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The Central Law Journal.

SAINT LOUIS, MARCH 14, 1879.

CURRENT TOPICS.

In the United States Circuit Court for the Eastern District of Pennsylvania, in the case of Arthur v. New England Mutual Ins. Co. 6 W. N. 403, it was lately ruled that on a proceeding for the removal of a cause from a State to the Federal court, although it is optional with the party petitioning, whether he file the copy of the record on or before the first day of the then next session of the circuit court, the other party may, if he pleases, file the copy himself, and in so doing is considered to have acted for the party petitioning; and this may be done at any time after the filing of the petition and bond in the State court. MCKENNAN, J., said: "It never could have been intended by the national legislature to destroy the parties' rights by an act which professedly extended their right of litigation in this court; and the illustration used in argument, ['If, on a motion in the State court for a preliminary injunction, or for a receiver, the defendant can delay the cause six months by filing his petition and bond, and then pocketing the record, the act of Congress becomes destructive of the most important rights'], shows how completely the complainant in any suit in equity would be at the mercy of his opponent, if such were to be its construction. We recently decided in Taylor v. Rockefeller, 7 Cent. L. J. 349, that the State court ceased to have jurisdiction upon the proper filing of the petition and bond, in cases where the act of Congress gave jurisdiction in the cause to this court. The result is that the cause from that time is, in theory, in this court, and the only question is whether, where the party who has the right neglects to file the copy, to the detriment of the other party, the latter can not do it for him. I have no doubt that he can."

In Lax v. Corporation of Darlington, the Queen's Bench division of the English High Court of Justice, recently decided a question as to negligence which had been reserved at the Vol. 8-No. 11.

trial. The defendants were owners of a public market, to which the plaintiff brought cattle for sale, and paid toll for so doing. The defendants erected a spiked railing round a statue in the market, which the jury found was of insufficient height and dangerous to cattle. A cow of the plaintiff was killed in attempting to leap the railing. It was not contended that the plaintiff had been guilty of any negligence in not properly looking after his herd, but the defendants contended that they were under no obligation to have the fence of such a height as that cattle could not or would not be tempted to leap it; that plaintiff was a licensee who must take the market as he found it; that there was plenty of room for him to stand his cattle elsewhere (which seems to have been so), and that, as the danger was not concealed, but one obvious and apparent, he placed the cattle there at his peril. The court overruled these objections and found for the plaintiff. "I am of opinion," said LUSH, J., "that neither of these objections is tenable. The franchise of a market, like that of a port, is granted for the benefit of the public, and any one has as good a right to frequent the market for selling and buying the marketable commodities as he has to traverse a public highway. The grantee of a market, especially when he takes a toll for his own benefit, does, I think, incur an obligation to maintain the market in a state reasonably fit for the purpose for which it was granted; see the observations of Mr. Justice Bayley in Prince v. Lewis, 5 B. & C. 371. I see no reason why, if he erects in the place which he appropriates to the market, any obstruction which causes damage to the property or the persons of those who frequent the market for a lawful purpose, he should not be liable to an indictment as much as the person who places a dangerous obstruction in a public highway. Of course, where the danger is, as it was in this case, obvious and apparent, a person who heedlessly and without reasonable care to avoid it, incurs damage, cannot maintain any action, because he is the author of his own wrong. But he is not a contributor to his own wrong by going to the market. I was impressed at the time with an argument urged by Mr. Herschell. Suppose, he said, that the market was situated on the bank of a river or lake, is the man responsible

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if cattle brought there run into the water and drown themselves? If the specific spot were designated in the charter by which the market was granted, so that the grantee had no option to hold it elsewhere, I am inclined to think he would, even in that case, be bound to fence for the protection of cattle; but, if no place were designated, and he voluntarily selected so dangerous a spot, I should say certainly he would. This case, however, does not require that question to be answered. The charge against the corporation is of misfeasance, not of nonfeasance. The erection which constituted the danger in this case was an artificial erection by them, by which they rendered a safe market an unsafe one. That was a wrongful act.

The defend

ants had done a wrongful act in placing the spiked raile in the cattle market so low as to be dangerous to the cattle. This was the immediate cause of the injury, and they cannot say the plaintiff was guilty of negligence in using that part of the market which they assigned to him, though it was in proximity to the danger, he not being guilty of any negligence which immediately conduced to the accident."

