149 Mass. 267, 21 N. E. 369; Redigan v. Railroad Co., 155 Mass. 44, 28 N. E. 1133, 14 L. R. A. 276, 31 Am. St. Rep. 520.

The fact set forth in the complaint, that defendant had neglected its statutory duty to fence the right of way, is not available to plaintiff, for it must be presumed that he possessed sufficient intelligence to realize the dangers he incurred. The duty to fence railways is required as a police regulation, to prevent cattle from straying thereon, where their presence might cause injury to the cattle, as well as property in transit, or to the lives of passengers. The presence of foot travelers upon such right of way in no manner affects the operation of trains or prevents incursion of cattle upon the same. An infant of tender years, incapable of exercising intelligence sufficient to avoid going upon the tracks, has been held to be within the protection of the fencing statutes. Rosse v. Railway Co., 68 Minn. 216, 71 N. W. 20, 37 L. R. A. 591, 64 Am. St. Rep. 472; Nickolson v. Railway Co., 80 Minn. 508, 83 N. W. 454; Marengo v. Railroad Co. (Minn.) 87 N. W. 1117, and cases cited. The reason, however, for this protection, does not extend to an adult person voluntarily upon the track for his own convenience. The plaintiff might, as a mere licensee, have the right to complain of a willful act by defendant in running him down, or of traps and pitfalls, which would be an allurement to unknown danger; but where he has full notice of conditions which are as open and apparent to him as to the railway company itself, he takes the risk of injury therefrom. Aside from these considerations, we would be required to hold, even if plaintiff were upon the tracks through an express invitation from defendant, that there was no probable or natural relation between the injury he received and the proximate cause of the same, for the possibility of a person walking upon the tracks being pushed thereunder by a straying animal at the moment when a train passes is so remote that the railway company could not be required to anticipate that so unusual and peculiar a combination of circumstances as occasioned this accident would happen. We have found no parallel case to this, and we apprehend that the peculiar incidents set forth in the complaint under review would strike the average mind as extremely outre and singular. Persons upon railroad tracks, even by express invitation, may reasonably be expected to avoid dangers from trains. This is the rule, even at grade crossings, and it would likewise be supposed that they might avoid contact with cattle straying upon the right of way, and either avoid contact therewith or protect themselves from injury by them; hence it must be held that the failure to fence the right of way against the straying animal was not the proximate cause of plaintiff's injury. Nelson v. Railway Co., 30 Minn. 74, 14 N. W. 360; Groff v. Mill Co., 58 Minn. 333, 59 N. W. 1049; Johanson v. Howells, 90 N.W.-26

55 Minn. 61, 56 N. W. 460; Barrett v. Railway Co., 75 Miun. 113, 77 N. W. 540; Weisel v. Railway Co., 79 Minn. 245, 82 N. W. 576. Our conclusion is that the demurrer was properly sustained, and the order appealed from is affirmed.

STATE ex rel. NICOLIN v. SCHREINER, Mayor, et al.

(Supreme Court of Minnesota. May 20, 1902.) LIQUOR LICENSE-BOND-WITHDRAWAL.

The filing of a sufficient bond is a necessary part of the application for a liquor license, and where such bond, after its approval and the granting of the application by the city council, has been withdrawn, the municipal officers have no authority to issue the license. (Syllabus by the Court.)

Appeal from district court, Scott county; Francis Cadwell, Judge.

Application by the state, on the relation of A. M. Nicolin, for a writ of mandamus to Henry Schreiner, mayor, and Casper Roderig, clerk, of the city of Jordan. From an order denying the writ, relator appeals. Affirmed.

F. C. Irwin and W. C. Odell, for appellant. F. J. Leonard and James McHale, for respondents.

LEWIS, J. June 29, 1901, relator made application to the city council of the city of Jordan for a liquor license for the period of one year from the 1st day of July, 1901. The application was presented to the council at its first regular meeting thereafter, held on July 1, 1901, at which the council accepted the application and fixed July 19th as the date for a hearing upon it, and ordered the usual notice to be given. July 3d, as a part of such application, relator filed with the city clerk a bond in the penal sum of $2,000, duly executed by the National Surety Company of New York. At the time of filing the license application, relator paid to the city clerk the sum of $10, required by the statute, and on July 22d paid into the city treasury the further sum of $490, to make up the balance of the license fee. On this last-named date the council, at an adjourned meeting, considered and granted relator's application for a license, and approved the bond. On the 26th of July the relator requested and demanded the city clerk and mayor to issue and sign the license granted by the council, which they refused to do. This action was commenced by petition in mandamus to compel those officers to issue and sign the license.

