Imágenes de páginas
PDF
EPUB

directors, who are the managers of the corporation and the persons in whom the control of its business and property is vested. Boone Corp,, § 144; Titus v. Cairo, etc., R. Co., 8 Vroom, 98-102; Leggett v. N. J. Banking Co., Saxt. 541. The president of a corporation, organized for business purposes, is its chief executive officer, and in virtue of his office has authority to perform all acts of an ordinary nature, which by usage or necessity are incident to his office, and may bind the corporation by contracts in the usual course of business. His authority to act for the corporation may also be enlarged beyond those powers which are inherent in his office, but those are cases where the agency of the officer has arisen from the assent of the directors, from their consent and acquiescence in permitting him to assume the direction and control of its business, and are instances of the application of the principle that a principal will be liable for the acts of his agent within the apparent authority conferred upon him. Taylor Corp., § 202, 236-244; Ang. & Ames Corp., $$ 299-302; Martin v. Webb, 110 U. S. 7. That the president of a corporation is the owner of nearly all its capital stock, and is its superintendent and treasurer and the active manager of its affairs, and was accustomed to borrow money for the company's use, will give him no power to incumber its property by a mortgage or judgment confessed for money borrowed. Stowe v. Wyse, 7 Conn. 214; C. & N.W. R., etc., Co. v. James, 24 Wis. 388. The corporation having become insolvent, its receiver, as the representative of creditors, has the capacity to take the objection that a judgment against the corporation by confession was not obtained in such a manner as to be binding upon the corporation. Vail v. Hamilton, 85 N. Y. 453.

Stokes v. N. J. Pottery Co. Opinion by Depue, J. CONSTITUTIONAL LAW LIMITATION-ANTECEDENT OBLIGATIONS.- The limitation in the act of March 23, 1881 (Pamph. L., p. 184), that suits on bonds should be commenced within six months from the date of the sale of mortgaged premises, is so connected with the other parts of the act as to be inseparable, and as to antecedent obligations, is unconstitutional. In Baldwin v. Flagg, 14 Vroom, 495, the seoond section of the act was construed, and the court say that as applied to antecedent obligations, it is in violation of the constitutional prohibition of the Legislature to pass any law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made, for the reasons that the act uot only postpones the obligee's remedy on his bond until the foreclosure proceedings are terminated, but also impairs the value of the mortgage security by subjecting the purchaser's title to conditions of redemption after sale which must diminish the vendible value of the mortgaged premises. Coddington v. Bispham, 9 Stew. Eq. 574, in the Court of Errors and Appeals, approves this construction, and settles its authority. In these cases, it is now said, the court has passed on the effect of the law as it attempted to control the obligee and mortgagee's right to prefer either his bond or mortgage by suit in enforcing his remedy for the debt thereby secured, but it does not directly say, because it was not called for by the facts of these cases, that when this preference is made by first foreclosing the mortgage the holder of the bond is not subject to the limitation to bring his action on it within six months from the date of the sale of the mortgaged premises. It is claimed by this plea, and the argument for its legality, that the limitation to the suit on the bond after forealosure is separable from the faulty parts of the statute. This supposed distinction is based on the rule that where one part of a statute is unconstitutional because it is not within the scope of legislative power

to pass it, another part of the same act may not be obnoxious to the same objection but may be enforced as if made in a different statute. But the principle thus invoked is subject to the limitation that the enactments thus separated as constitutional and unconstitutional must be wholly independent of each other. If they are so connected and dependent as to warrant the belief that the Legislature intended them as a whole, they must stand or fall together. Warren v. Charlestown, 2 Gray, 84-89; State v. Commissioners of New Brunswick, 9 Vroom, 320; State v. Kelsey, 15 id. 1, 29. Morris v. Carter. Opinion by Scudder, J.

MICHIGAN SUPREME COURT ABSTRACT.

