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costs a few days after the expiration of the time within
which it was ordered by the court. — Xing v, Jackson, 8.
0.^eb., Jan. 16, 1889; 41 N. W. Rep. 448.

116. Statdtb of Frauds — Part Performance. The

delivery of possession to complainant and her husband,
and the construction of the house under their direction
and control, constituted a sufllolent part performance
to satisfy the statute of frauds. — Brown v, Sniton, U. 8.
8. 0., Jan. 28, 1889; 9 8. C. Rep. 378.

116. Statcttbs— Repeal -Marriage — License Fee.-

Acti Md. 1886, cb. 261, and oh. 497, both repealing Code
art. 60, relating to marriages, are Inconsistent. They
were passed on different days, but approved the same
da|r: AM, ^lat theyiwlll be preaoinM to lutre bMo ap-
proved In their nnmerloal ot^w.—Siate v. Davis, Md. Ot.
App., Feb. 8, 1889; 16 Atl. Rep. 639.

U7. Stbbbt Raiiaoads — Location of Road. ' In
proceedings under Laws N. Y. 1876, ch. 606, relating to
the construction of steam railways in cities, posted
notices along the road Is sufllcient notice to parties in-
terested. - /» rs Union XL B, Co., N. T. Ct. App., Jan. 16,
1889; 19 N.B. Rep. 664.

118. Taxation— Action by Tax-payer —Objections to

Sale. A private citlaen, suing as a tax- payer, under

the "act for the protection of tax payers,*^ (Laws N. Y.
1881, ch. 681,) to restrain the execution and deUvery of
the leases to the purchaser, a corporation, cannot ob-
ject that the contract of purchase by the iSfttter Wis
vUra vires. — StaHn v. Statan Island Co., N. Y. Ot.~ App.,
Jan. 16, 1889 ; 19 N. B. Rep. 670.

U9. Taxation— Assessment. Laws, 1881, f I, ch. $,

Minn., providing for assessing taxes upon property for
past years does not authorixe the including in snch as-
sessment of penalties for such years.— Stale «. Land C6 ,
8. 0. Minn., Jan. 81, 1889; 41 N. W. Rep. 465.

120. Taxation — Assessment. A court of equity

will not restrain the collection of a tax unless It Is nec-
essarily unjust and unequal.— CamJMd v. Bain^d Co., 8.
C. Wis., Jan. 39, 1889; 41 N. W. Rep. 487.

13L Taxation— Payment. — In an action to set aside
tax- sale, evidence of payment of taxes was notrebutteid
by the fact that the stub of the receipt did not show
payment on the lot in controversy. — Bi0ht v. Slocnm,'S.
0. Iowa, Jan. 35, 1889; 41 N. W. Rep. 477.

122. Tax-salb — Redemption by Tenant in (tommon.

When a tenant in common takes a deed of the

whole property from a purchaser at a tax -sale, he must
be presumed, to have done so In the exercise of a legal
right, and the whole property will be redeemed from
the sale.— iJurley v. Hurley, 8. J. 0. Mass., Jan. 16, 1889; 19
N. E. Rep. 545.

128. Trusts- Compensation of Trustees. Under

the statute allowing commissions to a trustee for **re-
celving and paying out" money, an allowance of one
moiety upon receipt, and the other upon disbursement,
of the fund Is proper. — /nra WUlet's XstaU, "S.Y.Ot.
App., Jan. 22, 1889; 19 N. B. Rep. 690.

124. Trusts — For Married Woman. A decree of

dittriot court of Pa*, allowing a trustee of land of a
married woman to convey the property to her,' and
discharge him from acting longer as trustee, rendered
with the consent of the cestui que imsi and her husband
Is valid until reversed on appeal. — BiQham v, Menrid, 8.
C. Penn., Jan. 7, 1889; 16 Atl. Rep. 618.

125. Wills- Construction. A devise to A and in

case she dies single to B, vests an absolute estate in A
upon her marriage. — Appeal of Davimm, 8. C. Penn., 16
Atl. Rep. 098.

126. Wills— Requisites— Bffect of Probate. ^A paper

drawn at the instance of deceased as his will, but never
signed or seen by him, does not comply with the act of
1888, Penn., providing that a will must be signed by the
testator, and such a paper is a nullity. — ITail v. ITail,
8. C. Penn., Jan. 28, 1869; 16 AtL Rep. 686.

