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In Louisville and Nashville R. R. Co. v. Bowler an important contribution was made to the law in case of a servant injured through the negligence of another servant in the employ of the same master. In the present case B. was employed by S., the "section boss" of the railroad company, as a laborer on the railroad, and B. was injured while engaged in this employment through negligence of S. It was insisted that B. and S. were servants of the same master and engaged in the same line of service, and that B. could not recover of the company. But the court held that the company was responsible. The court said: "There is a vast difference in the skill and experience necessary to discharge the duties of 'section boss' on a railway, and that required of a common laborer, who is employed solely because of physical strength and ability to do manual labor. The two offices create the relation of master and ser

vant." The court further said "that the only sound rule is, to hold the common superior, which can only act through its agents responsible for injuries resulting to the subordinate from the negligence of his immediate superior or party having control over him."

In Pennsylvania R. R. Co. v. Fairchild, 7 Chicago Legal News, 164, the Supreme Court of Illinois decided an important question as to the law governing the liability of a common carrier for goods to be transported beyond its line. In this case the goods were delivered in Indiana to a railroad company operated by appellant, marked for transportation to Leavenworth, Kansas, beyond the terminus of the appellant's line. The goods were destroyed after they

had been delivered by appellant to the connecting line. The question was whether the appellant was liable for the loss. The appellant gave evidence of the law of the State of Indiana to the effect that the destination of the goods, as shown by the mark being beyond the terminus of the railroad receiving the goods to carry, such railroad company, if it carry the goods to the terminus of its own line and there deliver them into the custody of the next carrier in the line of the transit, will not be liable for the loss of goods after they have so passed out of its possession. U. S. Express Co. v. Rush, 24 Ind. 403. But the judge instructed the jury that "if the Pennsylvania company received the goods marked and directed to Leavenworth, in Kansas, that made

them liable to carry them to that place, and for the value, if lost or destroyed on the way." This was held error on the ground that the contract of carriage being made in Indiana, the law of that State governed the contract and the liability of the appellant. Hale v. New Jersey Steam Navigation Co., 15 Conn. 539, was relied upon to sustain this view.

In Patterson v. R. R. Co., 22 Pittsburg Leg. Jour. 95, decided in the Supreme Court of Pennsylvania, we have another illustration of the doctrine of the liability of the master for injuries to the servant. The plaintiff, a conductor on defendant's railroad, received injuries in consequence of the want of proper repairs on the road-bed. On the trial, plaintiff offered to show that he had previously notified the superintendent and foreman of the railroad of the defects; that these officers requested plaintiff to remain in his position, and promised to repair the road-bed so as to avoid danger; that the repairs were not made, as promised. This offer was rejected. Held error. The court referred to Clarke v. Holmes, 7 Hurl. & Norm. (Ex.) 937, and Snow v. Railroad, 8 Allen, 441, and stated that "in both of these cases, the defects from which the accident arose were known to the employees, but as they were injured in the discharge of duties imposed upon them by their employers, such knowledge was adjudged not to raise a presumption of concurrent negligence." The court lays down the rule that "where the servant, in obedience to the requirement of the master, incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable that it may be safely used by extraordinary caution or skill the master is liable for a resulting accident." But if the defect is "so great, that obviously with the use of the utmost skill and care, reckless man would incur it, the employer would the danger is imminent, so much so, that none but a

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not be liable." This case also affirms the soundness of the doctrine that notice to the foreman and superintendent is notice to the railroad company. Altogether, this case is one of great importance.

In Parks v. Coffee, the Supreme Court of Alabama has recently considered and defined the status of the Alabama courts during the war. Manning, J., delivered the opinion of the court and the conclusion which he reached was that the courts of Alabama during the war were a portion of the rightful — de jure-government of the State; and that their judgments, decrees and proceedings, not in violation of the Constitution and laws of the United States, or of any right of obligation arising under them, and not in violation of the Constitution of Alabama, are valid, and must have operation and effect accordingly.


