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SIDERATION OF A LOAN OF MONEY.-It has
been lately held by the New York City Court
in general term in Washburne v. Hyatt, that
for a merchant to give a man employment in
his business, in consideration of a loan of
money, is not usury, provided substantial
services are rendered, and the contract of
hiring does not appear to be a mere cloak for
usury.
The court cite Clarke v. Sheehan."

This prevents competition and places a ban upon progress and invention. It invades the rights both of person and property guarantied by the constitution. The sale of a substitute for any article of manufacture is a legitimate business, and, if effected without deception, cannot be arbitrarily suppressed. This act is not aimed at deception, but goes further, and in effect creates a monopoly destructive of rights protected by the Constitution both of the State and the United States." Parties interested in upholding the law, have caused the statement to be circulated through the Associated Press dispatches that the prosecution of Marx was a sham; that the case was a trick concocted to get the

cision, without the side of the people being properly argued and presented; and that the decision is nothing more than the decision of the Court of Appeals in a moot case. If this is so, it is a great scandal, and those who have practiced the imposition upon the court are liable to punishment; for it is a contempt of court to bring a fictitious action for the purpose of getting the court's opinion. 10 The same question was decided the other way in Missouri on a statute almost identical in language with the above statute of New York." Mr. Justice Miller at Circuit in Missouri found nothing in the same statute in conflict with the Federal Constitution. 12

CONSTITUTIONAL LAW POLICE REGULATIONS-LAWS PROHIBITING THE MANUFACTURE OF OLEOMARGARINE AND BUTTERINE UNCONSTITUTIONAL:-In the case of the People v. Marx,10 not yet reported, the Court of Ap-question before the Court of Appeals for depeals of New York has held the following statute unconstitutional: "No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk or cream of the same, or shall sell or offer for sale the same as an article of food. This provision shall not apply to pure skim milk, or cheese made from pure skim milk. Whoever violates the provisions of this section shall be guilty of a misdemeanor, and be punished by a fine of not less than $100 nor more than $500, or not less than six months' or more than one year's imprisonment for the first offense, and by imprisonment for one year for each subsequent offense." The opinion of the court was delivered by Rapallo, J., all the judges concurring. The three judges of the Supreme Court are said to have been of the same opinion, but they affirmed the conviction, in order that an appeal might be taken, and the opinion of the Court of Appeals obtained on the constitutional question involved. We have not seen the full text of the decision; but the grounds of constitutional objection to the law are said to be summarized in the following language of the Court of Appeals, by Rapallo, J.: "The law attempts to prohibit the sale of any articles intended to take the place of butter.

8 Daily Register, for June 23, 1885.

9 47 N. Y. 188.

10 Smith v. Brown, 3 Tex. 360.

11 State v. Addington, 12 Mo. App. 214; s. C., affirmed, 77 Mo. 110. In the Supreme Court Mr. Chief Justice Hough dissented.

12 Re Brosnahan, 18 Fed. Rep. 62.

LIMITATIONS IN INSURANCE POLICIES
AS TO TIME OF BRINGING SUIT.

Frequently, perhaps always, the following conditions are found in policies of insurance: (1) That proofs of loss must be filed, (2) that after the proofs of loss have been filed the company shall have a certain time in which to pay the loss, and (3) that an action cannot be maintained on the policy unless commenced in a given period. These conditions are all valid, and tend to hasten the adjustment of claims against the companies, and

therefore the law favors them, and lends its aid in the enforcement thereof.1

Let us direct our attention chiefly to the one limiting the time of bringing suit. The substance of this condition is that, the insured must commence suit within a certain time after loss, and, that if he fails to do so, he cannot recover afterwards. This is held by the courts to create a period of limitation within which suit must be brought, and that it is as binding between the parties as the statute of limitations would have been, had this limitation not been entered into. The difficulty is to determine when this period begins to run. Does it run from the date of the loss, the physical destruction or injury of the property, or from the time that the right of action accrues to the insured? Will the courts construe it literally, or in connection with the attendant provisions? The authorities are not in harmony upon this point, so let us breifly examine a few of the leading decisions on both sides, and endeavor to ascertain the true rule of construction, keeping in view all the time the fact that the proofs of loss are not required to be filed in any definite time.

