Central Law Journal. ST. LOUIS, MO., JANUARY 26, 1894. Considerable dissatisfaction exists among practitioners in the Federal Courts embraced within the Eighth Judicial Circuit, on account of delay in the trial of causes, growing out of the fact that judges of the district court are compelled to serve on the bench of the United States Circuit Court of Appeals. In theory, at least, the latter court consists of the Supreme Court Justice assigned to that circuit (Justice Brewer) and the two circuit judges (Caldwell and Sanborn). As a matter of fact, however, the former seldom sits, and one of the district judges is usually assigned to sit with the circuit judges. For some time Judge Shiras of the Iowa district served in that way on the appeals bench. of the Latterly, however Judge Thayer Eastern Missouri District has acted as a member of the court. As a result, the business of the district and circuit courts for the Eastern District of Missouri has had little attention, to the annoyance of attorneys and damage to litigants. In fact the St. Louis Federal Courts have been practically without a judge for nearly a year and will be so for some time, unless relief can be obtained. The other district judges have been obliged to shift about as best they can and look after the work of the abandoned court, to the detriment of their own. The fact of the matter is, that there is urgent need for the appointment of an additional circuit judge for the eighth circuit. We understand that bills have been intro duced in both houses of congress, having that end in view. It provides that there be appointed for the eighth judicial circuit, by the President of the United States by and with the advice and consent of the Senate, in addition to present circuit judges, another circuit judge, who shall have the same qualifications and the same power and jurisdiction therein that the present circuit judges have under existing laws and who shall be entitled to the same compensation as the present circuit judges. This bill has in each house been referred to the judiciary committee and it is Vol, 38-No. 4. hoped by friends of the measure that an early and unanimous report in its favor will be made. The extent of the Eighth Federal Judicial Circuit not only as regards territory and population, but also in the amount of business before the Court of Appeals will surprise many and is a strong argument in favor of the appointment of an additional circuit judge. The circuit includes within its boundaries Missouri, Arkansas, Iowa, Minnesota, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Wyoming, Utah, Colorado and New Mexico. Their combined area is 1,021,085 square miles and their population 10,586,045-over one-third of the entire area of the United States and more than one-sixth of the entire population. No other circuit compares with it in size and its appellate business is greater than that of any other and more than twice as great as any other circuit except the second in which New York City is located. That circuit embraces New York, Vermont and Connecticut, and although the court of that circuit has less business than the eighth, it is provided with three regular circuit judges who sit all the time. The relative amount of business of the different Courts of Appeal will be best understood by the number of cases docketed in those courts as per a late report of the Attorney-General. According to that report there were forty in the first circuit, one hundred and ninety-six in the second, forty-two in the third, thirtyeight in the fourth, eighty-six in the fifth, seventy-seven in the sixth, seventy-nine in the seventh, two hundred and seven in the eighth, and seventy-eight in the ninth. It will thus be seen that there is more ground for the appointment of a third judge for this circuit than even for the second or New York circuit and it would be well for practitioners of the Eighth circuit to urge their congressional representatives to prompt action in the mat ter. A recent English case-Macdonald v. The National Review-is of peculiar interest and value to journalists and its lesson may not be wholly lost upon contributors to law journals. In that case the plaintiff, a Canadian journalist, sought to recover from the proprietors of the The National Re. 66 tion, modifying Coal Float v. City of Jeffersonville, 13 N. E. Rep. 115, 112 Ind. 15, and Railway Co. v. Harrington, 30 N. E. Rep. 37, 131 Ind. 426. Rev. St. 1881, §§ 3106, 3154, which empowers cities "to regulate and license all inns, taverns or other places used or kept for public