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-that the defendant was in the circumstances guilty of no want of due care in placing confidence in the statement made by Lord William Nevill, and accordingly in signing his name as he did; and I decline to hold that the placing of confidence as here shown, which is afterwards betrayed, where it is not recklessly or negligently so placed, in any way precludes the defendant from setting up the true facts as a defense. I conclude, therefore, the defendant is not, upon any principle of law, estopped or precluded from setting up the true facts." The decision of the court, however on this point would seem to have been obiter for it is also decided that the payee, who was the plaintiff, being one of the immediate parties to the instrument, is not a holder in due course within the meaning of the Bills of Exchange Act; that the "holder in due course" is a person to whom, after its completion by and as between the immediate parties thereto, the bill or note has been negotiated in the manner provided for in that section. If by "holder in due course" is meant in effect "innocent holder for value without notice" the subtle doctrine invoked by Lord Russell was unnecessary.

NOTES OF IMPORTANT DECISIONS.

MUNICIPAL CORPORATIONS-ORDINANCE PROHIBITING SALE OF PORK CONSTITUTIONAL LAW.-The Supreme Court of Arkansas, in City of Helena v. Dwyer, 42 S. W. Rep. 1071, held that an ordinance prohibiting the sale of fresh pork between June and October is not authorized by Sand. & H. Dig. § 5313, providing that cities may prohibit the carrying on of a business dangerous to health, etc., and is not a valid exercise of the police power. The court, after citing and reviewing People v. Marx, 99 N. Y. 386; Bartholf v. O'Reilly, 74 N. Y. 515; Powell v. Pennsylvania, 127 U. S. 678; Mugler v. Kansas, 123 U. S. 623; Haynes v. Cape May, 50 N. J. L. 55, says: Fresh pork is an article of food of general consumption, and when sound, and free from disease, is useful and nutritious. Like all other food, it may become unwholesome when eaten to excess. The quantity eaten, under ordinary circumstances, produces the sickness, when it proves unwholesome. Any food is calculated to produce that effect when eaten in the same manner. The mere sale of it is not detrimental to the public health. The fact that individuals may be made sick by it when imprudently eaten does not justify a city council in prohibiting the sale of it. For the same reason it could prohibit the sale of any

or all other food. The most delicious food-that which is most liable to be eaten to excess-would be subject to interdiction. If it be conceded that the city council may prohibit the sale of any article of food, the wrongful use of which will or may injure the health of the consumer, then they can prescribe what the citizens of the city shall eat by prohibiting the sale of all other food. The legis lature or any of its creatures has no such power. The exercise of such power, we have seen, would be a violation of the inalienable right of man to procure healthy and nutritious food, by which life may be preserved and enjoyed. It would be an interference with the liberty of the citizen, which is not necessary to the protection of others or the public health-would be an invasion of his personal rights.

Prof. Tiedman, in his work on the Limitations of Police Powers, in elucidation of this doctrine, says: "A still stronger ground for the total prohibition of a trade or business is when the thing offered for sale is in some way injurious or unwholesome. It is not enough that the thing may become harmful, when put to a wrong use. It must be in itself harmful, and incapable of a harmless use. Poisonous drugs are valuable. when properly used, but they may work serious injury, by being improperly used, even to the extent of destroying life. Safeguards of every kind can be thrown around the sale of them, so that damage will not be sustained from an improper use of them, but that is the limit of the police control of the trade. Thus, for example, opium is a very harmful drug when improperly used, and it is all the more dangerous because the power of resistance diminishes rapidly in proportion to the growth of the habit of taking it as a stimulant. and a miserable, degraded death is the usual end. * * But, on the other hand, opium is a very useful and indispensable drug. * The sale

