very little; the hotels at which he intends to stop on his way, he looks to supply him with all he wants; another man must carry with him his own brush and comb, razors and toilet conveniences; one man prefers to finish his journey in the suit he starts in; another requires frequent changes of clothing. Hence, the test must be not whether or not the articles claimed to be baggage are usually carried by passengers but whether according to the habits and wants of persons of like condition to him, the particular things would be fit and proper for their personal use.

51

(H) Articles for use at the end of a journey, or during a temporary stay at a particular place are as properly baggage as those actually used, or intended to be used in transit. 48 Thus, the gun and case of a sportsman on a shooting tour,49 or the fishing apparatus of one on a fishing trip,50 or the easel of an artist on a sketching trip, are certainly baggage. A leaves his home in the town of C to take up his residence in New York. He takes with him, his ordinary wearing apparel, none of which he intends to use on his journey. This is baggage.52 So, A, traveling by rail at night has an opera glass in his trunk. This is baggage. A student on the way to college, carries in his trunk, manuscript books which it is necessary for him to study there. These are baggage. In this case it was said: "With a lawyer, going to a distant place to attend court; with the author, proceeding to his publishers; with the lecturer, traveling to the place where his engagement is to be fulfilled, manuscripts often form, though a small yet indispensable part of his baggage. They are indispensable to the object of his journey."55 A commercial traveler has in his valise a "price book" of the articles he sells, which he is called upon to use from time to time in the

54

*

#

8 Toledo, C. Co. v. Hammond, 33 Ind. 379. Macrow v. R. Co., 6 Q. B. 612, Cockburn, J.; Merrill v. Grinnell, 30 N. Y. 619; Van Horn v. Kermit, 4 E. D. Smith, 457.

50 Id.

31 Id.

52 Dexter v. R. Co., 42 N. Y. 326, 1 Am. Rep. 527. Toledo, etc. R. Co. v. Hammond, 33 Ind. 379, 5 Am. Rep. 221: "Articles," said the court, "for use as baggage at the end of the journey or during a tempo. rary stay at a particular place are as properly baggage as those actually used in the transit."

4 Hopkins v. Westcott, 6 Blatchf. 64.

55 Discordant Case.-Phelps v. R. Co. 19 J. Scott, N. S. 115, 19 C. B. N. S. 321.

business for which he is journeying. This is baggage.56 baggage. In this case, the "price book" was a thing of personal use and convenience, according to the wants of the particular class of travelers to which the passenger belonged, and was taken with him as well with reference to the immediate necessities of his journey, as to the ultimate purpose of it. The passenger is a traveling dentist; in his trunk are his dental instruments. These are baggage." 57 The passenger is a working

watchmaker and jeweler. In his trunk are the tools of his trade; the object of his journey, is to work at his trade at his destination. The tools are baggage ;58 and the same would be true of any journeyman mechanic, carrying his tools in his trunk.59 A is a surgeon in the army traveling with his troop, his surgical instrument sare baggage.60 A lady, traveling for pleasure, has in her truuks valuable laces which she wears at dinners, balls and receptions, at the different places she visits. These are baggage.61

It is not limited to what the passenger may require during a particular part of his journey, to which the line of one class of carriers extends, but embraces the whole of his journey.62 A, for an illustration, intending to go from Germany to California, buys a ticket from Liverpool to New York, on the defendants line. His baggage includes such things as are necessary, not alone between Liverpool and New York, but during the whole of his contemplated journey, including stoppages which he way make en route.&

University of Missouri.

63

JOHN D. LAWSON.

56 Gleason v. Trans. Co., 32 Wis. 85, 14 Am. Rep. 716.

57 Brock v. Gale, 14 Fła. 523, 14 Am. Rep. 358.

58 Kansas City, etc. R. Co. v. Morrison, 34 Kan. 502, 55 Am. Rep. 254.

59 Porter v. Hildebrand, 14 Pa. St. 112; Davis v. R. Co., 10 How. Pr. 330.

60 Hannibal, etc. R. Co. v. Swift, 12 Wall. 252. 61 New York Cent. R. Co. v. Fraloff, 10 Blatch. 16 100 U.S. 24.

62 Merrill v. Grinnell, 30 N. Y. 574.

63 Merrill v. Grinnell, 30 N. Y. 574.

STATUTE OF LIMITATIONS-NEW PROMISE.