entertainment; also, all shops, or other places kept for the sale of liquors to be used in and upon the view the price of an article which he had written and submitted to the editor's consideration, ex proprio motu, and which had been set up in type, sent to him for correction, and returned revised. The article was not published within what Mr. Macdonald deemed "a reasonable time;" he complained of its non-appearance, and got back the manuscript, with an implied refusal to insert it, by return of post. The plaintiff contended that by put-premises," and "to regulate all places where ting his manuscript into type and sending him a proof for revision the editor had in law "accepted" his article, and was bound to publish or pay for it within a reasonable time. The defendants, on the other hand, maintained and produced strong evidence to prove that this position was according to journalistic custom, untenable. But the judge agreed with the plaintiff and held that to print a manuscript and send the author a proof for correction is to exercise over it the dominium which constitutes an acceptance in law. It is quite evident that the learned judge who reached that conclusion was never a journalist. But if he is right and if, as the London Law Journal very properly says "an article, ultroneously written and sent to a journal, is accepted whenever the editor puts it in type, and must be published or paid for within what a court of law not endowed with journalistic instincts or guided by journalistic experience considers a reasonable time, we can only say that the difficulty which the free-lance or outside contributor at present finds in penetrating the charmed circle of journalistic success will be tenfold increased." NOTES OF RECENT DECISIONS. MUNICIPAL CORPORATIONS-POWERS-CONSTITUTIONAL LAW-ORDINANCE PROHIBITING SCREENS IN SALOONS.-The case of Champer v. City of Greencastle, 35 N. E. Rep. 14, decided by the Supreme Court of Indiana involves interesting questions of constitutional law as to the powers of municipal corporations. The holding is that unless the legislature has, in terms, conferred on a municipal corporation the power to pass ordinances relating to a particular subject, the courts may inquire into the reasonableness of an ordinance on such subject enacted under the general or incidental power of such corpora intoxicating liquors are sold to be used on the premises," and the general welfare clause, do not empower cities to pass ordinances prohibiting the use of screens or other obstructions to the view at the doors and windows of saloons, and the courts may inquire into the reasonableness of an ordinance of such character. An ordinance which forbids the erection or maintenance of door screens, window blinds, stained ground, colored, or darkened glass, at the doors, windows, or openings of any saloon, shop, or other place where intoxicating liquors are sold to be used on the premises, or of any obstruction of such doors, windows, or openings that will obscure or prevent a full view of the interior of such saloon, provided it is not to be so construed as to prevent saloon keepers from having the usual and ordinary shutters to their doors, is unreasonable and void. TRUSTS TRUSTS-EVIDENCE-RESULTING PURCHASE PRICE.-In Bourke v. Callanan, 35 N. E. Rep. 460, the Supreme Judicial Court of Massachusetts hold that an oral promise by defendant to purchase land of plaintiff at a foreclosure sale thereof, and to hold it for plaintiff's benefit, is insufficient to charge the land so purchased by defendant with a trust in plaintiff's favor. At the sale defendant bid $35,500 for the land. Two days after, he received a deed, and gave a mortgage thereon to secure his note for $33,000 of the price. On the same day he paid the balance, plaintiff furnishing $1,427 for that purpose. It was held insufficient to create a resulting trust in plaintiff's favor. Allen and Knowlton, JJ., dissent from the conclusions of the court. Holmes, J., for the court says: This is a bill in equity seeking to charge the defendants with a trust in respect of certain land formerly belonging to the plaintiff and his brother, as copartners, and purchased by the defendants at a forclosure sale. The only prayers are for an accounting, for rents and profits, and for a decree for a conveyance upon payment of whatever is due from the plaintiff to the defendants. One ground relied on is that, the plaintiff's brother having no beneficial interest in the land, and the plaintiff wishing to get a clear title to it, and therefore wishing a mortgage