Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 13, 1901

The conflict between the laws of different sovereign jurisdictions, especially between the states of the American commonwealth where intercourse is so constant and intimate, has given rise to questions of peculiar difficulties, and has necessitated the frequent exercise of principles of comity, which to-day have become extremely liberal and generous. A most important extension of these principles has been their recent application by the courts in permitting receivers appointed by the courts of one state to sue in a foreign jurisdiction, in cases where the rights of resident creditors are not involved. This exception to the general rule, which denies to a receiver the right to sue outside of the jurisdiction of the court appointing him, is well illustrated by the recent case of Iowa & California Land Co. v. Hoag (Cal.), 64 Pac. Rep. 1073. In that case an Iowa court appointed a receiver for an Iowa corporation and empowered him to collect the mortgage securities belonging to the corporation wherever they might be. It was held that such trustee might sue in a California court to foreclose such a mortgage in that state, although Iowa courts have denied a like privilege to the same officers appointed by courts of other states. This decision seems somewhat in line with the Biblical injunction to return good for evil, and the California court is to be commended for its exceedingly just and liberal attitude. The Iowa courts, however, follow the earlier rule laid down in the leading case of Booth v. Clark, 17 How. (U. S.) 322, where the court, speaking through Wayne, J., said: "A receiver has no extra"A receiver has no extraterritorial power of official action, none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property, none which can give him, upon principles of comity, a privilege to sue in a foreign court or another jurisdiction." The following authorities support the general rule thus announced: Hazard v. Durant, 19 Fed. Rep. 471; Farmers' Insurance Co. v. Needles, 52 Mo. 17; Bartlett v. Wilbur, 53

Md. 485; Holmes v. Sherwood, 16 Fed. Rep. 725; Mosely v. Burrow, 52 Tex. 396; Ayres v. Siebel, 82 Iowa, 347.

The court in the principal case in justifying its position uses the following language: "The earlier rule denied to such officers any standing in a foreign court, but the courts of late, influenced by a spirit of comity, have inclined to much more liberal views, and it may fairly be said that the prevailing doctrine permits the maintenance of such actions by foreign receivers and like officers, where the rights of domestic creditors are not interfered with. Toronto General Trust Co. v. Chicago, B. & Q. R. Co., 123 N. Y. 37, 25 N. E. Rep. 198; Comstock v. Frederickson, 51 Minn. 350, 53 N. W. Rep. 713; Boulware v. Davis, 90 Ala. 207, 8 South. Rep. 84, 9 L. R. A. 601; Winus v. Manufacturing Co., 48 Kan. 777, 30 Pac. Rep. 163; Hurd v. City of Elizabeth, 41 N. J. Law, 1; Wilson v. Keels, 54 S. Car. 545, 32 S. E. Rep. 702; Gilman v. Ketcham, 84 Wis. 60, 54 N. W. Rep. 395; Sands v. E. S. Greeley & Co., 31 C. C. A. 424, 88 Fed. Rep. 130; Parker v. Mill Co., 91 Wis. 174, 64 N. W. Rep. 751; Beach, Rec. (Alderson's Ed.) § 665; Smith, Rec. p. 165; High, Rec. § 241. The modification of the rule, as has been said, rests upon the principle of comity-a principle which the court was reluctant to apply in this particular case, by reason of the fact that the Supreme Court of Iowa, in Ayres v. Siebel, 82 Iowa, 347, 47 N. W. Rep. 989, had refused to recognize the principle, and denied to a foreign trustee the right to maintain an action in its courts. Mutuality of operation is of the essence of comity, and, therefore, since a California trustee would not be permitted to maintain his action in the courts of Iowa, little reason could be perceived for the invocation of the principle of comity to permit an Iowa trustee to maintain a like action in the courts of this state. In the later case of Hale v. Harris, 83 N. W. Rep. 1046, the Supreme Court of Iowa evinces a disposition to modify its view in this regard. But, apart from that, we think that the rule permitting the maintenance of such actions in our courts, where the rights of domestic creditors are not interfered with, is both just and reasonable, and should be enforced without distinction; and therefore regardless of the rule which may prevail in Iowa, and

of the fact that the trustee in this case is a trustee under the laws of Iowa, as we are not hampered by the principle of stare decisis, and as the rights of domestic creditors are not involved, we hold that he may, as matter of comity, maintain this action."

