cumstances, courts look further, and, weighing all the circumstances surrounding the parties and attending the execution of the instrument give to it such construction as will effectuate the manifest intention of its maker. An instrument in form and name a deed of conveyance, acknowledged as such, and delivered to the grantee, whereby, for consideration of five dollars and love and affection, the grantors "do grant with general warranty" a tract of land closing with the clause, "But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said William Logan shall depart this life and not sooner," is a valid deed, not a testamentary paper, and confers a vested remainder on the grantee, to come into enjoyment on William Logan's death.

LIBEL BY SERVANT-EXEMPLARY DAMAGES.— In Peterson v. Western Union Tel. Co., 77 N. W. Rep. 985, it was held by the Supreme Court of Minnesota, that where the station agent of a telegraph company, acting within the scope of his employment, maliciously transmits a libelous message over the wires of said company to another of its station agents, addressed for delivery to a third person, which is done accordingly, the company is liable in punitive damages. The court said in part: "A telegraph corporation derives its legitimate corporate powers from the law, and that law should not be violated without a corresponding liability for torts committed under it. Station agents may be irresponsible pecuniarily, and if, for their malicious acts done in the scope of their employment, the corporation is not liable, the public would be at the mercy of an unscrupulous telegraph operator; and, hence, the public are greatly interested in such a question, and the liability for such wrongs should rest upon that body which, by its acts, creates the power and the opportunity for committing them. It would be a lamentable condition of the rights of the citizen, if, under the guise of exercising lawful corporate powers, the corporation could permit the citizen to be defamed by the false and malicious publication of its agent while acting as its duly appointed representative. In Scott & Jarnagin's Law of Telegraphs, section 138, it is said that 'the company can only perform the duty of sending and receiving a message through the intervention of an agent; and if he may willfully and corruptly interfere with commercial transactions, or malignantly expose family affairs, and not involve the company, such a ruling would stimulate the wicked, while at the same time good men would be convinced that their chances for indemnity rested alone upon the solvency of treacherous agents. We have seen no instance in the litigated cases where telegraph companies have claimed such immunity. However, the authorities are numerous highly respectable, and conclusive, except where controlled by binding local decisions, which hold the former (company) liable for the willful acts

*

and

of the latter (agent), when done in the performance of duties assigned.' In the same work it is said (sec. 138a): Aside from the statutory and common-law duty of good faith in the transmission of messages for the public, there is another sense in which a telegraph company may become responsible for mala fides and malicious use of its franchises. A libel is any false, malicious, and personal imputation, effected by any writings, pictures, or signs, tending to alter the party's situation in society or business for the worse, and a corporation may become responsible for its publication, even in punitive damages.' Mr. Wood, in his work on the Law of Master and Servant (sec. 323), says that: 'It may be regarded as settled by the better class of cases that, whenever exemplary damages would be recovered if the act had been done by the master himself, they are equally recoverable when the act was done by his servant,'-and he cites the well-considered case of Goddard v. Railway, 57 Me. 202, where numerous authorities are collected supporting his view. It is true that this doctrine thus enunciated was applied in an action against a railroad corporation, but we perceive no distinction between it and a telegraph corporation. 'For a telegraph company is liable ex delicto for an injury done by its agents or servants to third persons, for misfeasance as well as non-feasance,' Scott & J. Tel. sec. 6. In Shear. & R. Neg. (5th. ed., pt. 2, ch. 9), this question is thoroughly discussed, and it is there sail that 'where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants in the course of their employment as such, and extends to willful acts.' The principle which lies at the foundation of this rule has been differently stated in several judicial opinions, and the abstract justice of the rule, itself has been occasionally questioned. But the soundness of the principle and the necessity of the rule, which we have inherited from the Roman law, have received new and convincing illustrations in the immense development of modern corporations. If the rule of respondeat superior were now to be abrogated, it would be almost impossible to carry on the present complex business of society. Every person having any pecuniary responsibility would shelter himself behind the forms of a corporation, which would, in such case, be free from all responsibility for the negligence and violence of its agents without direct evidence of authority for their acts, while such evidence could be, in almost every instance, suppressed.' This rule may frequently work a hardship, but when the master substitutes an agent or servant in his own place, and clothes him with power to act for the master's benefit in serving the public, he is not permitted to shelter himself behind the the plea of non-liability for the act of the agent, and the rule of respondeat superior should not be relaxed, whether the master is a corporation or an individual."

INSURANCE-WARRANTY-HAZARD-POLICY.

