61. Negligence-Proximate Cause. plaintiff's decedent, delivering coal at defendant company's place of business, was caught and fatally injured by revolving shafting in full view from where he was working, despite failure to warn of shafting, defendant was liable.-Hunt v. Economic Machinery Co., Mass., 120 N. E. 416.

not

62. Notice Efficacy of.-The rule of notice is that knowledge of facts which, if followed up, would disclose the true state of facts, is efficacious. In re Scruggs Bros., U. S. D. C., 252 Fed. 322.

63. Pardon-Restoration to Rights.-A full pardon restores one to all his civil rights, and blots out the existence of guilt.-United States v. Commanding Officer of 78th Division, U. S. A., U. S. D. C., 252 Fed. 314.

64. Partnership-Adventure.- -Where debts of partnership have been paid, its profits distributed, and its accounts closed, one partner may maintain action against another for a part of the profits from a venture, not involved in partnership accounting, without applying to court of equity for an additional accounting. -Dill v. Flesher, Okla., 175 Pac. 359.

68. Condition Precedent.-Tender of dividends received by seller on stock sold by him to defendant, and by defendant pledged as security for purchase price, was not a condition precedent to suit to rescind for nonpayment of purchase price.-Atkins v. Garrett, U. S. D. C., 252 Fed. 280.

69. Food.-Food for immediate use, which is not fit to eat, is not merchantable as food. Friend v. Childs Dining Hall Co., Mass., 120 N. E. 407.

70. Sale by Description.-Generally, where goods are sold by description, and the buyer has not had an opportunity of inspection, the goods must not only in fact answer the description, but must also be salable or merchantable under that description.-Rinelli V. Rubino, Ind., 120 N. E. 388.

71. Shipping-Charterer of Launch.-Where the owner of a gasoline launch charters it to another for the purchase and transportation of fish, he can not recover from the charterer for the loss of the launch, where the loss was occasioned by the negligence of his own servant who was in charge.-Boe v. Hodgson Graham Co., Wash., 175 Pac. 310.

72. Specific Performance-Exclusive License. -Where contract provides for giving by defendant of exclusive license to manufacture under a patent, and for plaintiff giving from time to time, as royalties increase, additional security, specific performance by defendant of the agreement should not be decreed, whereby the court assumes protracted supervision of its performance, but only the giving of the license should be ordered.-Life Preserver Suit Co. v. National Life Preserver Co., U. S. C. C. A., 252 Fed. 139.

Right.-To en

74. Subrogation—Equitable title a person to invoke the equitable right of subrogation, he must either occupy the position of a surety or have made a payment under an agreement that he should hold and receive an assignment of the debt as security; and hence a stockholder, who advanced money to a corporation to enable it to discharge a mortgage, is not entitled to subrogation to the rights of the mortgagee.-Karasik v. People's Trust Co., U. S. D. C., 252 Fed. 324.

75. Telegraphs and Telephones.-Interference. Where public telephone line contracted to maintain private wire along its poles, its removal thereof to a different series of pegs on the poles, if without substantial interference with the efficiency of the wire when properly connected, was entirely within its rights.-Anson v. Fobes, Iowa, 169 N. W. 35.

76. Usury-Law of Place of Contract.-Where notes and a mortgage were executed in Chicago, Ill., though dated at Portland, Ore., the controlling transactions being in Chicago and the notes being made payable there, where the trustee was a resident, the documents were Illinois contracts, controlled by Illinois law as to usury.-Brown v. Crawford, U. S. D. C., 252 Fed. 248.

77. Vendor and Purchaser Estoppel.Where wife, suing for divorce, impleaded husband's brother, to whom husband had transferred an interest in land, alleged to have been done with fraudulent purpose of defeating a charge on the land for alimony, suit money, and maintenance, the alimony decreed constituted a charge on the land, where the brother had not participated in fraud, to the extent of the purchase money brother owed when impleaded, at which time he was given notice of the charge on the land.-Gollehon v. Gollehon, Va., 96 S. E. 769.

78.

Waters and Water Courses.-Boundary Lines.-Deed having named as boundary a swamp consisting of stream with margin of swamp, it may be shown that parties intended edge of swamp rather than stream as boundary, and, if that is made to appear, effect will be given intention.-Wheeler v. Wheeler, S. C., 96 S. E. 714.

79. Wills Agreement to Devise.-A father's agreement that, if a son would sell out and remove to Kentucky, he would give him a farm, was satisfied by the father's devise of a farm of 70 acres, so that the son was not entitled to recover damages resulting from his sale and removal.-Brewer's Adm'r v. Brewer, Ky., 205 S. W. 393.

