Central Law Journal. ST. LOUIS, MO., MARCH 22, 1918. ENFORCEMENT OF OBLIGATION AGAINST WIFE VOID UNDER LAW OF DOMICILE, BUT VALID AT PLACE OF CONTRACT. In Union Trust Co. v. Grossman, 38 Sup. Ct. 147, the facts show that a wife with a domicile in Texas, while temporarily in Illinois, executed a continuing guaranty upon notes by her husband and another as makers. The payee knew the circumstances and especially that the wife's domicile was in Texas. The contract was valid under Illinois law, so far at least as to wives there domiciled, but invalid if made in Texas as to wives domiciled in that state. Suit was brought in a federal court in Texas and the Supreme Court affirmed ruling by Circuit Court of Appeals of Fifth Circuit reversing district court, thus declaring, that the separate property of the wife could not be made subject to this Illinois contract when sued upon in a federal court sitting in Texas. The ruling by the Supreme Court puts to one side the question of what should have been held had the suit have been brought in Illinois, saying: "If this suit were brought in Illinois it would present broader issues. On the one side would be decisions that locus regit actum, and the consideration that when a woman goes through the form of contracting in an independent state, theoretically that state has the power to hold her to performance, whatever may be the law of her domicile. It might be urged that the contract should be given elsewhere the effect that the law of the place of making might have insured by physical force. *** On the other hand it is obvious that practically at least no state would take any steps, if it could, before a breach of an undertaking like this. The contract being a continuing one of uncertain duration, the plaintiff had notice that in case of a breach it might have to resort to the defendant's domicile for a remedy, as it did in fact." The court also observed that: "In such a case very possibly an Illinois court might decide that a woman could not lay hold of a temporary absence from her domicile to create remedies against her in that domicile that the law there did not allow her to create, and therefore that the contract was void. This has been held concerning a contract made with a more definite view to the disregard of the laws of a neighboring state." See 15 L. R. A. 831, 32 Am. St. Rep. 446. The view is then expressed that at least the courts of the domicile would not enforce a contract its laws forbade, made by a wife "simply by stepping across a state line long enough to contract." If But all of this appears to predicate refusal to enforce the contract upon an exceedingly narrow ground. If such a contract could have any validity on enforceability anywhere, it ought to have it everywhere. There was the question of capacity. by the wife to make such a contract at all, because of the law of her domicile. this law follows her wherever she may be, the effect upon the principle of contracts valid where made being valid everywhere should be stated. If it constitutes an exception to that principle, the exception should operate, whether the wife be temporarily away from her domicile or for an extended period, no change of domicile being intended. Furthermore, suppose that suit had been brought on this contract in Illinois and judgment on the contract had been rendered against the wife. That judgment would bind all property there of which she was possessed. If that judgment were afterwards sued on in Texas, would not the faith and credit clause of the constitution override the public policy of Texas and subject all of her property to its payment? If it would, then there would seem only a limited application of the principle that the courts of a state will not enforce contracts elsewhere made, when opposed to its public policy. Suppose, again, if he contended, that, so far as real estate is concerned, the principle of enforceability of contracts is qualified by the rule lex rei sitae, then still there would remain the question of such judgment being valid as to other interests not in real estate. Would the faith and credit clause give the judgment obtained elsewhere any standing in the jurisdiction whose public policy has become affected adversely? In Converse v. Hamilton, 32 Sup. Ct. 415, 74 Cent. I. J. 379, we ascertained the force of the faith and credit clause in making a statutory policy in one state effective in another which recognized an opposing policy. We hardly think this ruling in inquiry. No better proof of this may be instanced than what may be said to be the gingerly way in which questions involving "broader issues" are referred to in the instant case. One cannot avoid thinking that involved in the instant case should have the law regarding such a question as was been alluded to with a freer hand. It looks like the higher our courts are the more necessity is there for them to tread as if they were walking on eggs. In escaping the dangers of Charybdis they fall into those of Scylla. In the earlier days of our great tribunals the judges expressed their views more boldly and for that reason there is more