Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

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right to make rates for interstate traffic, the
reasonableness of the rate is something which
cannot be proved by anything but actual ex-
perience, and that if the rates were unremun-
erative, the companies can then take action
against the commissioners.

The general position taken in these decis-
ions is undoubtedly sound. It is clearly in
harmony with the doctrine announced by
Chief Justice Waite as early as 1886 that the
power to regulate is not a power to destroy,
and limitation is not the equivalent of con-
fiscation. Under pretense of regulating fares
and freights the State cannot require a rail-
road company to carry persons and property
without reward ; neither can it do that which
in law amounts to a taking of private prop-
erty for public use without just compensation.


A SINGULAR phase of the question as to the
right of a carrier to eject a passenger came
before the United States circuit court in Pad-
dock V. Atchison, etc. R. Co., 37 Fed. Rep.
841, a case similar to that of ConneUy v.
Crescent City R. Co., 28 Cent, L. J. 256.

Here it appeared that a passenger on a rail-
road train was ejected by reason of the belief
that he had the small pox, though in fact, as
it afterwards appeared, he had simply the
measles. Judge Brewer in charging the jury

If a pasBODger breaks out with eniptfoDS, which the
best medical advice that can be and is obtained is un-
able to disclose whether they proceed from small pox;
and if, from any prior conduct of the plainUlI, or from
any statement be had made, there is a well grounded,
clear and honest belief tlmt small pox was developing
itself, then the officers of the company are Justified in
removing him from the train, although afterwards it
may turn out that they were mistaken. I do not mean
to say, of course, that anymore c^ess or surmise or
suspicion that it may be small pox would justify such
action; but when the advice of the best physicians at
hand is obtained, and the past history of the plalntUf,
as disclosed by himself, or as known to the officers of
the company, creates a weU grounded, a clear and
honest belief that that which is breaking out on the
passenger is a case of small pox, then they are justified
in acting upon that conviction as though it were small
pox. They are under no obligation to wait until the
disease has gone so far that the lives and the health of
all the other passengers become endangered. Of
course, in the exercise of this right and the discharge
of this duty for the protection of the health and safety
of the other passengers, they may not act wantonly, or
recklessly, or with disregard to the safety or comfort
of the passenger removed. Take another illustration :
Suppose a man becomes boisterous from drunkenness,
becomes quarrelsome, so as to endanger the lives of
passengers. It would be a very extreme case that
would Justify the conductor in putting him off the
train out on the prairie, and far from the conveniences
of a town or vilUage. But when the train reaches a
city or a stopping place where he could be taken care
of, the duty of the raUroad company is completed when
it puts such drunken and quarrelsome passenger off
the train. It is not its duty to go beyond that, for its
business is only that of a common carrier, and it is not
under any other obligation. And so, in this case, if
you should find all these things— if you should find
that the plaintiff was forcibly removed, and that he
was removed because these was, as indicated, a well
grounded belief that he was breaking out with the
small pox; and if there was no other reasonable way
of protecting the other passengers from danger, then
its duty was to put him off at some place where he
could find accommodations, or where there was rea*
Bonable ground to believe he could find accommoda-
tions. It could not stop out on the prairie and put him
off where there was only a hamlet or a single house,
where he could not possibly obtain medical attendance,
but it could put him off where there was every rea-
sonable ground to believe that he could procure medi-
cal attendance and ample accommodations; and, if it
there removed him without unnecessary force it has
discharged its full measure of duty.

The liability of a municipal corporation

for negligence does not extend to the case of

one confined in a city prison for disturbing

the peace who sustains injuries by reason of

I the bad condition of the prison or the n^li-

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Vol. 28.



gience of the officer in charge, according to
the Supreme Court of Kansas, in La Clef v.
City of Concordia, 21 Pac. Rep. 272. The
court says :