The exception intimated by the court that comity will not be extended to the detriment of creditors resident in a foreign jurisdiction is very important and is well sustained by authority. Bartlett v. Wilbur, 53 Md. 485; Hunt v. Insurance Co., 55 Me. 290; Chicago R. R. Co. v. Packet Co., 108 Ill. 307; Hurd v. City of Elzabeth, 41 N. J. Law, 1; Humphreys v. Hopkins, 81 Cal. 551. Thus in the last case it was held that while a receiver would be recognized on principles of comity, yet comity will not in any case be extended to the detriment of a resident creditor, and in that case a resident creditor was allowed to attach property which had been in the actual possession of a foreign receiver, and afterwards brought into California.

NOTES OF IMPORTANT DECISIONS.

LYNCHINGS-LIABILITY OF COUNTY.-Among the remedies for uncontrolled passion manifested in lynchings are laws making the people of the locality where lynchings occur liable for money damages for such lawless deeds. The state of Ohio has such a law which has been sustained by the supreme court. Charles W. Mitchell was lynched in Urbana, June 4, 1897. Benjamin F. Church was appointed administrator for his estate. He brought suit against Champaign county under the anti-lynching law for $5,000 damages. The verdict of the trial court was for the plaintiff. The case has been carried through all intermediate courts to the supreme court, in every one of which the verdict of the trial court has been sustained. This settles the law for Ohio. It remains to be seen how effective this remedy will be in preventing lynching.

PAST

MARRIED WOMAN PRESUMPTION CHILD BEARING-WIDOW OF 56 WHO HAS HAD A CHILD. In the recent case of White v. Edmond (1901), 1 Ch. 570, by the will of a testator certain leaseholds were bequeathed to trustees in trust for his daughter Anna for life, and upon her decease, for her children who should attain twenty-one years, and if more than one, in equal shares as tenants in common. The daughter Anna had married and had one son. She subsequently lived with her husband twenty-four years without having had any other children. The son was now thirtyfour years old and he and his mother now claimed that the trustees should convey the property to them on the ground that it must now be pre

sumed that the mother was past child bearing. Buckley, J., held that they were entitled to the conveyance. He held that the principles which had been laid down in regard to spinsters applied also to a widow who had had a child.

PROCEDURE

OF

TRIAL AND REOPENING CASE AFTER JUDGMENT.-To reopen a case after judgment for the purpose of hearing further evidence, either on one side or the other, would, in the ordinary course of events, be a very dangerous precedent. But in a recent case, which calls for no report upon the merits, Farwell, J., considered that the peculiar circumstances justified him in so doing. The plaintiff had fainted at the close of her examination-in-chief, and was unable to be cross-examined. The learned judge therefore ruled her evidence out in toto. Another witness for the plaintiff gave evidence, but her solicitor, a most important witness, failed to answer when called, and judgment was given for the defendant just before the court rose for luncheon. During the interval the solicitor arrived, having been traveling up from the country since early morning. On satisfying the court that he had come by the first possible train after he had received intimation of the trial, the learned judge withdrew his judgment, and consented to take his evidence, the defendant's counsel offering no opposition to such a course. In the result judgment was given for the plaintiff, and in all probability the costs of an appeal were thus saved. There is authority for the proposition that a judge may rehear a matter before the order is drawn up (Re Roberts (1887), W. N. 231) if attention is called to something which has not been sufficiently considered, but it is doubtful if the discretion of the court has ever previously extended so far as to admit the evidence of a new witness after judgment.-Solicitors' Journal.

