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it i» insufficient to establish a valid legal title to the land.
— Wett V. St. Paul (f N. P. Jty. Co., Minn., 41 N. W. Bep.

124. Trial — Exception. It Is a general rule of

practioe that a defendant, who does not Intlsft upon the
trial of an exception before the easels tried on the
merits, is presumed to have waived the exception. But
the rule admits of at least one exception, and that is
when the exception suggests a defect which the court
may notice ex propria motu, — Aehbey v. Atkhey, La., 5
South. Bep. 646.

128. TRUSTBB-LiabiUty. A trustee, acting strictly

within the line of bis duty, and exercising reasonable
care and dilligenoe, will not be held responsible for the
loss or depreciation of the trust fund, or the insolvency
or misconduct of any person who may have possessed
\t.—Key V, Hughet^ Xxr$.,W, Va., 9 8. B. Bep. 77.

124. Usury — Oonfiict of Law. A corporation of

this State having in New Tork made its promlseory
note, payable there, with indorsers, the contract being
at a larger rate of interest than the general statute of
such State peimitted : Held, that by force of another act
of New York, neither the corporation nor its indorsers
could set up the defense of usury. — Lane v, Wateon, N.
J.. 17 Atl. Bep. 117.

125. Ybndor and Ybndbb — Parol Oontracts. A

contract for the sale of lands cannot rest partly in
writing and partly in parol.— J7e/«2ey v. Swnutorm, Minn.,
41 N. W. Bep. 1029.

126. VBNUB-OlvU Oases. Under Oode Miss, i 1847,

as to venue of cases, an action by an administrator
against one to whom he has sold the personal property
of the estate for the purchase price, a bank, with which
the purchaser had deposited the funds for the payment
of the debt being also a defendant, can only be brought
in the county in which one of the defendants resides or
is found.— Pafe v. Taylor, Iflss , 5 South. Bep. 515.

127. Vbrdiot— Bemittitur.— ; — Trial court has right to
require plaintiff to remit excessive damages as a con-
dition of denying motion for new trial. — Mwrry v. Bull,
Wis., 41 N. W. Bep. 1010.

128. Wills- Bevocation by Birth of Child. Where

a testator devised his real estate to his wife for life,
**and after her death to the heirs of her body begotten,*'
a child bom to him after the execution of the will Is
not **provided for in the will,*' In the sense of i 5969,
Bev. St.— J7Aodef v, Weldy, Ohio, 20 N. E. Bep. 461.

129. Wills— Construction. A testatrix by her will

bequeathed the balance of her estate **to k>e divided
equal between my brothers and sisters, and the children
of deceased brothers and sisters, and the brothers and
sisters of Perry J. Brinegar, deceased, (husband of tea
tatrix,) and the children of the deceased brothers and
sisters,*' etc.: Held, that the distribution among the
children of the deceased brothers and sisters mentioned
should be made per tUrpea, and not per capita,— Hemry v.
Thotnai, Ind. 20 N. B. Bep. 619.

130. WILLS— Nuncupative. One of the formalities

required by the Civil Oode in the confection of a testa-
ment nuncupative in form, and received by public act,
is that the act must be received by a notary in the
presence of three witnesses residing In the place where
the will Is executed ; that is to say, in the parish where
the instrument is made. — Weick v, Hemne, La., 6 South.
Bep. 528.

ISI. Witness— Cross-examination. On a trial for

perjury, alleged to have been committed on a trial for
larceny, a witness having stated on re examination
that a hog killed and cleaned at the house of the alleged
thief was the stolen hog, was properly asked on cross-
examination, as to how he knew It was the stolen hog.
— Tate V. State, Ala., 5 South. Bep. 675.

182. Writs— Corporations. Under Cede Civil Proc.

Colo. § 40, providing that, in a suit against a corpora-
tion, service shall be made on the president, cashier,
treasurer, or general agent, a suit against a mining
company is not properly commenced by service on the
foaeman of one of its mines, who Is under the orders of,
and makes his reports to. Its general agent.— (Trsol Weat
Min. Co, V. Woodmat o/Aleton Biin, Co., Colo.,20 Pao. Bep.

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^Ibe ^twfxscl l^^pnr ^anxximX.

