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had to be brought upon an unnegotiable or unindorsed The administrator of the douor filed a bill in equity
bond, in the name of the assiguor, because he was held against the douee, to have the bond delivered up.
by the assignment to acquire only an equitable inter- Lord Hardwick, before whom the suit was heard,
est, which could not be enforced in a court of law, yet holding that the bond was the proper subject of a do-
even in that case, the court of law so far recognized natio causa mortis, dismissed the bill, and the same
the interest of the assignee, as to protect it against the eminent jurist afterward, in the great case of Ward v.
acts of the assignor. Long v. Baker, 2 Hay. 128 (191). Turner, 2 Ves. Sr. 443, said he adhered to that decis-
and Hoke v. Carter, 12 Ired. 324. But now, under the ion, and in reference to this case, Chancellor Kent
new system, the action on such an instrument, must said: “The distinction made by Lord Hardwick, be-
be brought by the real party in interest. Code, $ 177. tween bonds and bills of exchange, promissory notes

The construction put upon this section is, that the and other choses in action, seems now to be adopted
assignee of a bond or note, not indorsed, is the proper in this country, and they are all considered proper
person to maintain the action in his own name, be- Bubjects of valid donatio causa mortis as well as inter
cause he is the real party in interest. Andrews v. vivos." 1 Kent, 379. All evidence of indebtedness
McDaniel, 68 N. C. 385; Jackson v. Love, 82 id. 404; which may be regarded as representing the debt,
Banlı v. Bynum, 84 id. 24; and that the possession of whether with or without indorsement, are the sub-
an unindorsed negotiable note payable to bearer raises ject of a donatio mortis causa. Red. Wills, Part II,
the presumption that the persou produciug it on the 312, 313, and to same effect Brown v. Brown, 18 Conn.
trial is the real and rightful owner. Jackson v. Love, | 410; Williams Exeo. 692; Iredell Exec. 52
supra, aud Pate v. Brown, 85 N. C. 166.

It was at one time matter of considerable discuss It is immaterial whether the action brought by the Bion in the courts of England, whether a mortgage plaintiff is legal or equitable, for under the present given to secure the payment of a boud was the subsystem the distinction in actions at law and suits in ject of a donatio causa mortis, and in the case of Dufequity, and the forms of all such actions are abolo field v. Elwes, 1 Bligh. (N. S.) 497, it was decided, upon ished, and there is but one form of action. Code, appeal to the House of Lords, from a decision of Vice $ 133.

Chancellor Leach, that the delivery of the mortgage, The complaint or counter-claim, which is in the na- as creating a trust by operation of law, was good as a ture of a cross action, must set forth the cause of ac- donatio causa mortis. The same principle was admittion in a plain and concise statement of facts (Code, ted in the case of Hurst v. Beach, 5 Madd. Ch. 351, and $ 233; Moore v. Hobbs, 77 N. C. 65), and then the court a delivery of a bond and mortgage as a donatio causa will give such relief as is consistent with the case made mortis held to be valid, and the same doctripe was by the complaint and embraced within the issue. Code, held in Duffield v. Elwes, 1 Bligh. (N. S.) 497; 3 Pom. § 425 ; Knight v. Houghtalling, 85 N. C. 17; Oates v. Eq. Juris., $ 1148. Kendall, 67 N. C. 241.

The mortgage need not be assigned. The assignThis action then, according to the statement of tho ment of the debt, oote or bond, secured by the mortfacts set forth therein, may be either in the nature of gage, even without a formal transfer of the security, detinue, or a bill in equity for the delivery of the

carries the mortgage with it. 1 Estee Plead., $ 345. 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 the 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 The defendaut further excepted to the instruction donee, is valid as a donatio cuusa mortis.

that the plaintiff, as administrator of James Kiff, was That the defendant's right of action, by his counter- estopped to attack the gift as fraudulent. In this inclaim, upon the unindorsed bond, is still an equitable struction there was error. claim notwithstanding (Code, $ 133), see 1 Estee The plaintiff, to maintain his position, relied upon Plead. 122.