WELLS V. HARGRAVE.

Supreme Court of Missouri, November 6, 1893.

A narrative, in a letter from one brother to another of a purchase of land by the writer from the other, more than ten years before, with the statement "my intentions are true and faithful but my abilities are rather cramped now, until can sell or make some money otherwise," is not a sufficient acknowledg ment or new promise to take the case out of the statute.

MACFARLANE, J.: This suit originated in the Probate Court of Putnam county, on a claim presented for allowance September 4, 1890, in which plaintiff charged, in substance, that on October 19, 1863, he sold and conveyed, by attorney, to defendant's intestate, 258 acres of land lying in Putnam county, for the sum of $1,290, for which he gave his two promissory notes for $645 each,one payable January 1, 1868, and the other January 1, 1869,-both bearing 10 per cent. interest, and also gave back a deed of trust on the land to secure them; that the notes had never been paid; that on the 5th day of September, 1880, deceased wrote to plaintiff, and thereby, in writing, acknowledged and promised to pay the same. The claim was rejected by the Probate Court, and on an appeal to the Circuit Court, and a retrial therein, judgment was rendered for defendant, and plaintiff appealed to this court.

* * *

Upon the trial in the Circuit Court, the sale of the land by plaintiff, and the execution of the deed, deed of trust, and notes were proved, dated, respectively, as charged in the claim. Plaintiff then read a letter from deceased to himself, in California, dated September 5, 1880, as follows: "Once more, after a long silence, I again write to you. I received your letter three weeks since, and think I received the other one. I was working at a sell out, kept waiting to see the result, and expected it soon; consequently, neglected to write when I should have wrote, but for no other motive or cause, and hope no harm to come of it. No sale yet, and now don't know as we will make the sale, but not certain. I am holding for $20 per acre, and offered $15, but not certain they would stand at that. I am not fully made up my mind what I will do. If I should sell, in that event may visit you, as the trip would soon be made by R R. I am not going to stop here, if I can do well by going away. I am improving the farm all I can. Makes it better to keep or better to sell. I am getting things in a fair shape to make some money on the farm, if I stay on it and have health and luck. Will make you a statement of what I got of you in land purchases. The amount was two hundred and ninety acres and seventy-six hundredths (298.76) acres. The price was five dollars per acre, or (1,548.05) fifteen hundred and forty-eight dollars and five cents, all to be due January, 1869. This statement

I make from recollection, and pretty sure correct, but I hold the original papers, and canceled them all in the Texas trade and trip. My intentions are true and faithful, but my abilities are rather cramped now, until can sell, or make some money otherwise." The testimony of a brother, sister, and brother-in-law of deceased was to the effect that deceased, just before his death, acknowledged to them, verbally, his indebtedness to plaintiff. The evidence showed further, that on the 18th day of May, 1867, plaintiff made to deceased a general power of attorney, and that on the 19th day of April, 1878, under this power of attorney, he entered satisfaction of the deed of trust. The notes were in possession of deceased at his death, among some other old papers, were marked "paid," and the name of the maker had been partly torn of. It appeared, also, that in 1878, about the date of the satisfaction of the deed of trust, deceased sold and conveyed this land in exchange for some Texas property, but it was afterward conveyed back to him. In addition to the 258 acres of land conveyed by plaintiff to deceased in Putnam county. he also conveyed to him 40 acres in Schuyler, county.

