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Vol. I Friday, December 22, 1905 No. z5

TH E LAWPublished by

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WM. H. O'BRIEN,President and Manager.

NEEDHAM C. COLLIER,Editor.

Associate Editors:ROBERT F. WALKER, CorporationsJAMES C. JONES, - - InsuranceRICHARD T. BROWNRIGG, - Real PropertyMcCUNE GILL, - - Titles and AbstractsBENJAMIN H. CHARLES,

Municipal CorporationsWM. F. WOERNER, AdministrationCLAUD D. HALL,

Torts, Negligence and DamagesEDGAR R. ROMBAUER,

Medical JurisprudenceJOSEPH DICKSON, Jr., - Common CarriersMONTAGUE LYON,

Commercial Paper, Banks and BankingEDWARD S. MURPHY,

Accounts, Credits and CollectionsHENRY H. OBERSCHELP - - ContractsM. U. HAYDEN, - Partnership and EvidenceBENJAMIN J. KLENE,

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Limitations and Statute of FraudsGEORGE T. DESLOGE, - - - WillsWALTER H. SAUNDERS, Constitutional Law

SPECIAL.The columns of THE LAW are open to

the profession for fair discussion of courts,decisions, ethics of the profession or anysubject relevant or interesting, within thescope of legal information. Its readers areinvited to send in their views, and if theyprove interesting we will give others thebenefit of them. It is the ambition of thepublishers of THE LAW to make it themedium of thoughtful discussion, by thelegal fraternity, of subjects of interest tothe professlon.-EDITOR.

"Morituri te Salutamus,"Mr. Landis.

The Associated Press informs us thatMr. Frederick Landis of Indiana hasmade his maiden speech in Congress andthat the subject to which he directed hiseloquence was the Landis bill.

By this bill it is proposed to create adivision of insurance in ihe Departmentof Commerce and Labor and to providea Superintendent of Insurance.

When this has been effected, then you"subject these corporations to nationalsupervision and the eagle will keep thevuture from plucking the bodies of thedead," or so Mr. Landis says.

Various other picturesquely eloquentphrases seem to have been employed tomake that maiden effort the occasien offrequent applause and of the speakerbeing surrounded by members who ex-tended' their warm congratulations.The "atcst authentic information we

have of the vulture who has been pluck-ing or is bent on "plucking the bodies ofthe dead," is from the American Bar As-sociation, which informs us that the vul-ture is anxious to come under the beakand the talons of the eagle, which, Mr.Landis says, will keep him from "pluck-ing the bodies of the, dead."

Therefore, "the leading insurance com-panies," as the Insurance Committee ofthe American Bar Association describesthem, going to meet the eagle, may ex-claim, as did the gladiators in the Romanarena. "Morituri te salutainus," beingabout to die, we salute you.

Mr. Landis' eloquence may for a mo-ment disturb the gravity of the insuranceplunderers, but when they catch theirsecond wind they may reflect that the

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glittering manifesto will far exceed thewar of destruction to insurance robberyand peculation which would result. Thenational government and its Departmentof Commerce and Labor has not yetstruck any great amount of terror to thesouls of trust malefactors and they haveyet to make their first exhibit of a humanbeing in a striped suit.

Neither has its publicity, so highlyvaunted as a panacea, suggested a con-valescent condition in any section of thecountry of which we have heard. In-deed, we have come to wonder if, in itstreatment, the Department were not giv-ing the public untriturated doses in home-opathic measures. If it is still acquiringa stock for fin- heroic treatment, the ar-gument to be made when it is ready fordelivery, no d6ubt, will be that, if youturn it all loose at once, it will not onlyshock American civilization, but panicthe financial world as well.

We may be over-pessimistic, but wecan but look at national supervision ina matter of this kind as a consummationmost devoutly wished for by the insur-ance graters, more than by any one else.

Along with them are the stock job-bers, the grain and cotton gamblers ofWall street, and all other interests of thecity of New York supported by in--fluences, centrifugal and centripetal, leav-ing at or bearing to that center thetributes of the country.

But even if we were assured beyondall peradventure that greater efficiencyin the detection and prevention of fraudwould result from national supervision,is that an end of the question? Is it wellfor the sake of a single interest, as vastas it is., to enter upon a course of thischaracter ?

Is there not in it a tendency to thosethings which, in the language of JusticeMiller in the Slaughter-house cases, "fet-ter and degrade the state governmentsby subjecting them to the control of Con-gress in the exercise of power heretoforeuniversally conceded to them of themost ordinary and fundamental char-acter?" And to take this control fromcomity, does not the legislation lean to-wards a change of "the whole theory of

the relations of the state and federalgovernments to each other and of boththese governments to the people?"

No one may dispute the centralizingtendencies in the affairs of our country,and, while it may be true that businessconditions may sometimes have beenhampered by conflicting laws and de-cisions, state pride has been the surestand most constant support of our nationalfabric.

Where there have been, or will be,clashing interests, they will never mili-tate against national supremacy in aunion of states to the extent they mightif state lines were obliterated or statesovereignty shorn of its rightful dignityand control.

When an assumed inability on the partof the states to apply the remedial pro-cesses to abuses, which arise out of con-tractual relations, voluntarily entered intoby state citizens, so admirably distin-guished by Justice Miller, in the Slaugh-ter-house cases, from United States citi-zens, we take a .step more serious thanthe exigencies of war brought to us inthis passing decade of our history. Whatwar brought to us may not harm ourstate autonomy, while what the corrup-tion of peace threatens is an underminingof its base.

The Ohio Statute for the Supressionof Gambling Houses

The Supreme Court of the UnitedStates rendered a decision on November13, 1905, which should encourage greatlsthe moralists of the country with respectto the gambling evil. Also, it may serveas a pointer for application to other im-moral practices, which defy suppressionor even visible abatement by the meanspresently adopted.

The decision we refer to is in the caseof Marvin v. Trout, published in ad-vance sheets of vol. 26, Supreme CourtReporter, beginning at page 31.

One argument against the effective-ness of the legislation, considered in theopinion in the case, may arise out of thefact that it has been in existence since1831 and its constitutionality has only

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now met with a challenge. It would notappear, from this circumstance. that itsremedial benefits had been often invoked,and, perhaps, at this time its enforce-ment was something like the revival of astatute which was regarded as a deadletter in legislation.

However, its constitutionality beingfirmly recognized by our highest judicialtribunal, other state legislatures mayconsider the advisability of its enactment,without being embarrassed by any doubtof its complete validity under our federalconstitution.

The Ohio statute provided for recov-ery by the loser from the winner ofmoney, or anything of value other thanmoney, lost in gambling, and in defaultof his suing therefor in six months, aqui tam action by any informer, firstsuing therefor. And in the event ofjudgment being obtained, a subsequentsuit could be begun to establish a lienupon the building and the ground uponwhich situated, where the lessor know-ingly let or suffered the premises to beused for gambling purposes, and, whereunder control of a guardian, he becamepersonally responsible for the amount ofthe judgment.

There were two judgments, aggregat-ing some $4,700, recovered by a wifeagainst the gaming-house keepers, formoney lost to them by her husband.

In overruling the contention by theowner of the leased premises, JusticePeckham, speaking for the court, says:"The statute, or one somewhat similar toit. has been in force in Ohio ever sinceat least 1831, and similar legislation isfound on that subject, or upon that ofthe regulation of the sale of liquor, inmost of the states of the union. Theplain object of this legislation is to dis-courage, and, if possible, prevent gam-bling. The liability of the owner of thebuilding to make good the loss sustainedunder the circumstances set forth in thestatute was clearly part of the measureresorted to by the legislature for thepurpose of suppression of the evil in theinterest of the public morals and wel-fare. We are aware of no provision inthe federal constitution which prevents

this kind of legislation in a state forsuch a purpose.". The Justice then discussed the in-

former feature of the statute, saying thatsuch legislation has "been in existencein England hundreds of years and inthis country ever since the foundation ofour government."

Thus, upon the ground that the pur-pose aimed at was the suppression of anevil in the interest of the public moralsand welfare, and the liability of theowner was clearly a part of such pur-pose, he was held not to have been de-nied due process of law.

The remedy against gaming-houses inthe mere right to recover of the winneris largely no remedy at all, for their ir-responsibility generally would make ofstatutes a brutum fulmen, and so it wouldbe largely, if there were no informerfeature, though the owner of the prem-ises leased were also made liable. Butadding both to such statutes constitutesquite a menace to lessors.

Such a statute might be made stillmore formidable by adding other feat-ures, such as taking away from wit-nesses testifying to establish a claim ofthis nature all incriminating effect anddevolving upon admintrators and execu-tors a duty to institute actions of thisnature, or take the direction of probatecourts in the premises. Also, the Ohiostatute could be strengthened by suingwinner and owner in the same action andprotecting the lien sought by a !is pen-dens.

Furthermore, gambling in grain andother options, bucket-shops, futures, get-rich-quick concerns and a great varietyof questionable businesses, which comeunder the police power of the state andby the policy of the state are sought tobe suppressed,, might have the benefitsof such legislation extended to them.

There are dives and other dives. Somereek of corruption of the coarsest nature,and some are ambitious enough to flaunttheir presence to the public in gildedtrappings and assume the airs of legiti-mate business.

All of them lead or tend to lead tobreach of trust, defalcation and the sap-

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ping of moral stamina and the under-mining of business rectitude.We do not greatly believe in legislat-

ing moralitv into a people. but if thereare any offenders against good moralsand the public welfare; for whom wehave less sympathy than others, they arethose who lease premises for question-able purposes and exact increased rentaltherefor. They are not in the open likethe bolder offenders, but they are get-ting their price, nevertheless, and maycarry with them an oily sanctimonious-ness to which the others make no pre-tence or claim.