of it can, of course, be prohibited to minors, and to all who may be suffering from some form of dementia, and to confirmed opium eaters. But it would seem to be taking away the free will of those who are under the law confessedly capable of taking care of themselves, if the law were to prohibit the sale of opium to adults in general. But where a thing may be put to a wrongful and injurious use, and yet may serve in some other way a useful purpose, the law may prohibit the sale of such things, in any case where the vendor represents them as fit for a use that is injurious. or merely knows that the purchaser expects to apply them to the injurious purposes. Thus the sale of diseased or spoiled meats or other food, as food, intending or expecting that the purchaser is to make use of them as food, may be prohibited. So, also, the sale of milk, which comes from cows fed in whole or in part upon still slops, may be prohibited, if it is true that such milk is unwholesome as human food. In the same manner a law was held to be constitutional which prohibited the sale of illuminating oil which ignited below a certain heat. But it would be unconstitutional t

to

prohibit altogether the sale of either of these things, if they could be employed in some other harmless and useful way. For example, the oil which was prohibited for illuminating purposes may be very valuable and more or less harmless while used for lubricating purposes." Pages 294, 295. See also Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N. E. Rep. 677; Babcock v. City of Buffalo, 56 N. Y. 268.

The legislature may enact such laws as may be necessary to protect the public against fraud, imposition or deception in the sale of food, or any impurities, putridity, disease or unsoundness in the same which renders it unwholesome, and may authorize municipal corporations to do so. The public is entitled to protection against imposition by the sale of impure or adulterated food, or of imitations, as pure and genuine. In this respect it needs protection, and to this end the legislature may and can authorize city councils to pass laws. It has accordingly been held that an act is constitutional which prohibits the sale of milk containing more than eighty-eight per centum of water fluids, or less than twelve per centum of milk solids, or less than two and one-half per centum of milk fats." In passing upon the validity of this act in State v. Smyth, 14 R. I. 100, the court said: "It is equally a fraud on the buyer, whether the milk which he buys was originally good and has been deteriorated by the addition of water, or whether in its natural state it is so poor that it contains the same proportion of water as that which has been adulterated. If a cow habitually gives milk of a quality so poor as to come within the statute, or, as the defendant puts it in his brief, so poor that as a commercial commodity it is valuable only for the purpose of irrigation, she is of no value as a milk producer, and can have none as such to her owner, unless he can sell her milk to his unsuspecting neighbor for a price greatly in excess of its value, a species of fraud which ought not to be tolerated. The section is but a slight extension of the provision which prohibits the sale of adulterated milk, and, like that, was designed to protect the public against imposition." Com. v. Waite, 11 Allen, 264; People v. Cippertly, 101 N. Y. 634, 4 N. E. Rep. 107. Other examples might be given, but this, we think, is sufficient.

*

In

GUARDIAN AND WARD-INVESTMENT BY GUARDIAN TRUST RIGHTS OF CREDITORS. Beaven v. Citizens Nat. Bank, 43 S. W. Rep. 242, decided by the Court of Appeals of Kentucky, it appeared that a guardian deposited her wards' funds in bank with her own, and out of the common fund purchased bank stock in her own name. She continued to treat the trust fund as cash in settlements made by her, and for a period of eight years collected and appropriated the dividends on the stock to her own use. When proper credits are allowed her there will be but a small balance due by her as guardian, and the wards are amply secured by her bond. It was held that while

there is some evidence showing that the stock was paid for out of the trust money, it is not sufficient, as against the circumstances recited, to entitle the ward to the stock as against a creditor of the guardian who extended credit with knowledge of her ownership of the stock, and without knowledge of any equity of the wards. The court laid down the general propositions of law governing the liability of guardian in the following language. "We think there can be no question that whenever a guardian, acting within the scope of his powers, has funds in his hands belonging to his ward which he ought, in pursuance of his fiduciary duty, to employ in the purchase of property for the benefit of his ward, and he does purchase the property with such funds, and takes the title thereto in his own name, without any declaration of trust, then a trust with respect to such property at once arises in favor of the cestui que trust. As equity imputes an intention to fulfill the obligation resting upon the guardian, independent of any element of fraud, it regards the trustee as intending to perform the obligation. and to act in accordance with fiduciary duty, and not in violation thereof, and therefore treats the purchase as made for the benefit of the person beneficially interested. And this doctrine extends to all persons who stand in a fiduciary relation to others. See 2 Pom. Eq. Jur. §§ 587, 1049; 1 Perry, Trusts, §§ 127, 128; 2 Perry, Trusts, 835, 836. To follow the money, however, and impress it with the trusts as against innocent third persons, it must be distinctly traced and clearly proven to have been invested in the security sought to be subjected; and if the trust fund has consisted of money, and has been mingled with other moneys of the trustee in one mass, undivided and undistinguishable, and the guardian has made investments generally from the money in his possession, the cestui que trust cannot claim specific lien upon the property or funds constituting the investment. See Hill, Trustees, p. 522; Ferris v. Van Vechten, 73 N. Y. 113.