In Straker v. Phenix Ins. Co., decided by the Supreme Court of Wisconsin, it appeared that a standard policy insuring plaintiff with loss payable to mortgagee provided that the entire policy should be void if the hazard be increased by any means with the control or knowledge of insured. The application, which was made a continuing warranty, represented that a clear space of one hundred feet existed on one side. It was held that the subsequent erection of a building there six feet away, within the knowledge, though not within the control of the insured, which largely increased the rate, and which catching fire burned the insured property, vitiated the insurance. It was also held that the statute providing that any other conditions must be incorporated in the policy forbade the waiver of its provisions, and in the absence of fraud or mistake parties are conclusively presumed to know the contents of their instruments. The court said in part: "It requires no authority to show that such agreements and such statutes mean just what they say, and were in full force as binding and continuing warranties at the time of the fire. Blumer v. The Phoenix, 45 Wis. 622, 48 Wis. 535; Copp v. The German Mm. Ins. Co., 51 Wis. 637, 640; Boyle v. Northwestern M. R. Asso., 95 Wis. 312, 317.

"The contention is, that although the plaintiff lived in the second story of the insured building, only six feet from the new building, and knew all about the location and the several stages of the erection of the new building from its commencement to the time when the fire originated therein, yet, that there was no forfeiture of the policy, because the plaintiff did not own, and had no control over the new building, nor the land upon which it was situated. In other words, it is contended that although the hazard was increased by means within the 'knowledge of the assured,' as stated in the policy, yet that it did not avoid the same, because such erection was not within his control. The court has expressly held, that in a case of the breach of such continuing warranties 'the insurance was avoided by a false statement in such application that the insured had never had a certain disease, although he never knew he had it, and his death resulted from other causes.' Baumgart v. Modern Woodmen of America, 85 Wis. 546, 549. But, as indicated, the clause in the policy, which we are asked to nullify, is also in the statute as a part of the 'Wisconsin standard policy.' The object of such statutes was, practically, to have but one form of policy instead of having a different form for each company doing business, and each company changing its form, whenever, by so doing, it could escape the consequences of any new decision made by the court. It was certainly a long step in the right direction. Bourgeois v. N. W. Nat. Ins. Co., 86 Wis. 609-610. In that case Mr. Justice Winslow said: When a man contracts for insurance he knows that he is contracting for a standard policy and for noth

"More critical examination reveals the undoubted fact that the law was not passed solely for the protection of the insured. It provides, in clear and distinct terms, that other conditions may be printed or written upon or attached to the policy, but that they shall not be inconsistent with, nor a waiver of any of the provisions or conditions of the standard policy. In thus providing that other conditions may be incorporated in the policy by writing or printing, other methods are plainly excluded under familiar legal principles. The intent plainly was and is that, so far as the conditions and provisions of the standard policy go, they shall govern, and that they shall not be omitted, changed, or waived in any manner. Other provisions, not conflicting with them, may be added in writing or printing, but the conditions of the standard policy itself must remain unimpaired.' Id. The increase of such hazard, mentioned in the policy, manifestly referred to subsequent conditions and not to conditions existing when the policy was issued as claimed by counsel. Counsel contends, that if the erection of the building with the knowledge of the plaintiff could operate to avoid the policy, still it would be a question for the jury to say whether such erection increased the hazard. Here the contract of insurance contained a continuing warranty that there was no exposure of the building on the north within one hundred feet by any structure or occupancy. By thus expressly stipulating in respect to such exposure, the parties impliedly agreed that such non-exposure was material to the risk, and that such non-exposure should continue during the life of the policy. Blumer v. The Phoenix, supra. and other cases cited above. In a case quite similar in the fact of a new building having been constructed during the life of the policy in New York, it was said by Mr. Justice Andrews, speaking for the court, that 'the court was fully justified in assuming that there had been an increase of hazard. It is self-evident and a contrary finding by a jury could not stand.' Cole v. Germania Fire Ins. Co., 99 N. Y. 40. In the Pennsylvania case cited it is said: "The purpose of requiring a warranty is to dispense with inquiry and cast entirely upon the assured the obligation that the facts shall be as represented. Compliance with this warranty is a precedent to any recovery upon the contract.' Pottsville M. F. Ins. Co. v. Horan, 89 Pa. St. 445. See Franklin Brass Co. v. Phoenix Assur. Co., 65 Fed. Rep. 773. Besides, it is expressly stipulated that the presence of the new building increased the rate of insurance on the insured property at least 50 per cent. The stipulation in the contract in respect to the particular hazard makes the case unlike Pool v. Nil. M. Ins. Co., 91 Wis. 530, and other cases relied on. Counsel further contends that

