Central Law Journal.

ST. LOUIS, MO., DECEMBER 10, 1897.

No more important opinion of court has, in recent years, been rendered than that of the United States Circuit Court of Appeals, Eighth Circuit, in the case of Hopkins v. The Oxley Stave Company, on appeal from the United States Circuit Court of Kansas. The case involved, in substance, the validity of a conspiracy in the nature of a boycott, and the suit was by injunction to prevent the defendants (appellants above), a labor organization, from conspiring to carry out a boycott against the plaintiff which had for its purpose the compelling of plaintiff to withdraw from use a newly invented machine for hooping barrels, the objection thereto on the part of the boycotters being that it naterially lessened the number of employees required in that department. Thus it will be seen that the principle involved was the right of a labor organization not only to strike against the use of new machinery, but also to institute a general boycott of the firm as a means of compelling its surrender. The court through Judges Thayer and Sanborn held, in effect, that a boycott was not a legal weapon, and that the company boycotted was entitled to an injunction against the association and their sympathizers restraining them from injuring its business. The opinion of the court by Judge Thayer is a model of its kind, clear, logical and convincing. Though almost too long for our columns we hope shortly to be able to publish it in full. The question before the court, as stated by Judge Thayer, was, whether the agreement entered into by the members of the associations to boycott the contents of all staves, casks, barrels and packages made by the Oxley Stave Co., which were hooped by machinery, was an agreement against which a court of equity can relieve, preventive or otherwise. Answering this in the affirmative, he says, in substance, that the object of the boycott was to interfere with the plaintiff's business and to deprive him of the right to conduct his business as he thought proper, and that while conceding the right of individuals to form labor organizations for the protection of the interests of laboring classes, yet that the courts and society in general, has,

as a rule, condemned boycotts. The right of an individual, he says, to carry on his business as he sees fit, and to use such implements or processes of manufacture as he desires to use, provided he follows a lawful avocation and conducts it in a lawful manner, is entitled to as much consideration as his other personal rights, and the law should afford protection against the efforts of powerful companies to rob him of that right and coerce his will by intimidating his customers and destroying his patronage. The court cites and reviews at length the following cases: Springfield Spinning Co. v. Riley, 6 Eq. Cas. 551; Temperton v. Russell, 1 Q. B. L. R. 715; Barr v. Essex Trades Council (N. J.), 30 Atl. Rep. 881; Hilton v. Eckersley, 6 E. & B. 47; Old Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48; Casey v. Cincinnati Typographical Union No. 3, 45 Fed. Rep. 135; Thomas v. Cin. N. O. & T. P. Ry. Co., 62 Fed. Rep. 803; Arthur v. Oakes, 63 Fed. Rep. 310; Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; State v. Glidden, 55 Conn. 46; Vegelahn v. Gunter (Mass.), 44 N. E. Rep. 1077, 43 Cent. L. J. 464. The following cases relied upon by those opposing the issuance of an injunction were distinguished by the court: Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598; Continental Insurance Co. v. Board, 67 Fed. Rep. 310; Bohn Mfg. Co. v. Hollis, 54 Minn. 223. Judge Caldwell dissents from the majority of the court in a vigorous opinion of great length, in which he inveighs against the evils of trusts and other combinations of capital, and attempts to show that boycotting if peaceable and orderly is as innocent as a strike. He starts out with the proposition that inasmuch as a refusal of an individual to buy or handle goods of a certain party is concededly legitimate, such action can be no less lawful if adopted by two or more parties in combination. Much of what he says may be considered in the light of a judicial sermon upon popular wrongs, though he attempts to show that the authorities on the law of the question are not all against him. He takes special comfort in the language of the dissenting opinion of Mr. Justice Holmes, in the Massachusetts case of Vegelahn v. Gunter, 44 N. E. Rep. 1077, 43 Cent. L. J. 464. It may be observed that, so far, boycotting has been upheld only in dis

senting opinions, and beyond exciting surprise and wonderment that a jurist of Judge Caldwell's caliber could be capable of giving his approval to so questionable an industrial expedient, his opinion will have little weight to change the strong current of judicial utterance on the subject.

NOTES OF RECENT DECISIONS.