127. WITNB88— Reputation— Impeachment. — Where
the cross-examination of impeaching witnesses shows
that they know nothing of the reputation for tenth and
veracity of the witness In the neighborhood In whl^ he
lives, their testimony should be excluded. ^ CUtpp v.
Engledow, 8. C. Tex., Dec. U, 1888; 10 8. W. Rep. 462.

H8. Wbits— Service by Publication— Non resident De-
fendant. Under Code Civil Proc N. Y. f 489, an

order for service of summons by publication cannot be
granted, as to a non-resident defendant, where it does
not appear that the cause of action arose within the
State.— JBryAfiv. UniversOif Pub. Co., N. Y. Ct. App., Feb.
9, 1889; 19 N*B. Rep. 835.

129. Writs— Service on Non-residents.— — '-Code Colo.
1888, H 41, 45, authorising service on non -residents by
publication of anmmons, and making a peraoaal seir-
loe of summons on a son resident out of the State
equivalent to service by publlctlon, do not luiChorlBe
the rendering of a personal Judgment on snohtefTloe,—
Ommyv. JislUoy,B.Q. Odlo., Jan. I8| 1889; 90P«o. Bep.8n.

/lyiLi^cjvj uy

Vol. 28



S&e ^ttxtxsa ^tor g0tttrtmt

ters of public interest rather than by any
brilliancy in the practice of their profession,
and deserve the reputation of distinguished
statesmen or politicians rather than eminent
lawyers. It is to be regretted that our really
great lawyers who deserve prominence from
eminence and success in their profession
alone are so little known, even by those who

ST. LOUIS, MARCH 29, 1889.


It is to b6 boped that in appointing a sue-
cessor to tbe lamented Justice Stanley Mat-

are otherwise well informed.

thews upon the supreme bench the president
will be actnated, not by a desire to reward a
politician for faithful party service, but rather
to r/0cognize profound legal ability, eminent
scKH^arly attainments, incorruptible integrity
and fearless honesty, the eminent lawyer
and just judge. Two names are ahready
favorably mentioned as worthy to fill the im-
portant vacancy. Judges Cooley and Gresham,
and the appointment of either of these emi-
nent jurists would give unqualified satisfac-
tion both to members of the legal profession
as well as to all who are interested in having
the supreme law of the land jnsUy and fear- ^
lessly interpreted. They possess in a Tare
degree the high qualifications which the ex-
alted position requires, long, honorable and
famous experience upon the bench, profound
knowledge of jurisprudence, unswerving im-
partiality and untiring industry ; and while it
is diflicult generally to find one who can meet
these requirements, should either Judge
Cooley or Judge Gresham be honored with
the appointment there can be no mistake
made in the selection.

The recent death of Sidney Bartlett, TJ..
D., of Boston, removed from the bar of this
country probably the oldest practitioner as
well as one of its most distinguished mem-
berft. At the time of his death he had
reached the advanced age of ninety years
and continued in practice up to his last fatal
illness. A few days betote his death he was
engaged in consultation with the directors of
a railroad corporation of which he Vas gen -
eral counsel. His extreme longevity fur-
nishes a contradiction to the general notion
that lawyers are short-lived.

J. W. Donovan, the eminent advocate,
says: sense, reason, equity,' wise selec-
tion of jury, kind and manner of wit-
nesses and right conduct of counsel in urging
his rights, will win a lawsuit. What is wise
with a jury and what is unwise, men differ
on ; some urge too much ; others too little ;
others never put the right thing in the right
way. Law is a science. A good trial is a
fine art. To win is the object ; to lose is the
dread. The sting of defeat heals slowly.
The flush of victory brings business. The
loss of a book account may be the loss of
thousands. The loss of a case may ruin a
home. The absence of a witness may mean a
prison for a life-time. The power of a story
may save a father to his children. The turn
of a case is like the wind in winter, we know
not its direction save as we feel it. What a
science, what an art, what test of genius,
what a forum for wisdom and eloquence, is a
trial before a jury of twelve men with a na
tion for an audience !

