The Central Law Journal.

ST. LOUIS, AUGUST 20, 1886.

CURRENT EVENTS.

LORD CHANCELLOR OF ENGLAND.-In the last number of thn Solicitor's Journal, of London, it is said that "there is a general feeling of regret, among lawyers, that the necessities of party government should so soon remove Lord Herschell from the Chancellorship." Then follows a very handsome and appreciative compliment to the ability and learning of the retiring judge. We fail to perceive, however, in this notice, nor have we elsewhere observed any expression of regret that the highest law officer of the Kingdom should hold his office at the mercy of the "necessities of party government," that he should go out of office with the party under whose auspices he came in.

The conservatism of the English people is nowhere more manifest than in the tenacity with which they cling to forms, laws, and customs, which have outlived their usefulness. There is no reason why the Lord Chancellor should be a political officer at all, or if there is, why the functions of the office should not be divided and vested in two officials, the political, who might well share the fate of his party, and the judicial, who should cease to be an anomaly, and hold his office like other judges by a life tenure.

This is a change rather to be desired than expected, for notwithstanding the many reforms of the nineteenth century, the nolumus leges Angliæ mutare is still too strong in the English heart to permit any change which has not been peremptorily demanded by urgent necessity or insistent public sentiment.

NATURALIZATION LAWS.-A contemporary suggests that it would be a wise measure to revise, amend, and strengthen our naturalization laws, in view of the disorderly conduct and destructive doctrines of the anarchists

and socialists, who are chiefly men of foreign birth. We do not see that the process indicated would mend the matter at all, for the Vol. 23.-No 8.

class of persons, proposed to be affected, scorn alike all political and social ties, and are equally dangerous, whether they are citizens or aliens. The naturalization laws are well enough, if they were properly enforced, but as long as the foreign vote is so largly a political factor, and aliens are naturalized in shoals upon the eve of every election, it is manifest that a proper enforcement of naturalization laws can hardly be expected. The law requires,1 that it must appear to the satisfaction of the court that the applicant is “a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. All this has become mere form. No means are used to satisfy the court on these points, and no court is satisfied judicially, or personally, or in any other respect, that the average applicant, who comes before him, knows anything about the Constitution of the United States, or its principles. The truth is, the privileges of citizenship have been too much cheapened by these mere pro forma proceedings, and would be more highly valued by our adopted citizens if they were less easily come by.

THE CALIFORNIA JUDICIARY.-In a recent number of this Journal,2 we called the attention of our readers to the extraordinary proceedings pending in the California Legislature against the Judges of the Supreme Court of that State. It now appears to have been discovered that two of the the obnoxious judges have, since their election, by means of disease become, now are and "for all time hereafter will be, totally in capacitated, by means of physical and mental infirmity, to discharge the duties of" the office. Such is the tenor, and effect of a petition to the California Legislature, signed by David S. Terry, which was duly referred, in each House, to a committee.

The charge is sufficiently broad to cover the case, for it includes the past, present and future, and implies in the petitioner, prophetic powers of a very high order, for nobody but a prophet could speak so positively

1 Rev. Stat. U. S. § 2165, sub. sec. 3. 2 23 Cent. L. J. 121.

for "all time hereafter." It is not a little remarkable, however, that the mental and physical incapacity of these judges, should now be brought to the front for the first time, as would seem to be the case. The Executive Committee of the State Irrigation Convention, while agitating actively for the removal of the judges, and admitting their uprightness, integrity and personal character, does not seem to have impugned their physical health or mental capacity; and the California Bar Asociation, while vigorously protesting against any change in the existing status, do not intimate that there have been made against the judges any charges of physical incapacitation or mental imbecility.

The whole affair is singularly discreditable to the State. The only substantial charge made against the judges seems to be that they decided the case, of Lux v. Haggin, according to the law, as they understood the law. All the other charges made against them, and the alleged imperfection of the judiciary system of the State, are manifestly afterthoughts which, but for the case of Lux v. Haggin, would probably have never been heard of. And the question arises: have the victors in Lux v. Haggin no rights which anybody is bound to respect? And if that case is to be regarded as res judicata, are other people, who hold the same rights, under like circumstances, to be deprived of those rights by the judgment of a court to be organized expressly and avowedly to decide against them? And if so, is such proceeding due process of law?

