Imágenes de páginas

course of the enjoyment of land be used: | The Scottish courts gave judgment for the and if in what I may term the natural companies: and this the House of Lords use of that land there had been any accu- affirmed. The Lord Chancellor, in dealing mulation of water either on the surface or with the defense of damnum fatale, said: underground and if by the operation of the "It is true that the flood was of extraorlaws of nature that accumulation of water dinary violence but floods of extraordinary had passed off into the close occupied by violence must be anticipated as likely to the plaintiff the plaintiff could not have take place from time to time. It is the duty complained that that result had taken place. of anyone who interferes with the course If he had desired to guard himself against of a stream to see that the works which it it would have lain upon him to have done he substitutes for the channel provided by so, by leaving or interposing some barrier nature are adequate to carry off the water between his close and that of the defen- / brought down by an extraordinary raindants. On the other hand if the defen- fall, and if damage results from the defidants, not stopping at the natural use of ciency of the substitute which he has protheir close, had desired to use it for any vided for the natural channel he will be purpose which I may term a non-natural | liable. Such damage is not in the nature use for the purpose of introducing into the of damnum fatale but it is the direct result close that which in its natural condition of the obstruction of a natural water course was not in or upon it for the purpose of by the defenders' works followed by heavy introducing water either above or below rain.” And Lord Wrenbury stated the law ground in quantities and in a manner not as follows: “The responsibility to provide the result of any work or operation on or a substitute channel is not limited to prounder the land—and if in consequence of viding a channel sufficient to meet all detheir doing so or in consequence of any mands which might reasonably be anticiimperfection in the mode of their doing so pated, or even all demands (in excess of the water came to escape and to pass off the ordinary) short of the Act of God. into the close of the plaintiff then .it ap | The corporation must provide a substitute pears to me that that which the defendants channel which will be equally efficient hapwere doing they were doing at their own pen what will. Assuming an act of God,

such as a flood wholly unprecedented, the The doctrine thus stated may usefully i

damage in such cases results not from the

Act of God but from the act of man in that be contrasted with the principle known as "Act of God.” The two may lead to dif

he failed to provide (as there was before)

a channel sufficient to meet the contingency ferent results: if a plaintiff can bring his

of the Act of God. But for the act of case within the rule of Rylands v. Fletcher

man there would have been no damage he succeeds; if a defendant can establish “Act of God” the plaintiff may fail. Thus,

from the Act of God.”

On the other hand, in a still more recent take for example, the recent House of

case, we find the principle of "Act of Lords case,” in which the railway companies

God” given effect to. A colliery company sued the corporation for damages in re

under license from the owners of land upon spect of loss sustained by them through

| a mountain side deposited thereon huge flooding from a stream with the channel of

quantities of colliery rubbish. After a which the corporation had, for purposes of !

| period of heavy rainfall part of the mounpublic improvement, admittedly interfered.


(2) Caledonian and Glasgow & South West-1 err Rly. Coys. v. Corporation of Greenock, 1917 A. C. 556.

(3) The Scottish term for "Act of God."

(4) Attorney General v. Cory Bros. & Co. and others and Kennard v. Cory Bros. & Co., 83 J. P. Reps. 221.

tain slipped down causing the destruction of houses belonging to a township in the valley and endangering a highway running along it. In an action by the Attorney General on the relation of the local authority of the district for an injunction 'and damages against the colliery company it was by a majority of the Court of Appeal held on the evidence that the landslip was due to natural causes and was not caused, accelerated or accentuated by the tipping of the colliery rubbish : and it was held, therefore, that the defendants were not liable for the resulting damage. But Lord Justice Scrutton was of opinion that according to the doctrine established by Rylands v. Fletcher, it was the absolute duty of the colliery company who had brought the artificial heap of dirt or rubbish on the land to keep the dangerous matter at their peril; and the fact that the artificial danger might have escaped through natural causes did not absolve them from liability for the natural results of its escape.

whence another agent let it loose.” That decision was affirmed in the Court of Appeal.