MORTGAGE PAYMENT TO CLERK OF COURTEXTINGUISHMENT OF MORTGAGE.-Commercial Inv. Co. v. Peck, 73 N. W. Rep. 452, decided by the Supreme Court of Nebraska, was an action to foreclose a real estate mortgage for the entire amount of the debt. The mortgagors, after the service of summons upon them, in vacation, and without the knowledge and consent of the mortgagee, or its attorney, paid to the clerk of the district court the full amount due on the mortgage and all costs. No entry of such payment was entered by the clerk upon the books of his office, nor did he pay the money to the plaintiff or its attorney, but embezzled the same, and absconded, Subsequently a decree of foreclosure was entered, the defendants being in default of an answer. order of sale was issued, and the mortgaged premises were sold thereunder. Neither the plaintiff nor its attorney was apprised of the deposit with the clerk until after the sale, when, for the first

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time, the defendants ascertained that the clerk had embezzled the money, and that a decree of foreclosure had been entered in the cause. At a term subsequent to the rendition of the decree the court, on application of the defendants, vacated the decree, and set aside the sale, which order is here for review. The Supreme Court reversed this ruling, holding that the clerk did not receive the money by virtue of his office, but in his individual capacity as the mere agent of the mortgagor, and that such deposit did not constitute a payment into court, and therefore did not extinguish the mortgage debt. At common law, payment to the clerk in vacation during the pendency of an action before judgment, and without an order of court, of the amount due plaintiff, was not authorized, and no statutory enactment in this State can be found which empowers a clerk of the district court to receive money under the circumstances disclosed by this record. The law did not constitute the clerk as the agent of this plaintiff to receive the amount of its mortgage. After judgment, a clerk of court may receive payment, even in the absence of any express statute upon the subject. McDonald v. Atkins, 13 Neb. 568, 14 N. W. Rep. 532; Moore v. Boyer (Neb.), 72 N. W. Rep. 586. The authority of a clerk of a court to receive payment of a judgment in his office existed at common law, and has been recognized by long usage. The official power of the clerk is circumscribed by the extent of his duties, and he ceases to act by virtue of his office whenever he steps beyond the boundary of his power. It was no part of the official duty of the clerk to receive the money from these mortgagors. He did not act officially, but in his individual capacity as the mere agent of those who intrusted him with the money. Durant v. Gabby, 2 Metc. (Ky.) 91; Baker v. Hunt. 1 Wend. 103; Currie v. Thomas, 8 Port. (Ala.) 293; Windham v. Coats, 8 Ala. 285; Ball v. Bank. 8 Ala. 590; Governor v. Read, 38 Ala. 253; Alexandre v. Saloy, 14 La. Ann. 327; Hammer v. Kaufman, 39 Ill. 87. In Mazyck v. M'Ewan, 2 Bailey, 28, it was decided that, where money is paid to a clerk of the court, he receives it as the private agent of the party making the payment, unless accompanied by a plea of tender, or the deposit has been made in pursuance of an order of court to do so. In Kieth v. Smith, 1 Swan, 92, it was ruled that money paid into court is unavailing as a tender if not made upon an order of court authorizing it to be done. In Hammer v. Kaufman, 39 Ill. 87, it was held that a clerk of court is not, by virtue of his office, authorized to receive money as a deposit, except by order of the court; that money paid to him without such order may be withdrawn by the depositor at any time before the other party has manifested a willingness to accept it, or the court has recognized it as a fund at its disposal; and that, in case the money is lost by the clerk, the one making the deposit must sustain the loss, instead of the person for whose benefit the money was received. In Levan v. Sternfeld, 55 N. J. Law, 41.

