Imágenes de páginas

had to be brought upon an unnegotiable or unindorsed bond, in the name of the assiguor, because he was held by the assignment to acquire only an equitable interest, which could not be enforced in a court of law, yet even in that case, the court of law so far recognized the interest of the assignee, as to protect it against the acts of the assignor. Long v. Baker, 2 Hay. 128 (191), and Hoke v. Carter, 12 Ired. 324. But now, under the new system, the action on such an instrument, must be brought by the real party in interest. Code, § 177. The construction put upon this section is, that the assignee of a bond or note, not indorsed, is the proper person to maintain the action in his own name, because he is the real party in interest. Andrews v. McDaniel, 68 N. C. 385; Jackson v. Love, 82 id. 404; Bank v. Bynum, 84 id. 24; and that the possession of an unindorsed negotiable note payable to bearer raises the presumption that the person producing it on the trial is the real and rightful owner. Jackson v. Love, supra, and Pate v. Brown, 85 N. C. 166.

It is immaterial whether the action brought by the plaintiff is legal or equitable, for under the present system the distinction in actions at law and suits in equity, and the forms of all such actions are abolished, and there is but one form of action. Code, $ 133.

The administrator of the donor filed a bill in equity against the donee, to have the bond delivered up. Lord Hardwick, before whom the suit was heard, holding that the bond was the proper subject of a donatio causa mortis, dismissed the bill, and the same eminent jurist afterward, in the great case of Ward v. Turner, 2 Ves. Sr. 443, said he adhered to that decision, and in reference to this case, Chancellor Kent said: "The distinction made by Lord Hardwick, between bonds and bills of exchange, promissory notes and other choses in action, seems now to be adopted in this country, and they are all considered proper subjects of valid donatio causa mortis as well as inter vivos." 1 Kent, 379. All evidence of indebtedness which may be regarded as representing the debt, whether with or without indorsement, are the subject of a donatio mortis causa. Red. Wills, Part II, 312, 313, and to same effect Brown v. Brown, 18 Conn. 410; Williams Exec. 692; Iredell Exec. 52.

It was at one time matter of considerable discusBion in the courts of England, whether a mortgage given to secure the payment of a boud was the subject of a donatio causa mortis, and in the case of Duffield v. Elwes, 1 Bligh. (N. S.) 497, it was decided, upon appeal to the House of Lords, from a decision of Vice Chancellor Leach, that the delivery of the mortgage, as creating a trust by operation of law, was good as a donatio causa mortis. The same principle was admitted in the case of Hurst v. Beach, 5 Madd. Ch. 351, and a delivery of a bond and mortgage as a donatio causa mortis held to be valid, and the same doctrine was held in Duffield v. Elwes, 1 Bligh. (N. S.) 497; 3 Pom. Eq. Juris., § 1148.

The mortgage need not be assigned. The assign-
ment of the debt, note or bond, secured by the mort-
gage, even without a formal transfer of the security,
carries the mortgage with it. 1 Estee Plead., § 345.

This action then, according to the statement of the
facts set forth therein, may be either in the nature of
detinue, or a bill in equity for the delivery of the
bonds and mortgages, but as the defendant, as assig-These authorities establish beyond all question that
nee by parol, has set up a counter-claim of the alleged the bonds and mortgages in controversy are
donatio causa mortis of the bonds and mortgages, it
proper subject of a donatio causa mortis.
presents the question, whether the transfer of an unin-
[Omitting a minor point.]
dorsed bond, creating only an equitable title in the
donee, is valid as a donatio cuusa mortis.


The complaint or counter-claim, which is in the nature of a cross action, must set forth the cause of action in a plain and concise statement of facts (Code, § 233; Moore v. Hobbs, 77 N. C. 65), and then the court will give such relief as is consistent with the case made by the complaint and embraced within the issue. Code, § 425; Knight v. Houghtalling, 85 N. C. 17; Oates v. Kendall, 67 N. C. 241.

That the defendant's right of action, by his counterclaim, upon the unindorsed bond, is still an equitable claim notwithstanding (Code, § 133), see 1 Estee Plead. 122.

