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It seems clear that had he sought and been afforded opportunity to show he was subject to be interned and doing so the fact was found against him, it is to be said it is well established law, he could not in habeas corpus open inquiry into the finding.

The principle governing findings by an officer or special tribunal are prima facie correct and cannot be reviewed in a hearing on habeas corpus. Ex parte Pupliese, 209 Fed.

720.

But this is not saying that habeas corpus will not lie to review a finding by an executive officer or board upon a proper showing therefor. Chin Chow v. U. S., 208 U. S. 8. In this case petitioner claimed, in a deportation case, that he had not been given opportunity to show he was not a Chinese, but had been born in this country. The court said: "The decision of the department is final, but that is on the presupposition that the decision was after a hearing in good faith, however summary in form." No such contention was made in the instant case, but there seemed an attempt to interfere with the judgment of the president. "The presupposition" of which Justice Holmes speaks is met in the instant case.

The opinion is interesting and well supported in legal principle.

ASSAULT AND BATTERY-ELEMENTS OF DAMAGE IN INSTRUCTIONS TO JURY. -In Guttersen v. Jensen, 170 Pac. 352, decided by the Supreme Court of Washington, there was reversal for error in instruction to the jury.

The nature of the instruction is indicated by what the court says as follows:

"It is argued by the appellant that this instruction is erroneous for two reasons: First, because it tells the jury that if they find the appellant used unnecessary force in repelling an assault by the respondent they should assess against the appellant all damages and injuries sustained by respondent, and, second, that in measuring the damages the jury should take into consideration the injury to the respondent's good repute, his social position and his professional standing."

The court then goes into the circumstances of a rencontre between the parties, saying that it seems plain that if appellant was justified in repelling an assault which was made upon him, he was at liberty to use such reasonable force as would repel the assault and would not be liable for any damages on account thereof. If he used excessive force, then it seems plain that he would be liable only for the damages caused by ex

cessive forcé and when the court told the jury that, if they found the appellant used excessive force or unnecessary force in repelling any assault they should assess all damages against the appellant, this was plainly error."

The court also further along says: "If the fault was all appellant's, then clearly the associates of the respondent could hold him in no less esteem by reason of the fact that he was unlawfully assaulted upon the public street." It appears that respondent's face was bruised and cut and he suffered pain and shock.

It seems to us that the court in its discussion invades the province of the jury. When it distinguishes as it does between an unlawful assault by appellant and resistance beyond what was necessary to repel an assault, it plainly goes into questions of fact it was the province of the jury to pass upon. This error is quite patent in the view that is taken both in unlawful assault and in resistance to an assault with unnecessary force. In neither case is anything allowed for injury to social position. or professional standing-the former because an unprovoked assault is excused because it is unprovoked, and in the other case because the overresistance is not wholly unprovoked. So between the two it is to be said there is to be no recovery for injury to social position, good repute, or professional standing as arising out of an assault.

Is this true? A blow, indefensible on the part of one who delivers it against another, is the culmination or complete expression of an uttered charge or slander. The public knows, when it hears of it, that it is the physical evidence of an accusation. If an accusation, wrongly made, involves injury to good repute, social position or professional standing, how greatly more is this true, when a blow is aggravation of an accusation? If there is a common brawl, this may be different, and so if received in a general melee. But all of this is to be judged by the jury. As pertinent to the general question of measure of damages in assault and battery we cite Wingate v. Burton, 193 Mo. App. 470, 186 S. W. 32; Trabau v. Benoit, La. 71 So. 893; Cooper v. Demby, Ark. 183 S. W. 185.

INSURANCE-CONSTRUCTION OF FIDEL ITY BOND AS TO MEANING OF "EMBEZZLEMENT."-In Delaware State Bank v. Colton, 170 Pac. 992, decided by Supreme Court of Kansas, it is held that a surety bond indemnifying a bank against loss occasioned by the fraud or dishonesty of its cashier "amounting to em

bezzlement or larceny," the quoted words do not, under the rule of construction applying to an insurance company in the business of a surety company charging a premium for bonds, mean embezzlement or larceny in the strict technical sense of those terms.

The court said: "The surety company prepares the bonds on its forms and the courts as a general rule construe them as intended to protect the obligee from loss occasioned by the dishonest and fraudulent acts of the principal, wholly regardless of whether or not the principal might upon the facts established have been convicted of embezzlement or larceny."

It seems to us not so difficult to conclude that an acquittal of a criminal charge of embezzlement or larceny would not be conclusive of an indemnitee's right to recover, as it is to say that there is any reasonable doubt about the meaning of the words of the bond. They intended to put some kind of limitation upon the character of acts of fraud or dishonesty. These general terms are qualified to mean those which amount either to embezzlement or larceny, and not those that do not so amount. The question, in this aspect, however, was not important in the instant case, because the proof showed that the cashier actually had appropriated to his own use money and securities belonging to the indemnitee coming into his custody.

