NINTH EDITION. Hints on Advocacy. INTENDED FOR PRACTICE IN ANY OF THE COURTS, CIVIL AND CRIMINAL, WITH SUGGESTIONS AS TO OPENING A CASE, EX- By RICHARD HARRIS, Barrister at Law, London, England. The present edition of this remarkable book, the work of a distinguished English Barrister will be found very valuable, even to those who have one of the former eight editions, as there is much in this edition which was not in former ones. The whole work is unique; there is nothing like it in print. There is no school of advocacy, there are no lectures on advocacy, and there is no other work on advocacy. It seems lamentable that no instruction should ever be given in an art that requires an almost infinite amount of knowledge. Tact cannot be taught, but it will follow from experience, and a good deal of experience may be condensed into the form of rules. Just Issued. BEACH'S COMMENTARIES ON THE LAW OF TRUSTS AND TRUSTEES, As Administered in England and the United States. By Charles Fisk Beach. The most complete treatise on the subject ever written. No previous work extant has ever gone so deeply into the subject of the law of TRUSTS AND TRUSTEES. The author has in this work treated the whole subject of TRUSTS, express and implied, public and private. No topic of importance in connection with this important subject has been omitted. More than 16,500 cases have been cited. The citations are not merely barren references to They compactly digest the points involved, so that a lawyer may use them with confidence when the reports are not at hand, and they are complete to date. The statements of equitable principles and the citations by which they are supported include all phases of the subject, and the cases. LATEST CASES REPORTED. The numerous expositions of equitable doctrines by the Lord Chancellors of England, and by the most eminent American Judges are intelligently reviewed. Mr. Beach, in this treatise, when conflicts between different courts have been found, has not hesitated to express his opinion as to which conclusion seem to be the most sound. Special care has been taken with the Index and Table of Cases to enable the busy lawyer readily to find what he wants. Beach on Trusts and Trustees gives the law as it is to-day. Beach on Trusts and Trustees is in two volumes, 8vo., law sheep, containing over 2,000 large law book pages. Price $13.00, sent prepaid on receipt of price. Published and for sale by CENTRAL LAW JOURNAL CO., 919 Olive Street, St. Louis, Mo. TWO NEW LAW BOOKS. A TIMELY BOOK ON AN IMPORTANT SUBJECT. State Control of Trade and Commerce By National or State Authority. By ALFRED STICKNEY, Of the New York Bar. The subject of this treatise, just at the present time, is one of absorbing interest. It deals with the long series of attempts, by government, under both the English and American law, through legislatures and the courts, to control trade and commerce, especially in the matter of prices. The subject is treated historically as well as from a purely legal standpoint. The entire treatise concerns one of the most important questions of legal and economic science, and will be found to have a deep interest, not only for lawyers but for laymen as well, and especially for legislators and the students of political and economic science. STICKNEY on STATE CONTROL of TRADE and COMMERCE is a handsomely printed octavo volume, finely bound in art canvas. Price, $2.25 net, but sent express prepaid on receipt of the amount. A NEW REVISED EDITION OF THE LEADING WORK ON FRAUDULENT CONVEYANCES. "Extensively Cited by Counsel and Judges in every State." WAIT ON FRAUDULENT CONVEYANCES AND CREDITORS' BILLS. THIRD EDITION, REVISED AND ENLARGED. By FREDERICK S. WAIT, of the New York Bar. Author of Treatises on "Insolvent Corporations," and "Trial of Title to Land." In this third edition much fresh matter has been embodied in the original text, many new sections have been written, and several thousand additional cases cited. Over one hundred and eighty pages of entirely new matter are embodied in this edition. The multitude of recent cases involving fraudulent alienations and covinous schemes, devised to defeat the claims of creditors demonstrates how important and far reaching the subject of Fraudulent Conveyances become. Sometimes a creditor's entire fortune is dependent upon a correct exposition of the statute of Eliss beth. Special efforts have been put forth to utilize the latest authorities upon the topics discussed. WAIT on FRAUDULENT CONVEYANCES and CREDITORS' BILLS is large octavo volume of 900 pages. In best law book style. Price, $6.00 net. or $6.30 delivered, on receipt of the amount. BAKER, VOORHIS & CO., Law Publishers, 66. NASSAU STREET, NEW YORK. Central Law Journal. ST. LOUIS, MO., NOVEMBER 26, 1897. The The proposition that mental suffering alone, not accompanied by any physical injury, cannot be the foundation for the recovery of