ST. LOUIS, MAT 24, 1889.


It seems that the United States Supreme
Court, which for a long time has been behind
with its docket, has of late made some
progress toward catching up with the busi-
ness. The chief justice of that court is re-
ported to have said, that the cases on the
docket are but two years and eight months
behind as compared with three years, which
heretofore has been the time. This is a step
in advance at least. But the delay is still too
great. The chief justice is also reported to
have suggested that the business before the
court would be expedited by the establish-
ment of an intermediate appellate court, as
proposed by the bill of Senator Davis. The
chief justice says that a similar plan was
tried in Illinois, and as a result in about two
years tiie Supreme Court of the State was
enabled to catch up with the business that had
accumulated on its docket.

The decision of the interstate commerce
commission, in the case of Heard against the
Georgia Railroad Company, will affect many
railroads throughout the South. The com-
plainant, a colored man, averred that ''he
was compelled to ride from Augusta to
Atlanta in a second-class, dirty smoking and
passenger coach, although he was traveling
on a first-class ticket." These averments
having been proved to tha satisfaction of the
commission, it was held that the railroad com-
pany had violated the law in that it did not
provide cars for both white and colored
passengers ''equal in comforts, accommoda-
tion and equipment without any discrimina-
tion where the same price is charged," and
an order was issued to the company directing
them in the future to furnish these accommo-
dations to passengers, irrespective of color.
If a railroad sells a colored man a first-class
ticket, which carries with it certain privileges,
it seems only fair that it should furnish him
with all such privileges, regardless of race or

Vol.. 28— No. 21.

other conditions. Although, as the commis-
sion stated, there are "occasionally embar-
rassments and difficulties arising to carriers
in the transportation of persons of different
race, social peculiarities and characteristics,"
we believe that the decision, in this case, will
commend itself to all fair-minded men, irre-
spective of political creed or opinion. The
decision does not necessarily imply that the
white and colored races must occupy the same
cars, but merely directs that if separate cars
be provided for each class there must be no
distinction made in the comfort, accommoda-
tion and equipments. The law. Federal and
State, will not tolerate the doctrine any more
in the transportation of persons than of prop-
erty, that one class is to be favored by the
carrier over another.

The United States District Court of Mary-
land, in a similar case, where a colored man
holding a first- class ticket on defendant's
steamboat claimed the right to eat at the table
with white people, and sued the owners of the
boat for damages in being forced to sit and
eat at another table, ruled very properly that
although the petitioner suffered some discom-
fort and humiliation, he was not discriminated
against in any manner which could be made
the ground of a legal action. When public
sentiment demands a separation of passen-
gers, it must be gratified to some extent.
While this sentiment prevails among the
traveling public, although in some instances
unreasonable and foolish, it cannot be said
that the carrier must be compelled to sacrifice
his business in order to combat it. Within
reasonable limits the carrier must be allowed
to manage his own affairs.

The views of the commission in the Heard
case on the subject of the duty required of
carriers in the protection of its passengers
against all disorderly conduct, and the special
duty required of conductors of trains in that
regard, are of interest and value, as contain-
ing a clear succinct statement of the law
pertaining to that duty. They cite Pitts-
burg, Ft. W. & C. Ry. Co. V. Hinds, 58 Pa.
St. 512 ; Pittsburg & Connellsville R. R. Co.
V. Pillow, 76 Pa. St. 513, and New Orleans,
St. L. & C. Ry. Co. V. Burk, 53 Miss. 200,

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No. 21

all of which establish the doctrine that the
undoubted power which is vested in railroad
officials to preserve peace and good order on
their trains, and if necessary for this purpose
to eject therefrom turbulent and disorderly
persons, carries with it the absolute duty to
exercise the power when called upon to do so
in a proper case by the passengers ; that a
failure to discharge this duty stands, to some
extent, upon the same footing as the omission
to perform any other official duty, and upon
the maxim, respondeat superior^ renders the
corporation liable. The commission holds
that the sound rules of law laid down by these
eminent courts, asserting as 'they do estab-
lished principles of the common law as to the
powers and duties of conductors and carriers,
when taken in connection with the provisions
of the act to regulate commerce, which forbid
unjust discrimination, or undue prejudice or
disadvantage to any person or persons while
being transported as passengers, are of vital
importance to all railway carriers engaged in
interstate commerce and the conductors of
their passenger trains, and give such passen-
gers rights to equal protection against dis-
orderly conduct which cannot be overlooked.


