The Green Bag for May shows no falling off. It presents a very faithful full-page likeness and a short memoir of Mr. Justice Matthews; a twentypage article on the Law School of Michigan University, with portraits of Judges Cooley, Campbell, Brown and five other professors; the case of Jacques Lebrun; "The Bad Singer," the first of a series of humorous leading cases in verse by Irving Browne; and a noble sonnet on Robert Toombs by Chief Justice Bleckley of Georgia, which does justice to Toombs' great mental powers and uncontrollable temper. He and Chief Justice Taney did more than any two other men to exasperate the northern temper and hasten the abolition of slavery by two famous utterances: The former by declaring that it was the general southern doctrine that negro slaves "had no rights that white men are bound to respect," and the latter by his magnificent but audacious boast in the national Capitol, that he would yet "call the roll of his slaves on Bunker Hill." Some one ought to write a book on "Decisive Historical Utterances," which should include these and Seward's "Higher Law." We find The Green Bag a welcome and cheery visitant to our sedate study, and no lawyer will regret taking it in.

"Gail Hamilton" is never happy unless she is running a-tilt at something. Usually she finds enough current wrongs to right, especially when Mr. Blaine is under fire, but just now she has dipped into the past and fished up an old and outworn discussion, and parades it in the Cosmopolitan Magazine under the title of "The Murder of Philip Spencer." The event occurred almost half a century ago and has been long forgotten, and it can answer no good purpose and may annoy some survivors of the families of the actors to revive the cruel memories. What she calls "murder" was the execution of Philip Spencer and two of his associates on the United States brig of war "Somers," at sea, by sentence of a court-martial for conspiracy to massacre the officers and most of the crew, and turn the vessel into a pirate craft. Philip was a young midshipman, and seems to have been a wild fellow, although the son of one of the most honored and influential citizens of this State, John C. Spencer, who was one of the revisers of the statutes, and at the time of the occurrence in question was secretary of war. His position and public services naturally excited great sympathy with him, and divided the country into two parties, probably pretty nearly equal in numbers, on the subject of the boy's guilt. On the arrival of the brig in this country a court of inquiry was held, and the commander was exonerated. The distressing affair blew over in the natural way, and little more was heard of it until it was revived by Senator Benton in his "Thirty Years' View," in which he gave it undue prominence, devoting some thirty pages, if we recollect right, to an examination of the evidence, and a scathing denunciation of the commander and the court which exonerated him.

Miss

Dodge does not, so far, allude to this treatment of the subject, although she has probably seen it. Nor does she give any adequate impression of the influence and services of Mr. Spencer, the father. And stranger yet, she does not, unless we have inadvertently missed it, give any account of the commander outside of this affair, nor even tell the reader his name. He was Alexander Slidell Mackenzie, a highly respectable writer of books of travel, and at the time in question about forty years old. Miss Dodge takes the same view of the case as Senator Benton, namely, that the boy was simply a braggart, who invented a pretended scheme for a scare and a sensation, and fell a victim to the commander's dislike because he had called him " "a old humbug." That reason however ought not to have extended to his two associates. Philip frankly admitted that he had broached such a scheme to the purser's steward, but insisted that it was in joke. He and his two associates however admitted the justice of the sentence and died without complaint or protest, or as Miss Dodge puts it, "confessed their guilt, and owned their punishment just." After reading Senator Benton's defense the only question in our minds was whether the court on the brig did not err in not postponing punishment until the vessel reached home a fortnight later. But the crew consisted of only one hundred and twenty, of whom ninety-six were apprentice boys under age, a dangerous class in which to pro mulgate the idea of mutiny and piracy, and suffi. ciently numerous to overcome the adults by stealth or perhaps open violence. We have derived the impression that Philip was a mauvais sujet, a sort of black sheep of the family, who was capable of such a thing in earnest. At all events, it seems hardly worth while to attempt "to reverse the verdict of history" as to a matter in which posterity takes no interest whatever, although it may suffice to make three or more well-illustrated articles, in Gail Hamilton's womanish, perfervid style, for the magazine. It should not be overlooked that the man whom Miss Dodge stigmatizes as a murderer is in his grave, has no defender to speak for him, and was justified by two courts of inquiry at the time. But perhaps the hysterical lady means that the courts were murderers. Such a stickler for fair dealing as this lady ought to be ashamed to lug in by the relative, Mr. Blaine, for the presidency, or at all ears a dirty attack on the gentleman who beat her events ought to mother it herself, and not give it on the authority of "one of the best and largest of our religious newspapers." Such fish-wife abuse does not become such a chivalrous person as Gail