NOTES OF RECENT DECISIONS.

ABSOLUTE AND QUALIFIED PROPERTY-LESSOR AND LESSEE-FERE NATURE-NATURAL GAS.-The Supreme Court of West Virginia, in a recent case,' adjudicated a question relating to the legal status of a very peculiar style of property. The facts were, that the plaintiffs held the fee of certain lands in the oil regions of West Virginia. The defendants held, under the plaintiffs' grantor, a lease for fifteen years of the land in question, for

1 Wood etc. Co. v. West Virginia etc. Co., S. C. W. Va., June 27, 1886; 34 Pitts. Leg. Jour. 7.

the purpose (and for that only) of boring for oil and extracting it from the earth, being bound to pay a royalty in kind for the privilege. The defendants in due time "struck oil," but the well was quite indifferent and the supply of oil scanty, and required pumping to bring it to the surface. A strong stream of natural gas, however, issued from the well, and. this the lessees secured and utilized as fuel. The lessors regarded this gas as their property, demanded payment for the quantity used by the lessees, and filed a bill for an account and for payment. Their demand was sustained by the court below, but upon appeal, the Supreme Court reversed its decree and held that natural, or hydrocarbon gas, which issues by its own force from the earth, is not absolute property, but the subject of only qualified property.

There is, however, this qualification: if the gas did not, of its own force, issue from the well, the lessee could not, without the consent of the lessor, pump it from the well. It is not explained by the court, and it is a little hard to see, why the lessee should be permitted to catch and cage the fugitive æriform fluid, above the surface of the earth, and not below it, for the title of the lessor is the same to the space above the surface as to the bottom of the well. Cujus est solum, ejus est usque ad cœlum.

The court puts its ruling upon the ground that the gas in question is in the nature of air and water, and of animals fer naturæ; and therefore that the lessee is no more bound to pay for the gas that he burns, than for the air he breathes, the water he drinks, or the deer that he shoots upon the leased premises.

The court assumes, upon scientific authorities, that the supply of gas from wells of this description is inexhaustible, and infers that it "cannot be the subject of compensation for appropriation and waste, where the access is rightful." We do not see that the quantity of the gas which issues from the well is material. If the owner of the land has no title to the inexhaustable stream, why should he have a title to that which flows only for a hundred days. If the gas is feræ naturæ, the lessor can have no more property in it, whether there is little or much, than he can have in the wolf or the deer. They are cer

certainly exhaustible. The rule is stated by the court to be that, in a case in which a trespass is committed upon anything in which the owner has only a qualified property, as air, water, &c., no damage can be recovered, for the trespass is damnum absque injuria. And the same rule applies when no trespass is committed, and the lawful action of one party deprives another of his whole supply of such qualified property, as where one man digging a well on his own land drains the well of his neighbor.2

BILL TO QUIET TITLE-EXECUTION SALE OF LAND-SHERIFF'S RETURN AMENDMENT OFNOTICE BOUNDARIES EVIDENCE.-In recent case, the Supreme Court of Kansas has adjudicated several interesting points connected with the sale of real estate upon execution. The facts were, that Miss Hathaway had a judgment against the Blue Rapids Town Company, upon which execution was issued and levied by the sheriff upon a certain town lot, which was exposed to sale, after appraisement, and struck off to W. H. H. Freeman, who however refused to pay the amount of his bid. The sheriff returned the execution unsatisfied. At the next term of the court the execution plaintiff showed that Freeman's bid was for her, and the sheriff was required to amend his return, she paid the difference and received a sheriff's deed for the land. Of all this, the execution defendant had no previous notice, and subsequently sold its interest in the property to the grantors of the present defendant. This suit was brought by the grantees of Miss Hathaway, to quiet title, against the defendant claiming by mesne conveyances under the Blue Rapids Town Company.