It is a noticeable fact that while there are
many distinguished lawyers who are both able
and willing to serve their country on the su-
preme tribunal of the United States, one can
suggest but few names of sufficient prominence
and qualification for the vacancy now existing
therein. The lawyer who devotes himself
exclusively to the practice of law and takes
no part In political affairs is scarcely known
outside of the locality where he resides. It
is seldom that he is engaged in a case that
arouses public interest, and but few people
hear of him. Most lawyers who have ac-
quired a national reputation have had atten-

tion called to them by a participation in mat-
VoL. 28— No. 13.

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No. 13


A QUESTION of jurisdiction of the United
States conrts, under the act of congress of
March 3, 1875, came before the Supreme
Court of the United States in the case of
Morris v. Gikner, 9 S. C. Rep. 289. It was
tiiere held that the* circuit court is bound to
dismiss a suit depending for federal jurisdic-
tion upon the non-residence of the plaintiff,
when it is made to appear that he is not in
faot a non-resident, and that, while the fact
that a change of domicile is induced for the
purpose of invoking federal jurisdiction does
not affect the right, yet where the sole object
in removing from one State to another is to
be enabled to sue in the federal court, and
the removal is without any present intention
to remain permanently or for an indefinite
time, but with a present intention to return
'as soon is the purposes of the suit are ao-
oomplished, tiiere is no change of domicile.
The court says :

The oMe prSMiits no question of a federal nature,
and the jurisdiction of the circuit court was invoiced
solely upon the ground that the platnUfl was a citizen
of Tennessee, and the defendants citizens of Alabama.
But If th^ plaintiff, who was a citizen of Alabama
when the suit in the State court was determined, had
not become, in fact, a citizen of Tennessee when the
present suit was Instituted, then, clearly, the contro-
versj between him and the defendants was not pne of
which the circuit court could properly take cogni-
zance; in which case it became the duty of that court
to dismiss it. It it true that, by the words of the
statute, this duty arose only when It appeared to the
satisfaction of the court that the suit was not one
within its Jurisdiction. But if the record discloses a
coDtroversy of which the court cannot properly take
cognizance, its duty Is to proceed no further, and to
dismiss the suit; and its failure or refusal to do what,
under the law applicable to the facts proved, it ought
to do, is an error which this court, upon its own mo-
tion, will correct, when the case is brought here for
review. The rule is inflexible and without exception,
as was said, upon full consideration, in Railway Co. v.
Swan, 111 U. S. 879; Bridge 0>. v. Otoe Co., 120 U. 8.
225; Grace v. Insurance Co., 109 U. S. 278; Blacklock
V. Small, 127 U. 8. 96. These were cases in which the
record did not afHrmaiively show the citizenship of
the parties, the circuit court being without jurisdic-
tion in either of them unless the parties were citizens
of different States. But the above rule is equally ap-
plicable in A case Hi which the averment m to citizen -
ifhip is sufficient, and such averment is shown, in some
appropriate mode, to be untrue. While under the
judiciary act of 1789 an issue as to the fact of citizen-
ship could only be made by a plea in abatement, when
the pleadings properly averred the citizenship of the
parties, the act of 1875 imposes upon the circuit court
the du^ of dismissing a suit, if it appears at any time
after It is brought, and before it is finally disposed of,
that it does not really and substantially involve a con-

troversy of which It may propetfy take eognlzance.
Williams V. Nottawa, 104 U. 8. 209; Farmington v.
Plllsbury, lU U. 8. 188; LltUe v. GUet, 118 U. 8. 596.
And the statute does not prescribe any particular
mode in which such fact nsay be brought to the atten-
tion of t^e court. It may be done by affidavits, or the
depositions taken In the cause may be used for that
purpose. However done. It should be upon due notice
to the parties to be affected by the dismissal. It is
contended that the defendant precluded himself from
raising the question of jurisdiction, by inviting the
action of the court upon his plea of former adjudica-
tion, and by waiting until the court had ruled that
plea to be insufficient in law. In support of this posi-
tion Hartog V. Memory, 116 U. 8. 588, Is dted. We
have already seen that Uils court must, upon its own
motion, guard against any invasion of the jurisdiction
of the circuit court of the United States as defined by '
law, where the want of jurisdiction appears from the
record brought here on appeal or writ of error. At
the present term it was held that whether the circuit
court has or has not jurisdiction is a question which
this court must examine and determine, even if the
parties forbear to make it, or consent that the case be
considered upon its merits. Metcalf v. Watertown,
128 IT. 8. 586. Nor does the case of Hartog v. Memory
sustain the position taken by the defendant. In that
case the citizenship of the parties was properiy set
out in the pleadings, and the cause was submitted to
the jury vrithoutany question being raised as to want
of jurisdiction, and vrithout the attention of the court
being drawn to ceriain statements Incidentally made
in the deposition of defendant against whom the ver-
dict was rendered. After verdict the latter moved for
a new trial, raising upon that motion, for the first time,
the question of jurisdiction.