MASTER AND SERVANT-RISKS OF EMPLOYMENT— CONDUCTOR ASSUMING CONTROL OF ENGINE INJURY то BRAKEMAN. When an accidental injury results to a servant from an unexpected cause that arises in the course of his employment, he must be deemed to have assumed the risk thereof, and is not entitled to recover therefor. The engineer and fireman in charge of the locomotive of a railroad train having temporarily left their respective posts, the conductor, who it was alleged was incompetent for the purpose, undertook to take the place of the engineer, and ordered a brakeman to make a coupling, and while he was obeying this order, and in consequence of the unskillfulness of the conductor, the brakeman was injured. Held, that he was not entitled to recover, in an action against the railroad for such injury. In this case, the plaintiff says the engi neer and fireman temporarily left their posts for some purpose unknown to the plaintiff. It is not charged that they did so with the company's consent, or that there was any wrong connected with their leaving, for which the company was responsible. Suppose they had gone off on a strike; may other persons employed on the train refuse to assist in moving it out of the way of other trains? Surely this question must be answered in the negative. If under any circumstances, the conductor may rightfully take charge of the engine, this suit must fail, as there is no allegation in the declaration to show that in this case he was not justified. And he, being the person responsible for the safety and management of the train, must be allowed a certain discretion in deciding upon emergencies, and the presumption must favor his action. And when he acts rightfully, it is contemplated in the employment of his subordinates that they, within their several spheres, shall assist him. That there is nothing in the Bayfield case, which in the opinion of the judges who decided it, conflicts with this view, is apparent from the case of Greenwald v. M., H. & O. R. Co., 49 Mich. 197; S. C., 13 N. W. Rep. 513. In that case a fireman was ordered to perform the engineer's duty, and while doing so an injury occurred to a brakeman, for which suit was brought. The chief justice, speaking for the court, said the order was a proper one beyond question; " and the case was disposed of on that assumption. But as respects the propriety and rightfulness of the order, that case stands upon exactly the same grounds with this. The case of Houston, etc., R. Co. v. Myers, 55 Tex. 110; S. C., 8 Am. & Eng. R. Cas. 114, is directly in point here. That case differs from this only in the fact that it was the fireman and not the conductor who was managing the engine, and who was alleged to be incompetent for the duties of the engineer. A brakeman, who was injured while the fireman was thus in charge, brought suit against the railroad company, but was held not entitled to recover. The judge of the Superior Court took the same view of this case, and we think his judg

[ocr errors]

ment should be affirmed. The opinion of this court in Detroit Savings Bank v. Zeigler, 52 Mich. ; S. C., 1 Am. & Eng. Corp. Cas. 333, contains much respecting mutual assistance by subordinates in special cases, that applies with force to the case of servants in various capacities on a railroad train. Rodman v. Mich. Cent. R. Co. Opinion by Cooley, C. J. [Decided Oct. 15, 1884.]

MASTER AND SERVANT-CONTRACT-TERM OF SERVICE-EVIDENCE-QUESTION FOR JURY.-Plaintiff entered into the service of defendant on November, 1880, under a written contract dated October 29, 1880, on a salary" of $2,000 per year, payable in monthly payments, "and continued in such service until March 21, 1883, when he was discharged. Held, in an action by plaintiff to recover the balance of the year's salary, that the contract was admissible in evidence, and that whether or not the hiring was from year to year or from month to month was a question for the jury. Tallon v. Grand Portage, etc., Co. Opinion by Sherwood, J.

[Decided Oct. 22, 1884.]

PARTNERSHIP-WHAT CONSTITUTES.-When a contract between parties contemplates action to be taken at once and continuously for the joint benefit, one party to furnish the money in advance and the other to give his time and attention to putting up machinery to carry on the proposed enterprise, a present partnership is created, and not merely an agreement to form a future copartnership entered into. The purpose must be derived from the nature of the agreement, and not from the meaning of the words as present or future, standing alone. Kerrick v. Stevens. Opinion by Campbell, J. [Decided Oct. 22, 1884.]

