on. In another case27 it was said, "that for certain purposes and to a certain extent the court of a justice of the peace is to be regarded as a court of record."

Here it was further held that a judgment rendered by a justice in a sister state, although not within the act of Congress for the authentication of records is a judicial proceeding, within the first section of Act 4 of the Constitution of the United States, and that a transcript of such judgment is to be regarded as a specialty under the statute of limitations.

Again in later case in the same state we find the court declaring the law to be: "The jurisdiction of a justice of the peace in this state is inferior and limited; to support a judgment of his court, the record must show that it had obtained jurisdiction over the person of the defendant."28

In the opinion in this case it is said "it is otherwise as to courts of record of general jurisdiction."20

When jurisdiction is shown by the record then the judgment of a justice of the peace is as impregnable against collateral attack as the judgment of any other court.30

A justice's court will not be presumed to be a court of record, unless it is shown to be such by the law of the state, where the judgment is rendered.31

As a general rule only judges of courts of record have power to make nunc pro tunc entries, and therefore if justice's courts are not courts of record the justice would have no such power. However, as the basis for the power to put on a nunc pro tunc entry is solely for the purpose of preventing a failure of justice, there seems to be no good reason why the justice should not exercise this power. True there might sometimes, by reason of not having a clear understanding, on the part of the justice as

to what the facts were, be a miscarriage of justice and it would not be beyond the pale of supposition that sometimes the justice might, through means not clearly approvable, sanction an order of this kind that would not secure justice.

But these same objections are not without force as against the exercise of the power of a judge of a recognized court of record, to make a nunc pro tunc order.

As a rule, notwithstanding what may be said about the singular ways and peculiar methods sometimes exercised by the justice of the peace, as an official of the law, they are honest men.

When Wouter Van Twiller counted the pages in the account books of the contesting merchants in the action before him and finding them to be equal in weights and number, thereupon dismissed the case and assessed the costs to the constable, there is no doubt cast upon his honesty and integrity.

When something is actually done by a justice in the trial of a cause which has been omitted to have been made a matter of record; all ideas of justice point to the fact that the justice of the peace should correct or supply the omission.

And at least one court has fully recognized this when it held that a justice of the peace may correct a judgment rendered by his predecessor in office, by a nunc pro tunc order to make it conform to the truth.32

"Cyc," however, states the general rule to be "except where authority is conferred on justices of the peace to grant new trials. the weight of authority is to the effect that they have no power to change or in any manner to interfere with, judgments which they have rendered."33

This assumes that the judgment has been rendered, not that it has been made a matter of record-In a case within the writer's knowledge, under a law which required the justice to render his judgment within three days from the time of trial and the justice's

(32) Gates v. Bennett, 33 Ark. 475.
(33) 24 Cyc. 604.

of 1909, and the breach of duty alleged is that the fluid was kept in a can not labeled and not painted red. It is averred that, while plaintiff was in the exercise of due care, Larson, as the result of the negligence of defendant, procured the can and poured some of the fluid in the stove; "the said plaintiff not then

W. M. ROCKEL.

Springfield, Ohio.

ACTION-STATUTORY DUTY.

MOLIN v. WISCONSIN LAND & LUMBER

CO.

(Supreme Court of Michigan. Nov. 3, 1913.)

143 N. W. 624.

Where a statute imposes a duty for the benefit and protection of individuals, the common law, when an individual is injured by a breach thereof, will supply a remedy though the statute gives none, and consequently, as Pub. Acts 1909, No. 37, requiring receptacles containing gasoline, etc., to be plainly marked, provides no remedy for persons injured by its breach, the remedy is under the common law.

OSTRANDER, J. The case made by the declaration is briefly stated. Defendant owned a small building used as a blacksmith shop. Plaintiff with others, including one David Larson, was employed by Alfred Paulson to load forest products upon cars in the vicinity of the shop. Defendant permitted Paulson's men to use the shop for warming and eating dinner and to make a fire in a stove in the shop. Defendant kept and maintained in the shop, in a can, a quantity of gasoline, or benzine, or naphtha. There are three counts in the declaration, varied by alleging in one that the can contained gasoline, in another that it contained benzine, and in the third that it contained naphtha. Going into the shop on March 3, 1911, the plaintiff and Larson proceeded to build a fire in the stove, in doing which Larson poured some of the fluid from the can into the stove. The fluid was ignited by coals of fire which were in the stove, there was an explosion, and plaintiff was injured. The duty of defendant is alleged to be to keep the said gasoline (or benzine, or naphtha) in a receptacle painted red and stenciled gasoline (or benzine, or naphtha), as required by Act 37 of the Public Acts

