People v. Adelphi Club (N. Y.) Intoxicating Liquors— People v. Bendit (Cal.) Criminal Law-Forgery-Signa. People v. Conkling (Cal.) Criminal Law-Homicide- People v. Havnor (N. Y.) Constitutionality of Acts Pittsburg, Ft. Wayne & Chicago R. R. Co. v. Marlin (Ohio) Evasion by Legislators of Constitutional Provisions as to Enactment of Special Laws Relat- Power v. Burd (Mont.) Homestead-What Constitutes Powers v. Arkadelphia Lumber Co. (Ark.) Venue in Quinn v. Louisville & Nashville R. Co. (Ky.) "Separate Rebenack, In re (Mo.) School Board-Vaccinnation of Richberger v. American Express Co. (Miss.) Wrongful Act of Servant-Liability of Master, R. D. 280. Ringrose v. Ringrose (Pa.) Conditions Subsequent- Support-Occupancy of Land, ann. case, 8. Rock Springs Nat. Bank v. Luman (Wyo.) Negotiable Instrument-Bona Fide Holder-Security for Pre- Rockwell Stock & Land Co. v. Castroni (Colo.) Special Contract-Quantum Meruit-Issue, ann. case, 30. Rodes v. Haynes (Tenn.) Chattel Mortgage-Substitu- tion of Mortgaged Articles-Validity, R. D. 240. Rosen v. United States (U. S. 8. C.) Federal Offense- Postal Laws-Mailing Obscene Matter, R. D. 300. Scharff v. Meyer (Mo.) Sale-Delivery-Bill of Lading Sheridan v. Foley (N. J.) Negligence-Presumption, R. Shingleur v. West. Union Tel. Co. (Miss.) Telegraph Company-Liability for Altered Message, R. D. 3. Shoobert v. De Motta (Cal.) Chattel Mortgages-Ani- mals-Ownership of Increase, ann. case, 463. Silent Friend Min. Co. v. Abbott (Colo.) Equitable Simpson v. Ferguson (Cal.) Chattel Mortgage-Grow- ing Crops-Rights of Mortgage, R. D. 474. Skeete v. Silberberg (Eng.) Marriage as a Valuable Consideration for Contract, Ed. 87. Smith v. Utley (Wis.) Libel-Editor of Newspaper- Personal Liability, R. D. 243. Southern Building & Loan Association v. Norman (Ky.) Constitutional Law-Taxation-Foreign Building & Loan Association, R. D. 172. St. Louis & San Francisco R. Co. v. James (U. s. S. C.) Citizenship of Corporations for the Purpose of Ju risdiction in Federal Courts, Ed. 433. St. Louis, Keokuk & Northwestern R. R. Co. v. With. row (Mo.) Validity of Missouri Special Jury Law, State v. De Boy (N. Car.) Criminal Law-Game of State v. Gilliam Mont.) Constitutional Law-Mort- State v. Julow (Mo.) Validity of State Enactment Re- ployees the Causes of their Removal, Ed. 1. State v. Kelly (Oreg.) Criminal Law-Trial Jury-Ex- clusion of Jury Pending Preliminary Examination as to the Admissibility of a Confession, ann. case, State v. Klock (La.) Criminal Law-Void Judgment- Collateral Attack-Excessive Sentence, R. D. 300. State v. Morrill (Vt.) Criminal Law-Larceny-Bring- State v. Schuchmann (Mo.) Criminal Law-Burglary- Construction of Statutes, R. D. 172. State v. Sibley (Mo.) Unchastity as a Ground for Im- peachment of Witness, Ed. 239. State v. Steinborn (Wis.) Election and Voters-Ballot Stenberg v. Wilcox (Tenn.) Negligence-Dangerous Premises Liability of Lessor, ann. case, 288. Storz v. Finkelstein (Neb.) Contracts-Illegal Consid- eration-Right of Action, ann. case, 94. Suenden v. State Bank (Minn.) Slander-Dishonor of Tanner v. Merrill (Mich.) Accord and Satisfaction- Receipt in Full- Liquidated and Unliquidated The Mutual Life Insurance Co. v. Lebrie (U. S. C. C. of App.) Life Insurance-Warranty Against Sui cide-Suicide While Insane, ann. case, 267. Thornhill v. O'Rear (Ala.) Contract-Illegality-Re- covery of Consideration-Wager, R. D. 454. Traders' Nat. Bank v. Steere (Mass.) Fraudulent Con- veyance-Partial Illegality of Consideration, R. D. Travelers' Ins. Co. v. Dunlap (I) Accident Insur- ance Death from "Taking Poison," R. D. 514. United States v. Gettysburg Electric Railway Co. (U. S. S. C.) Patriotic Public Use under the Federal Con- Walker's Estate, In re (Cal.) Will-Attestation-Erro- Ward v. Springfield Fire & Marine Ins. Co. (Wash.) Appeal-Notice-Evidence of Service, R. D. 2. Wheeler v. United States (U. S. S. C.) Criminal Evi- Federal Offense, ann. case, 111. White v. Solomon (Mass.) Sale-Action for Price- William Glenny Glass Co. v. Taylor (Ky.) Conflict of Laws-Note-Place of Execution, R. D. 434. Chinaman Born in the United States, Ed. 299. Yates v. City of Milwaukee (Wis.) Taxation-Exemp- tion-Municipal Corporation-Public Improvement No. 1. Is a Cause of Action for a Statutory Penalty Assignable? By William L. Mur- No. 2. Services whose Performance is Excused by Sickness or Like Disability. By Nathan Newmark, 26. No. 3. Eminent Domain-Rights of Tenants. No. 4. Assignment for the Benefit of Creditors as to Property beyond the State in which the Assignor Resides and makes the Assignment. No. 5. The Law of the Case. By R. R. Bige- No. 6. Liability of Employers for the Negli- gence of Contractors. By Wm. Rogers Clay, No. 7. Actions on Penal Statutes. By Roscoe No. 8. Right of Way of Railroad Company. No. 9. Right of Members of Benefit Societies to Sick and Distress Benefits. By Eugene No. 10. Extent of the Power and Authority of the President of a Corporation to Bind it by Contracts. By Jacob Klein, 194. No. 11. Inhabitancy of Corporations for the Purposes of Jurisdiction. By Seymour D. Thompson, 