street in a city was killed by a train ;-under the evidence it was for the jury to say whether the train was running too fast, or there was negligence otherwise; and whether the child was in the street through the negligence of the parents: Id.

REAL ESTATE. See Trover.

SALE.

Caveat Emptor-Fraud-Warranty.-A purchaser takes the risk of the quality of an article sold unless there be fraud or warranty: Whitaker v. Eastwick, 75 Pa.

In a sale of goods there is an implied warranty of title, and generally of the species, but not of quality: Id.

Mere representation is not warranty: Id.

The relation of seller and buyer is not a confidential one: Id.

The plaintiffs purchased a cargo of coal by the bill of lading and the representation of defendants that it was "good coal, well adapted for generating steam." In a suit for defect in the coal, Held, that evidence that the coal had much dirt in it and it took an increased quantity to generate steam was inadmissible: Id.

Rescission-Insolvency of Vendee not by itself sufficient Evidence of Fraud-Insolvency of a vendee of goods and his knowledge of it are not alone such fraud as will set aside a sale and enable the vendor to rescind and replevy the goods after they have come fairly and fully into the possession of the vendee: Rodman v. Thalheimer, 75 Pa.

To avoid the sale there must be artifice, trick or false pretence as a means of obtaining possession, bad faith and intent at the time to defraud the vendor: Id.

Insolvency and a knowledge of it at the time of the sale are evidence for the jury with other facts of intended fraud: Id.

The doctrine in New York on the question of rescission on the ground of insolvency does not obtain in Pennsylvania: Id.

SURETY.

Discharge of.-A surety is not discharged by a contract between his principal and their common obligee, which does not place him in a different position from that which he occupied before the contract was made: Roach v. Summers, 20 Wall.

TELEGRAPH.

Exemption from Liability declared Void-Onus of Proof-A rule adopted by a telegraph company, that it will receive and send messages by night at half its usual rates "on condition that the company shall not be liable for errors or delay in the transmission or delivery, or for the non-delivery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender," is against public policy;-and is, therefore, void, even when assented to by the sender: Bartlett v. Western Union Tel. Co., 62 Me. It is void also, because its terms are repugnant, assuming to impose an obligation, and, by the same act, to release from all obligation:* Id. In an action to recover damages of a telegraph company for an error in the transmission of a message, in the absence of any rule or contract fixing the measure of liability, the plaintiff makes out a primâ facic case

by proof of the undertaking, error and damage, and throws the burden upon the company, to show that the error was caused by some agency for which it is not liable: Id.

TITLE.

Lost Goods-Finder's Title.-Lost goods, as against all persons but the original owner and those deriving title from him, belong to the first finder who does such acts as indicate an intention to take possession of them: Lawrence v. Buck, 62 Me.

TRESPASS. See Master and Servant.

TROVER.

Conversion-Delivery-Temporary Track, not owned by the Company, held personalty.-Persons, who contracted to build a railroad, were the owners of certain rails and sleepers, consisting of a side track connected with the main track, used for the purpose of conveying materials upon the road-bed during construction, and when the road was delivered to the railroad company, at the request of the company and for their accommodation and use, the contractors consented that the track should remain a while, to be returned to the contractors anywhere upon the line of the road whenever called for; and while in that situation the rails and sleepers were seized and sold upon executions as the personal property of the contractors. Held, that they were not a part of the realty, but personal chattels, liable to be so seized and sold: Fifield v. Maine Central Railroad Co., 62 Me.

The officer could give and the purchaser receive, a delivery, without taking any other possession of the rails and sleepers than such as could be had without disturbing their situation as a track: Id.

The railroad corporation would not be liable to an action for conversion of the rails by a reasonable use of them while they had no notice that the ownership of them had changed; nor by a mere non-compliance with a written demand served upon its president at a place other than where the rails were, the corporation making no objection or resistance to the plaintiff's taking possession of them: Id.

USURY.

Estoppel of Debtor to set up.-A debtor of an estate, in settling with the executors, allowed usurious interest on his indebtedness. In payment of the amount found due, he gave his notes to a legatee, who accepted them in part payment of his legacy. In an action on the notes thus given, the debtor cannot, by way of defence, set up the usurious interest allowed the estate, although the legatee was one of the executors with whom the settlement was made: Mc Coy v. Stranahan. 24 Ohio St.

VENDOR AND PURCHASER. See Sale.

WAGER.

Purchase of Stocks on Margin.-A transaction in stocks by way of margin, settlement of differences and payment of gain or loss, without intending to deliver the stocks, is a mere wager: Max v. Gheen, 75 Pa.

Where there was a contract to buy and sell stocks which were delivered and the contract carried into execution, it was not illegal: Id.

THE

AMERICAN LAW REGISTER.

APRIL 1875.

A CONSIDERATION OF WHAT AMOUNTS TO DURESS PER MINAS AT LAW.

WE need only glance at the head of "duress" in Viner's or Bacon's Abridgment in order to ascertain how frequently cases. involving this subject, in more ancient times, came up for adjudication.