There are certain so-called principles of the com-
mon law which not even age can render respectable
-ideas which perhaps were reasonable or at least
unobjectionable when first enunciated, but which
the world has moved away from or passed by. Three
prominent examples now occur to us, namely: the
liability of an innkeeper as an insurer of his guest's
goods, even in case of a fire without the fault of the
former; the absence of any right in an agister to a
lien for the keeping of the cattle; and the avoidance
of a contract by the breach of an immaterial war-
ranty. For the first of these dogmas there might
originally have been some excuse; there is none now.
In regard to the second there could never have been
any reasonable difference of opinion, and as for the
last it is one of those monstrous and absurd perver-
sions of justice that have made the law a subject of
reproach among some of the wisest and most humane
of men.
We were in hopes that the recent decision

can place no great reliance on their efficacy; in three cases out of four, the insured will be found to have made some incorrect answer to some immaterial inquiry, and the mistake is fatal. Of course, to use an Hibernianism, the insured will not discover this till he dies, for the companies will go on taking his premiums as long as the insured will pay them. We doubt, for instance, whether there is a judge in the State who has the memory and knowledge requisite to enable him correctly to answer the questions put to applicants by the defendants in this case. Look at Judge Rapallo's account of what is demanded of the candidate for insurance:

"It then proceeds to propound questions as to the grand-parents, parents, uncles and aunts on the paternal and maternal sides, whether living or dead, their health when living, ages at death, causes of death, weight, height, complexion, color of hair, beard and eyes, and various other questions concerning them. Then follow a great number of questions of the most minute character, touching the insured, his constitution, habits, etc., and among others as to his weight, how much. increase or diminution in

of our Court of Appeals, in Fitch v. American Popu-weight in one year and in five years, what diseases lar Life Insurance Co., had disapproved this common-law barbarism, at least so far as the doctrine applies to life insurance. It is possible that our introductory note to the report of the case in a recent number of this journal may give that impression on a casual reading. But a critical perusal of the opinion will correct this impression. If the reversal

he has had, including those of childhood, whether any place where he has ever lived was subject to any disease and what, as to his habits, how often he bathes, whether he rises and retires regularly — whether late or early, what he wears next his skin, what stimulants he uses, if any, whether he takes his tea or coffee weak or strong, the extreme number of glasses of ale, beer, cider or wine he takes in a day, the quantity he takes in a month, whether he has ever been intoxicated and how often, whether the action of his bowels is regular every day, whether he has any practice tending to impair health, etc., whether his vocation endangers life or health, what it will be, whether he has reason to think that his residence, vocation or any circumstances affecting him will be more hazardous to life and health than is at present the case, whether his hands and feet are usually warm or cold, whether any kind of food, usually produces ill-health or indigestion, whether he has ever had any of a long catalogue of diseases, many of which are of a character which he might well have had without know

had been in disagreement with the doctrines laid down by the Supreme Court, such an impression would have been well-founded; but there is no dissent from the language of the court below in respect to the effect of warranties. On the contrary Judge Rapallo explicitly remarks, although his remark must be deemed obiter-"Where a warranty is understandingly and clearly given by an insured, no matter how immaterial the fact warranted may be, he will be held strictly to his contract." The ground of escape from the effect of this doctrine in this case was, that the policy not only contained an agree-ing it, and which he might naturally deny ignorantly; ment that the answers to the questions in the application should be deemed warranties, but also a statement that "fraud or intentional misrepresentation violates the policy," and a stipulation that "payment will be contested only in case of fraud." We are sorry that the Court of Appeals did not denounce this absurd dogma of immaterial warranties, although possibly it was as unnecessary to do so in this case as it was to say a word in favor of it.

We urge this matter again upon the attention of our courts, the legislature, and the profession at large. Owing to the impunity with which life insurers are permitted to set traps for the ignorant and unwary in their policies, and the rigor and bigotry with which our courts construe these contracts, the community are rapidly losing faith in life insurance. We may do our judges injustice, but we venture to say that those even among them who have life policies

whether he has ever had any disease of or injury to any organ, or has ever had any symptom of disease of any organ, whether he is acquainted with the laws of health, and whether he takes pains to observe them, and a host of other questions which no human being could, with safety, undertake to answer accurately and warrant the correctness of his answers."