215. No. 13. When should the Verdict be Set Aside where the Court has Instructed the Jury to Disregard Improper Evidence Admitted over Objection and Exception. By Louis M. Lar- No. 14. The Right of Stoppage in Transitu. By No. 15. Books of Account as Evidence. By No. 16. Chemical Experts-A Trio of Important Factors in the Detection of Crime. By Percy No. 17. Vesting of Legacy-Presumed Assent No. 18. Right to Publish Letters. By Frank No. 19. Evidence Illegally Obtained. By J. F. No. 20. Covenants in Lease. By James M. No. 21. Judicial Discretion in Divorce. By No. 22. Liability for Defective Premises Re- sulting in Injuries to Children. By Seymour No. 23. Reforms in the Law of Newspaper No. 24. Contributory Negligence per se in Ac- cidents at Railway Crossings. By Andrew No. 25. Foreclosure of Building and Loan As-· Central Law Journal. ST. LOUIS, MO., JANUARY 3, 1896. The nomination by the president of Rufus W. Peckham of New York, to be Associate Justice of the Supreme Court of the United States, made vacant by the death of Mr. Justice Jackson, has given very general satisfaction. Judge Peckham has since 1886 been one of the judges of the New York Court of Appeals, prior thereto having been on the Supreme bench of that State, in which positions he has attained a reputation as a jurist of marked ability. The respect and regard to which he is entitled is best evidenced by the universal expression of regret on the part of the New York bar that his acceptance of this higher honor will remove him from the position which he has filled so long to his credit and that of his native State. The Supreme Court of Ohio, in the recent case of Pittsburgh, Ft. W. & C. Ry. Co. v. Martin, has rebuked a favorite method adopted by legislatures of evading the constitutional provision requiring the enactment of general laws relating to cities or forbidding the passage of special enactments applicable to only one city. To override this the legis latures in many States frequently enact laws relating to cities having a population of over a certain number and less than a certain other number, and this is taken as a general law, although there may be only one city having a number of inhabitants between those designated in the act. A late Ohio legislature passed an act providing for the redistricting of "every city of the fourth grade of the second class which had at the last federal census a population not less than 5,550 and not greater than 5,560, or which at any subsequent federal census may have a population of not less than 5,550 and not greater than 5,560." This was making a finer distinction than in the laws usually adopted. The Supreme Court of that State, in the case first mentioned, disposes of this attempt to pass a special law under a false guise in a short opinion containing this sentence: "We discover no reason why cities of the fourth grade of the second class, because at the federal Vol. 42-No. 1. census they had a population of not less than 5,550 and not greater than 5,560, should require exclusive legislation; and the classification of such cities in themselves upon such a basis is, in our judgment, too restrictive, uncertain and illusory, to relieve the act from the constitutional infirmity of not being uniform in its operation throughout the State, but local and special in its character." We called attention in a recent issue (41 Cent. L. J. 223), to the case of State v. Julow, wherein the Supreme Court of Missouri, declared void a piece of labor legislation, which assumed to prohibit employers from coercing or influencing their servants against membership in labor unions. The opinion in that case maintained the constitutional right of liberty of contract of employment, in like manner as liberty of contract on other subjects. A more recent Georgia case, Wallace v. Georgia, etc., Ry. Co., 22 S. E. Rep. 579, also in effect upholds liberty of contract of employment. A statute of that State enacted in 1891, required incorporated railroad, express and telegraph companies to give to discharged employees or agents the causes of their removal or discharge, when discharged or removed. The act further provided an arbitrary penalty in the event of a refusal to comply with such law, to be sued for by the party aggrieved. The suit in question was brought by a person who had been chief car inspector of the defendant company, and, upon his discharge, requested a statement of the reasons therefor, which request was not complied with. He demanded judgment for the amount of such penalty. In affirming the action of the trial court dismissing the action, the Supreme Court pronounced the statute void and the penalty unenforceable. No opinion was written, but the Supreme Court held, as appears by an official syllabus of the case, that "the public whether as many or one, whether as a multitude or a sovereignty, has no interest to be protected or promoted by a correspondence between discharged agents or employees and their late employers, designed, not for public, but for private information as to the reasons for discharges, and as to the import and authorship of all complaints or communications which produced or suggested them. A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort with their discharged agents and employees, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this State by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law.” NOTES OF RECENT DECISIONS. GIFTS-NOTES DEATH OF MAKER.