can to be gasoline" (or naphtha, or benzine) but supposing it to be kerosene oil. To the declaration defendant demurred for the reasons: "(1) Because the declaration fails to allege any such state of facts or such active wrongdoing or wanton or gross negligence as make the defendant liable under the license or permission granted by it to plaintiff's employer, Alfred Paulson, permitting his employes, including plaintiff, to enter and use the stove in the blacksmith shop of the defendant for the purpose therein mentioned. (2) Because

it appears from said declaration that, at the time the accident occurred resulting in the injury to the plaintiff, the premises were not being used in accordance with the permission granted to Alfred Paulson, the employer of the plaintiff. (3) Because it appears from the declaration that the plaintiff was guilty of contributory negligence as a matter of law. (4) Because it appears from the declaration that the plaintiff did not belong to the class of per sons which Act No. 37 of the Public Acts of 1909 (the violation of which by the defendant is charged to be negligence) is intended to protect. (5) Because it does not appear from the declaration that the defendant belongs to the class of persons who are required by said act to keep gasoline, naphtha, or benzine in the receptacles mentioned in said act and marked as provided therein. (6) Because it does not appear that the defendant violated said Act No. 37 of the Public Acts of 1909. (7) Because the failure to label the can containing gasoline, naphtha, or benzine was not the approx imate cause of the injury. (8) Because under the facts as stated in the declaration the de fendant owed no duty to the plaintiff to label said can in accordance with said statute. (9) Because it does not appear from the facts as stated in the declaration that the defendant was guilty of any negligence." The demurrer was sustained and a judgment was entered that plaintiff take nothing by his suit and that defendant go thereof without day. It does not appear that any amendment of the declaration was or is desired.

[1, 2] The case cannot be disposed of on the second, third, fifth, or sixth grounds of demurrer. Fairly interpreted, the declaration charges defendant with a violation of the stat

ute. The command of the statute is: "Every person purchasing gasoline, benzine or nàphtha for use or sale at retail shall procure and keep the same only in barrels, casks, jugs, packages or cans painted and lettered as herein before provideed"—i. e., in red cans having the word gasoline, or benzine or naphtha, plainly letter ed in English thereon. We must therefore consider the question whhich is raised by the other asserted grounds of demurrer.

It

The statute imposes a duty as a regulation of police, and it provides that, if the duty is neglected, a penalty, which may be a fine or imprisonment or both, may be imposed. does not otherwise point out the consequences of its violation. The authorities recognize as a general rule that, where the duty imposed by a statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty. will supply a remedy if the statute gives none. See Barfoot v. White Star Line, 170 Mich. 349, 136 N. W. 437, and authorities cited in the opinion. The duty imposed by this statute is in fact calculated to protect, and we have no doubt was intended to protect, individuals.

[3] It is said by appellant that the statute is intended for the protection of the public; that plaintiff "was rightfully upon the premises and, being a part of the whole public, was entitled to the protection of the statute." But a duty owing to everybody can never become the foundation of private action at law until some individual is placed in a position which gives him particular occasion to insist upon its performance; it then becomes a duty to him personally. Illustrating by the facts before us, whether defendant obeyed the statute was a matter of no personal consequence to plaintiff so long as he remained away from defendant's blacksmith shop or, being rightfully in the shop, so long as he did not use defend. ant's property to build a fire. Assuming that defendant violated the statute and that keeping the gasoline (or benzine, or naphtha) as it was kept was negligence per se, was plaintiff a person having the right to insist that the duty be performed-to insist that defendant owed him any duty? In argument appellant seems to make the answer to this question depend somewhat upon what Larson did. Larson, it is averred, found the can and poured some of its contents into the stove; plaintiff supposing that what the can contained was kerosene oil. The enterprise of building a fire was a joint one, undertaken for the benefit of both Larson and the plaintiff, and involved, on the part of both, the use of defendant's oil.

It is not a case where the can and its contents came rightfully into the hands of Larson for use. Both were on the premises of defendant by permission. Neither had been invited to use them, and neither of them had any business to transact with defendant there. The relation of each to the premises and to defendant was that of a licensee. Did defendant owe them the duty to see that his gasoline (or benzine, or naphtha) was kept in a red can? We think the answer must be "no" unless in giving permission to build a fire, defendant ought to have considered that the men were likely to use his kerosene oil for that purpose and might suppose the can in question contained kerosen oil. The plaintiff has not averred a custom or practice in the locality or generally of starting fires in stoves with oil, by reason of which defendant ought reasonably to have anticipated that his licensees would search for his oil and use it to start a fire. We know of no general custom or practice to make such use of kerosene oil.