80. Heirs.-The word "heirs" is a technical term, and is used to designate the persons who would by the statute succeed in the real estate, or, in California, estate of any kind, in case of intestacy.-in re Watts' Estate, Cal., 175 Pac. 115.

$1.-Life Estate.-Where words in a will indicate an intention to limit the estate granted to the life of the devisee, and they fairly import that purpose, it must be assumed that testator intended to devise merely a life interest. -Southwick v. Southwick, Iowa, 168 N. W. 807. 82. Limitation Over.--Where a life estate only is devised, and the life tenant given a power of disposition, a limitation over of such of the property as may remain undisposed of by him at his death, is valid.-Trustees Presbyterian Church, Somerset v. Mize, Ky., 205 S. W. 674.

83.- Residuary Clause.-Where, by residuary clause, testatrix gave to M. S. to hold in trust all residue of personalty, directing distribution to children of L. B. S. and M. S. "or their descendants," independently of Rev. St. c. 79, § 10, testatrix provided lineal descendants of child dying in her lifetime should take parent's share. Strout v. Strout, Me., 104 Atl. 577.

Central Law Journal.

ST. LOUIS, MO., JANUARY 10, 1919.

THE INDETERMINATE SENTENCE..

The new era in the life of the world following immediately upon the treaty of peace is certain to bring with it fundamental changes in the law as well as in the institutions of society and government. The duty of the lawyer will be to oppose changes that have no other merit than novelty. On the other hand, he will probably be among the first to appreciate the value of changes which will strike down practices intrenched in precedent but which have their origin in feudal arrogance or superstitious ignorance.

No branch of the law is in greater need of a new survey of its original foundations than the law of crimes. But this is a task we do not presume to undertake. "To disentangle and trace all the aspects and details of modern criminal law," says Professor Wigmore," in their development amidst the congeries of law, morals, religion, and custom, in successive past epochs, is a huge and delicate task, which might well make the boldest historian halt."

But many brave spirits, since the time that John Howard started his prison reform agitation in England, have opened up many pathways into the dark labyrinth of criminal law and punishment. Probably the most conspicuous recent discovery is that crime is the result of disease-a product of a defective mentality, usually an absence of will power. "Crime," says Prof. Keedy, of the University of Pennsylvania, “is generally the failure of the individual to re strain an instinctive impulse." With that idea as a starting point the principle of group retaliation involved in the punishment of crime is giving place to the idea of correction and rehabilitation of the individual.

While we are quite convinced that the fear of punishment deters many persons

we

from the commission of crime, are not certain whether such fear serves that purpose in the majority of cases, especially after the first offense. A survey of finger prints at Blackwell's Island, in 1915 shows 48 per cent of all inmates between 1911 and 1915 had been there previously and that 25 per cent had been committed four or more times in that period. One woman was committed 104 times in 1914 for immorality! This large percentage of socalled "repeaters" proves not only that imprisonment is no deterrent but actually encourages crime by developing the criminal instinct.

The imposition of fines is, with the exception of a few conventional offenses, such as violating speed laws, etc., worse than useless. It is a sort of imprisonment for debt where the poor languish in jail and the rich escape. In some cases the fine is simply regarded by the gambler or the prostitute as a sort of license fee for continuing their business, which in most cases does not appear larger than the traffic is willing to bear, especially if thereby it is able to eliminate competition and to create for itself a sort of monopoly in crime.

Among many worthy suggestions for the reform of our criminal law to all of which, of course, we cannot refer at this time for lack of space, we wish to emphasize the importance of adopting, and extending the principle of the indeterminate sentence as being urgent and necessary to the future progress of reform in the administration of the criminal laws. To illustrate the importance of this reform, it is related that in one state, where it is optional with the court to impose an indeterminate sentence or not, the defendant, a prostitute, pleaded to be sent to jail for a definite period rather than to be sent to an industrial farm under an indeterminate sentence. The explanation of the strange request is simple. The unfortunate woman was wedded to her life of sin which was as hard to give up as it was for the drunkard to give up his drink or

the opium eater to be deprived of his drug. It is clear, therefore, that for first offenders, the indeterminate sentence, coupled as it must be with supervision by a board of guardians or officials who seek to correct the habits of life and thought of the offender, is likely to prove to be a reform of great importance.

The main objection to the indeterminate sentence on the part of some lawyers is that it interferes with the prerogative of the court to determine the extent of the punishment to be assessed for crime. It is difficult to show to those who are imbued with the retaliatory and deterrent idea of punishment that a new conception. is involved in the indeterminate sentence, towit, the correction and reform of the individual and his separation from old offenders whose cases are often hopeless. The indeterminate sentence, as is well known, treats criminals in relation to imprisonment as physicians treat sick men in relation to hospitals. The patient is sent to a hospital until cured or proved incurable.