The court held that the sheriff's amendment of his return, although he resisted the application, and made it under the order of the court, was regular and obligatory on all concerned; that the proceeding was one between the officer and the court, is ex parte in its very nature, and that no one has an absolute right to notice of it; that the amended

return, being made under the same sanction and responsibility as the original, becomes the return in the case, and cannot be questioned collaterally by the parties to the action or their privies.1

There are cases, however, in which notice to amend a sheriff's return must be given, as when a long time has passed after the return was made, or where the case has been stricken from the docket, or where a return has been made upon an execution which shows that it has been satisfied, and the amendment. would restore the liability of the defendant.5 Unless some such circumstances exist, no notice is necessary. The court says: "The parties are deemed to be in court until the sale is confirmed." But in this case, it may be observed, the original return of the sheriff showed no sale to confirm. On the contrary, after stating Freeman's bid and his failure to pay, the sheriff returns the lot "not sold for want of good and sufficient bids." We think that just here there is a "missing link" in the chain of the court's reasoning. As, however, the defendants did not buy upon the faith of the original return, they were not entitled to notice, especially as it appeared by the process, that the lot had been levied on, was in custodia legis and was not sold only for want of bidders. They were put upon inquiry by the very terms of the original return, and that of itself was equivalent to notice. And, of course, if the defendants came into the matter by purchase after the amendment had been made, a fortiori, they were not entitled to notice.6

The judgment of the court, however, might be rested on a still broader ground; that if a judgment and execution are undoubtedly valid, the sheriff's deed, based thereon, cannot be attacked collaterally by anyone, nor the proceedings impeached by strangers.7

4 Rickards v. Ladd' 6 Sawy. 40; Morris v. Trustees, 15 Ill. 269; Dunn v. Rogers, 43 Ill. 260; Wright's Appeal, 25 Penn. St. 373; Kitchen v. Remsky, 42 Mo. 427. 5 Coopwood v. Morgan, 34 Miss. 368; Thatcher v. Miller, 13 Mass. 271; Hovey v. Wait, 17 Pick. 197; O'Connor v. Wilson, 57 Ill. 226; Williams v. Doe, 9 Miss. 559.

6 Baker v. Binninger, 14 N. Y. 270.

7 Freeman on Executions, §§ 334, 339, 364, 365; Rorer on Judicial Sales, §§ 479, 480, 789, 1059: Rounsaville v Hazen, 33 Kan. 344; s. c., 6 Pac. R. 630; Cross v. Knox, 32 Kan. 725; s. C., Pac. R. 32; Pritchard v. Madren, 31 Kan. 38; s. c., 2 Pac. R. 691.

Another question of some interest was considered and decided by the court: i. e., whether, in the absence of evidence of a higher grade, it is competent to admit testimony of hearsay and reputation to establish boundaries and identity of land conveyed by a sheriff's deed. The lot in question was laid off, with many others, on a recorded plat

as No. 11. There were no monuments to mark its precise situation, and the court below admitted parol testimony of old residents to show where lot No. 11 was always reputed to be. And, for want of better or higher evidence, the Supreme Court held that this kind of evidence was admissible.

BIRTH OF A CHILD.-The Court of Appeals of Maryland have recently considered the question whether marriage and the birth of a child will operate as a revocation of a will.9 The testator, James Spriggs, made his will in the life-time of his first wife, giving his whole estate to her and to her childreu. After her death he contracted a second marriage, of which several children were the issue. Upon his death the will was offered for probate and rejected on the ground that the second marriage, and the birth of a second set of children, operated a revocation of the will. appellate court sustained the decision of the trial court.

The

There is no statute on the subject in Maryland, and the ruling is based wholly upon common law authorities. The rule of the common law is, that marriage and the birth of a child, after the execution of a will, revokes it, because it effects a total change in the situation of the testator's family.10 The rationale of the rule, however, does not seem to have been very easily or clearly settled by the authorities. Lord Mansfield thought," that it rested upon the presumption that the testa

8 Boardman v. Reed, 6 Pet. (U. S.) 328; Kenney v. Farnsworth, 17 Conn. 355; Harriman v. Brown, 8 Leigh, 697: Ralston v. Miller, 3 Rand. 44; Cox v. State, 41 Tex. 1; Conn. v. Penn., 1 Pet. C. C. 496.

