« AnteriorContinuar »
circumstances the. e can be no injustice in credit mium could ultimately be paid by a surrender ing a borrowing member, who chooses to sur and cancellation of the stock when it reached par, render the stock pledged, with all that he has and that the stock could be brought to that conpaid thereon. This rule has been frequently ap dition by small payments thereon at stated interplied in Pennsylvania. North American Garden vals, together with the profits that would accrue to Assn. v. Tradesman's Bldg. Assn., 46 Pa. St. 493; such stock through the operations of the associaWatkins y. Association, 97 Pa. St. 514. But that tion. But the association, by reason of its insolva different rule, as to credits to be given, should ency, is unable to carry out its contract. It cannot be applied in solvent and insolvent corporations mature the stock. The inducement which caused is, we think, entirely clear. The rule is universal the respondent to offer the large premium has that when a corporation becomes insolvent there failed. Hence, whatever has been paid upon must be, or at least there may be, a loss to the such premium, if anything. should be credited to stockholder. And, from their very nature, the respondents. This we think is the better rule, certainty of loss in case of an insolvent building and it is amply sustained by the authorities last and loan association is greater than in many cited, although some courts have undertaken to other forms of investment. They deal only with apportion the premium, and treat a portion of it their members. Their capital consists exclu as earned. See Towle v. Society, 61 Fed. Rep. sively of sums paid by their members. They can- 446; Sullivan v. Stucky, 86 Fed. Rep. 491. But, not become insolvent in fact without an impair under what we regard as the better rule, respondment of that capital, and, if there be an impair ents claim that they should be credited with the ment, then the full amount of capital paid in can dues paid upon the shares of stock that were asnot be returned. That being true, every princi- signed as collateral to the payment of the preple of their organization requires that every dol mium. (It will be remembered that the premium lar of capital that has been paid in upon stock was included in the bond, but drew no interest.) subscriptions should bear its proportionate share We held in the Shain case and the authorities of the loss. In End. Bldg. Assns., $ 514, it is said : fully, sustain the proposition — that payments “The truth is that there is implied, in the very made upon stock that was pledged as collateral essence of the building association scheme, an security for the payment of the loan did not conagreement between the members of every as stitute payments upon the loan. This was held sociation, in the light of which all other agree upon the theory that the purchase of the stock ments, and all rules and by-laws, must be read, and the borrowing of the money were distinct and to which they must be conformed; and that and separate transactions. The stock was pur. is the agreement that all burdens shall be equally chased as an investment, and for the profits which borne, as well as all profits equally shared, -that it promised, and these profits inure to the benefit the whole enterprise shall be conducted and the of the purchaser alike whether the stock be rights and obligations of the participants in it pledged or unpledged. Goodrich v. Association, shall be adjusted upon a basis of strict mutuality, 54 Ga. 98. True, in the ultimate adjustment it equality, and fairness.” It is evident that if, in was the intention to exchange the stock for the cases of the insolvency of the association, all the bond. But, in the language of the New Jersey borrowing stockholders are to be credited on court of errors and appeals in Association v. their indebtedness with all the capital they have Hornbacker, 42 N. J. Law, 635, "until so ex: paid in, they suffer none of the impairment, and changed, they are distinct in legal contemplaultimately the entire loss must be borne by the tion, as well as in form. The stock is a collateral non-borrowing members, and thus the basis of security for, and not a credit on, the bond." No strict mutuality of burdens is entirely disregarded. reason, in law or logic, presents itself to us, why Equity cannot, therefore, under such circum the same rule must not apply to payments made stances extend to the debtor credit for all he has upon stock that is pledged to secure the payment paid upon his stock. This we think is the rule of of the premium. Such payments on stock are the authorities, as well as of reason. Eversmann not payments upon the premium. Hence in this v. Schmitt, 53 Obio St. 174, 41 N. E. Rep. 139; case nothing has been paid upon the premium Woblford v. Association, 140 Ind. 662, 40 N. E. bid, and there is therefore nothing in that behalf Rep. 694; Weir v. Association (N. J. Ch.), 38 Atl. with which to credit respondents. It. will be Rep. 643; Moran v. Gray, Id. 668; Curtis v. As noticed that in this case appellant is not seeking sociation, 69 Conn. 6, 36 Atl. Rep. 1023; Strohen to recover any of the premium. He asks only the v. Association, 115 Pa. St. 273, 8 Atl. Rep. 843; payment of the cash advanced, with certain inPost v. Association (Tenn. Sup.), 37 S. W. Rep. terest thereon, and taxes paid. The association 216.
