30. Equity-Injunction and Account-Obscure and Irregular Accounts-A bill for account and provisional injunction to prevent interference with partnership assets will lie at the suit of one partner, notwithstanding the accounts of the partnership are irregular, and the evidence concerning them is obscure and conflicting. Slobig's Appeal, S. C. Penn. May 3, 1886; 5 Atl. Rep. 670. 31. PLEADINGS.- Amendments · When AllowedStriking Out.-Where the filing of an amended pleading is necessary to enable a party to prove any cause of action or matter of defense in his case, it is error in the trial court to deny the application of such party to file such amended pleading at any time after the filing of a defective pleading, before or after trial. But otherwise where such amended pleading is not necessary to the admission of material testimony. Words in a pleading, other than the formal parts thereof, which are not necessary as the foundation of pertinent and proper testimony to prove the action or defense, or some part thereof, of the party filing such pleading, may be stricken out on motion at any time before the trial. Otherwise where such words are necessary as a foundation for such testimony. Hale v. Wigton, S. C. Neb., Sept. 8, 1886; 29 N. W. R., 177. 32. PRACTICE.- Withdrawing Exceptions - Motion for New Trial.-An agreement of parties, withdrawing a pending bill of exceptions and providing that judgment shall be rendered on the verdict, does not prevent the excepting party from availing himself of a motion for a new trial on the ground of newly-discovered evidence. Emery v. Mayberry, S. C. Maine, Aug. 5, 1886; 6 East. Rep., 625. 33. SALE.-Pleading - Article or Machinery to be Satisfactory-Discretion of Purchaser.-Where a purchaser of an article or machine is sued for the agreed price, it is a sufficient answer to the complaint that the thing to be delivered under the contract was to work satisfactorily to him, and that he refused to accept it, as he knew, upon investigation, that it would not work to his satisfaction. Exhaust, etc. Co. v. Chicago, etc. Co., S. C. Wis., May 15, 1886; 22 Rep., 389. 34. TRADE-MARK.-Where marks, such as arbitrary combinations of figures, indicating style or quality also indicate origin, they may be a subject of trade-mark and their use as such protected. The sight of a familiar symbol inducing one to purchase goods to which the symbol does not properly belong, to the injury of him who devised it to mark his own goods, is the gravamen of the law of trade-marks. A complainant in a suit to restrain the use of a trade-mark cannot maintain an exclusive right to the use of certain numbers which had been used by a third person and become known to the trade as applied to the same styles of goods before complainant used them. American, etc. Co. v. Anthony, etc. Co., S. J. C. Mass., July 3, 1886; 2 N. Eng. Rep., 630. 35. TRESPASS.-Quare Clausum-Measure of Damages. In trespass quare clausum for felling the defendant's trees across the line fence, and covering the plaintiff's land with brush, the measure of damages is not confined to the expense of removing the brush, nor is it limited to the value of the land incumbered. Hutchinson v. Parker, S. C. of N. H., July 30, 1886; 5 Atl. Rep., 659. 36. VENDOR AND VENDEE.-Vendor's Lien- How Created-How Waived-Vendor's Lien as Security for a Note-Title of Vendor.-A vendor's lien is given by law when one person sells land to another on a credit, and may be waived by such facts as show that the seller relies on other security, or relinquishes his right to the security which the law gives him; but the absence of knowledge that the law gives such security, or a mere secret intention not to claim it, does not affect the right. To prove that a vendor's lien exists to secure the payment of a note, it must appear that the vendor has a valid title to the land. Houston v. Dickson, S. C. Texas, June 14, 1886; 1 S. W. Rep., 375. 37. WAREHOUSEMAN.-Evidence.-The implied undertaking of a warehouseman is, not that he will at all events keep the goods safely, but that he will use reasonable and ordinary care and diligence in keeping them. In an action brought to recover damages caused to goods while stored in a warehouse, the burden of proof is upon the plaintiff to show that the damage was caused by the negligence of the warehouseman. Cass v. B. & L. R. R. Co., criticised. Willett v. Rich, S. J. C. Mass., July 6, 1886; 6 East. Rep., 660. QUERIES AND ANSWERS.* | Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.] QUERIES. 