Statutes of Limitation as to BankAccounts and Certificates

of Deposit.Koelzer et al. v. First Nat. Bank of

Whitewater, 104 N. W. Rep. 838. (Su-preme Court of Wisconsin, October 3,1905.)1.' *Banks and Banking-Deposits Subject

to Check-Demand.A deposit in a bank subject to check im-

poses on the bank, in the absence of anycontract to the contrary, the duty of payingon account of the deposit only on a properdemand therefor by check at the bank dur-ing banking hours, and a breach of thebank's obligation to pay on proper demandis essential to a cause of action for the de-posit and' to set the statute of limitationsrunning in respect to it.

2. Same - Limitations- Statutory Provi-sions.

An action against a bank for a depositsubject to check is complete only on thebank's failure to pay on proper demandbeing made, and is barred In six yearsthereafter by Rev. St. 1898, Sec. 4222, subd.'3, and is not affected by section. 4226, pro.viding that actions for the balance due onaccount accrue at the time of the last itemin the account.

Appeal from Circuit Court, WalworthCounty, E. B. Belden, Judge.

*Above headnotes copyrighted by WestPublishing Company and reproduced here byits permission.

Action by Mary Koe'zer and another,executrices of Jacob Koelzer. deceased,against the First National Bank ofWhitewater. From a judgment for de-fendant, plaintiffs appeal. Reversed.

Appeal from the Circuit Court forWalworth county. The action was torecover moneys deposited by JacobKoelzer in the defendant bank subject tobe checked out in the regular course ofbusiness. The last transaction betweenthe defendant and the depositor in re-spect to the account occurred more thansix years before the commencement ofthe action. It was claimed in the com-plaint and denied by the answer that thebalance due after such last transactionwas $533.26. A balance at that time of$8.25, was conceded. Plaintiff claimedthat a deposit of $525.00 was made,which was disputed. The six-year stat-ute of limitations was duly pleaded. Thecause was tried by the court, resulting infindings to the effect that the true balancewas as claimed by plaintiff, but that thecause of action accrued to recover thesame at the date of such last transaction,and without demand for payment, andhence such cause of action was barred bythe six-year statute of limitations. Judg-ment for defendant was rendered accord-ingly.

J. H. Page (William Smith, of coun-sel), for appellants. James G. Kestol(Whitehead & Matheson, of counsel),for respondent.

MARSHALL, J. (after stating the facts).The learned Circuit Court seems to haveapplied to the facts of this case the doc-trine which prevailed in Curran v. Wit-ter, 68 Wis. 16, 31 N. W. 705, 60 Am.Rep. 827. The question there was this:Is a demand for payment of a bank'swritten obligation in the form of an or-dinary certificate of deposit essential to acause of action to recover thereon? Forthe reason that the relations of the par-ties to such an instrument are those ofdebtor and creditor, and all its charac-teristics are identical with those of apromissory note payable on demand, itwas held to be such a note and to begoverned by the law relating to suchcontracts as regards necessity for demand

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for payment as a condition precedent toaction thereon. That is, since in con-templation of law, a promissory notepayable on demand is due from its dateand affected by. the statute of limitationsfrom that time, such a note payable by abank, though called a certificate of de-posit, must be governed accordingly.That is well supported by judicial author-ity, though there is much authority tothe contrary, mainly based on the theorythat the relation between a bank and itsdepositor is not that of a debtor andcreditor, but more like that of a baileeand bailor. Obviously since the rule asto a certificate of deposit is grounded onthe fact that it is a mere promissory notepayable on demand, it does not neces-sarily apply to ordinary indebtedness of abank to a depositor carried on its booksin open account subject to check.

If such indebtedness as that last men-tioned were of the same character asthat on an ordinary account one wouldbe governed by the same rule as theother as regards the statute of limita-tions. A cause of action to recoverthereon would not be dependent upon aformal demand for payment. Manifestlyit is not of the same character. In caseof an ordinary account it is the legalright of the creditor to have his .debtorseek him out and pay him. There is nosuch obligation as to a bank creditor.The general custom in banking businessis to pay on account of such indebtednessonly upon a proper demand therefor bycheck or its equivalent at the bankinghouse during ordinary banking hours.One who deposits money for his creditin such an account, without any specialunderstanding to the contrary, is pre-sumed to accept the undertaking of thebank to pay according to the generalusage in such cases, which is known toall men. There being such a generalcustom, without some special stipulationto the contrary, the contract between thebank and its general depositors, by neces-sary implication, accords therewith. Soa breach of the bank's obligation to payupon a proper demand being made, orsome act on the part of the bank dis-pensing with such demand, is. essential

to a cause of action to recover of it andset the statutes of limitations running inrespect to the debt.

The judicial and elementary authori-ties are in substantial harmony with theresult above reached. In Wood on Limi-tations (3d Ed.), Sec. 17, the trend ofAmerican decisions is stated in thesewords:

"But it appears to be that an actionwill not lie against a bank for a deposituntil after a demand has been madeiherefor. The engagement of a bankWith its depositor is not to pa' absolutelymd immediately, but when payment shallbe requested at the banking house, andtherefore it is not in default or to re-spond in damages until demand and re-fusal; nor does the statute of limitationsbegin to run until demand has been dulymade."

The texts in Morse on Banks andBanking (4th Ed.), Vol. 1, Sec. 322, andthe Am:& Eng. Ency. of Law (2d Ed.),Vol. 3, p. 838, supported by numerousauthorities, are to the same effect.

It is suggested by counsel for respond-ent that as this court has held that therelation between a bank and its depositoris that of debtor and creditor and thatno demand for payment of its ordinarycertificate of deposit is essential to acause of action to recover thereon, itmust necessarily follow that the samerule applies to an ordinary indebtednesson open account, as in all jurisdictionsthe rule is uniform as to both classes ofindebtedness. Counsel are in error inthat. True, many courts hold contraryto the policy adopted here as to a de-mand being necessary to a cause of ac-tion on certificates of deposit. True, insuch jurisdictions there is no distinctionbetween indebtedness on such a certifi-cate and indebtedness on open account,but in every jurisdiction, so far as wecan discover, where it has been held thatthe statute of limitations on such a cer-tificate runs from its date, and the ques-tion has been determined as to when itruns as to an ordinary bank credit sub-ject to check, it has been held that a de-mand for payment is necessary to setsuch statute in operation. As significant

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in that regard as any of the American de-cisions are those of the Supreme Court ofMinnesota, since the rule there is thatthe relation between a bank and its de-positors is that of debtor and creditor.Branch v. Dawson, 33 Minn. 399, 23 N.W. 552; Mitchell v. Easton, 37 Minn.335, 33 N. W. 910. See, also, Morse onBanks and Banking (4th Ed.), Vol. 1,Secs. 302, 322.

We do not overlook the fact that theaccount in question, as is usual, was anopen account current and that it is pro-vided by statute that "in actions broughtto recover the balance due upon a mutualand open account current the cause ofaction shall be deemed to have accruedat the time of the last item proved insuch account.- Section 4226, Rev. -St.1898. That does not apply where byagreement between the parties the debtis payable only upon the happening ofsome particular event. Mere bank cred-its are an exception to accounts in gen-eral referred to in the statute, since, asstated, demand for payment at the bank-ing house during banking hours is essen-tial to put the bank in default. Section4226, Rev. St. 1898, does not, but sub-division 3, Sec. 4222, Rev. St. 1898, doescover such cases .as the one before us; itbeing understood that the statute com-mences to operate only from the timethe cause of action is complete.

The judgment is reversed, and thecause remanded with directions to renderjudgment in favor of the plaintiff for$533.26, with interest thereon from the5th day of February, 1898, with costs.

NOTE.-The principal case seems to bethe general, if not quite the universal, ruleand the reason of the rule is applied inother kinds of deposits. Thus it has beenheld in Georgia, that, where a wife placesmoney in the hands of her husband to usefor her benefit with no time fixed for an ac-counting, the statute does not begin to rununtil there is a demand for its return.Rucker v. Maddox, 114 Ga. 899, 41 S. E. 68.And in the same state, in a case of the de-posit of money in lieu of a bail bond, whereconviction was set aside, it does not beginto run until the depositor demands its re-turn. City of Savannah v. Kassell, 115 Ga.310, 41 S. E. 572.

But if a situation arises where a demandmight be presumed or would be consideredto be waived, the statute begins to run fromthe time of such occurrence. Thus it hasbeen held that suspension of payment anddiscontinuance of banking operations startsthe statute from the date of suspension.Schinotti v. Whitney, 130 Fed. (C. C. Dir.Louisiana) 780. The date of the beginningof the statute has also been placed at thetime when the depositor obtains knowledgeof the suspension. Union Bank v. Planters'Bank, 9 Gill & J. (Md.), 439, 31 Am. Dec. 113.

In Maryland also it has been held that abank may, by notification to a depositor thathis claim for a deposit will not be paia atthe counter, start the running of the statute.Farmers' & Mechanics' Bank v. Planters'Bank, 10 Gill & J. 4-22. In Massachusetts itwas ruled that the statute began to runfrom the date of a monthly balance Etruekin the bank book of a depositor. UnionBank v. Knapp, 20 Mass. (3 Pick), 96, 15Am. Dec. 181. As seen, however, in a latecase, the rule of the principal case is firm-ly adhered to in Massachusetts. Dickiinsonv. Leominster Say. Bank, 152 Mass. 49, 25N. E. 12.