In the case of Overton v. Sawyer, cited above, the learned judge, in the conclusion of his opinion, uses the following language: "This conclusion is not at all opposed by the decision of Lord Hardwick in Baily v. Snelgrove, 3 Atk. 214, that a bond for the payment of money may be the subject of a donatio causa mortis, That was a case in chancery, and it was held that the equitable interest in the bond passed to the donor, which does not militate at all with the position, that the personal reprefentative of the donor, could at law recover the value of the bond in an action of trover." This is undoubtedly an authority for the doctrine, that a bond without indorsement is the subject of a donatio causa mortis in equity.

And the principle is fully sustained by the authorities. When this principle was first applied to the transfer of personal property, it was limited to chattels, which might be delivered by the hand. But as trade and commerce advanced, it was gradually relaxed, and was extended, first, to embrace bank notes, ́then lottery tickets, and securities transferable by delivery, such as notes payable to bearer or to order, and indorsed in blank, and finally to bonds. Snelgrove v. Bailey, supra, was the first case, we believe, in which the doctrine was extended to bonds. There the donor had delivered a bond to the donee, saying: "In case I die, it is yours, and then you have something."

The defendant further excepted to the instruction that the plaintiff, as administrator of James Kiff, was estopped to attack the gift as fraudulent. In this instruction there was error.

The plaintiff, to maintain his position, relied upon the case of Burton v. Farinholt, 86 N. C. 260, where it is held: First, that a voluntary transfer of a chose in action by an insolvent donor to his children, without valuable consideration, is fraudulent and void, and the same may be reached in equity by creditors, and subjected to the payment of their debts, and secondly that an administrator is estopped by the act of his intestate.

But there is a distinction to be observed between a
voluntary assignment of personal property inter vivos
in fraud of creditors, and a donatio causa mortis. The
latter does not take effect until after the death of the
assignor, and is ambulatory and conditional, and re-
vokable until his death, and is likened to a legacy,
and in that respect partakes somewhat of the charac-
ter of a testamentary disposition of the property, so
far as it is liable for the intestate's debts, but it differs
materially from a will, in that the donee's title is de.
rived directly from the donor, and the assent of the
representative of the donor is not necessary to support
his title, yet at the same time the executor or admin-
istrator of an
alleged donor, has correspond-
ing rights and accordingly, upon a deficiency
of assets to pay the lawful claims of credit-
ors, any gift causa mortis must give way, so far
as may be necessary to discharge lawful demands."
Schouler Ex. and Adm., § 219, and the same author in
§ 220, lays it down, that "the executor or administra-
tor, representing these and other interests, against the

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

express or implied wishes of the deceased himself, if need be, may procure all assets suitable for discharging demands of this character. But if any balance is left over, it goes, not to the next of kin, but to the donee, for the revocation of any gift for the benefit of creditors of the decedent, is only pro tanto." Schouler Ex. and Adm., § 220, and the cases there cited in support of the text. See also Pomeroy Eq. Jur., § 1152; Iredell Ex., p. 556.

Those authorities, except the last, apply the doctrine as well to assignments inter vivos as to donatio mortis causa. This court however has adopted a different principle as to contracts inter vivos, as in the case of Burton v. Farinholt, supra. But as its application to a donatio causa mortis is an open question in this State, we are at liberty to adopt the principles enunciated in Schouler as above, which we do, because it is consistent with justice and equity, and the spirit of our existing system of jurisprudence.

There is no allegation in the complaint that these bonds, etc., were necessary for the payment of debts. Whether that is an objection that might be taken on demurrer, we do not decide. There is no demurrer in the case, and the question of insolvency was one of the elements of the plaintiff's ownership and right to recover, and there was proof that the estate of plaintiff's intestate was insolvent.

[merged small][merged small][merged small][merged small][ocr errors][merged small]


The keeper of a restaurant at one of the defendant's railway stations employed the deceased to sell sandwiches, etc., on trains, and obtained for him a free pass. At the time of his death the deceased was travelling on the pass for his own purposes. The pass stipulated that the company should not be liable under any circumstances for any personal injury sustained while riding upon it, in consequence of the negligence of the company's servants, or otherwise. Held, that the pass was gratuitous and without consideration, and that the stipulation was valid, although the deceased was a minor, and his death was the result of the negligence of the defendant's ser


W. C. Case and P. E. Bryant, for plaintiff.

S. E. Baldwin and E. D. Robbins, for defendant. LOOMIS, J. The plaintiff's intestate, Charles P. Griswold, was a boy about seventeen, employed by the keeper of a restaurant at the defendant's station in Waterbury to sell sandwiches, fruits, etc., on all trains coming into Waterbury, having a free pass for that purpose between Hartford and Fishkill. His employ