Hamilton.

NOTES OF CASES.

N People v. Butler, Michigan Supreme Court, April

24, 1889, a notary public applied to the agent of plaintiff's intestate, an attorney and agent in the loaning of intestate's money, for a loan for K., his brother-in-law, on the latter's farm. The agent

and notary went together and examined the farm; abstracts were furnished, and a day fixed for the parties to meet. On the day set the notary took the mortgage and note, which the agent had prepared, to his house, where he claimed his brotherin-law was, and afterward brought it back to the agent with the names of the brother-in-law and his wife signed thereto, and a certificate of acknowledgment by the notary. On his representation that he was authorized to receive the money the agent paid it over to him and received the note and mortgage, which proved to be forgeries. Held, that the false certificate was the proximate cause of the loss, and that the surety on the notary's bond for the faithful discharge of his official duties was liable. The court said: "Mr. Ashley is not charged in this action with a mere breach of duty or negligent conduct by which the plaintiff lost the money, but in using his official position to commit a fraud upon the plaintiff. The plaintiff's intestate loaned the money in good faith and in reliance upon the statement of Ashley that the mortgage was genuine, that he had taken the acknowledgment of it, and that he was the agent of the mortgagor to receive the money. He had possession of the papers. He had in fact made the loan. The agent of the plaintiff had known him for a number of years as an attorney and notary public. What more care or caution should the agent of plaintiff have exercised? It is an every-day occurrence that attorneys who are notary publics have the charge of papers to deliver and close up transactions of great moment. The defendant is surety upon the bond of Ashley, which is conditional that he will faithfully discharge the duties of his office. If he had done so no loss would have occurred, as the mortgage, if produced, would have been genuine, and the certificate a true one. He actually obtained the money, and did it by means of his office enabling him to make a certificate of acknowledgment. This certificate is false, and the condition of his official bond is not kept and performed. He has not faithfully discharged the duties of his office, but has prostituted it to obtain this money. If the surety on this bond could not be held liable under the circumstances here shown, then there is no safety to the public in official bonds. We think the proximate cause was the false certificate, and the defendant must be held liable. In Curtiss v. Colby, 39 Mich. 457, an action was brought upon the official bond of a notary public, and this court said: 'This is not a case where a mistake was made through inadvertence. * He certified that a certain person appeared before him and acknowledged the execution of the instrument, who did not in fact appear at all, and who had not even signed it. If he had read what he was certifying to he must have known that it was untrue in substance and in fact. In such

* *

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his authority to take the acknowledgment of the mortgage. It does not lessen his liability on his bond because he coupled with the act of making the false certificate a false statement that he was the agent of King and wife to make the loan and receive the money. The mortgage and note would not have been taken by Eddy, nor the money paid, had it not been for the certificate stating that King and wife had acknowledged the execution of the mortgage. The very object of the bond is to ob tain indemnity against the use of an official position for wrong purposes, and that which is done under color of office, and which would obtain no credit except from it appearing to be a regular official act, is within the protection of the bond, and must be made good by those who signed it. People v. Treadway, 17 Mich. 481."

