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for setting aside such sale at the instance of interested parties. In some of the States the rule is adopted holding sales under such circumstances absolutely void, conveying no title to the purchaser. Klopp v. Witmoyer, 43 Penn. St. 219; Bennett's Branch Co. Appeal, 65 id. 242; Linnendoll v. Terhune, 14 Johns. 222; Sheldon v. Soper, id 352; Cresson v. Stout, 17 id. 116; Hermann on Ex., §§ 216, 217. Sales of goods which cannot be seen or examined by bidders or at once delivered to purchasers, must as a rule result in a sacrifice of the interests of defendants and creditors. Sales made by massing quantities of goods and of different sorts, must be attended with like results. Both practices must antagonize any policy for the protection of general creditors of the debtor against fraudulent sales under the forms of law. If a sheriff may, at his discretion, so conduct sales, general creditors are obviously put at the mercy of the debtor and a single creditor. Such sales are violative of well-recognized rules controlling the conduct of official sales; but as circumstances may, and sometimes do make exceptional cases, the error of the adjudications referred to is in holding sales obnoxious to these objections as absolutely void. If void, no title passes to the purchaser; and as title rises no higher than its source, innocent purchasers could be in no better condition; while in fact the courts protect innocent purchasers. The true rule is that the sales are voidable only by direct application, within reasonable time to the court whose process has beeu misused; or in equity, by those entitled to make the contest. Boylan v. Kelly. Opinion by Knapp, J.

MUNICIPAL CORPORATION-EMINENT DOMAIN-DEFINITION " OWNER"-MORTGAGEE NOT-STATUTE.-The charter of Elizabeth requires that in laying out and opening streets compensation must be made to the owner or owners of lands and real estate taken for the improvement. Held, that this does not require compensation to be made to mortgagees specifically; that the compensation is to include the value of all the interests burdened by the public easemeut, and is to be paid to the owner of the land if no other claimant intervenes, and if in any case, such owner ought not in equity to receive the whole, timely resort must be had to the court of chancery, which will see to the equitable distribution of the fund. See McIntyre v. Easton and Amboy R. Co., 11 C. E. Gr. 425; Wheeler v. Kirtland, 12 id. 534; Bright v. Platt, 5 Stew. Eq. 362; Astor v. Miller, 2 Paige, 68; S. C. (sub nom. Astor v. Hoyt), 5 Wend. 603. The term "owner," as applied to real estate, is undoubtedly one of variable meaning. Thus in contracts of insurance, it has received much latitude of interpretation, so as to embrace persons entitled to particular estates and equitable interests, where such construction was necessary to preserve the validity of the policy, or prevent the forfeiture of rights under it. May on Ins., § 285. Likewise in statutes providing compensation to owners for lands taken for public use, where the Constitution required that special interests should be paid for, similar scope has also necessarily been given to the language, in order to render the acts consistent with the fundamental law. Thus in Ellis v. Welch, 6 Mass. 246, and Parks v. Boston, 15 Pick. 198, it was held to include every person having a valuable vested interest in land, capable of being damuified by the laying out of a street, because a narrower construction would have infringed upon the Constitution of the Commonwealth. But in Watson v. New York Central R. Co., 47 N. Y. 157, where upon the same principle it was urged that the phrase "owners of land" should embrace judgment creditors of the legal owner, the court refused to construe it so broadly, because the remedies of such creditors against the land were supposed

to be subject to legislative supersedure, by the power of eminent domain, without compensation. In this case at bar the court applies the primary rule that in statutes and contracts words are to be received in their common acceptation. According to this acceptation, a mortgagee of land is not the owner, as has been frequently adjudged in this State. Wade v. Miller, 3 Vroom, 296; Shields v. Lozear, 5 id. 496; Kircher v. Schalk, 10 id. 335. Crane v. City of Elizabeth. Opinion by Dixon, J.