The fact of refusal to honor a check wherethere was a larger sum in the bank thanthe check called for starts the statute oalyfor the amount called for by tae check.Viets v. Union Nat. Bank, 101 N. Y. 563, 5N. E. 4.57, 54 Am. Rep. 743. Along the sameline of ruling it was decided in Vermont,where an account was closed and a checkdrawn for apparent balance, the statute didnot begin to run as to an amount erroneous-ly charged the depositor. Goodell v. Bran-don Nat. Bank, 63 Vt. 303, 21 Atl. 956.

In Schinotti v. Whitney, supra, which sus-tains the principal case upon such a stateof facts as therein existing, yet further h Idthat where the deposit draws interest thisconstitutes, under the Louisiana statute,"money lent," and the statute begins to rinwith the date of the deposit.

As to certificates of deposit the courtsof the state are in conflict, the weight of au-thority seeming to be that they stand uponthe same footing as an ordinary deposit withthe statute not beginning to run until de-mand for payment. See Sharp v. CitizensBank of Stanton (Neb.), 98 N. W. 50; Cit-izens Bank of Humphreys (Neb.), 89 N. W.775; Fells Point Say. Inst. v: Weedon, 18Md. 320, 81 Am. Dec. 603; Howell v. Adams,68 N. Y. 314; McGough v. Jamison, 107 Pa.St. 336; Bellows Fall Bank v. Rutland Co.

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Bank, 40 Vt. 377. In New York it was alsoheld that where the certificate payable ondemand on order of payee and to bear ii-terest, if amount is left in bank for sixmonths, does not change this rule. In reCook 83 N. Y. S. 1009, 86 App. Div. 586.

Other state courts hold that the certificateis due immediately with the statute begin-ning to run from its date. As a corollary ofthis these courts generally hold, that trans-fers are affected by the rule as to negotiableinstruments purchased after maturity. SeeBrummagim v. Tallant, 29 Cal. 503, 89 Am.Dec. 61; Meador v. Dollar Say. Bank, 56Ga. 605; Mitchell v. Easton, 37 Minn. 335,33 N. W. 910; Tripp v. Curtenius, 36 Mich.494, 24 Am. Rep. 610. In a later Michigancase, however, the rule as to purchasingsubject to equities was not enforced, wherethere was a purchase thirty-one days afterissuance, notwithstanding the certificate wasdue from its date, as from the usages oftra'de with respect to paper of this charac-ter, this was not a sufficient lapse of timeto put. the purchaser, who paid full value,upon any inquiry as to the existence of anyequities, between the bank and prior holders.

Has a Minister of the Gospel theRight to Refuse to Perform a

Marriage Ceremony?The divorce evil is very properly re-

ceiving the renewed attention of religiousbodies. We are informed that many ofthe leading denominations do not allowtheir ministers to marry persons previ-ously divorced on other than Scripturalgrounds, and that many individual muin-isters of other denominations have pre-scribed the same rule for their own con-duct. It is, therefore, getting more dif-ficult for divorced persons 'to secure aminister of standing to perform the mar-riage ceremony.

The question, therefore, arises as towhether a minister has a legal right torefuse to marry a person who is mar-riageable under the laws of the land.The law treats marriage simply as acivil contract, and a minister in the per-formance of the ceremony is acting inthe capacity of a public civil officer.

The fact that the minister makes theceremony of a religious nature does notchange its legal aspect, for a perfectlyvalid marriage may be performed with-out any religious ce.remony whatever.

In Virginia there is no such thing as acommon law marriage-thar is, therecan be no marriage except according tostatute. Unlike some of the other states,the judges and justices are not by virtueof their offices authorized to performthe ceremony.

Indeed, no minister can p2rform therite unless specially authorized to do soby the courts, in which case he is re-quired to give bond for the faithful per-formance of his duties.

It would be an anomaly in the land, ifan officer were allowed to refuse to per-form an official function wben the per-son applying for its exercise had in allrespects complied with the law.

It is unfortunate that the laws of thestate and those of the churchcs should beat variance; but it would seem that aminister in taking upon himself the du-ties of an officer of the law should begoverned by the law. Or perhaps itwould be better to say that a man shouldnot accept from the state an office, theduties of which he can not conscientious-ly perform; or, having accepted such anoffice, he should resign when he findssuch conflict exists.

It is true that in Virginia the courtsmay authorize persons other than min-isters to perform the marriage ceremony,but, if the minister has the right to re-fuse to perform, because to do so wouldbe to violate his conscience or to breakthe rules of his church, then any otherofficer would have the same right, unless,indeed, the minister's rights of conscienceare more sacred than the rights of othercitizens.

If the minister may refuse to marrypersons legally marriageable, would itnot be equally competent for the clerkof the court, for the same reason, tcrefuse to issue the marriage license?

It is no answer to say that, if one min-ister refuses to perform the ceremony,another minister or some officer may beapplied to, for if one may refuse, so mayall, and thus those appointed to performa duty might usurp the legislative func-tion and practically prescribe the pre-requisites of marriage.

If the question is ever brought before

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the courts, it would be interesting to ob-serve whether it is possible to avoid aclash between the law of the land andadvanced Christian sentiment.-VirginiaLaw Register, September, 1905.

Lord Brougham.Brougham was acutely alive to the im-

portance of self-advertisement. In hisheyday no name was more frequentlyin the mouths of men than his. In thishe showed his worldly wisdom. Noto-riety is of vast importance in political life.Those in whom the public take an in-terest are those who most speedily suc-ceed. Cloistered virtue is disregardedvirtue. Men do not now seek Cincin-natus at his farm. A hundred vendorsare offering their abilities for sale. Theambitious must press into the market-place and cry their wares as loudly asthey can. The popular character of ourgovernment puts a high premium on self-advertisement. To receive the confi-dence of the democracy, you must beknown to the democracy. Broughamwas fully awake to these truths and lostno opportunity of keeping himself wellbefore the public. He was vastly as-sisted by the support of The Times,which flattered him outrageously foryears. He actually went so far as tospread a report of his death, in order tocreate a sensation and see what the news-papers would say about him. Some ofthe obituary notices were not very flat-tering. He had many satellites, whotalked about him and advertised him insociety. One of the chief of these wasLord Sefton, who is described in Gre-ville's Journal as "Brougham's trum-peter." Sefton used to watch Broughamin society and never listened to anybodyelse when he was there.

Brougham's chief failing was his lackof balance. He was wanting in judg-ment and prudence. He was greedy ofpresent approbation, and played manystrange tricks in pursuit of it. Some-times his eccentricity was so great as tosuggest a mind that was unhinged.Dugald Stewart, under whom Broughamhad studied as a youth, considered himthe ablest man he had ever known, but

mind constantly oscillating on the vergeof insanity. Greville, in 1834, applied tohim the lines:"Great wits are sure to madness near

allied,And thin partitions do their bounds di-

vide."* * * * In spite of his faults,

Brougham's character had many nobleaspects. He conferred great services onhis countrymen. Setting his mind oncertain reforms, he labored on throughsession after session until he achievedthem. Education, the abolition of slav-ery, charitable trusts, law reforms, wereall subjects of his unremitting efforts.He had a passion for the spread ofknowledge. 'To diffuse useful informa-tion,' he once said, 'to further intellec-tual refinement, sure forerunner of moralimprovement-to hasten the coming ofthe bright day when the dawn of gen-eral knowledge shall chase away the lazy,lingering mists-even from the base ofthe great social pyramid-this, indeed, isa high calling, in which the most splen-did talents and consummate virtue maywell press forward, eager to bear a part.'To this ideal Brougham devoted a largepart of his own life, and his services inthe diffusion of knowledge would alonebestow on him a title to public remem-brance and public gratitude."-Extractsfrom article by J. A. LOVAT-FRASER inThe Judicial Review.

Amendment of Constitutions of In-corporated Associations.

In New Jersey a question has arisen,as to amendment of the constitution ofthe Plainfield Country Club, to which theNew Jersey Law Journal gives consider-able of its space in its December, 1905,issue.

It seems, that a majority, but not atwo-thirds majority, of that club are verydesirous of amending its constitution soas to permit golf playing on Sunday.

The constitution provided for itsamendment by a two-thirds vote. Themajority secured opinions from eminentlawyers, that a two-thirds vote was notnecessary for amendment, and the minor-ity obtained opinions of equally eminent

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essary. On the one side in these opin-ions appears Hon. Wm. B. Hornblower,a sometimes member of the United StatesSupreme Court, and on the other Hon.John W. Griggs formerly United StatesAttorney-General.

The reasoning advanced by Mr. R. V.Lindabury and approved by Mr. Horn-blower, as to the -sufficiency of a majorityvote to effect such change is in effectas follows: The general rule that changemust be made as indicated by the charterand by-laws is conceded, but it is limitedto .interference with vested propertyrights. Otherwise a majority suffices.The fact of designating one portion ofthe laws or rules of an incorporated as-sociation constitution and another partby-laws, is immaterial, as all are merelyby-laws. The statute authorizing the in-corporation merely empowered it toadopt and from time to time amend orchange its constitution.

The constitution in question was lookedon as a provision simply for the regu-lation of the affairs of the club in theordinary way and for the admission ofnew members, and therefore was amend-able by a majority vote, despite what itsaid on this subject.

Mr. Griggs (upon the same side withwhom is Mr. John E. Parsons of NewYork) thought that a constitution, whenonce adopted, becomes a compact be-tween the members, and members newlyadmitted accept its obligations. He sup-poses the case of its providing foramendment at an annual meeting andthinks if the two-third rule as to onething could be set aside it could also asto this. Thus, in one way or another,instead of a constitution, though unani-mously adopted at the beginning, beingan instrument upon which reliance maybe placed, it is always "subject to thecapricious act of a majority of the mem-bers present at any meeting." Mr.Griggs does not care to distinguish be-tween the terms constitution and by-laws,but believes there is a compact uponwhich reliance can be placed as toeither.