having become insolvent, and having been in the But, viewing respondents in the light of bor hands of a receiver, it becomes the duty of that owers only, and turning to the contract, we learn officer to proceed to collect the assets of the asthat, for the privilege of receiving the loan, re sociation. It is his duty to close the business out. spondents agreed to pay a premium of an amount The expectations of both parties have been disequal to the cash received. That agreement was appointed. The contract is at an end. The inmade by reason of the inducements held out by terest upon this loan was paid, under the terms appellant, to the effect that both loan and pre of the contract, to November 8, 1895. The ap
pellant is entitled to recover the original loan, the amount of dues paid thereon, with five per cent. with the legal rate of interest in Minnesota, which interest, does not entitle the borrowing member, on is 7 per cent. from said November 8, 1895. the insolvency of the association, to bave applied, in Should respondents pay this amount, or should
an action by the receiver appointed for the association it be realized upon a sale of the mortgaged prop
to recover the debt, the amount of dues paid and in.
terest in part payment, the balance of the debt not beerty, respondents will, of course, become the
ing tendered. Price v. Kendall (Tex. Civ. App.), 36 absolute owners of the shares of stock which were 8. W. Rep. 810. The resident receiver of an insolvent assigned as collateral security, and will be en foreign association, appointed after an assignee had titled to a reassignment thereof. There is a been appointed in the foreign State, cannot collect claim made for taxes for the sum of $18.80, which from resident borrowers any premiums in the nature the court found were paid by plaintiff, and which of bonuses which fell due after the appointment of should also be included in the judgment.
the assignee, the agreement to pay them baving been The trial court will set aside its judgment here
made on the implied condition that the association
would continue to be a going concern. Curtis v. tofore entered in this case, and enter judgment
Granite State Provident Assn. (Conn.), 69 Conn. 6, 36 against the respondent Ella Cairns for the amount
Atl. Rep. 1023. Dues on shares of stock in an insolvheretofore indicated, with the usual decree of
ent building association, paid by resident members, foreclosure as to all the respondents. It is so or who were also borrowers on mortgage security, bedered. Reversed. All concur.
fore the appointment of an assignee for the associa
tion, cannot be credited as payments on the mortgage NOTE.- Very Recent Cases on the Rights and Lia debts, since, as members, they are bound to contribute bilities of Borrowers from Insolvent Building and to the expenses and losses, and a credit for such pay. Loan Associations.-Where a loan association be. ments would give them an undue advantage over noncomes insolvent, a borrower should be required to re borrowing members. Curtis v. Granite State Provi. pay the loan, with interest, and would be entitled, dent Assn. (Conn.), 69 Conn. 6, 36 Atl. Rep. 1023. On after the debts were paid, to a pro rata dividend with the insolvency and forced dissolution of a building a non borrower for what he has paid on his stock. association, premiums or bonuses in addition to interBrown v. Archer, 1 Mo. App. Rep. 465. Though the est on the loans and dues on the stock, paid by bor. appointment of a receiver for a building and loan as. rowers prior to the dissolution, should be credited sociation causes the debts due it by borrowing mem as payments on their debts to the association, though bers and the mortgage securities to mature, yet the the mortgages securing such debts expressly provide receivers cannot foreclose the same under the power that the premiums should belong to the association. of sale contained in the mortgage, the association Curtis v. Granite State Provident Assn. (Conn.), 69 alone being authorized to foreclose by sale. Strauss Conn. 6, 36 Atl. Rep. 1023. A borrowing member of an v. Carolina Interstate Building & Loan Assn., 117 N. insolvent association is entitled to set off against his Car. 308, 23 S. E. Rep. 450. In case of the insolvency debt only the excess of what he had paid against the of a building and loan association, borrowing members loan, over his share of the losses and expenses of the should be charged with the amount actually received association and the expenses of receiver. Knutson v. by them, with six per cent. interest, and credited Northwestern Loan & Building Assoc. (Minn.), 69 N. with the amount paid by them, whether paid as fines, W. Rep. 889. On winding up an insolvent building penalties, or weekly dues. Strauss v. Carolina Inter and loan association, a borrowing member is entitled state Building & Loan Assn., 117 N. Car. 308, 23 S. E. to be credited with whatever fines he has paid. Rep. 450. A borrowing stockholder paid to a build. Thompson v. North Carolina Building & Loan Assn., ing association his debt, as shown by a judgment note, 120 N. Car. 420, 27 S. E. Rep. 118. In distributing the on