RECORD- UNRECORDED MORTGAGE VALID AS TO JUDGMENT CREDITOR WITH NOTICE.-If a judgment creditor have notice of a prior unregistered mortgage, it is of the same effect, as to him, as if it were registered. If as in this case, it be registered subsequent to the entry of judgment, such registration will relate back to the time of its execution and delivery, of which the judgment creditor had notice. Priest v. Rice, 1 Pick. 164; Jackson v. Van Valkenburgh, 8 Cow. 260; Jackson v. Winslow, 9 id. 13. There must be such actual notice, or fraud, to change the priority of the first registry under the statute. Where there is no fraud shown, the fact that the judgment creditor knew that a mortgage was intended and being prepared, will not deprive him of the right which a creditor has to secure a just debt by greater vigilance and promptness. Cushing v. Hurd, 4 Pick. 252; Warden v. Adams, 15 Mass. 233. After he knows of the execution of the mortgage, it is too late for him to begin his race of vigilance. Morris v. White. Opinion by Scudder, J.

SAVINGS BANK-BILL AGAINST DIRECTORS BY DEPOSITORS-JOINDER OF PARTIES.-Several depositors in a savings bank caunot join in a bill against the directors, on the ground that they were severally induced by the false publications of such directors to put their money in such institution, the same proving to be insolvent, such cause of complaint not being joint. Nor can such depositors proceed in their own right, without making the corporation a party, to call the directors to account for the loss of the capital of the bank by the neglects and misconduct of such officers, such bank being the person primarily injured by such cause. In Jones v. Garcia Del Rio, 1 T. & R. 297, some of the holders of scrip or shares of a loan which was to be secured by bonds of the Peruvian government, filed a bill in behalf of themselves and others against the defendants as the agents of such government on the ground of the alleged misrepresentations and fraud of such agents in obtaining such subscriptions. The prayer of the bill was to have the moneys thus paid returned. But Lord Eldon, on a motion to dissolve an injunction which had issued ou an ex parte application, declared "that the plaintiffs, if they had any demand at all, had each a demand at law, and each a several demand in equity; that they could not file a bill on behalf of themselves and the other holders of scrip, and as they were unable to do that, they could not, having three distinct demands, file one bill." See also Conway v. Halsey, 15 Vroom, 462. Chester v. Halliard. Opinion by Beasley, C. J.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.*

ADMINISTRATION--ADMINISTRATOR MAY NOT WAIVE STATUTE OF LIMITATION.-A Maine statute provides that no action against an administrator on a claim against the estate shall be maintained unless commenced within two years and six months after notice is given by him of his appointment. Held, that this * Appearing in 74 Maine Reports.

statute is a conclusive bar to and practical extinguishment of claims not prosecuted within the time limited; that an administrator cannot waive it, but is bound to plead it; that no promise on his part can revive a claim thus barred, or prevent its barring an action not commenced within the appointed time. Scott v. Hancock, 13 Mass. 162; Brown v. Anderson, id. 201; Thompson v. Brown, 16 id. 172; Emerson v. Thompson, id. 429; Heard v. Meader, 1 Me. 156; Manson v. Gardiner, 5 id. 108, 115; Parkman v. Osgood, 3 id. 17, 19; McLellan v. Lunt, 11 id. 150; Nowell v. Bragdon, 14 id. 324-5; Thurston v. Lowder, 47 id. 72, 76; Waltham Bank v. Wright, 8 Allen, 122; Bacon v. Pomeroy, 104 Mass. 585; Hodgdon v. White, 11 N. H. 208; Wood on Lim. 389, and cases in note 5; 3 Will. Ex. (6th Am. ed.) 1904, note q, 2061, note u, where the authorities in the different States are collected. In carrying out the logical consequences of this peremptory statute bar, it has been held that an action of debt, commenced after the lapse of the statutory limit, to revive a judgment recovered within it is barred. McLellan v. Lunt, 11 Me. 150; Pettengill v. Patterson, 39 id. 498; that a petition for a license to sell real estate on a claim barred, will not be granted, Nowell v. Nowell, 8 Me. 220; Lamson v. Schutt, 4 Allen, 359; that if granted, it is void, since no lien of the creditor would remain on the real estate, of which the creditor could avail himself. Aiken v. Morse, 104 Mass. 277; Tarbell v. Parker, 106 id. 347; that a levy under a judgment, recovered on an action commenced after the limited period, is void as to all persons except the administrator who suffered it. Thayer v. Hollis, Met. 369; Amoskeag Manfg. Co. v. Barnes, 48 N. H. 25, 29; that a sum paid by the administrator to satisfy a judgment thus recovered would not be allowed in his official account. Hodgdon V. White, 11 N. H. 216; that no disability of the claimant, as by infancy, during the period prescribed, will prevent his claim, if due and payable, from being barred. Hall v. Bumstead, 20 Pick. 2, 8; and finally it would seem that in the absence of any statutory provisions excusing the delay or new assets, no remedy exists for the claimant who has failed to avail himself

of his rights during the statute period, Whatever may

have been the reasons therefor. Packard v. Swallow, 29 Me. 458. Littlefield v. Eaton. Opinion by Virgin, J.

