and if in what I may term the natural use of that land there had been any accumulation of water either on the surface or underground and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it it would have lain upon him to have done so, by leaving or interposing some barrier between his close and that of the defendants. On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use for the purpose of introducing into the close that which in its natural condition was not in or upon it for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land-and if in consequence of their doing so or in consequence of any imperfection in the mode of their doing so the water came to escape and to pass off into the close of the plaintiff then .it appears to me that that which the defendants were doing they were doing at their own peril."

The doctrine thus stated may usefully be contrasted with the principle known as "Act of God." The two may lead to different results: if a plaintiff can bring his case within the rule of Rylands v. Fletcher he succeeds; if a defendant can establish "Act of God" the plaintiff may fail. Thus, take for example, the recent House of Lords case, in which the railway companies sued the corporation for damages in respect of loss sustained by them through. flooding from a stream with the channel of which the corporation had, for purposes of public improvement, admittedly interfered. |

(2) Caledonian and Glasgow & South West- ! err. Rly. Coys. v. Corporation of Greenock, 1917 A. C. 556.

companies: and this the House of Lords affirmed. The Lord Chancellor, in dealing with the defense of damnum fatale, said: "It is true that the flood was of extraordinary violence but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of anyone who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down by an extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale but it is the direct result. of the obstruction of a natural water course by the defenders' works followed by heavy rain." And Lord Wrenbury stated the law as follows: "The responsibility to provide a substitute channel is not limited to providing a channel sufficient to meet all demands which might reasonably be anticipated, or even all demands (in excess of the ordinary) short of the Act of God. The corporation must provide a substitute. channel which will be equally efficient happen what will. Assuming an act of God, such as a flood wholly unprecedented, the damage in such cases results not from the

Act of God but from the act of man in that he failed to provide (as there was before) a channel sufficient to meet the contingency of the Act of God. But for the act of man there would have been no damage from the Act of God."

On the other hand, in a still more recent case, we find the principle of "Act of God" given effect to. A colliery company under license from the owners of land upon a mountain side deposited thereon huge quantities of colliery rubbish. After a period of heavy rainfall part of the moun

(3) The Scottish term for "Act of God."

(4) Attorney General v. Cory Bros. & Co. and others and Kennard v. Cory Bros. & Co., 83 J. P. Reps. 221.

tain slipped down causing the destruction of houses belonging to a township in the valley and endangering a highway running along it. In an action by the Attorney General on the relation of the local authority of the district for an injunction `and damages against the colliery company it was by a majority of the Court of Appeal held on the evidence that the landslip was due to natural causes and was not caused, accelerated or accentuated by the tipping of the colliery rubbish: and it was held, therefore, that the defendants were not liable for the resulting damage. But Lord Justice Scrutton was of opinion that according to the doctrine established by Rylands v. Fletcher, it was the absolute duty of the colliery company who had brought the artificial heap of dirt or rubbish on the land to keep the dangerous matter at their peril; and the fact that the artificial danger might have escaped through natural causes did not absolve them from liability for the natural results of its escape.

A leading case which is not readily reconcilable with Rylands v. Fletcher is Nichols v. Marshland, in which it was decided that a person who stores water on his own land and uses all reasonable care to keep

it there it not liable to an action for an

escape of water which injures his neighbor if the escape be caused by an agent beyond his control, such as a storm, which amounts to vis major or the Act of God in the sense that it is practically though not physically impossible to resist it. The case of Rylands v. Fletcher was thus distinguished "In that case," says Bramwell B., "the defendant poured the water into the plaintiff's mine. He did not know he was doing so, but he did it as much as though he had poured it into an open channel which led to the mine without his knowing it. Here the defendant merely brought it to a place

That

whence another agent let it loose." decision was affirmed in the Court of Appeal.