THE SEVENTH VOLUME OF THE "AMERICAN DECISIONS."*

The seventh volume will disappoint none of the patrons of this series to whom the previous volumes had given an assurance that they were investing their money to good advantage. It is as good as any of its predecessors, perhaps

somewhat better than one or two of them; for the annotations are fuller, and the decisions treated in this way more numerous than ever. The cases in this volume are excellently selected. They are from nine States-Massachusetts, Connecticut, New York, New Jersey, Maryland, Pennsylvania, Virginia, North Carolina and Kentucky, and from seventeen different volumes of reports, viz.: 12, 13 & 14 Mass.; 1 & 2 Conn.; 12, 13 & 14 Johns., 1 & 2 Johns. Ch. ; 1 Southard; 1 & 2 Sergeant

*THE AMERICAN DECISIONS, containing all the cases of general va'ue and authority decided in the courts of the several States from the earliest issue of State reports to the year 1869. Compiled and annotated by JOHN PROFFATT, L. L. B., Author of a Treatise on Jury Trial, etc. Vol. VII. San Francisco. A L. Bancroft & Co. 1879.

& Rawle; 4 Harris & Johnson; 5 Munford; 1 N. C. Term, and 4 Bibb. The cases cover a period of three years, from 1815 to 1817. As this is the first volume of the series issued in 1879, we may suppose that the promise of ten volumes a year will hardly be carried out. But a work of this kind should not be hurried, and it is much better that the undertaking should be well done than that it should be quickly done. There are in this volume very full and valuable notes, from two to nine pages in length, on the following subjects: Usurable interest; easements of light and air; lateral support; successive attachments; sales by sample; contracts of infants; slander; foreign divorces; disseisin; computation of time; the statute of frauds; pledges; the consideration of marriage; the liability of innkeepers' specific performance; riparian rights; chancery relief against mistake, and contracts in restraint of trade. A number of other cases are also annotated, but at less length. Among the decisions of interest, we note the following:

In Adams v. Freeman, 12 Johns., 428, the Supreme Court of New York demonstra ted the fact that the house of an American is as much his castle as, according to the old saying, is that of an Englishman. The defendant walked into the dwelling-house of the plaintiff, and on being requested to leave, replied that he would go when he pleased." Repeated requests failed to move him until he

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had remained half an hour or so, when he left of his own accord, without having done any injury at all to the premises. The plaintiff brought trespass, which the trial court held did not lie. But the supreme court was of a different opinion, saying, per curiam :

"To enter a dwelling-house without license is in law a trespass. Any person professing to keep an inn, thereby gives general license to all persons to enter his house. But the house of the plaintiff does not appear to have been an inn, and therefore to render such an entry lawful, there must be a permission express or implied, and familiar intimacy may be evidence of general license for such purpose. According to the evidence, here was no such permission, and therefore the act of entering the plaintiff's house was a trespass. Besides, if the defendant had received permission to enter, as by being asked to walk in, upon his knocking at the door, his subsequent conduct was such an abuse of the license as to render him a trespasser ab initio.

This case, it appears, has been cited and followed in several States (vide Markham v. Brown, 37 Ga. 281; Markham v. Brown, 8 N.

H. 631; Stephens v. Lawson, 7 Blackf. 276; Allen v. Crofoot, 5 Wend. 510; Martin v. Houghton, 45 Barb. 260), although in the last sentence cited, the court does not seem to have remembered the Six Carpenters Case.

In McMillan v. Vanderlip, 12 Johns. 165, where the plaintiff agreed to work for the defendant for a certain time and to spin yarn at a certain price, and afterwards left his service, and brought an action for spinning a certain quantity, it was held that the contract was entire, and must be performed as a condition precedent before any action could be maintained for the price of the labor. Until payment is demanded, the liability of one who has received money to the use of another is not a "debt" within the meaning of an act discharging insolvent debtors from all "debts." Pease v. Folger, 14 Mass 264. In Merritt v. Clason, 12 Johns. 102, the memorandum of a contract under the statute of frauds was objected to because signed in lead pencil, but the court held it valid. Platt, J., for the supreme court, said: "I have no doubt that the memorandum required by the statute may as well be written with a lead pencil as with a pen and ink; and it is observable that in most of the reported cases on this head, the memoranda were written with a lead pencil and no counsel until now has ever raised that objection." But this did not satisfy the defendant who took the case to the court of errors, where Chancellor Kent was enabled to pass on the question. He affirmed the judgment of the supreme court in this language (18 Johns. 484):

