Putzell v. Drovers' & Mechanics' Nat. Bank (Md.) Queen v. Monson (Eng.) Criminal Law-Homicide, Queen Ins. Co. v. State (Tex.) Insurance as a Trade Reiff v. Mack (Pa.) Attachment-Pension Money, R. Rhodes v. Walsh (Minn.) Privilege of Members of Rippe v Becker (Minn.) State Ownership of Grain Ritchie v. Waller (Conn.) Liability of Master for the Robinson v. State (Ga.) Criminal Law-Homicide- Salisbury v. First Nat. Bank (Neb.) Negotiable In- D. 3. Sarlitz v. United States (U. S. S. C.) Intoxicating 373. Say v. Bennett (Colo:) Landlord and Tenant-Evic- Senate, etc. v. Board of Supervisors (Mich.) Con- 313. Shaw v. Lady Ensley Coal, Iron & R. Co. (Ill.) Sale Southern Bldg. & Loan Ass'n v. Annison Loan & Trust Spier v. City of Brooklyn (N. Y.) Municipal Corpo- State v. Adams (Oreg.) Criminal Law-Seduction- State v. Behrman (N. C.) Evidence-Proof of Foreign R. D. 508. --- State v. Butler (Wash.) Criminal Law- Adultery- State v. Frisch (La.) Criminal Law- Embezzlement State v. Gile (Wash.) Admissibility of Dying Dec- State v. Johnson (Mo.) Criminal Evidence- Dying State v. Johnson (Mo.) Admissibility of Dying Dec- State v. Smith (Mo.) Criminal Practice- Robbery- State v. Stone (Mo.) Constitutional Law Executive State v. Superior Court of Chehalls County (Wash.) - State v. Williamson (Mo.) Public Officers-Assignment State Nat. Bank v. Fink (Tex.) Public Officers -As- Summerfield v. Western Union Tel. Co. (Wis.) Dam- Texas & P. Ry. Co. v. Clark (Tex.) Carriers of Goods- Thomas v. Gregg (Md.) Trusts-Rights of Beneficiaries Thomson v. Texas Land & Cattle Co., Limited (Tex Thornburg v. Wiggins (Ind.) Husband and Wife Tolbert v. State (Miss.) Criminal Law-Homicide-Es- Ultzen v. Nicols (Eng.) Liability of Restaurant Keeper Union Pac. Ry. Co. v. Botsford (U. S. S. C.) Trial- Union Pac. Ry. Co. v. McDonald (U. S. S. C.) Negil- United States v. Rogers (U. S. S. C.) Admiralty-Great United States v. Wallace (U. S. D. C.) Lotteries- Van Winkle v. Satterfield (Ark.) Master and Servant- R. D. 446. Village of Stanford v. Fisher, (N. Y.) Hawkers and Xiques v. The Bradstreet Co. (N. Y.) Liability of Mer- Walsh v. New York & N. E. R. Co. (Mass.) Conflict of Ward v. Kohn (U. S. C. C. of App.) Wealth of Client Wells v. Hargrave (Mo.) Statute of Limitations-New Western National Bank v. Armstrong (U. S. S. C.) Au- Wiley v. Gregory (Ind.) Wills-Life Estate with Power Williams v. Louisville Industrial School of Reform Wilson v. People (Colo.) Clerk of Court-Liability of, Woodruff v. Bowen (Ind.) Fireman as Licensee in Burn- Wright v. Abbott (Mass.) Trial-Verdict by Lot-New No. 1. A Legal Definition of Baggage. By No. 2. The Doctrine of Election in Equity. By No. 3. Delivery in Donationes Mortis Causa. No. 4. Delivery in Donationes Mortis Causa. No. 5. Extent of the Power of Railway Com- No. 6. Lobbying Contracts. By Ardemus Stew- No. 7. Money Had and Received. By John W. No. 8. Have Animals Rights? By Oscar L. No. 9. The Law of Abduction. By Lewis Hoch- No. 10. Privileged Communications other than those of a Professional Character. By Percy Edwards, 200. No. 11. When and under what Circumstances may an Insane Person be held upon his Con- No. 12. Preference by Insolvent Corporators. No. 14. Right of Married Woman to engage in Husband as Managing Agent. By Thomas No. 15. Rebuttal of Impeaching Testimony. By No. 16. Void and Voidable Corporate Stock. By No. 17. Suggested Amendments in the Laws of No. 18. One Instance where the plea of Res Ad- judicata is Inoperative as a Technical Es- toppel. By F. V. W. Tibbitts, 378. No. 19. Covenants of Warranty. By George No. 20. Boycotting, its Legal Phase. By D. H. No. 21. Assaults by Servants. By William L. No. 22. Mandamus to the Speaker of a Legisla- tive Assembly. By Percy L. Edwards, 467. No. 23. Volunteer Servants. By Sam'l C. Will- No. 24. The Offense of Disobeying Statutes. By Central Law Journal. ST. LOUIS, MO., JANUARY 5, 1894. The case of Laidlaw v. Sage, which was recently decided by the Supreme Court of New York, involves a very extraordinary state of facts. In that case the plaintiff was a clerk who had called to transact business with Mr. Russell Sage. He was standing in Mr. Sage's office, waiting until the latter should finish talking with another caller who was