CARRIERS WHO ARE PASSENGERS EMPLOYEE.-In McNulty v. Pennsylvania R. Co., 38 Atl. Rep. 524, decided by the Supreme Court of Pennsylvania, it was held that an employee of a railroad company, while he is being carried by the railroad company under a contract of service, is a passenger, and that the company owes to him all the duties which are due to a passenger. The case of O'Donnell v. Railroad Company, 59 Pa. 239, was followed. It appears, from the facts of the case, that the plaintiff's husband, John McNulty, was employed as a day laborer on the defendant's railroad. He lived at Bristol and worked at various places along the line of the road. By the terms of his contract the railroad company, in consideration of ten hours' labor a day, agreed to pay him $1.20 and carry him on a passenger car to and from his labor each morning and evening. On the evening of the accident, he entered a passenger car of the defendant company to go to his home. While on the way a

collision occurred and he was killed. The court found that the contractual relations of the parties were not susceptible of any other conclusion than that the transportation of the plaintiff's husband from and to his home was part of the consideration moving from the company to him, and given him with the $1.20 in payment of a day's wages. This being so, he had virtually paid for his passage home in the car in which he was riding at the time of the collision, and was therefore a passenger and not an employee as soon as his day's work was done and he entered the car for the sole purpose of being carried home.

ton Nat. Bank v. Smith, decided by the Supreme Judicial Court of Massachusetts. The holding there is that where a bank has paid money on a check by mistake, it must tender the check before bringing suit to recover the money paid. The court says that "it has often been held that when one wishes to rescind a contract, and recover what he has paid under it, he must first restore whatever of value he has received. Snow v. Alley, 144 Mass. 546,

551, 11 N. E. Rep. 764; Bartlett v. Drake, 100 Mass. 174, 176. The reasons for this rule are fully applicable to the present case. The check, if unpaid, belonged to the defendant, and would be useful and valuable to him, to be used in connection with his own testimony, in establishing a claim against Herbert. It has been held that anything absolutely worthless, like a counterfeit bill, need not be returned. Brewster v. Burnett, 125 Mass. 68; Kent v. Bornstein, 12 Allen, 342; Snow v. Alley, 144 Mass. 546, 551, 11 N. E. Rep. 764; Reed v. Machine Co., 141 Mass. 454, 5 N. E. Rep. 852. But the check in the present case was not of that character. If, upon its presentation, payment had been refused, the plaintiff would have had no right to retain possession of it, and such retention against the defendant's will would have been a conversion; and if, after a payment had been made through inadvertence or mistake, the plaintiff sought to enforce a return of the money, it was its duty first to tender the check to the defendant. It would be of use to him, and he was entitled to have it before returning the money. The case of Evans v. Gale, 21 N. H. 240, is much in point, and the doctrine of this decision was affirmed in Cook v. Gilman, 34 N. H. 556. The same doctrine is implied in Coolidge v. Brigham, 1 Metc. (Mass.) 547, 550; Merchants' Nat. Bank v. National Eagle Bank, 101 Mass. 281, 285: Estabrook v. Swett, 116 Mass. 303; Bassett v. Brown, 105 Mass. 551, 558. See, also, Otisfield v. Mayberry, 63 Me. 197; Park v. McDaniel, 37 Vt. 594."

for a violation of a local option law in force in the particular county, forbidding the sale of liquor to any person. The court says:

The precise question under consideration was decided by the Supreme Court of Arkansas in Ruble v. State, 10 S. W. Rep. 262. We copy as follows from the opinion in that case: "Appellant sold one pint of ardent spirits to Peter Dees, a minor, without the consent of his parents or guardian. For doing so he was indicted for and convicted of selling liquor without license, and fined in the sum of two hundred dollars, and was indicted for selling alcoholic, ardent, and vinous liquors and intoxicating spirits to a minor without the written consent of his parents or guard. an. After he was convicted under the first indictment, he pleaded such conviction and not guilty to the second indictment, and was convicted of the offense therein charged, and fined. Were the trial and conviction under the second indictment lawful? It is some times difficult to determine whether the offense for which an accused party stands charged is the same offense of which he has been before acquitted or convicted, and this is the only inquiry in this case. Mr. Justice Blackstone says: 'It is to be observed that the pleas of autrefois acquit and autrefois convict must be upon a prosecution for the same identical act and crime.' 4 Bl. Comm. 336. In Com. v. Roby, 12 Pick. 496, Chief Justice Shaw, in delivering the opinion of the court as to what is necessary to constitute offenses charged in two indictments the same, said: 'It must, therefore, appear to depend upon facts so combined and charged as to constitute the same legal offense or crime. It is obvious, therefore, that there may be great similarity in the facts where there is a substantial legal difference in the nature of the crimes; and, on the contrary, there may be a considerable diversity of circumstances where the legal character of the offense is the same, as where most of the facts are identical, but by adding, withdrawing, or changing some one fact the nature of the crime is changed, as where one burglary is charged as a burglarious break. ing and stealing certain goods, and another as a bur glarious breaking with an intent to steal. These are distinct offenses. Rex v. Vandercomb, 2 Leach, 716. So, on the other hand, where there is a diversity of circumstances, such as time and place, where time and place are not necessary ingredients in the crime, still the offenses are to be regarded as the same. In considering the identity of the offense, it must appear by the plea that the offense charged in both cases was the same in law and in fact. The plea will be vicious if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact; as, if one is charged as accessory before the fact, and acquitted, this is no bar to an indictment against him as principal. But it is not necessary that the charge in the two indictments should be precisely the same. It is sufficient if an acquittal from the offense charged in the first indictment virtually includes an acquittal from that set forth in the second, however they may differ in degree. Thus an acquittal on an indictment for murder will be a good bar to an indictment for manslaughter; and, a converso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for mur. der. For, in the first instance, had the defendant been guilty, not of murder, but of manslaughter, he would have been found guilty of the latter offense on that indictment; and, in the second instance, since the defendant is not guilty of manslaughter, he cannot be