That decision may be further explained in this way—that granting the making of the reservoir was not in itself unlawful the duty of the person who made it was to prevent the escape of the water but he could not be said to have caused or allowed the water to escape if the Act of God was the real cause of its escaping without any fault on his part. The majority of the court in Attorney General v. Cory Bros. & Co. would seem to have followed that principle. In the Greenock Corporation case, on the other hand, the House of Lords appears to have ruled out the theory that the Act of God is a valid defense in such cases, provided the defendant proves due care in every respect on his own part; e. g., Lord Wrenbury's dictum above quoted—“Assuming an act of God, such as a flood wholly unprecedented, the damage in such a case results not from an act of God but from the act of man in that he failed to provide, as there was before, a channel sufficient to meet the contingency of the Act of God.” That is in accord with Lord Justice Scrutton's dictum in the case of Cory Bros. & Co. “In my view the fact that an artificial danger escapes through natural causes is no excuse to the person who brought the danger there.” And both appear to comply with Lord Chancellor Cairns' statement of the law in Rylands v. Fletcher. An appeal to the House of Lords in Attorney General v. Cory Bros. & Co., and others, if it is taken, will provide an exceptionally good opportunity for the supreme tribunal reviewing the doctrine of Rylands v. Fletcher and its applications since first enunciated.

Glasgow, Scotland.

A leading case which is not readily reconcilable with Rylands v. Fletcher is Nichols v. Marshland," in which it was decided that a person who stores water on his own land and uses all reasonable care to keep it there it not liable to an action for an escape of water which injures his neighbor if the escape be caused by an agent beyond his control, such as a storm, which amounts to v'is major or the Act of God in the sense that it is practically though not physically impossible to resist it. The case of Rylands v. Fletcher was thus distinguished “In that case,” says Bramwell B., "the defendant poured the water into the plaintiff's mine. He did not know he was doing so, but he did it as much as though he had poured it into an open channel which led to the mine without his knowing it. Here the defendant merely brought it to a place


1875 L. R., 10 Exch. 255.

(6) 1876, 2 Exch. D. 1.

[blocks in formation]

"A sale of any portion of a stock of merchanMCKINNEY, J. C. A. Howell and H. F. dise otherwise than in the ordinary course of Howell, the latter being the first cousin of the

trade in the regular and usual prosecution of

the seller's business, * * shall be preformer, were partners engaged in the mercan

sumed to be fraudulent and void as against tile business under the firm style of C. A. the creditors of the seller," unless the preHowell & Co. C. A. Howell was the moneyed scribed inventory shall be made and the premember of the firm.

scribed notices given.

In Thomas E. Daly v. Sumpter Drug Co., 127 In February, 1916, C. A. Howell sold his in

Tenn. 412, 155 S. W. 167, this court held that terest in the business to H. F. Howell without

the sale of a half interest in a stock of goods complying with the Bulk Sales Statute (Laws

by a merchant for the purpose of taking the 1901, c. 133); H. F. Howell assuming the pay.

purchaser into partnership with himself is ment of the firm's debts. The business was

within the purpose and reason of the statute. still conducted under the firm name, which H. F. Howell requested C. A. Howell to permit

Speaking to this point, the court said: until he could pay the partnership debts.

“We are of the opinion that the case before

us falls within the terms of the act. The lanIn August, following, H. F. Howell sold said

guage of the act is, 'A sale of any portion of a stock of goods to defendant R. N. Cagle, which stock of merchandise otherwise than in the orsale was made without complying with said

dinary course of trade in the regular and usual

prosecution of the seller's business, or a sale of Bulk Sales Statute. In a few weeks thereafter

an entire stock of merchandise in bulk, shall be R. N. Cagle sold to one Presswood, who has

presumed to be fraudulent and void as against either sold the goods or mingled them with the creditors of the seller, unless,' etc. A half other goods so that they cannot be identified.

interest is a portion of the stock. We do not H. F. Howell did not pay the debts of C. A.

think the act means that it must be a distinct

portion or part severed from the whole stock. Howell & Co. as he agreed to do, and C. A. The sale of a half interest by a merchant for Howell had to pay them to the extent of $400, the purpose of taking the vendee into partner: and has instituted this suit to recover said

ship is within the purpose and reason of the amount from the defendant R. N. Cagle, alleg.

act, since it very materially changes the rela

tion of the vendor's creditors to the stock, if ing that the sale from H. F. Howell to R. N.

such sale be valid. Before the sale a creditor Cagle was fraudulent and void because the could levy upon the whole stock. After the Bulk Sales Statute was not complied with.

sale, if valid, the creditor of such vendor could

not levy upon any of the stock, but only upon Pending the suit H. F. Howell died, and no

the vendor's interest in the whole, and in order

to obtain this he would have to file a bill in judgment is sought against his estate.

equity and have an accounting with the new

partner. So the former owner of the stock The Chancellor rendered a decree in favor

might admit three new persons into the busiof the complainant in accordance with his con ness, and so reduce his own holding to a onetention, which decree was affirmed by the fourth interest, and so on as to smaller fracCourt of Civil Appeals.

