may even escheat to the State, that, especicially in this migratory age and country, the testator may change his domicile and defeat the jurisdiction of the court whose aid he has invoked to register his intentions, that he may sell his property, or give it away, or fool it away and become bankrupt. The court says further: "It is a singular, and in my judgment a very unfortunate spectacle to see a man compelled to enter upon a contest with the hungry expectants of his own estate and litigate, while living, with those who have no legal claim whatever upon him, but who may subject him to ruinous costs and delays in meeting such testimony as is apt to be paraded in such cases." All this is most righteous truth, and in the following sentence the court effectually disposes of the question. "The broadest definition ever given to the judicial power confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs."

NOTES OF RECENT DECISIONS.

The pro

THE PROVINCE OF THE JURY SCINTILLA OF EVIDENCE' ORDERING VERDICT. The province of the jury and the circumstances under which the court can properly interfere therein is very thoroughly considered in an able opinion by Judge Speer of the United States Circuit Court for Georgia, in a case recently before that court. The gravamen of the action was a question of negligence, but we are spared the necessity of considering any phase of that well worn subject by the fact that the court felt it to be its duty to order a verdict for the defendant. priety of such a course, when the court is satisfied by the evidence that it is the duty of the jury to render such a verdict, was the point so fully considered by the court. The court lays down the rule thus: "The question whether or not negligence existed is generally a question for the jury. It has been held that the case should always go to the jury: (1) when the facts which, if true, would constitute evidence of negligence, are controverted; (2) where such facts are not controverted, but where there might be a fair

1 Hathaway v. East Tennessee, etc. Co., U. S. C. C. (Ga.), October Term, 1886; 29 Fed. Rep. 4 39.

difference whether the inference of negligence should be drawn; (3) when at the same time the facts are in dispute, and the inferences to be drawn from them are doubtful. In other words, the question of negligence is for the jury when there is substantial doubt as to the facts, or as to the inferences to be drawn from them."

If, however, the evidence is such that, admitting all of it favorable to the plaintiff to be true, no fair inference can, under the law, be drawn that he ought to recover, it is then the right, and indeed the duty of the court, to decide the case by peremptory instructions. In some of the States, among others Georgia, the rule is that, if there is any material evidence, however slight, even a mere scintilla of proof, tending to support the demand of the plaintiff, the case must go to the jury, because they are the judges of the weight of evidence.2 If this rule is carried to the extent of holding a verdict, even founded upon clearly inadequate evidence, absolutely conclusive, because it is the province of the jury to decide upon the weight of evidence, it is manifestly unjust, unreasonable, and even absurd; if, however, it means that the sanctity of jury trial must be preserved by permitting a verdict, clearly wrong, to be rendered, and then awarding a new trial, it only tends to increase expense, delay, and possible, and even probable failure of justice. The federal courts do not recog

nize this doctrine. Mr Justice Clifford says: 3 "Judges are no longer required to submit a case to the jury merely because some evidence has been offered by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party adducing such evidence. Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to-wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evi

dence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed."

In older cases, the same conclusion is reached. In the last cited case Mr. Justice Swayne says: "The practice is a wise one. It saves time and costs. It gives the certainty of applied science to the results of judicial investigations. It draws clearly the line which separates the province of the judge and jury, and fixes where it belong the responsibility which should be assumed by the court."

Without controverting this dictum, we may be permitted to question the assertion that "it gives the certainty of applied science to the results of judicial investigations." We hardly think that mathematical certainty can. be predicated of anything connected with the administration of the law-except the costs. Mr. Justice Miller asks: "Must the court go through the idle ceremony in such a case, of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that, if the jury should find a verdict in favor of the plaintiff, that verdict would be set aside and a new trial had? Such a proposition is absurd; and, accordingly, we hold the true principal to be that, if the court is satisfied that conceding the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the courts should say so to the jury."

The English practice it is almost unnecessary to say is in full accord with the doctrine on this subject held by the Supreme Court of the United States. In several of the American States the ancient rule of throwing everything to the jury if there is a scintilla of evidence, is renounced as in Maryland, Missouri and New York. The practice is undoubtedly a most fruitful source of new trials, mistrials and improper verdicts. In the case under consideration the court concludes its

enced and able judges who preside int he courts of the State, qualified to sift testimony, experts in the detection of fraud and falsehood, unprejudiced, are absolutely powerless to aid the jury to ascertain the truth, and to make a proper verdict. Thus the people are in a large measure deprived of the best results of the skill, training and experience of their judges. The judge may lay down general instructions as to the law. Here he must stop. In the language of a gifted publicist of the day, Mr. Thompson, the author of the Law of Negligence:

'Such a system is scarcely more wise than it would be to select a lawyer, a doctor, a clergyman, a farmer, a merchant, a carpenter, a shoemaker, a blacksmith, a saloonkeeper, a street-car-driver, a capitalist, or a barber, constitute them a ship's crew, and start them out on a voyage in company with an experienced navigator, who is permitted to give them general instructions on the theory of navigation, but who is prohibited from giving them any positive order how to navigate the ship, and from correcting any blunders they may make in navigating it."