9 Baldwin v. Spriggs, Ct. App. Md.. June 22, 1886; 5 Atl. Rep. 295.

10 Brush v. Wilkins, 4 Johns. Ch. 506; Christopher v. Christopher, (1771) 2 Dickins, 445; Spraage v. Stone, (1773) Ambler, 721; see also the later case of Marston v. Fox, (1838) 8 Add. & E. 14.

11 Brady v. Corbitt, 1778) 1 Doug. 31.

tor intended to revoke his will, and that it therefore followed that the presumption might be rebutted by parol evidence, "by every kind of evidence." Lord Kenyon, however, in a later case, 12 held that the rule was founded upon a different principle; that a tacit condition was annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator's family. This view was also taken by Lord Ellenborough,13 and at a much later date re-affirmed in Marston v. Fox.14 And that rule, so expressed, seems to control the whole subject. The fact that the testator afterwards acquires property has no bearing upon the question, for if the revocation depends upon the total change in the situation of the testator's family, that change takes place when the first child of the marriage is born, eo instanti the will is revoked and nothing occurring subsequently can reinstate it.

12 Doe v. Lancashire, (1792) 5 Durn. & E. 49. 13 Kenebel v. Scrafton, (1802) 2 East. 530. 14 Supra.

PERSONAL LIABILITIES OF BANK OFFICERS.

GENERAL OBSERVATIONS.

In general terms bank officers undertake for good faith and honesty, and ordinary diligence and pru dence, and are liable for the consequences of their fraud, misconduct, or gross negligence in the discharge of the business of their offices.2 They are usually not liable for anything less than gross negligence,s and are never liable for an error of judgment, unless the act is so grossly wrong as

1 United Society of Shakers v. Underwood, 9 Bush. 609; Graves v. Lebanon Nat. Bank, 10 Bush. 23; German Savings Bank v. Wulfekuhler, 19 Kan. 60; Paine v. Irwin, 59 How. Pr. 316; Williams v. McDonald, 37 N. J. Eq. 409; Bank v. St. John, 25 Ala. (N. S.) 566; Brannon v. Loring, S. C. Ky. 20 Cent. L. J. 57; Hauser v. Tate, 85 N. C. 81; State Bank v. Locke, 4 Dev. L. 529.

2 Chester v. Halliard, 34 N. J. Eq. 341; Brinkerhoff v. Bostwick, 88 N. Y. 52.

3 Brannon v. Loving, S. C. Ky. 20 Cent. L. J. 57; Mutual Building Fund & C. Sav. Bank v. Bossieux, 4 Hughes C. Ct. 387: Ackermann v. Halsey, 37 N. J. Eq. 356; Spering's Appeal, 71 Pa. St. 11; Gobold v. MobileBank, 11 Ala. 191.

to warrant the imputation of fraud or a want of the knowledge necessary for the performance of the duty assumed.1

These latter are the rules where the officer keeps within his authority and does not violate any law of the corporation, and where he is known to be such officer, and acts and contracts as such, without misrepresentation as to his power or other material matter. But bank officers are but agents of the corporation, and if they transcend or abuse their powers, or violate any law of the corporation, they are responsible to their principal," and are personally liable on contracts made beyond such limits, as are agents of an individual.6

So, too, where the officer does not make it known that he is such officer, and contracts personally; or where he misrepresents the authority he possesses, and thereby secures a contract between the corporation and another party, which for any reason cannot be enforced against it, the other party not knowing of such want of power, he becomes liable on the contract.8 And it does not matter that he misrepresents his power in good faith." But an officer will not incur this liability if the other party knew, or had equal means with the officer of knowing, that the act was beyond his powers; and, as observed in a former article, he is bound to take notice of such powers as are given or limited by statute, or the fundamental law of the corporation,10 and, according to some authorities, by the by-laws themselves."1

LIABILITIES OF THE DIRECTORS.