It has already been held In tbls State that counties
are not liable for injuries of this kind (Pfefferle y.
Board, 89 Kan. 482, 18 Pac. Rep. 506), and this seems
to be the doctrine universally held elsewhere. Wehn
Y. Gage Co., 5 Neb. 494t Growell v. Sonoma Co., 25
Cal. 818; Miller v. Iron Co., 29 Mo. 122; Waltham v.
Kemper, 55 111. 846; Brabham v. Supervisors, 54 Miss.
868; Winbigler v. Los Angeles, 45 Cal. 86; but it is
urged that a different rule prevails in respect to cities
and other public corporations, and that they are not
such political divisions of a State as to entitle them to
immunity from damages for Injuries such as com-
plained of. It is not claimed that there is any statute
making it the duty of a city of the third class, to which
class the defendant belongs, to keep and maintain
comfortable and safe city prisons, and no charter has
been shown requiring this duty of the defendant.
Where such duties are imposed by law upon munic-
ipal corporations, they then become liable when the
duty enjoined relates to some act in the doing of which
the city has some special interest apart from the public
generally. Sawyer v. Corse, 17 Grat. 280; Merrifield
v. Worcester, 110 Mass. 216; Emery v. Lowell, 104
Mass. 18. But, where such duties relate to acts which
In their nature are for the benefit of the public ab well
as the citizens of the city« then no responsibilty follows
that can be enforced by private action. Pfefferle v.
Board, 89 Kan. 482, 18 Pac. Rep. 506; Gould v. Topeka,
82 Kan. 485,4 Pac. Rep. 822; Wellington v. Gregson,
81 Kan. 99, 1 Pac. Rep. 258; BIgelow v. Randolph, 14
Gray, 541; Hill v. Boston, 122 Mass. 844; Eastman v.
Meredith, 86 N. H. 284; Hamilton Co. v. Mighels, 7
Ohio St. 109; Board v. Strader,18 N. J. Law, 121;
Finch v. Board, 80 Ohio St. 87; Flori v. St. Louis, 69
Mo. 841; College v. Cleveland, 12 Ohio St. 875. The
distinction between an act done by a city in a public
capacity and as a part of the political subdivisions of a
State, and an act done for its private advantage,
and relating to things in which the State at large has
no interest, is clearly defined and is well recognized.
See Society y. Philadelphia, Bl Pa. St. 185; Maxmillan
v. Mayor, etc., 62 N. Y. 160; Bailey v. Mayor, etc., 3
Hill, 581; In Hill V. Boston it was said: '*The exam-
ination of the authorities confirms us in the conclusion
that a duty which is imposed upon an incorporated
city, not by the terms of its charter, nor for the profit
of the corporation, pecuniarily or otherwise, but upon
the city as the representative and agent of the public,
and for the public benefit, and by a general law appli-
cable to all cities and towns in the commonwealth, and
a breach of which in the case of a town would give no
right of private action, is a duty owing to the public
alone, and a breach thereof by a city, as by a town, is
to be redressed by prosecutions in behalf of the public,
and will not support an action by an individual, even
if he sustains special damage thereby." This seems
to be the current of authority everywhere: that a city,
while acting as a political part of the State in sup-
pressing crime and immortality, and in the preserva-
tion of peace and good order, is not liable for its acts,
although negligently committed by the city or its

As to the effect of a violation, by a parti-
cep8 criininiSy of an agreement to testify in

behalf of the State, the Court of Appeals of
Texas, in Neely v. State, 11 S. W. Rep. 376

Having violated his agreement to testify in behalf of
the State, the defendant was not entitled to exemption
from prosecution by virtue of said agreement. It is
well settled that where a particevs criminU, for the
purpose of securing exemption from prosecution,
agrees to testify in behalf of the State against his ac-
complices in crime, and violates such agreement by
refusing to testify in good faith, fairly and fully, to
facts within his knowledge, he cannot claim the benefit
of such agreement, and may be prosecuted and con-
victed regardless thereof. 1 Bish. Crim. Proc. ( 1164;
1 Greenl. Ev. § 879; Rose. Crim. Ev. S§ 182, 188; Whart.
Cnm. Ev. §§ 443, 656; Holmes v. State, 20 Tex. App.
517. And the common-law authorities above cited
further lay it down that in such case the confession
made by the defendant under such agreement may be
used in evidence against him. See, also. Com. v.
Knapp. 10 Pick. 477, which holds the same doctrine.
But this court has held, and, we think, correctly, that
even in such case the confession is not admissible un-
less it was voluntarily and freely made, uninfluenced
by persuasion or compulsion, not induced by any
promise creating hope of benefit, or any threats cre-
ating fear of punishment. A promise, such, as will
render the confession inadmissible, must be positive,
and made or sanctioned by a person in authority, and
must be of such character as would be likely to influ-
ence the party to speak truthfully. And a confession
induced by the mere fear of legal punishment is not
thereby rendered inadmissible. Willson, Crim. St. (
2472. In this case it is evident that the confession was
induced by the hope of thereby securing immunity
from prosecution and punishment for the theft of
which defendant was accused. It was made upon the
positive promise of the district attorney that if the
defendant would testify to the matters stated in the
confession he would not be prosecuted. Defendant's
subsequent bad faith in refusing to so testify could
not per se render said confession admissible evidence
against him. It was not a voluntary confession,
within the meaning of the 4aw, and, not being volun-
tary, was inadmissible, upon the ground that he had
violated his agreement to testify. Womack v. State, 16
Tex. App. 178.