guilty of manslaughter under circumstances of aggravation which enlarge it into murder.' Chitty, in speaking of the identity of the offense necessary to sustain a plea of former acquittal or conviction, says: 'As to the identity of the offense, if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to he rules of law, to say that the offenses are so far the same that an acquittal of the one will be a bar to the prosecution for the other.' Tested by the authorities cited and quoted from, was appellant twice indicted for the same offense? The sale of ardent or spirituous liquor within and of itself is no offense. Whether it be criminal or not depends on other facts. One statute make it an offense to sell it without license, and another makes it an offense to sell it to a minor without the consent of his parent or guardian. The object of the two statutes are entirely different. The object of the first is the enforcement of the law which requires licenses to be granted, and fees therefor to be paid; and the other to protect the morals of minors, and prevent them from being led into intemperance. The act or circumstances which makes the sale illegal in one case is entirely different from the facts which make it an offense in the other. Under the first statute he was guilty if he had no license, although he sold to a minor with the written consent of his parent or guardian; and under the other he was guilty if he sold to a minor without the written consent of his parent or guardian, although he had or had not license. The acts necessary to constitute the offenses are so wholly unconnected and distinct as not to be comprehended the one within the other. The essential and constituent elements of the same are different. A party may be guilty of the one and innocent of the other, or guilty of both; and the acquittal of one is not an acquittal of the other. They are separate and distinct offenses. In holding that the two offenses charged against appellant are not the same, we are not without precedents. In South Carolina two statutes were in force at the same time. One imposed a penalty of fifty pounds on persons retailing liquors without li cense to persons of any description, and the other a penalty of $1,000 and imprisonment on those trading with a negro without a ticket. In State v. Sonnerkalb, 2 Nott. & M. 280, it was held that a person who sold liquor to a negro without license and a ticket was lawfully convicted under these statutes of two offenses, and subject to the penalties imposed by both. In State v. Taylor, 2 Bailey, 49, the same court held that the act of buying goods of a negro, knowing them to be stolen, subjected the purchaser to two punishments,-one for trading with a negro without a ticket, and the other for receiving stolen goods. And it was adjudged in State v. Inness, 53 Me. 536, that 'to punish a person for keeping a drinking house and tippling shop, and also for being a common seller of intoxicating liquors, although the same illegal acts contributed to make up each offense, is not a violation of the law which forbids a prisoner to be put in jeopardy twice for the same offense.' In Com. v, Harrison, 11 Gray, 308, it was held that a conviction for an illegal sale of intoxicating liquor is no bar to a subsequent charge of keeping open a shop for the transaction of business on the Lord's day, although the business transacted was the sale of liquor, for which the party had been previously convicted. And in State v. Faulkner (La.), 2 South. Rep. 539, it was held that the accused, who, being intrusted with cotton for a particular purpose by the owner, obtained money

on it from a third person, by falsely representing himself as the owner, and selling it to him, was lawfully indicted for embezzling the cotton, and for obtaining the third person's money under false pretenses, and that the conviction of the latter offense was no bar to a prosecution for the other."