CONTRACT WITHOUT

MUNICIPAL CORPORATIONS FORMALITIES REQUIRED BY CHARTER-INTERVENTION OF ATTORNEY GENERAL-INJUNCTION.-Where the formal provisions of a city charter have not been followed, preliminary to entering into a contract for lighting the streets of the city, no bad faith or intentional abuse of authority being charged or shown, the State has no interest that will justify the intervention of the attorney-general by information to enjoin the corporate authorities from carrying such contract into execution. In Attorney-General v. City of Detroit, 26 Mich. 263, we said that "every misuse of corporate authority is, in a legal sense, an abuse of trust; and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it." But in the same case it was added: "Where however the attorney general is to intervene in corporate affairs on behalf of the State, the abuse should be one of a substantial nature, and not of a character merely technical or unimportant. It should appear that the public has a substantial interest in the question. The right involved should be a public right, or at least not a private right merely. The wroug donelor attempted, if it consist solely in a misuse or misappropriation of funds, should be either one involving questions of public policy, or where that is not the case, the amount involved should be something more than merely nominal; something that it is not beneath the dignity of the State to take notice of and protect by such a proceeding. The remedy is somewhat extraordinary, and substantial grounds ought to appear to justify a resort to it." Atty. Gen. v. City of Detroit. Opinion by Cooley, C. J. [Decided Oct. 22, 1884.]

JURISDICTION-GARNISHMENT NON-RESIDENCE OF PRINCIPAL DEFENDANT-PERSONAL JUDGMENT.-The

courts of this State can acquire jurisdiction to render a personal judgment against a defendant when he is a non-resident, and is not served with process within its jurisdiction, but is served out of the jurisdiction with notice of suit having been commenced against him, and of garnishment proceedings against his debtors within the jurisdiction; and a judgment so rendered will protect the garnishee against liability over to the principal defendant for the amount of any judgment rendered against him in the garnishment proceedings. It is a well-recognized principle that every State possesses exclusive jurisdiction and sovereignity over persons and property within its territory, and it may make laws to subject property situated within its limits, owned by non-residents, to the payment of claims due to its own citizens from them. Such legislation is based upon the necessity of the case, and the injustice which would result from permitting non-resident debtors to withdraw their property or assets from the jurisdiction of the State, and is a legitimate exercise of its authority to hold and appropriate the property of such debtors to satisfy the claims of its own citizens. 1 Smith Lead. Cas. (7th ed.) 1121, et seq. In the absence of personal service upon the non-resident defeudant within the jurisdiction of the court, or his voluntary appearance in the suit, the jurisdiction can extend no further than an inquiry as to the amount of the obligation of the non-resident to its own citizens for the purpose of showing the extent necessary to control the disposition of the property. Picquet v. Swan, 5 Mas. 35; Boswell's Lessee v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714; Freem. Judgm., § 573; Whart. Confi. Laws, §§ 649, 715; Am. Lead. Cases (5th ed.), 625, et seq. Jurisdiction in such cases is upheld mainly upon the ground that the object of the proceedings is to subject certain specified property to the payment of the demand, and are substantially proceedings in rem against the property, and are justified by principles underlying such proceedings. Whart. Confil. Laws, § 717; Waples Proc. in Rem, ch. 55, and cases cited above. One of the essential requirements to sustain proceedings in rem is that notice shall be given, either general to all the world, or special to the parties interested. The statute under consideration provides for such notice, and that it shall be served upon the party interested, and proof thereof filed before judgment can be entered. Moore v. Wayne Circuit Judge. Opinion by Champlin, J.