As to the admissibility of parol evidence to
explain latent ambiguity in a will, the Supreme
Court of Indiana, in Dougherty v. Rogers,
20 N. E. Rep. 779, hold that parol evidence
of surrounding circumstances and testator's
declarations is admissible in an action by an
administrator on notes executed to testator
by a legatee to show that the clause giving
defendant his legacy, reading: '*I will, de-
vise, and bequeath to P. R., the young man
I raised, in addition to what I have already
given him, the further sum of five hundred
dollars," referred to the sums represented by
the notes as the amount * 'already given."
The court (Berkshire, J., dissenting) says:

It has been said, with what we conceive to be com-
mendable accuracy, that "the points of inquiry under

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No. 23

a will may, for general purposes, be classed under
three heads: (1) The person Intended; (2) the thing
intended; and (8) the intention of the testator with
respect to each of them." Wig. Wills, 263. It may
often happen that persons or things, or the intention
of the testator respecting them, may seem to be suf-
ficiently defined by the terms of the will, and yet,
when the language employed, and the facts to which
it refers, are brought in contact with each other, the
language and facts are so inharmonious as to leave the
intention of the testator obscure. Thus, an ambiguity
arises, not upon the face of the will itself, but from
facts therein referred to, which are extrinsic to the
instrument. This, according to the maxim of Lord
Bacon, constitutes the very essence of a latent ambig-
uity, which he defines to be **that which seemeth
certain and without ambiguity, for anything that ap-
peareth on the deed or instrument; but there is some
collateral matter out of the deed that breed eth the
ambiguity." Hawliins v. Garland's Admr., 76 Va. 149.
"An ambiguity which arises not upon the words of the
will, deed, or other instrument, as looked at in them-
selves, but upon those words when' applied to the
object or to the subject which they describe," is a
latent ambiguity. 1 Amer. & Eng. Cyclop. 530, and
note. Whenever, therefore, in applying a will to the
objects or subjects therein referred to, extrinsic facts
appear which produce or develop a latent ambiguity
not apparent upon the face of the will itself, since the
ambiguity is disclosed by the introduction of extrinsic
facts, and the court may inquire into any other mate-
rial extrinsic fact or circumstance to which the will
certainly refers, as well as to the relation occupied by
the testator to those facts, to the end that a correct
interpretation of the language actually employed by
the testator in his will may be arrived at. Skinner v.
Harrison Tp., 116 Ind. 189; Black v. Richards, 95 Ind.
184; Cruse v. Cunningham, 79 Ind. 402; Atkinson's
Lessee v. Cummins, 9 How. 479; Patch v. White, 117
U. S. 210; Chambers v. Watson, 60 Iowa, 339; Powell
V. Biddle, 2 Dall. 70; Connolly v. Pardon, 1 Paige Ch.
291; Pickering v. Pickering, 50 N. H. 349;Tiltonv.
Society, 60 N. H. 377; Hinckley v. Thatcher, 139 Mass.
477; Morgan v. Burrows, 45 Wis. 211 ; Miller v. Travers,
8 Bing. 244; Hiscocks v. HIscocks, 5 M. & W. 362; Wig.
Wills, 142. It is therefore a fundamental error to as-
sume that a latent ambiguity such as will Justify the
admission of evidence of extrinsic facts can only arise
out of some obscurity in the terms employed in the
will. The purpose for which extrinsic evidence may
be legitimately admitted is not to add to or vary, or,
ordinarily, to explain, the literal meaning of the terms
of the will, nor to give effect to what may be supposed
to have been the unexpressed intention of the testator,
but to connect the instrument with the extrinsic facts
therein referred to, and to place the court, as nearly
as may be, in the situation occupied by the testator,
so that his intention may be determined from the
language of the instrument, as it is explained by the
extrinsic facts and circumstances. Sugar Co. v.
Whittin, 69 N. Y. 328. This brings us to a point where
the general principles above stated may be applied'to
the case under consideration. Looking at the will,
it is at once apparent that the object of the testator's
bounty, so far as the subjects here involved are con-
cerned, is the young man he had raised; that primarily
the Butiject of disposition was the further sum of $500;
and that the Intention of the testator respecting the
object and subject was that the young man he had
raised should receive a legacy of $500 in addition to
what he had theretofore given him. In effect, the tes-
tator declares by his will that at some time prior to