My own opinion is that the terrible burden born by the supreme appellate court of the State is largely traceable to this injurious statute."

1. How Long the Right Continues.
2. Delivery on Vendee's Vessel or Wharf.
3. Delivery to Warehouseman.

4. Delivery to Forwarding Agent.
5. Interception of Goods by Vendee.
6. Part of Goods not Delivered.
7. Attachment Laid by Vendor.

8. Attachment at Suit of Third Party.
9. Assignment of Bill of Lading.

1. How Long the Right Continues.-The right of stoppage in transitu, to be exercised by the vendor of goods on credit, upon dis

4 Parks v. Ross, 11 How. 378; Hickman v. Jones, 9 Wall. 197, 201; Merchants' Bank v. State Bank, 10 Wall. 604, 637.

5 Pleasants v. Fant, 22 Wall. 116, 121, 122.

6 Jewell v. Parr, 13 C. B. 196; Toomey v. London, etc. Co., 3 C. B. (N. S.) 150; Wheelton v. Hardisty, 8 El. & Bl. 262.

continues, as the phrase implies, while the goods are in actual course of transmission from the former to the latter. If they have arrived at their place of ultimate destination, and have come into the real or constructive possession of the purchaser, or of

some

re

agent authorized to act in spect to the disposition of them otherwise than by merely forwarding them to the vendee, then the transit is at an end, the seller has no longer a right to retake them, his anomalous control over them is terminated by the change of possession, and he must fall back upon the other remedies which the law gives him as against the insolvent purchaser.1 Without stopping to examine the foundation of this right, or the peculiar character of the vendor's lien upon the goods, it is our present purpose to ascertain what will constitute such a delivery, actual or constructive, to the vendee, as to defeat the right. Of course, if the purchaser acquires actual, manual control of the thing purchased, and places it in his shop or warehouse, there can be no difficulty in recognizing the delivery to him. But in regard to other modes of acquiring possession-and especially where it is constructive-questions of some nicety occasionally arise.

For

2. Delivery on Vendee's Vessel or Wharf.The right of stoppage in transit does not exist after the goods have been delivered on board of the vendee's vessel, by which they are to be carried to another port.2 where the owner sends his own servant for the goods, delivery to the servant is a delivery into the actual possession of the master. And it is therefore held that, if the buyer sends his own vessel, or his own cart, for the goods, they have reached the buyer's actual possession, and the right of stoppage in transitu has ceased, as soon as the seller has delivered them into the vessel or cart.3 So, also, the landing of goods upon a wharf is delivery, terminating the transit and divesting the vendor's right of stoppage, when by such landing all the duties and responsibilities of the transportation line in regard to the goods cease, and no duty or responsibility is cast upon the wharfinger, and the

1 Coates v. Railton, 6 B. & C. 422; Cabeen v. Campbell, 30 Pa. St. 254; Mohr v. Railroad, 106 Mass. 67; Blackman v. Pierce, 23 Cal. 508; Aguiree v. Parmelee, 22 Conn. 473; Chandler v. Fulton, 10 Tex. 2; Thompson v. Railroad, 28 Md. 396.

2 Pequeno v. Taylor, 38 Barb. 375. But in Parker v. McIver, 1 Dessau. 274, it was thought that delivery of goods to the captain of a ship, fitted out by the purchaser solely, is not such a delivery as to take away the vendor's right to stop the goods in transit.