[Decided Oct. 15, 1884.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

WILL-TRUST-POWER OF DISPOSAL.-A testator, in

a will disposing of a considerable estate of his own aud of a larger estate of his deceased wife which he enjoyed for life, and as to which he had an absolute power of appointment, made this provision: "The residue of my estate, of every kind, and that left to me by my beloved wife by her last will and testament to dispose of as I deemed best, I direct my executors to divide into five parts." He then devised and bequeathed one part each to his two sons and one each to his three daughters. He further provided, "the three last parts of my estate are to be held in trust by my executors or trustees and the interest to be paid annually into their own (the daughters') hands." Testator further gave his daughters power to dispose of their shares by will if they should leave no children, but if either should leave children they were to take their mother's share at her death. If any of testator's children died before attaining majority, he provided

that his or her part of his estate should be divided among the survivors. Held, that the trust for the daughters' shares applies to the three shares of his wife's estate as well as of the testator's own estate. Rawle's Appeal. Opinion by Trunkey, J. [Decided April 21, 1884.]

BAILMENT-FRAUD-AGENCY.-A., an insolvent, entered into an agreement with B. to carry on his busi11088, which was that of a currier, as B.'s agent, and so held himself out to the world, bought leather, made it up, sold it, and then paid B. one cent per pound more than it was bought for. In a contest between a former creditor of A. and B. as to the goods, held, that the question whether A. was B.'s agent was properly submitted to the jury, there being no other evidence of fraud. Spanogle v. Doane. Opinion per Curiam.

[Decided April 21, 1884.]

ASSESSMENT PAYMENT UNDER PROTEST.-Where houses are erected on a private street in the city of Philadelphia, which has not been adopted by the city, and in which no water-pipe has been laid, the granting of a permit to connect with a water-main on an adjacent street is discretionary with the water department, and may be prohibited, unless a frontage assessment is paid for water-pipe to be afterward laid when the street is dedicated. Where under such circumstances plaintiff paid the frontage tax under protest, and afterward testified that the money was paid as a deposit, to be held in case the city should by ordinance direct a pipe to be laid. Held, this was not such an involuntary payment as would entitle plaintiff to recover the money back, until at least the city has had a reasonable time to lay down the pipe, and that demand should have been made to have the same laid down prior to the institution of a suit to recover the sum paid. Boswell v. City of Philadelphia. Opinion by Sterrett, J.

[Decided Feb. 4, 1884.]

WILL-HEIRS AND NEXT OF KIN-HUSBAND.-A testator in a will, which was distinguished throughout by strict legal accuracy in the use of terms, devised certain real estate in fee and bequeathed certain personalty absolutely to trustees in trust for his daughters for life, with a testamentary power of appointment to each over her share of his estate. In default of the exercise of such power he provided that the share of a deceased daughter should go to her children and issue. "In default of such will and child and children or issue of such, then" the testator directed "the principal shall go to the heirs or next of kin of the daughter so dying as provided by the intestate laws of Pennsylvania." Held, that the testator, having in apt and proper terms devised and bequeathed property to the "heirs and next of kin" of a daughter dying without children or issue, and without exercising her power of appointment, could not be deemed to have meant by those terms distributees under the intestate law, and that therefore the husband of a daughter so dying had no interest in such property. This doctrine is illustrated in various forms and circumstances in PatterBon v. Hawthorn, 12 S. & R. 112; Buckley v. Reed, 3 Harr. 83; Gibbous v. Fairlamb, 2 Cas. 217; Eby's Appeal, 3 Norr. 241, and other cases. The cases however do not at all conflict with those of the other class which hold that where technical words are used, and there is a subject to which they may apply, the technical meaning must prevail. Thus in Clark v. Scott, 17 P. F. S. 446, where a testamentary disposition was made quite similar to the one we are considering, this rule was strictly applied. On page 451, Sharswood, J., said: "The testator, Thomas P. Ash, after devising his residuary estate, real and personal, to several per

sons, declared that in case of the death of either of them before him the devise or bequest should not lapse, but shall go to,and be taken by the heirs, executors, or administrators of said legatees or devisees so dying, in the same manuer as if the same had been specifically devised.'" He was evidently aware of the distinction between real and personal estate. He has used throughout his will the words legally appropriate to each. All his legacies of mere personalty are by the words "give and bequeath," but when he comes to the residuary clause in which he blends both his real and personal estate, he is careful to use the words "give, devise, and bequeath," and adds a limitation to "heirs, executors, administrators, and assigns." We may infer then that in the substituted gift for the lapsed devise the word "heirs" was used in none other than its legal technical meaning. Apart however from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word "heirs" shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense." Other illustrations of this ruling are found in Ralston v. Waln, 8 Wr. 279; Por ter's Appeal, 9 id. 201; and Eby's Appeal in Wisler's Est., 14 id. 311. Ivin's Appeal. Opiniou by Green, J. [Decided April 28, 1884.]

