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Interpretation of Trust Deed-Whether Annuity Derived from Capital or Income.

A trust deed provided that the trustees were "to keep and maintain the principal of said trust estates safely invested according to their best judg ment, and from the income thereof to pay me the sum of five thousand dollars ($5,000) each year during my natural life." Held: The principles of interpretation, applicable to cases of this kind, leave no doubt that the annuity is to be derived from income alone. Ibid.

Interest when Apportioned between Capital

and Income. Interest due on notes accrues from day to day, and when to be appropriated to income, may be apportioned, and unlike an annuity or dividend, which can be credited to income when payable, it is, when received, to be credited to income for the time during which it accrued. Ibid.

Losses how Apportioned between Capital

and Income. A part of a trust estate, created by a trust deed, consisted of notes due from an estate which was insolvent. Without going through a process of insolvency, after paying other debts against the estate in full, the remainder of the property, by the agreement of all the parties interested, was appropriated to the payment of these notes, and in consideration thereof the notes, both principal and interest, were discharged, though not paid in full. Held: the loss is to be borne pro rata by the principal and interest, and the interest less the loss thus ascertained, is to be credited to the income for the years in which it was earned and the remainder to the principal, except that portion of the interest earned before the date of the trust deed, which is to be credited to the principal. Ibid.

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Discretion of Trustees as to Management -When Court will Interfere. Where a trust deed requires the trustees to care for, manage, and keep the trust property according to their "best judgment," it is their discretion which the grantor confided in, and not that of the court. If not exercised in good faith the court may interfere, but not otherwise. It is for the trustees to decide whether repairs shall be temporary or permanent. Ibid.

13. JUDICIAL SALE-Identity of Newspaper Containion Advertisement.

The sheriff's return on the execution shows the notice of sale to have been made in "The Democrat," a newspaper published and of general circulation in Platte county, etc. The proof of publication made by the foreman describes the paper as "The Columbus Democrat." The affidavit of one of the publishers of said paper declares that "The Democrat" and "The Columbus Democrat" are one and the same newspaper. Held, that there is no conflict or inconsistency between the sheriff's return and the proof of publication; Kuhn v. Kilmer, S. C. Mich. Nov. 19, 1884; 21 Nov. Rep. 443.

14. PRACTICE-Guardian ad Litem of Insane party to Suit.

Whenever, in the course of a suit pending in a court

of general jurisdiction, it is made to appear that one of the parties to such suit is insane, or of unsound mind, and such party is not already under guardianship, or in case the general guardian of such party fails to appear in court and protect the interest of such insane party in such suit, it is the duty of the court to appoint a guardian ad litem for such party. But it is not error for a district court to refuse to appoint such guardian ad litem where its attention is first called to the insanity of such party upon the hearing of a motion to confirm a sale of real estate made on execution, issued on Kilmer, a judgment in an action at law. Kuhn v. S. C. Mich. Nov. 19, 1884; 21 N. W. Rep. 443. 15. RAILWAY COMPANIES-Condemnation Proceedings -Judgment on Motion of the Dismissal of Appeal— Attorney's Fees.

In proceedings for the condemnation of land for railroad purposes, an award was made by commissioners, from which the railroad company appealed to the district court. The corporation, giving the security required be section 24, c. 34, Gen. St. 1878, too possession of the property as authorized by that section. Afterwards the corporation entered a dismissal of its appeal, and a judgment of dismissal was thereupon entered. Held. (1) the judgment dismissing the appeal was a "final judgment" within the meaning of section 29, c. 34, Gen. St. 1878, as amended in 1881, (chapter 57,) and the corporation was required by that statute to pay the award within 60 days thereafter. (2) The corporation having failed to make such payment, the act of 1881 authorized the entry of a judgment, upon motion of the land-owner, adjudging, the condemnation proceedings abandoned, and awarding damages to him computed upon the amount of the award, at the rate of 10 per cent. per annum. (3) The including of attorney's fees in such a judgment was authorized. Minneapolis etc. R. Co. v. Woodworth, S. C. Minn. Nov. 29, 1884; 21 N. W. Rep. 476.