In Richmond & D. R. Co. v. Childress, Georgia Supreme Court, April 13, 1889, it was held that it is within the discretion of the trial court to require the plaintiff, suing for a physical injury alleged to be permanent, to submit to an examination by competent physicians, at the instance and at the expense of the defendant in the action, to ascertain the nature, extent and probable duration of the injury, so as to afford means of proving the same at the trial. Bleckley, C. J., said: "It can certainly admit of no doubt that in a proper case for such examination the cause of justice would be subserved by it, and the decided weight of authority is that courts have such power. A very full and clear statement of the matter is found in 1 Thomp. Trials, $859. The language of the author is as follows: 'In modern trials of civil actions for physical injuries the question has frequently arisen whether the court has power to order an inspection of the body of the plaintiff or person injured, for the purpose of ascertaining the nature and extent of the injuries. Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat, in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the umpire, have denied the right of the defendant to have an order for such inspection. Other courts, taking the more enlightened view that the object of a judicial trial is to enable the State to establish and enforce justice between party and party, have held that it is within the power of the trial court, in the exercise of a sound discretion, in proper cases, upon an application seasonably made, under proper safeguards designed to preserve the rights of both parties, to order such an inspection, and to compel the plaintiff or injured person to submit to it. Another court has held that where a plaintiff in such an action alleges that his injuries are of a permanent nature the defendant is entitled, as a matter of right, to have the opinion of a surgeon, based upon a personal examination, unless there is already an abundance of expert evidence; in which case the court, in its discretion, may refuse to order an ex

amination. Another court has ruled that the trial court may require the plaintiff in such an action to submit to a medical examination, and dismiss his action if he refuses to comply with the order. This conclusion may be placed upon the higher ground that when a person appeals to the sovereign for justice he impliedly consents to the doing of justice to the other party, and impliedly agrees in advance to make any disclosure which is necessary to be made in order that justice may be done. The conception of the nature and objects of a judicial trial which denies to the defendant, under proper safeguards, the right of such an inspection, is not higher than that of the old law, which would not even compel a party to produce a deed or private paper in a civil case where it was intended to be used in evidence against him- a rule which the Court of Chancery invaded to prevent failures of justice, and which has almost entirely disappeared from modern civil jurisprudence.' The cases cited pro and con are: White v. Railroad Co., 61 Wis. 536; Walsh v. Sayre, 52 How. Pr. 334; Shepard v. Railroad Co., 85 Mo. 629; Schroeder v. Railway Co., 47 Iowa, 375; Turnpike Co. v. Baily, 37 Ohio St. 104; Railroad Co v. Thul, 29 Kans. 466; Hatfield v. Railroad Co., 22 N. W. Rep. 176; Sibley v. Smith, 46 Ark. 276; Shaw v. Van Rensselaer, 60 How. Pr. 143; Neuman v. Railroad Co., 50 N. Y. Super. Ct. 412; Roberts v. Railroad Co., 29 Hun, 154; disapproving Walsh v. Sayre, supra, and Shaw v. Van Rensselaer, supra. As to the suggestion made in argument that the rule would operate hardly upon delicate and modest females, we can only say that they would be safely guarded by the discretion of the trial judge. There would be no danger, we think, in this country, of an examination being ordered needlessly, or where an improper shock to modesty or feelings of delicacy would be likely. We decide simply that the power exists, and that in each case it is to be exercised or not, according to the sound discretion of the presiding judge." See note, 50 Am. Rep. 156; 49 id. 191.

In Hawkins v. Graham, Massachusetts Supreme Judicial Court, May 11, 1889, plaintiff agreed to set up heating apparatus in defendant's building which should readily heat or raise the temperature at any point to seventy degrees Fahrenheit in the coldest weather. In the event of plaintiff's not being able to properly heat the building in accordance with the requirements of the contract he was to have notice thereof, and if after ten days from such notice he could not so heat the building he was to make no charges. In the event of the apparatus proving satisfactory, and conforming to all the requirements of the contract, he was to be paid the consideration, "after such acknowledgment has been made by the owner, or the work demonstrated.” Held, that the satisfactoriness of the apparatus was to be determined by the mind of a reasonable man, and by the means set forth in the contract, and not by the private taste or liking of the defendant.