25. A., the owner of a newly erected building, leased the same to B. for one year. B., under arrangements with a gas company, had pipes laid connecting a portion of the building with the company's mains, and a gas meter put in; but also, without the knowledge or consent of either A. or the company, procured another pipe to be laid connecting other parts of the building with the company's main. During his term he used gas through all the pipes, but the pipe surreptitiously laid, passed the gas around the meter.. At the end of the term A. entered into possession and consumed the gas in all parts of the building. This has continued for more than a year. At the end of each month the company has regularly presented its bill for gas consumed by A., according to the meter, and all were paid by A. Both parties being ignorant of the fact that any gas, not registered by the meter, had been consumed, no payment has been made therefor. But the company, having now learned the facts, sues A. in assumpsit. Queries: Is A. liable? Does the law imply a promise when neither party, at the time, knew that the company was furnishing or that A. was using the gas? What, in this action, is the effect of the monthly settlements? If the form of the action be inappropriate, what kind of suit would be proper? Please give authorities. B. L. QUERIES ANSWERED. Query 38. [22 Cent. L. J. 334.]—A., B., C., D., & E. employ a lawyer, G., to render certain professional services. After the work is done, G., the lawyer, asks A., B., C., & D. for their joint and several note in payment. This they refused to give. But he urges and tells them that he will procure E's signature, and in no event shall they, A., B., C. & D., be liable for more than a fifth (1-5) each, of the whole amount. They pay the one-fifth each. E. never signs. In a suit by G., the lawyer, v. A., B., C. & D., for the other fifth, can they show the collateral agreement by oral evidence? I can find no cases exactly in point, the nearest being Miller v. Gambie, 4 Barb. 146; Ely v. Kilborn 5 Denio, 514; Ande v. Dixon, 6 Exch. 869. Please cite cases, or authorities. N. B. JONES. Athens, Ga. Answer. The inference from the latter part of the query and the citations is, that the note was signed, though it is stated that the parties refused to sign, and that the suit is on the note. The case cited of Miller v. Gambie seems to sustain the proposition. It is there decided that if a party signs a note upon condition that another person shall also sign it, he is not liable on it as between the original parties unless the condition is complied with. It has been held in a number of cases that if the delivery was conditional, that is, if the written instrument was not to take effect till the happening of a certain event, such as the signing by another party, the suit thereon may be defeated by showing that such event has not happened, the agreement being by parol. But evidence of a parol agreement to avoid a written instrument by a subsequent event is not admissible. Goddard v. Cutts, 11 Maine, 440; 2 Phil. Ev. (Cowan, Hill & Edwards, notes), notes 495 and 502. This seems to be approved in the cited case of Ely v. Kilborn, 5 Denio, 514. The consideration in such cases may always be examined into, and this is held to involve an examination of all the facts and circumstances attending the transaction, so far as the point of consideration is concerned. Bern hard v. Brunner, 4 Bos. 528. The terms on which a check was received were allowed to be shown by a letter written by the holder four days before the note was made. Denniston v. Bacon, 10 Johns. 198. In a recent case in Pennsylvania it is stated, that the admissibility of such a defence is "so well settled as to preclude discussion." Walker v. France, 22 Rep. 213. S. S. M. CORRESPONDENCE. In the sub-joined communication, a correspondent criticises the answer of S. S. M. to Query No. 43, of Volume 22. The question, with the answer, appears on page 312 of the current volume. Our correspondent says: "It seems to me that the answer of S. S. M. to Query 43 is not good. His statement of a general proposition of law is correct, but he fails to observe that the agreement to take a less sum than the face of the note, is based upon the ground of a partial failure or want of consideration. Here is an agreement as to the actual amount due, and not an agreement to take less than the amount due and owing." W. H. B. Lawrenceburg, Ind. To this S. S. M. replies as follows: "A claimed one amount and C's father alleged that a less amount was due. A. agreed to take the less amount. It then became a case of accord and satisfaction, which is defined as the settlement of a dispute or the satisfaction of a claim by an executed agreement between the party injuring and the party injured. Bull v. Bull, 43 Conn. 455; 6 Wait's Act. & Def. 408. The money was to be paid to A. in a few days, which was not done. So the satisfaction was not made, and A. was not bound by the accord (see authorities cited in answer), and was relegated to his original rights on the note. We cannot see, from the case stated, that A. consented that he was not entitled to the face of the note; on the contrary, he only consented to the terms proposed to avoid a law suit. The case seems to fall under all the rules applicable to an accord satisfaction." RECENT PUBLICATIONS. TACT IN COURT.