[Decided March 10, 1883.]

LIMITATIONS-ATTACHING CREDITOR-MAY SET UP. -Where a subsequent attaching creditor has obtained leave of court to defend the suit of a prior attaching creditor he may set up the statute of limitations as ground of defense. Sawyer v. Sawyer. Opinion by Walton, J.

[Decided March 24, 1883.]

TRUST-TRUST PROPERTY NOT ATTACHABLE FOR TRUSTEE'S DEBT-TRUSTEE MINGLING TRUST FUNDS WITH HIS OWN.-(1) It is a general rule in equity, that trust property is not liable to attachment for the debt of the trustee, even in cases where the land attached stands of record in the name of the trustee, and the attaching creditor has not, prior to his attachment, any knowledge or notice of the trust; equity will enjoin against the attachment. See Buffum v. Buffum, 49 Me. 108; Ayers v. Hewett, 19 id. 281; Warren v. Ireland, 29 id. 62; Carter v. Porter, 55 id. 337, 343; Stanley v. Perley, 5 id. 369; Emerson v. Littlefield, 12 id. 148; Woodward v. Sartwell, 129 Mass. 210. Says the court, in Williams v. Fullerton, 20 Vt. 346, "The general rule that trust property is not liable to be levied upon and sold for the debt of the trustee, will hardly be questioned by any one." The remarks by the same court in Hackett v. Callender, 32 Vt. 97, are valuable enough to be quoted. It is there said: "The is an obvious difference in the equities of a subsequent bona fide purchaser

of land without notice of a trust, and of a creditor who attaches to secure an antecedent debt. The purchaser advances his money to buy the land. He gives a new consideration. He parts with a new value upon the credit of the apparent record title. The attaching credit merely seeks to secure an old debt. He advances nothing upon the strength of the record title. He is not made worse by relying upon it. The omission of the real owner to record his deed has not been the means of depriving him of any value. It is for these reasons that courts generally have treated them as standing upon equities materially different." To the same effect see the following cases: Bostick v. Keizer, 4 J. J. Marsh. 597; Manley v. Hunt, 1 Ohio, 257; Vandermark v. Tucker, 21 Kan. 263; Plant v. Smythe, 45 Cal. 161; Ells v. Tousley, 1 Paige, 280; Padgett v. Lawrence, 10 id. 170; Moyer v. Hinman, 3 Ker. 180; Arnold v. Patrick,6 Paige,310; McCann v. Taylor, 10 Md. 418; Elliott v. Armstrong, 2 Blackf. 198; Baker v. Copenbarger, 15 Ill. 103; Davis v. Garrett, 3 Ired. 457; Piatt v. Oliver, 2 McLean, 267; Cox v. Milner, 23 Ill. 476; Savery v. Browning, 18 Iowa, 246; Reed v. Ownby, 44 Mo. 204. Drake Att. (6 ed.), § 234. Most of the English cases support the same view. Laughton v. Horton, 1 Hare, 549; Loge v. Lyseley, 4 Sim. 70. Among the effective decisions upon the subject-matter is Whitworth v. Gaugain, 3 Hare, 416. In that case Shadwell, V. C., draws his distinction between the right of the purchaser and that of the creditor: "In one case the party contracts for a specific thing-in the other he merely takes a judgment, that gives him nothing more than a right to that which belongs to his debtor." (2) The mere act, by a trustee, of mingling trust money with his own money, by depositing the different moneys in a bank in his individual name, with nothing done by the banker to distinguish the trust money from the individual money, does not necessarily prevent an identification of the trust fund. Equity will undertake to disentangle the accounts, and give to the cestui que trust the portion that belongs to him. If a trustee commingles trust money with money of his own, and afterward separates from common fund a proper portion of it as the property of the cesti que trust, and with such portion of the fund, purchases real estate in his own name, the trust becomes impressed upon and attaches to the money thus set aside and the real estate purchased with such money, A trustee need not purchase property with dollars received from the trust fund, nor give