That decision may be further explained in this way—that granting the making of the reservoir was not in itself unlawful the duty of the person who made it was to prevent the escape of the water but he could not be said to have caused or allowed the water to escape if the Act of God was the real cause of its escaping without any fault on his part. The majority of the court in Attorney General v. Cory Bros. & Co. would seem to have followed that principle. In the Greenock Corporation case, on the other hand, the House of Lords appears to have ruled out the theory that the Act of God is a valid defense in such cases,

provided the defendant proves due care in every respect on his own part; e. g., Lord Wrenbury's dictum above quoted "Assuming an act of God, such as a flood wholly unprecedented, the damage in such

a case results not from an act of God but from the act of man in that he failed to provide, as there was before, a channel sufficient to meet the contingency of the Act of God." That is in accord with Lord

Justice Scrutton's dictum in the case of Cory Bros. & Co. "In my view the fact that an artificial danger escapes through

natural causes is no excuse to the person who brought the danger there." And both appear to comply with Lord Chancellor Cairns' statement of the law in Rylands v. Fletcher. An appeal to the House of Lords in Attorney General v. Cory Bros. & Co., and others, if it is taken, will provide an exceptionally good opportunity for the supreme tribunal reviewing the doctrine of Rylands v. Fletcher and its applications since first enunciated.

Glasgow, Scotland.

(6) 1876, 2 Exch. D. 1.

DONALD MACKAY.

In February, 1916, C. A. Howell sold his interest in the business to H. F. Howell without complying with the Bulk Sales Statute (Laws 1901, c. 133); H. F. Howell assuming the payment of the firm's debts. The business was still conducted under the firm name, which H. F. Howell requested C. A. Howell to permit until he could pay the partnership debts.

In August, following, H. F. Howell sold said stock of goods to defendant R. N. Cagle, which sale was made without complying with said Bulk Sales Statute. In a few weeks thereafter R. N. Cagle sold to one Presswood, who has either sold the goods or mingled them with other goods so that they cannot be identified.

H. F. Howell did not pay the debts of C. A. Howell & Co. as he agreed to do, and C. A. Howell had to pay them to the extent of $400, and has instituted this suit to recover said amount from the defendant R. N. Cagle, alleg ing that the sale from H. F. Howell to R. N. Cagle was fraudulent and void because the Bulk Sales Statute was not complied with.

Pending the suit H. F. Howell died, and no judgment is sought against his estate.

The Chancellor rendered a decree in favor of the complainant in accordance with his contention, which decree was affirmed by the Court of Civil Appeals.

If the sale from the complainant to H. F. Howell came within the statute, then the complainant cannot recover under the holding of this court in Cantrell v. Ring, 125 Tenn. 472, 145 S. W. 166, in which case this court said:

"It is well-settled law that an action will not lie to enforce a contract made in violation of a statute, or of the common law, or which is immoral in its character, or contrary to public policy."

If the statute applies, the complainant is guilty of the same offense with which he charges the defendant Cagle, and will therefore be repelled.

The question therefore is: Was the sale by C. A. Howell to H. F. Howell in violation of the Bulk Sales Statute?

The first section of said statute (Acts of 1901, c. 133) declares that

"A sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, * * shall be presumed to be fraudulent and void as against the creditors of the seller," unless the prescribed inventory shall be made and the prescribed notices given.

In Thomas E. Daly v. Sumpter Drug Co., 127 Tenn. 412, 155 S. W. 167, this court held that the sale of a half interest in a stock of goods by a merchant for the purpose of taking the purchaser into partnership with himself is within the purpose and reason of the statute. Speaking to this point, the court said:

"We are of the opinion that the case before us falls within the terms of the act. The language of the act is, 'A sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller, unless,' etc. A half interest is a portion of the stock. We do not think the act means that it must be a distinct portion or part severed from the whole stock. The sale of a half interest by a merchant for the purpose of taking the vendee into partner. ship is within the purpose and reason of the act, since it very materially changes the rela tion of the vendor's creditors to the stock, if such sale be valid. Before the sale a creditor could levy upon the whole stock. After the sale, if valid, the creditor of such vendor could not levy upon any of the stock, but only upon the vendor's interest in the whole, and in order to obtain this he would have to file a bill in equity and have an accounting with the new partner. So the former owner of the stock might admit three new persons into the business, and so reduce his own holding to a onefourth interest, and so on as to smaller fractions at the same time putting the proceeds into his own pocket and holding them beyond the reach of his creditors."