An interesting question involving the right
of the Chicago board of trade to withhold
telegraphic information was decided by the
Supreme Court of Illinois in the case of New
York & Chicago Grain & Stock Exchange v.
The Board of Trade of the City of Chicago,
19 N. E. Rep. 855. There it was held that
though the Chicago board of trade is a private
corporation and the business transacted by
it daily is of a private nature, yet, the board
having for many years permitted and invited
a telegraph company to transmit, daring the
sessions of the board, to all persons who
choose to pay for the information, reports of
the dealings of the board, fluctna^ons in
prices, etc., and the information so obtained,
having in consequence become of essential
importance to the commercial world, such
information has become impressed with a
public trust, and the board cannot now treat
it as purely private, and withhold it from ail
but a favored few* Baker, J., after review-
ing at length the object of the Chicago board
of trade, its rules and customs. Mid mode of

doing business, says :

This market news is a species of property, and If the
statistics with reference to the individual business of

L..gitized by V^:jOO*v ^^

Vol. 28.



the members of the aesoclatioD, and the aggregate
business of Its members, bad from tbe start been
gathered and compiled at the expense of its members,
and for their sole use, it may be it woald have been
strictly private property, held in trust by the board
for the use and benefit of such members, and wholly
free from any public interests therein. But the board
did not so exercise its franchises, and so conduct its
business, but admitted the telegraph companies to the
floor of its exchange, and permitted and encouraged
them, from day to day and year after year, to gather
these statistics of the dealings on the board, and tele-
graph them immediately as they were made through-
out the land, to whomsoever would pay for such
Information, until the business of the country had
adapted itself to these means and appliances, and the
point was reached when the quotations upon the board
were puissant to determine the market values of the
products of the country, and all persons dealing in
such products could not without the knowledtce and
benefit of these immediate quotations intelligently and
safely so deal. The facts that the board of trade is a
private corporation, and that the dealings between its
members are private business, such as is transacted
between dry goods, grocery, and commission mer-
chants, and that the statistics of these dealings col-
lected as we have stated are private property, are not
conclusive that such statistics are not charged with a
public interest, and that there is no duty due the pub-
lic in respect thereto. In the case of Munn v. Illinois,
U U. S. 118, the Supreme Court of the United States
recognized and followed the doctrine that when private
property is devoted to a public use, and becomes af-
fected with a public interest, it ceases to be juris
privati only, and is subject to public regulation. As-
suming these market quotations and reports are prop-
erty, and the private property of the board of trade,
yet if they have been so used by the board, and by the
telegraph companies with the knowledge and consent
of the board, as to become affected with a public in-
terest, then they are subject to such public regulation
by the legislature and the courts as is necessary to
prevent injury to such public interest. The doctrine
in question has application both to the property of
individuals and of corporations, and it is therefore
immaterial that any such corporation may be a mere
private corporation. If the interest is public, then it
is necessary to all alike, common to all, and upon equal
terms. The doctrine as applied to the matter of these
quotations, would forbid that a monopoly should be
made of them by furnishing them 1o some, and refus-
ing them to others who are equally willing to pay for
them and to be governed by all reasonable rules and reg-
ulations, and would prevent the board of trade or the
telegraph companies from unjustly discriminating in
respect to the parties who will be allowed to receive
them. The market information here involved is not
collected by the board merely for the use of the mem-
bers of the association. For many years it was gath-
thered and disseminated by the telegraph companies,
and sent to all alike who would pay for it, wholly re-
gardless of any question of membership in the board.
The change that has been made by section 20 of rule 4
in respect to this commercial news department seems
to be more colorable than substantial, and appears to
be intended merely to enable the board to make a
monopoly of such news. At first the telegraph com-
panies by their paid agents gathered the statistics and
telegraphed them from the floors of the exchange.
Now, the board appoints and pays the agents who
collect the statistics, and transmit them to the central
telegraph office of tne Western Union Telegraph Com-

