temptations
will be set by politicians who are ready
to secure office at whatsoever cost before
election officers and experts. There is more
than one place in New Jersey where voters now entertain grave doubts as to the
correctness of results announced by the
voting machine on November 7 last. Aside
from this, however, there are other reasons
of the utmost importance which are conducive to distrust and antagonistic on the
part of both ignorant and' intelligent voters.

The Thiel Detective Service Co.

OFFICES : St. Louis, New York,

Th___Thi__Dete__tive__ervieCo.

ST. LOUIS

Chicago, St. Paul, Kansas City

Denver, Portland,Oregon,Seattie,
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Night 'Phones
Bell, Grand 5
Victor 65
"Kinloch,

Mexico, Montreal, Toronto, and

Winnipeg.

Sut
Suit. 714 Century Btilding
Telephones :
Bell, Main 2715
Kin Ioh, B 275

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Write for terms and outfit, sending references, to

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SAINT LOUIS, MO.

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blo

THE

LAW

Pattison's Missouri Digest

VOLUME 7,READY INDECEMBER -APRICE S7.50 DELIVERED

Missouri
Law Book
for

Missouri
fittorneUs

'MILL form a continuation to date of this valuable series,

and include Supreme Court Reports volume 185, and
Appeal Reports volume 108, and the author is not
ashamed to put his name on the title page. In other
words, he has done good, honest work, and is willing to stand
or fall according to the accuracy thereof. It requires a local
attorney, with a large active practice, to write a really valuable local work, because of his wide experience in all the
intricacies of the local law which an outsider can never
learn or become familiar with.
The arrangement of volume 7 corresponds with that of
other volumes, with which the Missouri attorneys are now
fully conversant. This work has had the largest sale of any
law book ever published for Missouri.

BU a

Missouri
P,uthor
and a

Missouri
Publisher

Sets of volumes 1 to 7, to those few who do not now

have the earlier volumes, and who order before volume 7
comes out, delivered at $50.00.

GILBERT BOOK CO. ::: ST. LOUIS

E-'

COMPLETE INDEX'

of the
BENNTT S) toCitytheofOrdinances
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 firsA 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.
WM. H. O'BRIEN PRINTING & PUBLISHING CO.
1811 CHESTNUT STREET, ST. LOUIS

THE LAW

511

IAVEYOUR FRIENDS FILL OUTTHE FOLLOWING AND SEND IT IN

To The Law Publishing Company

Suite 813-814 Missouri Trust Building
ST. Louis, Mo.

Enclosed please find Four Dollars for one year's

subscriptionto

THE LAW
Befinning with the

issue, and

continuine until
Name
Street
City'.and State

Win. H. O'Brien Prtg. &

.Pub. Co.
FINE PRINTERS
Church & Society Printing
BL L MA1T

NO. 1311

STEA

CHESTNUT STREET

LAW BRIEFS A SPECIALTY

Mississippi Valley Trust Co.

NORTHWEST CORNER FOURTH AND PINE STREETS, ST. LOUIS

Capital, Surplus and Profits,

$8,500,000

The Business of this Company is conducted in five departments, asfollows:

(1)

(2)

(3)
(4)
(5)

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
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 required by law to be given
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
REAL ESTATE-Manages, buys, sells, rents and appraises St. Louis city real estate.
Pays taxes, places insurance, collects rents
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

CORRESPONDENCE

INVITED

ALL BUSINESS STRICTLY CONFIDENTIAL

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

HENRY C. IBBOTSON, Assistant Secretary

FREDERICK VIERLING, Trust Officer

HENRY SEMPLE AMES, Assistant Trust Officer

WILLIAM G. LACKEY, Bond Officer
TOM W. BENNETT, Real Estate Officer
WM. MOC. MARTIN, Safe Deposit Officer

DIRECTORS
JOHN I. BEGOS, United Railways Co. of St. Louis
Union Electric Light & Power Co.
President
Laclede Gas Light Co.
WILBUR F. BOYLE, Boyle & Priest
JAMES E. BROCK, Secretary
MURRAY CARLETON, President Carleton D. G. Ce.
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 B. JWING
DAVID R. FRANCIS, President D. R. Francis & Bro.
Commission Co.
AUGUST GEHNER, Pres. German-American Bank
GEO. H. GODDARD