"The statute of frauds in respect to such contracts as the one before us, did not require any formal and solemn instrument. It only required a note or memorandum, which imports an informal writing done on the spot, in the moment and hurry and tumult of commercial business. A lead pencil is generally the most accessible and convenient instrument of writing on such occasions, and I see no good reason why we should wish to put an interdict on all memoranda written with a pencil. I am persuaded it would be attended with much inconvenience and afford more opportunities and temptations to parties to break faith with each other, than by allowing writing with a pencil to stand. It is no doubt very much in use. The courts have frequently seen such papers before them, and have always assumed them to be valid. This is a sanction not to be disregarded."

Com. v. Bowen, 13 Mass. 356, presents a curious phase of the criminal law. From this case it appears that to advise a person to commit suicide may amount to murder, if the advice is followed. There, the party to whom this

advice was given was a felon and already under sentence of death, but that did not make any difference. Parker, C. J., in charging the jury, said:

'The goverment is not bound to believe that Jewett would not have hung himself, had Bowen's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is that advice has the influence and effect intended by the adviser unless it is shown to have been otherwise; as that the counsel was received with scoff or was manifestly rejected and ridiculed at the time it was given. It was said in the argument that Jewett's abandoned and depraved character furnishes ground to believe that he would have committed the crime without such advice from Bowen. Without doubt he was a hardened and depraved wretch. But it is in man's nature to revolt at the idea of self-destruction. Where a person is predetermined upon the commission of this crime, the seasonable admonition of a discreet and respected friend would probably tend to overthrow his determination. On the other band, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, " might induce, encourage and fix the intention and ultimately procure the perpetration of the dreadful deed. And if other men would be influenced by such advice the presumption is that Jewett was so influenced. He might have been influenced by many powerful motives to destroy himself, still the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.

"It may be thought singular and unjust that the life of a man should be forfeited merely because he has been instrumental in procuring the murder of a culprit within a few hours of death by the sentence of the law. But the community has an interest in the public execution of criminals; and to take such an one out of the reach of the law is no trivial offense. Further, there is no period of human life which is not precious as a season of repentance. The culprit, though under sentence of death, is cheered by hope to the last moment of his existence. And you are not to consider the atrocity of this offense in the least degree diminished by the consideration that justice was thirsting for its sacrifice, and that but a small portion of Jewett's earthly existence could in any event remain to him."

This case was relied on by the Supreme Judicial Court of Massachusetts in a very recent decision, Com. v. Mink, 6 Cent. L. J. 488, where the same responsibility was held to apply to the accidental killing of another by one attempting to commit suicide. In Com. v. Sharpless, 2 S. & R. 91, it was rule dthat on indictments for publishing or exhibiting obscene pictures, the offensive publication need not be exhibited in the record. "I am for paying some respect to the chastity of our records," says Tilghman, C. J. The English rule is otherwise, as was decided in a late and somewhat notorious case (Beg v. Bradlaugh, 6 Cent. L. J. 202), in which the American cases were referred to.

There are several cases on the law of com

mon carriers. The "act of God" is held to embrace the striking of a vessel on a rock not known to the master. "For though the rock had been there for ages, yet if it had never been discovered before, it is the same thing as if it had been created and placed there immediately before the accident happened." Williams v. Grant, 1 Conn. 487. In Roberts v. Turner, 12 Johns. 232, a person receiving goods for transportation but having no interest or control in the vessel by which they are forwarded, is held not to be liable as a common carrier. The unskillfulness of a pilot is not a "peril of the sea." Harvy v. Pike, N. C. Term. Rep. 82. In Barney v. Prentiss, 4 H. & J. 317, the question whether or not a carrier could limit his common law liability by a general notice, coming for the first time before the Court of Appeals of Maryland, that court refused to decide it, but held that the notice in question was void on account of its ambiguity. As usual, we are not without a slander case in this volume. In the Commonwealth of Massachusetts one Briggs remarked of a neighbor, "Old Chaddock stayed at our house last night and was pretty devilish drunk; he was so drunk he could not find his key," and straightway found a verdict against him for slander. It was affirmed by the supreme court, which held that, because the plaintiff was a clergyman, no proof of special damage was required. Chaddock v. Briggs, 13 Mass. 248.