At request of defendant, the court gave to the jury the following instruction: "(3) The letter purporting to have been written by the deceased. James W. Wells, dated September 5, 1880, and which has been read in evidence by plaintiff, does not constitute a sufficient acknowledgment or promise to pay the notes sued on to take the case out of the statute of limitations." The court refused an instruction asked by plaintiff, declaring the writing sufficient. The defense was that the action was barred by the statute of limitations.

The question for decision is whether the letter read in evidence is a sufficient acknowledgment or promise to remove the bar of the statutes of limitation. The statute provides that "no acknowledgment or promise hereafter made shall be evidence of a new or continuing contract, whereby to take any case out of the operation of the provisions of this article, or deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing subscribed by the party chargeable thereby." Rev. St. 1889, § 6793. It is held, in construing this statute, that a written acknowledgment by the debtor, made to the creditor. that he owed the debt, and that it remained unpaid, was sufficient to remove the bar. A promise to pay will be implied. Elliott v. Leake, 5 Mo. 209; Chidsey v. Powell, 91 Mo. 626, 4 S. W. Rep. 446. The acknowledgment, in order to satisfy the statute, should contain an unqualified and direct admission of a present, subsisting debt. If the acknowledgment is accompanied with conditions or circumstances which repel or rebut the intention to pay, or of the expressions used be vague, equivocal, or ambiguous, leading to no. certain or determining conclusion, they will no

satisfy the requirements of the statute. Carr v. Hulburt, 41 Mo. 367; Chambers v. Rubey, 47 Mo. 99; Kirkbride v. Gash, 34 Mo. App. 258. A recent writer says: "Thus it will be seen that the admission of the debt will be sufficient, although the exact amount payable is disputed, or remains to be proved. But in all cases the acknowledgment must be in terms so distinct and unqualified that a promise to pay upon request, or at some fixed time, may reasonably be inferred from it. It must be clear and explicit, and not incumbered with any condition. It is not necessary that the promise should be express, provided the other necessary facts are shown. A clear, distinct, and unequivocal acknowledgment of a debt is sufficient." 2 Wood, Lim. § 68, p. 183.

The part of the letter relied on, which bears on the question in hand, introduces the subject by informing his brother of the subject about which he would make a statement. He says, "will make a statement of what I got of you in land purchases." He then proceeds as though merely giving requested information of a past transaction "The amount was 298.76 acres. The price was five dollars per acre, or $1,548.05, all to be due January, 1869. This statement I make from recollection, and pretty sure correct, but I hold the original papers, and canceled them all in the Texas trade and trip." So far there is nothing said that suggests the acknowledgment of a subsisting debt. It is a mere narration of a past transaction. It does, however, shows that the writer had previously purchased from plaintiff land for which he was to pay $1,548.05 in January, 1869. The writer does not acknowledge that the debt existed at the time of writing the letter. The fact that he held the original papers, which had been canceled, rather implied the satisfaction of the debt. Reading this narrative in connection with the concluding sentence, supposing both to relate to the same subject,-which is not at all clear, we do not think anything is added to the legal effect of the writing. The words, "my intentions are true and faithful," if intended to refer to the purchase price of the land, previously mentioned, might be construed into a present intention to pay the debt at some future time. We do not think this can be construed into a direct and unqualified admission that he still owed the debt. Had he stopped here, there would have been more doubt. A promise to pay the debt mentioned might be implied. The addition of the words, "but my abilities are rather cramped now, until can sell, or make some money otherwise," very clearly places a condition on any promise implied from the former statements. Taking the whole writing together, we think it is wanting in that direct, unambiguous, and unequivocal character of acknowledgment or promise necessary to satisfy the requirements of the statute. Judgment affirmed. All concur.

NOTE. The sufficiency of an acknowledgment and new promise to take a case out of the operation of the statute of limitations is a matter that de

pends so much upon the particular circumstances of each case that the rule applied in the principal case, viz: that the acknowledgment must be in terms so distinct and unqualified, that a promise to pay upon request, or at some future time, may be reasonably inferred from it; that it must be clear and explicit; unequivocal, and not incumbered with any condition, may be most practically illustrated by a consideration of cases in which it has been applied. For this purpose we will select some of the most recent decisions, which have not yet found their way into the text-books.