the case of Burton v. Farinholt, 86 N. C. 260, where it In the case of Overton v. Sawyer, cited above, the is held: First, that a voluntary transfer of a chose in learned judge, in the conclusion of his opinion, uses action by an insolvent donor to his children, without the following language: “This conclusion is not at valuable consideration, is fraudulent and void, and all opposed by the decision of Lord Hardwick in Baily the same may be reached in equity by creditors, and V. Snelgrove, 3 Atk. 214, that a bond for the payment subjected to the payment of their debts, and secondly of money may be the subject of a donatio causa mortis, that an administrator is estopped by the act of his inThat was a case in chancery, and it was held that the testate. equitable interest in the bond passed to the donor, But there is a distinction to be observed between a which does not militate at all with the position, that voluntary assignment of personal property inter vivos the personal reprefentative of the donor, could at law in fraud of creditors, and a donatio causa mortis. The recover the value of the bond in an action of trover." latter does not take effect until after the death of the This is undoubtedly an authority for the doctrine,that assignor, and is ambulatory and conditional, and rea bond without indorsement is the subject of a dona- vokable until his death, and is likened to a legacy, tio causa mortis in equity.

and in that respect partakes somewhat of the characAnd the principle is fully sustained by the author- ter of a testamentary disposition of the property, 80 ities. When this priuciple was first applied to the far as it is liable for the intestate's debts, but it differs transfer of personal property, it was limited to chat- materially from a will, in that the donee's title is de. tels, which might be delivered by the hand. But as rived directly from the donor, and the assent of the trade and commerce advanced, it was gradually re- representative of the donor is not necessary to support laxed, and was extended, first, to embrace bank potes, his title, yet at the same time the executor or adminthen lottery tickets, and securities transferable by de- istrator of alleged donor, has correspondlivery, such as notes payable to bearer or to order, and ing rights and accordingly, upon deficiency indorsed in blank, and finally to bonds. Snelgrove v. of assets to pay the lawful claims of creditBailey, supra, was the first case, we believe, in which

ors, any gift causa mortis must give way, so far the doctrine was extended to bonds. There the as may be necessary to discharge lawful demands." donor bad delivered a bond to the donee, saying: Sohouler Ex. and Adm., $ 219, and the same author in “In case I die, it is yours, and then you have some- $ 220, lays it down, that “the executor or admiuistrathing."

tor, representing these and other interests, against the

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express or implied wishes of the deceased himself, if ment did not require him to travel as far east as Plainneed be, may procure all assets suitable for discharg- / ville, but his mother lived there, and he often went ing demands of this cbaracter. But if auy balauce is there to visit her. Iu July, 1883, he was at Plainville left over, it goes, not to the next of kin, but to the for this purpose, and boarded a train bound thence donee, for the revocation of any gift for the benefit of for Hartford, in order to stop off at Clayton, aud look creditors of the decedeut, is only pro tanto.” Schouler at the wreck of a train there caused by a collision the Ex. and Adm., $ 220, and the cases there cited in sup- day before. The train had two passenger cars, and port of the text. See also Pomeroy Eq. Jur., $ 1152; the conductor saw him on one of them just after the Iredell Ex., p. 556.

train started, but afterward, without the conductor's Those authorities, except the last, apply the doctrine kuowledge, he went into the baggage car, and while as well to assignments inter vivos as to donatio mortis there a collision occurred with another train coming causa. This court however has adopted a different westerly (there being but a single track), which principle as to contracts inter vivos, as in the case of wrecked the engine and baggage car, and killed the Burton v. Farinholt, supra. But as its application to a intestate. He was at the time riding on a free pass donatio causa mortis is an open question in this State, which provided that the person accepting it assumed we are at liberty to adopt the principles enunciated in all risk of accident, and expressly stipulated that the Schouler as above, which we do, because it is consist- company should not be liable, under any ciroumstauent with justice and equity, and the spirit of our ex. ces, whether of negligence of their agents or otherwise isting system of jurisprudeuce.