I. It must, as will appear from the following authorities,2 be construed in connection with the attendant provisions, and not literally, This line of authorities holds that the period of limitation runs from the time that the right of action accrues to the insured, which is upon the expiration of the time allowed the company to pay the loss after the proofs have been filed, and not from the destruction of the property or injury to it. In thus construing this condition, the courts depart from the literal meaning of the words, and why? What is the reason? Now, when the proofs are not required to be filed in a definite time, it is implied that they are to be filed in a reasonable time. Such being the case, circumstances may intervene, owing to

1 Patrick v. Farmer's Ins. Co., 43 N. H. 621; Ripley v. The Etna Ins. Co. 30 N. Y. 136; Woodbury Savings Bank and Building Association v. The Charter Oak Fire & Marine Ins. Co., 31 Conn. 517; The North Western Ins. Co. v. The Phoenix Oil & Candle Co., 31 Pa. St. 448; Carter v. The Humboldt Fire Ins. Co., 12 Iowa 287.

2 May on Ins. § 479; The Mayor, etc. of New York v. The Hamilton Fire Ins. Co., 39 N. Y. 45; Ames v. The New York Union Ins. Co., 14 N. Y. 253; Hay v. Star Fire Ins. Co., 77 N. Y. 235; Steen v. The Niagara Fire Ins. Co., 89 N. Y. 315; Ellis v. The Council Bluffs Ins. Co., 20 N. W. Rep. (an Iowa case) 782.

which the filing may be delayed a considerable length of time, but still the time under the peculiar circumstances may be reasonable, and of greater duration than the limitation created by the condition. That is, the right of action would be barred before it accrued were this condition literally construed. II. On the other hand it is held that this condition is to be construed literally, irregardless of the accompanying provisions. These courts simply hold the parties to their words, and read the contract just as it was written. This contract was a voluntary one, and the company had the same right to insert these conditions as others, and if the insured had any objections he was under no obligations to conclude the contract, but, as he voluntarily entered into it, he must be bound and abide by it.*

The first of these views seems the better, and more consonant with justice and reason. Let any one of a legal mind examine this question and reason it out, and the soundness of this rule will be apparent to him. Let him search for the intention of the parties, which always governs, and can he then assert that the intention was to bar the right of action before there was one? Certainly not! Go beneath the surface of these words, and gather the intention from the whole instrument, and the logic of this rule cannot be lost sight of.

III. Such being the rule when the conditions are as above, what would it be if the proofs had to be filed in a certain, fixed time? For instance, assume that the proofs had to be filed within one month from loss, and that the action must be commenced within a year from loss. Besides this, the company always has a time in which to pay loss after the proofs are filed, say sixty days in this case. Now, what is the rule? The same as above or different? This is an open question. One of the above rules must obtain, and which? Would it run from loss or from the expiration of the time given the insured to file his proofs

3 Glass v. Walker, 66 Mo. 32; Johnson et al v. The Humboldt Ins. Co., 91 Ill. 92; Fullam v. New York Union Ins. Co., 7 Gray, 61; Keim v. Mutual Fire & Marine Ins. Co. of St. Louis, 42 Mo. 38.

4 Cray v. Hartford Fire Ins. Co., 1 Blatchf. C. C. 280; Wilson v. Ætna Ins. Co., 27 Vt. 99; Amesburg v. Bowditch Mutual Fire Ins. Co., 6 Gray, 596; Glass v. Walker, 66 Mo. 32; Keim v. Mutual Fire and Marine Ins. Co., 42 Mo. 38.

and also the time given the company to pay? We think the former is the true rule. Here there can be no possibility that the insured's right of action would be barred before it accrued, as the proofs must be filed in one month from loss, and then the company has sixty days in which to pay, and, if the limitation is one year, would not the insured have nine full months left within which he could commence his action? Would there be any injustice in saying that in this case the condition is to be construed according to the letter? What reason is there for saying this was not their intention? In placing this construction upon this condition would it operate to work any prejudice to the insured? He has ample time to seek his relief, and if he sleeps on his rights, or allows the grass to grow under his feet is that any reason for placing a forced construction on these words, words that are used by all classes, nothing technical about them, and for the purpose intended, more apt words could not have been employed? What then can be the reason for construing this the same as when the proofs must be filed, not in a fixed time, but in a reasonable time? We can see none, and think that the above rule of construction has no applicability here whatever. When the reason for the rule ceases, the rule itself is inoperative, or ought to be. Thus it seems apparent that in a condition, such as last stated, the period of limitation should run from loss, and not otherwise, as the reason for the first construction above, viz: The right of action might be barred before it accrued, does not apply. Dubuque, Io.

CHAS. E. LYON.

tially incorporated into the recently enacted Public Statutes 2 of Mass. which provides, that a child unlawfully excluded from a public school may recover damages therefor in an action of tort, to be brought in the name of such child, by his guardian or next friend, against the city or town by which such school is supported. This statute left the question open, as to what is, and what is not, a wrongful exclusion; which must depend upon other provisions of law. This statute provides a remedy for any child wrongfully excluded from public school instruction.