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-ASSIGNMENT OF, BY FOREIGN EXECUTOR-ASSIGNEE MAY SUE.-A party to whom an executor appointed by a will duly probated in another State, but not probated in this State, has assigned a promissory note in accordance with a bequest in such will, may maintain an action on the note against the payee in this State. It does not appear whether or not the decedent was indebted to any resident of this State. It is insisted that a foreign executor cau not maintain an action in the courts of this State. For the purposes of this case this will be conceded; and this being done, it is further insisted that for the same reason the assiguee of such an executor cannot maintain such an action. Counsel cite and rely on Thompson v. Wilson, 2 N. H. 292; Stearus v. Burn. ham, 5 Me. 261; Dial v. Gary, 14 S. C. 573; S. C., 37 Am. Rep. 737. These cases sustain the proposition above stated. The reasoning upon which they are based largely is that the authority of an executor is limited to the State in which he was appointed, and that every State should prevent the removal of the property of an estate until it has been determined there are no creditors citizens of the State who are entitled to have such property appropriated to the payment of the indebtedness due them in accordance with the laws of the State in which they reside. There are authorities which announce a different rule, and it has been held that a foreign executor may assign a promissory note, and that his assignee may maintain an'action thereon in the courts of a State other than that in which the executor was appointed. Harper v. Butler, 2 Pet. 239; Wilkins v. Ellett, 108 U. S. 256; Rand v. Hubbard, 4 Metc. 252; Peterson v. Chemical Bank, 32 N. Y. 21; Owen v. Moody, 29 Miss. 79; Story Conf. Laws, § 359. The reason upon which these cases are based mainly is that the title to promissory notes belonging to an estate vest in the executor, and that he can do what the decedent could have done in his lifetime; that is, assign the note so as to vest the title in his assignee, so as to enable him, as such owner, to maintain an action thereon against the maker in the courts of any State in which the latter resides. This seems to us to be the better view, aud we therefore

[ocr errors]

adopt it, deeming it unnecessary to state at greater length the reasoning upon which the cited cases are based. Sup. Ct., Iowa, Oct. 8, 1884. Campbell v. Brown. Opinion by Seevers, J. [20 N. W. Rep. 745; see 26 Eng. Rep. 16.]

tion is groundless. Before the passing of the Judicature Act of 1873, as the Courts of Oyer and Terminer and Gaol Delivery were not parts of the Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it the record, not to its own but to another court. But by the 16th section of 36 and 37 Vict., ch. 66, these courts are now made. part of the High Court, and their jurisdiction is vested

LORD CHIEF JUSTICE COLERIDGE'S OPINION IN in it. The order of the court has been made to bring THE “MIGNONETTE” CASE.

THE two prisoners, Thomas Dudley and Edwin |

the record from one part of the court into this cham. ber, which is another part of the same court. The record is here in obedience to that order; and we are all of opinion that the objection fails. It was further objected that according to the decision of the majority of the judges in the Franconia case there was no juris. diction in the court at Exeter to try these prisoners. But in that case the prisoner was a German, who had committed the alleged offense as captain of a German ship. These prisoners were English seamen, the crew of an English yacht cast away in a storm on the high seas, escaping from her in an open boat. The opinion of the minority in the Franconia case has been since not only declared but enacted by Parliament to have been the law, and 17 and 18 Vict., ch. 104, § 267, is ab

of opinion that this objection likewise must be overruled. There remains to be considered the real question in the case, whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be any thing else was, to the minds of us all, both new and strange, and we stopped the attorney-general in his negative argument that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All no doubt that can be said has been urged before us, and we are now to consider and determine what it amounts to. First, it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state the doctrine that in order to save your own life you may lawfully take the life of another when that other is neither attempting nor threatening yourself, nor is guilty of any illegal act whatever. But if these definitions be looked at they will not be found to sustain that contention. The earliest in poiut of date is the passage cited to us from Bracton, who wrote in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide on which reliance is placed is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed, lingua vel facto; so that a man, like Hero