And yet, in spite of this concession of the court, they hold that if an insurer inserts these questions and provides that the answers shall be warranties, the man who undertakes to answer them and makes an inadvertent mistake that does no harm, nay, that is less favorable to himself than the strict truth demands, and thus operates to the benefit of the insurer, has lost the benefit of his contract, and that, too, although the insured may not have been deceived in the least, but may have known the truth all the time, and with this knowledge have gone on for half a century taking premiums from its innocent

victim. This is so shocking to the moral and common sense of the community that plain men get a bad idea of law, of courts and of the administration of justice. What is the origin of such preposterous dogmas? Why, some hundreds of years ago, when law was an intricate and mysterious science, mainly used by the strong for the oppression of the weak, some big-wigged judge probably remarked, in some case with which most likely it had nothing to do, that the breach of an immaterial warranty avoids a contract. A generation later, perhaps, another judge in another case with which it also had nothing to do, quoted judge number one with approval. Then, after a while, a third quotes numbers one and two; and at length, when the precise case for the application arises, a fourth cites the three, and says that is the law. Many of our most ridiculous common-law follies sprang up in this way. Three dicta make the law. It is a very convenient way, because it saves modern judges the trouble of thinking and the responsibilities of deciding, and gives them the appearance of learning. Now, is law never to advance or improve? Other sciences and rules of moral conduct change, even adapt themselves to the shifting exigencies of civilization. What should we think of a surgeon who should refuse to administer chloroform because Sir Astley Cooper did not use it? Sir Matthew Hale believed in hanging witches; we do not understand that procedure to be lawful now, and yet why not, if we are to submit ourselves to the unwisdom of the ancients? Now, to our mind, it is little less wrong to hang a witch than to deprive a man's family of the benefit of a life policy on which he has paid the company thousands of dollars, simply because he warranted that his great-grandmother had black hair when in truth it was red; or that she died of pulmonary consumption, when in fact it was pneumonia; or that his mother's eldest brother was six feet one inch in height, when in fact he was only five feet eleven; or that he himself had gained twenty pounds in the last five years, when on minute inquiry it turns out to have been only fifteen. Our courts seem to proceed upon the idea that, after a certain number of years, error becomes law by prescription. Now suppose, for instance, that Littleton, or Coke, or Hale, had said that the breach of an immaterial warranty avoids a contract; and suppose Lord Mansfield had repeated it, and that ChiefJustice Shaw reiterated it, as we know he did, handing it down to posterity in his iron and copper ash-hods, which he instanced as an example of the application of the doctrine all this would not make it right nor reasonable, nor commend it to the common sense of the community nor to the legal sense of the bench and bar of our day. We can scarcely believe that there is a judge in our State who, if asked his opinion on the matter as an original question, would not unhesitatingly say that such

a doctrine is intolerable. But yet our courts go on repeating the phrase as if there were some charm in it that stole away their senses. Asked to defend it on principle, we think they would be in trouble. But their resort is in saying that it has always been the law; has never been judicially doubted; that courts must not legislate, etc. If this is to be the settled law of our land, it is time that our legislatures passed a special act relieving our courts from the further necessity of uttering such folly. If the courts cannot adjudge that it is against public policy for life insurance companies to invoke this doctrine, let the law-making power intervene, and prohibit these corporations, the creatures of their will and existing only by their sufferance, from swindling the public with these fraudulent tricks.


Our attention has been called, by a correspondent, to the cases of Claflin v. Ostrom, 54 N. Y. 581, and Merrill v. Green, 55 id. 270, and to the apparent conflict between them. These cases are of sufficient importance to warrant a critical examination.

In the former case, decided by the Commission of Appeals, in January, 1874, the facts were as follows: Hanford and Ostrom being partners, Hanford sold out his interest in the firm property to Ostrom, who orally agreed to pay the firm debts, among which was one due to the plaintiffs. The defendant guaranteed the performance of this agreement. The plaintiff's debt not having been paid, Hanford assigned to them his interest and claim under the guaranty, and they brought this action upon the guaranty. In the latter action, decided by the Court of Appeals in December, 1873, the facts were as follows: Roberts and Green, being partners, Roberts sold out to Green, and Green as principal and Nichols as surety, executed to Roberts a joint and several bond conditioned for the payment of the firm debts, among which was one due to the plaintiffs. The plaintiff's debt not being paid, Roberts assigned to them the bond for the purpose of enabling them to recover of the obligors, and they brought this action accordingly. So far as we can perceive, therefore, the facts in the two cases are precisely similar. Not so, however, with the decisions.