This is the modern and revolutionary attitude to crime. It does away with

the idea of retribution and substitutes the idea of helpfulness.

The objection that the indeterminate sentence adds to the length of term of imprisonment is true only in a sense. Of course the term for every offense will be and must be long enough to effect a change in the moral and mental attitude of the offender; but if it prevents the offender from becoming a "repeater," or a confirmed criminal, crowding our jails year after year on repeated commitments, society gains in the long run in the mere matter of expense necessary to administer the criminal law, aside from other considerations, and the offender himself can well afford to spend a few extra months if necessary (the duration of his confinement being wholly dependent on his good conduct) if thereby he is made better able to control his impulses and to fit himself for a life of usefulness.

NOTES OF IMPORTANT DECISIONS.

LIABILITY OF MASTER FOR SERVANT'S VIOLATION OF LAW IN EMPLOYING CHILD UNDER AGE.-The old rule that a master is liable for the crimes of his servant only when he has authorized or connived at their commission was strained to the breaking point by the New York Court of Appeals in the recent case of People v. Decker Company (not yet reported) 60 N. Y. L. J. 1025.

New York has a child labor statute which prohibits the employment of children under 14 years of age. Defendant is a milk concern in New York City employing 125 drivers who distribute its products. The evidence disclosed that certain drivers against the express orders of the company were in the habit of employing boys to assist them in their work and paid them out of their own pockets. The question was: Is the company criminally liable in such cases? The lower appellate court (Supreme Court) divided on the answer and affirmed a conviction of the company by a majority vote. The Court of Appeals affirms this ruling with the judges divided not on the result but in giving good and sufficient reasons for their holding.

The problem is manifestly a difficult one. On one side are the cases of crimes which are chiefly personal in their nature, the punishment of which is directed solely against the one who commits them. On the other hand are the cases where the act or condition is prohibited and punishment is visited on the one who has the power to prevent it and not on the one who actually conmits it. Under this latter head may be classified the cases of liability for selling adulterated articles, for maintaining a nuisance, for selling liquor to minors, etc. In these cases the crime is committedin the course of the defendant's business and may be said to be a natural result of the business which he has undertaken and for which result he should be held responsible.

The Court of Appeals bases its decision on the latter rule, adding, however, another element quite essential to support its argument that where a duty exists to inquire there is no safety in ignorance. With this premise the court then announces what we believe is an unusual statement of the rule of criminal liability in such cases. The court said:

"The personal duty rests on the employer to inquire into the conditions prevailing in his business. He does not rid himself of that duty because the extent of the business may preclude his personal supervision and compel reliance on subordinates. He must then stand or fall with those whom he selects to act for him. He is in the same plight, if they are delinquent, as if he had failed to abate a nuisance on his land (R. v. Stephen, L. R., 1 Q. B. 102; Tenement House Dept. N. Y. City v. McDevitt, 215 N. Y. 160, 167, 168), or had failed to furnish a safe place of work (Labor Law, sec. 200). It is not an instance of respondeat superior. It is the case of the non-performance of a non-delegable duty (Hankins v. N. Y., L. E. & W. RR., 142 N. Y. 416, 420). Prosecutions and fines for nuisances, created by an agent in the absence of the owner, have long been known to the law (R. v. Stephen, supra; R. v. Medley, 6 C. & P. 292; Smith, Master and Servant, 5th ed., 272, 279). 'If my servant throws dirt in the highway I am indictable' (Holt, C. J., in Tuberville v. Stampe, 1 Ld. Raymond, 264). Other illustrations of like remedies abound (Comm. v. Sacks, 214 Mass. 72; Comm. v. Mixer, 207 Mass. 141; State v. Gilmore, 80 Vt. 514; Heilton v. McSweeney, 1905, 2 I. R. 47; Davis v. Bemis, 40 N. Y. 453, 454, note, citing AttorneyGeneral v. Siddens, 1 Cr. & J. 219). In these and like cases the duty to make reparation to the state for the wrongs of one's servants, when the reparation does not go beyond the payment of a moderate fine, is a reasonable regulation of the right to do business by proxy."

The court is evidently controlled by the thought that this case is not one of laibility for an act committed but for a condition suffered to exist, such as a nuisance to which, as an instance, the opinion continually refers. But the analogy is hardly a logical one. The unauthorized employment of a child by the agent against the wishes of the master does not arise naturally out of the character of the defendant's business in this case. the driver of a wagon is not delegated any powers of employment; he is charged simply with the duty to deliver milk.