then engaging his attention. This man, whose name was Norcross, had just handed Mr. Sage a letter, in which he threatened to drop a satchel full of dynamite, which he carried, on the floor, and so blow up the building, unless Mr. Sage would immediately give him $1,200,000. Mr. Sage, after reading the letter, answered Norcross evasively, and at the same time, according to the plaintiff's story, approached the plaintiff, and gently laying hold of him in such a manner as not to excite his suspicion, drew him into a position between himself and the dangerous visitor. Thereupon Norcross dropped his satchel. An explosion followed, by which the plaintiff was very seriously injured. This suit was brought to recover for these injuries, which the plaintiff claimed had been sustained in consequence of Mr. Sage's wrongful act. A motion to dismiss was granted by the Circuit Court, on the ground that there was no evidence to support the action. The Supreme Court reversed this judgment, and ordered a new trial. The language of the opinion of the Supreme Court is not very precise, but the result reached seems clearly right. It would have been at least possible for a jury, acting within the bounds of reason, to find that the defendant, fearing that Norcross would execute his threat, deliberately pulled the plaintiff in front of him in order to protect his body. If this was the truth, the defendant's act was wrongful; and certainly it could not be said, as matter of law, not to be a proximate cause of the plaintiff's injury. And this is apparently what the court means in saying that "there is no question of proximate cause." On the ground, therefore, that the evidence raised a Vol. 38-No. 1. question for the jury, the Supreme Court did only common justice to the plaintiff in reversing the decision of the court below. The court, however, is not content to let the matter rest here. There follows a discussion of the "burden of proof" in such cases as the present which seems not wholly satisfactory. Under the circumstances of the case, the court says, "The burden is thrown upon the defendant of establishing that his wrongful act did not in the slightest degree contribute to any part of the injury which the plaintiff sustained by reason of the explosion." The Harvard Law Review interestingly discusses this phase of the case as follows: "Here is certainly some confusion. If the court means that the jury might fairly assume from the facts in evidence, without more, that the defendant's act was in a legal sense a cause of the plaintiff's injury, and that therefore the duty of going forward with evidence might lie on the defendant, this is no more than is involved in reversing the judgment of the lower court and in what has been already said. said. But if the court means to lay down as a rule of law any doctrine to the effect that under the circumstances of cases like the present the jury must find for the plaintiff, unless the defendant can show affirmatively that his act 'did not in the slightest decree contribute to any part of the injury which the plaintiff sustained,' then surely the court is laying down new law. The court says, 'The whole groundwork of the respondent's argument is that the motion to dismiss was properly granted beCause it was incumbent upon the plaintiff to establish that, without Sage's act, he would not have been injured; thus completely turning around the question as to the burden of proof.' Here both words and context seem to indicate clearly that the meaning of 'burden of proof,' which the court has in mind is the burden of establishing an affirmative case. The result is that the plaintiff is relieved from the necessity of establishing affirmatively that his injury was in a legal sense the outcome of the defendant's misconduct, because the defendant's act was a wrongful one at best. Probably, however, the court does not mean to assert any such doctrine. What was said was said by the way, and rather hastily; if the point had been material to the case, it would doubtless have been more carefully considered." Another interesting question is likely to arise at the next trial. The defendant will probably advance the theory that his act was instinctive, and ask for an instruction to the jury that if his action was involuntary and such as would instinctively result from a sudden and irresistible impulse to escape a terrible danger, he is not liable to the plaintiff for the consequences of it. Upon the principle advanced in the celebrated Squib Case and such cases as Griggs v. Fleckenstein, 14 Minn. 81, it is difficult to see how such an instruction could be refused. It may well be doubted, however, whether the facts as we have them do not show a rapid exercise of the reasoning faculty rather than purely impulsive action. AND NOTES OF RECENT DECISIONS. INJUNCTION PUBLICATION OF BIOGRAPHY PORTRAIT-PUBLIC CHARACTERS.