16. SALE ON CONDITION-Re-Sale to Innocent Third Party.

Plaintiff entered into a written contract with S., for the sale of a fire-proof safe, the title to remain in him until payment of the purchase price, no part of which was paid. The agreement was not acknowledged or recorded. The safe was sent by rail to S., and when it arrived at his place of residence, and while still in the possession of the railroad company, he sold it to D. & W., who had no notice of the agreement with plaintiff, and who paid him the price agreed upon and received an order for delivery, on which they procured it from the railroad company and sold it to defendants. Plaintiff brought an action for the recovery of the safe. Held, that S. had not such actual possession of the safe at the time of the sale to D. & W., as to bring the case within the meaning of Code, § 1922, and plaintiff was entitled to recover. Warner v. Johnson, S. C. Iowa, Dec. 2, 1884; 21 N. W. Rep. 483.

17. TELEPHONE POLES IN STREETS-Abutting Proprietors-Nuisance.

In Louisiana the State and municipal corporations duly authorized in the exercise of the right of eminent domain, and police are authorized to empower telephone companies to use the streets and sidewalks for the purpose of erecting poles and other works necessary for the transmission of intelligence, and to impose terms and conditions for the enjoyment of the privilege. Abutting owners, in front of whose premises such poles have been

erected with such authority, and after compliance with all the conditions imposed for the benefit of the public, have no occasion to ask for the removal of the same, where the poles do not specially and materially obstruct them in the free use of their property, or invade some vested right, and do not inflict upon them some injury which is not common to all other persons. Such persons have no fee in the sidewalk or street in Louisiana, and have no right to claim previous just compensation. Poles erected under such circumstances are not such nuisances as such owners can ask, successfully, to have abated. Irwin v. Great So. Tel. Co., S. C. La., Dec. 15, 1884.

servant are wilful and malicious so as to create a claim for exemplary damages, then, if the employer retains him notwithstanding, he will be held to have ratified the wrongful acts. But if no such acts appear in evidence, the employer may still retain his servant, without being held to have ratified his acts of mere negligence. This is what the case decides, and it is in entire harmony with the other decisions.

Mr. Alderson's thus unfairly arraying the Court of Appeals against the current of authority on simple propositions does a grave injustice, not only to the court, but also to himself, in the estimation of those who would like to see him achieve a reputation as a law writer. Jus.

CORRESPONDENCE.

THE LAW OF RATIFICATION.

Editor Central Law Journal:

Your Kansas City correspondent exhibits a commendable industry in gathering a large array of authorities on "The Law of Ratification," and other topics: but his excellent articles might be more assuring to the profession, if he would address himself less to quantity, and more to accuracy in his citations.

He says,

on page 482 of your journal, quoting from Judge Field: "To adoption and ratification there must be some relation, actual or assumed, of principal and agent." In a foot-note to this remark, he adds: "As to synonymous use of terms 'ratification' and 'adoption' see Here sundry cases are cited, and the list winds up with: "Contra, Barker v. Berry, 8 Mo. App. 449." On page 484, he says: "It is well settled that the act of an agent or servant, committed under such circumstances as to render the principal, or master, liable to exemplary damages may be ratified; and the ratification of such an act may be by retaining the agent, or servant, in the employ of the principal or master, etc." Again, after citing numerous authorities, he adds: "Contra, Edelman v. St. L. T. Co., 3 Mo. App. 503." Now, if your correspondent had taken the trouble to read the opinions, he would have found that the Court of Appeals decisions were not contra the other cases, but that each was in exact accordance with the others, respectively, on the points stated. In Barker v. Berry, Judge Hayden simply shows that the wife could neither adopt nor ratify the contract in question, because her husband was not her agent in making it; that "adoption" was as inapt as "ratification" in the case, precisely for the reason-expressed in other wordsthat "to adoption and ratification there must be some relation * of principal and agent." He refers approvingly to Garnett v. Berry, 3 Mo. App. 197, wherein Judge Lewis emphasizes the same rule. His suggestion of a shade of difference between "adoption" and "ratification" does not deny that the words are synonymous in their general acceptation. "Most synonymes have some minute distinction." "Words apparently synonymous, and really so in a majority of cases, have nevertheless each an appropriate meaning." (Worcester's Dictionary.)