the basis of a settlement in which he was allowed assets of an insolvent building and loan association, a credits for payments on his stock as though the cor. borrowing stockholder is charged with the money poration were solvent. It was in fact insolvent at actually received by him, with interest from date of the time. The judgment, by neglect of the attorney, its receipt, and credited with all payments of interest was not satisfied. Held that, after the insolvency was and premium as of dates when made. He is not al. shown, he was not entitled to have the judgment rep lowed credits for amounts paid as dues on his stock, resenting the debt satisfied. Mechanics' & Working. but, after all liabilities of the company are paid, the men's B. & L. Assn. v. Swartz (Com. Pl.), 2 Lack. remaining fund is distributed pro rata among the Leg. N. 120, 5 Pa. Dist. Rep. 318. Where a building stockholders, whether borrowers or not, on the basis and loan association is insolvent, and unable to per. of the amounts paid by them, respectively, as dues on form its part of the contract with a borrowing mem. the stock. Post v. Mechanics' Building & Loan Assn. ber, it is entitled to the amount it loaned, with inter. (Tenn. Sup.), 97 Tenn. 408, 34 L. R. A. 201, 37 S. W. est thereon, less the amount paid by the mortgagor on Rep. 216. Ky. St. sec. 864, requiring borrowing memthe mortgage, whether in the nature of interest or bers of such associations to pay premiums, in addition premiums; and the installments on stock and fines go to legal interest, violates Const. sec. 59, subd. 21, forwith the stock. Twin Cities Nat. Building & Loan bidding the passage of special laws "to regulate the Assp. v. Lepore (Com. Pl.), 17 Pa. Co. Ct. Rep. 426. rate of interest." Simpson v. Kentucky Citizens' A borrowing member of a building and loan associa. Building & Loan Assn., 42 S. W. Rep. 834. A contract tion is not entitled, on the insolvency of the associa whereby a borrowing member of a building and loan tion, to have the amount of his dues paid in applied association agrees to pay premiums for each share borin payment of his debt, but must share pro rata with rowed upon, in addition to interest at the legal rate, is the other members. Price v. Kendall (Tex. Civ. usurious as to the premium, and can be enforced by the App.), 36 S. W. Rep. 810. A provision in the contract association only to the extent of the legal interest. between a building and loan association and a bor Simpson v. Kentucky Citizens' Building & Loan Assn., rowing member that, if the latter desires to have his 42 S. W. Rep. 834. In computing the amount due upon a shares of stock redeemed in the payment of his debt, mortgage, where the association is insolvent, the borthey are to be taken at a cash valuation not less than rower should receive credit for all his payments of in
terest or premium, but not of dues. Weir v. Granite Assn. v. Dowling, 74 N. W. Rep. 438. In the absence State Provident Assn., 38 Atl. Rep. 643. When all the of an agreement to the effect that a stockholder in a premium was deducted when the loan was made, and building and loan association may have his payments the association becomes insolvent, the borrower on stock applied to the extinguishment of bis loan should be charged with interest thereon, and credited debt, he has no legal right to demand that such pay. with all interest paid by him, including interest paid ments shall be so applied. Pioneer Savings & Loan upon the premium. Weir v. Granite State Provident Co. v. Everbeart, 44 S. W. Rep. 885. Where a borAssn., 38 Atl. Rep. 643. Where the insolvency of a rowing member of a building and loan association, loan association makes it impossible for a borrowing whose loan was to be repaid by maturing stock, made member to continue the payments of interest and all his payments and surrendered his stock certificate premium till value of the stock equals the loan, the at maturity, he was entitled to cancellation of the parties are remitted to the position of ordinary lender note and mortgage. Pioneer Savings & Loan Co. v. and borrower. Moran v. Gray, 38 Atl. Rep. 668. In Kasper, 52 Pac. Rep. 623. A borrower's note made to redeeming mortgaged premises from an insolvent loan a loan association, October 13, 1891, was payable three association, a borrowing member will be charged with years from date. December 10, 1893, in consideration the money actually received, with interest to the time of two months' extra premium and interest, the bor. of the insolvency, and be credited with interest paid rower was allowed to pay the whole debt. The on the amount received and the premium, and inter premium paid when the loan was obtained, and subest on the interest paid on the premium. Moran v. sequent payments, including that of December 10, Gray, 38 Atl. Rep. 668. A borrower is liable only for 1893, were largely in excess of the principal and three the amount of the loan with legal interest, provisions years' legal interest. Held, that the borrower could of the charter allowing any greater interest being in recover, as usury, all sums paid by him in excess of valid. Mutual Savings & Loan