Holmes, J., said: "Such agreements usually are construed not as making the defendant's declaration of dissatisfaction conclusive, in which case it would be difficult to say that they amounted to contracts (Hunt v. Livermore, 5 Pick. 395, 397), but as requiring an honest expression. In view of modern modes of business it is not surprising that in some cases eager sellers or selling agents should be found taking that degree of risk with unwilling purchasers, especially where taste is involved. Brown v. Foster, 113 Mass. 136; Gibson v. Cranage, 39 Mich. 49; Machine Co. v. Smith, 50 id. 565; Zaleski v. Clark, 44 Conn. 218; McClure v. Briggs, 58 Vt. 82; Ventilator Co. v. Railroad Co., 66 Wis. 218; Seeley v. Welles, 120 Penn. St. 69; Singerly v. Thayer, 108 id. 291; Andrews v. Belfield, 2 C. B. (N. S.) 779. Still when the consideration furnished is of such a nature that its value will be lost to the plaintiff either wholly or in great part unless paid for, a just hesitation must be felt, and clear language required, before deciding that payment is left to the will, or even to the idiosyncracies of the interested party. In doubtful cases courts have been inclined to construe agreements of this class as agreements to do the thing in such a way as reasonably ought to satisfy the defendant. Sloan v. Hayden, 110 Mass. 141, 143; Braunstein v. Insurance Co., 1 Best & S. 782, 799; Dallman v. King, 4 Bing. N. C. 105. *** * * The last words, or 'the work demonstrated,' offer an alternative to the owner's acknowl edgment. They imply that if the work is demonstrated it is satisfactory within the meaning of the contract, although the owner has not acknowledged See note, 54 Am. Rep. 711.

it."

beth White." This deposit remained in the bank during the life-time of John White, who died November 13, 1882, leaving a will wherein he appointed John D. Flynn his executor. The will was admitted to probate, and letters testamentary were granted to Flynn on the 23d day of January, 1883. Elizabeth White died December 18, 1882, leaving a last will and testament in which the plaintiff was named as executor, which will was admitted to probate, and letters testamentary were issued to the plaintiff on the 11th day of January, 1883. On the 25th day of January the plaintiff, with his letters testamentary, called at the savings bank and notified it of his appointment as executor, and demanded payment of the deposit. He was told by one of its officers that the money would be paid to him when he came with the pass-book, which was then in the possession of Flynn, the executor of Johu White. Thereafter, on the 29th day of January, Flyun, having in his possession the pass-book, presented the same to the defendant, together with proof that he had been appointed executor of John White, and demanded payment of the deposit, and the defendant thereupon paid the same to him, and the pass-book was surrendered to it. Thereafter, on the same day, the plaintiff called on the defendant again in reference to the deposit, and was informed that it had been paid to Flynn. This action was commenced in June, 1886, to recover the sum deposited with the defendant, and interest thereon.

It is clear that the plaintiff was legally entitled to receive payment of the deposit from the defendant, and that after the notice and demand by him it had no right whatever to pay the same to Flynn; and but for facts yet to be stated, the cases of Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 id. 297, and Mabie v. Bailey, 95 id. 209, would be ample authority for the maintenance of this action. After payment by the defendant to Flynn, the plaintiff, in the fall of 1883, commenced an action against him to recover, among other things, the money thus paid. Issue was joined, and the action was tried in the fall of 1884, and a verdict was rendered in favor of the plaintiff, and a judgment was thereon entered. The plaintiff was unable however to collect any thing on the judgment, and he thereafter commenced this action. The relation between a savings bank and a depositor therein is that of debtor and creditor, and the defendant therefore became a debtor for the sum deposited with it by John White. People v. Institution, 92 N. Y. 7.