INSURANCE MONEY COLLECTED BY LIFE TENANT-RIGHTS OF REMAINDER-MAN.-The decisions of the courts of the different States are not in accord as to the relation a life tenant bears to the real property which may be insured, so far as the remainder-men are concerned. All admit that, if the will or deed which creates the life estate requires a policy of insurance to be effected by the life tenant, the proceeds of such insurance should be used in rebuilding the property destroyed by fire, or put at interest, and that in the latter event all the interest earned is the property of the life tenant, as long as such tenancy lasts, and after that the fund is paid over to the remainder-men. But in those instances when the will or deed creating the life estate is silent as to insurance, and the life tenant insures the property, the courts of some of the States decide that the proceeds of such a policy may be received by the life tenant as her own property in fee. The Supreme Court of South Carolina has recently held to the contrary in Green v. Green, 27 S. E. Rep. 952, to the effect that where a life tenant of land with a building thereon insures the building in his own name, the money collected by him from the insurer on a total loss should be used in rebuilding, or should go to the remainderman, reserving the interest for life for the life tenant. The court said in part:

Our own State, along with others, holds the doctrine that a life tenant holds the relation of an implied or quasi trustee to the remainder men, and that any pro ceeds of a fire policy are subject to the laws regulat ing trusts. Clyburn v. Reynolds, 31 S. Car. 118, 9 S. E. Rep. 973. The case just cited evidently impressed ap. pellants as an obstacle in their path. Hence they first seek to differentiate their case from Clyburn v. Rey. nolds, supra, and, failing in that, they ask this court to overrule that case as wrong in principle. Looking to the differentiation of the one case from the other, it is proper that I should briefly state what was decided in Clyburn v. Reynolds, supra. It seems that James Chestnut, Jr., was both the life tenant in the tract of land known as "Sandy Hill Plantation," and also executor of the will under which he derived his life estate in that plantation. For several years he carried a policy of insurance against fire on the dwelling home situate on said plantation. Being in feeble health, he renewed the policy in his name as executor. It was not certain whether he had intended to have himself named as beneficiary of the policy in his own name, or in his name as executor. The

dwelling house was burned just before his death, and the proceeds of the policy were paid, which proceeds were claimed by his personal representative, on the one hand, and the remainder-men, on the other. This court decided that it was unimportant whether he intended the policy to be taken in his own name, or as executor of his father's will, and held that, in case of the total destruction of the insured property, the fund from the insurance policy thereon is substituted for the property, and the life tenant will be entitled to the interest for life, and the fund after life tenant's death will be payable to the remainder-men (citing Haxall's Ex'rs v. Shippen, 10 Leigh, 536: Graham v. Roberts, 8 Ired. Eq. 99). This court then proceeds to say: "In the case of Annely v. De Saussure, 28 S. Car. 505, 2 S. E. Rep. 490, an insurance policy taken out by one tenant in common was held not to inure to the benefit of the cotenant. One tenant in common is not in any sense a trustee for his cotenant, and has no insurable interest in his share of the property. A life tenant, on the other hand, is a trustee for the remainder-men, and is certainly liable for loss by fire caused by his negligence. He ought not to be allowed to put himself in a position in which he would have no motive for proper care of the estate, by having a policy of fire insurance, by which, in case of loss, he could substitute the full fee simple value of the buildings in place of his interest for life. We, therefore, think that a sound public policy requires that any money collected by a life tenant on a total loss by fire should be used in rebuilding, or should go to the remainder-men, reserving the interest for life for the life tenant. We quote, as appropriate, the language from 4 Wait, Act. & Def., 22, in reference to insurance beyond the value of the interest of the insured: 'And when the insurance is beyond the value of the interest at stake, the effect is the same; for, although the amount of the loss only can be properly recovered, there will be a hope of getting more.' It would be in the nature of 'gambling.' In accord with these views is the case of Parry v. Ashley, 3 Sim. 97; and our own case of Paper Co. v. Langley, 23 S. Car. 129; in which the court uses these words: 'If .. the defendants stood in the relation of quasi trustees towards the plaintiffs, then the money received by them for the insurance on the house of the plaintiffs belonged ex æquo et bono to the plaintiffs.'" The language used in this decision is plain and unmistakable. Evidently the judgment of the supreme court is bottomed upon the idea that the life tenant is an im. plied or quasi trustee for the remainder men. Once you admit this trust relation between the life tenant and the remainder-men, then the conclusion is inevitable that the life tenant cannot protect her own interest and disregard those of her quasi cestuis que trustent. Strongly the court depends upon an opposite course being against a sound public policy. Once admit that a life tenant can claim as her own an insurance for the full value of the dwelling house in case the same shall be destroyed by fire, the rights of the remainder-men will be jeopardized. We have given days to the study of this case, and after that study I am forced to say that, notwithstanding the evident hardship to this very remarkable lady in the management of business requiring sagacity and patience as well as great faith in the future of her native city, I have been unable to see how the decision of Clyburn v. Reynolds, supra, could be differentiated from the case at bar. Nor am I able to see why such a wise rule as is established by the decision in Clyburn v. Reynolds, supra, should be overridden or modified. It is true, some of the earlier cases do seem to limit

