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Central Law Journal.

ST. LOUIS, MO., DECEMBER 17, 1897.

On page 494 of this issue will be found the opinion of Judge A. M. Thayer, for the United States Circuit Court of Appeals, Eighth Circuit, in the case of Hopkins v. The Oxley Stave Co., to which we called attention in our last number, involving the question of the legality of the boycott. Our readers will doubtless find it well worth a careful perusal. The conclusion of the court is undoubtedly the correct one, and is in strict consonance with well-established, legal and constitutional rights.

While on the subject of boycott it may be well to call attention to another recent important decision, by the Supreme Judicial Court of Massachusetts-Hartnett v. Plumb. ers' Supply Assn. of New England, 47 N. E. Rep. 1002-wherein was involved an attempt to coerce an alleged debtor into paying a disputed bill through procuring suspension of his credit among persons in the same line of business with the alleged creditor. The action was against a co-operative association to which the alleged creditor belonged, and which, as matter of fact, was incorporated under the laws of Massachusetts. It was composed of dealers in plumbers' supplies and was organized under an act relating to "associations for charitable, educational and other purposes,' for the avowed purpose of "promoting pleasant relations among its members, discussing, arbitrating and settling all matters pertaining to the prosperity and promotion of the jobbing plumbers' supply business, and establishing and maintaining a place for social meetings." It seems, however, that the association devised a plan for compelling the payment of debts alleged to be due to its members from their customers by obligating all members to refuse to make sales on credit to any person who had been complained of as delinquent by a member. The opinion calls attention to the fact that the ability to purchase on credit is a very valuable factor in the business life of many perIf such power be invaded, wantonly or without full legal justification, the courts certainly should supply a remedy. The

sons.

abuses to which such co-operative machinery might be put are illustrated by the circumstances of the present case, in which it appeared that the petitioner, being a customer of a member from whom general credit had been suspended through the order of the association, had paid part of the original claim, and that liability for the balance was, at the time of the complaint to the association, actually a subject of litigation in the courts. The operations of this anti-credit syndicate would thus obviously afford a very effectual method of ousting courts of jurisdiction and compelling customers of members to pay unjust claims. The Massachusetts court decided against the right of the corporation to pursue the plan in question, and against the legality of what was essentially a conspiracy to coerce persons through a species of business duress.

A recent English case which has been the subject of special comment in the English law periodicals is Reg. v. Starmouth, involving criminal liability for causing death by suicide. A similarity between that case and the old case of Reg. v. Alison, 8 C. & P. 418, has been noted. In each case a man and a woman had agreed to die; poison was obtained, they divided it, drank it, and lay down together to die; but the woman alone died, whilst the man recovered and lived to be indicted for her murder. In the reported case Patteson, J., held on the facts that in law the prisoner was guilty of murder, and he was accordingly convicted. In a more recent case, Reg. v. Jessop, 16 Cox, 204, the facts were again practially the same, though in this case both the persons who agreed to die together by poison were young men. Field, J., before whom the survivor was tried for the murder of his friend, in summing up to the jury, said: "A person who administers poison to another with the intention of killing him is guilty of murder if that person dies, and if two persons agree that they will each take poison, each person is a principal and each is guilty." The prisoner was convicted in this case also, and neither decision has ever been seriously questioned. At one time a person who counseled, aided, or abetted another to commit suicide, but who was not present when the felo de se put an end to his life, was in the position of an accessory be

fore the fact to murder. An accessory before the fact, however, could not at common law be tried until the principal felon had been convicted, unless he were tried along with the principal. Hence it followed in such a case that the accessory to the felony of selfmurder escaped punishment, as it was not possible to try the principal. The law on the subject has, however, been altered by section 2 of 24 & 25 Vict. ch. 94, which provides that an accessory before the fact to any felony may be indicted and convicted as such, "whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice." If, however, as in the cases noticed, a person aids or abets another in committing suicide, and is actually present when that other takes his own life, he is guilty of murder at common law as a principal in the second degree. And as principals in the second degree and accessories before the fact are all in law equally guilty with the principal in the first degree, it follows that anyone who aids and abets another in the crime of suicide is in law guilty of murder and liable to the penalty of death.

NOTES OF RECENT DECISIONS.