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ane to the cestui que trust of the purchase, nor

make any delivery to him, in order to create a trust estate. If he uses or loses the trust fund, he may afterward, by some proceeding or act of his own, substitute his own money therefor, and the substituted money will be subject to the same trust that was imposed upon the money by the trustee used or lost. This doctrine has lately undergone a most exhaustive and masterly examination in England in the case of Knatchbull v. Hallett, L. R., 13 Chan. Div. 696. that case, in turn, and its doctrines have been elaborately considered and emphatically endorsed in the later case of National Bank v. Insurance Co., 104 U. S. 54. See also Van Allen v. American Bank, 52 N. Y. 1; Martin v. Funk, 75 id. 134; People v. Merchants and Mec. Bank, 78 id. 273; 1 Perry Trusts, § 105. Houghton v. Davenport. Opinion by Peters, J. [Decided April 17, 1883.]

FINANCIAL LAW.

And

BANK-LIMIT OF AUTHORITY OF CASHIER-RATIFICATION-EVIDENCE-STATUTE OF LIMITATION.-(1) The cashier of a bank, as such, has no power to accept a

note signed by two parties only, in payment and discharge of a note upon which another party was also bound with the two, so as to release such third party from his indebtedness to the bank. Such an act does not fall within the well-known range of powers and duties naturally and necessarily pertaining to the office of cashier. He cannot, virtute officii, release a surety upon a note even though the bank holds other security to which it might resort, nor make collateral contracts or agreements of any kind. But where a cashier does make such an agreement, and the president and directors afterward approve of it, such approval renders it the act of the bank. (2) In an action by a bank against an executor to recover on certain promissory notes to which his testator was a party, declarations made to the president of the bank, by the defendant, within three years before suit brought, that he was at all times ready and willing to pay the amount ascertained to be due to the plaintiff from his testator's estate; that after the bank had gotten out of the surviving partners of the firm of which his testator had been a member, all that it could, he would pay the balance of the indebtedness; that he, as executor, was liable for all that could not be gotten out of the surviving partners; that the claim was just, but that he did not want to pay it in his own wrong, or assume the responsibility of having to pay it over again to the heirs and representatives of his testator, amount to a sufficient acknowledgment of the debt to remove the bar of statute of limitations. Maryland Ct. of App., Feb. 1, 1883. Ecker v. First National Bank of New Windsor. Opinion by Miller, J. (59 Md. 291.)

BILL OF EXCHANGE LIABILITY OF DRAWER TO DRAWEE-INDORSEMENT BEFORE ACCEPTANCE.- (1) If the drawee of a bill of exchange is without funds of the drawer, and pays the bill, he is entitled to be reimbursed by the drawer; and if there are several drawers, part of whom are securities for the others, all are alike liable to reimburse the drawee in the absence of any understanding to the contrary. The principle is thus stated in Nelson v. Richardson, 4 Sneed, 307: The surety drawer of a bill of exchange becomes chargeable with every obligation and liability which the law imposes upon the principal, as well those that are implied by law as those that are expressed; and this is so in regard to all the parties, the drawee or acceptor no less than the payee indorsee or holder of the bill. When the drawee pays the bill without funds of the drawers, the relation between the parties is reversed; the drawee, instead of being a debtor, becomes the creditor of the drawer for the money advanced, and may recover the same of such surety drawer, not indeed upon the bill itself, but upon his implied promise to reimburse the drawee. To the same effect are Dickerson v. Turner, 15 Ind. 4; Swilley v. Lyon, 18 Ala. 552; see also Story, Bills, § 420; Daniel, Neg. Inst., § 95. (2) Where a bill of exchange is made payable to S., and at the time of its execution C. signs his name on the back, he becomes a party to the request upon the drawee to pay the bill; and in an action by the drawee to recover the amount paid in taking up the bill, C. is to be regarded as a drawer. Ohio Sup. Ct., Jan. Term, 1882. Church v. Swope. Opinion by White, J. (38 Ohio St. 493.)