#4 Atl. Rep. 261.

ment did not require him to travel as far east as Plainville, but his mother lived there, and he often went there to visit her. In July, 1883, he was at Plainville for this purpose, and boarded a train bound thence for Hartford, in order to stop off at Clayton, and look at the wreck of a train there caused by a collision the day before. The train had two passenger cars, and the conductor saw him on one of them just after the train started, but afterward, without the conductor's knowledge, he went into the baggage car, and while there a collision occurred with another train coming westerly (there being but a single track), which wrecked the engine and baggage car, and killed the intestate. He was at the time riding on a free pass which provided that the person accepting it assumed all risk of accident, and expressly stipulated that the company should not be liable, under any circumstauces, whether of negligence of their agents or otherwise for any personal injury.

The defense was placed on three independent grounds: (1) The complaint was demurred to upon the ground that the action was brought for the sole benefit of the intestate, when it should have been for the benefit of the widow or heirs; (2) that the intestate was guilty of such contributory negligence as would prevent recovery; and (3) that at the time of the injury, he was travelling on the defendant's train without the payment of any fare, under an agreement or condition expressly assuming all risk of accident, and stipulating that the defendant should not be liable in any event for injuries resulting from the negligence, etc., of its servants, or otherwise.

As our views of the last question will be decisive of the whole case, we will confine our discussion to that, and waive the other two questions.

Before we come to the discussion of the question, whether under the conditions of the pass the law will protect the defendant from liability, it will be necessary to determine whether the pass was gratuitous, or upon consideration: for if the latter is true, the defendant must be held to its full responsibility as a carrier of passengers. The plaintiff contends that the pass was part of the consideration to induce Chickering to open a lunch-room in the defendant's station at Waterbury; but the finding is silent in regard to this, and we are not justified in assuming that it was an element in the negotiations, or was in the mind of either party. It was, on the other hand, obviously an afterthought, and when asked for by Chickering he did not refer to it as a thing promised by Holbrook, or any one on behalf of the company. It was not claimed as matter of right under any contract duty, but merely as matter of favor, and as such we must hold it to have been granted.

The question of consideration should be determined, as in any other case of contract. The existence of some selfish motive, if any, impelling the act, renders it none the less a gratuity in the eye of the law, if there was no obligation at all to furnish the pass. The restaurant business belonged exclusively to Chickering, whatever may have been the incidental benefits to the railroad company. And besides it is to be observed, that at the time of the injury, the intestate was not traveling at all in the interest of the restaurant, but solely to gratify a personal curiosity, which could by no possibility be any benefit, direct or indirect, to the railroad company; so that on the whole we have no hesitation in calling his pass a pure gratuity.

We have then a case where the defendant gave a free pass upon the express condition that the passenger would make no claim for damages on account of any personal injury received while using the pass, in con sequence of the negligence of the defendant's servants. But the plaintiff, as the personal representative of the

[ocr errors]

one receiving the pass, has instituted a suit in direct
violation of the condition. In ordinary transactions,
such a breach of good faith, to say nothing of the
breach of contract, would be disgraceful; but there
may be great considerations of public policy which
conceal the private features of the transaction, and
make the stipulation invalid in the eye of the law.

By the English decisions, it is clear that the carrier
has full power to provide by contract against all lia-
bility for negligence in such cases. McCowley v. Fur-
ness Ry. Co., L. R., 8 Q. B. 57; Hall v. Northeastern
Ry. Co., L. R., 10 Q. B. 437; Duff v. Great Northern Ry.
Co., L. R., 4 Ir. C. L. 178; Alexander v. Toronto & N.
R. Co., 33 U. R. Q. B. 474. This last case is almost
identical with the one at bar.