25 Atl. Rep. S54. it was decided that payment of money to a clerk of court after the commencement of an action and before judgment, without a rule, may be disregarded by the party for whom the same was deposited. Reed, J., in the course of his opinion, says: "Now, the money paid into court in this case, so far as the record shows. was not paid in under any rule. The clerk has no authority to receive money without a rule of court. 1 Sell. Prac. 18, 277; Baker v. Hunt, 1 Wend. 103. The doctrine is obviously sound, therefore, which is said by Campbell, in a note to Rucker v. Palsgrave, 1 Camp. 557, to have been laid down by Lord Ellenborough, that if, after action brought. the moneys sought to be recovered are paid without a rule of court, the plaintiff must have a ver dict." Currie v. Thomas, 8 Port. (Ala.) 293, was a suit upon a promissory note, where the defendant pleaded that a prior suit had been brought on the same note, and that he had paid the full amount due thereon to the clerk of the court. It was held that payment to the clerk did not prejudice the plaintiff. The court, in disposing of the question, observed: "There are several stages in the proceedings of a case in which the clerk of a court is by law authorized to be the holder of the moneys which may be paid into court. Thus on plea pleaded, when the cause of action is admitted to a partial extent, and denied as to the residue. So in the case of a tender. So, also, when money is paid into court in satisfaction of a judgment. In all these cases, however, the money is presumed to be brought before the court, and. as it can have no custody of the money, it of necessity remains with the clerk, as the fiduciary of the court. But, independent of statutory enactments, no case is remembered in which money can be lawfully paid to the clerk in vacation, or any other manner than as the officer of the court in term time; and the receipt of which is always by some record of the court, or some proceeding yet on paper, but progressing to a record. To permit this officer to receive demands which have not been reduced to judgment would bring about consequences of a most mischievous tendency. unless received at a time when he is presumed to be under the immediate control of the court.that is, term time,--and then only in those cases where the performance becomes a duty imposed by the peculiar organization of the court."

BANK

CHECK AGAINST DEPOSIT

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MENT.-In House v. Kountze, 43 S. W. Rep. 561. decided by the Court of Civil Appeals of Texas. it was held that an unaccepted check does not constitute an equitable assignment, pro tanto of the fund against which it is drawn, and therefore will not support an action by the holder against the drawee. The court said in part: Counsel for the appellees Kountze Bros. contend that the law of New York should control the question as presented in this case, because the check was drawn on a bank in New York, to be paid out of a de

posit there. It may be conceded that the position is correct. Abt v. Bank (Ill. Sup.), 42 N. E. Rep. 856. Yet there was no proof of what the law of New York is. But, as this is a question of the law merchant, the court might, perhaps, take judicial notice of the law merchant as prevailing in the State of New York, in absence of proof to the contrary. Whart. Ev. sec. 298. The court, however, must inform itself as to the state of the law, and, in doing so, finds that there is a hopeless conflict in the decisions, and, in the absence of proof of any statute of New York upon the question, must at last decide it upon general principles. The decisions of the New York courts cannot be more than persuasive, because they cannot be noticed judicially, as furnishing evidence of what the law of New York really is.

After a careful examination of the authorities, and a full consideration of the reasons in favor of and against the right to sue, a majority of the court are of the opinion that the weight of reason as well as of authority is in support of the rule that the suit cannot be maintained. The writer has reached the opposite conclusion, and is of the opinion that, while the weight of authority is against the rule authorizing the suit, yet, as stated by the text writers, the weight of reason is with those courts which hold that the check holder has the right to sue the bank, although his check has never been accepted.

