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Central Law
Law Journal.

ST. LOUIS, MO., FEBRUARY 19, 1897.

The fate of what is known as the "Meadow. croft Case," involving the criminal liability of bankers for receiving deposits when insolvent, under the Illinois statute, has been watched with great interest by practitioners in that State. A decision was handed down by the Supreme Court of Illinois about a year ago, upholding the statute. A rehearing was obtained and the court was vigorously pressed to change its decision. Recently, however, the former decision was affirmed in a long and scholarly opinion by Baker, J. Meadowcroft v. People, 45 N. E. Rep. 303. The principal point involved was whether under the constitution the legislature has the power to create a prima facie presumption of evidence of an intent to defraud if the banker fails within thirty days before a deposit is made. Upon this subject, see decision of the Supreme Court of Missouri in In re Sattley, 33 S. W. Rep. 41. It is given out that the "Meadowcroft Case" will be taken to the United States Supreme Court.

The Supreme Court of the United States in Edington v. U. S., 17 S. C. Rep. 72, has made something of an advance in the law pertaining to proof of good character in criminal cases. It was an indictment for making a false deposition in a pension case, and the trial judge excluded evidence of the general good reputation of the accused, upon the evident theory that until the defendant would testify, it would not be competent as a substantive defense. Besides, the trial judge instructed the jury that such evidence was only valuable in cases of conflict, where the guilt is doubtful. The Supreme Court, disregarding the trend of earlier cases, now holds that the decided weight of authority is that good character, when considered in connection with other evidence, may generate a reasonable doubt, and that the circumstances may be such that an established reputation for good character might alone create a reasonable doubt, although without it the other evidence would be convincing. The court

cited with approval, Jupitz v. The People, 34 Ill. 516. The court cited similar conclusions in Com. v. Leonard, 140 Mass. 470, 4 N. E. Rep. 96; Heine v. Com., 91 Pa. St. 145; Remsen v. People, 43 N. Y. 6; People v. Garbutt, 17 Mich. 28, 1 Whart. Cr. Law, sec. 636.

The case of Beatty v. Cullingworth, recently tried in England before the Queen's Bench Division, suggests something of a new point in malpractice cases, and has given rise to considerable discussion as to the responsibility of a surgeon in operating on a patient. The material facts in the case were as follows: The defendant, one of the most eminent of London surgeons, performed the operation of double ovariotomy on the plaintiff, a single woman at that time engaged to be married. Just before the operation the plaintiff told the defendant that if both ovaries were found to be diseased he must remove neither. He replied "You must leave that to me." The plaintiff denied hearing this remark. Defendant and his assistant affirmed under oath that the patient's health and life would have been imperiled by failure to complete the double operation; that after the first operation she might have lived ten years, but the second was absolutely necessary for a radical cure. When she learned that the defendant had taken out both ovaries, she broke her engagement, and later brought the suit in question for malpractice and assault. The jury promptly found a verdict. for the defendant. As a point of law, the question seems to have been inadequately considered, the charge of Mr. Justice Hawkins being little more than a direction to the jury that there was tacit consent to the operation. The action of the court in this case has met with very general criticism upon the ground that the facts involving a direct prohibition would seem to exclude the possibility of implying consent. As a contemporary says, it is one thing for a surgeon to refuse to operate unless unlimited discretion is confided to him and quite another thing to deliberately disobey express instructions. Undoubtedly the defendant's wisest course would have been to refuse to operate unless the scope of his authority was agreed upon in advance.

NOTES OF RECENT DECISIONS.

CORPORATION

VIRES CONTRACTS

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ENFORCEMENT OF ULTRA -The Court of Appeals of New York decide a very important question of the effect of ultra vires contracts of corporations in The Bath Gas Light Co. V. Claffy. In an exhaustive opinion by Andrews, C. J., it is held that the ultra vires contracts of corporations when malum in se or malum prohibitum, will not be enforced. But as to contracts not thus objectional justice requires that the doctrine of ultra vires should be limited. Accordingly, held, that when a corporation ultra vires leases its property and the lessee has occupied the same, the lessee is liable for the rent for the time of his occupation; though, as to the public, such lease would be void.