The same principle applies here. If you treat the sale as valid, the stock of goods would be subject to levy by the individual creditors of H. F. Howell, as well as by the creditors of the

partnership; whereas, before the sale partnership creditors had to be paid before any individual creditors could reach the stock, and even then such relief by individual creditors could be had only by a bill in equity. Other reasons could be given in support of this position, but it is unnecessary, as the language of the act is plain and unambiguous, and the complainant sold a half interest in a stock of merchandise otherwise than in the ordinary course of trade, which the act says renders the same fraudulent and void.

In Ruling Case Law, par. 55, it is said:

"The statutory test is whether the sale was made in the usual way in which a merchant owing debts conducts his business, or whether he takes an unusual method of disposing of his property in order to get the money for his own use, and leave his creditors unpaid."

In Hannah v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 Am. St. Rep. 674, 12 Ann Cas. 344, the court said:

"The terms, 'sale, transfer or assignment.' used in" such acts, "taken in their usual and ordinary signification, mean the disposition of the entire title of the seller."

In the case we are considering the seller disposed of his entire interest in the stock of goods.

Counsel for the defendant rely upon Taylor v. Folds, 2 Ga. App. 453, 58 S. E. 683, and Fairfield Shoe Co. v. Olds, 176 Ind. 526, 96 N. E. 592, in support of their position that a sale by one partner of his interest to his co-partner does not come within the statute.

We have not had access to the former case; but, no doubt, it does sustain the defendant's contention, for the reason that the Supreme Court of Georgia, in Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359, 78 S. E. 1078, held that a sale of an interest in a stock of goods by a merchant for the purpose of taking such purchaser into partnership did not fall within the statute, which is in direct conflict with our holding in Thomas E. Daly v. Sumpter Drug Co., supra. The Georgia statute, however, is worded differently from ours. The Indiana case bases its holding solely upon the Georgia

case.

Other questions are raised by the assignments of error which it will not be necessary for us to pass upon in view of the fact that we have reached the conclusion that, for the reasons stated above, the complainant cannot get along in this suit.

It results that the decree of the Court of Civil Appeals and of the Chancellor will be reversed, and the suit of the complainant will be dismissed, and he will be taxed with the costs accrued in the several courts.

NOTE-Sale by Partner to Co-Partner as Coming Under Bulk Sales Statute.-The instant case seems to this annotator to be better ruled than are the opposing cases. The latter go upon the theory that, as the statute is in derogation of the common law, it ought not to be extended any further than the import thereof plainly requires. But this is evident regarding all such statutes, that it is intended when a sale is made in contravention of the requirements of the Bulk Sales Statute, that the joint and several liability of partners shall be for the benefit of their creditors and the resort of creditors to vendees is in the way of supplemental benefit to them. To have an element injected departing from the principle of joint and several liability, might be thought to introduce confusion in its application, and this is not to be. Now, why should a sale by one partner to another differ from a sale by any person to another person? The entire title the seller owns is transferred. Hanner v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 119 Am. St. R. 674, 12 L. R. A. (U. S.) 178, 12 Ann. Cas. 344.

But there is some decision opposed to this view. Thus it was held in Washington State that the object of the Bulk Sales Statute "being to prevent the vendor, usually a retail merchant, from selling his stock of goods, pocketing the proceeds and leaving his creditors remediless," it cannot apply to other than retail sales. McAvoy v. Jennings. 44 Wash. 79, 87 Pac. 53; Kasper v. Spokane Merchants' Asso., 87 Wash. 447, 151 Pac. 800.

Applying this principle, the Supreme Court of Washington held that the statute did not apply to transfer of a stock in trade to a corporation organized to take over the business. Maskell v. Alexander et al., 100 Wash. 16, 170 Pac. 350, L. R. A. 1918, c. 920. The premise seems very doubtful for the conclusion drawn. And so where in such a sale as in the last cited case the parties showed that they acted in good faith. Thorpe v. Pennock Mercantile Co., 99 Minn. 22, 108 N. W. 940, 9 Ann. Cas. 229, a distinction quite faulty, indeed, if good faith is not to excuse where there is a sale by a retail merchant to another.

In New York it was held that the existence of fraud in fact would bring a sale within the purview of the act, where it was made to a corporation similarly constituted. West Shore Furniture Co. v. Murphy, 141 N. Y. Supp. 835.