of obiter dictum found in their opinions. And we believe the same is to be said of English opinion, both now and formerly. consistent with that which respects a gen- NOTES OF IMPORTANT DECISIONS. eral rule, that law of the place of contract governs everywhere, if the Converse case is to govern. The Supreme Court says: "It is one thing for a court to decline to be an instrument for depriving citizens belonging to the jurisdiction of their property in ways not intended by the law that governs them, another to deny its offices to enforce obligations good by the lex domicilii and the lex loci contractus against women that the local laws have no duty to protect." But if the duty to protect arises out of faith and credit under a law which is the supreme law of the land, why place importance on the duty of local courts as regards depriving citizens of their rights? If in consequence of the free right of locomotion between states, jurisdiction can be obtained over a citizen away from his domicile, he exposes ultimately his property to loss, is there not a burden on this free right? Our system of government and the limitations in our federal constitution are ever presenting interesting questions. How far local policy becomes affected by free intercourse between states is an ever-growing WAR-EXISTENCE OF AFFECTING LIABILITY UNDER HOURS OF SERVICE ACT. -The Hours of Service Act was enacted in 1907. It forbids the placing on duty of any employe of an interstate carrier remaining on duty more than sixteen consecutive hours and placing on duty any employe who has been continuously on duty for sixteen hours shall not be permitted until he has had at least ten consecutive hours off duty. Rests during the continuous service have been held not to break continuity of service, where the rest is so short as not to tend to real recuperation. See 220 U. S. 37, 31 Sup. Ct. 362. In Penna. R. Co. v. U. S., 246 Fed. 881, in Third Circuit Court of Appeals, there were periods of interruption of continuous service in the running of a freight train regarded as really restful-substantial intermission, where men got rest and relief from mental and physical strain and yet were paid as for continuous service. Men so serving were called on again after a rest of from six to seven hours. A carrier was convicted for not allowing ten hours intermission and the judgment was reversed by the Circuit Court of Appeals. The appeals court said: "We take this opportunity to say, in these war times, that while it is then, and indeed at all times, the duty of "It is our opinion that the separation here complained of can be justified on this ground. The statute making women eligible to jury service of itself necessitated and was of itself a change in the existing system relating to the separation of juries. In trials protracted over considerable periods of time the rules of courts to see to it that laws are neither violated | nor relaxed, it is also their like part to see to it that in war times the courts of a country, in their administration of law, recognize the new and unsual conditions which confront them. For, if the administration of the law was so rigid and inflexible as to be self-incapable of adjusting itself to the new conditions governing | society, propriety and common decency require that to which it relates; then much wrongly charged against the law would be justified. It is now quite apparent that a large number of cases will arise under war conditions which never arose under peace conditions, and which were not and could not have been in view when statutes affecting transportation were passed. These questions, dormant in times of peace, become vitally acute under stress of war conditions and no court can close its eyes to these new conditions." We do not greatly admire this kind of reasoning. If war conditions might be invoked to justify infractions and the courts allow them to excuse violations of law, we vest in expounders of law an administrative or executive function. We have an executive department and give it discretion. To behold, however, our judicial department running wild could not greatly help in prosecution of the war. In such a time our courts could be better employed in sticking more severely than ever to appointed duty. If the times breed confusion, or have a tendency this way, then we must have our courts to look to with more confidence than ever. TRIAL-SEPARATION OF MIXED JURIES. -The Supreme Court of Washington holds that under the law of mixed juries composed of men and women the judicial attitude toward separation of juries while considering a cause should be more liberal than when they were taken from one sex only. State v. Harris, 169 Pac. 971. This case showed that a jury was composed of eleven men and one woman in a trial lasting three days. During intermissions the men went to the regular jury room and the woman to an adjoining room and the door between the two rooms was kept closed. Both rooms were guarded against communication from the outside. It would seem the entire jury was kept together in final deliberation, as objection was confined to