A single woman, dependent on her brother, has an insurable interest in his life. Lord v. Dall, 12 Mass. 115. A vessel is to be deemed "at sea," within the terms of a policy of insurance, while in a foreign port, having been captured and carried there against the will of the master. Wood v. New England Ins. Co. 14 Mass. 31. In Bradford v. Manly, 13 Mass. 138, it is held that a sale by sample amounts to a warranty that the article sold is of the same kind as the sample. This case, according to Mr. Parsons (vol. 1, p. 585), is a “leading case in America" upon this subject, and lays down the law as it is at this day. In Walker v. Swartwout, 12 Johns. 444, it is decided that a public agent, in his known official capacity, employing one to labor on public work, can not be held personally liable for his wages. Connecticut v. Jackson, 1 Johns. Ch. 13, contains an exhaustive discussion by

Chancellor Kent as to the allowance of compound interest. In Vanuxem v. Hazlehurst, 1 South. 192, bankrupt and insolvent laws are thus distinguished: "Insolvent laws are optional; bankrupt laws are compulsory; insolvent laws operate equally upon all men and have for their object only the liberation of the debtor; bankrupt laws respect only merchants and traders and exonerate them from their debts."

Potts v. Imlay, 1 South. 330, was an action for the malicious prosecution of a civil suit, which the Supreme Court of New Jersey held would not lie unless the defendant had, upon such prosecution, been arrested without cause and deprived of his liberty. After stating that the books have been searched for four hundred years back, and upon that search it is conceded, even by the counsel for the plaintiff below himself, that no case can be found in which this action has been maintained in circumstances similar to the present," Kirkpatrick, C. J., says:

"If we go to the very equity of the thing, which seems to be the ground of argument here taken, the same reasoning which is here used to prove that the defendant ought to have damages upon a false claim, would also prove that the plaintiff ought to have damages upon a false plea. He is put to all the expense of a trial upon such plea, and yet he can recover nothing therefor but his lawful costs, though surely all experience teaches us that the plea of the defendant is not less frequently false than the claim of the plaintiff. But to what excesses would this lead us? Where would litigation end? The truth is, that merely for the expenses of a civil suit, however malicious and however groundless, this action does not lie, nor ever did, so far as I can find, at any period of our juridical history. It must be attended, besides necessary expenses, with other special grievance and damage, not necessarily incident to a defense, but superadded to it by the malice or contrivance of the plaintiff, and of these an arrest seems to be the only one spoken of in our books."

We would suggest that this is one of the few cases in this volume which the editor has not annotated, but which, at the same time, deserves that prominence. The principle of this case must, we think, since the decision of the Court of Appeals of Kentucky in Woods v. Finnell, 7 Cent. L. J. 18, be considered as one not at all settled in this country.

AMONG the "Flotsam and Jetsam' of the Canada Law Journal we find the following: "A county judge in England, who had received his appointment more on account of his political creed than his ability, was surprised to find that an assistant judge had been appointed to his court. A friend asked Lord Westbury the reason for his creating another judge. The Chancellor replied: "We are afraid of leaving Mr. A. any longer alone in the dark.'"

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1. AN UNDISCLOSED ARRANGEMENT to act for each side in negotiating the sale or exchange of property is contrary to public policy, and affords no ground of action to recover pay for the service, even though there is no actual fraud or duplicity.

2. BY A WRITTEN AGREEMENT, A PARTY placed property for sale or exchange, at his option, in plaintiffs' hands, agreeing to pay a commission, and to render all assistance in his power in making such sale or exchange: Held, that this did not render plaintiffs mere middlemen to bring the parties together, but authorized them to negotiate and contemplated that they should use their judgment and influence in their employer's behalf; and that an undisclosed retainer by the party with whom an exchange was finally consummated, prevented recovery of commission.

GRAVES, J., delivered the opinion of the court: The plaintiffs recovered judgment against defendant for certain commissions, and a review of the proceedings is asked upon a case made.