Mr. Parsons agrees with Mr. Griggsin quite emphatic terms, and does notconcede the point, that no property in-

terests are involved in mere regulation.The corporation is possessed of propertyand is dependent upon dues, and how itshall be managed affects its pecuniaryinterest.

We think Mr. Griggs and Mr. Par-sons have decidedly the better of theargument in this matter, especially as itseems to us, that the statement of a two-thirds vote being necessary has referenceto other provisions prescribing quorum.Feeling on the Sunday golf question ap-pears to have very thoroughly dividedthe members of the Plainfield CountryClub. In that situation, unless some re-striction were placed on the power ofamendment, whatever is the majority atone meeting might be a minority at an-other.

With constitutions and by-laws, undermajority amendment, there could be thegame of battledore and shuttlecock, untilmembers would not only not know whatwas the latest provision, but factionalstrife would destroy the beneficent ob-jects aimed at.

It has become a too firmly recognizedview in the formation of associations, in-corporated and unincorporated, that alimitation such as is considered is agood limitation against what a chancemajority may otherwise desire.

Then, too, the basis upon which theright of majority amendment may be ex-ercised, if Mr. Hornblower is correct, isa hazy, uncertain kind of foundation.What regulation affects property or vest-ed interests and what fails to affect such,would, in a great many cases, furnishvery debatable questions.One might contend that every regula-

tion pertains to general welfare, andgeneral welfare is a property right, paidfor by dues and assessments, contributedto its preservation.

In a great number of associationsmembership has a tangible market value,and wrongful deprivation of privilegesinvolves property loss.

It ought not to be said that the vestedinterest should be directly affected, butincidental harm should constitute suffi-cient reason for restraint according to aprescribed way.

Like Mr. Griggs, we think: "It would

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be a matter of astonishment to most ofthe incorporated social clubs to be toldthat all such provisions * * * aresubject -to alteration and appeal when-ever a majority vote of the memberspresent at any meeting may so declare."

The Lighter Vein.(Readers of THE LAW are kindly invited

to help along this column with any incident,witty or humorous, in their knowledge orexperience.)

SOME OF CHARLES DICKENS' LAWYERS.-Here is Jaggers, the criminal lawyer of"Great Expectations." With Pip wemay check off in detail "his large head,his dark complexion, his deep-set eyes,his bushy black eyebrows, his largewatch-chain, his strong black dots ofbeard and whisker, and even the smellof scented soap on his great hand." Mr.Jaggers' office was a most dismal place.,and there were some odd objects thatyou would not expect to see, such as anold rusty pistol, a sword, strange-lookingboxes, mementoes of clients dead andgone, and on a shelf two dreadful castsof faces peculiarly swollen and twitchyabout the nose. "These are two cele-brated ones," as Wemmick, Jaggers'"satellite, explained to Pip. "Famousclients of ours that got us a world ofcredit. This cast was made in Newgate,directly after he was taken down. Youhad a particular fancy for me, hadn'tyou, Old Artful?" Jaggers himself satin a deadly black horsehair chair, withthe plaster casts perched above him, andtreated his clients like criminals, as infact they were.

Here is Mr. Tulkinghorn, the sly, un-scrupulous old family solicitor, "the stew-ard of the legal mysteries, the butler ofthe legal cellar of the Dedlocks, sur-rounded by a halo of family confidences,of which he is the silent depositary." Hewas of the old school, and wore knee-breeches, tied with ribbons, and gaiters.He was a hard-grained man, close, dry,silent, with a priceless bin of port insome artful cellar under his chambers inLincoln's Inn Field, where he sits aloneafter dinner to enjoy his wine, with theAllegory in a Roman helmet sprawlingon the painted ceiling above him, whilearound about are old-fashioned mahog-

any and horsehair chairs, and obsoletetables with spindle legs.

There are plenty of lawyers in "BleakHouse" besides Tulkinghorn. Conver-sation Kenge, of Kenge & Carboy, Lin-coln's Inn, was a portly, important look-ing gentleman, dressed all in black, witha white cravat, large gold watch-seals, apair of gold eye-glasses, and a large sealring upon his little finger. Mr. Guppywas employed in Kenge & Carboy's of-fice, where he learned enough to file hisdeclaration of love to Esther "withoutprejudice."

. Mr. Vholes was another solicitor inJarndyce v. Jarndyce. He was a sallowman, with pinched lips, that looked as ifthey were cold, a red eruption upon hisface, tall and thin, high shouldered andstooping, always dressed in black, blackgloved, and buttoned to the chin. Mr.Vholes used to say that when a client ofhis laid down a principle that was notof an immoral nature it devolved uponhim to carry it out; the ethical force ofwhich was rather marred by his explana-tion that by immoral he meant illegal.

But, of all Dickens' disreputable law-yers, Sampson Brass, Daniel Quilp's at-torney, was probably the lowest. Hewas a tall, meager man, with a nose likea wen, a protruding forehead, retreatingeyes, and hair of a deep red, with acringing manner and a very harsh voice-his face being, indeed, "one of nature'sbeacons, warning off those who navigatedthe shoals and breakers of the World,or of that dangerous strait, the Law."But, as he was wont to boast, he was agentleman-by Act of Parliament. "Imaintain the title by the annual paymentof twelve pounds sterling for a certifi-'cate. I am not one of your writers ofbooks, or painters of pictures, who as-sume a station that the laws of theircountry don't recognize. If any manbrings an action against me he must de-scribe me as a gentleman, or his action isnull and void." Well might the wordsof Sir Thomas Smith apply, "Gentlemenbee made good cheape in England."-Extract from "The Law and Lawyers'"of Charles Dickens. Article in Ameri-can Law Register by John MarshallGest.

THE LAW

REAL PROPERTY.By R. T. BROWNRIGG, Esq.

Tenancy by the Entirety.-In the case ofDarden et al. v. Timberlake, decided bythe Supreme Court of North Carolina, Octo-ber 3rd, 1905, 51 S. E. 895, the court con-strued a deed in which the grant was to"Sam'l Williams and. wife Annie and theirheirs, including the former children of saidAnnie by another husband." The court re-jected the words "and their heirs" as sur-plusage, and construed the grant as a grantto Samuel Williams and wife Annie and tothe children of Annie by a former husband.There were three of these children. Thecourt held that Samuel and Annie Williams,being regarded in law as one person, tookone fourth as tenants by the entirety, andthe three children took one-fourth each, andthat, upon the death of his wife Annie, theone-fourth which was vested by the deedin Samuel and Annie became his alone byright of survivorship.

In view of recent enactments concerningthe property rights of married women, itis of interest to inquire whether or notthere still exists such a unity of person inthe case of husband and wife as will resultunder such statutes in the creation of anestate by the entirety wherever there is agrant to a husband and wife jointly. Inthe case above cited, it does not appearfrom the opinion at what time the 'deedconstrued was made, therefore we can notsay that this is a decision to the effectthat under the married woman's act ofNorth Carolina, there has been such achange in the unity of person of husbandand wife as to do away with tenancy by theentirety.

In the State of Missouri, in case of aconveyance to husband and wife prior tothe married woman's act of 1875, thereseems to be no doubt that an estate byentirety is created. See National Bank ofChicago v. Fry, 168 Mo. 492, 1. c. 508.

But the Missouri decisions are not in avery satisfactory state as to the effect ofsuch conveyance made subsequent to themarried woman's act. In the case of Mc-Leod v. Venable, 163 Mo. 536, a wife in1876 inherited money from her father andthis money, together with other money be-longing to her husband, was invested in realestate, and the deed was made to the hus-band' and wife jointly. Upon the death ofthe wife, it was held that the husband and

wife were in such case not tenants by theentirety, and, therefore, the whole did notsurvive to him, and a court of equity woulddeclare a resulting trust in the land infavor of the wife's heirs.

In the case of Armstrong v. Johnson, 93Mo. App. 492, there were certain certificatesof deposit made out jointly in the name ofhusband and wife, all after the year 1895.It was held that upon the death of thewife, the husband did not take the entirefund by survivorship, but that each waspresumed to have a one-half interest whichdescended to their personal representativesupon the death of both.

In State ex rel. Toebben v. Brady, 53 Mo.Ap. 202, the decision was to the sameeffect.

In the case of Russell v. Russell, 122 Mo.235, it was decided that where land isowned by a husband and wife as tenantsby the entirety prior to a divorce, they may,after divorce, have partition. The courtrecognizes the principle that there can beno partition of property between personswho hold as tenants by entirety, but holdsthat the only basis of such a tenancy is theunity of husband and wife. After thatunity is destroyed by divorce, the tenancyby entirety ceases and they become tenantsin common, and, therefore, may have parti-tion.

It would seem, therefore, that as the ma-ried woman's act, as to property rights,recognizes the separate personality of hus-band an'd wife and that, since, so far asproperty rights are concerned, the unity ofperson upon which tenancy by entirety alonehas its basis is destroyed, there should beno tenancy by entirety in case of a convey-ance to husband and wife made in Missourisubsequent to the married woman's act, atleast, not as to such property as by theterms of the act is made the separateproperty of the wife. But in the case ofBains v. Bullock, 129 Mo. 117, the propertyin question was conveyed to the husbandand wife jointly by two deeds, one executedin 1888 and one in 1891. It was held that,notwithstanding the married woman's act,such conveyance created a tenancy by entire-ty. The husband and wife were still living atthe time of the filing of the suit, and thewife sued in ejectment for the recovery ofthe property from a third person without

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joining her husband, and it was held that,being a tenant by the entirety, an'd- sinceeach of such tenants is eotitled to posses-sion of the whole and since a wife, underthe married woman's act, may sue for in-juries affecting her property without join-ing her husband, the wife might sue andrecover the property in ejectment. Thecourt says, 1. c., p. 120:

"The statute abolishes the legal unity be-tween husband and wife, which gave riseto estates by the entirety, but the estateitself has not been abolished. (Sec. 8844,R. S. 1889.)"