PROMISSORY NOTE-ISSUED BY TOWN OFFICER.-In an action upon a note reading as follows: "For value received as treasurer of the town of Monmouth, I promise to pay D. M. Ross or order one hundred and sixty dollars in one year from date with interest. Wm. G. Brown, treasurer," it was not shown or claimed that the treasurer was authorized or had the permission of the town in its corporate capacity to issue the

note in its behalf. Held, that the note must be regarded as the note of Brown, and not the note of the town. Maine Sup. Jud. Ct., Feb. 8, 1883. Ross v. Brown. Opinion by Walton, J. (74 Me. 353.)

NEW BOOKS AND NEW EDITIONS.

BEST ON EVIDENCE.

The principles of the Law of Evidence with Elementary Rules for conducting the Examination and Cross-examination of Witnesses. By W. M.Best, A. M., LL. B. American Edition, from Seventh English edition. By Charles F. Chamberlayne. Boston: Soule & Bugbee. 1883. pp. 759. "A very able and instructive treatise on the Principles of Evidence," said the late Mr. Justice Willes, in Cooper v. Slade, 6 H. of L. Cas. 772. And that accomplished judge, in Regina v. Briggs, Dearsly & Bell, C. C. 102, characterized this as one of the best books on our laws. Vice Chancellor Stuart pronounced it “a very remarkable book." Marriott v. The Anchor Reversionary Co., 8 Jur. N. S. 52. See also the observations of Mr. Justice Willes in Hollingham v. Head, 4 C. B. N. S. 391; in Ex parte Fernandez, 10 C. B. N. S. 40, and in Manwaring's case, Dearsiey & Bell, C. C. 143. In England, Best on Evidence ranks with such legal classics as Williams on Executors, Jarman on Wills, and Lewis on Trusts. The book throughout displays a thorough acquaintance with the whole learning applicable to the subject.

The late Mr. Best was a thoroughly trained lawyer and an aecomplished reporter. The ten volumes of Best & Smith's Reports in the Queen's Bench are unsurpassed for finish and accuracy.

"The progress of our law," said Chief Justice Erle, "should be adapted to the interests of society; and the rules regulating the admissibility of evidence should be characterized by attending carefully to the interests of truth." Regina v. Rowton, Leigh. & Cave, C. C. 533. Modern legislation conforms to these remarks to their full extent. Many of the old rules of the law of evidence have been swept away, and are, save as a matter of historical interest, useless. These innovatious were strenuously resisted by the older members of the profession. The writer well remembers, for instance, the opposition which prevailed when the statute was passed allowing defendants in criminal cases to testify in their own behalf.

To edit a book of this class which deals exclusively with principles is a difficult task. To select the conflicting principles from the wilderness of the American reports and arrange and classify them, requires an editor of varied learning with the power to generalize and condense. In these respects Mr. Chamberlayne excels. His deductions are given in clear language and are fully supported by the authorities cited. Although this treatise contains an ingenious inquiry into the principles which should govern the determination of questions in the law of evidence, still the notes of this edition are such as to render the book of great value to the practitioner. The rules of evidence can be mastered in a comparatively short time; to apply them in actual practice requires great experience.

In that, the object of the publishers has been to prepare an edition in a handsome and convenient form, not too much incumbered with comments, nor too destitute of them, and comprehending such other advantages as the inquiries and research of the learned editor, who has prepared the work for the press, have suggested.

F. F. H.

The Albany Law Journal.

THERE

ALBANY, AUGUST 11, 1883.

CURRENT TOPICS.