3 Ogle v. Atkinson, 5 Taunt. 759; Turner v. Trustees, 6 Exch. 543; Thompson v. Stewart, 7 Phila. 187.

goods lie on the wharf subject to the control and direction of the consignee only, and it appears that merchants in the course of business received their goods at the wharf.1 Warehouseman.-Where

3. Delivery to goods are, by the direction of the vendee, delivered by the carrier to a particular warehouseman, the question, as to whether the right of stoppage in transitu still continues, depends upon the question as to the capacity in which the warehouseman received the goods, whether as the agent of the vendee, or of the carrier, and this is for the jury. Thus, where the consignee of certain boxes of merchandise agreed that they be by it set aside in its depot to be sold, and the proceeds used to pay past due freights, the balance, if any, to go to the consignee, it was held that this would not be such actual delivery as to prevent a stoppage in transit by the consignor. Again, the right continues while the goods remain in the hands of a warehouseman, though at the place to which they were directed to be sent, if that be an intermediate point between the place of sale and the ultimate destination of the goods.' But if the vendor give the vendee an order for the delivery of the goods, upon the storekeeper in whose possession they are, and the goods are turned out to the vendee by the storekeeper, and marked with the vendee's initials on presentment of the order, the vendor's right of stoppage is determined. But where goods are placed in the public store, or bonded warehouse, under the warehousing system (either in this country or in England), after a perfect entry of them for that purpose, they are to be considered as having come to the possession of the vendee, at the place where he intends they shall remain until he gives further order for their disposal; and the law recognizes his right to sell or dispose of them as he pleases, subject only to the custody of the officers of the revenue for the security of the payment of the duties, etc.; and in such a case the right of stoppage in transit should be considered at an end the moment the goods are thus deposited."

4 Sawyer v. Joslin, 20 Vt. 172.

5 Hoover v. Tibbitts, 13 Wis. 79.

6 Macon & Western R. R. v. Meador, 65 Ga. 705.

7 Covell v. Hitchcock, 23 Wend. 611.

8 Hollingsworth v. Napier, 3 Caines, 182.

9 Mottram v. Heyer, 5 Denio, 632; Cartwright v. Wilmerding, 24 N. Y. 537.

4. Delivery to Forwarding Agent. A vendor's right of stoppage in transitu is not terminated by the fact that the goods have come to the hands of a shipping agent appointed by the vendee, although they are delivered to him to await further directions, in respect to the time and mode of shipment to the vendee, when such shipment is to be made to an ultimate destination previously fixed and not to be affected by such subsequent directions; for the transit continues until the goods come to the possession of the purchaser or of some agent authorized to act in respect to the disposition of them otherwise than by merely forwarding them.10 That is, when an intermediate delivery occurs, before the goods have reached their ultimate destination, if the party to whom they are deliverd has authority to receive them and give them a new destination, not originally intended, the transit is at an end; but if the middleman is a mere agent to transmit the goods in accordance with original directions, the vendor's right continues.11 So where goods are delivered at a place where they will remain until a fresh impulse is communicated to them by the orders and directions of the purchaser, the transit is terminated.12 And when goods have reached the destination agreed upon between buyer and seller, and are there delivered to the buyer's order, the right of stoppage, thus determined, is not revived or prolonged by his ordering them to be dispatched to a further point. 13 Goods are in transit when in the hands of a carrier for local delivery.14

5. Interception of Goods by Vendee.-If the vendee intercepts goods forwarded to him, on their passage and before they reach the intended destination, and gains possession of them as owner, the delivery is complete and

10 Harris v. Pratt, 17 N. Y. 249.

11 Cabeen v. Campbell, 30 Pa. St. 254; Pottinger v. Hecksher, 2 Grant, 309; Hays v. Mouille, 14 Pa. St. 48; Markwald v. Creditors, 7 Cal. 213.

12 Becker v. Hallgarten, 86 N. Y. 167; Guilford v. Smith, 30 Vt. 49; Biggs v. Barry, 2 Curt. C. C. 259.

13 Brooke Iron Co. v. O'Brien, 135 Mass. 442. In the absence of any understanding to the contrary, the employment of a carrier by a seller of goods on credit constitutes all middlemen, into whose custody they pass, agents of the seller for their transportation and the goods are deemed in transit until the complete performance of the carrier's whole duty: Calahan v. Babcock, 21 Ohio St. 281.

the right of stoppage in transitu is gone.15 For the crucial test is the acquisition of possession by the purchaser-not that the goods should have been delivered to him in the usual course of business, or by an authorized carrier, or at a specified place.