The sufficient reasons for excluding a pupil from a public school are left with the general school committee. Chief Justice Shaw says in this case, "But the court are of opinion, that the schools have not been left by the law without reasonable protection in this respect: and that a power is vested in the general school committee, or the master, with their approbation and direction, to exclude a pupil, although within the prescribed age of seven and sixteen, for good and sufficient

cause."

Thus we see, that whenever for sufficient cause, it becomes necessary to exclude a pupil from a public school, such duty devolves upon the general school committee, and not upon the teacher, except as an agent of the committee, to carry out their order.5

The teacher of a public school, is not an independent public officer, bound to exercise the duties of his office, for the benefit of individuals, under fixed and settled rules and obligations, prescribed by law, like a sheriff; nor is he to exercise his own will and judgment, in receiving or excluding pupils.6

In this first leading case of Spear v. Cummings, Judge Shaw held that, "The general

EXCLUDING PUPILS FROM PUBLIC charge and superintendence, in the absence

SCHOOLS.

Previous to the year 1845, there was no statute provision in Massachusetts, nor in any other State, so far as is known, making it unlawful for a teacher or the general school committee, to exclude a pupil from the public schools; but in consequence of a decision of the Supreme Court,1 in 1839, an act was passed in 1845, chap. 214. which is substan

1 Spear v. Cummings, 23 Pick. 224.

of express legal provisions, includes the power of determining what pupils shall be received and what pupils rejected." "The committee may, for good cause, determine that some shall not be received, as, for instance, if infected with any contagious disease, or if the pupil or parent shall refuse to

2 Pub. Stat. Mass. Chap. 47, § 12, 12 Allen, 127.

3 Sherman v. Charlestown, 8 Cush. 162.

4 Sherman v. Charlestown, 8 Cush. 163.

5 Sherman v. Charleston, 8 Cush. 163.

Spear v. Cummings, 23 Pick. 225.

comply with regulations necessary to the discipline and good management of the school." 7 If a child of proper age and qualifications is rejected by the teacher of a public school, the proper course of the parent to pursue is to appeal to the committee, and if the teacher refuses to receive the pupil, then they have a remedy on their contract with the master.

There is no provision of law warranting the exclusion of a pupil from a public school, but it results by a necessary provision requiring good discipline, and hence the right to attend is a qualified right, depending upon conditions. 8

The sole remedy for a child to recover damages for exclusion from the public schools is an action of tort under the statute, against the city or town, not 'as a private right, but as a political right, belonging to the pupil as a member of the community in which he resides, and in common with all others of the same community, and is exclusive of other remedies.9

A pupil in a public school, who does not conform to the rule to prevent tardiness may be excluded, under the direction of one member of the school committee, although such rule had not been formerly established or confirmed by vote of the school committee, duly entered upon their record; especially when such rule was subsequently approved of by each of the other members.10

as

The duties of the school committee, prescribed by the statute, are, that they shall have the general charge and superintendence of all the public schools in town, and as such, they have the legal right to exclude a scholar for acts of neglect, carelessness of posture in his seat-and in recitation, tricks of playfulness, and inattention to study and the regulations of a school in minor matters, such as whispering, laughing, acts of playfulness and rudeness to other scholars, inattention to study, and conduct tending to cause con

7 Ibid.

8 Roberts v. Boston, 5 Cush. 198; Sherman v. Charlestown, 8 Cush. 160; Spiller v. Woburn, 12 Allen, 127; 10 Allen, 143; Hodgkins v. Rockport, 105 Mass. 475.

9 Learock v. Putnam, 111 Mass. 499; Reynolds v. Hanrahan, 100 Mass. 313; Spear v. Cummings, 23 Pick. 224; Sherman v. Charlestown, 8 Cush. 160; Dwinnels v. Parsons, 98 Mass. 470.

10 Russell v. Lynnfield, 116 Mass. 365; Huse v. Lowell, 10 Allen, 149; Hodgkins v. Rockport, 105 Mass. 475; Sherman v. Charlestown, 8 Cush. 160; Spiller v. Woburn, 12 Allen, 127.

fusion and distract the attention of other scholars from their studies and recitations, and especially when such conduct is persisted in, after repeated remonstrances and admonitions from teachers and the committee."'11

When the superintending school committee of a town pass an order that the schools of the town should be opened each morning with reading from the Bible and prayer, and that during the prayer the scholars should bow their heads, and in consequence of a parent of a scholar objecting to his child bowing the head, and when the committee modifies the order that any scholar should be excused from bowing the head, whose parent requested it, and the parent declining to request such exemption, and the scholar still persisting in not bowing the head, may be excluded from the school, until the scholar should do so, or the parent request that the pupil should be excused thereform.