From the findings it appears that on July 26, 1901, after relator had requested the mayor and city clerk to issue and sign the license, she called for and withdrew from the office of the city clerk the bond which had been previously filed with the license application as security and approved by the council. It also appears that the bond was

thereafter retained by the relator, and that no other was ever filed in its place. Such was the condition of things at the time of the commencement of the present proceedings. The record does not disclose why the officers refused to issue and sign the license. It may have been for any of the following reasons suggested upon the argument by respondent's counsel: That the original application for the license did not correspond with the license which the council actually granted thereafter; that the full amount of the $500 license fee had not been paid into the treasury for the reason that the original $10 paid to the clerk had not been by him paid over into the treasury at the time the council granted the license; that the bond was in fact illegal because the surety was not authorized by its charter to enter into such a contract; or because relator withdrew the bond from the city clerk's office, and therefore was in no event entitled to the license.

We deem it unnecessary to consider the first and second objections. We assume, for the purpose of this case, that the bond was legal, and that its approval by the city council was conclusive. Whether or not the city officers would have the right to withhold their approval of the license for the reason that the bond was in fact illegal, although approved by the council, we do not decide. By law the bond is made a part of the application for a liquor license, and is just as necessary a part as the application itself, and if, before the license is finally issued, the applicant voluntarily withdraws it, he thereby, to that extent, invalidates the proceedings, and the resolution of the council granting the license, having been based upon the approval of the bond, becomes ineffectual. Relator's act was equivalent to saying to the council, “I have changed my mind; I do not wish a license, and will withdraw my bond;" or "I will withdraw this bond and furnish another in its place." In either case, until the bond was duly filed, the city authorities would be liable for a breach of duty if they issued a license. Relator is simply bound by her own voluntary act, and for this reason the writ was properly quashed.

Order affirmed.

WEICHER ▼. CARGILL. (Supreme Court of Minnesota. May 23, 1902.) ATTORNEY'S LIEN-ENFORCEMENT.

An attorney's lien, for services, upon funds in the hands of the adverse party, the fruits of the litigation, duly perfected by proper notice before payment to his client, may be enforced by summary proceedings in the action in which the services were rendered. Forbush v. Leonard, 8 Minn. 303 (Gil. 267), and Crowley v. La Duc, 21 Minn. 412, followed.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; David T. Simpson, Judge.

Action by J. J. Weicher against S. C. Cargill. Robert Christensen and W. A. McDowell intervene. Demurrer to interveners' complaint was overruled, and plaintiff appeals. Affirmed.

Savage & Purdy, for appellant. Robert Christensen and W. A. McDowell, for respondents.

BROWN, J. Plaintiff brought this action | against defendant to recover the sum of $20,000 for the alleged breach of a contract. Defendant answered, and when the cause came on for trial in the court below judgment was ordered in his favor on the pleadings, from which plaintiff appealed to this court, and the judgment was reversed, and the cause remanded for a new trial. Robert Christensen and W. A. McDowell were attorneys for plaintiff, and conducted all the proceedings in the action in his behalf. After the cause had been remanded to the court below, they served notice upon defendant that they claimed a lien for their services, to the extent of $1,500, upon money due plaintiff on account of the cause of action set forth in the complaint. Subsequently, and with full notice of the claim of lien, plaintiff and defendant, without consulting the attorneys, and without their knowledge, settled the controversy involved in the action; defendant agreeing to pay plaintiff the sum of $2,500 in full discharge and settlement of the same, $1,000 of which was paid at the time and $1,500 deposited in a bank in the state of Colorado, to be paid to plaintiff when the attorneys' lien should be determined, and the same released and discharged by payment. On learning of the settlement, the attorneys procured from the court below an order directing both plaintiff and defendant to show cause why judgment should not be entered in their favor against defendant for the amount of their claim. On the return day of the order plaintiff appeared before the court, and moved that the order to show cause be discharged on the ground and for the reason that the court had no jurisdiction to entertain an application thus made. The motion was denied, and the attorneys were directed to file and serve a complaint setting forth their claim for services, to the end that the issues pertaining thereto might be tried and determined, and the amount they were entitled to receive for their compensation definitely fixed and ascertained. The attorneys prepared and served a complaint pursuant to this order, in which all the facts relating to the commencement of the original action were set forth, the settlement of the controversy between the parties without the knowledge of the attorneys, the service of notice of lien, and the value of their services. Plaintiff interposed a general demurrer to the complaint,

which the court overruled, and he appealed. Defendant made no appearance, and does not contest the right of the attorneys to proceed in this manner.