CRIMINAL LAW RAPE COMPLAINT — EVIDENCE.-The point decided in a recent English case before the Queen's Bench Division is of value in the trial of cases of rape. The ase is The Queen v. Lillyman, and will be found reported in full in 18 Criminal Law Magazine, 660. The decision of the court was that upon the trial of an indictment for rape, or other kindred offenses against women or girls, the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of such complaint may, so far as they relate to the charge against the prisoner, be given in evidence on the part of the prosecution, not as being evidence of the facts complained of, but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as negativing consent on her part.

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ARCHITECT-RIGHT AND RESPONSIBILITIESCOMPENSATION. The relation between an architect and his client is clearly defined by the Supreme Court of Maine in Coombs v. Beede, 36 Atl. Rep. 104, the court holding an architect is not a contractor, who enters into an agreement to construct a house for its owner, but is his agent to assist him in building one; that the responsibility resting on an architect is essentially the same as that which rests upon the lawyer to his client, or upon the physician to his patient, or which rests upon any one to another, where such person pretends to possess some skill and ability in some special employment, and of

fers his services to the public on account of his fitness to act in the line of business for which he may be employed; that the undertaking of an architect implies that he possesses skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply, in the given case, his skill and ability, his judg ment and taste, reasonably and without neglect. But the undertaking does not imply or warrant a satisfactory result, It will be enough that any failure shall not be by the fault of the architect. There is no implied promise that miscalculations may not occur. An error of judgment is not necessarily evidence of a want of skill or care, for mistakes and miscalculations are incident to all the business of life. It appeared in that case that the plaintiff, a professional architect, was employed by the defendant to prepare plans and specifications for a house. In an action to recover compensation for services so rendered, the defendant, not relying on any charge against the plaintiff of fraud or negli gence, set up at the trial that the services were not beneficial to him, for the reason that they were performed in a manner contrary to his express direction and wishes. Upon this contention by the defendant the court instructed the jury that if the architect was explicitly told by the defendant, in addition to other things, that the building he was designing must not exceed a certain named cost, the architect should have made plans accordingly, or stated that he could not do it, and thereupon declined to do it; and that, if he undertook to make plans with the restriction as to the cost of the building, he must do it before he could recover any pay. It was held, that the instruction was erroneous. It punishes the plaintiff for what might be merely an honest mistake or miscalculation. It leaves out the elements of care and good faith. It does not require that the plaintiff bound himself to the agreement set up by the defendant. The ruling implies a guaranty or warranty, when none was testified to or really pretended.

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suffered a severe illness, and impairment of his ability to work, as a direct consequence of a cold which he contracted while a passenger in defendant's railway car. There was evidence to the effect that the car was very cold; that plaintiff notified the trainmen of his suffering, and repeatedly requested them to make a fire; that there were stoves in the car, and defendant could easily have supplied the needed heat. It was held that the merits of plaintiff's case should have been submitted to the jury. It was further held that it was a question for the jury whether plaintiff was chargeable with contributory negligence because he did not leave the car at some station, made no effort to procure additional wraps from his trunk in the baggage car, took off his overcoat at one time to give his wife the benefit of its warmth, and wore inadequate clothing to meet the demands of the climate and season. The court said in part:

By accepting plaintiff as a passenger upon the train, defendant became obliged to discharge some other duties towards him beyond that of mere safe carriage to the plaintiff's destination. The principles of the common law, as applied to the circumstances of travel at this day and in this country, require of the carrier I passengers by railroad a certain measure of attentention which we believe the defendant in this action did not fully meet. To quote a recent writer on this topic: "The duty of the carrier extends, not only to the furnishing of safe vehicles, but also to the supplying them with such accommodations as are reasonably necessary for the welfare and comfort of his passenger. This duty would undoubtedly include the supplying them with seats, if a day car or vehicle; with proper berths, if a sleeping car; with warmth in cold weather; with light at night," etc. (Hutch. Carr. [Mechem's 2d ed., 1891] sec. 515d). In the case at hand defendant was notified of the plaintiff's suffering from want of proper or sufficient heat in the car. Notwithstanding such notice, repeatedly given, defendant omitted to comply with the demands of its duty, although it appears from the evidence that the train made many stops at stations along the route. Defendant, it may fairly be inferred, had ample opportunity to supply the needed heat, had it seen fit. Such at least, is the showing of facts which plaintiff makes; and the truth of it he is entitled to have submitted to the proper triors of the facts. The plaintiff's case is not founded on any claim for mere discomfort on his journey. It is founded on the theory that he ultimately suffered a severe illness and impairment of his ability to work, as a direct consequence of the cold he contracted on the ride with defendant of which he complains. His testimony tends to sustain that theory; and he was, we think, entitled to go to the jury upon it. Turrentine v. Railroad Co. (1885), 92 N. C. 638; Hastings v. Railroad Co. (1892), 53 Fed. Rep. 224; Railway Co. v. Hyatt (1896, Tex. Civ. App.), 34 S. W. Rep. 667.

It is insisted by the defendant that the plaintiff is chargeable with contributory negligence in several Ways: First, that he did not leave the train at some

station along the line, when he found the cold unbearable; second, that he made no effort to get at his trunk in the baggage car, wherein he had wraps that would have made him comfortable; third, that he took off his overcoat at one time during the night in order to give his wife the benefit of its warmth; and, fourth, that he wore inadequate clothing to meet the demands of the climate and the season. It does not seem needful to indulge in any extended comment on this branch of the case. Whatever force the facts above mentioned may rightfully have as evidence of negligence on the plaintiff's part, we consider that none of them is of such a nature as would justify a court in declaring as a matter of law that plaintiff was negligent. Nor do all of said facts warrant such a ruling. On those facts the question of plaintiff's contributory negligence is one to be decided by the jury. It is only where the plaintiff's own evidence, in a case like this, is of such a character as permits no other reasonable inference than that he was negligent, that the court may properly deny him the right to have the jury say whether or not his conduct comes up to the standard of ordinary care of the average man in the same circumstances. The learned trial judge was in error in taking the case from the jury.

CONTRACT-PUBLIC POLICY-SALE OF PUB LIC OFFICE-PAYMENT ON ILLEGAL CONTRACTRECOVERY.-The Supreme Court of Arkansas decides, in Edwards v. Randle, that a contract for a sale of the fixtures of a post office, in which the seller, who was then postmaster, agrees to resign and to use his influence to secure the appointment of the buyer to the office is against public policy, and that money paid under such a contract cannot be recovered on refusal of the seller to perform. The court says:

The transaction, taken all together, plainly shows that the sale and purchase of the office of postmaster was the main thing, and the cabinet furniture, fixtures, counters, and shelves, were mere convenience, of little or no value to any one except he were postmaster. In fact, this is in effect admitted. Whether Cable should have been appointed deputy at once by appellant, or not until appellee's appointment should be assured, we cannot say, and that really depends upon another fact-that is, when the appellee should begin to enjoy the fees, for the appointment of Cable seems to have had some connection with that. It is reasonable to suppose that the fees should begin to be paid to appellee whenever his appointment should be assured, and not before, as stated by appellant. Be this as it may, the contract seems to have been an executed one, so far as concerns anything the parties could do in the premises. Enough is shown, at all events, to convince the reasonable mind that the desire to rescind on the part of the appellee did not spring from any sentiment of repentance, but rather because of a failure, present or prospective, to obtain the object of his desires,-the office. The contract, as explained by the pleadings and testimony, is an indivisible one; that is to say, the lawful and the unlawful parts cannot be separated, so as to enforce the one and annul the other. Looking at the transaction in the most favorable light, it is in contravention of public policy, simply because it is an effort to create a vacancy in a public office, and to fill that vacancy by