-Containing sketches of cases won by by skill, wit, art, tact, courage and eloquence. With practical illustrations in letter of lawyers giving their best rules for winning cases. Third Revised Edition. By J. W. Donovan, Authors of "Modern Jury Trials," Trial Practice," and Trial Lawyers." Rochester, N. Y. Williamson & Higbie Laws Booksellers and Publishers, 1886. This little volume, now in its third edition, is well worthy of the favor it has met at the hands of the profession. There are more than sixty separate articles each one replete with that practical wisdom, and peculiarly shrewd hard sense for which the author, as most of our readers know, is so remarkable. Each of these several essays teaches at least one, and often many more lessons in the practical conduct of professional life which can be learned nowhere else, except in the costly and disastrous school of actual personal experience. And those lessons are taught in such a manner that no one who takes up the book can fail to read it, and no one who reads it can fail to remember much that will be of great service to him throughout his professional career. Mr. Donovan as might be supposed addresses himself chiefly to the young practitioner, but there are few men in the profession so old or so experienced that they cannot learn much from this unpretentious little volume. The articles are, from the necessity of the case and the character of the subject matter unconnected with each other, but each is complete in itself and none fail to teach in apt language the lessons it was intended to inculcate. Mr. Donovan's style is good, his anecdotes, which are frequent, are well told, and pertinent to the subject under discussion. "The cheerful sage when graver methods fail, Conceals the moral in a pleasing tale." JETSAM AND FLOTSAM. HE KNEW THE LAW-A Scotch cobbler, described briefly as a "notorious offender," has passed his life in a certain "Auld Licht" village without being converted. Last week a Farfar magistrate sentenced him to a fine of half a crown or twenty-four hours' imprisonment. If he chose the latter he would be taken to the jail at Perth. The cobbler communed with himself. "Then I'll go to Perth," he said; "I have business in the town at any rate." An official conveyed him by train to Perth, but when the prisoner reached the jail, he said that he would now pay the fine. The governor found that he would have to take it. "And now," said the cobbler, "I want my fare home." The governor demurred, made inquiries, and discovered that there was no alternative; the prisoner must be sent at public expence to the place he had been brought from. So our canny cobbler got the two shillings and eight and one-half pence, which represented his fare, did his business, and went home triumphant-two and onehalf pence and a railway ride better for his offence. ST. LOUIS, OCTOBER 15, 1886. CURRENT EVENTS. JURY TRIALS IN CIVIL CASES.-The ancient conservatism of the profession seems to be deserting it. Lawyers, no longer controlled by such cautious maxims as Stare decisis, quieta ne movere, and the like, have become as the Athenians of old, seekers for new things, and clamor for reforms, as well of the fundamental principles of the law, as of the most immaterial of its processes. We The Central Law Journal. said that it prolongs litigation. Concede that for a moment, and yet the answer is sufficient that, within reasonable limits, time is essential to the administration of justice. The most expeditious courts are those of semibarbarians. The Turkish Cadi, or the Chinese Mandarin, hears, decides, and executes judgment at a single sitting, very satisfactory, no doubt, to the prevailing party; but whether there is either law or justice in the ruling is altogether another matter. withdraw our concession, however, and say, that the only court in Christendom which has ever made itself a reproach, and a hissing, and a by-word among the nations of the earth, because of the excessive and inexcusable delays of its decisions, and consequent and absolute denial of justice, was a court in which no jury was ever empannelled. It will be found that in our country very little of the delays of justice, in civil cases, can fairly be attributed to mistrials, or new trials, or otherwise, to the juries; it can be much more properly charged to the laches of masters, referees, and receivers, on the equity side of the courts, and to crowded dockets which, in the appellate courts of most of the States, have become the rule, and are no longer exceptional. Among other time-honored institutions threatened by the hand of innovation is trial by jury, not, as yet, in criminal cases, but in those which involve merely property, money and character. It seems to be conceded by the reformers that the time has not yet come to withdraw, from him who is accused of felony, or even misdemeanor, such protection as has been supposed, for a thousand years, to be afforded by a jury of his peers. It is said, however, that the powerful and oppressive baron, and the greedy bishop, against whom, in old times, it served to protect the poor man's heritage, are now extinct, and that, so far as civil actions are concerned, trial by jury has outlived its usefulness. We do not, of course, propose to argue this question at length, the space at our command is wholly inadequate, even if we desired to do so. We suggest, however, a few considerations which have recently occurred to us. The arguments, against the present system, are chiefly drawn, ab inconvenienti, the most fallacious and inconclusive of all arguments. It is said, for example, that trial by jury is expensive. Suppose it is, but if, notwithstanding that fact, and considering all the circumstances, the history of the institution, and its present operation, it is to the interest of the people that it should be preserved, the expense should not be regarded, for if there is one thing, more than another, in all the affairs of men, which is worth the money it costs, it is the due, just and impartial administration of the law. It is further Vol. 23.