for any personal injury. There is no allegation in the complaint that these The defense was placed on three independent boods, etc., were necessary for the payment of debts. grounds: (1) The complaint was demurred to upon Whether that is an objection that might be taken on the ground that the action was brought for the sole demurrer, we do not decide. There is no demurrer benefit of the intestate, when it should have been for in the case, and the question of insolvency was one of the benefit of the widow or heirs; (2) that the intesthe elements of the plaintiff's ownership and right to tate was guilty of such contributory negligence as recover, and there was proof that the estate of plain- would prevent recovery; and (3) that at the time of tiff's intestate was insolvent.

the injury, he was travelling on the defendant's train Our conclusion is, that the plaintiff had the right to without the payment of any fare, under an agreement recover the bonds and mortgages in controversy, and or condition expressly assuming all risk of accident, after applying them to the satisfaction of the debts of and stipulating that the defendant should not be liathe intestate, to pay over to the defendant any balance ble in any event for injuries resulting from the veglithat may remain.

gence, etc., of its servants, or otherwise. The judgment of the Superior Court is reversed, and As our views of the last question will be decisive of this opiniou must be certitied to the Superior Court of the whole case, we will confino our discussion to that, Hertford couuty, that an account may be taken of the and waive the other two questions. indebtedness of the estate of James Kiff, and the as- Before we come to the discussion of the question, sets that have come, or ought to come, into the hands whether under the conditions of the pass the law will of the plaintiff as his administrator, applicable thereto. protect the defendant from liability, it will be necesto the end that a final judgment may be rendered in sary to determine whether the pass was gratuitous, or the cause in conformity to this opinion.

upon consideration : for it the latter is true, the deError.

feudant must be held to its full responsibility as a carReversed.

rier of passengers. The plaintiff contends that the pass was part of the consideration to induce Chicker

ing to open a lunch-room in the defendant's station at CARRIER-OF PASSENGERS LIMITING LIABIL

Waterbury; but the finding is silent in regard to this, ITY-FREE PASS.

and we are not justified in assuming that it was an ele

ment in the negotiations, or was in the mind of either SUPREME COURT OF ERRORS OF CONNECTICUT, party. It was, on the other hand, obviously an afterOCTOBER, 1885.

thought, and when asked for by Chickering he did

not refer to it as a thing promised by Holbrook, or GRISWOLD V. NEW YORK & N. E. R. Co.*

any one on behalf of the company. It was not claimed The keeper of a restaurant at one of the defendant's railway

as matter of right under any contract duty, but merely stations employed the deceased to sell sandwiches, etc.,

as matter of favor, and as such we must hold it to have on trains, and obtained for him a free pass.

been granted.

At the time of his death the deceased was travelling on the pass for

The question of consideration should be determined, his own purposes. The pass stipulated that the com

as in any other case of contract. The existence of pany should not be liable under any circumstances for

some selfish motive, if any, impelling the act, renders any personal injury sustained while riding upon it, in

it none the less a gratuity in the eye of the law, if consequence of the negligence of the company's servants,

there was no obligation at all to furnish the pass. The or otherwise. Held, that the pass was gratuitous

restaurant business belonged exclusively to Chickerand without consideration, and that the stipulation was

ing, whatever may have been the incidental benefits valid, although the deceased was a minor, and his death

to the railroad company. And besides it is to be obwas the result of the negligence of the defendant's ser

served, that at the time of the injury, tho intestate

was not traveling at all in the interest of the restauW. C. Case and P. E. Bryant, for plaintiff.

rant, but solely to gratify a personal curiosity, which

could by no possibility be any benefit, direct or indi. S. E. Baldwin and E. D. Robbins, for defendant.

rect, to the railroad company; so that on the whole LOOMIS, J. The plaintiff's intestate, Charles P. Gris

we have no hesitation in calling bis pass a pure gratuwold, was a boy about seventeen, employed by the

ity. keeper of a restaurant at the defendant's station in

We have then a case where the defendant gave a free Waterbury to sell sandwiches, fruits, etc., on all trains

pass upon the express condition that the passenger coming into Waterbury, having a free pass for that

would make no claim for damages on account of any purpose between Hartford and Fishkill. His employ

personal injury received while using the pass, in con

sequence of the negligence of the defendant's servants. *4 Atl. Rep. 261.