The Supreme Court of the United States, in Railroad Co. v. Lockwood, 17 Wall. 357, where a driver had a free pass to accompany his cattle on their transportation, held, in opposition to the New York and English cases, that the pass was not gratuitous, because given as one of the terms for carrying the cattle, for which he paid. The reasoning of Bradley, J., was directed so strongly to the disparagement of the New York decisions that it might have indicated an opposition to the principle of those cases in other respects had not the opinion concluded with this distinct disclaimer: "We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger, instead of a passenger for hire." The reasoning and the conclusions of the court therefore must be considered as all based on the assumption that the passenger paid for his passage. The conclusions of the court were: (1) "That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law; (2) that it is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for negligence of himself or his servants."

the railroad company in its character as a common
carrier, and therefore the stipulated exemption is no
abdication of that rigid responsibility which the law
imposes on common carriers. The gratuitous accom-
modation concerns only the immediate parties, unless
in a very indirect way, by making the fare of other
passengers higher. If however fares are unreasonable,
they may be subject to governmental regulation. But
it will suffice to say that the remote and indirect ef-
fect alluded to caunot make the exemption void on
the ground of public policy. Many other gratuities
and charities might be named, which though con-
ceded to be commendable, would have a similar ef-

In the United States we find much contrariety of
opinion. Some State courts of the highest authority
follow the English decisions, and allow railroad com-
panies, in consideration of free passage, to contract
for exemption from all liability for negligence of every
degree, provided the exemption is clearly and explic-
itly stated. Welles v. N. Y. C. R. Co., 26 Barb. 641; S.
C., 24 N. Y. 181; Perkins v. R. Co., id. 208; Bissell v.
N. Y. C. R. Co., 25 id. 442; Poucher v. N. Y. C. R. Co.,
49 id. 263; Magnin v. Dinsmore, 56 id. 168; Dorr v.
New Jersey Steam Nav. Co., 11 id. 486; Kinney v. Cent.
R., 32 N. J. Law, 409; S. C., 34 id. 513; Western & A. R.
v. Bishop, 50 Ga. 465. Other courts, also of high au-
thority, concede the right to make such exemption in
all cases of ordinary negligence, but refuse to apply
the principle to cases of gross negligence. Illinois Cent.
R. Co. v. Read, 37 Ill. 484; Indiana Cent, R. v. Mundy,
21 Ind. 48; Jacobus v. St. Paul & C. R., 20 Minn. 125
(Gil. 110). And other State courts of equal authoritying
utterly deny the power to make a valid contract ex-
empting the carrier from liability for any degree of
negligence. Railroad v. Curran, 19 Ohio St. 1; Mobile
& O. R. v. Hopkins, 41 Ala. 486; Pennsylvania R. Co.
v. Henderson, 51 Penn. St. 315; Flinn v. Philadelphia,
etc., R. Co., 1 Houst. 469.

We are not disposed to attempt to controvert the soundness of these propositions as applicable to passengers for hire, but it remains an open question, what is reasonable in the case of a free passenger? Will a just sense of public policy allow any distinction? It seems to us the two cases cannot be identical in the eye of the law or of public policy, but that there is ample ground for a distinction.

In the first place, the arrangement between the parties ought not to be regarded as a contract with

Again, in Railroad Co. v. Lockwood, supra, and in other cases advocating the same doctrine, one prominent reason given for holding the contract void as opposed to public policy is that in making the contract the carrier and his customer do not stand on a footing of equality; and that the latter is only one individual against a powerful corporation, which has him in its power; and that he cannot afford to higgle in re. gard to terms. It is manifest that this reasoning has no application at all to a free passenger. If his position is not superior, it is at least equal to that of the railroad company. The latter will not often be found urging the acceptance of free passes. There is no possibility of any "higgling" on the part of the passenger for more favorable terms, and the solicitation for the pass itself will come from the latter also. Under these circumstances it does not seem reasonable to add to a free gift of transportation the burden of insuring the passenger against all personal injuries aris

from the negligence of the carrier's servants; the risk being well known and willingly assumed by the passenger as the condition upon which the gift is made.

But it may be suggested that there is involved in negligence, especially where the safety of life is concerned, a moral as well as legal culpability which renders such contract of exemption void as against public policy. But those who regard this argument as decisive must, it seems to us, overlook the fact that there may be, and very often is, negligence that would be called gross on the part of servants, for which there is no moral culpability at all on the part of the master. The parties contracting for the exemption under consideration well know that railroad passengers are continually exposed to risks arising from some momentary lapse of memory or attention on the part of servants who have gained a high reputation for skill, prudence, and carefulness, and who were, it may be, selected on that account. A large percentage of accidents will be found to have resulted in the way suggested, without any actual fault on the part of the officers of the corporation. Now the finding in the case at bar is explicit, that the injury to the plaintiff's intestate resulted from the gross negligence of the defendant's servants. This restriction is exclusive, and is to be understood as used in contradistinction to negligence on the part of the corporation itself through the acts of those who properly represent it. By the rule of respondeat superior, a corporation is made liable for the negligence of its servants; but where the principal has done the best he could, the rule is technical, harsh, and without any basis of inherent justice. As applicable ordinarily to corporations, it is of great practical convenience and utility. We do not therefore advocate its abolition, but we contend that in a case like the present, where there is no actual blame on the part of the principal, it is reasonable, in the eye of the law, that the party for whose benefit the rule is given should be allowed to waive it in consideration of a free passage. It is not the case where a party stipulates for exemption from the legal conse

[ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors]

The only remaining question to be considered is whether the minority of the plaintiff's intestate, which rendered him incapable generally of making contracts, will render his assent to the limitation or condition of the pass void also. But a minor has capacity in law to accept free gift, either absolute or conditional. If the condition or limitation is reasonable, he cannot accept the gift and reject the condition or limitation; for that would enlarge the gift, which of course cannot be done without the consent of the donor. If the intestate did not like the gift as made, he should have declined to accept it, and not attempt (as his personal representative is doing) to make it include in effect, contrary to its terms, an insurance against risks arising from the negligence of the defendant's servants. There was error in the judgment complained of, and it is reversed, and the case remanded.

quences of his own negligence, but one where he merely stipulates against a liability or imputed negligence, in regard to which there is no actual fault. It is easy to see therefore that considerations of public policy have no application to such a case.

Where a master uses due diligence in the selection of competent servants, and furnishes them with suitable means and machinery to perform the service in which he employs them, he is not answerable to one of them for an injury received in consequence of the negligence of another fellow-servant while both are engaged in the same service. Here the rule of respondeat superior is waived, and it is generally put on the ground of implied contract. And if a waiver may be implied in such case, why not give an effect to an express agreement in the case of a free passenger?

The Roman law, with its clear sense of justice, made a distinction similar to the one for which we contend in determining the liability of the mandatory for the negligence of his agents. Where the business of the mandatory required the interposition of subagents, he was liable for the negligence of such subagents only on the ground of culpa in eligendo, supposing he knew or could have known their inadequacy.

The foregoing reasoning, as it seems to us, will also furnish a complete answer to the claim that the defendant must be held liable on account of the gross negligence of its servants, for it is manifest that the principal is no more culpable in one case than in the other, and the rule of respondeat superior being waived, the protection is complete.

ATTORNEY AND CLIENT-LIABILITY OF CLIENT FOR ACTS OF ATTORNEY IN PROCURING FALSE IMPRISONMENT.-A., as attorney for B., brought an action against C., and recovered a judgment. Execution was issued thereon, and A.'s clerk, seeing the execution in the office of A., and deeming it needed attention, went before a master in chancery for S. county, and applied for a certificate, upon which C. was arrested. The arrest was illegal, C. not being a resident of S. county, and having no place of business there. A.'s clerk, in procuring the certificate and causing the arrest, acted without the knowledge of or any instruction from A. or B. Held, that B. was liable for the acts of A. or his clerk in making the false arrest. The defendant contends that the attorney had no author|ity himself, without express directions, to take the necessary steps, and to proceed to arrest the plaintiff. Certain early English cases have been cited by defendant, to the effect that the authority of an attorney ter

The word "negligence," in the stipulation for exemption, is used in its generic sense, and comprehends all degrees. And we may add that some high modern authorities have expressed strong disapprobation of any attempt to fix the degrees of diligence or negligence, because the distinction is too artificial and vague for clear definition or practical application.minates with obtaining judgment and execution. They See the opinion of the court in Railroad Co. v. Lockwood, 17 Wall. 382, and cases referred to in a note on page 383.