-No. 16. Trial by jury was, in the Middle Ages, a safeguard for the private suitor against his political superiors, we have no use for it in that respect, having no political superiors; whether we need, or will need, it as a protection against our financial superiors, in the shape of concrete capital, is a question we will not discuss. It is sufficient, perhaps, to say that, having it, we should not part with it, for if we do, we can never recall it, however urgent may be our need. Upon the whole subject we think that any litigant who desires it, should have his case: tried by a jury, and that those States in which that is the rule have gone quite as far in that direction as policy justifies. THE PROGRESSIVE CAPACITY OF UNWRITTEN LAW. This is the title and subject of a lecture, delivered on the first day of October, 1886, before the Law Class of the University of Pennsylvania, by Professor Geo. Tucker Bispham. The learned professor demon strates that, for some centuries past, the unwritten or judge-made law has kept even pace with the general progress of the country, and that whenever, in the development of the better and higher conditions of modern society, there appeared a need for a new legal principle, or a new remedy, the courts were always ready with the new principle, or a new application of an old one. Thus, by the action of the courts alone, was developed the whole system of equity jurisprudence and practice, and the great body of commercial law. He says: "In glancing, therefore, over the whole field of Substantive Law, I think that we can plainly see that in many portions of it, at all events, unwritten law has been found not only quite capable of progress without any statutory aid, but that its progress has been of a practical and adaptive kind, and has always been ready to conform to any changes which have taken place in the social relations or business affairs of men." The inference from this line of reasoning would seem to be that the courts can well be trusted with the task of effecting all the reforms in the law, which have been so persistently sought by the advocates of a general code, or, as it has been styled, reducing the common law "to the form of a statute." We do not propose to go fully into that subject but merely to express two or three ideas that have occurred to us in this connection. The "progressive capacity of the unwritten law" is the precise quality which most strongly tends to authorize an attempt to reduce the whole body of the law to the form of a code or statute. Is not the unwritten law too progressive? Does it not multiply distinctions to such an extent as to justify an effort to consolidate them? Adjugded cases in a thousand volumes of reports bear witness to the industry of judges in making the law, for in effect it is making, not interpreting. Would it not be better to boil down, Consolidate and condense the law now SO diffused, so shifting and variable, into a solid body of distinct, definite and unambiguous precepts adapted to every phase of human affairs, and applicable to any possible emergency or combination of circumstances that can arise in the infinite variety of our political, social, domestic and industrial relations? Would it not be better to have such a code, and to make it so distinct and definite that it would need no interpretation, that it would explain itself? This is the ideal code; what the actual code would be, even if exploited by the greatest legal and legislative talent of the nation, might well be altogether a different matter. It might need interpretation from the very beginning, and substantial amendments before it had been six months in operation. A really good code would doubtless be an improvement upon the existing status, but such a compilation is rather to be desired than expected. The first work of the courts would be to expound the code, and to that end the infinite mass of ante-code precedents would be brought into requisition. and the most probable result would be that the uncertainty of the law, so much deprecated, would be rather increased than diminished. NOTES OF RECENT DECISIONS. IS AN INTENTION AN EXISTING FACT?-DECEIT-FRAUD-FALSE REPRESENTATION.