on it to be foreclosed, the defendant Callanan promised him to go to the sale, and to bid off the property for him. The answer to this is that the promise was not in writing, that the defendant has the legal title to the land, and that he is not to be charged with a trust on the ground of an oral promise. Pub. St. ch. 141, § 1; Emerson v. Galloupe, 158 Mass. 146, 32 N. E. Rep. 1118. The other ground relied on is that there was a resulting trust, because the defendant made the purchase with the plaintiff's money. The mortgage sale was on June 25, 1889, at which date the defendant bid $35,500. On June 27th he received his deed, and gave a mortgage back for $33,000. The mortgage note was signed by the defendant personally and alone. At the same time, as we understand the master's report, which is a little obscure on these points, the defendant paid over $2,034.60 in cash, the remaining $465.40 being retained by him until a later date. On the same June 27th the defendant received from the plaintiff $1,437, and no more. It is impossible, therefore, to say that the consideration actually was furnished by the plaintiff at the time of the purchase. Payment of part of the consideration is not enough, and the mere fact that the defendant had agreed to buy for the plaintiff will not convert a payment of his own money into a loan to the plaintiff, and thus indirectly create a resulting trust, in the mode which we are discussing, out of an oral agreement, which could not be allowed any direct effect except in the teeth of the statute. See McGowan v. McGowan, 14 Gray, 119, a case very like the present. In Olcott v. Bynum, 17 Wall. 44, 59, where the purchaser paid cash advanced by the plaintiff, and gave a mortgage for the residue of the purchase money, the cash not having been paid for any aliquot part, it was held that the principle of resulting trusts had no application, and that, if it did, it could have no application in respect to the sum for which the purchaser gave his own obligation. MeDonough v. O'Neil, 113 Mass. 92, was not intended to controvert or to qualify McGowan v. McGowan in any way. In that case the purchase was of an equity of redemption for cash, not of unincumbered land for cash and a mortgage back. The resulting trust was of the equity of redemption only. The defendant, it is true, made a new mortgage note, but not to the vendor Godfrey, or at his requirement, but to the former mortgagee, Clements, at his requirement. This mortgage had been paid off by the plaintiff's testator before the bill was brought. In the opinion of a majority of the court, the plaintiff is not entitled to a conveyance of the property. We are aware that by our construction of Pub. St. ch. 141, § 1, the statute of frauds may be made an instrument of fraud. But that always is true whenever the law prescribes a form for an obligation. The very meaning of the requirement is that a man relies at his peril on what purports to be such an obligation without that form. Bragg v. Danielson, 141 Mass. 195, 196, 4 N. E. 622; Parker v. Barker, 2 Metc. (Mass.) 423, 431. If the present case suggests the possibility that wrong may be accomplished through the forms of law, it equally suggests the danger which the statute was intended to meet. What might have been regarded by the defendant as a mere promise to resell to the plaintiff easily might have been interpreted by the plaintiff as the assumption of an agency. In fact, it is unlikely that the distinction between the two positions was thought of by the parties, even if they would have understood it if it had been presented to them. In either case, the defendant, in a popular sense, might be said to promise to buy the land for the plaintiff. CARRIERS OF PASSENGERS-COLLISION OF TRAINS-CONCURRENT NEGLIGENCE.-In Matthews v. Delaware L. & W. R. Co., decided by the Supreme Court of New Jersey it is held that one injured by a collision between a locomotive of a railroad company and a car (in which he was a passenger) of a street railway company may maintain a joint action against both companies if the collision was produced by the neglect of the railroad company to give notice of the approach of the locomotive, concurring with the neglect of the railway company to observe proper care in crossing the railroad track. Although such duties are diverse, and the neglect to perform each is separate and disconnected, yet, as the wrong-doing of one company unites with that of the other in causing injury, the tort is joint, and one or both tort-feasors may be sued. Magie, J., says: It is