Generally. The liabilities of directors form no exception to the general rules above stated. It is their duty to use at any rate ordinary dili

4 Gobold v. Bank at Mobile, 11 Ala. 191.

6 Dustin v. Daniels, 4 Den. 299; First Nat. Bank of Sturgis v. Reed, 36 Mich. 263. And see Franklin Ins. Co. v. Jenkins, 3 Wend. 130.

6 First Nat. Bank v. Bennett, 33 Mich. 520.

7 Story on Agency, §§ 266, 147; Field on Corporations, § 210.

8 Field on Corporations, § 215.

9 Story on Agency, §§ 56, 264; Paly on Agency, by Lloyd, 201; Field on Corporations, 231; Walker v. Bank of New York, 9 N. Y. 582; Hauser v. Tate, 85 N. C. 81.

10 Bank of Augusta v. Earle, 13 Pet. 587.

11 Wild v. Bank of Passamaquoddy, 3 Mason, 505; State v. Commercial Bank, 6 S. & M. 218; North River Bank v. Aymor, 3 Hill, 262; Mechanics' Bank v. N. Y., etc., R. Co. 13 N. Y. 599. And see Field on Corporations, §§ 218, 219.

gence in conducting and in acquiring knowledge of the business of the bank. Failing in this, they become liable for the consequences, as well as for their fraudulent practices, and cannot be heard to say that they were not apprised of facts, the existence of which is shown by the books, accounts, and correspondence of the bank, or which, with the exercise of such diligence, might otherwise have been known. 12

Thus, where by their gross negligence or misconduct, they allow the funds of the bank to be lost or wasted, they are liable for the damages in an action by the bank,13 or its receiver,14 or in case the bank or receiver refuses to sue, or the receiver is a director, by a stockholder who has been compelled to contribute to the payment of the loss, 15 or a depositor who has suffered thereby.16

Must Have Accepted Office.-But to incur this liability, the office of director must, in general terms, have been accepted, or something must have been done or said by the person sought to be charged, that would reasonably lead to the belief that he was a director. 17 But the fact that the owners of a bank published, for more than four years, an advertisement containing the names of certain persons as directors, was held, in a Tennessee case, not to render them liable as such.18 The persons elected directors need not, however, have acted. 19

For Acts of Others-Good Faith and Ordinary Care and Prudence.-Where the liability of the directors for a breach of duty is joint, the innocence or dissent of one will not shield him ;20 but directors of an institu

12 United Society of Shakers v. Underwood, 9 Bush. 609; Graves v. Lebanon Nat. Bank, 10 Bush. 23; German Sav. Bank v. Wulfekuhler, 19 Kan. 60; Paine v. Irwin, 59 How. Pr. 316; Williams v. McDonald, 37 N. J. Eq. 409; Bank v. St. John, 25 Ala. (N. S.) 566. 13 Chester v. Halliard, 34 N. J. Eq. 341.

14 Brinkerhoff v. Bostwick, 88 N. Y. 52; Mutual Building Fund, etc., Sav. Bank v. Bossieux, 4 Hughes C. Ct. 387; Van Dyck v. McQuade, 45 N. Y. Super. Ct. 620.

15 Brinkerhoff v. Bostwick, supra; Nelson v. Burrows, 9 Abb. N. Cas. 280; Ackerman v. Halsey, 37 N. J. Eq. 356; 2 Atlantic Rep. 83; contra, Conway v. Halsey, 44 N. J. L. 462.

16 Chester v. Halliard, 34 N. J. Eq. 356; 2 Atlantic Rep. 83; Maisch v. Savings Fund, 5 Phila. 30.

17 Hume v. Commercial Bank, 9 Lea. 728.

18 Hume v. Commercial Bank, supra.

19 Ridenour v. Mayo, 40 O. S. 9.

20 Bank v. Darden, 18 Ga. 318.