It is also held in Hume v. Hopkins, 140Mo. 1. c. 72, that a deed to husband and' wifejointly, made in 1876, creates an estate bythe entirety with a right of survivorship inthe husband. It does not appear in thiscase as in the case of McLeod v. Venable,supra, that part of the purchase price paidfor the land was the separate property ofthe wife. Therefore, these cases are notnecessarily in conflict.

But we have this anomalous situation inthe decisions. It is held in Russell v. Rus-sell, supra, that the sole basis of tenancyby the entirety is unity of persons andwhere that unity is en'ded by divorce, thetenancy by entirety no longer exists.

It is held in Bains v. Bullock, supra, that,though the statute has abolished the legalunity between husband and wife, a tenancyby entirety may, nevertheless exist.

Two of the principal incidents of tenancyby the entirety are survivorship and thateach tenant is seized not of a moiety butof the whole, per tout et non per my. Butin the case of McLeod v. Venable, supra, itis held that where a deed is made to hus-band and wife jointly and part of the pur-chase price belonged to the wife, tenancyby entirety has been so far abolished by themarried woman's act that the husband doe6not take by right of survivorship upon herdeath. In the case of Bains v. Bullock,supra, it is held that, notwithstanding themarried woman's act, in case of a grant tohusband and wife, there is still such atenancy by entirety that each is seized ofthe whole.

The decision of McLeod v. Venable, in163 Mo., does not expressly overrule any ofthe earlier decisions above referred to, andin this state of the law, it is exceedinglydifficult to say in what cases a conveyanceto husband and wife will create an estateby the entirety, in Missouri; and to whatextent this sort of estate is affected by stat-utes relating to the property rights of mar-ried women.

TITLES AND ABSTRACTS.By McCUNE GILL, Esq.

Sale of Decedent's Real Estate to PayDebts.-Perhaps the most urgent need forthe laws compelling administration of a de-cedent's estate arises from the helplessnessof the dead man's creditors. That the ad-ministration law is a most beneficent onein this respect is attested by the numberof instances where the real estate must besold, to satisfy the debts. There are fewtitles in which this form of involuntary con-veyance does not exist, and while few sales,though irregular, are contested-most peopleare honest-yet an examiner can hardly af-ford not to scrutinize with the utmost carethese proceedings, created as they are bystatute, and encumbered with a not inconsid-erable amount of legal technicality.

There are ten distinct steps establishedby the Missouri statutes and decisions, whichgo to form a perfect transfer of real estateto pay debts of a decedent. Each of theserequisites should be abstracted or Its ab-sence noted.

1. Petition. If any person die and hispersonal estate be insufficient to pay debts,a petition to the proper court praying for asale of the real estate. Such petition shallbe accompanied by a true account of theadministration, a list of the debts and ofthe executor or administrator shall presentthe real and personal estate belonging tothe estate, the whole being verified by affi-davit. Sec. 145, 147, R. S. Mo. 1899. Byway of comment and elucidation of the fore-going basic statutes, it will be well to add,that it is not essential that the executor oradministrator present the petition. A cred-itor or "other person interested" may do this,upon giving 20 days' notice to the executoror administrator. Sec. 150. Furthermore,it is not necessary that the perconal prop-erty be exhausted; the petition may praythat the personal estate be reserved and thereal estate sold to pay the debts. Sec. 161.In Bray v. Adams, 114 Mo. 486, It was de-cided that "if the exhibits filed with the

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petition for order of sale are not foundamong the papers of the estate, this factdoes not impair the validity of the order;and it is not necessary that the land to besold be specifically described in the peti-tion." Lastly, if the court at any regulartime for settlement is of the opinion thata sale would be for the best interests of theestate, it may of its own motion, and with-out petition, exhibits or inventory, orderthat a sale be had. Day v. Graham, 98 Mo.398.

2. Order of Publication and PersonalService. When such petition is filed, thecourt shall order that all persons interestedshall be notified thereof and that unless thecontrary be shown on the first day of thenext term, an brder will be made for a saleto pay debts.

3. Proof of Publication and PersonalService. There must be affidavits provinga publication for four weeks in a newspapexpublished in the county in whica the pro-ceedings are had, or by ten handbilis rut upin ten public places twenty days before theterm. There must also be affidavit showingpersonal service on all heirs and deviseesresiding in the county where the administra-tion is had ten days before the term. It isdecided in 133 Mo. 400, 413, and 114 Mo. 486,that when the order is made at an annulsettlement fixed by law (with or without pe-tition), the parties are supposed to be incourt, and must take notice of orders af.fecting their interests, but when the orderis made at a time other than an annual set-tlement, the heirs are not in court, and thenotice required by law must be given, togive the court jurisdiction to make the orderof sale.

4. Order. The order must id.ePntify th,property to be sold, order a sale thereof, atpublic or private sale, and prescribe thetime, terms and place of such sale.

5. Notice of Sale. The executor or aa-ministrator shall prepare a notice of the pro-posed sale, containing a description of theproperty zo be sold and specifying the time,terms and place of sale. No notice isnecessary when the court ordeis a privatesale, and the sale is made in that manner.

6. Proof of Publication of Notice of Sale.This must be an affidavit of a manager of anewspaper published in the county, iettingout a publication in his journal for 'fourweeks prior to the day of sale.

7. Oath of Appraisers. Three d.sinter-erted householders of the county in whichthe land lies, must make affidavit that theywill view and appraise the property in ques-tion to the best of their ability.

8. Appraisement. This is simply a signedstatement of the appraisers of the value ofthe interest to be sold.

9. Report of Sale. The administrator'sreport of sale is the only record of theactual sale, and' it must show that (if thesale was public), it was inadc at the courthouse door, or, in cities of ov,' 100,000, onthe floor of the real estate exchange or atthe court house door; that it was made dur-ing the sitting of the circuit, county orprobate court, and that the sale was at pub-lic auction. If the sale was private, it mustappear that the price obtained was morethan % of the appraised value. All reportsof sale must be accompanied by an affidavitof the administrator that ale did not directlyor indirectly purchase said real estate orany part thereof or any interest therein, andthat he is not interested in Lhe propertysoil except as stated in cite report.

10. Confirmation. This' the last of thesteps in a valid sale for the payment ofdebts, need only be a simple order of thecourt confirming and approving the sale.

THE LAW

TORTS, NEGLIGENCE AND DAMAGES.By CLAUD D. HALL, Esq.

Master and Servant-The Master's Non-delegable Duties to the Servant.-Theduties of the master to his servants ariseout of the contract of employment and arelimited to the obligation which, under thatcontract, he has impliedly agreed to per-form. The assumption of risk by the servantlikewise grows out of the contract of em-ployment by which the servant impliedlycontracts to assume the ordinary risks ofthe employment in which he engages.

The servant, however, does not assumeany risk of the master's negligence. Heassumes no risk which may be obviated byreasonable care on the master's part, or,to state it in another way, the servant onlyassumes the risk of the employment afterthe master has done everything that he isbound to 'do for the purpose of protectinghis servant.

The master is bound to use reasonablecare, or such care as an ordinarily prudentperson would use under the circumstances,in the discharge of the duties imposed upo'him by law for the protection of his servants.These duties which the law imposes nponthe master (and of which the servant doesnot assume any risk as a result of the mas-ter's failure to discharge them) and whichthe master can not delegate to others, areas follows:

1. To use reasonable care to provide asafe place to work.

2. To use reasonable care to provide

proper tools and appliances for the conductof the work in which the servant is engaged,and to see that they are maintained in prop-er condition as long as they remain in use.

3. To employ a sufficient force of com-petent workmen as may be necessary for thesafety of the servant. (Some writers alsoput under this head the duty to furnish rea-sonably gentle animals, where animals areused in doing the master's work.)

4. The promulgation and enforcement ofreasonable rules for the conduct of the work,if the business is sufficiently complicated tonecessitate such rules. These rules may begeneral orders issued for the guidance ofthe servant or particular orders with ref-erence to the details of specific work, andin connection with such rules are the fol-lowing requisites: (1) They must be form-ulated; (2) They must be brought to theknowledge of the servant for whose benefitthey are framed; (3) The rules must becarried out so their purpose will be accom-plished.

5. To -use his superior skill, knowledgeand judgment to protect the servant fromlatent and unseen danger so far as reason-able foresight can accomplish this result.

Where the master has properly dischargedall of these duties, and the servant is in-jured by a third person, or as a result of apure accident, or through his own contrib-story negligence, or through assumed risk,or through the negligence of a fellow sir-vant, there is no liability on the master.

COMMON CARRIERS.By JOSEPH DICKSON, Jr., Esq.

Passengers- Expulsion by Conductor-Character of Act.-Where a conductor, towhom a ticket is presented' by a passenger,believes it to be his duty to reject the ticketbecause of its invalidity for travel on thedate on- which it is presented, and the pas-senger fails to pay the fare demanded ofhim, the conductor is not guilty of a tortin expelling the passenger from the train,unless he accompanies such expulsion withunreasonable or unnecessary force or insult.

Southern Ry. Co. in Kentucky v. Haw-kins, 89 S. W. Rep. 258 (Ky.).