FALSE IMPRISONMENT-MUNICIPAL CORPORATION-LIABILITY OF CITY.-In Bartlett v. City of Columbus, 28 S. E. Rep. 599, decided by the Supreme Court of Georgia, it was held that a municipal corporation is not liable, in an action for false imprisonment, for damages alleged to have been occasioned to the plaintiff by reason of his imprisonment under a judgment ordered against him by a municipal court for the violation of an ordinance, and this is true though such judgment may have been irregular, erroneous, and even void. The court said: Bartlett sued the city of Columbus for false imprisonment, alleging that the defendant, without legal authority, imprisoned and detained him, in the common jail of Muscogee county, for forty-eight hours. Upon the close of the plaintiff's testimony, the court below granted a nonsuit, and Bartlett excepted.

The plaintiff showed by his testimony that the office of recorder of the city of Columbus was duly and legally constituted, and that said officer was authorized to preside over the "Mayor's Court," and to try all persons charged with a violation of the ordinances of said city. It further appears from his testimony that he was tried, convicted and sentenced by the recorder, in said court, for an alleged violation of an ordinance of said city, in carrying on the business of keeping a boarding house, taking transient guests, without first having registered, and obtained the city license prescribed therefor. This being true, it is not necessary to consider the grounds upon which the plaintiff in error contends that his trial by the

recorder and the judgment rendered therein were illegal and void, because it is clear that a municipal corporation is not liable, in an action for false imprisonment, for damages alleged to have been occasioned to the plaintiff by reason of his imprisonment under a judgment rendered against him by a municipal court for the violation of a city ordinance; and this is true though said judgment may have been irregular, erroneous, or even void. In the case of Duke v. Mayor, etc., 20 Ga. 636. Lumpkin, J., says: "Can an action in any form be maintained against a municipal corporation for an error in judgment only when exercising judicial functions, where no corruption and malice is imputed? We think not. Just as well, upon principle, sue this or any other court." A case that is exactly in point is that of Trescott v. City of Waterloo, which was tried in the Circuit Court of the United States for the Northern District of Iowa, and is reported in 26 Fed. Rep. 592. In that case the court held that: "A party who has been arrested for violation of an unconstitutional municipal ordinance, requiring a license fee to be paid by non-resident peddlers, and, on conviction, has served out his fine, cannot maintain an action against the municipal corporation for false imprisonment." The passage of the ordinance by the city council of Columbus, for the alleged violation of which the plaintiff in error was tried, convicted and imprisoned, was an exercise of the legislative power, and his trial and sentence by the recorder was an exercise of the judicial power conferred by the State upon the municipal corporation. It is well settled that for errors of judgment committed in the exercise of either of these powers a municipal corporation is not liable in damages. Rivers v. City Council, 65 Ga. 376.

SALE-AUTHORITY OF SALESMAN-REPUDIATION BY PRINCIPAL.-In a recent case before the St. Louis Court of Appeals-Groves v. KelleyGoodfellow Shoe Co.-it appeared that the defendant, a St. Louis wholesale house, refused to accept an order taken by one of its salesmen from plaintiff, a merchant in Texas, because the sale was effected below the price for which he was directed to sell. Plaintiff refused to pay more, and filed suit. The circuit court decided in favor of defendant company, and the case was appealed to the court of appeals, Judge Biggs sustaining the lower court and Judges Bland and Bond reversing the case, taking the view that the action of the salesman bound his employer. The majority opinion held as follows:

"First-That when a mercantile house sends out a traveling salesman with authority to solicit orders and make sales of its goods, and the salesman sells its goods below their market value, and gives a bill of sale therefor under the name of his principal, and extends the time of payment beyond the time fixed by private instructions given by the house, which he did not communicate to the purchaser, the sale is binding on the house, and it

cannot repudiate the sale for the reason that the goods were sold below their value and the time of payment extended beyond the time limited by private instructions.

"Second-The authority of a traveling salesman to sell the goods of his principal need not be shown by an express delegation of subauthority, but it may be established by the general custom of merchants, or by the uniformity of a previous course of dealing between the wholesale house and its customer with reference to orders for goods taken by the traveling salesman.