the separation during intermissions. In speaking of the rule allowing separation from necessity, the court said: that mixed juries be allowed to separate according to sexes at stated intervals during its progress. It may be questioned moreover, whether the courts have not placed a too narrow construction on the word "separate" as used in these statutes. The object and purpose of keeping them sequestered is and has always been, to keep them from being influenced with reference to the matters given them in charge by ulterior practices. This purpose is as well accomplished when the jury are kept singly under the charge of sworn officers of the court as it is when they are kept under like officers in a body." This is patently true. At all times a jury is to be guarded from outside influence, but it is only when they are deliberating that freedom for interchange of views must be afforded. Were the law to require each one to go to a room by himself to prepare himself for thorough deliberation, this would not be a bad idea. If anything does tend to upset calm deliberation it might be thought that insistence by an impatient juror does. At all events it does not seem a separation of two or more men or women, when they are not allowed to deliberate if they remain together. If it is, then the time a juror sleeps during a recess ought to be deemed a separation. And yet they have been known to do more than nod, when evidence is being submitted or when the judge is charging them or when eloquence of counsel encounters a snore. The question of mixed juries modifying the old rule may come up when separation takes place at a time when it is the duty of a jury to keep together for deliberative purposes, and not when they are enjoined not to deliberate. CORPORATION-UNCONSCIONABLE CONTRACT NOT BINDING, THOUGH FREELY MADE. In Bassick v. Aetna Explosives Co., 246 Fed. 974, decided by District Court, Southern District of New York, it was held that where a commission to a broker was so extortionate on its face as to amount to a gift, it cannot be upheld though ratified by the directors of the promissor corporation. INATION. In this case it appears that there was an THE DANGERS OF CROSS-EXAMagreement by a broker to sell an article in an advancing market for a certain price with his commission to be all over and above the price stated. The broker refused to tell the president what prices were being offered and the president's act in making the contract was ratified by the board of directors. This "overage" commission, as it was called, amounted to about 31 per cent. in a sale amounting to $5,800,000, or, in round numbers, $1,800,000. The court after speaking of the broker refusing to tell the president what price the broker had been informed by private cable the war munitions, the subject of contract, were to sell for, because, as the broker claimed, the contract price had been agreed on and the excess over to belong to the broker and of this being an extraordinary contract, then goes on to say: * * * "But I go further. In my opinion if it were to be found that the board of directors knew all the facts they had no power to authorize an agreement so disproportionate as to be unconscionable. The courts are holding those dealing with corporations to a constantly increasing responsibility and charging them more frequently with notice, where the subject matter is outside of the ordinary agreements which are necessarily made in the daily conduct of business. Such judicial trend, even in the case of trading corporations, is in response to the need of safeguarding the rights and property of stockholders, often large in number, with small individual holdings, who must rely, not on the fidelity of officers and directors, but also on the rigid application of sen sible rules of law developed to meet modern business conditions. *** It is in the ultimate interest of business and the projection and prosecution of the large enterprises that the investing public must feel confident that a just appeal to the courts will not permit their property to be disposed of under circumstances which amount to a gift, and those dealing with corporations cannot rely, in such event upon the proposition that a board of directors has power, in law, to authorize a gift. Doubtless a natural person, in the absence of fraud or duress, can give away his property; not so with the directors of a corporation as to corporate property." We doubt very greatly whether the distinc tion invoked obtains or if it does, that the necessary ingredients to its application would often be present. If, however, there is any market where the wind is not tempered to the shorn lamb, Wall street might be accused, whether that lamb be corporate or individual. Judge C. A. Steeves, of New Brunswick, Canada, has some good advice to lawyers in a recent issue of the Candian Law Times on The Art of Cross-Examination. What the learned judge has to say about the dangers of cross-examination is well worth passing on. He said: "An experience extending over a good many years has led me to believe that many attorneys who are excellent in