The principal question argued by plaintiff in this court in support of his demurrer is that it appears from the complaint and other proceedings in the action that the attorneys have intervened therein, and it is contended that because they had no interest in plaintiff's cause of action at the time the action was commenced they have no right, under the statutes and rules and principles of law applicable to intervention, to thus come into the action. It is true the proceeding on the part of the attorneys is designated an intervention, but this is not necessarily determinative of its character. They could not intervene for the very good reason, suggested by plaintiff, that they had no interest in the cause of action at the time the action was commenced, and no right to proceed in that manner for the purpose of enforcing payment of their fees. The nature of the proceeding must be determined, however, by the purposes and objects to be accomplished by it, and, tested by this rule, it is clearly not an intervention, but a proceeding taken in the action to enforce the lien of the attorneys. Such being the case, it only remains to consider whether the method adopted is in accordance with legal principles. Gen. St. 1894, § 6194, provides that an attorney shall have a lien for his compensation, whether specially agreed upon or implied: (1) Upon the papers of his client which have come into his possession in the course of his professional employment; (2) upon money in his hands belonging to his client; (3) upon money in the hands of the adverse party in the action or proceeding in which the attorney was employed from the time of giving notice of lien to that party; (4) upon a judgment, etc. But the lien is made subordinate to the rights existing between the parties to the action. In the case before us it appears that the attorneys gave due notice to defendant of their lien, subsequently to which the cause of action was settled by the parties, and a portion of the money agreed to be paid plaintiff in settlement deposited in a bank, to be paid over when the claim of lien was adjusted and discharged. Clearly, under the provisions of the statutes, the attorneys had a lien upon the money so agreed to be paid plaintiff. This does not seem to be controverted by plaintiff. He could not well dispute the fact, for his demurrer to the complaint filed by the attorneys admits the facts showing the lien. The only question presented in this connection is whether the lien may be enforced by this summary proceeding in the action after the same has been settled by the parties. The proceeding is identical with that had (and sanctioned by this court)

in the cases of Forbush v. Leonard, 8 Minn. 303 (Gil. 267); and Crowley v. La Duc, 21 Minn. 412. In the first case cited the court expressed a doubt as to the propriety and regularity of a proceeding of this kind; in the second case the point was not made, and the court seems to have taken it for granted that the remedy was a proper one. Gen. St. 1894, § 6196, provides a method of determining the validity and amount of an attorney's lien, and the provisions of the section apply to all liens asserted upon papers or upon money in the hands of the adverse party. The second subdivision of the section authorizes the court to inquire summarily into the facts on which the claim of lien is founded, and determine the same; and the third subdivision provides that it may direct the trial of the controversy by a jury, or refer it, and upon the verdict or report determine the same as in other cases. This does not require a separate or independent action or proceeding for the purpose of enforcing the lien, but contemplates that the rights of the attorney may be asserted in the original action. There can be no difference, in respect to the enforcement of the lien, whether the amount is liquidated or unliquidated. If unliquidated, the statutes cited expressly authorize the court to determine the amount thereof, either by its own action or by a jury or a referee. This method of enforcing an attorney's lien is approved in other states. 13 Enc. Pl. & Prac. 154; Canary v. Russell, 10 Misc. Rep. 597, 31 N. Y. Supp. 291; Reynolds v. Reynolds, 10 Neb. 574, 7 N. W. 322. In some courts it is held that the attorney may, though a settlement of the action has been had between the parties, continue the prosecution of the same for the purpose of enforcing his lien for services; but in such cases further proceedings in the action concern only the attorney's lien, and result precisely as do the proceedings here adopted, and there can be no practical distinction between them.

It is urged by plaintiff's counsel that the settlement of the action between the parties fully terminated it, and that the same is no longer pending, so as to authorize further proceedings therein. The record does not sustain this contention. It does not appear that the action has been dismissed. The stipulation of settlement provided for the entry of judgment in defendant's favor to the effect that plaintiff take nothing by the action; but no such judgment has ever beet entered, and for all purposes, so far, at least, as the right of the attorneys to enforce their lien is concerned, the action is still pending and undetermined. We think this practice orderly and convenient, resulting in a speedy determination of the rights of the parties, and we approve it. The result is that the order appealed from is affirmed.

ALWIN v. LIESCH. (Supreme Court of Minnesota. May 23, 1902.) LIBEL-MATTER ACTIONABLE PER SE.