We conclude that the declaration alleges no duty owed by defendant to the plaintiff, and therefore affirm the judgment.

NOTE.-The Statutory Purpose of Protection as Ground of Right of Action for its Violation.-It has sometimes been said, generally, that the mere violation of a statute causing injury to another gives him a right of action for damages against the violator. But this language seems too broad. The instant case rather is fore correct in saying that where there is a statutory duty imposed for protection of individuals and injury flows from its breach, a right of action arises.

The Supreme Judicial Court of Massachusetts in discussing a statute prohibiting employment in factories of children under fourteen years of age, said: "The statute has to do with the protection of childhood. It pertains to a subject of universal intent fundamentally vital in its broader bearings to the future of mankind. These considerations require the inference that the remedy intended by the legislature against the delinquent employer was not confined to the criminal one. The right of civil action in addition may well have been regarded as a more efficacious means of compelling observance of the law. Therefore, while the public purposes of this act are important, any member of the public so situated with reference to its subject matter as to suffer special damage by its infraction has a right of action against the violator of the statBerdos v. Tremont & Suffolk Mills, 209 Mass. 489, 493, 95 N. E. 876.

ute.'

We will suppose in an action under this statute, a suit brought by another than a child, that one not being his parent, upon the theory that the incompetency of the child as a fellow servant had brought about injury. We imagine according to the reasoning of the court, that the statute would cut no figure in such a case, because it was not designed for a third person's protection.

Therefore, mere violation of a statute to which criminal punishment does not in itself give a third person injured thereby a right of action against the violator-the statute not being intended for his protection.

This theory of violation of statute or ordinance having its only consequence in the prescribed penalty is illustrated in a case referred to in the case just cited, viz: Dahlin v. Walsh, 192 Mass. 163. 77 N. E. 830. The plaintiff sued the tenant of abutting property for damages from injury in a fall caused by accumulation of snow and ice on the sidewalk. In holding the tenant not liable the court said: "He owed no duty to the plaintiff to keep the sidewalk clear of ice and snow coming thereon from natural causes whether or not any public duty was imposed upon him by the ordinances of the city." This court has held it to be well settled that a person carrying on a business contrary to the provisions of a statute is liable to any person iniured thereby. Moeckel v. Cross & Co., 190 Mass, 280, 76 N. E. 447. But that was said in a nuisance case and this general language would seem limited by the two cases above cited which are later.

In Baxter v. Coughlin, 70 Minn. 1. N. W., there is discussed a statute prohibiting officers, etc., of an insolvent bank receiving deposits, knowing the bank is insolvent, making the doing so a criminal offense. This case was an action by a depositor against directors for damages. Upon demurrer the petition was sustained, the court saying: "The purpose of this statute is to protect depositors in a bank by punishing its officers for receiving deposits when the bank is insolvent.

This case falls within the rule that where a statute for the benefit and protection of individuals prohibits a person from doing an act, or imposes on him a duty, if he disobeys the prohibition or neglects to perform the duty, he is liable to those for whose protection the statute was enacted for any damages resulting proximately from such disobedience or neglect."

In a fire escape case in New York, it was urged by defendant that the sole remedy under the statute was the public remedy, which was in enforcement of the penalties provided. The court said: "The requirement of fire escapes was for the direct and special benefit of the operatives of such factories, and intended for their protection, and the rule applies that when a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage for a wrong done him contrary to its terms." Pauley v. Steam Gauge & L. Co., 131 N. Y. 90.

Similarly it was spoken in Rose v. King, 49 Oh. St. 213, in a fire escape case, the contention being made that a tenant in the second story was not among those for whose protection the statute was designed, no two-story building being required to have fire escapes. The court said: "This proposition would have force if the number of people likely to need means of escape in a building of three or more stories would not be greater than in a two-story building." This shows that the court will proceed upon slender basis to ascertain that a statute may be intended for benefit of individuals in addition to enforcement of public policy, but cases might be multiplied with expressions such as we have instanced, carrying

PROGRAM FOR MEETING OF SOUTH DAKOTA BAR ASSOCIATION.

The next meeting of the South Dakota Bar Association will be held in Sioux Falls, on Wednesday and Thursday, January 14 and 15, next.