-The Supreme Court of Pennsylvania decides in In re Kern's Estate, that where plaintiff gave her accommodation note to deceased, and was obliged to pay it, the fact that she paid it out of the proceeds of property which deceased had given her absolutely does not affect her right to recover against his estate on a note given her as security, and that a note not under seal, and without consideration, given by one to his child, is not enforceable against his estate, the gift being revoked by his death. An effort was made to sustain the case on the ground of natural love and affection of the maker of the note for his granddaughter; but the court said that "the argument falls into confusion from the indiscriminate use of the terms 'moral obligation' and 'moral consideration.' They are not convertible terms, even if there is any such thing as a moral consideration. Natural love and affection are a good consideration for an executed contract or gift, and in this State a moral obligation is a good consideration for an express promise; but natural love and affection are not a moral obligation in such sense as will support even an express promise to make a gift. 'Natural affection is not a sufficient consideration to support a simple contract.' Byles, Bills (8th Am. Ed.) p. 214. 'A consideration founded on mere love and affection is not sufficient to sustain a suit on a bill or note.' Daniel, Neg. Inst. § 179. It is the nature of a gift to be revocable until executed by delivery, and the authorities are uniform that the delivery of a promissory note or check is not an executed gift of the money, but remains revocable, and will be revoked by the death of the promisor before actual payment. 8 Am. & Eng. Enc. Law, 1320; Daniel, Neg. Inst. §§ 179, 180; Chit. Bills, p. 85; Byles, Bills (15th ed. 1891), p. 144; Wood's Byles, Bills (8th Am. ed. 1891), p. 213." APPEAL-NOTICE-EVIDENCE OF SERVICE. -In Ward v. Springfield Fire & Marine Ins. Co., it is decided by the Supreme Court of Washington that extrinsic evidence cannot be received by the Supreme Court to show that the notice of appeal which appears from the record to have been served too late, was in fact served within the statutory time. The court cites Elliott on Appellate Pro. § 186, which says that "appeals are tried by the record. The transcript is the source from which appellate tribunals obtain their knowledge of the facts involved in the controversy between the parties before them, as well as the source from which they derive their knowledge of the questions upon which it is their duty to pronounce judgment. The record as embodied in a properly prepared and duly authenticated transcript imports absolute verity, and cannot be aided, varied, or contradicted by extrinsic evidence." See, also, Haynes, New Trials & App. § 283; McDonald v. Bowman (Neb.), 58 N. W. Rep. 704; Carey v. Brown, 58 Cal. 180; In re Fifteenth Ave. Extension, 54 Cal. 179; Boyd v. Burrell, 60 Cal. 280. In the lastmentioned case, which is directly in point, the court said: "In denying a rehearimg in this cause, we think it proper to say that the transcript shows that the notice of appeal was served on the 18th of December, 1879, and filed on the 30th of January, 1880. An attempt is made to show by affidavit before this court that it was filed at an earlier day, and within the time allowed by law. This cannot be allowed. It was so held in Boston It v. Haynes, 31 Cal. 107. The record of the court below cannot be altered or amended by proof made in this court. If it is incorrect, that must be made to appear by proper evidence to the court below, which has power to alter it so as to make it speak the truth. would be a departure from all principle to allow a record sent to this court to be assailed by evidence of less dignity than a record. See Smith v. Brannan, 13 Cal. 107; Bonds v. Hickman, 29 Cal. 460; Satterlee v. Bliss, 36 Cal. 521. The party must seek relief in the court from which his appeal was prosecuted." TELEGRAPH COMPANY-LIABILITY FOR ALTERED MESSAGE.