6. Part of Goods not Delivered.-Although a portion of the consignment of goods may have reached their ultimate destination and have been delivered into the actual possession of the purchaser, yet if the residue is still in process of transmission, the vendor's right of stoppage continues as to that residue, and he may lawfully retake it at any time before final delivery, upon learning of the buyer's insolvency. 16

7. Attachment Laid by Vendor.-Suppose the vendor, becoming alarmed as to his prospect of payment for the goods sold, levies an attachment upon them, while they are still in course of transmission, and before they have reached the purchaser, on the ground of the vendee's fraud or false pretenses in procuring the credit. Will this amount to a waiver of his right to stop them in transit? Or is the one remedy defeated, by operation of law, upon the exercise of the other? The authorities on this point are not agreed. It has been held that, if the seller seizes the goods sold while in transit, by process of attachment, the right of stoppage in transitu is thereby destroyed.17

But a recent Texas decision holds that, although a seller of goods, by attaching them for debt while in transmission, will lose his right of stoppage, yet, if he had supposed that right was already terminated, and immediately on learning his error dismissed the attachment, he may still exercise the right of stoppage if otherwise proper. 18 And a still later case in that court (overruling prior decisions) holds that, the basis of the right to stop goods in transit being the insolvency of the vendee, that right is not waived by a seizure of the goods by the vendor, under a writ of attachment issued upon allegations that the goods were obtained

15 Jordon v. James, 5 Ham. 88; Secomb v. Nutt, 14 B. Mon. 324.

16 Buckley v. Furniss, 17 Wend. 504.

17 Woodruff v. Noyes, 15 Conn. 335; 5 Wait, Ac. & Def. 616; Bishop on Contr. 661; Halff v. Allyn, 60 Tex. 278. The decision last cited, however, was overruled in later cases in the same court.

18 Fox v. Willis, 60 Tex 373.

19

upon false pretenses. "It seems to us," say, the court, "that that rule cannot be sustained on any other theory than that, by stopping the goods in transit, the vendor rescinds the contract of sale. If this be not the effect of that act, we do not see how, in ordinary cases, the assertion of the right to have the price of the goods paid by their sale through an attachment suit, is inconsistent with the right to stop the goods in transit in lawful manner. any 8. Attachment at Suit of Third Party.But whatever may be the case in regard to an attachment laid by the seller himself, it is well settled, upon the authorities, that the levy of an attachment, at the suit of any general creditor of the purchaser, upon goods which are on their way from the vendor to an insolvent vendee, will not amount to a delivery to the vendee, nor will it terminate the transitus, nor otherwise defeat or impair the seller's right to stop and retake them.20 Thus, it is said: "This right is based upon the just and equitable rule of law, that the property of one man shall not be taken to pay another man's debts, and is recognized in all civilized countries. We think it is equally well settled that this right cannot be impaired or extinguished, during its existence, by the acts or interference of a third party, but will follow the goods and attach to them. Hence, it is held that the seizure of such goods by an officer, under legal process in favor of some other creditor, does not destroy the right, but that the vendee may follow the officer and retake the goods." 21 So the right of stoppage in transitu cannot be impaired by service of garnishment on the carrier.22 Nor is the right affected by an assignment of the goods for the payment of the vendee's debts; the assignee stands, in this respect, in the same place his assignor occupied.23

9. Assignment of Bill af Lading.-"But suppose the consignee has received the bill of lading of the goods, deliverable to him or his assigns, or indorsed to him or his assigns,

19 Allyr v. Willis (Sup. Ct. Tex. 1885), 21 Reporter, 349.

20 Mississippi Mills v. Union Bank, 9 Lea, 314; Wood v. Yeatman, 15 B. Mon. 270; O'Brien v. Norris, 16 Md. 122; Mason v. Wilson, 43 Ark. 172.

21 Chicago, etc. R. R. v. Painter, 18 Reporter, 347; 15 Neb. 394.

22 Chicago, etc. R. R. v. Painter, supra.

23 Harris v. Hart, 6 Duer, 606.

by the consignor, and has assigned the bill by indorsement to a bona fide third party, then the vendor's right to stop the goods in transitu and hold them as security for the purchase money is defeated, and the assignee of the bill acquires as perfect a title to the goods, although they have not reached the buyer's hands, as if they had actually passed through his hands and been delivered bodily to him. This was decided in the leading case of Lickbarrow v. Mason, and may now be regarded as the settled law of England and of the United States."24 But if the bill of lading was obtained by fraud, the transferee can secure no stronger rights than his indorser had.25 And the sub-purchaser's knowledge of the insolvency of the original vendee will bear on the question of his good faith.26

Supreme Court of Illinois, January 25, 1887.

1. Warranty or Representation.- If a statement, absolutely a warranty, is followed by a further statement that, if the policy has been obtained by fraud, concealment or misrepresentation, it shall be utterly void; answers honestly made and not material to the risk will not vitiate the policy.

2. Burden of Proof.-The falsity of matters which appear in the application must be alleged and proved by the defendant as matters of defense.

3. Conditions Precedent. - Warranties in general are not conditions precedent. Such conditions are those which the plaintiff undertakes shall be fulfilled. These he is bound to aver and prove their perform.