The petition, however, did not allege specifically that the cashier's acts amounted to embezzlement or larceny. The court said- this was unnecessary and the proof need not so establish. It seems to us the court was right as to sufficiency of the petition and was wrong as to character of the proof.

The point was made but not referred to specially, that as the bank was an Oklahoma corporation, the laws of Oklahoma should have been pleaded. We do not believe this point was well taken, but we think the proof ought to have shown that the acts complained of amounted to embezzlement or larceny under Oklahoma law. It is possible to conceive that an act amounting to embezzlement or larceny in one state might not amount to that in another. And, also, it is possible to conceive that an indemnitor would take a risk as to any act punishable by law when he would not be willing to take a risk as to an act not punishable. In the latter event he only depends upon the conscience of the cashier, and that, though not necessarily elastic, might have a queer method in self-justification.

THE WAR AND CONTRACTS-ECONOMIC IMPOSSIBILITY EXCUSING BREACH.

A development of the highest interest both to the legal student and to the man of business is taking place in the Law of Contracts. The process is not yet at an end and will likely continue, not only during the remaining period of the war, but for a long time afterward. When is a contract discharged through impossibility of performance? By the Defense of the Realm Act performance is excused in cases where there is direct interference by the Government or any of its departments; then too, a contract is discharged when by operation of law performance becomes illegal. It is not these, or cases such as these, we purpose to deal with now, but the cases in which the conditions under which a contract has to be carried out differ so greatly from those in which it was made as to give ground for the plea of impossibility of performance.

It is a rule of the common law that if a man in unqualified terms contracts to do something, then he must either perform his contract or pay damages for its nonperformance. Owing to the obvious hardships which this dogmatic rule presented the courts have never shown a great tendency to press it unduly. Nevertheless on the other hand they have been disposed to hold that mere economic unprofitableness does not entitle a party to a contract to assert impossibility of performance. But the wide spreading effects of this war have caused it to be realized that increased expense may be so great as to amount in law to impossibility, and have brought into prominence the observations of Mr. Justice Maule in the old case of Moss v. Smith, (1850,) where he said: "In matters of business a thing is said to be impossible when it is not practicable, and a thing is impracticable when it can only be done at an excessive or an unreasonable cost. A man may be said to have lost a shilling when he has

dropped it into deep water, though it might be possible by some very extensive contrivance to recover it."

To give relief in cases such as these the courts have come to introduce the doctrine of implied condition, the earliest complete statement of which was made by Lord Blackburn in the case of Taylor v. Caldwell (1863). After referring to the rule we have mentioned, that where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen circumstances the performance has become unexpectedly burdensome or even impossible, his Lordship said: "But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied, and there are authorities which establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfillment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done, then in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.

This doctrine is practically an invention, for when the contract was made the probability is that the parties never thought of the ultimate cause of breach at all; but the court assumes that they both thought of it and were both of one mind about it, and this assumption is logically quite right becase the existence of the contract implies agreement on all points. In other words, as it has been popularly put, the court assumes that if, when the parties were actual

ly concluding their bargain a third party remarked, "In the event of so and so, of course you are agreed to such and such effect," and they would both reply "Oh, of course." The plainest illustration of this doctrine of implied condition occurs in the cases which arose out of the deferred corronation procession on the accession of the late King Edward, the leading case being Krell v. Hendry (1903). There Krell contended that his only purpose was to get money by letting his room and that was the whole contract, as he did not guarantee any procession to pass in front of his windows, while Hendry contended that his purpose in entering into the contract was to see a procession. The Court solved the question by finding that the parties had impliedly agreed that the obligation of the contract should cease in the event of the failure of the essential condition that a procession should take place.

Applying this doctrine now to the cases. of contracts which have been affected by the war, we revert to the instance where a contract can only be performed at serious pecuniary loss, and the conclusion derivable from the cases on the subject seems to us to be this. If, subsequent. to the formation of a contract, an event occurs, of which the effects have not been expressly provided for by the terms of the contract, and causes, or is reasonably likely to cause, such difficulty or delay in performance as amounts to commercial impossibility, or destroys the whole foundation of the contract, either party may claim that it was an implied term of the contract that on the happening of the said event the obligations of the contract should be discharged.

But the expense is not the only consider ation which may be pleaded as excusing the contract-there is the matter of delay. “A state of war," says one writer "must be presumed to be likely to continue so long and so to disturb the commerce of merchants as to defeat and destroy the object. of a commercial adventure." On the other hand though war is a thing of serious and

indefinite duration, yet, it is a thing which can only be temporary. If, therefore, at the outbreak of war the time during which the contract has to be performed is such that the war is reasonably likely to outlast it, then the contract would be dissolved. But as has been well pointed out by Mr. F. D. Mackinnon, K. C., in his recent pamphlet on this subject the converse proposition, that if the time during which the war is reasonably likely to last is shorter than the period during which the contract has to be performed the contract will not be dissolved, is by no means necessarily true. For "In the case of a contract involving continuous acts of performance over a long period the cessation of performance during part of that period, from inability to perform, may involve so radical an interfer

ence with the whole substratum of the contract that the contract will be thereby dissolved even as regards the period during which acts of performance may again be

come possible."