lastly contended in behalf of the railroad company that the verdict against it should be set aside, because there was no proof of joint negligence on the part of the two defendants. The claim is, as I understand from the argument, that these defendants cannot be jointly sued for an injury occasioned by such a collision, unless the neglect which caused the collision was of a joint duty owed by both defendants, and that, on failure of proof of a joint duty and joint neglect, neither defendant can be held. If this contention is sound, it is obvious that the declaration was demurrable, for it charged that the railroad company owed to plaintiff a duty to give notice of the passage of its trains across the tracks of the railway company, and that the railway company owed to him a duty to take precautions in carrying him across the tracks of the railroad company, and it averred that each company had neglected to perform the several duties thus charged, and that thereby the collision which injured plaintiff occurred. But the contention is wholly inadmissible, and the declaration would plainly have been good on demurrer. The error arises out of a misconception as to the nature of a joint tort. If two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the tort is joint, and upon well-settled principles each, any, or all of the tort-feasors may be held. But when each of two or more persons owe to another a separate duty, which each wrongfully neglects to perform, then, although the duties were diverse and disconnected, and the negligence of each was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint, and the tort-feasors are subject to a like liability. This doctrine was announced in this court by the chief justice in Newman v. Fowler, 37 N. J. Law, 89. The like doctrine was applied by the Court of Appeals in New York to a case identical with that under consideration. Colegrove v. Railroad Co., 20 N. Y. 492. That case has been mentioned with approval in Barrett v. Railroad Co., 45 N. Y. 628; Slater v. Mersereau, 64 N. Y. 138; Insurance Company v. Austin, 69 N. Y. 470. See, also, Cooper v. Transportation Co., 75 N. Y. 116. The same view is taken in other courts. Railroad Co. v. Schacklet, 105 Ill. 364; Transit Co. v. Schacklet, 119 Ill. 232, 10 N. E. Rep. 896; Village of Carterville v. Cook, 129 Ill. 152, 22 N. E. Rep. 14; Cuddy v. Horn, 46 Mich. 596, 10 N. W. Rep. 32. I have not discovered any dissent from this doctrine, except in Pennsylvania, the courts of which State, while admitting the general rule, make an exception of cases where the injured party was the passenger of a carrier whose negligence concurred with the negligence of another in producing the injury. The reason of this exception, however, is that those courts adhere to the doctrine of Thorogood v. Byran, 8 C. B. 115, which has always been repudiated in New Jersey, and is now expressly overruled in England. The Bernina, 12 Prob. Div. 58, 13 App. Cas. 1. The Pennsylvania cases are Lockhart v. Lichtenthaler, 46 Pa. St. 151; Borough of Carlisle v. Brisbane, 113 Pa. St. 544, 6 Atl. Rep. 372; Dean v. Railroad Co., 129 Pa. St. 520, 18 Atl. Rep. 718; Klauder v. McGrath, 35 Pa. St. 128; Railroad Co. v. Mahoney, 57 Pa. St. 187. The declaration therefore set out a good cause of action against two joint tort-feasors, and there can be no doubt that in such an action one defendant may be held liable alone if the proof justify it. The verdict against the railroad company should not be disturbed. ber's death, to submit the proofs of death to the board, and declared that with their indorsement and the approval of the president an assessment should be made: Held, that these provisions did not leave the making of an assessment, in case proper proofs of death were presented, to the mere discretion of the board. 5. The fact that a membership certificate in a mutual benefit society contains no promise to pay mortuary benefits does not relieve the society from the duty of paying the same where provisions to that effect are found in the constitution and by-laws, since they are considered as part of the membership certificate. 6. The first paragraph of a certain article of the constitution of a mutual benefit society provided that all claims against the society should be referred to the board of directors, and be paid by the secretary upon approval of a majority of the board, while the second paragraph declared that it should be the board's duty to examine all books and accounts of the society, know that its business is properly conducted, and "decide all points of dispute and questions of doubt that may arise; and their decision shall be final: Held, that the questions on which the directors' was to be final were those that might arise from examination of its accounts aed management of its business, and did not include the right to decide finally claims against the association for mortuary benefits. MUTUAL BENEFIT INSURANCE-ACTION ON POLICY-VENUE BY-LAWS.