A FORCIBLE illustration of a contract void
as against public policy is found in Wood-
stock Iron Co. V. Richmond & D. Extension
Co., 9 S. C. Rep. 402, decided by the Su-
preme Court of the United States. There an
extension company which had a contract with
a railroad company to locate and construct
the road ''by the nearest, cheapest, and most
suitable route," between two points, for
$20,000 per mile, agreed to locate the road
through the town of A in consideration of
being paid a bonus by defendant. In locat-
ing the road through A it was necessary to
deflect the same from the nearest, cheapest,
and most natural route a distance of five
miles, at an additional cost of $100,000. It
was held that the contract between the exten-
sion company and defendant, being an agree-
ment by an employee to violate his obligation
to his employer, was against public policy,
and void. The court, Bradley and Miller
JJ., dissenting, say:

In tbe light of these facts, there can be but one an-
swer given to the question presented respecting the

contract between the iron company and the extension
company, namely, that it was a void contract, immoral
in its conception, and corrupting in its tendency. It
was a contract by an employee of a railroad company
with a third party, for a ccmsideration to be reoeived
from that third party, to violate its engagement with
its employer in the important bnsines^of locating and
constructing a railroad, and instead of selecting the
shortest, cheapest, and most suitable route, to locate
the road by a longer route, and thus impose an unnec-
essary and heavy burden upon its employer. The
proposition of the iron company, which was accepted,
was to pay the extension company for a breach of its
duty. In plain language, it was nothing less than the
offer of a bribe to the latter company to be faithless to
Its engagements, and to do with reference to the busi«
ness in which it was engaged what would amount to
little less than robbery of its employer. The transao-
Uon on the part of the iron company was none the less
offensive because of the threats of the extension com-
pany, made by its vice-president, who was also a di-
rector and stockholder of the railroad company, that,
if the land and money mentioned were not donated, it
would cause the road to be located away from Anniston
by the rival town of Oxford. The threats did not ex-
cuse, much less justify, the offer. We have thus far
considered the case as one only between private par-
ties, where an employee has ai^reed, for a money con-
sideration, to violate his obligation to his employer;
but there are other circumstances which add to the
offensiveness of the transaction. The business of the
extension company was one in which the public was
interested. Railroads are for many purposes public
highways. They are constructed for the convenience
of the public in the transportation of persons and
property. In their construction without unnecessary
length between designated points, in their having
proper accomodations, and in their charges for trans-
portation, the public is directly interested. Corpora-
tions, it is true, formed for their construction, are
private corporations, but, while their directors are
required to look to the interests of their stock-
holders, they must do so in subordination to and in
connection with the public interests, which they are
equally bound to respect and subserve. All arrange-
ments, therefore, by which directors oi stockholders
or other persons may acquire gain, by inducing those
corporations to disregard their duties to the public,
are illegal, and lead to unfair dealing, and, thus being
against public policy, will not be enforced by the
courts. In this case the extension company, to which
the duty of locating and constructing the railroad be-
tween its termini was intrusted, in agreeing, for a
consideration offered by a third party, to disregard that
duty, and locate and construct the road by a longer
route than was required, not only committed a wrong
upon the railroad company by thus imposing unnec-
essary burdens upon it, to meet which larger charges
for transportation might be called for, but also a wrong
upon the public. The case of Fuller v. Dame, IS Pick.
472, is instructive on this head. • • • The case
before us is much stronger than the one thus decided
by the Supreme Judicial Court of Massachusetts.
There tbe contract was held invaUd because made with
a stockholder of the company, by which he promised,
for a pecuniary, consideration, to endeavor to procure
the company to locate one of its deposs at a particular
place in the city. Here the contract was with an em-
ployee of the company to induce it to disregard its
obligations, and the principal person making that
contract on the part of the employee was a director
and stockholder of the company which was to be thus

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Vol. 28.