OFFICERS UNOFFICIAL ACTS-FEES-CONTRACT.-In Studley v. Ballard, it is held by the Supreme Judicial Court of Massachusetts, that the obtaining of information respecting violations of the liquor law before filing complaints is outside the line of the duties of deputy sheriffs, and for which the law allows no fee; and hence a contract with such officers to pay them for labor, time, and outlay spent for such a purpose is legal, and sustained by a sufficient consideration. The court says that "the rule of law is simple. A contract to pay an officer for doing his official duty, or to pay him a sum in addition to his statutory fees, cannot be enforced. v. Boston, 5 Cush. 219; Brophy v. Marble, 118 Mass. 548; Hatch v. Mann, 15 Wend. 44. But a contract is good to pay him for services outside the line of his duty, for which the law allows him no fee. Davis v. Munson, 43 Vt. 676; Trundle v. Riley, 17 B. Mon. 396; England v. Davidson, 11 Adol. & E. 856.

Pool

In Shattuck v. Woods, 1 Pick. 171, 175, it is said that, if an officer returns an execution unsatisfied by consent of the creditor, and has incurred any expense, he must look to the creditor for his recompense."

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INNKEEPER'S LIEN PROPERTY OF THIRD PERSON.-In Brown Shoe Co. v. Hunt, 72 N. W. Rep. 765, decided by the Supreme Court of Iowa, it was held that a lien given by a statute of Iowa to hotel keepers, on all prop erty "belonging to or under the control of their guests, which may be in such hotel," etc., attaches to sample goods carried by a traveling salesman, though the hotel keeper knows, when he receives the salesman as a guest, that the goods belong to his employer. It was further held that such statute is not unconstitutional as depriving the actual owner of his property, without due process of law, since it makes no provision as to how the lien shall be enforced. The court said in part:

Our statute provides: "All hotel, inn or eating house keepers shall have a lien upon, and may take and retain possession of all baggage and other property belonging to or under the control of their guests, which may be in such hotel, inn or eating. house, for the value of their accommodations and keep, and for all money paid for or advanced to, and for such extras and other things as shall be furnished such guest, and such property so retained shall not be exempt from attachment or execution to the amount of the proper and reasonable charges of such hotel, inn or eating house keeper against such guest, and the costs of enforcing the lien thereon." Acts 18th Gen. Assem., ch. 181, sec. 2. It appears from the statement of facts that defendant knew that the goods upon which he claims a lien did not belong to his guest, but were the property of the plaintiff. Itis, therefore, contended that his innkeeper's lien did not attach to them. Counsel cite several cases in support of such contention. They were cases where the hen claimed was the common-law lien, and not one cre ated by the statute. This applies also to the claim that the goods were not of such a character as to be considered as for the convenience or comfort of the guest, but rather such as enable the guest to carry on a trade or business. The common law doctrine that the innkeeper could have no lien as against the prop erty of the third parties, he knowing their ownership when he received the guest and the property, bas been changed by our statute. Under our statute, the innkeeper may "take and retain possession of all baggage and other property belonging to or under the control of their guests, which may be in such hotel or inn." Clearly, the legislature intended by the words used to give a lien, not only upon the property in fact belonging to the guest, and which was in the hotel or inn, but likewise a lien upon property placed therein which was under the guest's control. The guest in this instance was a traveling man, selling goods b sample, and the lien is claimed upon these sample goods and the receptacles in which they were con tained. These goods were used in the prosecution of

his business as a salesman. The nature and character of his occupation were such that plaintiff must be held to know he would be compelled to stop at hotels or inns, and that, in the proper prosecution of his avocation, he would need his sample goods in such hotels or inns. The statute clearly covers such goods as they were, under the control of the guest.

The statute is not unconstitutional. It does not deprive the owner of his property without due process of law. It simply provides for a lien and a possession, and makes no provision as to how the lien shall be enforced.

ESTOPPEL IN PAIS-ASSIGNMENT FOR BENEFIT OF CREDITORS. - The Supreme Court of Tennessee says in Lockett v. Kinzell, that creditors are not estopped to assail an assignment void in law upon the bare ground that, without any change of attitude either on the part of themselves or other beneficiaries, or of the assignee, towards the trust property, and in the absence of aggressive steps to enforce rights under the assignment, they indica ed in correspon lence and conversations their purpose to take under such`assignment, no benefit having accrued to them, and the trust estate or assignee not being placed at disadvantage by them. The court says:

The complainants are creditors of Kinzell & Co., who in June, 1896, undertook to make a general assignment, which was confessedly fraudulent in law; and the bill in this cause sought to impeach this instrument, and, by attachment, to appropriate the property covered by it, as far as need be, to the various debts of the complainants. As to all but two of these complainants, the defendants relied upon their conduct, as raising an equitable estoppel to prevent a recovery. The facts relied on for this purpose are briefly as follows: In October, 1896, the solicitors of all the complainants (except the two against whom this rule is not invoked) addressed a letter to the assignee of the insolvent firm, in which they stated to him that they held for collection a large part of the claims protected by the assignment; that some of their clients had spoken of filing a bill in the chancery court to wind up the trust, but that, if he (the assignee) was making proper progress, they (the writers) were not inclined to interfere with him. In order that they might be informed with regard to the condition of the matters in his hands as assignee, they requested him to call at their office for an interview. A few days thereafter these gentlemen addressed a second letter to the assignee, in which they reminded him with some severity that he had failed to call in answer to their request. Then, giving him the names of the creditors represented by them, they said that they were directed to demand an immediate settlement, and, in the event it was not made, to take steps to enforce it. They again asked him to call, and let them know what his purpose was. Soon after this letter was sent, the attorney of the assignee called upon these gentlemen, and asked them if he was to consider their debts as filed. To this they replied he might so consider them. Subsequently the assignee, through his attorney, announced to one of these solicitors his readiness to pay the pro rata due his clients; but this gentleman declined to accept payment, be

cause his partner, who had personal charge of this matter, was then out of the city. At this juncture this court declared the "General Assignment Act" of 1895, under which the assignment in question was prepared, to be unconstitutional. The effect of this decision was to leave chapter 121 of the Acts of 1881 as the law regulating general assignments in this State, and as the instrument in question failed altogether to comply with the essential requirements of that statute, under the settled rule of this court, it was open to successful attack upon the part of dissatisfied creditors of the grantors, as fraudulent in law. Immediately thereafter the present bill was tiled.

The question is: Do the foregoing facts work an estoppel on such of complainants as were represented in these negotiations by these solicitors to impeach this assignment, though fraudulent in law as to all creditors of the assignors? It will be observed that no benefit accrued to these complainants as the result of these negotiations between their solicitors and the assignee. Nor was the trust estate or the assignee placed at disadvantage by them. If estopped at all, it is upon the bare ground that without any change of attitude upon the part either of complainants or of o her beneficiaries or of the assignee toward the trust property, and in the absence of affirmative or aggressive steps to enforce rights under the assignment, they indicated in this correspondence and these con versations their purpose to take under the assignment. That a fraudulent transfer may be ratified by a creditor, so as to preclude him from attacking it, is well settled, but we have not had our attention called to any case where this result has followed from facts so meager as these. Where a benefit has been received by the creditor from the fraudulent transfer; or where the assignee, by reason of the assailing creditor's conduct or agreement in recognition of it, has been put at disadvantage; or where such creditor enters into an arrangement with the other creditors of the fraudulent grantor looking to a disposition of the assigned property, and distribution of its proceeds among all (3 Bump, Fraud. Conv. p. 6, §§ 456, 457); or where he takes legal steps to enforce the assignment; or where he does anything else unequivocal and de cisive in character (O'Bryan v. Glenn, 91 Tenn. 106, 17 S. W. Rep. 1030), he would be held to have estopped himself from attack upon it. But, as was said by the Supreme Court of New York in Groves v. Rice, 148 N. Y. 227, 42 N. E. Rep. 664, "in order that a creditor shall be estopped by an act of his from impeaching the validity of an assignment, it must appear that he has accepted an actual benefit under it, or that he has assumed such an attitude as would be inconsistent with his taking such a position " This rule, thus announced, will be found illustrated in Hone v. Henriquez, 13 Wend. 240; Hays v. Heidelberg, 9 Pa. St. 207; Adlum v. Yard, 1 Rawle, 163; Ingram v. Hartz, 48 Pa. St. 380; and in Rapalee v. Stewart, 27 N. Y. 310. In the first four of these last cited cases the creditor was held estopped because he had obtained benefits from the transfer afterwards assailed by him. In the last (Rapalee v. Stewart, supra), the contributing creditor had entered into an agreement with the other creditors showing an assent to and ratification of the assignment, by which the parties to it consented and agreed that certain other persons, one of them being the assignor debtor, should be joined in the disposition of the property assigned. It is apparent that these cases fall short of being authority for the contention that is made in the present case; nor is it sustained by Swan on v. Tarkington, 7 Heisk. 612, and August v. Sees

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