the appellant's agent knew the fact that the new building was being constructed fifteen days before the fire, and hence waived the condition in the policy by making no objection and allowing the policy to continue. But the statutes, prescribing the terms of such standard policy, expressly declare that 'No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto.' Subd. 62. Besides, in Bourgeois v. N. W. Nat. Ins. Co., supra, it was held that there could be no such waiver by parol. True, the act there construed was subsequently declared unconstitutional upon a question not here involved. Dowling v. Lancashire Ins. Co., 92 Wis. 63. But the construction put upou the act is applicable to similar language in the present act.”

MUNICIPAL CORPORATION DEFECTIVE WATERWORKS.—In Esberg-Gunst Cigar Co. v. City of Portland, 55 Pac. Rep. 961, decided by the Supreme Court of Oregon, it was held that waterworks belonging to a city in its private, rather than its public, capacity, so as to make it liable for injury for the negligent construction or maintenance thereof, though the legislature determines on the necessity for such works, and selects certain persons as agents of the city, by whom the work shall be undertaken. The court said in part: "It has been held that municipal corporations are not responsible for the negligence or wrongful acts of health officers or boards of health (Bryant v. City of St. Paul, 33 Minn. 289, 23 N. W. Rep. 220); Ogg v. City of Lansing, 35 Iowa, 495; Brown v. Inhabitants of VinalLaven, 65 Me. 402; Barbour v. City of Ellsworth, 67 Me. 294), or of employees of the commissioners of public charities and correction (Maxmilian v. Mayor, etc., 62 N. Y. 160); or of officers or members of their fire or police departments (Hafford v. City of New Bedford, 16 Gray, 297; City of New Orleans v. Abbagnato, 62 Fed. Rep. 240; Fisher v. City of Boston, 104 Mass. 87; Burrill v. Augusta, 78 Me. 118, 3 Atl. Rep. 177; Wilcox v. City of Chicago, 107 Ill. 334; City of Richmond v. Long, 17 Grat. 375; Elliott v. City of Philadelphia, 75 Pa. St. 347; Gillespie v. City of Lincoln, 35 Neb. 34, 52 N. W. Rep. 811; Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. Rep. 614); nor for the negligent construction, maintenance, or use of appliances for the extinguishment of fires (Hays v. City of Oshkosh, 33 Wis. 314; Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. Rep. 405; Edgerly v. Concord, 62 N. H. 8; Tainter v. City of Worcester, 123 Mass. 311); or for an injury caused by a negligent defect in a school building (Ham v. Mayor, etc., 70 N. Y. 459; Hill v. City of Boston, 122 Mass. 344); or for an injury received by the giving way of the floor of a town house used for holding town meetings and other public purposes. Eastment v. Meredith, 36 N. H. 284. But when a special power or privilege is con

ferred upon or granted to a municipal corporation, to be exercised for its own advantage or emolument, and not as a mere governmental agency, it is liable to the same extent as an indi vidual or a private corporation for negligence in managing or dealing with the property rights or franchises held by it under such grant. Thus, if, in repairing a building belonging to the city, and used in part for municipal purposes, and in considerable part also as a source of revenue to the corporation, the agents and servants of the city dig a hole in the ground adjoining, and negligently leave it open and unguarded, so that a person rightfully walking on a path leading by the building, although not a public highway, falls into such hole, and is injured, the city will be liable to an action at common law for the injury. Oliver v. City of Worcester, 102 Mass. 489. So, also, when the city owns a wharf, and receives and charges wharfage for its use, it is bound the saine as a private individual to use ordinary care and diligence in keeping it safe and free from obstructions, and is liable in an action at common law for damages done to a vessel by reason of neglect of such duty. City of Petersburg v. Applegarth, 28 Gratt. 321; Pittsburgh City v. Grier, 22 Pa. St. 54; Mersey; Docks v. Gibbs, 11 H. L. Cas. 686. In accordance with this distinction, it is quite universally held that when a municipal corporation voluntarily undertakes to construct and maintain water or gasworks in pursuance of statutory authority, for the purpose of supplying the inhabitants thereof with water or gas at rates established by the city, it is liable for an injury in consequence of its acts in constructing and maintaining such works, the same as a private corporation or individual. ‘A municipal corpoation, owning waterworks or gasworks which supply private consumers on the payment of tolls,' says Mr. Dillon, ‘is liable for the negligence of its agents and servants, the same as like private proprietors would be.' 2 Dill. Mun. Corp. sec. 954. And the doctrine is well stated by Lewis, C. J., in Western Saving Fund Soc. v. City of Philadelphia, 31 Pa. St. 183, in speaking of a municipal corporation as the owner of gasworks: The supply of gaslight,' he says, 'is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corporations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. The whole investment is the private property of the city, as much so as the lands and houses belonging to it. Blending the two powers in one grant does not destroy the clear and well-settled distinction, and the process of separation is not rendered impossible by the confusion. In separating them, regard must be had to the object of the legislature in conferring them. If granted for public purposes exclusively, they