For instance: an indorsement on a note "This note and the one attached to it are all right, and I think I can pay one hundred dollars on them, any way next fall [signed] D. DAVIS," was held sufficient. Russell v. Davis, 53 N. W. Rep. 766. So an indorsement on a note "The within note shall not be outlawed" written by the maker on the back of the note, dated the day before the note would outlaw, and signed by him, was held sufficient to take the note out of the statute. Nye v. King's Estate, 94 Mich. 411, 54 N. W. Rep. 178, following Crane v. Abel, 67 Mich. 243. Again, a writing "Received of plaintiff the sum of $700 at various times to date, which is hereby acknowledged" was held sufficient as being an acknowledgment of present indebtedness, and not merely of having borrowed money at various times. Custy v. Donlan (Mass.), 34 N. E. Rep. 360. And a promise in writing to pay interest on the whole of a pre-existing debt, is an acknowledgment of the whole debt from which a promise to pay may be implied. Kelly v. Leachman, 33. Pac. Rep. 44. In a letter defendant said, in substance that the money was borrowed on his credit; that it was difficult for him to pay and that he was sorry he conld not comply with the wish of the holder for payment, and in conclusion: "How much will you take for the notes? I send you five pounds a month from the beginning of next May. Will you take forty pounds? The whole I will pay will be a loss to me; you must lose some." The court held this a sufficient acknowledgment. Cudd v. Jones, 63 Hun, 142, 17 N. Y. Supp. 582, distinguishing, Manchester v. Braedner, 107 N. Y. 346, and McNamee v. Tenny, 41 Barb. 495.

But where the evidence showed that the deceased "never disputed the correctness of the notes, and expressed his willingness to pay if he was able," and "admitted the debt and said to have new notes fixed, and he would fix it when he came in again," that "he would sign new notes, he would renew this indebtedness;" and the witness further said "I cannot tell why he did not sign new notes. He put it off from time to time," and it appeared that the bank held three notes, one of which was afterwards renewed, it was held insufficient to show an acknowledgment and new promise. Re Hartranfts Estate, 26 Atl. Rep. 104, 153 Pa. St. 530. So where defendant wrote plaintiff's attorney: "I have been informed that the rate of interest is only 7 per cent. and when they are ready to take that I will pay them the principal and interest; but everybody knows I own the land and that P's claim on it for money I borrowed of him was paid long ago. Still, I suppose I will have to pay it over again... Whenever they get the papers ready I will get the money," it was held that there was no sufficient promise. Phelan v. Fitzpatrick, 54 N. W. Rep. 614.

In an action against two of five makers of an accommodation note, which was barred by the statute of limitations, it appeared that the other makers paid their proportionate share after suit was brought.

There was evidence that one of the defendants said after the note was barred "he was willing to pay his share and it should be paid. It all hung on" one of the makers who said "he wouldn't pay unless he was compelled by law to do so. He didn't say how much he would pay-and that the other defendant said that the note should have been paid long ago, and he was willing to pay his share, but said it was hard to pay lost money; that he would like to have it fixed up but it depended upon the others." The court held that the evidence was insufficient to toll the statute. Heany v. Schwartz, 155 Pa. St. 154. Where the debt being barred, the debtor wrote on the account "Dec. 1, 1888, will pay on this bill such amount as I can," it was held not to be an unqualified acknowledgment and that no promise could be implied. Boynton v. Moulton (Mass.), 34 N. E. Rep. 361. A letter written by an accommodation maker, after the statute had run, saying that he had expected the fall before to help the other maker pay some, but had failed for certain reasons; that he would help the other maker to pay some as soon as he could; and that the other maker would pay something as soon as he sold his horse, was held to contain no acknowledgment. Watkins v. Jones, 63 Hun, 106, distinguishing Anderson v. Sibley, 28 Hun, 17, and Manchester v. Braedner, 107 N. Y. 346.

cent purchaser without notice, and C is also estopped as to B.