It is to be noted, too, that the case of Taylor v. Folds, 2 Ga. App. 453. 58 S. E. 683, has been abated from considerably in a case where the debtor sold a half interest to another and later the other half to the same person, as thus this would be to defeat the very purpose of the act and take away by indirection the reliance upon which creditors extended credit. Virginia-Carolina Chemical Co. v. Bouchelle, 12 Ga. App. 661, 78 S. E. 51.

In Marlow v. Ringer, 79 W. Va. 568, 91 S. E. 386, L. R. A. 1917D 619, there was a transfer by

a retailer of a half interest to another, for the formation of a partnership, the new member agreeing to put in the store goods equal in value to those then in stock. This came within the purview of the act and was void. It was said that the partnership never became effective as to the new purchaser, for "although an effort was made to distinguish between the groceries in the store at the time of the original transaction and those subsequently purchased and placed therein, that attempt was adjudged abortive. * * Besides, there was such commingling of the merchandise as to render the whole of it chargeable with the liabilities preferred against it."

*

This case presents the thought that is in the mind of this annotator, viz: there must not be any circumstance or act in the disposing of the stock, which is the foundation of the credit extended, except in the way contemplated by creditors, that is in due course of trade, that is sales by retail. The stock is to stay where it is, unless sold to customers at retail. In this way the law provides it is pledged to creditors. C.

ITEMS OF PROFESSIONAL

INTEREST.

HIGHER FEES FOR SOLICITORS. We notice in the English law journals an insistent demand by solicitors for an advance in the charges for legal services. The Solicitors Journal declares that the reform "must be considered in regard to the probable permanent fall in the value of money." The fees of solicitors are fixed by the Law Society. American lawyers will continue to charge all that the traffic will bear. There are no fee-fixing associations in America, except in the case of collection attorneys, who, it is reported, have already raised the fee for collection on first presentation from 10 per cent to 15 per cent.

urged upon our brethren of the bar in America. This is also the position which was adopted by the American Bar Association at its last meeting in Boston in refusing to adopt the recommendation of a special committee to engage in an active propaganda against Socialism. It will be time enough for the bar to take an unequivocal position on any public question when, after full discussion, there is practical unanimity of professional opinion as to the inexpediency of any proposed change in the law, as in the case of its campaign against the recall of judges and judicial decisions. In such cases, and not otherwise, is its advice likely to be heeded.

PROGRAM OF THE MEETING OF THE KANSAS BAR ASSOCIATION.

The next meeting of the Kansas Bar Association will be held at Topeka, January 30 and 31, 1920, in the Supreme Court Room.

An outside speaker for the annual address has not yet been secured. The president's address will be given by Judge John C. Hogin of Belleville.

A student of the State University Law School will speak on the subject "The Law Relating to Strikes." Mr. Leo T. Gibbens of Scott City will speak on "Law Courts in the Philippines." State Senator George W. Wark of Caney will deliver an address on "The Evolution of Property Rights." Mr. W. D. Vance of Belleville will speak on the subject "Courts of Today." Hon. Richard E. Bird of Belleville will address the meeting on "The Community, the Bar and the Bench." Mr. James A. Allen of Chanute has the subject "Non-Par Stock." Mr. J. C. Shearman of Wichita will speak on "Evidential Facts Contained in Disputed Documents."

NATIONALIZATION OF ENGLISH MINES. The English bar is taking a great interest in the discussion now going on in England, as in America, over the question of the nationalization of coal mines. This is due to the fact, probably, that a Scotch solicitor, Mr. Roe Duncan, has been appointed Coal Controller for the United Kingdom. The English bar, while inclined to doubt the advisability of nationalization, declares its willingness through the Solicitors Journal to keep an open mind on the subject and from time to time "to point out the probable advantages and disadvantages of such a scheme." This is the position we have

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 180.

Collections; Fees; Relation to Other Attorneys; Relation to Client-Division of Fees With Attorneys Forwarding Collections; Proper Basis Indicated; Retention of Share of Fee by Forwarding Attorney Without Accounting to Client; Not Necessarily Improper.-1. An at