damages, except in some instances where they are allowed as a species of punitive damages, though for a long time the subject of contention, may now be considered as settled, all modern decisions being to that effect. latest case is Kalen v. Terre Haute & I. R. Co., wherein the Supreme Court of Indiana recently held that there can be no recovery under a complaint which alleges, by way of showing damages arising from defendant's wrongful act in causing the horse attached to a buggy in which plaintiff was riding with her husband to take fright and run away, that plaintiff received a severe nervous shock, was greatly frightened, and her life was put in great and imminent peril, and that she has suffered great mental pain and anxiety. The court cites the leading cases on the subject, including Canning v. Inhabitants of Williamstown, 1 Cush. 451; City of Salina v. Trosper, 27 Kan. 544; Railroad Co. v. McGinnis, 46 Kan. 109, 26 Pac. Rep. 453; Morse v. Duncan, 14 Fed. Rep. 396; Wyman v. Leavitt, 71 Me. 227; Johnson v. Wells, Fargo & Co., 6 Nev. 224; Railroad Co. v. Stables, 62 Ill. 313; Railroad Co. v. Brunker, 128 Ind. 542, 26 N. E. Rep. 178; Ewing v. Railway Co., 147 Pa. St. 40, 23 Atl. Rep. 340; Hale's Curator v. R. R. Co., 60 Fed. Rep. 557; Purcell v. R. R. Co., 48. Minn. 134. The Indiana court fails to notice the very late case of Mitchell v. Rochester Ry. Co., 45 N. E. Rep. 354, 44 Cent. L. J. 89, wherein the Court of Appeals of New York held that damages are not even recoverable for physical injuries resulting from mental shock. Hollenbeck v. Hall, recently decided by the Supreme Court of Iowa, involves a curious and yet probably sound application of the law of libel. The action was for the publication of a letter stating in substance that plaintiff had for several years owed for medical services; that his attention had been repeatedly called thereto to no purpose; that, finally being sued therefor, he having no other defense, had cowardly slunk behind that of any other. 423 the statute of limitations, and that such a course was not in accordance with the writer's idea of strict integrity. The question was, is such a publication libelous within the meaning of the law? The court held in the negative upon the ground that it is not dishonorable to be indebted to another, nor is it libelous to publish of another that he owes money. To be in debt, remarks the court, is very common, and to be unable to make payment does not necessarily involve moral turpitude. Nor is the debtor's reputation brought in question by making a defense which the law sanctions, and which rests on sound reason and long experience. Formerly, pleading the statute of limitations was looked upon with disfavor. Lord Mansfield remarked in Quantock v. England, 5 Burrows, 2630, "that in honesty, a defendant ought not to defend himself by such a plea." The statute is now generally conceded to be beneficial, and the defense as legitimate as As said by Justice Story in Spring v. Gray, 5 Mason, 523: "The defense, therefore, which it puts forth, is an honorable defense, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters, in the only practical manner, such as are ancient and unacknowledged, and whatever may have been their original validity, such as are now beyond the power of the party to meet, with all the proper vouchers to repel them. The natural presumption certainly is that claims that have been long neglected are unfounded, or at least, are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their ignorance, or their overconfidence in regard to transactions which have become dimmed by age." It cannot be libelous to accuse one of doing what the law approves. In Homer v. Engelhardt, 117 Mass. 539, it is held that to accuse one of availing himself of the prohibitory liquor law, in order to defeat an indebtedness for liquor sold, is not libelous, the court remarking that, "the plaintiff having the right to make this defense, it is not libelous to publish the statement that he had done so." Bennett v. Williamson, 4 Sandf. 60, is precisely in point. NOTES OF RECENT DECISIONS. CIVIL RIGHTS MASTER AND SERVANTRESTAURANT KEEPER.-In Bryan v. Adler, 72 N. W. Rep. 368, decided by the Supreme Court of Wisconsin, it was held that, under the Civil Rights Act of that State, providing that any person, who shall deny the full and equal enjoyment of the accommodations, advantages, facilities, and privileges, of restaurants and other places of public accommodation or amusement to any person, shall be liable in damages to the person aggrieved thereby, the proprietors of a restaurant were so liable for the refusal of a waiter to serve a guest solely because he was a colored person, although the waiter acted in violation of their express command, and they did not at the time sanction, or know of, or subsequently ratify the waiter's act. This case is interesting upon the doctrine of master and servant, rather than upon the question of the valid scope of Civil Rights Acts. The question of the validity of such a statute as applied to restaurants, under the provisions of a State constitution, apparently was not raised. - VICIOUS ANIMAL NEGLIGENCE KNOWLFresno EDGE OF OWNER.