Assn. v. Owings, 43 S. reasonable dues for the maintenance of the associaW. Rep. 4:22. A contract between a borrower and a tion while a stockholder, the sum he specially agreed building and loan association provided that certain to pay in consideration of accelerated maturity, and payments "shall be credited as dues on stock, to be the principal, with legal interest to December 10, continued until the dues so credited, together with 1893. Locknane v. United States Savings & Loan Co., the dividends, shall equal the amount loaned.” Held, 44 S. W. Rep. 977. Usurious interest was paid with that the dues were payments on the loan. Stevens v. partial payments on a loan by a building and loan Home Savings & Loan Assn., 51 Pac. Rep. 986. One association up to January 25, 1894. Twenty-one who borrows money from a building and loan associa months thereafter an order was obtained permitting tion cannot set up, in defense to an action for the re. the association to sell the property which secured the covery of the same, that the loan was made in disre. loan. Held that, in computing the amount due, in. gard of a by law prohibiting the making of loans to terest on the loan should be included only to January any persons other than those who have been members 25, 1894, and dues and fines imposed thereafter should of the association for a stated period. Reynolds v. not be included, the contract being usurious. Crabtree Georgia State Building & Loan Assn., 29 S. E. Rep. v. Old Dominion Building & Loan Assn., 29 S. E. Rep. 187. The principle of mutuality, which prevents loans 741. Where a building and loan association becomes by building and loan associations from being usurious, insolvent, and a receiver is appointed to wind up its applies, although a borrower from such an association affairs, a borrowing shareholder is chargeable with applied for the loan, and executes papers necessary the amount of money actually received by him, with to secure its payment before he is actually a member interest from the time it was received, and is entitled of the association, where, before obtaining the money, to credit for all interest paid, and for so much he did become such member, and the intention to be. of the premium as was unearned at the time the socome a member entered into and formed a part of the ciety passed into the possession of the receiver. Sultransaction wbich finally resulted in the loan. Rey. livan v. Stucky, 86 Fed. Rep. 491. The borrowing nolds v. Georgia State Building & Loan Assn., 29 S. E. members of a building association cannot vote themRep. 187. A contract to pay money borrowed of a selves the assets, in the way of premiums bid for building and loan association incorporated in a foreign loans, and still require the performance of a contract State is one to be performed in such State, where the by a borrowing member who had obtained his loan at borrower has his option to send his payments to the a 20 per cent. premium, while the average premium association in such State, or make them at a local paid was over 30 per cent. Myers v. Alpena Loan & office, so long as the association sees fit to maintain it, Building Assn., 75 N. W. Rep. 914. Plaintiff was a with the understanding that the local agents are his member of, and borrowed money from, a building agents. Pollock v. Carolina Interstate Building & and loan association. After a portion of the loan was Loan Assn., 29 S. E. Rep. 77. Under the laws of North repaid, the association informed him it had gone into Carolina, where a building and loan association, re liquidation, and with his consent transferred the loan ceiving monthly payments from a borrowing stock. to defendant, also a building and loan association. holder, reserves a certain portion thereof as a pay. Plaintiff made a new application to defendant for the ment of "interest" on the loan at six per cent. per original amount of the loan, and upon bis executing annum, another equal portion, described in the con. a new trust deed the old loan was canceled. The tract with the borrower as “premium," must be check by defendant for the amount of the loan was a credited on the principal. Pollock v. Carolina Inter. mere form, and upon being indorsed by the plaintiff state Building & Loan Assn., 29 S. E. Rep. 77. Where to the liquidating association was immediately transthe borrower from a building association, agreeing to ferred back to defendant, and credited as an advance make monthly payments of interest, has paid nothing payment on plaintiff's stock. No credit was given for six months, the entire principal, with interest plaintiff for the payments made to the liquidating asfrom the day of the last payment, becomes due under sociation. Held, that the transaction with defendant Laws 1893, ch. 40, sec. 6, providing that the whole was a continuation of the original contract, and plaint. sum loaned by a building association and interest iff was entitled to receive credit thereon for the payshall become due in case of non-payment of any in ments made to the liquidating association. Neal v. terest for six months. Yankton Building & Loan New South Building & Loan Assn., 46 S. W. Rep.