the drawing of pleadings, and who are fairly capable in the conduct of the examination in chief, are flat failures when it comes to crossexamination. "There are various reasons for this. I have seen many lawyers cross-examine a witness, often at considerable length, when there was nothing in the examination in chief which called for a cross-examination at all, and when the cross-examination brought out absolutely nothing for the benefit of the party on whose behalf it purported to be made. These lawyers seem to suppose that their credit is concerned in getting up some kind of a cross-examination, and look upon a witness leaving the stand without it as an opportunity lost, and apparently feeling that their clients would attribute it to a lack of skill or knowledge on their part if the cross-examination did not take place. So they put question after question which does not in any way concern the issue and often does more harm than good. I once heard a very prominent counsel in this province cross-examine a witness at considerable length, and when the examination was over he came directly to me, as I was sitting at the lawyers' table, and said, 'I don't think that examination helped us very much.' I did not think so. either and wondered why he conducted it. "Other lawyers will go over the direct examination, making the witness repeat what he has already said, in many cases without a particle of variation. This practice simply loads up the minutes, wearies the judge or jury, and has no bearing whatever on the result. Still others think no matter what the circumstances are, the character or reputation of the witness must be attacked, one of the stock tactics of this class of practitioners being to assail the chastity of any witness who chances to be a woman. Not long ago in a case tried before me, a witness was asked regarding a circumstance which had occurred some fifteen years before, and even then was not similar in any respect to the offense for which the defendant was then being tried. Others again will attempt to brow-beat or bully a witness, although I am glad to be able to say this practice is not common among lawyers of standing. All these methods seem to me futile and wrong. "The rule as to leading questions which obtains in direct examination does not apply to the cross-examination, and if a witness shows a disposition to hide or color the truth, it may be, often is, advisable to be forceful in the asking of questions, although in many instances even of that kind better results are obtained by quieter methods. Anger rouses anger, and it often happens that a witness who is disposed to be friendly to the party conducting the examination is driven to a hostile attitude by the questions asked him, and the manner in which they are put, while a friendly tone will often succeed in obtaining a reply when a surly aspect and harsh manner has entirely failed. "One of the first things to be considered is whether you will cross-examine at all, and in coming to a conclusion as to this you will first consider whether there is any distinct object to be gained by it. It is necessary to remember that there can be but three objects in cross-examination: To destroy or weaken the force of the evidence the witness has given against you, to bring out something he has not stated which will tell in your favor, or to discredit him by showing from his past history or his demeanor on the witness stand that he is unworthy of belief. "Another good rule is not to try to disprove by cross-examination what has not been proven in the examination in chief, thereby supplying a missing link in the chain of evidence. In a case which recently came to my notice, the charge was for selling articles unfit for human food under Section 224 of the Criminal Code. Although it was attempted to be shown by the evidence of the complainant that articles unfit for human food had been sold by the defendant, there was no evidence whatever that the accused had knowledge of this when the goods were sold; yet the attorney for the defendant by a lengthy cross-examination of the complainant with reference to this considerably strengthened the case against his client. "Josh Billings in his quaint way said many things which contain sound philosophy. One of them is this: 'When you have struck oil stop boring,' and there is no safer rule than this: When you have made your point stop questioning. "To sum up what I have tried very briefly to say: Cross-examine only with an object; bring out the point and do not cover it. Do not bluster; do not try to dig from the enemy what you should leave alone; rely upon your own testimony. Do not dispute with the court after an adverse ruling; it shows weakness. A good lawyer will be a gentleman and not a boaster of what he can do. He will prove what he can do by doing it. He will not quarrel with the court, but be so ready with proof and law as to convince the court of his claim. He wins who convinces. Many lawyers waste too much time in talking; rely too much on it, tire a court too often by it; go over the evidence until it is threadbare and loses force." |