seriously affected. The principle, which is so clearly
and forcibly stated in Fuller v. Dame, has been applied
in numerous instances by the highest courts of differ-
ent States, to avoid contracts made to influence rail-
road companies in selecting their routes and locating
their depots and stations, by donations of land and
money to some of its directors or stockholders or
agents. Bestor v. Wathen, 60 111. 188. The doctrine
of tills case was approved by the Supreme Court of
Illinois in Linder v. Carpenter, 62 111. 809, and in Rail-
road Co. V. Mathers, 71 111. 692. ^olladay v. Patterson,
decided by the Supreme Court of Oregon (5 Or. 177),
is also in harmony with Fuller y. Dame and Bestor v.
Wathen, the court following a similar course of rea-
soning to that adopted in those cases. That doctrine
and reasoning are also often applied where the reward
or money consideration for taking a particular route
or establishing a station or depot at a particular place
is offered directly to the railroad company instead of
to its directors, stockholders, or agents. But we do
not refer to them, because there are exceptions or
qualifications in the application of the doctrine in such
cases requiring explanation, as where a subscription
is conditioned upon the adoption of a particular route,
or the construction of a station or depot at a particular
place. Railroad Co. v. Seely, 45 Mo. 212; Bank v.
Ayres, 12 Wis. 570; Plank-Road Co. v. Payne, 15 N.
Y. 583. There is no exception in any decision called
to our attention as to the characterof a contract, when,
for a pecuniary consideration, directors, stockholders,
or agents of a company undertake to influence its con-
duct in these matters. Indeed, the law is general that
agreement upon pecuniary considerations, or the
promise of them, to influence the conduct of officers
charged with duties affecting the public interest, or
with duties of a fiduciary character to private parties,
are against the true policy of the State, which is to se-
cure fidelity in the discharge of all such duties.
Agreements of that character introduce mercenary
•considerations to control the conduct of parties, instead
of considerations arising from the nature of their
-duties, and the most efficient way of discharging them.
They are therefore necessarily corrupt in their ten-
dencies. As we said in Tool Co. v. Norris, 2 Wall. 48,
'*that all agreements for pecuniary considerations to
•control the business operations of the government, or
the regular administration of Justice, or the appoint-
ments of public offices, or the ordinary course of leg-
islation, are void as against public policy, without
reference to the question whether improper means are
contemplated or used in their execution," so we say
of agreements like the one in this case. They are
against public policy, because of their corrupt ten-
dency, whether lawful or unlawful means are contem-
plated or used in carrying them into execution. **The
iaw," as said in that case, "looks to the general ten-
dency of such agreements, and it closes the door to
temptation by refusing them recognition in any of the
•courts of the country." Oscanyan v. Arms Co., 108 U.

The effect of the alteration of a note was
considered by the Supreme Court of New
Mexico in Ruby v. Talbott, 21 Pac. Rep. 72.
There a note was executed to the plaintiff,
who, being dissatisfied with its form, returned
it to the maker for the purpose of haying him
execute a different note; and the plaintiff
Alleged that, without his knowledge or con-

sent, the maker, in good faith, with the in-
tention of carrying out plaintiff's wishes, in-
stead of executing a new note, altered the old
one, by substituting a different amount, date,
and rate of interest. It was held that an in-
dorser who had not consented to such altera-
tion was discharged by it, and that a petition
in equity to have the ' note restored to its
original form was properly dismissed, as to
such indorser. Long, C. J., dissented in a
very exhaustive opinion, taking the position
that the alteration did not invalidate plaintiff's
rights on the original note. The court says :