-In Shingleur v. West. Union Tel. Co., 18 South. Rep. 425, the Supreme Court of Mississippi considers some interesting questions in the law as to telegraph companies holding that a telegraph company is liable to either the sender or the sendee for damage sustained by reason of the delivery of an altered message to the sender in contract or tort, and to the sendee in tort, and that where plaintiffs telegraphed their correspondents to sell certain cotton at 8 1-2 cents per pound, and the message as delivered read 8 5-16 cents per pound, and the cotton was sold at the latter price by said correspondents, acting for plaintiffs as undisclosed principals, and immediately thereafter advised plaintiffs of the sale, and plaintiffs paid the difference to their correspondents to protect their credit, there being no contract that plaintiffs would deliver cotton when there was a mistake in the telegram, the telegraph company is not liable to plaintiffs for the loss sustained. Cooper, C. J., dissented. The court says: The first contention of appellee is that the sender does not make the telegraph company his agent in such sense that it renders him liable to the sendee in case an altered message is delivered to the sendee. The negative of this proposition is maintained by the English courts, which hold that the liability of the telegraph company arises out of the contract, and hence that the sendee, not being in privity with the com. pany, can never sue the company. Playford v. Telegraph Co., Allen, Tel. Cas. 437; Henkel v. Pape, Id. 567. This view is also urged with great clearness and power in Gray Commun. Tel. §§ 68, 104, et seq., and in Bigelow, Torts, pp. 621-626, but the strongest reasoning in support of this view which we have found in any case, English or American, is in Pepper v. Telegraph Co., 87 Tenn. 554, 11 S. W. Rep. 783, decided in A. D. 1889. This case contains an exhaustive review of the authorities, and holds that the minds of the parties in case of an altered message have never met, and that neither can be bound to the other unless the telegraph company is the agent of the sendee, and this is repudiated on principle and authority. The English view, in so far as it predicates the right of the sendee to sue on contract alone, leads to one very manifestly unjust result, to-wit, that since the sendee cannot sue the company (as held in Playford's Case, supra), nor the sender (as held in Henkel's Case, supra), he is remediless. According to what is called the "American Doctrine" (Gray, Commun. Tel. § 104, note 3; Thomp. Elect. § 426), the affirmative of the proposition under discussion is maintained; representative among the cases so holding being Rose's Case, Allen, Tel. Cas. 337, in which case the principal was disclosed, and the agent not bound. In De Rutte v. Telegraph Co., 30 How. Prac. 403, it was held that the party interested in the dispatch, whether sender or sendee, was the one who really contracted with the company, and that such person could sue in contract. In Dryburg's Case, 35 Pa. St. 298, the Supreme Court held that the company was the agent of both sender and sendee (upon very unsatisfactory reasoning), and hence either could sue in contract. Turning from this view of the right of the sendee to sue the company in contract, and putting the right to sue on the ground that, in case of delivery of an altered message, upon which the sendee has acted to his damage, the sendee's right to sue is in tort for the injury to him, the wrong and the consequent damages, we find this view clearly and universally upheld by the American authorities. Gray, Commun. Tel. § 78; Thomp. Elec. §§ 427, 428, 430, 448; Dryburg's Case, 35 Pa. St. 298; Sherwood's opinion; Rose's Case, Allen, Tel. Cas. p. 340; Bigelow, Torts, p. 614 et seq.; Pepper v. Telegraph Co., 87 Tenn. 554, 11 S. W. Rep. 783. Rose's Case, in so far as it held that the sendee could not sue in that case because the principal was the injured party, and could himself alone sue, is said by Mr. Gray (section 78) to be open to criticism, and is held unsound on that ground by other authorities. Mr. Thompson suggests in section 424 an additional reason why the sendee should be allowed to sue, and in section 427 puts the matter on the true ground. He says: "The true view which seems to sustain the right of action in the receiver of the message, or in the person addressed, where it is not delivered, is one which elevates the question above the plane of mere privity of contract, and places it where it belongs,-upon the public duty which the telegraph company owes to any person beneficially interested in the message, whether the sender or his principal, where he is agent, or the receiver or his principal, where he is agent." This is the doctrine of this court in Allen's Case, 66 Miss. 549, 6 South. Rep. 461. This review of the authorities will sufficiently indicate how the courts, in dealing with this purely modern agency, have been groping their way in their search for the true ground of liability, uselessly conjuring up analogies that do not exist, and misled by the apparent applicability of the doctrine of agency as existing between private individuals. This view last above given discards absolutely the doctrine of agency, as applicable between private individuals, as suiting the case of the liability of the telegraph company to sendee or to sender. It treats the telegraph company as an institution sui generis, a system unto itself, an independent transmitter of intelligence, an independ ent contractor, or (as Mr. Bigelow and Judge Sherwood most simply and best put it) as an independent principal. It is liable to the sendee in tort alone, as principal. It is liable to the sendee in contract or in tort, as principal. It is not liable to either as agent |