755. After making stock payments and usurious in on the liability of lessor railway corporations to per: terest payments, a borrower gave notice to a building sons other than the lessee; Bank of Little Rock v. association for withdrawal of his stock, claiming that Frank (Ark.), which exhaustively reviews the au. the loan had been paid. The by-laws provided for a thorities on when an assigoment for the benefit of withdrawal and return of the installments when the creditors is deemed fraudulent, and the effect of the loan had been paid in full, and for sale of the stock in fraud on the assignment; Catron v. Old (Colo.), on case of default. The borrower also tendered any bal patents for mineral lands, and what included therein; ance that might be found due, and sale under the Michigan Trust Co. v. Chapin (Mich.), on agreement mortgage was restrained. Held that, though there between busband and wife to compensate each other's was a small amount due, the borrower was entitled services or relinquish claims on the other's earnings to the cancellation of the note and mortgage on pay. or profits. The series is published by Bancroftment of same. Crenshaw v. Hedrick, 47 S. W. Rep. Whitney Co., San Francisco, Cal. 71. Where a stockholder who is also a borrower makes default in the payment of monthly premiums,
AMERICAN STATE REPORTS, VOL. 59. in computing the amount due on the loan, the The reader of this volume will be impressed with monthly premiums will be applied to the reduction the many important cases to be found therein, and of the debt, said premiums not being forfeited to the the exhaustive character of the annotations appended association. People's Building, Loan & Saving Assn. to them. Following the case of Robinson v. Templar y. Fowble, 53 Pac. Rep. 999. In the absence of evi. Lodge (Cal ), is a long annotation on the subject of dence to the contrary, a stipulation in a mortgage to remedies of members of fraternal and other associaa building and loan association requiring the bor tions. The case of Huyett & Smith Co. v. Chicago. rower to pay a premium will be presumed to have Edison Co. (III.), is followed by an annotation em. been made under a bid to enable him to obtain a bodying all the authorities on the subject of entirety right of procedence in taking the loan as authorized of contracts-complete performance, when essential by Code 1873, sec. 1185, rather than a device to cover to a cause of action ex contractu. Attached to the up a usurious transaction, where the borrower, in case of Austin v. Tecumseh National Bank (Neb.), is his application, authorized the secretary of the as. a note reviewing the authorities on the subject of sociation to bid such a premium, that he might have when a corporation becomes liable for the debts of a such precedence. Hawkeye State Savings & Loan preceding corporation or partnership. And to the Assn. v. Johnston, 76 N. W. Rep. 678. Under Acts case of Hoboken Printing Co. v. Kahn (N. J.), is a 26th Gen. Assem., cb. 85, sec. 9, providing that, in a note on the as yet unsettled question of the liability foreclosure of a mortgage by a building and loan as of corporations for exemplary damages. The case of sociation, the borrower shall be charged with the full Eingartner v. Illinois Steel Co. (Wis.), has a note on amount of dues, interest, and premium for which he the subject of when transitory causes of action may is delinquent, the court may render judgment for not be prosecuted in a foreign State or country. such items maturing after the commencement of the These annotations are veritable briefs in themselves, suit, and before judgment. Hawkeye State Saving & and will be found of great aid to practitioners interLoan Assn. V. Johnston, 76 N. W. Rep. 678. A bor. ested in their various subjects. The book is pub. rowing member of an insolvent building association, lished by Bancroft-Whitney Company, San Franwho has given a mortgage to secure his loan, should cisco. be charged by its receiver with the amount of the loan at legal interest, and credited with all interest payments made thereon by him; but no credit should be allowed for payments on stock, and, upon payment
JETSAM AND FLOTSAM. of the balance, he is entitled to a release of the mort. gage. Leaby v. National Building & Loan Assn., 76