But the plaintiff, as the personal representative of the


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one receiving the pass, has instituted a suit in direct the railroad company in its character as a common
violation of the condition. In ordinary transactions, carrier, and therefore the stipulated exemption is no
such a breach of good faith, to say nothing of the abdication of that rigid responsibility which the law
breach of contract, would be disgraceful; but there imposes on common carriers. The gratuitous accom-
may be great considerations of public policy which modation concerns only the immediate parties, unless
conceal the private features of the transaction, and in a very indirect way, by making the fare of other
make the stipulation in valid in the eye of the law. passengers higher. If however fares are unreasonable,

By the English decisions, it is clear that the carrier they may be subject to governmental regulation. But
has full power to provide by contract against all lia- it will suffice to say that the remote aud indirect ef-
bility for negligence in such cases. McCowley v. Fur- fect alluded to cannot make the exemption void on
ness Ry. Co., L. R., 8 Q. B. 57; Hall v. Northeastern | the ground of publio policy. Many other gratuities
Ry. Co., L. R., 10 Q. B. 437; Duff v. Great Vorthern Ry, and charities might be named, which though con-
Co., L. R., 4 Ir. C. L. 178; Alexander v. Toronto & N. ceded to be commendable, would have a similar ef-
R. Co., 33 U. R. Q. B. 474. This last case is almost fect.
identical with the one at bar.

Again, in Railroad Co. v. Lockwood, supra, and in
In the United States we find much contrariety of other cases advocating the same doctrine, one promi-
opinion. Some State courts of the highest authority nent reason given for bolding the contract void as op-
follow the English decisions, and allow railroad com- posed to public policy is that in making the contract
panies, in consideration of free passage, to contract the carrier and his customer do not stand on a foot-
for exemption from all liability for negligence of every ing of equality; and that the latter is only ope indivi:
degree, provided the exemption is clearly and explic- dual against a powerful corporation, which has him in
itly stated. Welles v. N. Y. C. R. Co., 26 Barb. 641; S. its power; and that he cannot afford to higgle in re.
C., 24 N. Y. 181; Perkins v. R. Co., id. 208; Bissell v. gard to terms. It is manifest that this reasoning bas
N. Y. C. R. Co., 25 id. 442; Poucher v. N.Y. C. R. Co., no application at all to a free passenger. If his posi-
49 id. 263; Yagnin v. Dinsmore, 56 id. 168; Dorr v. tion is not superior, it is at least equal to that of the
New Jersey Steam Nav. Co., 11 id. 486; Kinney v. Cent. railroad company. The latter will not often be found
R., 32 N. J. Law, 409; S. C., 34 id. 513; Western & A. R. urging the acceptance of free passes. There is no pos-
v. Bishop, 50 Ga. 465. Other courts, also of high au- sibility of any “higgling" on the part of the passen-
thority, concede the right to make such exemption in ger for more favorable terms, and the solicitation for
all cases of ordinary negligence, but refuse to apply the pass itself will come from the latter also. Uuder
the principle to cases of gross negligence. Illinois Cent. these circumstances it does not seem reasonable to
R. Co. v. Read, 37 Ill. 481; Indiana Cent, R. v. Mundy, add to a free gift of transportation the burden of in-
21 Ind. 48; Jacobus v. St. Paul & C. R., 20 Mimn. 125 suring the passenger against all personal injuries aris-
(Gil. 110). And other State courts of equal authority ing from the negligence of the carrier's serrants; the
utterly deny the power to make a valid contract ex- risk being well known and willingly assumed by
empting the carrier from liability for any degree of the passenger as the condition upon which the gift is
negligence. Railroad v. Curran, 19 Ohio St. 1; Jobile made.
& O. R. v. Hopkins, 41 Ala. 486: Pennsylvania R. Co. But it may be suggested that there is involved in
v. Henderson, 51 Penn. St. 315; Flinn v. Philadelphia, . negligence, especially where the safety of life is con-
etc., R. Co., 1 Houst. 469.