SALES-ANTICIPATORY NOTICE OF BREACHDAMAGES.-The important question of the measure of damages for the breach of a contract of sale where the seller notifies the buyer previous to the day of delivery that he does not intend to fulfill the contract, was discussed and decided by the Supreme Court of Massachusetts, in the case of Emory Mfg. Co. v. Smelting Works, 60 N. E. Rep. 377. In this case the contract provided for the sale and delivery of goods on February 1st. The court held that the measure of damages for non-fulfillment was the differences between the contract and market price on that date, and not on January 25th when the seller notified the purchaser that it would not keep the contract. The court said:

"Even in England, where perhaps the courts would go further than we do in the way of allowing an anticipatory notice that the defendant will not perform his contract to be treated by the plaintiff as a breach, it seems to be settled that 'the promisee, if he pleases, may treat the notice of intention as inoperative, and await the time

when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance.' Frost v. Knight, L. R. 7 Exch. 111, 112; Johnstone v. Milling, 16 Q. B. Div. 460, 470, 473. A fortiori, the same is true when, as in this case, the promisee, had he wished to do so, would not have been allowed to treat the notice as a breach. Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384; O'Brien v. Boland, 166 Mass. 481, 484, 44 N. E. Rep. 602. A notice which gives the promisee no right to damages cannot bind him as conclusive that the contract will not be performed, and so put upon him a responsibility to see that the damages are no greater than they need be. It is a mere prophecy, and as such may be disregarded. Until the moment when a refusal to perform is a wrong, he has a right to expect that when the time comes a wrong will not be done. Sedg. Dam. (8th Ed.) § 224."

CORPORATIONS - DIVIDENDS - SUCCESSIVE OWNERS OF STOCK.-Whether dividends declared on corporate stock belong to the person owning the stock at the time when the dividends are declared, or the owner at the time when they are payable, was the question for decision in the recent case of Clark v. Campbell, 65 Pac. Rep. 496. The court held that under the facts in this case where the mining stock was deposited under a binding escrow agreement that it should pass to a certain person on the payment of a certain price within a certain time and the price is paid in such time, dividends declared before the price is paid do not belong to the purchaser. This decision is undoubtedly in line with the general rule supported by the authorities. By the declaration of a dividend the earnings, to the extent declared, are separated from the general mass of the property and appropriated to the stockholders existing at the time of the declaration, although the dividend may be payable at some future date. The dividends immediately upon being declared are no longer represented by the corporate stock but became the debt of the company payable to the steckholders who, in relation to the amount of the dividend so declared, become the creditors of the corporation. The following authorities sustain the general rule: 36 Cent. L. J. 456, with full citation of authorities; 2 Thomp. Corp. §§ 2172-2176; Dow v. Mining Co., 31 Cal. 630, 648; Jones v. Railroad Co., 57 N. Y. 196; Boardman v. Railway Co., 84 N. Y. 157; Cook, Stock & S. § 541; Jermain v. Railroad Co., 91 N. Y. 483; In re Kernochan, 104 N. Y. 618, 11 N. E. Rep. 149; Bright v. Lord, 51 Ind. 272, 19 Am. Rep. 732; Hopper v. Sage, 112 N. Y. 532, 20 N. E. Rep. 350, 8 Am. St. Rep. 771.

GRAND JURY-INDICTMENT.-In connection with the charge of bigamy which has been made against Earl Russell, his counsel made an extraordinary application to the recorder on Monday last at the Central Criminal Court. He asked the learned judge to order that a bill of indict