HERE is no current topic of discussion, likely to be brought before the legal conventions this summer, of more importance than the relief of the United States Supreme Court. On this subject we are able to lay before our readers an important contribution in the form of some extracts from a letter from Mr. Clifford A. Hand, of New York, to Mr. Everett P. Wheeler, chairman of a committee appointed on this subject by the Bar Association of the city of New York, of the date of May 11, 1882, Mr. Hand having been a member of the committee, and prevented by absence from participating in the report, which was opposed to his own views. We have never been able to agree with Mr. Hand on codification, and it gives us pleasure to find that we are substantially in accord with him on the present subject. Mr. Hand says among other things: "The recently published report to the American Bar Association, signed by Messrs. Edward J. Phelps, William M. Evarts and others, is to my mind exceedingly able and convincing-certainly it presents weighty reasons to show the injustice and impolicy of walling in the National Supreme Court and excluding from its precincts all but the comparatively few wealthy suitors. The evil tendencies of such a measure upon the court itself and indeed upon our system of government are stated with force and clearness. I cannot but regret that our action is not in harmony with this report. The conclusions reached by Mr. Phelps and his associates might be reinforced by other suggestions, which are perhaps details of their general propositions rather than new propositions. The money test of jurisdiction is not merely an essentially unjust discrimination in favor of the richer suitor. Its natural

effect is to diminish the importance of the principle to be decided, in comparison with the pecuniary results of the decision. In other words, large amounts at stake will, to a greater or less degree, tend to withdraw the attention of both court and counsel from the clear ascertainment of, and strict adherence to rules of law as such. It is I believe the fact that many of the most famous decisions, of greatest value and stability as precedents, were rendered in cases where the amounts in controversy were not considerable. The creation of local appellate tribunals, shielded from review by exceptional pecuniary restraints upon appeal from them to the Supreme Court, is contrary to the spirit of the Constitution. The chief raison d'être of Federal Courts is to avoid provincialism in affairs properly of national cognizance. Yet what else than merely provincial tribunals would be or become such Appellate Courts, the mass of whose procedure could never be reexamined with a view either to correction of errors or to reconcilement to the procedure of other similar VOL. 28-No. 6.

tribunals? It would be more philosophical and perhaps better policy to abandon the Federal judiciary system or to remit the greater part of its jurisdiction to the State courts. Thereby at least one element of confusion and conflict of precedent would be eliminated. The Hudson River divides two judicial circuits of the United States. Let us suppose distinct tribunals, on either side of the river, each for itself building up year by year a body of precedents, in cases of admiralty and maritime jurisdiction, of general average and of whatsoever else concerns the commerce of the world, which crowds the port of New York. It is not an unnatural supposition that these precedents may fail to agree in particulars of greater or less moment. For example, a general average contribution, determined on the west side of the river, may differ materially in principle and result, from such a contribution upon the same vessel, cargo and voyage, if determined on the east side of the river. Yet it may well happen to be matter of pure chance, which jurisdiction shall entertain the case. It may also happen to be many years before an appealable case presents the opportunity for reconciling the conflict of precedent. Meanwhile the port of New York will gain unpleasant notoriety for the uncertainty and apparent inconsistency of the rules, applied there in the adjustment of its commerce with foreign nations. The like difficulties seem to be applicable to questions of copy-right, of letters patent for inventions, and of inter-State intercourse and in short to all controversies, which it was the intent of the Constitution to remove from subjection to local prejudices or peculiarities. If there is to be an intermediate Court of Appeals, taking the place in great measure of the Supreme Court, I am satisfied that it ought not to be subdivided and scattered about the country. arguments of convenience are not pertinent to a tribunal, before which there is no attendance of jurors or witnesses, and which is to be practically the last resort for the great majority of suitors in matters of national and international concern. Is

The

there after all any substantial difficulty in the way of the remedy which avoids these very serious objections? Granted that there can be but one Supreme Court. Yet it is confessed that Congress can ordain and establish inferior courts and regulate their exercise of judicial power, for the purposes and with the few exceptions specified by the Constitution. This very authority of Congress is invoked for the plan which you favor. I am unable to perceive why the end in view cannot be gained by a simple process. If there is doubt of the power to subdivide the Supreme Court as such, there can be no doubt of the power to create courts, for the hearing of certain classes of appeal, to be held at Washington and by part of the judges of the Supreme Court. The detail to them of judges and the terms and methods of hearing can be intrusted to the Supreme Court or readily prescribed and can be modified as experience shall dictate. And so with the kind of cases or question justifying a review before the full bench. In other words it seems to

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me to be by no means impracticable to distribute and relieve the heavy burdens, now resting upon the members of the Supreme Court, without either secluding that court and impairing its title to popular regard, or denationalizing the final determination of questions of national cognizance. It may well be that such a plan would involve an increase of the number of judges of the Supreme Court. But the increase would be slight in comparison with that contemplated by the plan of numerous separate Courts of Appeal. And while I am one of those who regard the packing of courts with political partisan, or with magistrates selected with chief reference to partisan considerations, as one of the infamies of the time, yet this is an evil equally incident to all the proposed measures and which cannot be remedied by preference of either over the other."