[merged small][ocr errors]

ATTACHMENT-AGREEMENT BETWEEN CREDITORS— AS TO PROPERTY.-Sundry parties, some of whom had attached and others were about to attach certain personal property of a debtor, and others of whom were threatening to carry the debtor into insolvency, agreed that the property should be sold by the officer who held it, upon executions obtained by some of the parties, and that the proceeds should be divided by him among them pro rata. After the property had been sold the parties disagreed as to whether by the agreement a certain creditor was to participate. The officer decided that the creditor in question was en

titled to participate, and distributed the money on that basis, accompanying the payment with a written statement of the total amount of the fund and of the sums to be paid to each claimant, such payments exhausting the fund. In a suit brought against the officer by a creditor who had objected to the basis of distribution, but had received the money offered him. Held, (1) that the agreement had wholly superseded the rights of the parties as attaching creditors; (2) that the plaintiff by receiving the money in the circumstances had accepted it as his share; (3) that the sale of the property by the officer, though in form an official sale, was yet made by him under the agreemeut of the parties and as their agent, and that his compensation was to be a reasonable sum, and was not limited to the statutory fees of an officer. Conn, Sup. Ct., Feb. 12, 1886. Blake v. Baldwin. Opinion by Granger, J.

do not require comment except to say that they proceed upon the ground that all the attorney is required to do by his warrant is thus terminated. But the warrant of attorney is not used in this Commonwealth, and in this respect there is a difference between the English practice and our own. Nor would it appear that obtaining the execution is now recognized in England as the termination of the duty of the attorney, if it ever was so formerly. In Collett v. Foster, 2 Hurl. & N. 356, the principal was held liable for the act of his attorney in causing a plaintiff improperly to be arrested on ca. sa., no order to this effect having been given by him. In Smith v. Keal, 9 Q. B. Div. 340, it is said by Lord Justice Lindley: "It was the duty of the solicitor to conduct the action in the ordinary way; and if his client obtains judgment, it is his duty to do such acts as are necessary to obtain the fruits of his judgment. If a fi. fa. is necessary, he must issue it, and make the proper indorsement on the writ; and if he makes a mistake in so doing, his client is responsible." In Butler v. Knight, L. R., 2 Exch. 109-113, it is said, in substance, the distinction between powers of attorney before and after judgment is less marked than formerly. The attorney has a reasonable discretion in the attainment of the object in view, and the selection of remedies. It would be mischievous to hold, where there is auy evidence that the authority of the attorney was continued after judgment, that the attorney had no authority to act according to the exigency of the case. It has always been held in this country that an attorney is invested with a large discretionary power, in any thing pertaining to the collection of a demand intrusted to him for that purpose, and that his client must answer in damages if injury is occasioned by his conduct in the general scope of this employment. While he cannot discharge a debt or an execution

without receiving satisfaction, he has control of the selection of legal remedies and processes which he may deem most effectual in accomplishing his object. The confidence reposed in him by his client, the supposed ignorance by the latter of the most appropriate remedies require this. Willard v. Goodrich, 31 Vt. 597, 600; Jenney v. Delesdernier, 20 Me. 183; Fairbanks v. Stanley, 18 id. 296; Turner v. Austin, 16 Mass. 181; Gordon v. Jenney, id. 465; Caswell v. Cross, 120 id. 545; Carleton v. Akron Sewer Pipe Co., 129 id. 40; Moulton v. Bowker, 115 id. 36; Schoregge v. Gordon, 29 Minn. 367; S. C., 13 N. W. Rep. 194; Clark v. Randall, 9 Wis. 135. Proceedings in the execution are proceedings in the suit which the attorney is authorized to bring. Union Bank v. Geary, 5 Pet. 98-112; Erwin v. Blake, 8 id. 18-25; Flanders v. Sherman, 18 Wis. 575; Planters' Bank v. Massey, 2 Heisk. 360; Mayer v. Hermann, 10 Blatchf. 256. It has been held that he may receive seizin on levy of execution; may discharge execution; may direct it to be issued in a particular manner; may in his discretion take out fi fa. or ca. sa., and cause defendant to be arrested thereon. Pratt v. Putnam, 13 Mass. 363; Langdon v. Potter, id. 319; Corning v. Southland, 3 Hill. 552; Hyams v. Michel, 3 Rich. Law, 303. In Gray v. Wass, 1 Greenl. 257, it is said by Chief Justice Mellen: That "the power of an attorney does not cease until he has collected the debt committed to him for collection is admitted." In Heard v. Lodge, 20 Pick. 53, it is said by Mr. Justice Dewey: "It is within the scope of the power of the attorney to institute all such further proceedings as are necessary to render the judgment effectual to the creditor for the recovery of his debt. It has been held to be the imperative duty of an attorney in the original action, when the body of the debtor was arrested, to institute a scire facias against the bail, and if he neglect to do so he is held responsible." Dearborn v. Dearborn, 15 Mass. 316. Mass. Sup. Jud. Ct., May 11, 1886. Shattuck v. Bill. Opinion by Devens, J. [7 N. E. Rep. 39.]