In an action for libel it is held that the publication complained of by plaintiff is libelous and defamatory on its face, and actionable per se; and, further, that the trial court erred in 'refusing plaintiff's request to so instruct the jury.

(Syllabus by the Court.)

Appeal from district court, Brown county; B. F. Webber, Judge.

Action by A. J. Alwin against Philip Liesch. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Pierce & Harriott, for appellant. Somerville & Olsen, for respondent.

BROWN, J. Action for libel. Defendant had a verdict in the court below, and plaintiff appeals from an order denying a new trial.

The only question we deem necessary to consider is whether the court erred in refusing to instruct the jury, as requested by plaintiff, that the publication complained of was libelous on its face. The court refused a request to so instruct the jury, and submitted the question to them to determine. This is the principal error complained of, and is the only one we deem of sufficient importance to require special mention. The complaint alleges that defendant is the publisher of a weekly newspaper called the Brown County Journal, printed and published in the city of New Ulm, and having a general circulation in that city and throughout Brown county; that on the 29th of September, 1900, he falsely and maliciously published of and concerning plaintiff in his said newspaper a false and defamatory statement in the following language: "Mr. Fischer's Partner. Editor's Note. The Journal begs the consideration and indulgence of its readers this week. Mr. A. J. Alwin, in an infamous attack in a local paper upon a Journal and Volksblatt writer, compels a personal reply. It is largely personal, and therefore of no public interest. This space will hereafter be devoted to a more interesting subject than a dissection of Mr. Alwin. The writer would much prefer writing in a different vein, but, as Mr. Alwin could not appreciate other than the style followed herein, it is necessary to give him the medicine his disease demands. The Journal has the material at hand, which, if given publication, would startle the people. The facts, data, etc., have been voluntarily furnished us by friends in New Ulm and Springfield. These facts relate to A. J. Alwin, of this city. They are filed for future reference. The Journal hopes the occasion will not arise which will compel it to use the material referred to. This Mr. Alwin, whose interesting history of some years ago has been sent the Journal, made a coarse, vul

*

At

gar, Alwinian attack in a local paper on Mr. Hay, of the Journal and Volksblatt, last week. Between blubbers and fits he says the Journal man misrepresented things to him in order to secure a copy of a speech delivered by him. Perhaps this man-we call him a man because he is made in the shape of one-cannot appreciate the fact that daily newspapers want matter when it is fresh. Perhaps he was ashamed of it, yet no one ever accused him of being troubled with sensitiveness in that respect. He was ashamed to father the monstrosity, the slippery, slimy, squirming thing which was conceived in iniquity, born in deceit, developed in degradation and shame, polluting all pure things that it reached, scorned by honest people, shunned by Christianity, and consigned to oblivion by the opinion of all Christian people. We can furnish dozens of affidavits of reputable people who heard the speech that it was exactly as published in the Journal. The speaker is excusable in a degree when he thinks his speech was 'doctored.' times he was carried away by the sound of his own voice. He imagined he was soaring on the wings of eloquence, when as a matter of fact the 'wheels' only revolved a little more rapidly, the speaker increased the distortion of his face, he shouted at the top of his voice, and he gestured like a drunken Indian. We'll be charitable, and say he probably forgot what he was saying. The Journal and Volksblatt had, and still have, a complete report of the speech. It may yet be given greater circulation than even the conceited fop who delivered it ever hoped for. Mr. Alwin says we were insincere when we complimented him. The spouter is mistaken. We compli mented him as we would a glib poll parrot or a chattering monkey, could either of them understand. Mr. Alwin has learned his lines well, and he delivered them acceptably at times. The rehashing of phrases and the discoloring of familiar passages detracted greatly from their original beauty, but the speaker blurted them out with considerable ease, and with the sang-froid of their originator. Of course, one could not expect to hear a Webster when an Alwin spoke, any more than one would expect to hear a prima donna when a screech owl hoots, or see a donkey go at a thoroughbred pace. But could the donkey or the screech owl understand, we would compliment them. So, in all sincerity, we complimented Mr. Alwin. And this enemy of the churches of New Ulm speaks of vice feeding on virtue. This former partner of Ferdinand Fischer brazenly speaks of virtue and honesty. This brings up a reminiscence that is interesting. It recalls to remembrance a demented woman in a padded cell in the insane hospital at St. Peter. Does Mr. Alwin know why Mr. Fischer failed? He was his partner. He kept the books. He ought to know. Since he holds himself up as the virtuous end of a personal controversy he forces upon an editor of the Journal