In Edelman v. St. L. T. Co., the whole opinion impliedly admits that if the act of the servant had been "committed under such circumstances as to render the principal or master liable to exemplary damages," the employer's retaining him in service would have constituted a ratification. But because there was in the vhole case no evidence of any such acts on the part of the servant, therefore no ratification resulted from his "etention in service. In other words, if the acts of the

JETSAM AND FLOTSAM.

-ABOLISH COMMON LAW PLEADING.-E. M. Prince, Esq., of Bloomington, Ill., is out in a letter in the Chicago Legal News in favor of abolishing common law pleading. As Napoleon said: "It was time."

-GEORGIA LAW JOURNAL. This publication comes to us filled with a number of good things. It deserves patronage outside the State of Georgia, and it will have to have such patronage in order to live. The second number, November 8th, 1884, contains an interesting article by Hon. Louis F. Garrard, on Wager of Battle.

-LITIGATION DIMINISHING.-The Chicago Legal News says: The Supreme Court of this State will commence its January term at Springfield, on Tuesday the sixth day of January. It is expected that the docket will not be as large as usual. The attention of the people of the State has for the past six months, or more, been occupied mainly with matters relating to election, and as a consequence, legal as well as other business has decreased.

-PLANTERS LIEN LAWS.-The legislature of South Carolina has been struggling over the question of abolishing the law giving a lien on crops to merchants who advance supplies to planters. Against the law, it is urged that it encourages extravagance. On the other hand, it is urged that if it were abolished, it would be supplanted by the use of chattel mortgages, which would be more expensive to the planters than the lien given by the present law.

ELOQUENCE SPOILED. A Washington press dispatch says: There was a scene in the Court of Claims the other day which Missoulians especially will appreciate. Judge Dillon formerly of the United States Circuit bench, was before the Court in regard to some Pacific Railroad matter. He was advocating the interest of the corporation, and in the course of his remarks dwelt upon the enterprise and public spirit of the men who had come forward early with their money and brains to span the country with iron bands. He was saying something about the recognition these men would yet receive from the public, and to illustrate his argument he used language of this kind: "The people of the West already begin to realize that great honor is due those who originated this great undertaking. Mr. Benton, of Missouri, was one of those to whom this grand conception came earliest. As a tribute to his efforts the people of that State have erected a great bronze statue to him, in which they represent him as pointing to the West, with the prophetic declaration, "There is the East. There is India.'" "Yes, yes," ejaculated Chief Justice Drake, from the bench in his peculiar, jerky, half-te ance, "that statue looks just about as much like Benton as you do."

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THE CASE OF THE SURVIVORS OF THE YACHT MIGNONETTE.-This miserable case has excited considerable interest on both sides of the Atlantic, and, in the absence of anything more exciting to talk about, the newspapers have slobbered over it a good deal. Captain Dudley, of the yacht "Mignonette," together with the mate and boy, was cast away at sea in an open boat; and, when in the greatest pangs of hunger and thirst, they concluded that, as the boy had no family to care for, they would kill him in order to save their own precious lives. So, like two beasts, they opened a vein in his arm and sucked the blood out of him until he died. After having committed this horrible crime, God, in his inscrutable providence, permitted them to be rescued. They came home to England and confessed what they had done, as though it were a meritorious act.

They were tried for murder and convicted. Their conviction was affirmed by a full bench in the Court of Appeal, and they were sentenced to be hanged. The Home Secretary commuted their sentence to six months imprisonment without labor. They ought to have been hanged. There is only one rule to which men under such extreme circumstances are entitled to resort, and that is the rule of casting lots to see who shall die in order that the rest may live. The only parallel case in the law books of which we have knowledge is that of United States v. Holmes,1 in which that exuberant and graphic reporter, the late John William Wallace, exhausted all the italics and small caps in a large printing office, in his statement of the case. In that case a number of sailors and passengers had been compelled in a shipwreck to take to the sea in an open boat, which was weighted so heavily that it almost dipped the water. The sea began to freshen, and it became apparent that some of them would have to be thrown overboard to keep the boat from swamping. So the sailors con