This is but another statement of the question whether the war dissolves or only

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The terms "proximate" and "direct," as used in connection with the law of dammeanings are probably about as well deages, have different meanings; and these fined in a general way as terms so comprehensive can ever be. The fact that these words have widely different meanings is not news to any moderately well informed lawyer; but courts have sometimes used them, in the discussion of important cases suspends a contract and the most recent as if they were synonymous and interunimportant case on the subject, Metropolitan Water changeable. This may seem but the error has clearly had an undesir Board v. Dick Kerr & Coy (1917), is in favor of termination. The facts of the able influence on the shaping of the law of case were briefly these: Just before the proximate cause, tending, as it does, to keep us from seeing exactly whither we war began the defendants contracted to make a reservoir which was to be complet-headed in the development of this important subject. ed within six years. The contract con tained a stipulation that, if by reason of any impediment the defendants were de- closely connected with the wrong "Direct damages are those which are so layed in the completion, the time might be plained of that they may be said to be in extended by the plaintiffs' engineer. The volved in the assertion of the right of ac carrying on of the work was prevented by tion. In the case of personal injury, bodily the Minister of Munitions, who under his injury and pain; in that of libel, damages

powers caused the plant on the works to be removed. The Court of Appeal held that

are

com

to reputation; in that of conversion, loss of the thing converted; in that of trespass the interruption thus caused of the work upon land, damage to the property; in that

was not such a temporary interruption as could be regarded as falling within the suspensory clause of the contract. The House of Lords has now upheld the Court of Appeal. Wherefore it would seem that these suspensory clauses in contracts en

tract,

of the breach of a contract, the loss of the advantage which was the object of the con-are all direct. Proximate damages (which include direct damages) are such as flow proximately from the cause of ac

tion, that is, are so connected with

it as

results of it, that the law regards the per

son responsible for the cause of action as responsible also for them. Remote damages are all other results not so connected."1

Not all proximate results are direct; but all direct results are proximate. The latter fact is probably one of the facts resulting in the confusion of the two terms. Perhaps a more potent cause of the confusion is the similarity of the meanings of the two terms in the every-day language of the laity.

Whatever may be the cause of the occasional treating of these words as if they were synonymous, it can safely be said that the above quotation from Mr. A. G. Sedgwick represents the law as exhibited clearly by the overwhelming weight of authority and it can further be said that any attempt to treat the two words as having the same meaning will result in more of trouble than it is possible to calculate. If we treat both terms as having the meaning properly given to "direct" and say that all damages, in order to be recoverable, must be direct, we eliminate from our law all the possibility of any recovery for any kind of consequential damage; if we treat both terms as having the usual meaning accorded to "proximate," we raise the troublesome question whether we shall then require proof of proximity of cause and result in the most ordinary and most obvious cases of direct damage.

Of all the cases involving the question of proximity, those based upon negligence are the most difficult and frequently the most misleading, the question of the fact of negligence being frequently mixed with the question of the proximate relation of the negligence to the injury. In an Alabama case, a boy, nine and a half years old, tried to climb upon a freight train and thus enjoy a ride. In violation of a village ordinance, the train was then going at a greater rate than four miles per hour. The boy missed his footing, fell and was killed. The court held that the railroad company

(1) Sedg. El. Dam. (2d ed.), p. 45.

was not liable, as its negligence was not the proximate cause of the wrong." As was pointed out by the author in a footnote to a previous article,3 judgment for the defendant could more easily have been sustained on the simple ground that the defendant had violated no duty toward the boy and that therefore there was no negligence upon which to ground the action. But the court, instead of doing this very obvious thing, proceeded into a discussion of the relation of the violation of the ordinance to the injury, quoting with approval the following passage from 16 Am. & Eng. Enc. Law 431: "To constitute actionable

negligence, there must be not only a causal connection between the negligence complained of and the injury suffered, but the connection must be by a natural and unbroken sequence, without intervening efficient causes; so that, but for the negligence of the defendant, the injury would not have occurred. It must not only be a cause, but it must be the proximate-that is, the direct and immediate, efficientcause of the injury." Probably the first sentence of this quotation would be generthat negligence, in order to be actionable. ally approved; but the latter proposition. "must be the proximate-that is, the direct and immediate, efficient-cause of the injury," may well give us pause, since it restricts "proximate" to "direct." If a negligent defendant is never to be held liable for any except direct and immediate effects of his negligence, negligent persons will probably escape free of all liability for most of the injurious consequences of their wrongful acts.

One very well known case, in which a railroad company was very properly held liable for a miscarriage consequent upon a

(2) Western Ry. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179. No attempt is made in this article to make an exhaustive study of numerous cases. There have been selected simply a few cases, typical ones, to illustrate.

(3) 83 Cent. L. J. 148 (149).

(4) Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 41 Am. Rep. 41.

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