and upon the public, he should give the people proof of the virtue he claims. He forgets, if he ever knew, that gentleness is greatness as well as goodness. Continuing, this strange bird that befouled its own nest speaks of a Christian community as if he formed a part of that body here. Lashed into a realization of his true position, he fawns like a puppet upon the public. He frowns upon Christianity as a baboon frowns at the moon, and he glowers at the churches as a monkey would peer at a planet. Seared by the acts of his own doing, and deadened and weakened by constant smothering, if there be a spark of conscience left he did not show it in his public communication last week. As faith is a higher virtue than reason, we can hope for little improvement in Alwin until he has been touched by the Unseen hand, and is made to feel the error of his ways. When the prayers of a good old Christian couple are answered, the crowning glory of their joy will be a son redeemed,-saved from his own folly and the strange snares into which an erratic imagination and the influence of stranger minds has led him." The complaint further alleges by way of innuendo that defendant intended by the article to charge that plaintiff had been guilty of dishonesty and disreputable conduct of so gross and disgraceful a character that, if made public, would subject him to public disgrace and infamy; that plaintiff in his business and copartnership relations with one Ferdinand Fischer had wrongfully defrauded his partner, and caused his failure; and that his partner's wife was, on account of such dishonest and disreputable conduct, driven insane, and incarcerated in an insane asylum.

There can be no question but that the article complained of is libelous on its face. The law on this subject is that any written or printed words are actionable per se which tend to injure the reputation or good standing of a person, and thereby expose him to public hatred, contempt, and ridicule, or which tend to degrade him in society, lessen him in public esteem, or lower him in the confidence of the community, even though the words do not impute the commission of a crime or immoral conduct. Davis v. Hamilton (Minn.) 88 N. W. 744, and cases cited. It is urged by counsel for defendant that the language of the article is in a measure ambiguous, and, fairly construed, susceptible of an innocent meaning, and that it does not necessarily expose plaintiff to hatred, contempt, or ridicule, nor lessen him in the estimation of the community. But the article is couched in language too plain to admit of concurrence in that contention. No fairminded person can read it and be impressed that plaintiff was being lauded or complimented. It is denunciatory from beginning to end, fairly teems with ridicule, and its whole tenor and effect was to expose plaintiff to the hatred and contempt of his fellow men. There can be no serious question as to

this, and we hold, without further discussion, that the article is libelous and defamatory on its face; and a majority of the court are of opinion that the trial judge should have so instructed the jury, and that the refusal to do so was error for which a new trial must be granted. Trebby v. Publishing Co., 74 Minn. 84, 76 N. W. 961, 73 Am. St. Rep. 330. The writer does not concur in this latter view. Ordinarily, the question as to what is substantial justice in cases of this kind is one almost wholly for a jury to determine. The question whether the article complained of was libelous and susceptible of the meaning attributed to it by plaintiff in his complaint was submitted to the jury together with the evidence offered by defendant in extenuation or justification; and it seems to me, in view of the facts disclosed by the record, that their verdict might be very properly sustained. Plaintiff had attributed a particular meaning to the article, and the trial was had upon the theory that the meaning so ascribed to it was the one intended by defendant. Had the court instructed the jury that the article was defamatory on its face, it would necessarily have been an instruction to the effect that it was defamatory in the respects claimed by plaintiff; and beyond question the article does not charge, nor is the language fairly susceptible of being construed as charging, that the wife of plaintiff's partner, Mrs. Fischer, was made insane because of plaintiff's dishonorable or disreputable conduct. But my Brethren are of opinion that the question as to the defamatory character of the article should not have been submitted to the jury to determine, but that the court should have instructed them that it was defamatory as a matter of law; and in this legal proposition they are sustained by Trebby v. Publishing Co., supra, and the authorities generally.

We have examined the other assignments of error, and discover nothing requiring special mention. No other error of sufficient consequence to overturn the verdict is disclosed by the record, and none of the rulings complained of were prejudicial to plaintiff's rights.

Order reversed, and a new trial granted.

McLEAN v. PRUDENTIAL INS. CO. OF AMERICA.

(Supreme Court of Michigan. May 19, 1902.)

JUSTICE OF THE PEACE-JURISDICTION-AC-
TIONS AGAINST FOREIGN INSUR-
ANCE COMPANIES.

Comp. Laws, § 10,442, provides that a suit at law may be commenced before a justice of the peace in the county in which plaintiff shall reside, against any corporation, where the cause of action accrues within the state. Held to give a justice of the peace jurisdiction in a case against a foreign insurance company.