cerned, a moral as well as legal culpability which ren-
The Supreme Court of the United States, in Rail- ders such contract of exemption void as against public
road Co. v. Lockwood, 17 Wall. 357, where a driver had policy. But those who regard this argument as de-
a free pass to accompany his cattle on their transpor-cisive must, it seems to us, overlook the fact that
tation, held, in opposition to the New York and Eng- there may be, and very often is, negligence that would
lish cases, that the pass was not gratuitous, because be called gross on the part of servants, for which there
given as one of the terms for carrying the cattle, for is no moral culpability at all on the part of the master.
which he paid. The reasoning of Bradley, J., was di- The parties contracting for the exemption under con-
rected so strongly to the disparagement of the New sideration well know that railroad passengers are con-
York decisions that it might have indicated an oppo- tinually exposed to risks arising from some momen-
sition to the principle of those cases in other respects tary lapse of memory or attention on the part of ser-
had not the opinion concluded with this distinct dis- vants who bave gained a high reputation for skill,
claimer: “We purposely abstain from expressing any prudence, and carefulness, and who were, it may be,
opinion as to what would have been the result of our selected on that account. A large percentage of acci-
judgment had we considered the plaintiff a free pas. | dents will be found to have resulted in the way sug-
senger, instead of a passenger for hire.” The reason- gested, without any actual fault on the part of the
ing and the conclusions of the court therefore must be officers of the corporation. Now the finding in the
considered as all based on the assumption tbat the case at bar is explicit, that the injury to the plaintiff's
passenger paid for his passage. The conclusions of intestate resulted from the gross negligence of the de-
the court were: (1) “That a common carrier cannot fendant's servants. This restriction is exclusive, and
lawfully stipulate for exemption from responsibility, is to be understood as used in contradistinction to
when such exemption is not just and reasonable in the negligence on the part of the corporation itself through
eye of the law; (2) that it is not just and reasonable, the acts of those who properly represent it. By the
in the eye of the law, for a common carrier to stipu- rule of respondeat superior, a corporation is made lia-
late for exemption from responsibility for negligence ble for the negligence of its servants; but where the
of himself or his servants."

principal has done the best he could, the rule is techWe are not disposed to attempt to controvert the nical, harsh, and without any basis of inherent justice. soundness of these propositions as applicable to pas- As applicable ordinarily to corporations, it is of great sengers for hire, but it remains an open question, practical convenience and utility. We do not therewhat is reasonable in the case of a free passenger ? fore advocate its abolition, but we contend that in a Will a just sense of public policy allow any distinc- case like the present, where there is no actual blame tion? It seems to us the two cases cannot be identi- on the part of the principal, it is reasonable, in the cal in the.eye of the law or of public policy, but that eye of the law, that the party for whose benefit the there is ample ground for a distinction,

rule is given should be allowed to waive it in considerIn the first place, the arrangement between the ation of a free passage. It is not the case where a parties ought not to be regarded as a contract with party stipulates for exemption from the legal conse

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ger, J.

quences of his own negligence, but one where he titled to participate, and distributed the money on merely stipulates against a liability or imputed negli- that basis, accompanying the payment with a written gence, in regard to which there is no actual fault. It statement of the total amount of the fund and of the is easy to see therefore that considerations of public sums to be paid to each claimant, such payments expolioy have no application to such a case.

hausting the fund. In a suit brought against the offiWhere a master uses due diligence in the selection cer by a creditor who had objected to the basis of disof competent servants, and furnishes them with suit. tribution, but had received the money offered him. able means and machinery to perform the service in Held, (1) that the agreement had wholly superseded which he employs them, be is not answerable to one of the rights of the parties as attaching creditors; (2) them for an injury received in consequence of the neg- that the plaintiff by receiving the money in the cirligence of another fellow-servant while both are en- cumstances had accepted it as his share; (3) that the gaged in the same service. Here the rule of respondeat sale of the property by the officer, though in form an superior is waived, and it is generally put on the official sale, was yet made by him under the agreeground of implied contract. And if a waiver may meut of the parties and as their agent, and that his be implied in such case, why not give an effect to an compensation was to be a reasonable sum, and was not express agreement in the case of a free passenger? limited to the statutory fees of an officer. Conn. Sup.