The president's address will be delivered by the present president of the Association, Judge James H. McCoy of the Supreme Court of the State, of Aberdeen, South Dakota.

The annual address before the Association will be delivered by Dean William R. Vance of the Law School of the University of Minne. sota of Minneapolis upon the subject, "Some Modern Lessons from an Ancient Court." There will be at least five other papers on the program, but the association has not been defi. nitely advised by the speakers of the topics.

BOOK REVIEW.

MCQUILLIN MUNICIPAL CORPORATIONS, VOL.

VI.

This great work is concluded with volume VI, and the author, Judge Eugene McQuillin, of St. Louis Circuit Court, has a monument to his name that will long endure.

In text notes and citations of authority the six volumes take up 5776 pages and the table of cases and index run the paging to 6425. A world of work, pains-taking and devotion to an ideal are here exemplified.

For the general character and thoroughness of the work we could only repeat our commendations in former reviews, 74 Cent. L. J. 108; 71 id. 195 and 77 id. 237.

These volumes are usable in size, handsome and substantial in appearance, all that could be wished for in readable type and issuing from Callagan & Company, Chicago, the concluding volume being of 1913.

This is a revision and enlargement of Judge Kelly's second edition of Criminal Law and Practice, a work of wide-spread use and recognized authority in Missouri, by Mr. Jay M. Lee, of the Kansas City Bar. Authority is brought down quite closely to date, the latest case upon which our eye has fallen being 245 Mo. 459, 150 S. W. 1038, here being, as stated in preface, cases in 246 Mo.

This work is SO very familiar to Missouri practitioners that it has been deemed advisable to preserve old section numbers and adding other sections under an old number by adding letters thereto.

The work needs no praise, and to say it corresponds to latest revision, and includes in citation, the National Reporter System, L. R. A. and Trinity System, is all of what information may be given.

The volume is attractive from the printer's standpoint, with its binding of law buckram and issues from the Vernon Law Book Company, Kansas City, Mo., 1913.

KELLEY'S JUSTICE TREATISE, 5TH ED. This well known book in Missouri practice of law, its first edition beginning in 1869 and continuing on down as new versions of the statutes of that state and new decisions thereon, demanded new editions, appears in fifth edition to conform to the revision of 1909.

The plan so popular and so well understood by Missouri attorneys and justices could not be changed but for weighty reasons. It only needed to be kept abreast of statutory changes, necessitating in some instances changes in forms and of new decision interpreting these statutes, and this work has been done very thoroughly by Mr. W. W. Herron, of the St. Louis Bar.

Much advance has been made in the printers' and book binders' art since the fourth edition appeared in 1901, and all these are secured in the fifth edition, coming from the well-known lawbook house of Vernon Law Book Company, Kansas City, Mo., 1913.

In a town of upper New York they tell of a certain Deacon Potter, a man of great eccenThis deacon tricity but high moral character.

On

would tell the truth and shame the devil. one occasion a friend was engaged in a lawsuit in regard to some land a few miles from Utica. He held that land at a high price. During the trial he called the deacon as a witness. The deato prove how valuable the land was. con was sworn and asked if he knew the land. "I know every foot of it," he said. "Very good. What do you think of it?" The deacon paused for a moment as if to make sure that he would return an appropriately emphatic reply, and then said:

"If I had as many dollars as my yoke of oxen could draw on a sled on glaze ice I would not give a dollar an acre for it."-Green Bag.

Pat was brought before Police Judge George W. Stocker, in the Spokane Police Court, charged with drunkenness. After the testimony of the officer making the arrest, Judge Stocker asked: "Well, Pat, what have you to say this time?" Evidently this was not Pat's first appearance before the judge.

Says Pat, with all the accents of a native son of Ireland: "Yer Honor, I've been workin' in the saw mill up North and just came to yer city last Saturday, and I've been drinkin' some, but, yer Honor, won't ye please exercise yer keen sense of justice and let me go? I'll leave town immediately, if yer Honor will just exercise yer keen sense of justice and discharge me this time. Please, yer Honor, won't ye exercise yer keen sense of justice and give me a chance to get out of town?"

His Honor, apparently much impressed with Pat's pleading and frank open countenance, said to Pat: "Pat, I will give you a sentence of five days in jail and suspend it on condition that you leave town this afternoon."

Pat very politely thanked his Honor for exercising "his keen sense of justice" and with a bow to the court and the bailiff, Pat left the courtroom with a broad smile on his face, and much to the amusement of those present.