the doctrine of quasi trustee in a life tenant for the remainder-men to perishable property, but as years advance the courts are gradually brought to the view that such a relation subsists between them in the case of life insurance; and I cannot say that reflection and a careful study of the authorities and arguments have changed my opinion that Clyburn v. Reynolds, supra, embodies sound law.

SEIZURE OF FIXTURES UNDER JUDICIAL PROCESS.

A sues B in assumpsit, and in furtherance of his action procures a writ of attachment to be levied on a cotton gin as the property of B, but this cotton gin is located on the land of C and claimed by C as a fixture, and, con. sequently, as part and parcel of his, C's, realty. Now cotton gins placed on plantations for the purpose of ginning cotton are universally held to be fixtures, and to pass with the land. But cotton gins are portable, easily carried from one place to another, and can be very easily levied on under a writ of attachment and removed from land where they had been placed for use. What, under the facts stated, is C, who claims the cotton gin as a fixture, to do? As we have stated, a cotton gin placed on land for the purpose of ginning cotton becomes a fixture. If C does not take some action his cotton gin will be sold, removed from his land, and pass into the hands of others. It is certain that C cannot bring replevin, detinue or any action which is usually brought to recover personal property in specie, for the one reason, if no other, that the cotton gin under the facts is not personal property. And whilst, the statutory intervention by the claimant's issue gets around the objection of the property being in custodia legis-still you can no more file a claimant's issue for real estate, than you can bring detinue or replevin for real estate.2 Then, if there are no forms of action calculated to afford relief under the facts, and the property, being in the custody of the law by virtue of the levy of a writ of attachment thereon, prevents the resort to such forms of action, were they, the forms of action, otherwise adopted and applicable to the facts, and the statutory remedy of intervening in the suit by means of the claimant's issue, be1 McKenna v. Hammond, 3 Hill Law, 331; Richardson v. Bordin, 47 Miss. 71, 30 Am. Dec. 366.

2 Niblet v. Smith, 4 T. R. 504; Chitty on Pleading, vol. 1, p. 119.

ing refused because the subject-matter of the suit is realty, and not personalty, such being the facts, we are forced to the conclusion that there exists at law no remedy by which the property can be recovered in specie, that is, by which the particular cotton gin can be restored to C, who claims the same as having become a fixture, and being, therefore, a part and parcel of his realty. It is claimed that this reasoning savors too much of making important rights of property and useful and apt legal remedies subordinate to mere technicalities and quibbles of the law. It is said that the gin is as much a cotton gin as it ever was; is as readily portable, and can as easily be taken by an officer under a writ of replevin or other writ of seizure as it ever could, and that it is far more expeditious and much less expensive to all parties concerned, that the question of fixture vel non-be determined by C's simply intervening in the suit between A and B by means of the claimant's issue. But C could not file a claimant's issue in the suit between A and B without admitting that the cotton gin was personal property, that is, for C to file the claimant's issue in the suit between A and B would be for C to declare that the cotton gin was personal property, because only personal property can be recovered by the claimant's issue. Should C once admit that the cotton gin, under the facts, was personal property, he would be without a locus standi in court, since his only claim to the gin is based on the fact that the same had become and was a fixture and so part and parcel of the realty. So, then, there being no remedy at law whereby C, under the facts stated, can recover the property in question in specie, that is, can recover it as a cotton gin, he must, so far as the legal remedy in that form is concerned, suffer his property to be sold under the attachment writ or execution in the suit between A and B.5 Where there is an injury to matter affixed to the freehold, the law considers the injury as done to or suffered by the realty, and pays no regard to the thing itself; that is, the fixture, which may be removed from the land, is not

3 Cooley on Torts, p. 205; Hilliard on Torts, p. 67; Chitty on Pleading, vol. 1, p. 159; Fletcher v. Wilkins, 5 East, 283.

4 Freeman on Executions, p. 65; Chitty on .Pld. (13th Ed.) p. 413.

5 Chitty on Pld. vol. 1 ( Ed.), p. 304; Brown v. Mitchell, 102 N. C. 349; Faulcon v. Johnston, Am. St. Rep. 11.