EVIDENCE OF EXCLAMATIONS WHILE ASLEEP. N.W. Rep. 625. The fact that a borrowing member of a building association assigns his stock to the association The Supreme Court of Vermont holds that somnilas collateral to his loan does not cancel his membership. oques are not admissible as evidence in personal inLeaby v. National Building & Loan Assn., 76 N. W. jury cases. In Plummer v. Ricker, 41 Atl. Rep. 1045, Rep. 625. The fact that, upon the death of a borrow. which was an action for damages sustained from a ing member, bis heirs at law to whom his stock was vicious dog, the plaintiff's father was asked to describe assigned became owners of the premises mortgaged in a general way how his son appeared from the time to secure the loan, gives them no greater rights than he was bitten down to the time the wounds healed, such member would have had, hau he lived. Leaby and stated, among other things, that at night espe. v. National Building & Loan Assn., 76 N. W. Rep. cially, the moment he would drop into a drowse, he 625.
would jump right up and call, "Take him off-the dog is biting me.” The trial court, in holding that this testimony was admissible, said: “If the boy's
story is found to be true, it tends to show that the BOOK REVIEWS.
dog made a visible attack upon him; and that has a bearing upon the question of how it may have affected
his nerves-impressed itself upon him. We think AMERICAN STATE REPORTS, VOL. 58.
that if it should be found that it so impressed him The value of this series of reports to the practitioner tbat, when asleep, the impression followed bim, made arises not alone from the fact that the cases reported him nervous, and caused him to cry out, it is evidence are selected with great care and good judgment, but indicating the condition of the boy. It is not evidence also because many of them are annotated by Mr. A. that the dog ever bit him.” C. Freeman, whose qualifications in that regard are Considering defendant's exception to this ruling, unsurpassed. In the present volume will be found Justice Start, delivering the opinion of the supreme number of such annotations. We bote especially the court, said: “Under this ruling, the jury were at following: Lee v. Southern Pacific R. R. Co. (Cal.), liberty to consider the words spoken by the plaintiff
while in sleep, upon the question of how the attack of tody of the true owner. Yet the doctrine of Common. the dog impressed itself upon him and affected his wealth v. Holder and kindred cases can rest on no nerves. Words spoken while in sleep are not evidence other principle than that every act of possession by of a fact or condition of mind. They proceed from the defendant, subsequent to the original cbange of an unconscious and irresponsible condition; they have custody, is a new trespass on the actual possession of little or no meaning; they are as likely to refer to un the true owner-which ex hypothesi has terminated. real facts or conditions as to things real; they are The analogy drawn from decisions like the principal wholly unreliable; and a jury ought not to be allowed case where the goods are carried from county to to guess that such expressions are produced by a county is a mistaken one. There the thief can be present mental or physical condition. The expres punished but once. It is really a rule of convenience. sions of a person respecting a past mental or bodily If the palpable fiction of continuing trespass be condition cannot be shown by a non-professional wit. adopted to its full extent, and the defendant make a ness. The testimony of such a witness is confined tour with the stolen property through every State in strictly to such complaints, expressions and exclama the Union, there is nothing but death to prevent his tions as furdish evidence of a present existing pain or retracing his steps in a series of imprisonments.malady. State v. Fournier, 68 Vt. 262; Knox v. Harvard Law Review. Wheelock, 54 Vt. 150. The expressions of a person in INJURY TO EMPLOYEE BY POISONOUS GERMS. sleep may be induced without cause, and by past as
The question of an employer's liability for poisonwell as present conditions. In dreams, things long
ous germs causing injury to an employee was reforgotten return, and we live over a past which has
cently decided by the Kansas City court of appeals in no relation to present conditions, and exclamations
Hysell v. Swift & Co. This was an action against the then made are as likely to be induced by a past as by
proprietor of a slaughtering and packing establisha present condition. If what the plaintiff said while
ment for the loss of an eye of a workman caused by a in sleep can be given any meaning, it was narration
poisonous yellow rust that he was cleaning from an of a past event, and did not indicate his present
iron rail. This rust formed by blood and other or. mental or physical condition, and the testimony was
ganic matter adhering to the rail contained bacteria hearsay and inadmissible. State v. Fournier, supra. In People v. Robinson, 19 Cal. 40, it is held that words
that destroyed the eye. The workman was ignorant
of the danger, and the contention was that the em. spoken in sleep are not admissible in evidence.”_
ployer knew or ought to have known it. The court Chicago Law Journal.