-In Clowdis v. Flume & Irrigation Co., 50 Pac. Rep. 373, decided by the Supreme Court of California, it was held that knowledge of servants put in charge of a bull to drive him to a certain place, that he is vicious, is knowledge of the owner, so as to make him liable to a stranger injured by him. It was further held that servants put in charge of a bull to drive him to a certain place, who on the way learn that he is vicious, render the owner liable to one thereafter injured by him on the trip, by continuing to drive him without taking precautions against accidents. The court said in part: It is quite true that knowledge by or notice to a servant charged with no duty in the matter, of the vicious propensities of an animal owned by the mas ter is not notice to the master. The rule, however, is that a servant's knowledge, to whom an animal is intrusted of its ferocious disposition, is knowledge of the master sufficient to render the latter liable. Brice v. Bauer, 108 N. Y. 428, 15 N. E. Rep. 695; Cooley, Torts, p. 406, and note. In the present case Lovelace and Treece had been put in complete charge of the bull. It is a fundamental and most important principle of the law governing the responsibility of masters that whatever duty they owe to the public (or to their employees) must be performed, and a failure to perform, or improper performance, cannot be excused by a showing that execution was delegated to a serv ant, even of approved carefulness, knowledge or skill. It must further be shown that the servant, in the particular matter, exercised the full degree of care and showed the requisite amount of skill. And this is true, however subordinate or menial may be the rank of the servant. Whatever be his position, in that special employment he represents the master, and within its scope his knowledge is the master's knowl edge, his acts the master's acts. Higgins v. Williams, 114 Cal. 176, 45 Pac. Rep. 1041; Donnelly v. Bridge Co. (S. F. No. 623), 49 Pac. Rep. 559. Every one, whether acting individually or through agents, is bound to ex ercise ordinary care to prevent injury to the person or property of another. Civ. Code, secs. 1708, 114, 2330, 2338. Therefore when, as here, Lovelace and Treece had been sent upon an independent mission, and put in complete charge of the animal, they stood in the performance of their task in the place of the defendant, and the question of defendant's respoust bility will be answered as may be answered the inquiry. What would have been the master's responsi bility and liability had he personally been in charge of the animal? To this there can be but one answer: He would have been liable. Twice before on that very day had the bull evinced its ugly disposition by attacks actual and threatened. Here was ample proof of the fact of viciousness, and of the knowledge of that fact brought home to the master. There is yet another and independent view of the matter which may be taken, and in this is eliminated all question of the master's knowledge. That view turns upon the master's liability for the negligent performance by a servant of a duty within the scope of his employment. The driving of the bull upon the highway was not within the employment of Lovelace and Treece, but it was their express task. In the performance of his duty, if injury was occasioned to one without fault by reason of their negligence, the mister was liable. At the out set of the drive, when the men may be assumed to have believed that the beast was gentle, if it had suddenly and unexpectedly tacked and injured some person, it might well be argued that they were performing their task with due care, and that for the unexpected onslaught the mat ter was not liable. But when thereafter, while ergaged in this undertaking, they acquired knowledge of the animal's evil propensities, it became a question of fact for the jury whether or not they exercised the requisite degree of care in their subsequent manage ment of it. The circumstance that the additional knowledge was acquired by them after the employ ment was undertaken, and was not known either to them or to their employer at the time it comment would not exonerate the latter. If the conductor of a passenger train should at any time during the journe discover a defective wheel, and, continuing the trip injury should thereby result, the company would be exonerated because the knowledge was acquir after the train had started. Yet there is no differenc in principle between the cases, and what difference exists is merely in the degree of care exacted by law Precisely such a cause of action as the one which w have been considering was not of Ficken v. Jones* Cal. 618; and another in which the question is cons ered with much elaboration is that of Barnum v. Ter pening, 75 Mich. 557, 42 N. W. Rep. 967. 