The Roman law, with its clear sense of justice, made Ct.,Feb. 12, 1886. Blake v. Baldwin. Opinion by Grana distiuction similar to the one for which we contend in determining the liability of the mandatory for the

ATTORNEY AND CLIENT-LIABILITY OF CLIENT FOR negligence of his agents. Where the business of the

ACTS OF ATTORNEY IN PROCURING FALSE IMPRISONmandatory required the interposition of subagents, he

MENT.-A., as attorney for B., brought an action was liable for the negligence of such subagents only on

against C., and recovered a judgment. Execution was the ground of culpa in eligendo, supposing he kuew or

issued thereon, and A.'s clerk, seeing the execution in could have known their inadequacy.

the office of A., and deeming it needed attention, went The foregoing reasoning, as it seems to us, will also

before a master in chancery for S. county, and apfurnish a complete answer to the claim that the de- plied for a certificate, upon which C. was arrested. fendant must be held liable on account of the gross The arrest was illegal, c. not being a resident of S. negligence of its servants, for it is manifest that the

county, and having no place of business there. A.'s principal is no more culpable in one case than in the clerk, in procuring the certificate and causing the arother, and the rule of respondeat superior being waived, rest, acted without the knowledge of or any instruothe protection is complete.

tion from A. or B. Held, that B. was liable for the The word "negligence,” in the stipulation for ex

acts of A. or his clerk in making the false arrest. The emption, is used in its generic sense, and compre- defendant contends that the attorney had no author. hends all degrees. And we may add that some high ity himself, without express directions, to take the modern authorities have expressed strong disapproba-necessary steps, and to proceed to arrest the plaintiff. tion of any attempt to fix the degrees of diligence or

Certain early English cases have been cited by defendnegligence, because the distinction is too artificial and ant, to the effect that the authority of an attorney tervague for clear definition or practical application. minates with obtaining judgment and execution. They See the opinion of the court in Railroad Co. v. Lock- do not require comment except to say that they prowood, 17 Wall. 382, and cases referred to in a note on

ceed upon the ground that all the attorney is required page 383.

to do by his warrant is thus terminated. But the The only remaining question to be considered is

warrant of attorney' is not used in this Commonwhether the minority of the plaintiff's intestate, which

wealth, and in this respect there is a difference berendered him incapable generally of making contracts, tween the English practice and our own. Nor would will render his assent to the limitation or condition of

it appear that obtaining the execution is now recogthe pass void also. But a minor has capacity in law nized in England as the termination of the duty of the to accept free gift, either absolute or conditional. If

attorney, if 'it ever was so formerly. In Collett v. the condition or limitation is reasonable, he cannot Fostor, 2 Hurl. & N. 356, the priucipal was held liable accept the gift and reject the condition or limitation; | for the act of his attorney in causing a plaintiff imfor that would enlarge the gift, which of course cannot properly to be arrested on ca. sa., no order to this efbe done without the consent of the donor. If the in

fect having been given by him. In Smith v. Keal, 9 testate did uot like the gift as made, he should have Q. B. Div. 340, it is said by Lord Justice Lindley: “It declined to accept it, and not attempt (as his personal was the duty of the solicitor to conduct the action in representative is doing) to make it include in effect,

the ordinary way; and if his client obtains judgment, contrary to its terms, an insurance against risks aris

it is his duty to do such acts as are necessary to obing from the negligence of the defendant's servants. tain the fruits of his judgment. If a fi. fa. is neces