pany, from whence they are distributed to the ap-
proved correspondents; but ntne-tentbs of tbe expense
of this service of collecting the market reports is
refunded to the board by the telegraph company.
The question here is not one of withholding altogether
instantaneous quotations and information respecting
the prices at which grain and provisions are being sold
upon the market of the exchange, nor one of discrim-
inating between its own members and such persons as
are not members in giving such information. Before
the board itself assumed to control the sending of this
news, no discrimination was made in distributing it
between those who were and those who were not
members of the board, and since the change was made
a very large proportion of the approved correspond-
ents are not members, and the rule contemplates that
peisons other than members should be such corre-
spondents. The question is, can the board so conduct
its affairs for a long term of years as to create a stand-
ard market for agricultural products, and, acting in
concert or combination with the telegraph companies, ^
build up a great system for the instantaneous and con-
tinuous indication of that market and its fluctuations,
until the public and all persons dealing in such prod-
ucts conform their business to this system, and until
by the usage and custom of merchants, thus advanced
by the methods adopted by the board and telegraph
companies, such instantaneous quotations become
necessary to the successful and safe transaction of
business, and until such system has become impressed
and affected with a public interest, and then be al-
lowed to discriminate lietween persons and parties,
and, where all «like are willing to conform to reason-
able rules and requirements, and pay for the informa-
tion desired, say that one shall and another shall not
have such information? If the board has such right,
and these corporations are lawfully permitted so to
do, then they have the power to create monopolies,
and dictate who shall deal in the agricultural products
of the country, and at will impoverish or enrich mer-
chants, shippers, and producers. It is vain to say that
the ordinary newspaper reports of the state of the
market are all that are necessary to legitimate dealers
in grain and provisions. The business of the country
has outgrown such condition, and this very largely
through the methods adopted and introduced by ap-
pellees themselves. The fact that 1,400 persons, firms,
and corporations are in receipt of these instantaneous
market reports, and are willing to pay therefor the
large fees and charges demanded of them for the re-
ceipt of the same, is proof positive that a business
advantage is gained by immediate knowledge of the
condition of the market. The persistent efforts of the
board of trade itself to control these market reports
are an indication of their estimate of their value.
There is no question involved in this case of gambling
contracts, or of so called "bucket-shops." There is no
evidence in the record tending to show that appellant
is engaged in a gambling business, or dealing in puts
and calls, and it is admitted that the business it is do-
ing is not in violation of law. We think the case made
by the bill of complaint and the proofs bring it within
the rule announced by the Supreme Court of the
United States in Munn v. Illinois, supra, and in our
opinion it was error in the circuit court to dismiss the
bill for want of equity, and error in the appellate court
to affirm the decree of dismissal.

An interesting question of principal and
agent in the law of insurance was decided bj

Digitized by




No. 13

the Supreme Coart of AppeftlB of West Vir-
ginia, in the case of Deitz v. The Providence
Washington Insurance Co., 8 S. E. Rep. 616.
There, a husband took out a policy of in-
surance in his own name on property belong-
ing to his wife. The policy contained a pro-
vision that if the insured is not the absolute
owner of the property it must be so expressed
in writing in the policy. The husband, when
effecting the insurance, stated to the agent of
tiie company that the property belonged to
<fais wife. Tliis was a suit on the policy by
the husband for the use of the wife. The
court in sustaining the action, says :

It Is a well -settled ruje of law that where a contract,
not under seal, is made hj an aicent in his own name,
for an undisclosed principal, either the agent or the
principal may sue upon it; the defendant, in the latter
case being entitled to be placed in Uie same situation,
at the time of the disclosure of the real principal, as if
the agent had been the contracting party. The rights
and liabilities of a principal upon a written instrument
executed by his agent do not depend upon the fact of
the agency appearing on the instrument, but upon the
facts (1) that the act is done in the exercise and (2)
within the limits of the powers delegated to the agent,
and these are necessarily open to Inquiry by evidence.
In Browning v. Insurance Co., L. R. 6 P. 0. 268, it
was held that where an insurance broker takes out a
policy of Insurance in his own name upon bis prin-
cipal's goods, the latter may sue upon the policy In
his own name. In cases of this kind, the liability of
the principal, as well as the rights of the other party,
depends upon the act done, and not merely th^ form
In which it Is executed. If the agent is clothed with

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 79 of 151)