belong to the corporate body in its public, political or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.' To the same effect, see, also, Bailey v. Mayor, etc., 3 Hill. 531; Hand v. Inhabitants of Brookline, 126 Mass. 324; Perkins v. City of Lawrence. 136 Mass. 305; Stoddard v. Inhabitants of Winchester, 157 Mass. 567, 32 N. E. Rep. 948; Aldrich v. Tripp, 11 R. I. 141; 19 Am. Law Rev. 743; Gas Co. v. City of San Fran cisco, 9 Cal. 453; Scott v. City of Manchester, 2 Hurl. & N. 204; 2 Beach, Pub. Corp. sec. 1140; and 1 Dill. Mun. Corp. (3d. Ed.), sec. 58."

EXECUTION ON PARTNERSHIP PROPERTY FOR THE DEBT OF ONE PARTNER, AND WHETHER AN INJUNCTION WILL LIE TO RESTRAIN SUCH SALE UNTIL THE PARTNER'S INTEREST IS ASCERTAINED.

The manner in which to deal with partnership property, under execution for the debt of an individual partner, is one of the most unsettled questions in the law of partnership.

There is a line of authorities which assumes two propositions: First, the officer who levies upon the effects of the partnership for the debt of one partner not only seizes the whole property, but dispossesses the other partners, and delivers it on sale to the vendee. Secondly, such purchaser holds possession against the firm, and against each and all of its members. If this be the law the business of the partnership may not only be suddenly terminated by the seizure of its property for the debts of an individual partner, but no security is offered that at the end of long and tedious litigation (in which it may be shown that the partner really has no interest), the vendee will be able to return the property or account for its value. Evidently one of the most frequent instances by which a partnership may be ruined for the debts of one partner, is the insolvency of the purchaser when called upon to return the property or account for its value. Another illustration is, if the purchasers are numerous, and remove to another jurisdiction which will make it not worth pursuing. Many instances of this nature could be pointed out, but that is beyond the scope of this work. The questions which confront me in treating this sub

ject are: 1st. Is this the weight of authority? 2d: Is it sustained by reason and justice? The extreme inadequacy and incompleteness of the law of partnership, one hundred and fifty years ago in the time of Salkeld and Lord Raymond, is proved by the fact in which creditors of an individual partner levied execution upon partnership property. For an example, if there were two partners, creditors took one-half, if three partners, creditors took one-third, if four partners, creditors took onefourth, etc. The change which has taken place in this rule is not distinctly exhibited in cases reported, but it began over a century ago, and I think to-day the rule in question is definitely settled in the enlightened courts of this country. The right of a creditor to attach a partner's interest in the partnership property is universally conceded, but can he attach the property of the firm, or can he hold an execution nnd take a portion to satisfy his claim? Upon these questions there is much diversity of opinion. In order to arrive at the right conclusion upon this subject, let us first turn our investigation to some of the leading English cases, cited by our eminent judges and text-writers as authority based upon reason and justice. In the case of Taylor v. Fields,' it was decided in a very able opinion "that the right of a separate creditor depends upon the interest each partner has in the joint property, and the interest of each is only a share of what remains after the partnership debts are paid. The creditor can levy upon the partner's interest for an individual debt, but nothing more." The same doctrine was sustained in the case of Hankey v. Garratt2 upon the following facts: partner absconded and died abroad, but was never insolvent. Separate commission was issued against the other under which the assignee seized the partnership effects. Held, the joint debts are to be first satisfied, and the residue to be applied on the claims of the individual creditors. If a creditor of one partner takes out an execution against partnership effects, he can only have the undivided share of his debtor, and must take it in the same manner as the debtor himself had it, and subject to the rights of the other partners. In examining the American authori