ment, which was about to be preferred against the earl, should not be preferred at the present sessions, and that the recognizances of the witnesses and of the defendant should be enlarged until next sessions. Probably such an application has never before been made in an assize court. At common law everyone has a right to prefer a bill of indictment against any person before a grand jury. This right has been modified in the case of certain offenses by the Vexatious Indictments Act, 1859. That act, however, does not in any way affect the procedure in the case of bigamy or any other felony. So that by common law a bill for bigamy might have been preferred before the grand jury by any person, and the recorder would have been acting contrary to law if he had attempted to stop that person from so doing. Of course, if a person does prefer a bill before a grand jury, he must be prepared with evidence to support it, and unless witnesses have been bound over to appear, there is no legal machinery by which he can get them before the grand jury. The judge who presides over a court of assize has, no doubt, power to enlarge the recognizances of the witnesses. If he did so before a bill was found this would indirectly prevent a bill from being preferred. This, however, is hardly ever done before a bill is found, and then always on the application of the crown. For the prisoner to make such an application is probably unheard of. After a bill has been found it is most common for a prisoner to ask for a postponement of the trial. If this application is granted. then the recognizances of the witnesses are enlarged to the next assizes, as a matter of course. But before a bill of indictment is found against an accused person, it is submitted that his counsel has no locus standi in the court at all, and neither he nor his counsel may address the court or make any application to the court in reference to the charge. In the recent case the application was refused, and a true bill was found. The recorder then stated that he intended to inform the lord chancellor of the fact, and the recognizances of the witnesses and of the defendants were enlarged. It seems probable, therefore, that, for the first time for sixty years, as stated in these columns last week, we are to see a trial of a peer by the house of lords.-Solicitor's Journal.

LICENSE-RECOVERY OF COMPENSATION FOR SERVICES PERFORMED WITHOUT A LICENSE.An important principle of law is disclosed in the decision of the court in the recent case of Black v. MutualLife Association (Me.), 49 Atl. Rep. 51, In the Public Laws, 1895, of the state of Maine, appears this provision: "And if any person solicits, receives or forwards any risk or application for insurance to any company, without first receiving such license, or fraudulently assumes to be an agent and thus procures risks and receives money for premiums, he forfeits not more than fifty dollars for each offense; but any policy issued on such application binds the company if

otherwise valid." In the case just referred to, the plaintiff had acted for some time as agent of an insurance company, in soliciting, receiving, and forwarding to the company applications for life insurance, but during the whole of that period failed to take out a license as required by the above statute. In a suit by the agent to recover compensation for his services, the company set up the defense that it was not liable on its contract of service with such agent because such services were rendered in direct contravention of an express statute. The court allowed the defense and denied the agent any relief. The decision in this case does not on first thought appeal to our sense of justice, but when we remember the general rule that when a license is required for the protection of the public and to prevent improper persons from engaging in a particular business, a contract made by such unlicensed person is void, the court's decision is above criticism; in fact, is to be commended when we recognize the common weakness of courts to do justice in the particular case rather than adhere to some principle whose application seems to work a hardship. The court said in part: "It must be held that the plaintiff cannot recover for the services performed by him in direct contravention of the statute. The purpose of the statute is undoubtedly for the protection of the public. It is clearly not for revenue. The license fee required was only the sum of two dollars. True, the statute referred to provides that a policy issued in such a case shall not thereby be void, but the contract of insurance is not the one under consideration here. It is the contract between the company and the plaintiff by virtue of which the latter performs services in obtaining applications for insurance which the statute prohibits unless the person performing such service has a license therefor."

The authorities are not uniform. In Bowdre v. Carter, 64 Miss. 221, it was held that a contract by a merchant who has not paid his privilege tax is invalid. To same effect Rand v. Tuell, 89 Me. 443; Stanwood v. Woodward, 38 Me. 192; Harding v. Hagar, 60 Me. 340; Taleafero v. Moffett, 54 Ga.150. Contra: Shepler v. Scott, 85 Pa. St. 329; Jones v. Berry, 23 N. H. '209.

WILLS-PRECATORY TRUSTS.-A woman left a will giving all her property in equal shares to the three wives of her three sons, and then adds this clause: "I wish that the property so as above given to said three wives of my three sons be for the education of their children and the support of their families, respectively, and I enjoin upon them so to use and expend it."