There was error in the judgment complained of, and sary, he must issue it, and make the proper indorseit is reversed, and the case remanded.

ment 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 disABSTRACTS OF VARIOUS RECENT DE

tinction between powers of attorney before and after CISIONS.

judgment is less marked than formerly. The attorney

has a reasonable discretion in the attainment of the ATTACHMENT_AGREEMENT BETWEEN CREDITORSobject in view, and the selection of remedies. It AS TO PROPERTY.-Sundry parties, some of whom had would be mischievous to hold, where there is auy eviattached and others were about to attach certain per- dence that the authority of the attorney was continued sonal property of a debtor, and others of whom were after judgment, that the attorney had no authority to threatening to carry the debtor into insolvency, act according to the exigency of the case. It has agreed that the property should be sold by the officer always been held in this country that an attorney is who held it, upou executions obtained by some of the invested with a large discretionary power, in any parties, and that the proceeds should be divided by thing pertaining to the collection of a demand inbim among them pro rata. After the property had trusted to him for that purpose, and that bis client been sold the parties disagreed as to whether by the must answer in damages if injury is occasioned by his agreement a certain creditor was to participate. The conduct in the general scope of this employment. officer decided that the creditor in question was eu- While he cannot discharge a debt or an execution



without receiving satisfaction, he has control of the our great political system, and are welded and riveted selection of legal remedies and processes which he into it so firmly as to be difficult of separation. The may deem most effectual in accomplishing his object. act of 1881 recognizes this fact; it treats primary elecThe confidence reposed in him by his client, the sup- tions as part of a great system; it declares them to be posed ignorance by the latter of the most appropriate electious, to be regulated by law to some extent; and remedies require this. Willard v. Goodrich, 31 Vt. prescribes and punishes certain frauds committed 597, 600; Jenney y. Delesdernier, 20 Me. 183; Fairbanks tbereat. It erns elections in a most important v. Stanley, 18 id. 290"; Turner v. Austin, 16 Mass. 181;

How then can we say that it is not an election Gordon v. Jepney, id. 465; Caswell v. Cross, 120 id. law when the Legislature bas declared that it is? 545; Carleton V. Akron Sewer Pipe Co., 129 id. 40; Moreover the relation of nominating conventions to Moulton v. Bowker, 115 id. 36; Schoregge v. Gordon, the general election, and the importance of that rela29 Minn. 367; S. C., 13 N. W. Rep. 194; Clark v. Ran- tion is recognized by the Constitution itself. This is dall, 9 Wis. 135. Proceedings in the execution are notably so in article 7, which prescribes the oath of proceedings in the suit which the attorney is author- office, and which requires all senators and representaized to bring. Union Bank v. Geary, 5 Pet. 98-112; tives, and all judicial, State, and county officers to Erwin v. Blake, 8 id. 18-25; Flanders v. Sherman, 18 swear that “I have not paid or contributed, or promWis. 575; Planters' Bank v. Massey, 2 Heisk, 360; ised to pay or contribute, either directly or indirectly, Mayer v. Hermann, 10 Blatchf. 256. It has been held any money or other valuable thing, to procure my that he may receive seizin on levy of execution; may nomination or election," etc. As before observed, the discharge execution; may direct it to be issued in a Constitution must be construed liberally so as to carry particular manner; may in his discretion take out fi. out, and not defeat the purpose for which it was fa. or ca. 8a., and cause defendant to be arrested adopted. If we give it the narrow construction thereon. Pratt v. Putnam, 13 Mass. 363; Langdon v. claimed for it, a candidate for office might resort to all Potter, id. 319; Corning v. Southland, 3 Hill. 552; Hy. manner of bribery and fraud in procuring his nomina. ams v. Michel, 3 Rich. Law, 303. In Gray v. Wass, 1 tion; yet if he conduct himself properly after his nom. Greenl. 257, it is said by Chief Justice Mellen: That ination, he could wholly evade the constitutional pro"the power of an attorney does not cease until he has hibition. This applies with special force to cases collected the debt committed to him for collection is where a nomination is the equivalent to an election, admitted." In Heard v. Lodge, 20 Pick. 53, it is said In such instance the nominee may well be an honest by Mr. Justice Dewey: “It is within the scope of the man between his nomination and election, for he has power of the attorney to institute all sucb further no motive to be a rogue. By the words “any election proceedings as are necessary to render the judgment law" the framers of the Constitution, and the people effectual to the creditor for the recovery of his debt. who adopted it, evidently meant to include any act It has been held to be the imperative duty of an at- which the Legislature might thereafter enact for the torney in the original action, when the body of the purpose of purifying our elections. The act of 1881 debtor was arrested, to institute a scire facias against was passed to give effect to this constitutional provisthe bail, and if he neglect to do so he is held respousi-ion, and it matters little at what stage of the campaign ble." Dearborn V. Dearborn, 15 Mass. 316. Mass. the fraud is committed. It is as much an election law Sup. Jud. Ct., May 11, 1886. Shattuck v. Bill. Opinion when it strikes at the fraud at the primary election, as by Devens, J. [7 N. E. Rep. 39.]