-The United States Circuit Court for the District of Massachusetts, decides in the case of Corliss v. E. W. Walker Co., that a person who holds himself out as an inventor, and whose reputation as such becomes world-wide, is a public character, and the publication of his biography cannot be restrained by injunction; that a court of equity has no jurisdiction of a suit to restrain respondents from publishing a biography of complainant, or of a member of complainant's family. A court of equity should restrain by injunction the publication of a picture of a deceased member of complainant's family, taken from a photograph and portrait of deceased, where respondent has not observed the conditions on which the portrait and photograph were obtained. Colt, J., says: This is a suit brought by the widow and children of George H. Corliss to enjoin the defendants from publishing and selling a biographical sketch of Mr. Corliss, and from printing and selling his picture in connection therewith. The bill does not allege that the publication contains anything scandalous, libelous or false, or that it affects any right of property, but the relief prayed for is put upon the novel ground that such publication is an injury to the feelings of the plaintiffs, and against their express prohibition. The counsel for plaintiffs, in argument, put the case upon the ground that Mr. Corliss was a private character, and that the publication of his life is an invasion of the right of privacy, which a court of equity should protect. In the first place, I cannot assent to the proposition that Mr. Corliss was a private character. He held himself out to the public as an inventor, and his reputation became world-wide. He was a public man in the same sense as authors or artists are public men. It would be a remarkable exception to the liberty of the press if the lives of great inventors could not be given to the public without their own consent while living, or the approval of their family when dead. But whether Mr. Corliss is to be regarded as a private or public character (a distinction often difficult to define) is not important in this case. Freedom of speech and of the press is secured by the Constitution of the United States and the Constitutions of most of the States. This constitutional privilege implies a right to freely utter and publish whatever the citizen may please, and to be protected from any responsibility for so doing, except so far as such publication, by reason of its blasphemy, obscenity or scandalous character, may be a public offense, or, by its falsehood and malice, may injuriously affect the standing, reputation or pecuniary interests of individuals. Cooley Const. Lim. (6th Ed.) 518. In other words, under our laws, one can speak and publish what he desires, provided he commits no offense against public morals or private reputation. Schuyler v. Curtis, 15 N. Y. Supp. 787, recently decided by the New York Supreme Court, and upon which the plaintiffs rely, is not in point. In that case the court enjoined the defendants from erecting a statute of Mrs. Schuyler. The right of publication was not in issue in that case. There is another objection which meets us at the threshold of this case. The subject-matter of the jurisdiction of a court of equity is civil property, and injury to property, whether actual or prospective, is the foundation on which its jurisdiction rests. In re Saw. yer, 124 U. S. 200, 210; Kerr Inj. (2d Ed.) 1. It follows from this principle that a court of equity has no power to restrain a libelous publication. Boston Diatite Co v. Florence Manuf. Co., 114 Mass. 