The court in the recent case of Clifford v. Stewart (Me), 49 Atl. Rep. 52, held these words to constitute a precatory trust for the benefit of the children of the three sons of the testatrix. The language of Savage, J., who delivered the opinion of the court, is interesting on this point: "It is not necessary for us to consider critically the doctrine of implied or precatory trusts. That

words of trust and confidence, expressions of recommendation and desire, as well as words of direction and command, in a will, have many times been deemed to indicate an intention on the part of a testator to clothe a legacy with a trust, requires no citation of authorities to show. It is likewise true that similar, and even identical, expressions in other wills have been held create no trust. Words seemingly imperative have been held to be advisory merely, and words of advice have had given to them the force of injunctions. The test is one of intention in the. testator, and this intention is to be gathered from the whole will,-the context, as well as the particular words of recommendation and confidence.

to

* That intention must be found by the court as a fact. It is not to be guessed at. The crucial test, after all, is whether the testator actually intended his language to be imperative, whether he intended to govern and control the action of the legatee, to impose an obligation or duty upon him in the use of the property, or whether he intended his words to be merely advisory, no matter how urgently expressed, still leaving it to the discretion of the legatee whether that advice should be followed or not. Warner

v. Bates, 98 Mass. 274; Whipple v. Adams, 1 Metc. 444; Barrett v. Marsh, 126 Mass. 213; Van Amee v. Jackson, 35 Vt. 173; Harper v. Phelps, 21 Conn. 257; Bohon v. Barrett's Ex'r, 79 Ky. 378; Murphy v. Carlin, 113 Mo. 112, 20 S. W. Rep. 786; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. Rep. 1164, 32 L. Ed. 138; Knight v. Boughton, 11 Clark & F. 513; 1 Perry, Trusts, 109; 2 Story, Eq. Jur. § 1059; 1 Jarm. Wills, 385. While the use of the word 'enjoin,' especially if qualified by other expressions in a will, does not necessarily mean that a trust is thereby created (Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. Rep. 144), yet here in just the manner in which and the place where it is used, enjoin' is both emphatic and significant. It is a mandatory word,-in legal parlance, always (Bouv. Dict.); in common parlance, usually (Webst. Dict.). We cannot resist the conclusion that the testatrix intended to create a trust upon the estate bequeathed to the wives to the extent of securing the education of her sons' children and the support of their families, whatever might be the exigencies of life. Blouin v. Phaneuf, 81 Me. 176, 16 Atl. Rep. 540; Chase v. Chase, 2 Allen, 101; Colton v. Colton, supra. We do not think it was intended that the wives should be at liberty to withhold the application of the property from the expressed uses to which the testatrix said she wished it to be applied. The bequest then created a trust in the share given to each of the wives."

REPLEVIN-RIGHT OF JOINT OWNER IN CROPS TO REPLEVY HIS INTEREST.-In an action of replevin it is of course the general rule that the plaintiff must show in himself the right of exclusive possession as against the defendant. A tenant in common, therefore, of a chattel cannot, as a general rule, bring an action for replevin

either against his co-tenant or against a stranger. An exception to this rule is well illustrated by the decision in the recent case of Pitman v. Baumstark, (Kan.), 64 Pac. Rep. 968. In this case a tenant who owned an undivided two-thirds of a crop, which had been placed in stacks, transferred the same to another, after which it was seized at the instance of a creditor of the tenant, and the vendee of the tenant then brought an action to recover possession of the same. Held, that the vendee, although only a part owner of the crop, was entitled to maintain replevin as against the creditor of the tenant. The court makes the following argument in support of the exception:

"It is a general rule that a part owner of property cannot maintain replevin against his co-owner for his undivided interest, for the reason that one part owner has as much right to the possession of the common property as the other. An exception to this rule is made where the shares of the party constitute a mass of uniform quality and value, susceptible of a fair and equal division by count or measurement. This rule is peculiarly applicable in cases like the present, as was held in Piazzek v. White, 23 Kan. 621, 33 Am. Rep. 211. There it was ruled that: 'When a mixture of cereal grain occurs by consent of the owners, or under circumstances in which the mixture would be reasonably expected by the parties, and the property mixed is of the same nature and value, although not capable of an actual separation by identifying each particle, yet, if a division can be made of equal value, as in the case of corn, oats and wheat, the law will give to each owner his just proportion, and such owner may recover his share by replevin.' See, also, Young v. Miles, 20 Wis. 615, Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Kaufman v. Schilling, 58 Mo. 218; Grimes v. Cannell, 23 Neb. 187, 36 N. W. Rep. 479; Wells, Repl. § 209; Shinn, Repl. § 247."