-The Supreme Court of Illinois in Railway Passenger & Freight Conductors Mut. Aid Ass'n v. Robinson, made some important rulings regarding mutual benefit societies organized under Illinois statutes some of which have application in other States. The points decided were as follows: 1. Rev. St. 1891, ch. 110, § 3, which declares that "the Circuit Court of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any fire or life insurance company," applies as well to suits in equity as to actions at law. 2. Said statutes applies to mutual benefit societies, although Rev. St. 1891, ch. 73, § 133, declares that such companies "shall not be deemed insurance companies, nor subject to the laws of this State relating thereto, but shall comply with all the requirements of this act," since the intent of the latter act is simply to exempt such companies from the duty of complying with the requirements of the general insurance law of the State governing the entire business of fire and life insurance, and to substitute therefor a code of rules applicable to such companies. 3. In an action against a mutual benefit society to recover for a death loss, an unsworn certificate of the doctor who attended the decedent in his last illness, to the effect that decedent contracted the disease of which he died before he joined the society is inadmissible as evidence of that fact, even though the certificate was inclosed with or attached to the proofs of death served on the society. 38 Ill. App. 111, affirmed. 4. The constitution of a mutual benefit society provided that mortuary assessments should be made only by authority of the board of directors, and the by-laws made it the duty of the secretary, in case of a mem DELIVERY IN DONATIONES MORTIS CAUSA. II. 4. Delivery to the Donee. 5. Delivery to Some One in Trust for the Donee. 7. Continuous Change of Possession. 8. Delivery by Delivering Means of Obtaining Possession. 9. Prior Possession and After-acquired Possession. 10. Time of Making Delivery. 11. Delivery Coupled with a Trust. 4. Delivery to the Donee.-To constitute a valid gift mortis causa, there must be a complete delivery to the donee and a retention of possession by him until the death of the donor;45 but it is not the possession of the donee so much as the delivery of the thing given by the donor that is material. 46 The intention to 44 Jones v. Deyer, 16 Ala. 221; Raymond v. Sellick, 10 Conn. 480; Dunbar v. Dunbar (Me.), 13 Atl. Rep. 578; Parcher v. Saco & Biddiford Sav. Bk. (Me.) 3 N. Eng. 239; Dickeschied v. Exchange Bk., 28 W. Va. 340; Henschel v. Maurer, 69 Wis. 576, 34 N. W. Rep. 926. On the 18th of October, 1832, A, who was sick, and died on the 1st of November, gave two watches to B. On the 22d of October he made a will giving the watches to B, in whose possession he had placed them." On the 29th A made a will giving all his property to C, and the court held that B was entitled to the watches. Nicholas v. Adams, 2 Whart. (Pa.) 17. 45 Dunbar v. Dunbar (Me.), 13 Atl. Rep. 578; Henschel v. Maurer, 69 Wis. 576, 34 N. W. Rep. 926. 46 Dickerschied v. Exchange Bk., 28 W. Va. 340 give is always a controlling element to be considered in this class of gifts the same as in gifts inter vivos. An intention to give is sufficiently manifest to constitute a valid gift causa mortis, from the fact that a person in extremis attempts to dispose of a portion or the whole of his property.47 However, it is not always necessary that there shall be a delivery to the donee and a retention of possession by him until the donor's death. Thus it is said in the case of Southerland v. Southerland,48 that a promissory note may pass as a gift causa mortis, without actual delivery to the donee, when such note is in the possession of a third party as trustee for the equitable owner. As to delivery to trustee for the donee, see the following subdivisions. 5. Delivery to some one in Trust for the Donee.