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Central Law Journal.

ST. LOUIS, MO., OCTOBER 18, 1907.

THE SECOND CONSERVING PRINCIPLE OF PROCEDURE.

Appellate procedure and its requirements is the first conserving principle of procedure. This essential requirement of government and of its necessary laws depends upon the mandatory record which is a constitutional implication; for it cannot be dispensed with wherever law is certain and is established by the supreme power of the state. There must be law and it must be founded upon the grounds and rudiments of law, such as necessitate the public welfare or public policy, reason, als, convenience and certainty. Out of these grounds and rudiments arise the conserving principles of procedure; the first one of these is appellate procedure which has already had our attention. 65 Cent. L. J. 77. The second is collateral attack which is next introduced. Collateral attack may be defined as a belated general demurrer, or motion in arrest of judgment or motion non obstante veredicto.

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To illustrate, it is observed that the Emperor of Russia no more visits Denmark. It is said the reason is that during his last visit thereto, he was respectfully petitioned by a letter to protect his subjects. This so enraged his highness that he demanded the King of Denmark to have the petitioner arrested, but the King answered as did Festus for the protection of Paul, saying that the writer was not in conflict with the law of Denmark, and therefore the arrest could not be lawfully made; that there could be no conviction for the writing of such a letter. Quod lex non vetat permittit. What the law does not forbid it permits.

If the writer had been seized aud condemned for his act, the record of that conviction would be coram non judice, the proceeding in that case would be open to collateral attack. Had he been fined and his estate sold to pay the fine, the purchaser thereat would have acquired no title whatever because the record required to evince the title would show that it was indirect confiscation of property by means of an arbitrary edict. This brings into view the cyclopedean consti

tutional question in American law of ex post facto, and retroaction laws, which are forbidden by the precriptive constitution, so much of which is reaffirmed in American constitutions, hazy from thumb marks and wear of picking out and setting in a jargon of useless grists, about "the precise words, the exact expression of the constitution." 2 Kent, 8, 12; Dash v. Van Kleeck, 2 Hughes' Proc. 1. c. 237a.

The condemnation of his estate for what is no deliction, "no cause of action" in the language of codes (copied from the Roman, the Norman and the English), is a coram non judice proceeding: this is always open to collateral attack. Generally it may be said that whenever a record is offered to prove a title or an estoppel of record, that record is subject to collateral attack. One buying upon such a record must take notice thereupon this is called "constructive notice" which is also enumerated as a conserving principle, yet to be presented. One buying upon such a record must take notice of what it shows; there is strictly applied to such a purchaser caveat emptor, consequently appears the primal importance of the rule. "What ought to be of record must be proved by record and by the right record."

And there also appears from the foregoing how constitutional law, contract, evidence, pleading the rules of procedure are interactions, how the law is an entirety. Cases illustrating applications of collateral attack are Windsor v. McVeigh, 93 U. S. 274; Clem v. Meserole, 44 Fla. 234, 103 Am. St. Rep. 145; Pennoyer v. Neff, 95 U. S. 714; Williams v. Berry, 8 How. 495; Clark v. Sires, 193 Mo. 502; Munday v. Vail, 34 N. J. L. 418; Reynolds v. Stockton, 140 U. S. 254;, Fish v. Cleland, 23 Ill. 237; Israel v. Reynolds, 11 Ill. 218. These cases are the datum posts of the law. Of the fifteen hundred thousand cases and current arrivals of 40,000 per year, the notably widely cited and well founded cases are the beacon lights to study. The law has its "land mark cases."

Finally, the guarantees of the unwritten constitution depends upon collateral attack the general demurrer, and the motion in arrest. The literature of collateral attack should present the morality, the intensive usefulness. the history and the philosophy of law. Collateral attack is a conserving principle of pro

cedure, of jurisprudence. The maxims and cases that illustrate it are datum posts. These are the bulwarks of all our rights and of all protection from government. These can not be dispensed with in a government of laws. They are the greatest gift of antiquity to posterity. The true history of the law will clearly illustrate the importance of collateral attack as an ever ready and awaiting defense against arbitrariness exercised by the government. And this is Mr. W. T. Hughes' second conserving principle of procedure.