Stephens, were indicted for the murder of Richard Parker on the high seas, on the 25th of July in the present year. They were tried before my brother Huddleston at Exeter on the 6th of November, and under the direction of my learned brother the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment. The special verdict, after certain objections by Mr. Collins, to which the attorney-general yielded, as it is finally settled before us, is as follows: (His lordship then read the finding of the jury, and continued.) From these facts, stated with the cold precision of a special verdict, it appears suffi-solutely fatal to this objection. We are all therefore ciently that the prisoners were subjected to terrible temptation, to sufferings which might break down the bodily powers of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts yet more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned brother's notes. But this nevertheless is clear --that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that if the men had not fed upon the body of the boy they probably would not have survived, and that the boy being in a much weaker condition, was likely to have died before them. They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is shown that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and in fact made none. And it is not even suggested that his death was due to any violence on his part, attempted or even so much as feared against those who killed him. Under these circumstances, the jury say they are ignorant whether those who killed him were guilty of murder, and have referred it to this court to say what is the legal consequence which follows from the facts which they have found. Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First, it was contended that the conclusion of the special verdict as entered on the record, to the effect that this jury find their verdict in accordance with the judgment of this court," was not put to them by my learned brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold-first, that it is really what the jury meant, and that it is the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding; and secondly, that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office that this has been the form of special verdicts in crown cases for upwards of a century at least. Next it was objected that the record should be brought into this court by certiorari, and that in this case no writ of certiorari had issued. The fact is so, but the objec

Done to death by slanderous tongues, would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in that very passage, as to the necessity on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense, the repelling by violence, justified, so far as it was necessary for the object, any illegal violence used toward oneself. It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that which has always been and is now considered justification. "In all these cases," says he, "of homicide by necessity, as in the pursuit of a felon, in killing him that assaults to rob, or comes to burn or break the house, or the like, which are in themselves no felony."

1 Hale P. C. 4 and 91. Again he says, "that the necessity which justifies homicide is of two kinds-first, the necessity which is of a private nature; second, the necessity which relates to the public justice and safety. The first is that necessity which obligeth a man to his own defense and safeguard, and this takes in inquiries, first, what may be done for the safeguarding of a man's own life?" Then follow three other heads, not necessary to pursue. Lord Hale proceeds: "As touching the first of these, namely, homicide in defeuse of a man's own life, which is usually styled se defendendo," it is not possible to use words more clear to show that Lord Hale regarded the private necessity which justifies, and alone justifies, the taking the life of another for the safeguarding of one's own to be what is commonly called self-defense. But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For first, in the chapter in which he deals with the exemption created by compulsion or necessity, he thus expresses himself: "If a man be desperately assaulted and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit of the crime and punishment of murder if he commit the act, for he ought rather to die himself than to kill an innocent. But if he cannot otherwise save his own life, the law permits him in his own defense to kill the as. sailant, for by the violence of the assault and the offense committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector-" cum debito moderamine inculpata tutela." Hale P. C. 51. But further still, Lord Hale in the following chapter deals with the position asserted by the casuists and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity either of hunger or clothing, theft is no theft, or at least not punishable as theft, and some even of our own lawyers have asserted the same. 'But," says Lord Hale, "I take it that here in England that rule, at least by the laws of England, is false; and therefore if a person being under necessity for want of victuals or clothes shall upon that account clandestinely and animo furandi steal another man's goods, it is a felony and a crime by the laws of England punishable with death. Hale P. C. 1 and 54. If Lord Hale therefore is clearas he is that the extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it would have justified murder? It is satisfactory to find that another great authority, second probably only to Lord Hale, speaks with the same unhesitating clearness in this matter. Sir Michael Foster, in the third chapter of his discourse on homicide, deals with the subject of homicide founded in necessity, and the whole chapter implies-and is insensible unless it does imply-that in the view of the writer necessity and self-defense, which he defines as opposing force to force even to the death, are convertible terms. There is no hint, no trace of the doctrine now contended for. The whole reasoning of the ohapter is entirely inconsistent with it. In 1 East the whole chapter on "Homicide by Necessity" is taken up with an elaborate discussion of the limits within which necessity, in Sir M. Foster's sense, is a justification or excuse for homicide. There is a short section at the end (very generally and doubtfully expressed), in which the only instance discussed is the well-known one of shipwrecked men on a plank able to sustain only one of them; and the conclusion left by Sir E. East is entirely undetermined. What is true of Sir E. East is also true of Mr. Serjeant Hawkins. The whole of his chapter on "Justifiable Homicide" assumes that the only justifiable homicide of a private nature is in defense against force upon a man's person