Street Railroads--Injuries to PassengersAlighting.- here, in an action for injuries

to a female passenger while alighting froma street car, negligence was charged in thatthe car platform and steps were wet, mud'dy,and slippery, rendering them dangerous forladies unassisted to alight, whether the car-rier owed plaintiff a duty either to warnor assist her was for the jury.

Flory v. San Antonia Traction Co., 89S. W. Rep. 278 (Tex.).

Railroads-Collision with Street Car-Con-curring Negligence-Joint Liability.-Where,in an action for injuries to a passenger ofa street car in jumping therefrom to escapea threatened collision with a railroad train,there was evidence that, if the railroad, com-

THE LAW

pany had kept a proper lookout, the streetcar would have been seen and the trainwould not have rapidly approached the cross-ing in the manner it did, and that, if it hadgiven a proper statutory signal of its ap-proach, the car would not have gone on thecrossing, and also that, if the street carhad. stopped as required by a city ordinancebefore attempting to cross the railroad, theapproach of the train would not havealarmed plaintiff, the railroad and street carcompanies were each guilty of concurringnegligence which caused the accident, andwere each, therefore, liable.

Galveston, H. & S. A. Ry. Co. et al. v.Vollrath, 89 S. W. Rep. 279 (Tex.).

Connecting Carrier-Through Shipment-Contract.-Where a bill of lading issued byan initial carrier showed that it was a con-tract for a through shipment, when thegoods were delivered to the connecting car-rier and carried by it under the bill of lad-ing, such carrier became a party to theoriginal contract by adoption and ratifica-tion.

Chicago & E. I. R. Co. v. Chestnut Bros.,89 S. W. Rep. 298 (Ky.).

Injury to Person on Track.-Where, in anaction against a street railway company forinjuries received by a pedestrian in a col-lision with a car, the evidence showed thatplaintiff was attempting to cross a street,that she looked in both directions and sawcars coming on both tracks, that she starteddiagonally across the street, that beforereaching one of the tracks she was inter-cepted by a wagon, and that as she passedbehind it and was about to enter on theother track a car struck her before shecould cross the track, the refusal to chargethat it was plaintiff's duty to not only lookbefore attempting to cross the track, butalso after she had been intercepted by thewagon, and that if her failure to so lookwas the direct cause of the injury therecould be no recovery, though the companywas negligent, was reversible error, thoughthe court charged that, if plaintiff failed toexercise ordinary care, and her negligencewas the proximate cause of the injury, therecould be no recovery.

Knoxville Traction Co. v. Brown, et ux.,89 S. W. Rep. 319 (Tenn.)

Delay in Freight Delivery- Damages.-Where the plaintiff, in an action against therailroad company, seeks to recover damagesfor delay in delivering frieght, to entitle the

plaintiff to recover, the damages soughtmust be such as may freely and substan-tially be considered as arriving naturally, inthe usual course of things, from the breachitself, or such as may reasonably be sup-posed to have been in contemplation of theparties at the time they made the contract;and, if special circumstances under whichthe contract was actually made, were com-municated and made known to the railroadcompany, the damages resulting from thebreach of such a contract would be theamount of injury which would ordinarilyfollow from a breach of contract under suchspecial circumstances so communicated andknown.

Choutaw, 0. & G. R. Co. v. Jacobs, 82Pac. Rep. 502 (Okla*.).

Damages for Loss of Freight.-Where abox of pictures was shipped with a lot ofhousehold effects and billed as glass, in theabsence of actual fraud, the carrier is onlyliable for the value of a box of householdglass.

Bottum v. Ry. Co., 51 S. E. Rep. 985(S. C.).

Liability of Carrier After Arrival of Bag-gage.-When baggage has arrived at its des-tination, and- been deposited in the usual orcustomary place of delivery, and kept theresufficient time for the passenger to claimand remove it, the carrier's liability as suchceases, and it is thereafter only a ware-houseman.

Charlotte Trouser Co. v. Ry. Co., 51 S. E.Rep. 973 (N. C.).

Responsibility of Railroad Company forAbuse by Depot Custodian.-In the case ofthe Gulf, Colorado and Santa Fe RailwayCompany against J. T. Luther, the Texascourt of civil appeals has decided that arailroad is responsible for abusive languageused by a custodian of a waiting roomtoward passengers waiting for a train. Theappellee, who was plaintiff in the lowercourt, recovered $2500 from the railroadcompany for the suffering of the plaintiff'swife by reason of insults offered her by anegro woman in charge of the waiting roomof the depot in Fort Worth during June,1903.

The court finds that, while the plaintiffwas away from the depot on business, thenegress became very angry with his wifeon account of one of the plaintiff's smallchildren spilling water upon the floor. Mrs.Luther told the woman it was an accident,

THE LAW

as the child did not know there was waterin the cup, whereupon the woman called hera liar and said other abusive things to her,from the effect of which Mr. Luther is al-leged to have suffered nervous prostration.The judgment of the lower court was af-firmed, Justice Neill, who wrote the decision,saying, in part:

"The outrageous language and conduct ofthe negro woman, whether denominatednegligence or not, were, because done byher in 'discharge of the duties of her em-ployment, acts for which the appellant, asa common carrier, is responsible and liableto plaintiff for all the "damage proximatelyfollowing therefrom."

ACCOUNTS, CREDITS AND COLLECTIONS.By EDWARD S. MURPHY, Esq.

This department of THE LAW will be maintained in such a manner as to keep the busylawyer and business man up to date In the current law pertaining to the business interests ofthis country, as handed down in the late decisions.

Contract of Guaranty.-A contract whichhas ever been in very common use amongmerchants, and which Increases in import-ance with the progress of commerce, is thek.ontract of guaranty. Since the law of gov-Qrning this contract is somewhat compli-cated and since, from the nature of theundertaking, there is a strong temptation forthe guarantors to evade the consequencesof a default of the principal debtor, it hasbeen the source of a great amount of litiga-tion. Perhaps there is no contract theterms of which should be more distinctlydefined thaii that of guaranty. The lewgoverning guaranty is such that withoutsome technical knowledge thereof on thepart of a guarantee he will, in very manyinstances, lose the benefit he counts upon.For instance: generally (practically al-ways), this contract must be in writing andsigned by the guarantor; generally theguarantee must notify the guarantor of anacceptance of the guaranty; the terms ofthe original contract between the guaranteeand the principal debtor must be strictlycomplied with or the guarantor is released.

We will, therefore, endeavor to give asomewhat thorough outline of the subjectas it affects sales and credits only.

The contract of guaranty is one wherebyone person binds himself to answer for adebt, or the performance of a 'duty, of an-othif.r person in case such debt or perforn-ance of duty cannot be satisfied as againstsuch other person. This definition ex-cludes suretyship.

The original statute for the preventionof frauds and perjuries was passed in the29th year of Charles II. (1677). It requiredwritten evidence of many contracts, Includ-ing that of guaranty. This statute, andsimilar ones enacted by most of the UnitedStates, is meant when, in legal parlance,the "statute of frauds" is referred to. A con-

tract, purely of guaranty, therefore, mustbe in writing and signed by the guarantor.

If A and B come into the store of C andA guarantees the payment of any bills Bmay purchase, the original promise Is be-tween B and C-the collateral promise isbetween A and C. In case A should say:"Let B have what he wants and I will payyou," we would have an apparent excep-tion to the rule that a guaranty must be inwriting. Such a verbal promise would bebinding upon A, for the reason that it isnot a collateral undertaking upon his part-but an original one. In the former casethere are two distinct contracts coveringthe one transaction; B in consideration of,he goods ;-old and delivered him undertakesto pay C for them; A in consideration ofC's granting credit to B undertakes to payC if C cannot collect from B. In the lattercase there is but one contract. The sale isto A an'd, in legal contemplation, B onlyfigures in the transaction as the servant ofA in receiving the goods.

No special form or words are necessaryso long as it is clear that the guarantorintended to bind himself as such. Mere re-quests to sell goods to another are notguaianties; nor is a statement as to theresponsibility of another, unless there is awilful misrepresentation as to such respon-sibi'ity.

Where the principal contract is invalid,the guara-ty Is not binding, but infancy orcoverture of the principal debtor cannot beavailed of as a defense by the guarantor.In other words, while the principal debtor,being an infant or a married woman, is notanswerable for his or her contracts, theguarantor for such a person may be held.

An offer of guaranty must be accepted tobecome operative. But such acceptanceneed not be formal, but may be shown fromcircumstances. It Is advisable to notify the

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guarantor formally, however, of an accept-ance of his guaranty.

Like other contracts, the contract ofguaranty must be based upon a considera-tion to be valid. But "a valuable consider-tion, however small or nominal, if given orstipulated for in good faith, is, in the ab-sence of fraud, sufficient to support anyparol contract." Therefore, the fact thatcredit is given the principal debtor by theguarantee is sufficient consideration to bindthe guarantor. "Any act in the nature ofa benefit to guarantor, or to any person athis request, is sufficient consideration forhis agreement of guaranty." A guaranty ofan existing debt is not void for lack of con-sideration, unless some new considerationis supplied; as where one un'rtakes toguaranty an existing debt in considerationof an extension of time, or in considerationof further credit to be extended.

The following syllabi will throw furtherlight upon the points considered in thisissue:

By the statute of frauds no action may bemaintained on a contract of guaTanty un-less it be in writing.

Cases cited in 3 Current Law-1566.

A promise to pay the debt of a third per-son is void, unless in .writing.

Tanquary v. Walker, 47 Ill. App. 451.Beerkle v. Edwards, 55 Iowa 750.Shoch v. McLane, 62 Mich. 454.Harris v. Frank, 81 Cali. 280, 22 Pac.