1 Taylor v. Fields, 4 Ves. 396 (Sumners' Ed.).
2 Hankey V.
Garratt, 1 Ves. 236.

One

3 West v. Ship, 1 Ves. 239; Fox v. Hanbury, 2 Cow. 445; Ex parte Ellon, 3 Ves. 238; Ex parte A bell, 4 Ves

ties I find the rule in the enlightened courts, and supported by the most eminent textwriters on the law of partnership to be, that only the partner's interest under execution for private debt can be taken. I quote from Judge Story: "It is well settled," says he, that at law an execution for a separate debt of one of the partners may be levied upon the joint property of the partnership. In such cases, however, the judgment creditor can levy not the moiety or undivided share of the debtor in the property, as if there were no debts of the partnership or lien on the same for the balance due the other partners, but he can levy the interest only of the judgment debtor. If any in the property which the judgment debtor would have upon the final settlement of all the accounts of the partnership, where, therefore, the sheriff seizes such property upon execution, he seizes only such undivided and unascertained interest; and if he sells under the execution, the sale conveys to the vendee, who thereby becomes nothing more than a tenant in common substituted to the rights and interest of the judgment debtor in the property seized. In truth, the sale does not transfer any part of the joint property to the vendee, so as to entitle him to take it from the other partners; for that would be to place him in a better situation than the partner himself, but it gives him properly right in equity to call for an account, and thus to entitle himself to the interest which shall, upon such settlement, be ascertained to exist." Freeman on Execution," after first conceding that the earlier authorities hold the other way, lays down the rule as stated by Mr. Story: "But the courts have gradually progressed toward a realization of the true nature of the partnership, and have therefore come to understand that they are materially different from co-tenancies. A co-partner has no right to any specific chattel belonging to the firm, nor has he any right, as against the firm, to take or hold exclusive possession of any such chattel. The real ownership is vested in the firm. Interest of each partner is merely a right to share in the proceeds of those chattels after all obligations of the partnership are satisfied. Upon what principle can the purchaser at an 837, 17 Ves. 193-205; Ex parte Williams, 11 Ves. 5; Ex parte Ruff, 6 Ves. 126; Smith v. Stokes, 1 East, 367. 4 Story's Equity Jurisprudence, sec. 677. Sec. 125. And see also Parsons on Partnership, 256.

6

execution sale be sustained in the exercise of the rights to which the defendant was never entitled? Clearly upon no principle whatever. The precedents made at an early day, when the law of partnership was imperfectly understood, is losing its force as authority, and its place is being supplied by a line of decisions destined to grow in torce and number, declaring that the creditor of an individual partner cannot seize specific articles, but only the partner's interest in the whole of the partnership assets, and that the purchaser does not acquire the right to hold possession of the property purchased as against the other members of the firm, but only an interest in the proceeds after the business of the firm shall be settled." Now let us examine some of our leading American cases upon this subject: Clagett v. Kilbt, a United States Supreme Court decision, Judge Nelson delivering the decision of the court: "We do not deny that the execution may be levied upon the joint property, with a view of reaching the undivided interest of the judgment debtor, but in such case the levy is not upon his individual share as if there were no debts of the partnership, or lien on the same for the balance due to the other partner. It is upon the interest of the judgment debtor, if any in the property after the payment of all partnership debts. It is not only an undivided but an unascertained interest, and the purchaser is substituted to the rights and icterest of the judgment debtor in the property sold. Neither does the sale transfer any part of the joint property to the purchaser so as to entitle him to take it from the other partners; for that would place him in a better situation than the partner (judgment debtor) himself." Morrison v. Blodgett' is cited by all text-writers on the law of partnership as a leading case, and holds nothing but the partner's interest, can be seized under execution for a separate debt. In the case of Seal v. Boyne it was held that a sheriff, acting under execution at the suit of a judgment creditor of one partner, can sell and deliver no part of the firm's 61 Black, 347.

78 N. H. 238; Sylvester v. Paul, 47 N. H. 158; Hill v. Wiggins, 31 N. H. 292; Newman v. Bean, 21 N. H. 93; Treadwell v. Brown, 43 N. H. 290; Jarris v. Brooks, 23 N. H. 136.

8 20 Pa. St. 283, and see later decisions by the same court. See 35 Pa. St. 432; Whigman's Appeal, 63 Pa. St. 194; Van Dyke v. Paskan, 67 Pa. St. 330; Richard v. Allen, 117 Pa. St. 119.