The defendant owned certain real estate he wished to sell or exchange, and he employed the plaintiffs to aid him. The arrangement was in writing, and signed by defendant in a book kept by plaintiffs for such entries. After designating the property and the price, and setting down the amount to stand on mortgage, and the time of credit and rate of interest, it proceeded as follows: "I hereby place the above-described property in the hands of Messrs. Scribner & Potter, for sale or exchange for farm property at my option, and agree to pay them a brokerage commission of 2} per cent. when sale or exchange is made, and further agree to render all the assistance I can in making such sale or exchange." At the same time this arrangement was made, the plaintiffs were under a similar retainer from persons by the name of Warren, who had a farm they wished to sell or exchange. Of this fact the defendant was ignorant.

In the course of a few weeks, the plaintiffs facilitated the opening of negotiations between the Warrens and defendant, and the parties not long after, through the aid of plaintiffs, consummated a trade, the Warren property being granted to Homer A. Collar, a son of defendant. There were some special circumstances connected with the substitution of the former for the latter as grantee, which are somewhat obscure to say the least, but the result is not governed by them. After this trade, it was ascertained by the defendant that during this negotiation, the plaintiffs were acting under retainers from the Warrens, and for an agreed compensation, and ne objected in the court below, and objects here that this fact is a complete answer to the action.

The plaintiffs' counsel have not contested and do not contest the principle that the same person can not be the agent of both parties, in reference to a

matter where discretion is to be exercised upon interests which are conflicting. He contends that the plaintiffs were not in that situation, but, on the contrary, that the retainers taken by the plaintiff's required them to do no more than bring the parties together, and that in this the interests of defendant and the Warrens were concurrent, and not conflicting; that these persons were left to negotiate as they pleased, and uninfluenced by the plaintiffs; that no opportunity existed for any infringement of good faith, and that it was just and lawful to take employment and pay from both sides. There is nothing in the record to impugn the personal fairness and integrity of purpose of the plaintiffs in this transaction, and the only question is whether the undisclosed arrangement to act for each side so accords with public policy as to afford a ground of action to recover pay for the service.

There is some contrariety of decision in regard to the right to accept a double retainer and double pay, even when the fact is disclosed to both parties. Farnsworth v. Hemmer, 1 Allen, 494; Walker v. O-good, 98 Mass. 348; Pugsley v. Murray, 4 E. D. Smith, 245; Everhart v. Searle, 71 Penn. St. 256; Raisin v. Clark, 41 Md. 158; Schwartze v. Yearly, 31 Md. 270; Morrison v. Thompson, L. R. 9 Q. B. 480, 10 Eng. 129; Rice v. Wood, 113 Mass. 133; Lynch v. Fallon, 11 R. I. 311, 3 Cent. L. J. 316. But the cases are nearly, if not quite, uniform, that where the double employment exists and is not known, no recovery can be had against the party kept in ignorance, and the result is not made to turn upon the presence or absence of designed duplicity and fraud, but is a consequence of established policy.

The opinion has been expressed that where the person is employed merely as a middleman, to bring persons together, and has no duty in negotiation, and has not engaged his skill, his knowledge or his influence, he may lawfully claim pay from both parties. Rupp v. Sampson, 16 Gray, 98; Siegel v. Gould, 7 Lansing, 177. No doubt such cases may occur. But this exceptional character should appear clearly before they should be exempted from the general principle. In Walker v. Osgood, supra, the court explained Rupp v. Sampson, and pointed out the distinction on which it proceeded. The plaintiff was employed merely to perform a preliminary act. His sole office was to bring two specified persons together.

The plaintiffs' counsel in this case has mistaken, as I think, the construction due to the writing on which the case is based. The employment was not merely that defendant and some third party should be brought together for mutual negotiation, with an option on defendant's part to do anything or nothing. The writing placed the property for sale or exchange in plaintiffs' hands, and then reserved an option as to whether the final disposition should be a sale or an exchange, and expressly required defendant to offer the plaintiffs all the assistance he could in making such sale or exchange. The contract had large scope, and went much further than to constitute the plaintiffs mere middlemen to bring some particular third persons,or even any one in general, into a position to negotiate with the defendant. It conferred authority to negotiate

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