In the former case the Commission of Appeals held that the action could be maintained, with the assignment and without it; in the latter, the Court of Appeals held that the action could not be maintained either with the assignment or without it. Commissioner Earl in the former case says: "In consideration of the transfer of the firm property to Ostrom he agreed to pay the firm debt to the plaintiffs; and this agreement, made for their benefit, the plaintiffs could adopt and enforce in their own names, within the principles laid down in the following cases:

Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 id. 178; Thorp v. Keokuk Coal Co., 48 id. 253. Within the same principles the plaintiffs could bring suit directly against the defendant," etc. All the commissioners concurred. In the latter case, Judge Grover says: "I do not think the case within the principle of Lawrence v. Fox. Green was liable with Roberts for the payment of the firm debts. He agreed with Roberts, upon a valid consideration, to assume the payment of the whole of the debts, and Nichols undertook that he should perform this contract. This was no agreement made by Green and Nichols with the creditors, or for their benefit, but one with Roberts, to exonerate him from his liability for the debts of the firm by payment, which Green was to make, and in case of his default such payment to be made by Nichols. All the liability incurred by either was upon the bond, and this was to the obligee only." All the judges concurred.

Our correspondent requested us to endeavor to reconcile these decisions. We give it up. Our correspondent says he thinks he can. We wish he would. It may, perhaps, not be unbecoming for us to express our opinion that the doctrine of the Court of Appeals is preferable. The doctrine of Lawrence v. Fox, relied upon in Claflin v. Ostrom, is that an action lies upon a promise made by the defendant to a third person, upon a valid consideration, for the benefit of the plaintiff, although the latter was not privy to the consideration. The two other cases cited by Commissioner Earl simply hold that a mortgagee may maintain a personal action against a grantee of the premises who assumed to pay the incumbrance. In respect to the latter cases, we think there may be a just distinction between the case of an incumbrance upon real estate and that of personal property. At all events, the test is, was the promise made for the benefit of the stranger. Here, we think, the Court of Appeals is right. The agreement between the partners was not made for the purpose of protecting the creditors of the partnership, but to indemnify the outgoing partner against being called on to pay the partnership debts after parting with his interest in the firm property. In Lawrence v. Fox, and the cases there cited, the promise was clearly and directly for the benefit of the stranger. Thus in Lawrence v. Fox, the facts were: Holly, at the request of the defendant, loaned him $300, stating, at the same time, that he owed that sum to the plaintiff for borrowed money which he had agreed to repay the then next day; the defendant, in consideration thereof, at the time of receiving the money, promised to pay it to the plaintiff the then next day. This is certainly quite distinguishable from the two cases under examination, although, even in this case, we should feel inclined to rank ourselves with the two eminent judges who dissented from the majority of the court.

It is at least a little singular, if it does not account

for the discrepancy between Claflin v. Ostrom and Merrill v. Green, that Commissioner Gray, who sits in the tribunal which decided the former case, was the judge who wrote the opinion in Lawrence v. Fox; while Judge Grover, who agreed with Judge Comstock in his dissenting opinion in the latter case, is the judge who wrote the opinion in Merrill v. Green. It is also worthy of remark that Judge Johnson, who concurs in Judge Grover's opinion in Merrill v. Green, was chief judge of the court when Lawrence v. For was decided, and concurred with the majority in that case. Non nobis tantas componere lites.

The inconsistent result of these two cases, not unparalleled in the history of the two tribunals, shows the vice of our judicial system in respect to the ultimate court. We should have but one court of last resort, and that court should be numerous enough to enable the members to relieve one another.


It may be asserted, as a general rule, that attachment laws apply alike to corporations and individuals. The exceptions to this rule are only found in New York and Delaware, where the courts hold that foreign corporations can only be proceeded against by attachment to the extent of the special provisions that may be incorporated into the statute with direct reference to such associations. See McQueen v. Middleton Manuf. Co., 16 Johns. 5; Western Bank v. City Bank of Columbus, 7 How. 238; Cumberland Coal Co. v. Sherman, 30 Barb. 159; S. C., 8 Abb. 243; Vogle v. New Granada, etc., Co., 1 Houston (Del.), 284. This discrimination arose from two causes. First, from the common-law disability of acquiring jurisdiction over a foreign corporation, which could only be gained by a voluntary appearance; and second, from the fact that, save under the Stillwell act, the grounds of attachment related to the person of the debtor and were inapplicable to corporations.