Authorities sustaining the general rule that one joint owner cannot, for his share, maintain replevin against the other before a division of the property are as follows: Hill v. Robinson, 16 Ark. 90; Mills v. Malott, 43 Ind. 248; Bowen v. Roach, 78 Ind. 361 (execution sale of interest in crop); Cross v. Hulett, 53 Mo. 397; Pulliam v. Burlingame, 81 Mo. 111, 51 Am. Rep. 229; Barnes v. Bartlett, 15 Pick. 71; Reynolds v. McCormick, 62 Ill. 412; Frane v. Young, 24 Iowa, 375; Davis v. Lottich, 46 N. Y. 393; Busch' v. Nester, 70 Mich. 525; Hunt v. Chambers, 21 N. J. Law, 620; Withman v. Withman, 57 Me. 447; Hewett v. Hatch, 57 Vt. 16. Neither can one of two joint owners maintain replevin against a stranger; he must join his co-tenants in the action; Reimheimer v. Hemmingway, 35 Pa. St. 432; McArthur v. Lane, 15 Me. 245; Hocker v. Johnson, 66 Me. 21; Kimball v. Thompson, 4 Cush. 441; Titsworth v. Fraumthal, 52 Ark. 254; Phipps v. Taylor, 15 Oreg. 484; Kindy v. Green, 32 Mich. 310.

INSANITY AS A DEFENSE IN CASES OF HOMICIDE. The plea of insanity as a defense to prosecutions for homicide is made so frequently that the rule has become well settled in this country that insanity, to be a defense to a homicide, must be so great as entirely to destroy accused's perception of right and wrong, and amount to a delusion controling his will, so as to make the commission of the act a duty off overwhelming necessity. This rule was adhered to as the wise result of long experience and observation on the part of the courts, in the recent case of Commonwealth v. Barner (Pa.), 49 Atl. Rep. 60. The instruction of the trial court, on the question of insanity, in cases of homicide, in the case of Sayers v. Commonwealth, 88 Pa. 291, was especially commended by the court for its marked accuracy:

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"If the prisoner at the bar at the time be committed the act had not sufficient capacity to know whether his act was right or wrong, and whether it was contrary to law, he is not responsible. * * The test in this instance, as you perceive, is the power or capacity of the prisoner to distinguish between right and wrong in reference to the particular act in question. * If the prisoner, although he labors under partial insanity, hallucination, or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and knew that if he did the act he would do wrong and would receive punishment; if, further, he had sufficient power of memory to recollect the relation in which he stood to others and others stood to him; that the act in question was contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty,-he would be responsible. *The jury must, therefore, even though they believe the prisoner labored under a diseased and unsound state of mind, be satisfied that this deceased and unsound state of mind existed to such a degree that, although he could distinguish between right and wrong, yet with reference to the act in question his reason, conscience, and judgment were so entirely perverted as to render the commission of the act in question a duty of overwhelming necessity. But there is another species of delusion, entirely distinct from those which we have just considered, which is recognized by the law, and which, when the jury believe that it clearly exists, will entitle the prisoner to acquittal. I refer to that delusion by reason of which the prisoner commits the act under a fixed, bona fide belief (which is a delusion) that certain facts existed which were wholly imaginary, but which, if true, would have been a good defense. We say to you, as the result of our reflections on this branch of the subject, that if the prisoner was actuated by an irresistible inclination to kill, and was utterly unable to control his will or subjugate his intellect, and was not actuated by anger, jealousy, revenge, and kindred evil pas