"Third-When it is the custom of the trade that a sale made by a traveling salesman of his principal's goods, otherwise absolute, may be rejected by the house on account of the unsatisfactory commercial standing of the purchaser, such right is in the nature of an option, to accept or reject the purchaser as its debtor. This option must be exercised within a reasonable time after the order for the goods is received, and if not so exercised the contract of sale becomes absolute.

"Fourth-That the option to reject the order or sale on account of the unsatisfactory commercial standing of the purchaser does not carry with it the right to repudiate the sale for any other reason or for no reason at all."

SALE-WARRANTY --WAIVER-ACCEPTANCE.— In Kingman v. Watson, 73 N. W. Rep. 438, decided by the Supreme Court of Wisconsin, defendant purchased of plaintiff, through its agent, a steam threshing machine, signing a written order therefor, with an agreement on the part of defendant as to payments, and on the part of plaintiff a warranty that the machine was of good material and well made. The order further specified that, if defects in the machine were not remedied, the machine was to be returned to plaintiff, and defendant was to be given back his notes. The machine proved, after its receipt by defendant, be defective, and not to be as warranted, which defects were not remedied by plaintiff, although it was asked to do so; but, notwithstanding the defects, defendant continued to use the machine, and was in possession thereof, for over two years, without returning or offering to return it to plaintiff. It was held that defendant's retaining the machine and using it for so long a period was an acceptance of the machine, and a waiver of the defects; that a delivery by plaintiff of a threshing machine to defendant pursuant to his order bound the latter to perform the terms of the order as to payment for the machine, and the acceptance of the order by the plaintiff bound it to comply with stipulations therein on its part; that where a sale was made with an agreement that if the machinery, when delivered, proved unsatisfactory, it might be returned, and that the seller would remedy the defects, when the purchaser was dissatisfied, and discovered the alleged defects, the continued use of the machinery thereafter was an acceptance, and that a use of a warranted machine, after

knowledge of defects, without offer to return as provided by the contract of sale, was an acceptance thereof. Marshall, J., dissented from the conclusion of the court in an exhaustive opinion.

FUNCTIONS OF THE TRIAL JUDGE.

In a recent decision overruling a motion for a new trial in the case of United States v. Bram, the court laid down some important principles as to the duties of the trial judge. Bram was found guilty of murder by a fed eral jury in Boston. On motion for a new trial the defendant's attorneys pointed out errors committed by the trial judge, and claimed that the verdict was influenced thereby. Judge Colt, in his decision overruling the motion. holds that it is not sufficient to show that errors were committed during the trial, but it must be shown that the verdict has been actually affected by such errors, and not merely that it might have been affected. If the language of the court is construed to mean that coun sel must establish a reasonable probability of the verdict having been influenced by the alleged errors, the rule seems a just one, but if we literally interpret the court, that it is nec essary to prove that the verdict has been influenced, compliance with such a demand would be an utter impossibility as it would necessitate laying bare the operation of the minds of the jurors. All that counsel can show, and all they should be asked to show. is the probability that there is some connec tion between the errors and the verdict. A motion for a new trial is an appeal to the equitable discretion of the court, and such equitable authority is interposed to prevent the jury from inflicting, by their verdict. s material and palpable wrong. And it may be stated, generally, that the granting or re fusing of a new trial, except in cases where statutes provide for new trial as matter of right, or when motion is founded on error of law, is entirely within the judicial discretion of the court. Where the motion is founded

1 Minor's Inst. 837; Kelsey v. Hammer, 18 Conn. 311; Covington Mills Co. v. Summers, 36 Ga. 615; Hilb v. Peyton, 22 Gratt. (Va.) 550; Fanning v. McCranes, 1 Morr. (Iowa), 398; Huston v. Vail, 51 Ind. 299; Goode v. Love, 4 Lehigh (Va.), 635; Dulaney v. Ban kin, 47 Miss. 391.

2 Roberts v. Leslie, 46 N. Y. Sup. Ct. Rep. 76; Presi dent, etc. v. Patcher, 8 Wend. (N. Y.) 47; Alder.

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