the date of its execution he had given Philo Rogers
money or property, to which his purpose was to add
the further sum of $500 as a legacy. The implication
that he had theretofore given the legatee a sum of
money is as plain and irristible as is the declaration
that a further sum was to be added to that already
given. As is, in effect, said in Parker v. Tootal, 11 H.
L. Cas. 143, implication may arise from a form of ex-
pression which necessarily i mplles something else, or
from a form of gift which cannot be rendered effect-
ual without implying something else. The present, in
our opinion, affords an apt example of such a case.

An interestiDg question as to the operation

of the statute of frauds arose in Seddon v.

Rosenbaum, 9 S. E. Rep. 326, decided by

the Court of Appeals of Virginia. There it

was held that a contract to sell certajn stock

at the end of three years, with an option to

the purchaser to call it at any time, may be

performed within a year, and is therefore not

within the statute prohibiting an action on an

agreement **not to be performed within a

year," unless it be in writing, etc. The

court says :

But it is insisted in this case by the defendant in
error that while the plaintiff could call the stock
within the year, by the terms of the agreement the
defendant could not, and that upon the option of the
plaintiff the agreement might be performed within the
year, but this the defendant could not do, and that the
agreement, so far as it was mutual, was beyond the
year, and came under the statute. The accepted doc-
trine in England upon the decided cases seems to be
that the words in the statute "not to be performed"
mean not to be performed "on either side,"— that is^
that an agreement does not come within the statute,
provided that all that is to be done by one of the par-
ties is to be done within a year; that is, that on that
side the contract is executed. This was first hinted at
in Bracegirdle v. Heald, 1 Barn. ^ Aid. 722, and then
distinctly ruled in Donellan v. Read, 3 Barn. & Adol.
899; Littledale, J., saying as to the contract not beins;
to be performed within a year: "We think that as the
contract was entirely executed on one side within a
year, and as it was the intention of the parties,
founded on a reasonable expectation, that it should
be so, the statute of frauds does not extend to such a
case." In that case there was no time fixed for the
performance by one party, but he performed within
the year; the other party, by the terms of the agree-
ment, was not to perform except at the expiration of
several years; he to pay an additional annual rent for
the remainder of the lease, of which several years
were unexpired. This was established as the prevail-
ing doctrine in England by the later case of Cherry
V. Heming, 4 Exch. 631. * • * • • • This rul-
ing has been approved and followed in many Ameri-
can cases, though not uniformally so. Holbrook ▼.
Armstrong, 1 Fair. 31; Bake v. Pope, 7 Ala. 161; John-
son V. Watoon, 1 Kelly, 848. This doctrine is thus
stated by Mr. Smith, (Smith, Cont 118:) "When,
however, all that is to be done by one party, as the
consideration for what is to be done by the other,
actually is done by the one within the year, the stat-
ute does not prevent that party suing the other for
the non -performance of his part of the oontract. When

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Vol. 28.