Now if C recovers, and forecloses his lien as to A's interest, can D look alone to the warranty of A, when he has recieved a good title to one-half from B, or can he look to both A and B, when he had full notice of the extent of B's rights in the premises, knew that B had only one-half, and that one-half is decided to have fully vested in D. D would want to recover from both on the warranty as A was insolvent, and B was not.

STATUTORY LIEN UPON GRAIN FOR SERVICES. To the Editor of The Central Law Journal:

"Any person who shall do labor upon any farm or land in tilling the same or in sowing or harvesting or threshing any grain as laborer, contractor, or otherwise, or laboring upon or securing or assisting in securing or housing any crop or crops sown, raised or threshed thereon during the year in which said work or labor was done,such person shall have a lien upon all such crops as shall have been raised upon all or any of such land, for such work or labor." . . . Can a person who acts as cook, for a farmer, while heading and threshing his grain, have a lien upon the grain, for his services, under the above statute? Please cite authorities. R. G. B.

To the Editor of the Central Law Journal:

A has possession of a tract of land as tenant, of B, from whom he rented. C makes some claim to the land, and B desires to bring an action to quiet title. Under Section 2092 Rev. Stat. Mo. 1889, will an action by B against C, to quiet the title be considered by the court, or must B be in the possession of the premises himself, and not by tenant.

I cannot find any decisions of the courts, or the question discussed very clearly in the law books. Will some reader give his views through the JOURNAL, and cite authorities, as I am unable to satisfy my mind.

WARRANTY DEED.

To the Editor of the Central Law Journal:

There is a question of law I would like to submit for your consideration, as follows: A and B are partners in a certain business, and each own an undivided half interest in the real estate, consisting of the house, and two lots in the town in which the business is conducted. The partners have some trouble, and cannot settle outside of the courts, and B is successful in the trial of the cause, and in order to settle the matter with as little loss as possible A and B agree to sell to D who was A's attorney, and was fully informed as to everything connected with the partnership affairs, and knew that B had only an undivided half interest in the property. In conformity with their agreement A and B transfer to D, by deed of general warranty, and afterwards C who was formerly a partner of A's claims an equitable lien on the whole of the property conveyed to D, and sues to foreclose. D (A's attorney, and the purchaser) makes both A and B parties on their warranty. B was really an inno

JETSAM AND FLOTSAM.

INSURANCE ON ELECTRIC PLANT.

Where fire insurance is obtained on an electric plant, as in Lynn Gas and Electric Co. v. Meridan Fire Ins. Co. (Mass.), 33 N. E. Rep. 690, a question may arise as to what is to be considered the proximate cause of a loss. The plaintiffs had taken out a fire policy on their buildings, machinery, dynamos, etc. By reason of a fire in the tower of the building, parts of the apparatus which are normally separated, were brought into contact, producing a "short circuit." This operates to cause an excessive current in the wires from the dynamos, which therefore require a much larger amount of power to be executed by the engines, in order to drive them. In this instance the excess of current caused, was so great that the engines were unable to supply the extra power required to drive the dynamos. Because of their momentum, the dynamos could not stop, and the strain being communicated through the belting to distant parts of the machinery, a rupture of these distant parts resulted. The defendants contended that the fire was only the remote cause of the loss, and that they were therefore not liable. But the court held that the effects that might be produced by fire in connection with machinery used for generating and transmitting strong currents of electricity, must have been within defendants' contemplation when they issued the policy, and that in this view the fire was the proximate cause.

Ordinarily the direct and proximate cause is the active cause that sets in motion a train of events which brings about a result without the intervention of any force operating and working actively from a new and independent source, as the negligence that causes shock which causes physical injury is the proximate cause of the physical injury. Univ. L. R., Nov., 1893, p. 10. So too where defendant put refuse from his mine in such position that a great flood washed it down upon the plaintiff's land, the defendant's act is held to be the proximate cause of the loss Elder v.