tions-at the same time putting the proceeds

into his own pocket and holding them beyond If the sale from the complainant to H. F.

the reach of his creditors." Howell came within the statute, then the com

The same principle applies here. If you treat plainant cannot recover under the holding of the sale as valid, the stock of goods would be this court in Cantrell v. Ring, 125 Tenn. 472. subject to levy by the individual creditors of 145 S. W. 166, in which case this court said: | H. F. Howell, as well as by the creditors of the partnership; whereas, before the sale partner 1 It results that the decree of the Court of ship creditors had to be paid before any indi- | Civil Appeals and of the Chancellor will be vidual creditors could reach the stock, and reversed, and the suit of the complainant will even then such relief by individual creditors be dismissed, and he will be taxed with the could be had only by a bill in equity. Other costs accrued in the several courts. reasons could be given in support of this position, but it is unnecessary, as the language of Note-Sale by Partner to Co-Partner as Comthe act is plain and unambiguous, and the com ing Under Bulk Sales Statute.-The instant case plainant sold a half interest in a stock of mer.

seems to this annotator to be better ruled than

are the opposing cases. The latter go upon the chandise otherwise than in the ordinary course

theory that, as the statute is in derogation of the of trade, which the act says renders the same common law, it ought not to be extended any furfraudulent and void.

ther than the import thereof plainly requires. But

this is evident regarding all such statutes, that it In Ruling Case Law, par. 55, it is said: is intended when a sale is made in contravention

of the requirements of the Bulk Sales Statute, "The statutory test is whether the sale was that the joint and several liability of partners made in the usual way in which a merchant shall be for the benefit of their creditors and the owing debts conducts his business, or whether resort of creditors to vendees is in the way of he takes an unusual method of disposing of his supplemental benest to them. To have an eleproperty in order to get the money for his own ment injected departing from the principle of use, and leave his creditors unpaid."

joint and several liability, might be thought to

introduce confusion in its application, and this In Hannah v. Richter Brewing Co., 149 Mich.

is not to be. Now, why should a sale by one 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 partner to another differ from a sale by any perAm. St. Rep. 674, 12 Ann Cas. 344, the court

son to another person? The entire title the seller

owns is transferred. Hanner v. Richter Brewing said:

Co., 149 Mich. 220, 112 N. W. 713. 119 Am. St. R. "The terms, 'sale, transfer or assignment,'

674, 12 L. R. A. (U. S.) 178, 12 Ann. Cas. 344. used in" such acts, "taken in their usual and

But there is some decision opposed to this view. ordinary signification, mean the disposition of

Thus it was held in Washington State that the the entire title of the seller."

object of the Bulk Sales Statute "being to prevent In the case we are considering the seller dis.

the vendor, usually a retail merchant, from sell

ing his stock of goods, pocketing the proceeds posed of his entire interest in the stock of

and leaving his creditors remediless," it cannot goods.

apply to other than retail sales. McAvoy v. Jen

nings, 44 Wash. 79, 87 Pac. 53; Kasper v. Spokane Counsel for the defendant rely upon Taylor v.

Merchants' Asso., 87 Wash. 447, 151 Pac. 800. Folds, 2 Ga. App. 453, 58 S. E. 683, and Fairfield

Applying this principle, the Supreme Court of Shoe Co. v. Olds, 176 Ind. 526, 96 N. E. 592, in Washington held that the statute did not apply support of their position that a sale by one to transfer of a stock in trade to a corporation partner of his interest to his co-partner does

organized to take over the business. Maskell v.

Alexander et al., 100 Wash. 16, 170 Pac. 350, L. R. not come within the statute.

A. 1918, c. 920. The premise seems very doubtful

for the conclusion drawn. And so where in such We have not had access to the former case;

a sale as in the last cited case the parties showed but, no doubt, it does sustain the defendant's that they acted in good faith. Thorpe v. Pennock contention, for the reason that the Supreme Mercantile Co., 99 Minn. 22, 108 N. W. 940, 9 Court of Georgia, in Yancey v. Lamar-Rankin

Ann. Cas. 229, a distinction quite faulty, indeed,

if good faith is not to excuse where there is a Drug Co., 140 Ga. 359, 78 S. E. 1078, held that a

sale by a retail merchant to another. sale of an interest in a stock of goods by a merchant for the purpose of taking such pur

In New York it was held that the existence of

fraud in fact would bring a sale within the purchaser into partnership did not fall within the

view of the act, where it was made to a corporastatute, which is in direct conflict with our

tion similarly constituted. West Shore Furniture holding in Thomas E. Daly V. Sumpter Drug