11 Wall. Jr. 1. Vol. 20-No. 2.

cluded that as it was necessary to have sailors to navigate the boat, they would throw over the passengers. They threw several of them overboard, one after the other, but were careful to save their own precious carcasses as well as that of the negro cook. For this the mate

was tried for manslaughter in the United States District court at Philadelphia, and it was held as matter of law, that the case was manslaughter; for though sailor and sailor may lawfully struggle against each other for the single plank which can save but one, yet the sailor and the passenger are not on an equal footing. The sailor remains under a. continuing duty to carry the passenger safe ly; and to this end, if the life of either is to be sacrificed, it must be the life of the sailor rather than that of the passenger. In the case of the Mignonette there was no room for such casuistry. Unless sortition were resorted to, the dictates of humanity required that the boy rather than the men should live. But the men, simply because they were the stronger, pounced upon the boy and sucked out his blood. For this they ought to have been hanged; for while the moral guilt may have been diminished by the extreme circumstances under which the crime was committed, the law is interested in upholding the safety of the weak against the rapacity of the strong, especially under circumstances so peculiarly dangerous to the weak. It is essential for the protection of the weak when thus placed in extremis, that the strong should know that if they kill and eat the weak on sea, they must themselves die for it on shore. There is reason to suspect that one of the members of Lieutenant Greely's Arctic party was shot under the sentence of a mock court-martial in order that his judges might eat him. This affair ought to be sifted thoroughly, and if it be found true, those who committed the crime ought to be tried by Court-Martial and hanged.

FELLOW SERVANTS IN THE SAME EMPLOYMENT.-We are glad to lay before our readers in this number, the complete text of the very important decision of the Supreme Court of the United States, in the case of the Chicago Milwaukee & St. Paul R. Co. v. Ross, in which a limitation is put upon the doctrine that a master is not liable for an injury to one

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servant, caused by the negligence of another servant, engaged in the same common ployment with the servant injured. The limitation relates to what is to be deemed the same common employment, within the meaning of the rule; and the court held that the conductor of a freight train in charge of its movements, and the engineer of the same train in charge of its engine, are not fellow servants within the rule, but that the conductor is the vice-principal of the master. Although four of the judges dissented, this decision justifies the confidence which the public have always reposed in the Supreme Court of the United States, where questions of popular right are involved. The decision of the Supreme Judicial Court of Massachusetts in Farwell v. Boston & Worcester R. Co.,1 where the doctrine which exempts the master from liability was first formulated and enforced by the powerful reasoning of Chief Justice Shaw, has never been entirely satisfactory to the profession. A candid mind will weigh that decision again and again, and still ask itself why the rule of respondeat superior, which applies in every other situation, should not apply in the situation of an employee injured by a fellow employee. We are told that there is an implication that the master and servant agreed that the master would not be liable in such cases. But it is a well settled limitation upon the doctrine of implied contracts, that the law never implies a contract contrary to the plain justice of the case; and neither Chief Justice Shaw, nor any other Judge, has ever satisfactorily told us what justice there is in a rule which makes one man an insurer against the carelessness of another man's servant whom he does not employ, whom he can not discharge, and over whom he can not exercise any control. Then, if we consider the other reason which is advanced in support of the rule, that it is necessary to conserve the safety of the employees themselves, because it makes them insurers of each other's carelessness, and consequently watchful over each other's conduct, it is absurd to apply it, except in the case of servants who are laboring together on a common footing, where they can watch each other and check each other. It can not, upon any principle of sense, be applied in the case