[ocr errors]

or his goods. In the 22d section we are told again of the case of two shipwrecked men on a single plank, with this significant declaration from a careful writer, "It is said to be justifiable." So too Dalton clearly considers necessity and self-defense, in Sir Michael Foster's sense of that expression, to be convertible terms, though he gives without comment Lord Bacon's instance of two men on one plank, as a quotation from Lord Bacon, adding nothing. Again Staunforde says the necessity to justify homicide must be inevitable, and the example he gave to illustrate his meaning is the very same which is stated by Dalton, showing that the necessity he was speaking of was a physical necessity and self-defense and defense against physical violence. Russell on Crimes merely repeats the language of the oldest books, and adds no new authority or fresh considerations. Is there then any authority for the proposition presented to us? Among decided cases there is none. The case of the seven English sailors referred to by the commentator of Grotius and Puffendorf has been discovered by a gentleman of the bar, who has communicated with my brother Huddleston, to convey, if it conveys so much, the judgment of a single judge of the Island of St. Kitts, when it was possessed partly by France and partly by this country, somewhere about 1641. It is an event mentioned in a medical treatise published at Amsterdam, and altogether as an authority in an English court is as unsatisfactory as possible. The Ameri can case stated by my brother Stephen in his digest from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the ground that the proper mode of determining who was to be sacrificed was to vote on the subject by ballot, can hardly, as my brother Stephen says, be an authority satisfactory to a court in this country. The obser vations of Lord Mansfield in Rex v. Stratton, striking and excellent as they are, were delivered in a political trial where the question was whether a political necessity had arisen for deposing the governor of Madras; but they have little application to the case before us, which must be decided on very different considerations. The one real authority of former times is Lord Bacon, who lays down the law as follows: "Necessity carries privilege in itself. Necessity is of three sorts-necessity of conservation of life, necessity of obedience, and necessity of the act of God, the stronger. First, of the conservation of life, if a man steals viands to satisfy his hunger, there is no felony or larceny; so if divers be in danger of drowning by the casting away of some boat, and one of them gets on the same plank to keep himself above water, and another, to save his life, thrust him from it, whereby he was drowned, this is neither se defendendo nor misadventure, but is justifiable." On this it is to be observed that Lord Bacon's proposition, that stealing to satisfy hunger is no larceny is hardly supported by Staunforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited; and as for the proposition as to the plank and boat, it is said to be derived from the canonists. At any rate. he cites no authority for it, and it must stand upon his own. Lord Bacon was great, even as a lawyer; but it is permissible to much smaller men, relying upon principle and upon the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it may possibly be true, that if Lord Bacon meant to lay down the broad proposition that a man may save his own life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day. There remains the high authority of my brother Ste

« AnteriorContinuar »