1 THE INCONTESTABLE CLAUSE IN A LIFE INSURANCE POLICY. The insurance policy issued by the insurance company to the insured is in the nature of a contract; the application for insurance by the person desiring to take out a policy, and the acceptance of it by the company evidenced by the policy, constitute, when taken together, the contract. The parties to the contract of insurance, the company and the insured, or his or her beneficiaries, are bound by all the conditions recited in the application for insurance and in the policy itself, in the same manner and for the same reason as upon an ordinary contract. Policies of insurance usually contain numerous conditions or clauses relating to various matters in regard to the insured, as suicide, fraud, health of the insured, habits, etc., and these are considered perfectly just and proper, since the insurance company is not supposed to take any risks without requiring the person taking out a policy to conform to these conditions. Many of these conditions are more or less essential to the validity of the policy in order to make it effectual. As the business of insurance increases it becomes necessary to simplify the policy so that suits upon it will not be unnecessarily maintained, and to settle the question in dispute more quickly and satisfactorily. There is a certain class of conditions or, as they will be called clauses, which will be treated especially; they are of comparatively recent origin, and, therefore, the decisions are not as yet very numerous. Such clauses are known as "incontestable or indisputable clauses." The word itself explains the meaning of such a policy and it is this, that the insurance company is estopped from contesting the policy, or setting up a defense, except such as it reserves to itself, or such as are allowed on the ground of public policy. This incontestable clause amounts to an agreement entered into between the company and the insured that such shall be the effect of the policy. There are two main classes of incontestable clauses: I. Those incontestable (a) absolutely or (b) as to certain matters. II. Those incontestable (a) after delivery (b) after a certain time. I. (a) Some policies issued by insurance companies are so-called "absolutely incontestable," that is, the company claims to preclude itself from setting up any defense whatever in an action on the policy by the insured, no matter what the breach of condition is. On the face of the policy this seems a just and reasonable condition, since it might be urged that it is within the company's knowledge and that the company must be perfectly well aware of the consequences of its own acts and should, therefore, be held liable for any such clause. But on examining the authorities on this point, it will be seen that the rule has been often declared that such a policy is void; that the underlying principle is, that such a policy is void on the ground of public policy, since fraud, which vitiates every contract, would be waived by any such policy. Such seems the reasonable rule and the true principle. It will be a matter of merely taking the chances of no suit being brought by the insured, and thus the company would be relieved from all right to suit in the matter. In Wright v. Mutual Benefit Association1 there was this provision, that the validity of the policy should not be questioned after the death of the insured, and not after two years from the date of the issue. Potter, J., said: "This stipulation is not to waive all defenses and not to condone fraud, on the contrary it recognizes fraud and all the other defenses." This rule as stated in Bliss on Insurance, Sec. 247, is as follows: "An agreement that the insured will not raise any question or objection even in the direct case of personal fraud, is a void condition. It has been It has been questioned whether such a condition would render the policy void ab initio as an illegal contract. In these cases fraud, if not mentioned, must be assumed to be excluded, since that construction will always be preferred which will support a contract. Of course, this construction cannot make the policy altogether "incontestable," for it leaves open the question, whether statement or omission of the insured was fraudulent or not, and also what is the true meaning of the policy itself. In one company claiming for its policy the title of "indisputable" the principle of indisputability was attempted to be carried out by the following proviso: "That every policy issued by the company shall be indefeasible and indisputable, and the fact of issuing the same shall be conclusive evidence of the validity of the policy, and the company shall not delay payment to the assured thereby on the ground 1 118 N. Y. 237 (1890). |