and through methods that the law cannot tolerate. The contract is therefore null and void throughout. In Edgerton v. Earl Brownlow, 4 H. L. Cas. 1-256 (which is the leading English case on the subject), is to be found a most elaborate discussion of the subject by the English circuit judges and the jurists of the house of lords, and, from the language of one of these in that case, Greenhood in his work on Public Policy (page 2) makes this statement, viz.: "By 'public policy' is intended that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy in relation to the administration of the law;" and, continuing, said: "The strength of any contract lies in the power of the promise to appeal to the courts of public justice for redress for its violation. The administration of justice is maintained at the public expense. The courts will never, therefore, 'recognize any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare." We need not adopt this language in all its scope and bearing, for, as said by another, the rules of public policy must not be extended; for it is always to be kept in mind that persons have a right, prima facie, to contract, and therefore the objection to their contracts, that they contravene public policy, should be manifestly against the public good. In Filson's Trustees v. Himes, 5 Pa. St. 452, also reported in 47 Am. Dec. 422, it was held that "a promise to secure the removal of a post office and the appointment of one as postmaster is illegal, on the ground of public policy, and a contract founded on such promise is void;" and, further: "If any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void." Except as to the resignation of the incumbent, that case was very much like the one at bar. For a list of cases on the subject, see Clippinger v. Hepbaugh, 40 Am. Dec. 519, notes.

As to whether money paid on an illegal contract will in any case be the subject of recovery back, and, if so, in what cases, see the case of Pickett v. School Dist. No. 1, 25 Wis. 551, where it was said by one of the judges (all agreeing, it seems): "Still, there seems ground for a distinction between contracts which are held to be against public policy merely on account of the personal relations of the contractor to the other parties in interest, and those which are void because the thing contracted for is itself against public policy. In the latter class the parties acquire no rights which can be enforced either in the courts of law or equity; but in the former, the thing contracted for being in itself lawful and beneficial, it would seem unjust to allow the party who may be entitled to avoid it, to accept and retain the benefit without compensation at all. And it is accordingly held, in all those cases where agents or trustees empowered to sell, attempt to purchase for their own benefit, not that the sales are absolutely void and pass no title, but that they may be avoided by the principal, who may have them set aside in equity. Story, Ag. note 2, p. 246." "In such cases the trustee or agent, if the sale or contract were avoided, would get his money back. The principal could not take the money and avoid the sale also." See, also, Wiggins Ferry Co. v. Chicago & Alton Ry. Co., 73 Mo. 389. It is sufficient to say that the case at bar is one in which the contract is not void, or alleged to be void, on account of any peculiar relation which the parties to it occupy one to the other, but because the subject-matter of the

contract, the thing itself contracted for, the disposi tion of the post office and the incumbency attempted, is void. This court cannot lend its aid to either party in respect to any claim or thing involved in such a contract. The judgment is reversed, and the cause dismissed.

HUSBAND AND WIFE-ALIENATION OF HUSBAND'S AFFECTION-DISABILITIES OF COVERTURE. Whether a wife has, under modern statutes, a right of action for the seduction or alienation of the affections of her husband, has been a controverted question, upon which courts have disagreed. All of the recent and important cases on the subject will be found in 31 Cent. L. J. 21, 23, 29, 32, 241; 33 Cent. L. J. 202; 34 Cent. L. J. 171, 39 Cent. L. J. 399; 40 Cent. L. J. 44; 43 Cent. L. J. 118. The Supreme Court, of Tennessee has recently considered a phase of the question in Smith v. Smith, holding that at common law a wife had a cause of action for the alienation of her husband's affection, but by reason of the disability of coverture it remained in abeyance and could not be prosecuted in her own name, and that Shannon's Code, § 4505, providing that where a husband has deserted his family, the wife may prosecute in her name any action which he might have prosecuted, and may sue in her name for any cause accruing subsequent to such desertion, does not enable a wife to sue for the alienation of her husband's affections by the circulation of false statements, which caused him to abandon her, where such statements were made before the abandonment. The court says:

At common law, on account of the well-settled doc. trine of marital unity, the right of a married woman to prosecute an action in her own name for the redress of personal injuries was denied. The cause of action for a personal injury to a married woman, whether committed before or after marriage, at common law, belonged to her; but, on account of the disability of coverture, she had no remedy, unless the husband joined in bringing the suit for conformity. The right of action was hers; but, owing to the legal fiction of the unity of husband and wife, she could not assert it. "The husband and wife were treated as one person, and marriage operated as a suspension in most respects, of the legal existence of the latter. But marriage only suspended personal rights. It did not destroy them, or transfer them all absolutely to the husband. While it was an absolute gift to him of her goods and chattels, it was only a qualified gift to him of her choses in action, depending upon the condition that he reduce them to possession during coverture, or otherwise, upon his death, they belonged to her." 1 Bright, Husb. & Wife, pp. 34-36; Clancy, Mar. Wom. 109; Reeve, Dom. Rel. (4th Ed.) 1; 2 Kent, Comm. (11th Ed.) 116. Says Mr. Bishop: "It is common doctrine, upon which the decisions in all the States of the Union and of England are in harmony, that, on

the death of the husband, the wife's choses in action, not reduced by him to possession, survive to her. She takes them, not as his heir, personal representative, or administratrix, but they revert to her in her own right. And we have seen," says the author, that this doctrine applies as well to the wife's postnuptial choses in action as to her antenuptial ones." Bish. Mar. Wom. § 171. It is well settled that torts committed upon a married woman are comprehended within the definition of the term "choses in action." People v. Tloga Common Pleas, 19 Wend. 73, 74; Berger v. Jacobs, 21 Mich. 215; Railroad Co. v. Dunn, 52 111. 260; 8 Am. & Eng. Enc. Law, tit. "Chose in Action." Says Mr. Reeves, in his work on Domestic Relations (page 87): "Although the husband is entitled to all the property which the wife acquires during coverture, yet, if damages be claimed for an injury to her person or reputation during coverture, those damages belong to her, and she must be joined with her husband in the suit. When damages for such an injury are collected, they belong to the hus. band; but, in case of his death before they are reduced to possession, they survive to the wife in the same manner as if the injury had been received before marriage." Says Mr. Bishop: "If she (the wife) is slandered, or an assault and battery is com. mitted upon her, or any trespass or actionable wrong, she may, on becoming discovert, sue the wrongdoer, the same as though she had been sole when she received the injury, though, if the suit is brought in the lifetime of her husband, he must be made a party plaintiff with her, in consequence of the general rule of law which places the wife under the protection of her husband. When the result of the wrong becomes money, in the form of damages paid by the wrongdoer, the wife, though she can receive, cannot hold, it, and the title glides to the husband, making the money his." Bish. Mar. Wom. § 705. So that it is plain, at common law, a married woman had a cause of action against a party who wrongfully enticed away or alienated the affections of her husband, but, by reason of the disability of coverture, that right remained In abeyance, and could not be prosecuted by the feme Covert in her own name. If the husband died, or there was an absolute divorce, the right of action remained the property of the wife, and might be prosecuted by her as a feme sole. Legg v. Legg, 8 Mass, 99; Lodge v. Hamilton, 2 Serg. & R. 491; Postlewalte v. Postlewaite (Ind. App.), 28 N. E. Rep. 99.