-In a recent English case,' there is a somewhat new development of the law of deceit, false representations and fraud. The facts were that a joint stock company, limited, being in want of money, issued circulars asking subscriptions for debenture bonds to the amount of £25,000. The circulars stated the object of the company to be to enlarge its facilities for doing business, and, by diminishing expenses to increase its profits, and stated in detail how these desirable objects could be accomplished. The result showed that the true object of raising the money was to prop a failing concern, and tide over an emergency. In a few months after the plaintiff had taken the bonds and paid the money, the company failed and paid a very scanty dividend. The suit was brought to charge the directors personally, because in their circular they had made misrepresentations, whereby plaintiff had been induced to become a subscriber. The case turned upon two questions, first, whether the objects for which the money was required by the company were "existing facts," within the meaning of the phrase 1 Edgengton v. Fitzmaurice, 55 L. J. Rep. Chan. 650. The when applied to the action of deceit. second question was whether it was necessary that the statement should be the primary inducement to the plaintiff to part with his money, or whether it was enough that it should be one among many inducements. The court decided, without division of opinion, that the statement of the objects for which a loan was solicited, or, in other words, of the intention of the borrower, is a statement of an existing fact, Lord Justice Bowen adding: "The state of a man's mind is as much a fact, as the state of his digestion." The court also decides that it is enough that the misrepresenation complained of should be a contributory part of the inducement; it need not be the sole or main fact. The London Law Journal, commenting on this case, remarks: "The weakness of the decision consists in the fact that it is a question of pure common law decided after argument by equity counsel only, and by the judgment in the main of equity judges." After some discussion, however, it concludes: "On the whole, common lawyers may fairly accept this latest extension of the action of deceit." QUO WARRANTO-INFORMATION-BY WHOM AND UPON WHAT GROUNDS IT MUST BE FILED. -In a very recent case,2 the Supreme Judicial Court of Massachusetts has discussed the functions and operation of the writ of Quo Warranto, or of the nature thereof, and refused to apply that remedy to the relief of a private person upon whose relation the information was filed. The facts were that Kenney, finding the operations of the gas company in digging up the street and laying pipes, inconvenient to his business as a brewer, caused the information to be filed upon his relation by the Attorney General. The court held, that the plaintiff had mistaken his remedy, that the law will not accord the benefit of this extraordinary writ unless it shall appear that the desired relief cannot be obtained through ordinary processes. the general subject the court says: On "We have no doubt that the court has jur 2 Kenney v. Consumers' Gas Co., and Attorney General v. Same, Sept. 11, 1886, 8 N. East. Rep. 138. isdiction, in proper cases, to restrain acts 1 ke those now complained of, upon the information of the attorney general, either on behalf of the commonwealth, or at the relation of a private individual. But in determining whether a proper case has been made out, all the circumstances are to be looked at. In England, in cases like the present, where the court has refused to interfere by way of injunction, special significance has been attached to the circumstance that the informations were not brought in behalf of the public, but merely at the relation of parties privately interested, who might themselves have instituted legal proceedings if any special damage had been inflicted upon them. 4 In the former case, Lord Cranworth went so far as to say: 'I cannot but come to the conclusion that the attorney general and the public here are a mere fiction, and that the real parties concerned are only those that were parties to the first suit.' Page 313. This, however, is not a controlling consideration; and, if an information is brought, in cases where the principal interest involved is a private one, the introduction of a relator is proper, in order that he may be liable for costs. But, while not doubting that cases might exist in which the interposition of the court would be properly sought to restrain the digging up of streets, we see no occasion for such interference here. In a very recent 6 5 case it has been declared that 'the court will not interfere when the obstruction to the rights of the public is of such a character that it may with equal facility be removed by other constituted authorities and public officers. There must be a want of adequate, sufficient remedy, and the injury to public rights must be of a substantial character, and not a mere theoretical wrong. 997 By Pub. St. c. 106, § 77, it is provided 3 Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361; District Attorney v. Lynn & B. R. R., 16 Gray, 242. 4 Attorney General v. Sheffield Gas Consumers' Co., 3 De Gex, M. & G. 304; Attorney General v. Cambridge Consumers' Gas Co., 4 Ch. App. 71. 81, 82, 84, 87. 5 Attorney General v. Sheffield, etc., Co., Supra. 6 Pub. St. c. 189, § 19; 1 Daniell, Ch. Pr. (4th Amer. Ed. 1416. 7 Attorney General v. Metropolitan R. R., 125 Mass. 515, 516. |