The plea of duress was formerly one of every-day occurrence. As times were more refined, and the influence of law more disseminated, the necessity for the use of this defence became rarer; not so rare, however, as to make it profitless from a practical or historical stand-point, to investigate the present state of the law on the subject.

The old common-law definition is well known. It is stated in Cruise, "If a man through a reasonable or well founded fear of death or mayhem or loss of limb is forced to execute a deed, he may afterwards avoid it. But Lord Coke says it is otherwise where a deed is executed for fear of battery or burning his house, or taking away his goods, and the like, for these he may have satisfaction by recovery of damages:" 4 Cruise Dig. 406; 1 Blacks. Com.

Coke obtained his law from Bracton, who gives as instances of what amounts to duress produced through fear "periculum mortis et corporis cruciatum." He also lays down the proposition that this fear must be "non suspicio vel cujuslibet vani vel meticulosi hominis sed talis qui cadere possit in virum constantum :" Bract. 1. 2, c. 5, p. 14.

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A principle of natural law such as that which avoids obligations contracted through fear, never originates in the mere dictum of a text writer. We find upon further research that Bracton's rule is an almost literal transcript from the doctrine contained in Dig. 6, 1. 6, quod metus causa, and C. 13, de transactionibus, which is to the effect that the duress must be such as to overcome the will of a courageous person, and that the violence must be of such a character as to put one in fear of losing his life or of suffering great punishment. The fear should be "metus non vani hominis sed qui in homine constantissimo cadat:" C. 6, ff. dict. tit. It should also be of some serious evil, "metus majoris mali."

The Roman law, which paid great regard to the bona fi·les of a transaction, did not allow any advantage to be gained by the wrongdoer. Resort to violence met with the severest condemnation. If restoration was not made by the party who had used force or duress, the party complaining had against him an action "in quadruplum:" Dig. 14, p. 3. The exception or plea of duress, was one well known; it was termed "quod metus causa.” Gaius states it thus: "Si eam rem a me petas, datur mihi exceptio perquam si metus causa te fecisse vel dolo malo arguero, repelleris :' Gaius, § 117.

The principle stated in the above citations from the Roman law, is condensed in the maxim "nihil tam consensui contrarium est quam vis et metus:" Dig. 1. 18, tit. 1, 9, § 2. The consent being a material component of every contract, when the mind was not free to act, there was no consensum ad idem" since " non quia voluit pactus est sed quia coactus est." Says the prætor in Leg. 1, ff, h. : “I will not confirm that which was done through fear." The intimidation, however, must have been illegal or unjust, "contra bonos mores." The definition of the Roman law is an admirable one; "an agitation of the mind caused by fear of damage present or prospective:" Dig. 1. 4, tit. 2.

What is very significant in this rule of the old civil law, is this: the establishment of the test that the fear should be of such an evil as to overcome the will, "hominis constantissimi," of a man of very great courage. We not infrequently find just such tests in the laws of a warlike and stern race, with whom power of endurance is held as a virtue of great magnitude. Too often such laws throw their mantle around the strong, while they leave those most helpless and needy outside their pale of their protection. The Roman

law rule, though in some respects harsh, suited the genius of the nation.

We have seen how the civil-law rule was incorporated by Bracton into the body of the common law; this was at a period when lawlessness was more paramount than law; when feudalism with its knight-errantry dominated the land. Any principle to take root at such a time necessarily must have been of a harsh and inflexible nature. When the wager of battle had scarce superseded the use of the heated plough-share, as a test of innocence, Bracton's rule was introduced, as to what degree of fear should amount to duress per minas. It was adapted to the taste and manners of the age. Even his definition, however, was cut down and abridged, when the only threats courts took cognisance of were fear of death, mayhem or loss of limb. Intimidation caused through fear of other damage was not considered sufficient to overcome the equanimity of the mind. If a man had urged that his will had been overcome by threats of a different kind from those mentioned, he would have been answered that he should have defied the threats, suffered the consequences and then have resorted to the law for satisfaction! Does not this statement illustrate the impossibility of enumerating all the cases in which a certain principle should be applied? Definitions in order to be of any great practical value, must be ductile, not rigid. The modern civil law recognises this idea and has accordingly enumerated certain rules on the subject under consideration deserving of great attention. They are not based upon the assumption of the strength of the human will, but rest wholly upon a due regard to the necessary elements of every contract. While the cardinal doctrine of the Roman law is retained, its application is extended and greatly enlarged and moulded to harmonize with the ideas of a civilized age and the human administration of justice.

Says Grotius: "The assent is imperfect if produced through agitation of mind, the effect of violence:" Grotius de Jur. Bell. 1. 2, c. 2, n. 7. Pothier uses the same reasoning: "Il n'y a pas alors de volonté même contrainte:" Poth. Pand. As to the degree of violence sufficient to produce this "agitation of the mind," the civil law looks to the sex, age and condition of the parties. "We judge of the degree of fear by the quality of the person on whom it is exercised and by the circumstances which cause it:" Fieffe-La Croix, Tome 1, 99.