Co. v. Murphy, 141 N. Y. Supp. 835. Co., supra. The Georgia statute, however, is

It is to be noted, too, that the case of Taylor v. worded differently from ours. The Indiana Folds, 2 Ga. App. 453, 58 S. E. 683, has been case bases its holding solely upon the Georgia abated from considerably in a case where the case.

debtor sold a half interest to another and later

the other half to the same person, as thus this Other questions are raised by the assign

would be to defeat the very purpose of the act

and take away by indirection the reliance upon ments of error which it will not be necessary

which creditors extended credit. Virginia-Carofor us to pass upon in view of the fact that we

lina Chemical Co. v. Bouchelle, 12 Ga. App. 66!, have reached the conclusion that, for the rea 78 S. E. 51. sons stated above, the complainant cannot get In Marlow v. Ringer. 79 W. Va. 568. 91 S. E. along in this suit.

| 386, L. R. A. 1917D 619, there was a transfer by a retailer of a half interest to another, for the formation of a partnership, the new member agreeing to put in the store goods equal in valus to those then in stock. This came within the purview of the act and was void. It was said that the partnership never became effective as to the new purchaser, for “although an effort was made to distinguish between the groceries in the store at the time of the original transaction and those subsequentlı purchased and placed therein, that attempt was adjudged abortive. * * * Besides, there was such commingling of the merchandise as to render the whole of it chargeable with the liabilities preferred against it.'

This case presents the thought that is in the mind of this annotator, viz: there must not be ariy circumstance or act in the disposing of the stock, which is the foundation of the credit extended, except in the way contemplated by creditors, that is in due course of trade, that is sales by retail. The stock is to stay where it is, unless sold to customers at retail. In this way the law provides it is pledged to creditors.

urged upon our brethren of the bar in America. This is also the position which was adopted by the American Bar Association at its last meet. ing in Boston in refusing to adopt the recommendation of a special committee to engage in an active propaganda against Socialism. It will be time enough for the bar to take an unequivocal position on any public question when, after full discussion, there is practical unanimity of professional opinion as to the inexpediency of any proposed change in the law, as in the case of its campaign against the recall of judges and judicial decisions. In such cases, and not otherwise, is its advice likely to be heeded.



The next meeting of the Kansas Bar Association will be held at Topeka, January 30 and 31, 1920, in the Supreme Court Room.

An outside speaker for the annual address has not yet been secured. The president's address will be given by Judge John C. Hogin of Belleville.



HIGHER FEES FOR SOLICITORS. We notice in the English law journals an insistent demand by solicitors for an advance in the charges for legal services. The Solicitors Journal declares that the reform"must be considered in regard to the probable permanent fall in the value of money." The fees of solicitors are fixed by the Law Society. American lawyers will continue to charge all that the traffic will bear. There are no fee-fixing associations in America, except in the case of collec. tion attorneys, who, it is reported, have already raised the fee for collection on first presentation from 10 per cent to 15 per cent.

A student of the State University Law School will speak on the subject “The Law Relating to Strikes.” Mr. Leo T. Gibbens of Scott City will speak on "Law Courts in the Philippines.” State Senator George W. Wark of Caney will deliver an address on "The Evolution of Property Rights.” Mr. W. D. Vance of Belleville will speak on the subject "Courts of Today." Hon. Richard E. Bird of Belleville will address the meeting on "The Community, the Bar and the Bench." Mr. James A. Allen of Chanute has the subject “Non-Par Stock.” Mr. J. C. Shearman of Wichita will speak on "Evidential Facts Contained in Disputed Documents."


The English bar is taking a great interest in COUNTY LAWYERS ASSOCIATION COMthe discussion now going on in England, as in MITTEE ON PROFESSIONAL ETHICS. America, over the question of the nationalization of coal mines. This is due to the fact, probably, that a Scotch solicitor, Mr. Roe Dun

QUESTION No. 180. can, has been appointed Coal Controller for the United Kingdom. The English bar, while in. clined to doubt the advisability of nationaliza Collections; Fees; Relation to Other Attortion, declares its willingness through the So neys; Relation to Client-Division of Fees With licitors Journal to keep an open mind on the Attorneys Forwarding Collections; Proper subject and from time to time “to point out Basis Indicated; Retention of Share of Fee by the probable advantages and disadvantages of Forwarding Attorney Without Accounting to such a scheme." This is the position we have Client; Not Necessarily Improper.-1. An at.

« AnteriorContinuar »