14 Metc. 47.

of servants laboring in situations remote from each other; nor can it be applied so as to make an inferior servant a spy upon his superiors, a principle which would produce insubordination among the servants of a railway company, as quickly as it would destroy the discipline of an army. In the decision. elsewhere published, the court were right, beyond all question, in refusing to visit upon the engineer, the consequences of the negligence of the conductor in going to sleep in the caboose, a fact of which the engineer may-have known nothing, and which he could not have prevented if he had known it. Chief Justice Shaw's decision was founded upon a reason which is not stated in the opinion itself. That reason was, that courts of justice ought to conserve the rights of property. The real underlying principle of it was precisely the same as in that unfortunate expression of Mr. Webster, in one of his public speeches, which lost him the presidency, that government is founded upon property. It was a decision in favor of property, and against poverty. But it is the office of government to hold the scales of justice equally between property and poverty. American institutions are especially beneficent; and it best accords with their spirit, that, if the scales are to tip either way, they shall tip in favor of the poor and helpless, rather than in favor of the rich and powerful. Nor does the decision elsewhere published, make a rule that will necessarily inflict loss upon railway shareholders. Railway companies adjust their charges by their operating expenses: and the compensation which, under the operation of this beneficent rule, is paid to the maimed employee, is ultimately distributed against the great public, by whom it is not felt. In this respect, the rule works simpler and better than Prince Bismarck's idea of a governmental insurance for working men. It is worthy of note that, in the very home of the unjust and untenable doctrine, that a master is not liable for the wrongs done by one servant to another servant engaged in the same employment, it is about to receive its death blow through legislative action,-the Massachusetts legislature having several bills to that end now before it.

THE INDEPENDENCE OF THE BAR.-A chapter in the works of David Dudley Field, (which

have appeared in two volumes, has revived the memory of the proceeding against that great lawyer for contempt before Judge Noah Davis, of the Supreme Court of New York, in the case of Tweed, whose counsel Mr. Field was. The zeal with which Mr. Field defended Tweed was worthy of him as a lawyer, but it was also worthy of a better client and of a better cause. But he was entitled to the rights of advocacy, and these seem to have been overridden by Judge Davis, in citing him for contempt merely because he found it his duty to present to the court his protest against Judge Davis' sitting in the case. The Law Times, (London), has the following to say with reference to it:

There is one other portion of the work which is of deep interest, and that is to be found in the remarks upon Judge Davis and the Contempt proceedings. The history of this case is such as to make us feel with more than usual strength, the value of the traditional dignity and honor of the English Bench and of the integrity and courage of the English Bar. The brief summary of the facts is, that Judge Davis twice tried the same prisoner, that on the first occasion he summed up against the prisoner, and upon the second, counsel for the prisoner handed up a formal protest that Judge Davis ought not to try the case. This protest, after consultation with his brother judges, he treated as a contempt, and his address to the counsel in contempt was received with applause by the junior bar, which as usual, had crowded the court. We can only say that if the law allowed such a thing in England, the honor of the judges would prevent the law from being followed; and we trust the day is far distant when such an address as was delivered by Judge Davis would be received with acclamation by any member of either branch of the profession. Note well, that Judge Davis' monstrous tyranny was the fruit of consultation with his brethern. The conclusion is, that his victims were the only men who emerged from this disgraceful scene without blemished reputation, and that Englishmen may be pardoned if they do not yet see the necessity of Americanizing their judicial system.”

It has been held contempt for an attorney to charge the judge with prejudice in a motion for a new trial,' but not in a motion for a change of venue.

1 Harrison v. State, 35 Ark. 458.

2 Ex parte Curtis, 3 Minn. 274. Some very sound views as to the limits of advocacy will be found in Matter of Pryor, 18 Kan. 72, and Re Woolley, 11 Bush. (Ky.) 95.

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1. Duty of Carrier Generally.-For a common carrier to refuse reasonable and equal terms and facilities of transportation to all alike, is forbidden by the common law, and in most of our states by statutes more or less minute and stringent, according to the attitude of the people and legislature towards the corporations.

2. Remedies for Discrimination.-The remedy for unjust discrimination is a suit for damages, and by statutes in some states are given double and treble damages and attorney fees.

That the action for damages is not in all cases an adequate remedy is easy to be seen. It is emphatically true in our rapid and competitive age, that time is money. If the course of business is blocked for a single day the whole community feels it. What the farmer or merchant wants is to have access to his market, to have cars furnished him, rather than to be relegated to his choice between an action against the railroad company for refusing to carry, or one to recover back excessive charges paid it, with all the chances and delays to which an action at law is liable.

3. Use of the Writ of Injunction.-Lord Chancellor Cottenham declared, that he thought it the duty of a Court of Equity, "to adapt its practice and course of proceeding as far as possible to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice and to enforce rights, for which there is no other remedy." This remark, we think, is worthy

1 Taylor v. Salmon, 4 Mylne & Craig 141, cited in Redfield on R. R., p. 342.

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