After his demand of the deposit, and the payment of the money to Flynn, there were two remedies open to the plaintiff. He could sue the defendant as a debtor for the deposit, and recover the amount thereof from it, or he could have brought an action for money had and received to and for his use against Flynn, and recover it from him. But he was not entitled to both remedies at the same time or in succession; and by electing the one he would lose the other. By electing to sue the bank he would repudiate its payment to Flynn, and his claim would be that the debt had not in fact been paid. By suing Flynn, he would adopt and ratify the act of the bank in making payment to him, and his claim would be that the money due to him had in fact been paid to Flynn, and that Flynn had received it to and for his use. Such adoption and ratification of the payment would legalize the payment as between him and the bank, and thus discharge the bank. He could not occupy the position at the same time of claiming that the bank had paid his money to Flynn, and yet that the bank was still his debtor. His election in this case to sue Flynn, and thus to treat him as his debtor, was not harmless to the bank, but in law may be presumed to have injured the bank, unless it should now be held to be discharged by its payment to Flyun. After the plaintiff com

menced his action against Flynn, and thus ratified and adopted the payment by the bank to him, the bank could not during the pendency of that action have sued Flyun to recover back the money on the ground that it had been paid by mistake, aud received by him without authority, because it would have been a defense to such an action that the real owner of the fund had adopted and ratified the payment. But, even if the mere commencement and pendency of the action by the plaintiff against Flynn would have not furnished such a defense, it is beyond doubt that, if the bank should now bring an action against Flynn to recover back the money, he could successfully defend on the ground that the plaintiff had ratified and adopted the payment, and thus discharged the bank by the recovery of a judgment against him for the money paid as the real owner thereof. The two remedies-one against Flynn and the other against the bank -are not concurrent. If the two actions could not be prosecuted at the same time, they could not in succession. Nothing could be more inconsistent than an action against Flynn on the ground that money due to the plaintiff had been paid to him, and an action against the bank on the ground that it had not paid the deposit, and still remained debtor therefor. If the money had been absolutely the money of the plaintiff, left on special deposit with the bank, then he could have pursued the money wherever he could trace it without losing his remedy against the bank. In such a case the plaintiff would not be barred of his right of recovery against the bank until he had either recovered his money or the value of the same. All his remedies would be consistent, being based upon the theory of a wrongful disposition of his property. So, too, where a trustee, in breach of his trust, disposes of the trust property, the beneficiary of the trust may pursue it or its proceeds wherever he can trace them, so far as the law will permit him to do so without releasing the trustee. All his remedies in such a case are consistent, and based upon the same theory, to-wit, a breach of trust; but, if a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then, if he makes payment to another person, he has not paid the debt, and the money paid is not in fact the property of the beneficiary. In such case the beneficiary may ignore the payment, and sue the trustee as his debtor; or he may ratify and adopt the payment, and sue the person receiving the money as his debtor; but he cannot do both. There is, in such case, a breach of trust, or not, as he may elect, and his election, once effectually made, is conclusive forever. Com. Dig. "Election," C 2. If one wrongfully takes and sells personal property not belonging to him, the owner has the election to sue him for the proceeds as money had and received to and for his use, and thus ratify the sale, or he may pursue the property and recover it or its value; but he cannot do both, and is bound by his election. Pom. Rem., § 567 et seq. A few authorities may be cited to enforce these views. In Priestly v. Fernie, 3 Hurl. & C. 977, it was held that where the master of a ship signs a bill of lading in his own name, and is sued upon it, and judgment is obtained against him, an action will not lie against the owner of the ship upon the same bill of lading, although satisfaction has not been obtained on the judgment against the master. Baron Bramwell, writing the opinion, said: “If this were an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on it to judgment, there can be no doubt that no second action would be maintainable against the principal. The very expression that where a contract is so made the contractee has an election to sue agent or principal, supposes he can only sue one of them; that is to say, sue to judgment."