In Lubbering v. Eohlbrecher, 22 Mo. ; the court held
that where material alteration is made in a promissory
note by one unauthorized by and without the knowl-
edge or consent of the owner of such note, the note is
not thereby avoided as against such owner." The
words '*with interest from date," were added to the
note after its execution. In Evants v. Strode, 11 Ohio,
480, the court said: "Where an instrument, by a mis-
take of the parties as to the legal effect of the terms
used, fails to carry out their intention, relief may be
afforded in equity;" and that "a mistake of law may
be corrected in equity." In Langenberger v. Kroeger,
48 Cal. 147, the court held: '*If a person who has no
authority to do so, and who is not the agent for the
payee for that purpose, writes across the face of a
draft payable generally in money the words 'payable
in United States gold coin,' it is not such an alteration
of the draft as vitiates It." So, in the case of Bank v.
Emerson, 10 Paige, S59. Counsel for Talbott, the ap-
pellee, contends that as the alteration of the note was
made by one of the makers and the agent of the ap-
pellant, without the knowledge or consent of the ap-
pellee, it operated to discharge him from liability on
the note. The case of Wood v. Steele, 6 Wall. 80, was
an action upon a promissory note made by Steele and
Newson, bearing date October 11, 1858, payable to their
own order, one year from date, and indorsed by them
to Wood, the plaintiff. It appeared on the face of the
note that ''September" had been stricken out, and
"October 11th" substituted as the date. The court
said: "It was a rule of the common law, as far back
as the reign of Edward III., that a rasure in a deed
avoids it. The effect of alterations in deeds was con-
sidered in Pigot's Case, 11 Coke, 27, and most of the
authorities upon the subject down to that time were
referred to. In Master v. Miller, 4 Term R. 820, the
subject was elaborately examined with reference to
commercial paper. It was held that the established
rules apply to that class of securities as well as to
deeds. It is now settled in both English and American
Jurisprudence that a material alteration in any com-
mercial paper, without the consent of the party sought
to be charged, extinguishes his liability. • • • The
alteration of the date, whether it hasten or delay the
time of payment, has been uniformly held to be mate-
rial. The fact In this case that the alteration was made
before the note passed from the hands of Newson can-
not affect the result. He had no authority to change
the date. The grounds of the discharge in such cases
are obvious. The agreement is no longer the one into
which the defendant entered. Its identity is changed.
Another is substituted without his consent, and by a
party who had no authority to consent for him. There
is no longer the necessary concurrence of minds. * *

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* To prevent and punish such tampering, the law
does not permit the plaintiff to fall back upon the
contract as it was originally. In pursuance of a stem
but wise policy, it annuls the instrument as to the
party sought to be wronged. • * • The rules, that
where one of two innocent persons must suffer, he
who has put it in the power of another to do the wrong
must suffer the loss. • * • The defendant could no
more have prevented the alteration than he could have
prevented a complete fabrication, and he had as little
reaFon to anticipate one as the other. The law regards
the security after it is altered as an entire forgery
with respect to the parties who have not consented,
and, so far as they are concerned, deals with it ac-
cordingly,"— referring to the following cases: Good-
man v. Eastman, 4 N. H. 456; Waterman v. Yose, 43
Me. 504; Outhwaite v. Luntley, 4 Camp. 180; Bank v.
Russel,8 Yeates, 891; Mitchell v. Ringgold, 8 Har. &
J. 159; Stephens v. Graham, 7 Serg. & R. 509; Miller
V. Gilleland, 19 Pa. St. 119; Heffner v. Wenrlch, 82 Pa.
St. 428; Stout v. Cloud, 5 Litt. 207; Lisle v. Rogers, 18
B. Mon. 629. Story, in his Equity Jurisprudence (vol-
ume 1, $ 188), says: "It is a matter of regret that, in
the present state of the law, it is not practicable to
present in any more definite form the doctrine respect-
ing the effect of mistakes of law, or to clear the subject
from some obscurities and uncertainties which still
surround it. But it may be safely affirmed upon the
highest authority, as well as established doctrine, that
a mere naked mistake of law, unattended with any
such special circumstances as have been above sug-
gested, will furnish no ground tor the interposition of
a court of equity; and the present disposition of courts
of equity is to narrow, rather than to enlarge, the
operation of exceptions." Id. §§ 110, 111; Story, Cont.
§ 407. Though it may be difficult to reconcile these
conflicting decisions, it is believed, on the weight of
authority, that the alteration of the note was material;
and being done by one of the makers and by John
Borrodaile, -or one of them, without the consent of
Talbott, he was thereby discharged from liability on
the note.

The much disputed question as to the
right of a real estate broker to his commis-
sion, came before the Supreme Court of
Kansas in Lockwood v. Halsey, 21 Pac. Rep.
98. The court, after stating the question in
the case to be whether a real estate broker is
an insurer of the title where an exchange
of lands is made by him, says :

In other words, did Lockwood contract or agree that
the representations made by Graham or his agents in
relation to the land were true, or does the law impose

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 122 of 151)