69; Brandreth v Lance, 8 Paige, 24. The opinion of Vice-chancellor Malins in Dixon v. Holden, L. R., 7 Eq. 488, to the contrary, is disapproved by Lord Chancellor Cairns in Assurance Co. v. Knott, 10 Ch. App. 142. In Kidd v. Horry, 28 Fed. Rep. 773, Mr. Justice Bradley, in speaking of Dixon v. Holden, and several recent English cases, declares that they depend on certain acts of parliament, and not on the general principle of equity jurisprudence. But in the present bill it is not pretended that the publication is libelous, and therefore there can be no question as to the want of jurisdiction in this case. As to the picture which accompanies the published sketch, the case stands on a different footing. The defendants obtained from the plaintiffs a copy of a portrait and a photograph of Mr. Corliss, from which they have made two plates, one of which they propose to insert in the publication. But it appears from the evidence that these pictures were obtained on certain conditions, which the defendants have not complied with. This matter directly concerns the exclusive right of property which the plaintiffs have in the painting and photograph, and it would be a violation of confidence or a breach of contract between the parties to permit the defendants, under these circumstances, to use either of the plates. Pollard v. Photographic Co., 40 Ch. Div. 345; Prince Albert v. Strange, 1 Macn. & G. 25. The injunction is denied as to the publication, and granted as to the use of the plates. NEGOTIABLE INSTRUMENT-JOINT MAKERSINDORSEMENT IN BLANK. -In Salisbury v. First National Bank, the Supreme Court of Nebraska considered a controverted question in the law pertaining to commercial paper, viz: whether a person other than a payee, who signs his name in blank upon the back of a promissory note at the time of its execution and before its delivery to the payee, is as to a subsequent bona fide holder for value, liable thereon as a joint maker. The decision of the court was in the affirmative. Norval, J., says: The question to be considered by this court is this: Were plaintiffs in error liable as makers of said note, or were they chargeable as accommodation indorsers, merely? If the obligation they assumed by indorsing their names upon the back of the note before its delivery to the payee was that of maker, the judgment under review was right; otherwise, not, inasmuch as no notice of non-payment at maturity was given to plaintiffs in error. The kind of liability that the law presumes is assumed by one who signs his name in blank upon the back of a negotiable promissory note at the time of its execution, and before its delivery to the payee, has never been passed upon or decided by this court, and there is a great diversity of holding upon the question by text writers and courts in this country. Several courts of high standing sustain the doctrine for which plaintiffs in error contend, namely, that, where a stranger writes his name across the back of a note before its delivery to the payee, he is liable thereon as an indorser. Moore v. Cross, 19 N. Y. 227; Phelps v. Vischer, 50 N. Y. 69; Slack v. Kirk, 67 Pa. St. 380; Clouston v. Barbiere, 4 Sneed, 336; Jennings v. Thomas, 13 Smedes & M. 617; Jones v. Goodwin, 39 Cal. 493. There is another line of decisions which hold that a person so indorsing a note is chargeable, prima facie, as a grantor. Webster v. Cobb, 17 Ill. 459; Blatchford v. Milliken, 35 Ill. 434; Lowell v. Gage, 38 Me. 36; Sturtevant v. Randall, 53 Me. 154; Cook v. Southwick, 9 Tex. 615; Killian v. Ashley, 24 Ark. 512. The decided weight of authority supports the rule adopted by the trial court in this case, and that is that plaintiffs in error are liable as joint makers. Story, Prom. Notes, §§ 468, 469; Good v. Martin, 95 U. S. 90; First Nat. Bank of Worcester, Mass. v. Lock-Stitch Fence Co., 24 Fed. Rep. 221; Bendey v. Townsend, 3 Sup. Ct. Rep. 482; Chaddock v. Vanness, 35 N. J. Law, 517; Quinn v. Sterne, 26 Ga. 223; Sylvester v. Downer, 20 Vt. 355; National Bank v. Dorset Marble Co. (Vt.), 17 Atl. Rep. 42; Robinson v. Bartlett, 11 Minn. 410 (Gil. 302); Peckham v. Gilman, 7 Minn. 446 (Gil. 355); Schmidt v. Schmaelter, 45 Mo. 502; Cahn v. Dutton, 60 Mo. 297; Melton v. Brown (Fla.), 6 South. Rep. 