-While it is true that the delivery of a gift mortis causa is indispensable to the validity of the donation, yet it is immaterial to such validity whether that delivery is made to the donee immediately, or to another in trust for him;49 but such a delivery to a third person in trust for the donee must be complete and pass the full possession to Parcher v. Saco & Biddiford Sav. Bk. (Me.), 3 N. Eng. Rep. 239. Thus where a person in extremis takes a package of bonds or other property from its place of security, and hands the same to another, saying that they or it is for him, this will be a valid gift mortis causa. See Vandor & Roach, 73 Çal. 61, 15 Pac. Rep. 354. In Darland v. Taylor, 52 Iowa, 503, the holder of certain notes destroyed them, saying she did not think she should live long, and did not want their maker to pay them; during her last sickness she said she had destroyed the notes, so that their maker would get the property for which they were given. The court held that there was a valid gift causa mortis of the amount of the notes. But in Basket v. Hassell, 107 U. S. 602; Bk. 27 L. Ed., where a certificate of deposit was indorsed: "Pay to Martin Basket, of Henderson, Ky., no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney," and delivered to the donee. The court held that it was not a valid donatio mortis causa, because it was to take effect only upon the death of the donor. 485 Bush. (Ky.) 591. Michener v. Dale, 23 Pa. St. 59; Kibly v. Godwin, 2 Del. Ch. 61; Caldwell v. Renfrew, 33 Vt. 213; Phipard v. Phipard, 55 Hun (N. Y.), 439, 29 N. Y. St. Rep. 294; 8 N. Y. Supp. 728; Connor v. Root, 11 Colo. 183, 17 Pac. Rep. 773; Shackleford v. Brown, 89 Mo. 546; Beales v. Crowley, 59 Cal. 665; Barclay's Estate, 11 Phila. (Pa.) 123; Price v. Boston Five Cent Sav. Bk., 129 Mass. 425, 37 Am. Rep. 371; Kemper v. Kemper, 1 Duv. (Ky.) 401; Brown v. Brown, 18 Conn. 410; Borneman v. Slidinger, 3 Shep. (Me.) 420; Wells v. Tucker, 3 Binn. (Pa.) 366; Moore v. Darton, 7 Eng. L. & Eq. 134. the thing given, 50 for where the direction is merely the expression of the wish or will of the party, and the possession is not coupled with a trust, a duty to perform in relation to the thing given, it will not be such a delivery as will constitute a good gift mortis causa. Thus where one, in expectation of death, instructs an attendant to take from a book a paper upon which is written his wishes as to the disposition of certain property, stating where it will be found, and that the statement is his will, what he wants done, and requests the attendant to take charge of the property, the transaction does not amount to such a delivery as will constitute a valid gift causa mortis.51 The Supreme Court of Colorado, in the case of Connor v. Root,52 say that where a certificate of deposit is delivered by a person during his illness, in anticipation of death, to another person for the use of a third, it is a valid gift causa mortis, and the title passes from the death of the donor, although the certificate, payable to the latter's order, was not indorsed by him; but in Thompson v. Dorsey,53 the Maryland Court of Chancery held invalid as a gift causa mortis the delivery by A to B, of a note against C, directing him to collect it, and apply the amount received for the benefit of D, and died some weeks afterwards. Where a delivery is made to a third person for the use of a donee, such third person must retain the 50 In Wilcox v. Matteson, 53 Wis. 23, 40 Am. Rep. 754, several hours before the death of W he stated to the nurse in attendance upon him, that his pocketbook was "under the bed, just under his shoulders," and requested her to "take it and give it to his wife when she comes." Nothing was done towards complying with the request until some hours after W's death, when his body was moved and the nurse took the pocket-book from the place described and handed it to another person to give to the widow of the deceased if she should come, and otherwise to be sent to her. The court held that this was not a valid gift mortis causa for want of sufficient delivery. The rule requiring actual delivery or its equivalent to give effect to a gift as a donatio mortis causa, was applied by the Supreme Judicial Court of Massachusetts in the case of McGrath v. Reynolds (116 Mass. 566) where one in expectation of death gave M a written instrument as follows: "I give to M, $5,758, to be divided as follows," etc., and handed to him two savings-bank books with orders for payment of the deposits, but added that the residue was in his trowser's pocket, turning in his bed and looking towards the closet where the trowsers were, and that E, the owner of the house, would give it to M. 51 Trenholm v. Morgan, 28 S. C. 268, 5 S. E. Rep. 721. 52 11 Colo. 183, 17 Pac. Rep. 773. 53 4 Md. Ch. Dec. 149. |