S. E. HOFFMAN, Vice-President
CHAS. C. HUTTIG, President Third Nationai Bank
BRECKINRIDGE JONES, Vice-President and Counsel
WM. F. NOLKER, Treasurer St. Louis Brewing Ass'n
SAUNDERS NORVELL, President Norvell-Shapleigh
Hardware Co.
ROBERT J. O'REILLY, Mf.D.
WM. D. ORTHWEIN, President Win. D. Orthwein
Grain Co.
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 17

FRIDAY, JANUARY 5, 1906

L
A
w
Y
E
R

HELWPUBLIISHED
E LAW PUBLISHING COMP'I
813-814 Missouri Trust Bldg.
ST.

LOUIS

THE

Mv

ME

CAPITAL,
SURPLUS,
DEPOSITS,

L.AW

-0

$ 2,000,000
1,900,000

26,000,000

OFFICERS.
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,
Pres't Anheuser-Buasch Brew. Ass'n.
G. W. BROWN,
Pres't Brown Shoe Co.
GEO. T. CRAM,
Pres't American Central Ins. Co.
JNO. N. DRUI MOND,
Capitalist
NORRIS B. GREGG,
Preat Mound City Paint and Color Co.
G. W. GALBREATH,
Cashier
C. H. HUTTIG.
President

H. F. KNIGHT,
Viee-Pres't A. G. Edwards & Sons Brok. Co.
P. A. VALENTINE,
Vice-Pres't Armour & Co., Chicago.
THOS. WRIGHT,
Capitalist
W. B. WVLLS,
Capitalist
F. WEYERHAUSER,
Pres't 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

o
ill
WonYourBondVice-President

HMlr!,nI

and Attorney

AMERICAN BONDING COMPANY

713-714 EQUITABLE BUILDING
Telephones: Bell, Main 1514; Kinloch, B 74

All Kinds of Surety Bonds

All Kinds of Burglary Insurance Policies

+ OFFICES FOR RENT

Mechanics' National Bank Building +

Broadway and Locust Street

ENTISS DEY, TE AND FO RTS FLOOR-ABOUT 3,600 IQUARE FET NA
Al

+.

4+

+.

SMALL AND LARGE OFFICES ALSO

OMMONW-ALTH

TRUST CO.

BROADWAY AND OLIVE ST.

L.P-E
WILLIA
id.W
ILLIAM L.
POSEY

uIeo
0

+
+

........

207 Fullerton Bldg.

nsaeonrO

05 5. Wa luigton treet

TELEPHONES
Bell, Main 963; Grand 503

::::: ACCOUNTANT

J, T. DODDS
CITY SURVFYOR
813% Chestnut Street

AND AUDITOR

Suite 64

:::::

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.
Bell Main 290

Kinloch B 10...

Kinloch B 851...

J. PERCIVAL SMITH

T. F. McLAUGHLIN

... Accountant...

TYPEWRITERS AND
SUPPLIES

ROOM 33 THIRD NATIONAL BANK

BUILDING

We sell typewriters to the largest concerns

In the city; wise buyers want to save money
Any make you want

422 OLIVE STREET

MISS A. W.

...SAINT LOUIS

715 Loexsst Street,'

SAINT LOUIS

HOUCK

BOTH PHONES

SHORTHAND REPORTER

511 Security Building

4th and Locust Sis.

LOUIS A. DAMMERT
COUNSELOR AT
LAW

GUSTAVE JDAMMERT
.. NOTARY..

Louis A. Dammert & Bro.

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

II

511 Chestnut Street

MWr. 3-oC>UT0

10

Statement of the Condition

OF THE

St. Louis Union Trust Company

AT ST. LOUIS

At the Close of Business, May 29, 1905

LIABILITIES.

RESOURCES.
Time Loans ...............
$12,680,793.37
Bonds and Stock ..........
4,747,689.47
Overdrafts ...............
16,472.38
Company's Office Building
and other Real Estate..,
531,822.01
Safe Deposit Vaults ......
100,000.00
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

$5,000,000.00
5,000,000.00
799,214.13
600.00

20,186,113.88

$30,985,928.01

OFFICERS

THOMAS H. WEST ............

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

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

S~I!~8

&8

ii