when it arrests the fraudulent ballot just as it is ready

to be dropped into the box at the general election. CONSTITUTIONAL LAW, ELECTIONS-BRIBERY

We would belittle the Constitution, and fritter away NOMINATING ELECTIONS.- An act to prevent bribery

one of its best and wisest provisions, were we to give and fraud at nominating elections and conventions is a

it the narrow, technical construction claimed for it by lawful exercise of legislative power. The aot of 1881 is

this defendant. Penn. Sup. Ct., May 17, 1886. Leonone of the election laws of the Commonwealth, and

ard v. Commonwealth. Opinion by Paxson, J. (4 Atl. any person violating it falls under the disqualification imposed by the Constitution. It was contended on

Rep. 220.] behalf of the defendant that primary elections are not CONTRACT-CONSIDERATION-MORAL OBLIGATIONelections at all within the meaning of the Constitu- EXPRESS PROMISE.- A. gave to B., who had been emtion, and that a statute regulating them is not an elec- ployed by him for a number of years as sales-woman, tion law. That they come within the mischief in- a due-bill for $3,000, payable within one year after his tended to be remedied is too plain for argument. death, and stating that it was for additional compenUnder our form of government a vast system of po- sation for services rendered. A. died, and his execulitical machinery has grown up by which elections tors, on suit being brought ou the duo-bill, set up want have been for many years practically controlled. It is of consideration. A previous writing, also signed by so far reaching in its effects that the people have, in the decedent, is in evidence, in which he recites that many instances, little to do at the polls beyond the the plaintiff had been in his employment for twentyratification of what had been already done by nomi- three years as sales-lady; that she had been faithful nating conventions. Such conventions have often in the discharge of her duty; and that he wished to been controlled by the very influences which the Con- give her additional compensation for her services; and stitution and the act of 1881 seek to strike down. The in consideration of these facts he agrees that he will influence wbich these primary elections have for good give her a due-bill for $3,000 to be paid by his execuor evil upon the politics of the country is overshadow- tors within one year after his death. The decedent ing. In many portions of the State, as is well known, lived upward of two months after this paper was exa nomination by a convention of one of the parties is ecuted, and the plaintiff continued to render him serpractically the equivalent of an election. In some in- vice to the time of his death. Held, that the due-bill stances it is the precise equivalent, as in the case was on a sufficient consideration. The writing not where there are two persons to elect, and the elector only recognizes, but declares that the due-bill shall be is allowed by law to vote for but one. The importance given as compensation for services rendered, addiof the relation of the primary to the general election tional compensation, it is true, but compensation must be apparent to every one who does not shut his nevertheless. To what it was additional we do not eyes that he may not see, and stop his ears know. Whether it was additional to full or only parthat he may not hear. Primary elections and tial compensation previously paid, is only a matter of nominating conventions have now become a part of conjecture. There is no inference of law that the pre


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