This is held to be within the scope and authority of the school committee of a town to pass all reasonable rules and regulations for the government, discipline and management of the public schools under their general charge and superintendence.12

Sandwich, Mass. E. S. WHITTEMORE.

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goods during the rest of the season at the reduced discount, it was held that the second agreement was an accord and satisfaction in respect of the breaches of the first.

There was an action of contract to recover damages for the breach of a contract to sell and deliver goods to the plaintiffs in Boston.

At the trial before the court without a jury the plaintiffs introduced testimony tending to show that, on or about July 8, 1879, the defendant, by its agent, C. A. Hamilton, orally agreed to sell and deliver to the plaintiffs in Boston, from time to time, as ordered by them, such silver-plated ware, to-wit; spoons and forks, as they might need in their business and order during the "season," that is, between said July and January 1, 1880, at stipulated discounts from certain list prices, and that the goods were to be paid for at the end of each month; that, pursuant to this contract, and on the day of the date of it, and at different times previously to October 14, the plaintiffs ordered goods amounting in the aggregate to several thousand dollars, a part of which was delivered and paid for according to the contract; that on October 14 the defendant utterly repudiated its contract, and refused to fill any of the unfilled orders, or to receive and fill any future orders, except upon the express promise on the part of the plaintiffs to pay for the goods at a less rate of discount than that stipulated in the contract, the effect of which was to advance the price of said goods about eight and one-fourth per cent. on the agreed price; that the plaintiffs, after several days? delay, and not being able to buy the goods elsewhere on so favorable terms, or at any price, agreed to buy them of the defendant during the remainder of the "season" upon the new terms demanded by the defendant.

Against the objection of the plaintiffs the Court ruled that the payment of said advance prices by the plaintiffs subsequent to October 14 was a voluntary payment; and on this ground alone found for the defendant. To this ruling the plaintiffs excepted.

D. C. Linscott, for the plaintiffs; Boardman & Tyng, for the defendant.

FIELD, J., delivered the opinion of the court: We infer from the report that the court found that the contract was not merely an offer by the defendant to sell, which would have been revocable at any time, except so far as it had been accepted by the plaintiffs in giving orders, and would thus be a contract only to the extent of these orders, but that it was a contract whereby the plaintiffs agreed to buy, and the defendant agreed to sell such of the goods dealt in by the defendant as the plaintiffs needed in their trade during the time specified. See Dickinson v. Dodds, 2 Ch. D. 463. The plaintiffs were bound in law to pay for the goods sent after the new agreement was made according to the prices stipulated in that agreement. In this Commonwealth the delivery of the goods by the defendant under

the new agreement, whether they were sent to fill the orders given before October 14, or the orders given after, is considered a sufficient consideration for the new promise of the plaintiff. Whether the new agreement was substituted for the old, and thus operated as a recision or discharge of it must be determined by the intention of the parties, to be ascertained from their correspondence and conduct. Peck v. Regna, 13 Gray 407; Munroe v. Perkins, 9 Pick. 298; Holmes v. Doane, 9 Cush. 135; Stearns v. Hall, 9 Cush. 31; Cummings v. Arnold, 3 Met. 486; Cooke v. Murphy, 70 Ill. 96; Lawrence v. Dewey, 28 Vt. 264; Stewart v. Kettus, 36 N. Y. 388; Moore v. Locom. Wks. 14 Mich. 266. If we assume that the original agreement was sufficiently definite to constitute a valid contract, the parties could clearly substitute for it a new contract, which should determine their rights and liabilities after the new contract was made, and this would operate as a waiver or discharge of the first contract as to future orders and deliveries, unless it appeared that the first contract had been broken by an absolute refusal on the part of the defendant to perform it, and that the new contract was not intended to be a discharge of the breach. As to the orders given before October 14, which the defendant had refused to fill, if the new contract by its terms covered those, we think the same rule holds. If the parties agreed that these orders should be filled at the prices stipulated for in the new contract, without considering whether the new contract would of itself be a discharge of these partial breaches, performance of the new agreement would operate as a discharge or an accord and satisfaction, unless it appeared that such was not the intention of the parties. Such a substituted agreement prima facie takes the place of the original agreement as to everything remaining unperformed. Our construction of the correspondence and conduct of the parties is that it was not understood or intended by both parties that the plaintiffs should retain their right of action, if they had any, for the alleged breach of their original contract.

Judgment for the defendant.

CRIMINAL PROSECUTIONS BY INFORMATION-HABEAS CORPUS.

EX PARTE WILSON.

Supreme Court of the United States, March 30, 1885.

1. HABEAS CORPUS.-Jurisdiction of U. S. Supreme Court.-This court cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold the prisoner under the sentence.

2. CRIMINAL LAW AND PROCEDURE.-Prosecutions

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