CONSTITUTIONAL LAW- ELECTIONS-BRIBERY NOMINATING ELECTIONS.- An act to prevent bribery and fraud at nominating elections and conventions is a lawful exercise of legislative power. The act of 1881 is one of the election laws of the Commonwealth, and any person violating it falls under the disqualification imposed by the Constitution. It was contended on behalf of the defendant that primary elections are not elections at all within the meaning of the Constitution, and that a statute regulating them is not an election law. That they come within the mischief intended to be remedied is too plain for argument. Under our form of government a vast system of political machinery has grown up by which elections have been for many years practically controlled. It is so far reaching in its effects that the people have, in many instances, little to do at the polls beyond the ratification of what had been already done by nominating conventions. Such conventions have often been controlled by the very influences which the Constitution and the act of 1881 seek to strike down. The influence which these primary elections have for good or evil upon the politics of the country is overshadowing. In many portions of the State, as is well known, a nomination by a convention of one of the parties is practically the equivalent of an election. In some instances it is the precise equivalent, as in the case where there are two persons to elect, and the elector is allowed by law to vote for but one. The importance of the relation of the primary to the general election must be apparent to every one who does not shut his eyes that he may not see, and stop his ears that he may not hear. Primary elections and nominating conventions have now become a part of


our great political system, and are welded and riveted into it so firmly as to be difficult of separation. The act of 1881 recognizes this fact; it treats primary elections as part of a great system; it declares them to be electious, to be regulated by law to some extent; and prescribes and punishes certain frauds committed thereat. It concerns elections in a most important How then can we say that it is not an election law when the Legislature has declared that it is? Moreover the relation of nominating conventions to the general election, and the importance of that relation is recognized by the Constitution itself. This is notably so in article 7, which prescribes the oath of office, and which requires all senators and representatives, and all judicial, State, and county officers to swear that "I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure my nomination or election," etc. As before observed, the Constitution must be construed liberally so as to carry out, and not defeat the purpose for which it was adopted. If we give it the narrow construction claimed for it, a candidate for office might resort to all manner of bribery and fraud in procuring his nomina. tion; yet if he conduct himself properly after his nom. ination, he could wholly evade the constitutional prohibition. This applies with special force to cases where a nomination is the equivalent to an election. In such instance the nominee may well be an honest man between his nomination and election, for he has no motive to be a rogue. By the words "any election law" the framers of the Constitution, and the people who adopted it, evidently meant to include any act which the Legislature might thereafter enact for the purpose of purifying our elections. The act of 1881 was passed to give effect to this constitutional provision, and it matters little at what stage of the campaign the fraud is committed. It is as much an election law when it strikes at the fraud at the primary election, as when it arrests the fraudulent ballot just as it is ready to be dropped into the box at the general election. We would belittle the Constitution, and fritter away one of its best and wisest provisions, were we to give it the narrow, technical construction claimed for it by this defendant. Penn. Sup. Ct., May 17, 1886. Leonard v. Commonwealth. Opinion by Paxson, J. [4 Atl. Rep. 220.]

CONTRACT-CONSIDERATION-MORAL OBLIGATIONEXPRESS PROMISE.-A. gave to B., who had been employed by him for a number of years as sales-woman, a due-bill for $3,000, payable within one year after his death, and stating that it was for additional compensation for services rendered. A. died, and his executors, on suit being brought on the due-bill, set up want of consideration. A previous writing, also sigued by the decedent, is in evidence, in which he recites that the plaintiff had been in his employment for twentythree years as sales-lady; that she had been faithful in the discharge of her duty; and that he wished to give her additional compensation for her services; and in consideration of these facts he agrees that he will give her a due-bill for $3,000 to be paid by his executors within one year after his death. The decedent lived upward of two months after this paper was executed, and the plaintiff continued to render him service to the time of his death. Held, that the due-bill was on a sufficient consideration. The writing not only recognizes, but declares that the due-bill shall be given as compensation for services rendered, additional compensation, it is true, but compensation nevertheless. To what it was additional we do not know. Whether it was additional to full or only partial compensation previously paid, is only a matter of conjecture. There is no inference of law that the pre

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
« AnteriorContinuar »