856.

A verbal promise to pay the debt of an-other, not founded on a new obligation sup-ported by sufficient consideration is withinthe statute of frauds.

10 N. Y. St. 280.

To bring a case within the statute offrauds it is necessary that the undertakingshould be collateral to and in aid of thepromise of another.

Wainwright v. Straw, 15 Vt. 205, 40 Am.Dec. 675.

Our statute that no evidence of a contractto answer for another shall be competentunless in writing, amounts to the same asthe English statute 2 Clarke 528 (Iowa).

A mere request by one person that creditshould be given to another does not createa legal liability. There must be either aguaranty of the debt or a misrepresentationas to the responsibility of the person to

whom the goods are sold before a liabilityexists.

Bushnell v. Bishop Hill Colony, 18 Peck240.

If goods are sold on defendant's promiseto pay for them, and the credit is given tohim as the purchaser, he will be liable asan original promisor, though the goods wereat his request delivered to a third person.

Geary v. O'Neal, 73 Ill. 593.

A guarantor agrees to pay if the debtorcannot; a surety, if the debtor does not.

Appeal of Bell, 1 Penny 416.

The assignors of a judgment who "guar-antied payment thereof in one year from thisdate," held, sureties, and not guarantors.

- Riddle v. Thompson, 104 Pa. 330.

Where the principal obligation Is invalidthe guaranty is not binding.

Merchants Bank v. State Bank, 93 Iowa650.

But the guarantor is not 'discharged be-cause the contract of the principal is voidfrom coverture or infancy.

Nabb v. Koontz, 17 Md. 283.Hesser v. Steiner, 5 Watts and S. 476.

An offer of guaranty must be accepted tobecome operative.

Sears v. Swift & Co., 66 Ill. App. 496.Lachman v. Block, 47 La. Ann. 505'Wilkins v. Carter, 84 Tex. 438.

Where a guaranty is an offer to becomeresponsible for a credit which may cr maynot be given, the guarantor is not bound,unless notified within a rearonable time ofthe acceptance of the guaranty.

10 Peters, 482.Sears v. Swift & Co., 66 Ill. App. 496.

The mere naked promise in writing to paythe existing debt of another, without anyconsideration therefor, is void.

Blakely Printing Co. v Barnard, 63 Ill.App. 238.

Fuller v. Scott, 8 Kan. 25.Bailey v. Freeman, 4 Johns 280.

A guaranty made at the time of the prin-cih al contract is binding on the guarantor,)c'cause it :s founded on the conblderationexisting between the principal paities.

Osborne v. Gullikson, 64 Minn. 218, 66N. W. 965.

Brewster v. Short, 63 Hun 630, N. Y.Supp. 799.

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'"here a guaranty is given after the ex-ecution of the principal contract a new con-sidi.ration is necessary to suppoet the guar-antj.

Peck v. Harris, 57 Mo. App. 467.Baker v. Wahrmund, 5 Tex. Civ. App.

268, 23 S. W. 1023.

'The extension of time for payment of a,lebt is a good consideration for a contractguarantying its payment.

Peterson v. Russell, 62 Minn. 220.64 N. W. 555, 29 L. R. A. 612.

Featherstone v. Hendrick, 59 Ill. App.497.

!N here a guarantor acknowledges receiptor e consideration in the contract, he isestopped to deny it.

Taylor v. Tolman, 47 Ill. App. 264.Sears v. Swift & Co., 66 Ill. App. 496.

Unless its terms forbid, a contract of con-tinuing guaranty may be revoked on noticeto the guarantee.

Gay v. Ward, 67 Conn. 147, 34 AtI. 1025.

CONTRACTS.By HENRY H. OBERSCHELP, Esq.

As a general rule, one can tell at the verytime a contract is entered into, whether ornot all the stipulations and, agreementstherein are binding on the parties or not;but, paradoxical as it may seem, i.he circum-stanices may be such that the lawyer whenconsulted in such a matter would have toreply that whether or not certain stipula-tions in a contract were binding, would de-pend upon whether or not the 1 artles arecitizens of different states and in what courtthe case is tried? This is due [o the factthat under certain circumstances the suitmight be brought in a state court or in afederal court and under certa;n circum-stances a defendant sued in a sLate courtcan have the case tried in a state court, andthen appeal it to the state supreme courtand thereafter to the United States SupremeCourt, or ean have the case remoied at onci,

FACTORS, BROKERS ANDBy BENJ. J.

Hypothecation of Consignor's Goods byFactor.-Last week we reviewed a case inwhich the right of a bank, under the circum-stances there detailed, was denied the rightto retain cotton hypothecated by a factorfor loans. We propose to briefly review acase in this issue in which the bank wassustained in its right to retain cotton hy-pothecated to it for advancements.

The action was one in replevin to recover39 bales of cotton. The bank brought thesuit. The cotton was stored in the ware-house, each bale being numbered, andagainst it the warehouse company issued itscotton note, as it was called, with a corre-sponding number. The business of the fac-

and tried in a federal con-' and thcn appealin the United States Supreme Court.

The state courts and federal courts holddiametrically opposite opinions regardingthe common law as applied to certain cases.Accordingly such a defendant can ascertainwhether it is the state or federal court whichis in his favor, and remove or not removethe case to the federal court, as it may beto his advantage. This is exemplified in thecase of Pennsylvania R. R. v. Hughes, 191U. S. 477, wherein the court held that accord-ing to the decisions of the federal courtsand courts of New York a certain stipulationwas binding on the shipper, but not accord-ing to the Pennsylvania courts; that if thesuit had been tried in a federal court or aNew York court the shipper would havebeen bound by the stipulation, but that in-asmuch as it was tried in a Pennsylvaniacourt, the shipper was not bound.

COMMISSION MERCHANTS.KLENE, Esq.

tors was to sell to buyers. The buyers inturn assort and grade the cotton and sellthe same to Eastern customers. With thecotton notes the warehouse company deliv-ered samples of each bale. The factor sellsby sample, sending at the time an order tothe warehouse company to turn the cottonout in the warehouse for inspection. Thebuyer and employees of the factor inspectand report to their principals the balescoming up to sample, and so much as doesIs accepted by the buyer, who then callsupon the factor for the cotton notes,on the surren'der of which by the buyer thewarehouse company delivers the cotton tothe buyer, or to the transportation company

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named by him. After the inspection thebales are weighed and marked with buyer'smarks.

M was a cotton buyer who had failed andwhose credit was gone, and he could nolonger get cotton except by paying for itin cash. In this situation M arranged withthe agent of a transportation line that thelatter should get the cotton from the ware-house. The agent of the transportation line,when he received the cotton ftom the ware-house, issued to the factor his receipt forthe cotton notes representing the bales re-ceived by the freight line. The freight linewas not to deliver the bills of lading for thecotton to M until M redelivered the trans-portation receipts or bills of lading to thefreight line, which receipts M could not getfrom the factor until he had paid for thecotton which they called for. All arrange-roents to this effect were made between Manl the freight line agent, and the factorshad no conversation with the freight lineagent. M told the factors that the freightline agent would do as M reported hecould. The factors looked upon the ar-rangement as safe for them. The trans-portation company's receipts for the cottonnotes were sent by the factors to M, whotook up enough of them, as he said, tocover the rhipment. M and the agent ofthe freight line disregarded the arrangementreported to the factors by M. The agenthabitually surrendered the receipts or billsof lading to M, without requiring the sur-render of the cotton notes from the factors,so that on May 1st, 1880, the cotton for

.which bills of lading had been issued wasgreatly in excess %f the quantity for whichreceipts had been surrendered by M to theagent of the freight line. M testified thathe could do no business without getting thebills of lading in order to raise money inbank to pay for the cotton, and there wasno concealment about the matter. But itdoes not appear that the factors knew any-thing about this, and claimed to have firstdiscovered this about April 26th, 1880, onwhich day they delivered to the agent ofthe freight line at M's request 157 cottonnotes for cotton that they had theretoforesold to M, and took the freight line way billfor 157 bales of cotton. The 39 bales insuit were among the lot of 157 bales calledfor on April 26, and represented cotton soldby the factors to M between January andApril, which had been replaced by M withwarehouse receipts for other cotton betweenApril 26th and May 1st. Finding that 39bales of a lot he had pledged to the bank as

collateral would suit a particular shipmenthe substituted them at the bank for 39 cot-ton notes already held by it and gave tothe freight line agent the notes he took fromthe bank. It seems that exchanges of thiskind were customary, and was done to en-able the shipper to make up assorted lots.On May 1st, 1880, M failed a second time,owing the factors about $18,000, at whichtime the factors held the receipt of thefreight line for 157 cotton notes, and enoughmore not delivered to the freight line tomake M's net liability to the bank $10,000.

There is nothing to show that the bankhad any notice of the arrangement betweenM and the freight line agent and the fac-tors, and took the cotton notes in questionfor value in the ordinary course of businessas collateral security for advances made byit to M.

The factors claimed the 39 bales, thecotton notes representing which had beenobtained from the freight line without theirconsent, and obtained' possession of game byreplevin, and then again stored the goodswith the warehouse company. Then thebank brought this suit to recover the goods,and had judgment in the circuit court.

The court held that the cotton notes rep-resented the cotton itself and was as com-petent with which to make a pledge as thecotton itself would have been. That had Mstolen the cotton notes he could not havepassed title, but the fraud practiced by avendee of a chattel, whereby he obtained asale and delivery of the same to himself,will not authorize the vendor to take if fromone who has subsequently purchased forvalue without notice of the fraud.