NOTES OF IMPORTANT DECISIONS.

INSURANCE

WHETHER AGENT AS WELL AS CORPORATION MUST TAKE OUT LICENSE TO DO BUSINESS. A very interesting question, at least to insurance solicitors, is that decided in the recent case of Town of Dothan v. Hornsby, 43 So. Rep. 714, where the Supreme Court of Alabama holds that where defendant did not solicit insurance in a town for himself, but only as agent of three foreign insurance corporations, each of which had paid the license imposed by an ordinance requiring every person, firm or corporation, soliciting insurance for himself, or as agent for any person, firm or corporation, to take out a license, etc., defendant was not liable for failure to take out an individual license.

The court in the course of its opinion had occasion to express itself on this question as follows: "The defendant did not solicit insurance in the town for himself, and did it alone as the agent of the three companies which, as agent, he represented. Nor did he receive an application for insurance for himself, or 'as the agent of any person, firm or corporation, life, fire or accident insurance, in the town of Dothan,' but he solicited and received application to and for the three companies he represented. The applications were not to him, as agent, but to the companies themselves, who received the applicationsand passed on them. The contention of defendant is, that whatever he did in and about the soliciting of insurance in said town, was as the agent of said companies, and not as an individual. Corporations, we all know, can do business only by and through agents. It is a conclusion fairly drawn from the ordinance quoted, that it was not the purpose of the town authorities to require a license from these companies, and also a license from the agent by and through whom their business was done."

THE RIGHT OF RECOVERY FOR PARTIAL PERFORMANCE OF ENTIRE CONTRACTS.

That the practical and every-day questions of the law are often apparently the most difficult and the most unsettled is well illustrated by the attitude of the various courts of last resort toward the right of one to recover for the partial perform ance of an entire contract. An examination of the decisions reveals that here is indeed "law grown a forest, where perplex, the byways and the brambles vex." The confusion may be accounted for in large measure by the well-meant though blind endeavor of some of the courts to decide the cases according to what they conceive to be general principles of justice and equity, groping in the byways of a nice adjustment of conflicting equities and imperfect moral obligations and wandering far from the cardinal highways of the law. These great highways are certain fundamental principles, such as that courts are for wronged persons; that an express contract excludes an implied contract in relation to the same matter; that the probata must follow the allegata; that the law is grounded in reason, etc. Some of these principles are tersely expressed in the maxims, which the author of Hughes on Procedure has aptly styled "datum posts of the law." The object of this article will be to apply these fundamental principles to some of the questions arising within its subject and to criticize some of the decisions which, because of disregarding these great principles have become byways rather than highways, in the forest of the law.

First, an understanding of the terms "Entire Contract" and "Partial Performance" is necessary, for Ignoratus terminis, ignoratur et ars (Terms being unknown, the art also is unknown). Many pages have been written upon what is and what is not an entire contract, and much of the confusion in the decisions in regard to the right of recovery for a partial performance of entire contracts may be charged to a failure to discern the difference between entire and severable contracts. A good brief definition of an entire contract is found in the opinion in Widman v. Gay.1 It is: "An entire contract is one where, in the intention of the parties, full and complete performance on the one side constitutes the consideration for performance on the other." This definition and an emphasis upon the fact that the intention of the parties, as manifested by their acts and the circumstances of each particular case, is the prime controlling factor in determining whether the contract is entire or severable, together with a reference to a few valuable authorities cited in the foot note, must suffice, since a thorough dis

1 104 Wis. 277, 80 N. W. Rep. 450.

2 Wooten v. Walters, 110 N. Car. 251, 14 S. E. Rep. 734; Monographic note to Huyett & Smith Co. v. Chicago Edison Co., 59 Am. St. Rep. 277 et. seq.; Clark on Contracts, p. 657 et seq.; Atlanta & D. Ry. Co. v. Delaware Cons. Co., 98 Va, 503, 37 S. E. Rep. 13,