The case of Nevin v. Pullman Palace Car Co., 106 Ill. 222, to which we alluded briefly, 27 Alb. L. J. 303, deserves a more extended notice. The action was in case for refusing to permit the plaintiff to occupy a sleeping berth assigned to him and which he had offered to pay for. It was contended that the action should have been assumpsit, but the court held that it was well brought, observing among other things: "In what respect then does this company differ in its relation to the public, so far as the present inquiry is concerned, from an ordinary railway company? No difference has been pointed out by counsel, and we are confident none can be. Why then should not the same principles be held to apply to it that apply to common carriers, and others in like employments, in so far as their relation to the public is the same? To say there is no precedent for it, we have just seen, is not a sufficient answer. Indeed, it has ever been the boast of the common law, that by reason of its elasticity, it adjusts and moulds itself to meet the constant changes in the affairs of life, and that it never hesitates to apply old rules to new cases, when it is clear they come within the reasons or principles of such rules. The business of this company in running its elegant and commodious sleepers over various lines of railways has become one of the great industries and enterprises of the country, contributing, perhaps, as much, or more, than any one thing to the convenience and comfort of the traveling public. Indeed the running of these sleepers has become a business and social necessity. Such being the case, can it be maintained the law imposes no obligations or restrictions on this company in the discharge of its duties to the public? Or more accurately put, is it true this company owes no duties to the public except such as are due from one mere private person to another? Can it be possible that the common carrier, the ferryman, the innkeeper, and even the blacksmith on the roadside, are all, by reason of the public character of their business, by mere force of law, placed under special obligations and duties to the public which they are bound to observe in the

not.

*

exercise of their respective callings, while at the same time, this company is entirely relieved from the observance of all such duties and obligations which are not expressly contracted for? We think To so hold would be to unjustly discriminate between parties similarly situated, and make the law inconsistent with itself, to the great detriment of the public. If then this company owes any duties to the community by reason of its relation to the public, as we hold it does, manifestly one of them is, that it shall treat all persons whose patronage it has solicited, with fairness, and without unjust discrimination. When therefore a passenger, who under the rules of the company is entitled to a berth upon payment of the usual fare, and to whom no personal objection attaches, enters the company's sleeping car at a proper time for the purpose of procuring accommodations, and in an orderly and respectful manner applies for a berth, offering or tendering the customary price therefor, the company is bound to furnish it, provided it has a vacant one at its disposal. To require this of the company is merely exacting of it that which is clearly dictated by the plainest principles of justice and fair dealing. To construe the law otherwise might lead to great abuses and the grossest injustice, detrimental alike to public and private interests. * But outside of this view, of the soundness of which we have no doubt, the same result may be reached by a somewhat different process, though the principle perhaps is the same in both cases. Let us assume, then, for the purposes of the argument, the defendant owes to the public no common-law duties in the absence of any contract relating to its business. It would then follow, the defendant is under no obligation to the plaintiff, except such as grew out of the contract entered into between them. But it does not follow that all the duties growing out of the contract on either side must have been expressly stipulated for. On the contrary, nothing is better settled than that in many contracts, especially those which establish peculiar relations between the parties, as those of confidence and trust, the law silently annexes certain conditions, and imposes mutual obligations and duties, which are not all, in express terms, provided for in the contract, yet in contemplation of law they are nevertheless regarded as a part of the contract, and the non-performance of them may, in an action on the contract, be assigned as a breach thereof. But while assumpsit will certainly lie for a breach of these implied duties, it is equally well settled that case will lie also. * * * Now when we look at the contract between the plaintiff and defendant, the character of the business of the company, the subject-matter of the contract, the relations of the parties with respect to such subject-matter, and all the circumstances attending the transaction, can it be doubted for a moment that the contract falls within the same class of contracts as those between carrier and passenger, and the like!

* * *

Clearly not." And the court held that "for a breach of any of these implied duties, it is clear, as already shown, case is a concurrent remedy

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