Also, that if by the arrangement describedabove the factor, or in this case the vendor,hoped to retain his lien after delivery tothe transportation company of the cottonnotes, his lien ought not to be allowed toprevail against innocent third persons, and,that the lien claimed by the factors herecould not be retained as against the bank.

Fourth Nat. Bank v. St. Louis CottonComp. Co., 11 Mo. App. 333.

The distinction between this case and thecase noted in THE LAW last week lies here.In this case the bank took for value withoutnotice of the factor's lien, and that thefactor had made it possible for M to com-mit a fraud and hence between an innocentperson and the factor the latter must standthe loss.

In the other case the bank took withnotice of the infirmity in the factor's title,and with notice of the plaintiff's rights.

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STATUTES OF FRAUDS AND STATUTES OF LIMITATIONS.By JOHN M. DICKSON, Esq.

Adverse Possession in Particular Cases.-- The fundamental question in determin-ing the effect of limitation statutes (ad-verse possession) in respect of land titlesis, can an adverse possession be predicatedof open, notorious, uninterrupted and visi-ble possession, for the time limited bystatute under color of title or otherwiseexcept in connection with the plaintiff ordefendant's right of entry.

Mr. Wood in discussing desseizin, refersto certain statutes of the several states,saying:

"In Maine the language of the statutesis, 'No person shall commence any realor mixed action for the recovery of lands,or make an entry thereon, unless withintwenty years after the right to do so firstaccrued; or within twenty years after he,or those under whom he claims, wereseized -or possessed of the premises;' andthis is practically the provision in Ver-mont, New Hampshire, Connecticut, Massa-chusetts, Arkansas, Delaware, Illinois, Mis-sissippi, Minnesota, North Carolina, Ohio,Oregon, Michigan, Nebraska, Tennessee,Virginia, West Virginia, New Mexico andWyoming. The language of the statutein all of the states is not identical withthat of the Maine statute, nor is the periodof limitation; but the practical effect isthe same, and in none of them is thereany provision as to what shall be deemedan adverse possession sufficient to bar asuit or entry. For this summary of thestatutes it will be observed that the stat-ute will not commence to run until a causeof action has arisen in favor of the per-son having the rightful title; in otherwords, until he has been disseized by theperson in possession."

Section 4262, R. S. 1899, provides that"no action for the recovery of any lands,tenements or hereditaments or for the re-covery of the possession thereof, shall becommenced, had or maintained by anyperson, whether citizen, denizen, alien,resident or non-resident of this state, un-less it appear that the plaintiff, his an-cestor, predecessor, grantor or other per-son was seized or possessed of the premisesin question, within ten years before thecommencement of such action."

From the revision of Wagner in 1872(at least) there has been no change In thelanguage of this Missouri statute.

The question presented is whether, un-der the class of statutes named, they canhave any operation until a cause of actionor right of entry accrues. The statute ofMissouri assumes that no cause of actionor right of entry accrues, until the re-moval of the disabilities therein named.

Under Wag. St. p. 91584 (and subse-quent revisions) parties to a suit for therecovery of land who were under a dis-ability when their right of action or en-try first accrued may commence their ac-tion or make their entry within three yearsafter their disability had been removed, ifthat event does not occur more than twen-ty-four years after the accrual of theright.

Poe v. Dornie, 54 Mo. 119.Dyer v. Brannick, 2 M. A. 432.

In Douthittiv. Stinson, 63 Mo. 268, thecourt held "Where the owner of land wasabsent in the confederate states during thecivil war, from April 19, 1861, to the closeof the war in 1865, must be deducted incalculating the length of the adverse pos-session of such property by another."

In State v. Bishop, 22 M. A. 435, thecourt held "Where occupation of a roadby the public was begun after the owner,who was a woman, married, limitationwould not run in favor of the public untilremoval of such disability."

In Jones v. Thomas, 124 Mo. 586, it washeld "Possession of land by a divorcedwife of the owner, claiming under a void'order, rendered in divorce proceedings,allotting the land to her, is not changedinto possession under her dower right bythe death of the husband pending the run-ning of limitations."

The rule adopted in Douthitt v. Stimson,63 Mo. 278, at least, has no regard to thedisabilities named in the Missouri statute.This statute exempts from the operation ofthe first and succeeding section of theMissouri limitation acts persons "withinthe age of 21 years, insane, Imprisoned onany criminal charge, or in execution uponsome conviction of a criminal offense forany time less than life, or a married wo-man," when their right of action or entryaccrued, and all such were given threeyears after the removal of disabilities tocommence an action or to make an entry,provided such action was commenced or

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entry made within twenty-rour years fromits accrual. "The rule as to disabilities is,that when the statute begins to run, it isnot arrested by any subsequent disability,unless expressly so provided in the statute;and a person who claims the benefit of thegeneral exceptions in the statute can onlyavail himself of such disabilities as existed.when the right action first accrued."

Wood on Lim. p. 11.This rule is well settled in all of the

states as well as in Missouri.

Smith v. Newby, 13 Mo. 159;McDonald v. Hovey, 110 U. S. 619.

As is also the rule that disabilities can-not be tacked. Thus in Missouri infancyand coverture cannot be added together.

State v. Bishop, 22 M. A. 435;Wood Limitations, p. 14;McDonald v. Hovey, 110 U. S. 619.

These are, therefore, statutory excep-tions to the first and second sections ofthe Limitation Act of Missouri (Secs.4262 and 4263, R. S. 1899) postponing theaccrual of the right of action and all otherstates having similar statutes. The char-acter of the disabilities must be learnedfrom the several statutes.

The question to which I recur, however,is, can an adverse possession be pleadedor set up by any one, however long, con-tinuous, when visible and notorious untila right of entry or a cause of action ac-crues. This is wholly distinct from anyquestion of disabilities, where the right ofentry existed, but the law stops the run-ning of the statute notwithstanding untilthe removal of disabilities named in thestatute.

Thus the law carves out certain estatessuch as dower and curtesy; yet the heir'sright of action cannot be *defeated by theinterposition of the particular estate,though many more than ten years elapsebefore that particular estate is terminated.And estates may be created for life oryears by the ancestor which would post-pone the right of entry of a devisee. Awidow, whose dower has not been assignedto her, cannot set up possessipn as adverseto the heir.

Holmes v. Kring, 93 Mo. 452;Null v..Howell, 111 Mo. 273;Fischer v. Sieckman, 125 Mo. 165.

Or the grantee of a widow whose dowerhas not been assigned.

Colvin v. Hauenstein, 110 Mo. 575;Melton v. Fitch, 125 Mo. 281;See Thomas v. Black, 113 Mo. 657.

Limitation does not begin to run againstthe right of the heir to the mansion house"until the assignment of dower, or if it isnot assigned until the death of thewidow."

Brown v. Moore, 74 Mo. 633.

A tenant for life "could not by his dec-larations, acts and conduct, and claim ofa greater or different estate, make hispossession adverse to the remainder man."

Keith v. Keith, 80 Mo. 127;See Salmons v. Davis, 29 Mo. 176.

Nor can a tenant for years and, for thatmatter, any tenant at all, set up his posses-sion as adverse to the intestate or his heir.No act of theifs, no claim, hwowever adversein character, no purchase of outstandingtitles, nothing whatever, can avail themagainst the intestate or the heir. Thisrule applies to tenant by dower, elegit, cur-tesy also, and is based upon the estoppelwhich their relation to the inestate creates..

Wood Lim. 618.

All this is horn-book law, and the diffi-culties arising in particular cases of thisclass are easily soluble.

A Suit Pending.-In Blake v. HaywoodBailey, Esq. (S. C.), 208, the rule is laiddown that "where a purchase is affectedonly by lis pen'd-ens, the statute of limita-tions against the enforcement of the judg-ment or decree will begin to run from thetermination of the lis pen'dens."

In 27 Am. & Eng. Ency. Law (2d Ed),653, it is said: "After a suit becomes lispendens, the statute of limitations will nolonger run in favor of a pendente lite pur-chaser regardless of the question whetherhe was or was not a party to the suit."

And in 1 Am. & Eng. Encyc. L. (2d Ed.),the editor says: "The statute of limitationshas no operation upon the subject of litiga-tion and' hence does not run in favor ofthe purchaser pendente lite, who cannotbe regarded as holding adversely to theparties to the suit during the continuanceof the litigation."

And in Lynch v. Andrews, 25 W. Va., 751,it was held that: "Where land was sold ata judicial sale, the sale confirmed, and the.litigation continued, and after ten years thedecrees ordering and confirming the sale

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were reversed and declared void, and thesale set aside for want of jurisdiction in thecourt to order it, during which time thepurchaser had been in the actual possessionof the land, paying taxes, it was held thatsuch possession was not adverse, that hestood in only the same relation to the landin controversy as his vendor, and was asmuch bound by the proceedings in the suit,and could therefore claim no protection fromthe statute of limitations, or adverse pos-session which his vendor could not claim,and he, being a party to the suit, has nosuch claim whatever."-

In Hanly v. Gore, 4 Dana, 133, it was heldthat: "During the pendency of the suit, thestatute of limitations will not run in favorof the purchaser so as to defeat lIs pendens."

Nor can purchasers from such purchasersavail themselves of the bar of the statute.

In 21 N. & E. Ency. L. 647,.it is held that"The operation if lIs pendens is not confinedto the person who purchases pendente litedirectly from a party to the suit, but bin'dsthe property in the hands of any one whoobtains title from such purchaser or thoseclaiming under him by successive transfers."

See Union Tr. Co. v. S. U. Co., 130 N. Y.565.

Jackson v. Peirson, 60 Fed. Rep. 113.

It is said the law of uis pendens Is not-referable to the principle that the propertyis in the custody of the