211; Wetherwax v. Paine, 2 Mich. 555; Sibley v. Bank, 41 Mich. 196, 1 N. W. Rep. 930; Moynahan v. Hanaford, 42 Mich. 329, 3. N. W. Rep. 944; Flint v. Day, 9 Vt. 345; Sanford v. Norton, 14 Vt. 228; Stevens v. Parsons (Me.), 14 Atl. Rep. 741; Schroeder v. Turner (Md.), 13 Atl. Rep. 331; Bright v. Carpenter, 9 Ohio, 139; Bank v. Baldwin, 41 N. H. 434; Perkins v. Barstow, 6 R. I. 505; Baker v. Robinson, 63 N. C. 191; Hoffman v. Moore, 82 N. C. 313; Brown v. Butler, 99 Mass. 179; Way v. Butterworth, 108 Mass. 509. Many other authorities to the same effect could be cited. In Bright v. Car penter, supra, Lane, C. J., observes: "If a person not a party gave his name to a note already existing, his engagement is collateral, only, and he is to be held as guarantor; but if such a person sign his name to such a paper at the time of its exccution, without prescribing the limit of his responsibility, he authorizes the holder to treat him as a maker, and is as much bound as if his name was written under that of the principal." Judge Story, in discussing the question in his valuable work on Promissory Notes, at section 409, says: "The principle upon which all these cases turn is the same, and that is to expound the particular transaction, without reference to the form which it has assumed, in such a manner as will best carry into effect the substantial intention of the parties, 'ut res magis valeat quam pereat,' rather than, by a close or technical interpretation, adhering to the let ter to defeat the very objects and purposes for which alone the transaction must have taken place, and thus to make it operate at once as a delusion and a fraud upon the ignorant or the unwary. Nor is there anything novel in this mode of interpretation, applied to this class of cases. It stands upon the principle that two instruments of the same general nature, both executed at the same time, and relating to the same subject-matter, are to be construed together, as forming but one agreement. As he who signs on the face, and he who indorses his name on the back, both promise to do the very same thing, to-wit, to pay the money at the specified time, they may, without doing violence to the contract, be deemed as joint makers; and as, in point of form, each promises for himself, the undertaking may be treated as several as well as joint. In respect to the consideration, it has been thought sufficient that the indorsement purports to be 'for value received,' or that the consideration, if not expressed, is established in proof by the contemporaneous facts when the note was made." There is no room for doubt that where a person not a payee places his name upon the back of a note, in blank, before it has passed into the hands of the payee, he may be proceeded against as maker, indorser, or guarantor, according to the circumstances of the case, and the intention of the parties at the time of the transaction; but as between the original parties, at least, parol evidence is admissible to show the real character of the obligation assumed by him; that is, whether his undertaking was that of a joint maker, guarantor, or indorser. We are constrained to adopt the rule sustained by the current of authorities, and the one which is in harmony with the decisions of the Supreme Court of the United States, namely, that when a third person indorses his name upon a note in blank at the time it is executed, and before delivery, the law presumes, in the absence of evidence showing the nature of his undertaking, that he intended to assume the liability of an original promisor. Applying this rule to the case at bar, it will be presumed that the plaintiffs in error, by placing their names upon the back of the paper in suit, intended to incur the liability of a maker. We do not think the trial court erred in not permitting plaintiffs in error to show the intent with which they backed the note in controversy. The answer was not sufficient to admit of such proof. Besides plaintiff below purchased the paper in good faith, for value, before maturity; and, as against such indorsee, parol evidence was inadmissible to show that the character or limit of the liability of plaintiffs in error was other or different from that which the law presumes it to be. |