То

It seems to us that the casual employment of boys by milk drivers along their routes and away from their plants and against the clear prohibition of their employer does not make the employer criminally liable under a child labor law. Construing the act reasonably it is clear that it is intended to prevent the employment of children and to hold the proprietor of any plant liable for their employment on the ground that they could hardly be working in his plant without his permission. But where this employment of the child occurs outside of the master's plant and by one who is not authorized to engage employes, the master is clearly not responsible. Here the driver, relieved of the direct supervision of his master, is engaging in a transaction of his own, wholly apart from powers delegated to him and for his own benefit and should himself be held personally liable.

SHERIFF-LIABILITY FOR ESCAPE OF PRISONER. "Charity covereth a multitude of sins" may be good theology but is bad law. This is distinctly so averred in the case, In re O'Rourke, 251 Fed. Rep. 768.

In this case the sheriff released a prisoner committed to him by the federal court, for eight hours a day for forty days, that he might work in the mines to earn sufficient money to take care of his family. The prisoner escaped.

The court admits that the sheriff acted thoughtlessly and from generous motives and, therefore, without intent to violate the commitment. But the court, holding the sheriff's good motive not a sufficient defense, says:

"It was respondent's plain duty to continuHe ously imprison the convict for the term. failed, not only committing contempt of this court (that is, violated its order), but also the offense of escape, whether tested by federal or state law. That charity, which covereth a multitude of sins, excuseth not here. Respondent, free to gratify his charitable disposition from his own purse, erred when he did so at the expense of the administration of justice and of the United States."

The common law was severe upon officers who showed even the simplest courtesies to a prisoner, as where they permitted him to occupy their own apartments, People v. Stone, 10 Paige (N. Y.) 610; or to go out and find a bondsman or a witness, even if he returns, Delt. C. 159, 2 Hawk. P. C. c 1910. To allow the prisoner his liberty, even for humanitarian reasons, is a voluntary escape and a more serious offense, on the part of the officer than a negligent escape.

THE RIGHTS AND IMMUNITIES OF

A SOVEREIGN RULER.

In these days of falling thrones and dismembered empires the press has often referred to the responsibility of ruling sovereigns and in some instances has urged criminal prosecutions for acts of felony. Likewise in a recent issue of the Central Law

Journal, Mr. Thomas J. O'Donnell1 insists upon proceedings by indictment against the crowned head of the German empire.

In Great Britain indictments are found against the ruler and the admiralty head of Germany for the destruction of lives caused by sinking ships by torpedoes. This was somewhat remarkable in view of the fact that what lawyers have most admired in the British plan of government has been their system of jurisprudence, administered by an absolutely fearless and independent judiciary. . From one of the English journals it seems, when a consul by

the name of Ehlert was convicted at Sunderland of treason by a jury during the war, on appeal the verdict was set aside as not sustained by the evidence. The present Lord Chief Justice of England rendered the decision. Popular clamor demanded a conviction but the court decided impartially on the evidence and strictly in accordance with law.

At the threshold we find a fixed distinction between acts performed individually as a citizen, and things done pursuant to authority vested in a person virtute officii. Rex non potest peccare-the king can do no wrong-has come down to us from Roman times. The sovereign is acting in a representative capacity; what he does is the act of his government. Like a judge, who, when acting officially, commits an error which may cause great loss or even deprive a citizen of liberty or life, yet he is not responsible for his mistakes and cannot

(1) Vol. 87, page 348.

be called personally to account for them, although he should act maliciously."

It has been often decided that an inde

pendent sovereign traveling in England

could not be sued nor held to answer criminally. This is what Edward Manson says in his instructive work "The Builders of Our Law:" "We have lately had our courts refusing jurisdiction over an independent sovereign who had been masquerading incognito in England as Mr. Baker, and making promises of marriage. In the Duke of Brunswick vs. King of Hanover, we have the same principle affirmed by Lord Cottenham. The odd thing in this case was that the defendant sovereign, the King of Hanover, was also a British subject, but the acts done by him were done in his sovereign capacity."

Chief Justice Marshall declared in The Exchange vs. McFadden, that "the exemption of the person of the sovereign from arrest or detention within a foreign territory is universally admitted." A foreign sovereign cannot be sued for infringement of a patent. Nor will a defendant sovereign be prejudiced in his rights if he refuses to appear in an action. Likewise the French courts have applied the same principle."

If the offending sovereign be present, refuse to abide by the laws, or commits acts that endanger the peace of the foreign state he may be requested to depart or expelled by force, if necessary.10 Otherwise the remedy is to apply to his government for redress through diplomatic chan