Lykens Val. Coal Co. (Pa.), 27 Atl. Rep. 545. This principle holds in actions on insurance policies as in other actions Ry. Co. v. Kellogg 94 U. S. 469.

But the law of proximate cause is also applied somewhat differently in actions on insurance policies. Not only is the cause insured against the proximate cause where it sets in motion a passive agent which produces the damage, as in the case at bar; but also when it is itself a mere passive agent operating under natural laws, and set in motion by some other effi. cient cause to which it is directly traceable. For instance although plaintiff's negligence may set the fire in motion, the fire is held to be the proximate cause of a resulting loss. Johnson v. Ins. Co., 4 Allen, 388; Waters v. Ins. Co., 11 Pet. 213; Ins. Co. v. Sherwood, 14 How. (U.S.) 351; Ins. Co. v. Tweed, 7 Wall. 44. For applications of the same principle to marine insurance see Walker v. Maitland, 5 B. and Ald. 171; Peters v. Ins. Co., 14 Pet. 99. And the same rule applies to life and accident insurance, where the negli gence of the insured exposes him to death or injury. —University Law Review.

BOOKS RECEIVED.

The Green Bag, an Entertaining Magazine for Lawyers. Edited by Horace W. Fuller. Volume V. Covering the year 1893. The Boston Book Company, Boston, Mass.

Remedies and Remedial Rights by the Civil Action according to the Reformed American Procedure. A Treatise adapted to use in all the States and Territories where that system prevails. By John Norton Pomeroy, LL.D. Author of "A Treatise on Equity Jurisprudence," etc. Third Edition by John Norton Pomeroy, Jr., A. M. one of the Editors of "Pomeroy's Equity Jurisprudence." Boston: Little, Brown and Company, 1894. American Railroad and Corporation Reports. Being a Collection of the Current Decisions of the Courts of Last Resort in the United States Pertaining to Law of Railroads, Private and Municicipal Corporations, including the Law of Insurance, Banking, Carriers, Telegraph and Telephone Companies, Building and Loan Associations, etc. Edited and Annotated by John Lewis, Author of "A Treatise on Eminent Domain in the United States." Volume VII. Chicago: E. B. Myers and Company, Law Publishers. 1893.

HUMORS OF THE LAW.

Judge-"What is your age?" Female witness hesitates. Judge-"Don't hesitate in answering the question. The longer you hesitate the older you'll be."

Mr. Justice Williams, in his mode of trying prisoners, was exceedingly fair to the accused, and once, when asked whether those whom he tried appeared to have any general characteristics, he replied: "They are just like other people; in fact, I often think that, but for different opportunities and other accidents, the prisoner and I might very well be in each other's places."

He was green as a pumpkin, and it showed very plainly on him when he appeared before the court, charged with stealing a mule.

"Have you an attorney?" asked the court.

"A laywer?"

1. ACCIDENT AT STATIONS Jumping from Moving Train--Contributory Negligence-Instructions on Neg. ligence-Care of Injury.-Whether it was contributory negligence for a passenger, at the direction of a brakeman, to jump off a train at a station, in the dark, while the train was moving, is a question for the jury, the speed of train not being such as to make apparent the danger of jumping from it.-GULF, C. & S. F. RY. Co. v. BROWN, Tex., 23 S. W. Rep. 618.

2. ADMINISTRATION-Claims-Statute of Limitations. -Code, § 2028, provides that all claims against the estate of a decedent, whether due or not due, shall be registered or be barred. Section 1814 provides that the clerk of the Chancery Court "may allow and register claims" against an estate. Section 2062 provides that the presentation of a claim, and having it registered, as required by law, shall stop the running of the general statute of limitations as to such claim: Held that, where the creditor procures his claim to be registered, the statute of limitations ceases to run, regardless of whether or not the proof of the claim is sufficient to make it a voucher to the personal representative.— ALLEN V. HILLMAN, Miss., 13 South. Rep. 871.