held that a master must keep up with scientific deVENUE AND JURISDICTION IN LARCENY.
velopment and knowledge as it may affect the cbar
acter of his business, and become informed of such It is everywbere the law that, where a thief steals property in one county and is found in another with
scientific knowledge as men of general education and
information possess relative to the danger and bazard the goods in his possession, he may be indicted in either, but not in both. State v. Williams (Mo.), 47
of the business, and give due warning of the dangers
to his employees. But it was held that the master S. W. Rep. 891, is no exception to this rule. The de. fendant stole a steer in Texas county and brought it
was not liable in this case because the injury could
not have been reasonably anticipated. In proof of with him into Pulaski county, where he was indicted for larceny. The court held that the venue was prop
this it was shown that, while this yellowish dust fell
and settled over fifteen or sixteen other persons enerly laid in Pulaski county on the ground that each
gaged in the service, it injured none of them. transportation of the stolen property by the thief was
The principle of the decision is doubtless the true a new caption. Though the reasoning of the court is questionable, it reaches a sound result. In different
one, whether it is rightly applied to the facts or not. counties there is the same law and the same punish
Not the possibility, but the reasonable probability, of
danger, must be the basis of liability. The court, as ment. There is but one offense against a single sov
an illustration, refers to the danger of putting persons ereignty. Venue being a merely formal matter, a
to work with one who has tuberculosis. But if a per: thief may be indicted for convenience sake in any county which be enters with the stolen property with
son who has that disease in an advanced stage is put
by an employer who knows the fact at work with out prejudice to himself. The decision in the present
others wbo do not know it, and they take the disease, case, then, may well have been reached without re
there is much reason to urge his liability in the prescourse to the fiction of continuing trespass, even if
ent state of knowledge as to the danger of that disease. such a doctrine is sound.
The liability ultimately rests on two questions of fact: The principle of continuing larceny is truly tested when the thief is indicted in a jurisdiction into which
First, the knowledge of danger; second, the degree of he has carried goods stolen in another. The English
the danger or the reasonable probability of injury.
Case and Comment. courts have always disclaimed jurisdiction when the original taking was in another sovereignty. Regina v. Carr, 15 Cox C. C. 131n. In the United States the authorities are divided. Commonwealth v. Holder, 9
HUMORS OF THE LAW. Gray, 7, proceeding on the analogy of the rule adopted where property is stolen and carried from county to An Iowa judge relates an amusing incident that occounty, decides that the thief may be indicted in what. curred in his court when a colored man was brought ever State he enters with the goods. Lee v. State, 64 up for some petty offense. The charge was read, and Ga. 203, declares, on the other hand, that there is but as the statement "The State of Iowa against John one offense which exists only at the place where the Jones" was made in a loud voice, the colored man's original trespass occurred. Larceny is the taking and eyes bulged out of their sockets, and he seemed per. carrying away of the personal property of another fectly overcome with terror and astonishment. When animo furandi. The act of taking is the essence of he was asked if he had anything to say, or pleaded the crime. It is evident tbat, after possession is once guilty or not guilty, he gasped out: “Well, yo' honah, complete and continuous in the thief, no subsequent ef de whole State o' Iowa is agin this one pore nigger, act of his can constitute a new caption from the cus. 'I'se gwine to give up right now?"