one has had the full benefit of the contract the law
will not permit the other to withhold the considera-
tion," citlDg numerous cases, both English and
American. If, by its terms, or by reasonable construc-
tion, a contract not in writing can be fully performed
within a year, although it can be done only by the
occurrence of some improbable event, as the death of a
person referred to, it is not within the statute; so if it
can be performed on one side within the year. Bland -
ing V. Sargent, 88 N. H. 230; Wiggins v. Keizer. 6 Ind.
252; Soggins v. Heard, 31 Miss. 426; Suggortt v. Cason,
26 Mo. 221; Burney v. Ball, 24 Ga. 505; Sherman y.
Champlain Co., 81 Yt. 162; Wilson v. Ray, 18 Ind. 1;
Hill V. Jamieson, 16 Ind. 125. See, also, Paris v.
Strong, 51 Ind. 339; Withers v. Richardson, 5 T. B.
Mon. 94. In the Supreme Court of the United States,
Mr. Justice Miller said upon this subject (Walker y.
Johnson, 96 U. S. 424) : **In order to bring a parol
contract within the statute, • it must appear affirma-
tively that the contract was not to be performed
within the year.»» In McPherson v. Cox, 96 U. S. 404,
it was Haid In the same court that the statute applies
only to contracts which, by their terms, are not to be
performed within that time. To the same end are
White V. Hauchett, 21 Wis. 415; Blakeney v. Goode, 80
Ohio St. 350; Thomas v. Hammond, 47 Tex. 42; Som-
erby v. Buntio, 118 Mass. 279, and Jordan v. Miller, 75
Ya. 450; 1 Benj. Sales, 132. In the case of Packet Co.
y. Sickles, 5 Wall. 580, relied on by the defendant in
error, the court held that the contract, being by its
terms extended beyond a year — to-wil, 12 years— that
it was within the statute, notwithstanding the pro-
viso, if the bond should last so long; that is, that the
possibility of defeasance within the year does not
make it the less a contract to be performed beyond the
year. And to the same effect are many other cases
cited. Birch v. Earl of Liverpool, 9 Bam. & C 392;
Dobson V. Espie, 2 Hurl. & N. 81. This has been
often held, and the reason is that the contract, being
one to be performed by its terms beyond the year,
comes within the statute, although it may be defeated
within the year; a possible defeasance not affecting
time when by its terms it may be performed. We are
dealing with the statute that provides "any agreement
that is not to be performed within a year," not any
agreement that is not to be defeated within a year,
and we think the distinction is clearly defined in
reason as well as by the cases.

On the subject of seduction, the Supreme
Court of Oregon in Patterson v. Hayden, 21
Pac. Rep. 129, held that a woman may be
unchaste, and then reform and lead a virtuous
life, and if she is then seduced her seduction
ought to be visited with such damages as a
jury would think, under all the circumstances,
the defendant ought to pay ; but to justify
a recovery there must be a reformation.
The female must have honestly abandoned
and ceased her lewd conduct for a sufficient
length of time before the act complained of,
to induce the jury as reasonable men to be-
lieve the reformation was real and not feigned.
The word '^seduction/' when applied to the
conduct of a man towards a woman, means
the use of some influence, artifice, promise,

or means on his part by which he induces the
woman to surrender her chastity and virtue
to his embraces. Therefore, criminal
indulgence with a woman who was at the time
leading a lewd and lascivious life does not
constitute seduction. The court says :

But the question which presents the greatest difil-
culty is what is meant by the word ''seduction" in
this section. Lexicographers are not agreed as to its
meaning. Webster defines the word seduce, to draw
aside from the path of rectitude and duty in a manner;
to entice to evil; to lead astray; to tempt and lead to
inquity; to corrupt; to deprave; to induce to sur-
render chastity. And the word "seduction" thus:
The act of seducinc: or of enticing from the path of
duty; specifically, the act or crime of persuading a
female to surrender her chastity. Burrell's Law
Dictionary thus defines it: The debauching of a
woman ; the offense of inducing a woman to consent
to unlawful intercourse, omitting altogether the
elements of chastity. Under Webster's definition the
female must have been persuaded to surrender her
chastity; under Burrell's, only to consent to unlawful
intercourse. Courts have been more inclined to fol-
low Webster's definition than those given by the legal
lexicographers. Croghan v. State, 22 Wis. 424; Parker
V. Montelth, 7 Oreg. 2T7; Breon v. Henkle, 14 Oreg.
494; Bell v. Rinker, 29 Ind. 267. • • ♦ So far these
extracts, I think, tend to show that, in construing the
statute under consideration, to constitute seduction
something more is necessary than sexual intercourse,
induced by persuasions, urgent importunities, etc.,
followed by pregnancy; but Just where the dividing
line is to be drawn seems difficult to determine. If
the word ''chaste," in this connection, is used in the
sense of never having submitted to illicit sexual inter-
course, the requirement is greater than the law exacts,
because it has been frequently determined that a
woman may be seduced who had previously at some
periodlof her life been unchaste. Baird v. Boehner,
33N. W. Eep. 094; Smith v. Milburn, 17 Iowa, 30;
Love V. Masoner, 6 Baxt. 24. But these authorities
leave the main question untouched, which counsel
for appellant seek to present on this appeal, and that
is, what IS the legal effect of lewd practices and habits
of the female alleged to have been seduced, at and
immediately before such alleged seduction? Do they
only mitigate the damages, and corroborate the de-
fendant's denial of the seduction, or do they go
further, and defeat the plaintiff's right of recovery
entirely, if the jury are satisfied that the female al-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 133 of 151)