These positions, however, are controverted by counsel for plaintiff, and authorities are cited to support the contention that a married woman has a right to prosecute such an action without joinder of her husband. The case of Foot v. Card, 58 Conn. 4, 18 Atl. Rep. 1027, does broadly hold that a married woman, independently of any statute may sue for the alienation and loss of her husband's conjugal affections and society, in her own name, and without join. ing her husband as co-plaintiff; and the decision seems to have been rested upon the ground that the damages belong solely to the wife. But it must be conceded that this case is out of line with the great current of authority, and is not supported by sound legal reasoning. According to the great weight of authority, the wife can maintain such an action only in jurisdictions where there is an enabling statute. Says Mr. Cooley, in discussing this subject in his work on Torts: "We see no reason why such an setion cannot be supported where, by statute, the wife is allowed to sue for personal wrongs suffered by her." Cooley, Torts, 227. In Bennett v. Bennett, 116 N. Y. 584, 23 N. E. Rep. 17, the wife was permitted

to prosecute the action in her own name, under the Code of Civil Procedure (section 450), which provided that a "married woman appears, prosecutes, or defends in an action or special proceeding, alone, or joined with other parties as if she were single." Westlake v. Westlake, 34 Ohio St. 621, was an action of slander by the wife, in which it was held that the suit might be maintained, under a statute of Ohio conferring on the wife "all rights in action" which have "grown out of a violation of any of her personal rights." In Seaver v. Adams (N. H. 19 Atl. Rep. 776, it was held that, under the statute of New Hampshire, enacting that a married woman may sue in all matters in law or equity for any wrong done her, this action may be maintained. The court remarked that "the only reason why the wife formerly could not maintain an action for the alienation of her husband's affections was the barbarous common-law fiction that her legal existence became suspended during the marriage, and became merged into his, which long ceased to obtain in this jurisdiction. There remains now no other semblance of a reason, in principle why such an action may not be maintained here." There is another class of cases which hold that one who entices away a husband is not liable in damages to the wife for the loss of his society and support, either at common law or under a statute giving her a right of action for injury to person or character. Such are the cases of Duffies v. Duffies, 76 Wis. 374, 45 N. W. Rep. 522; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13; Doe v. Roe, 82 Me. 503, 20 Atl. Rep. 83. There can be no doubt, however, that the great preponderance of authority holds that at common law the wife had such a right of action, but was without remedy to assert it, and that it may be prosecuted in all jurisdictions where by statute the wife is clothed with the powers of a feme sole.

It is insisted by counsel for plaintiff that there is such enabling statute in the State of Tennessee, and we are cited to section 4505, Shannon's Code, which provides, viz.: "Where a husband has deserted his family, the wife may prosecute or defend in her name any action which he might have prosecuted or defended; she may also sue and be sued in her own name for any cause of action accruing subsequently to such desertion." At common law a deserted wife had no power to prosecute in her own name such causes of action. It was only in case of absolute divorce, or the death of the husband, that she could prosecute a right of action accruing to her during the coverture. This statute enables a deserted wife to prosecute an action, but under two limitations, towit: First. She must prosecute it in his name, if it is an action which he might have prosecuted. This paragraph of the statute bears no relevancy to the present action, since it is not prosecuted in the husband's name. Secondly. Under this statute her right to sue in her own name is restricted to such causes of action as accrue subsequently to such desertion. The declaration in this case shows that the slanderous words which, it is alleged, caused the estrangement of the husband and the loss of his consortium, were spoken prior to the desertion. The case of Hester v. Hester, 88 Tenn. 270, 12 S. W. Rep. 446, was a suit by a deserted wife to recover damages from the defendant "for falsely and maliciously attempting to ruin her character, and for separating her and her husband." It appeared in that case that some of the causes of action accrued prior to the desertion and others subsequently thereto. The court held that, under the statute, the wife was limited to the causes of action accruing subsequently to the desertion, al

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