When the provisional remedy of attachment was first incorporated into the Code the grounds of attachment were similar to those under the Revised Statutes:

absence or non-residence, absconding and concealment, only one non-residence could be alleged of corporations, and this could only extend to foreign corporations, as they are deemed residents for the purposes of jurisdiction, of the State which created them, without power to change their domicile of origin. Foreign corporations were, therefore, expressly included within the provisions of the statutes.

In 1857 the Code was amended by extending the

grounds of attachment to the fraudulent disposition, removal or concealment of property. This provision applied to corporations as well as individuals, for while a corporation cannot conceal itself, being a mere entity and intangible, it may conceal its property or dispose of it for the purpose of defrauding its creditors. The amendment to section 227, creating this new provision, to expressly carry out the rule in its full application,

The following article is by Mr. S. F. Kneeland, who is engaged in the preparation of a treatise on the "Law of Attachments." ED. A. L. J.

was extended to any corporation or person who shall be guilty of the acts therein specified.

But the superior court, at special term, in the case of Ferner v. The American Glass Silvering Co., decided that domestic corporations, although seemingly included within the terms of section 227, as amended, cannot be proceeded against by attachment for the reason that the provisions of that section are qualified by those of section 229, which limits the proof necessary to obtain the order to the case of natural persons and foreign corporations, and that both the literal reading and the fair interpretation of the two sections taken together, is that foreign corporations, only, were intended to be subjected to the law of attachment in actions.

There are many serious objections to this construction of the Code, and I doubt very much whether it would be sustained by the Court of Appeals. In the first place, by an unbroken chain of decisions, with this exception, the courts of this country have held that domestic corporations are included within the statute, without any special provisions for that purpose. And in the second place, I submit that by both the literal reading and the fair interpretation of the Code, domestic corporations are specially included within the provisional remedy of attachments. The contrary opinion by the court in this case is founded upon two distinct theories. First, because they are not included within the provisions of section 229; and second, because they are not mentioned in section 239. The learned judge excludes them from the terms of section 229 because the term "corporation" in the concluding clause is specially designated as such corporation, and that the word "such" refers to the term "foreign" in the first clause of the same section, under the original provision in relation to "foreign corporations."

Let us look at the circumstances under which this term was inserted, and we shall see that the reference was made to another section of the Code. In 1857, as we have before stated, the legislature amended section 227. The amendment was the insertion of the following clause: "Or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with intent to defraud creditors as hereinafter mentioned." This created a new and distinct ground of attachment and extended the right to any corporation or person, but in order to perfect the application of this clause they inserted, at the same time in section 229, an additional clause in relation to the proof in such cases in these words: "or that such corporation or person has removed or is about to remove any of his or its property from this State, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with the like intent, whether such defendant be a resident of this State or not." This clause was only inserted for the purpose of carrying out the provision of the preceding clause in section 227. "Such corporation or person,' therefore, means "any corporation or person that has done or is about to do any of the things specified in section 227, or more particularly described in section 229, to which the former section refers, by the phrase "as hereinafter mentioned." The term "such corporation," as used in this sense and for this purpose, has no possible connection with the term "foreign corpora

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tion" to which the court assigned it, as such a construction would create a specific right to proceed against foreign corporations in certain cases, where the legislature had previously given that right under all circumstances. The fact of their being foreign corporations was already a ground of attachment in itself.

But the term "such corporation " must of necessity refer either to the term "foreign corporation," or to the preceding term, "any corporation." It cannot refer to the term "foreign corporation," as the clause reads, "such corporation or person, etc., whether such defendant" (i. e., corporation or person) “be a resident of this State or not." A foreign corporation cannot be a resident of this State, it is peculiarly a permanent non-resident, having a fixed domicile at the place of incorporation without power of changing it.* The term must, therefore, refer to the term "any corporation" and include either foreign or domestic corporations, and either resident or non-resident persons.

Again, it is manifest from a comparison between sections 227 and 229, that the latter was only drawn for the purpose of carrying out the provisions of the former, and that each separate clause of the latter was framed for the purpose of carrying out the provision of the corresponding clause in the former section, and consequently in construing the latter section we must connect each portion, clause by clause, with the similar portion of the former section, the same as if each correlative clause in both sections were in fact connected, forming one distinct clause. Thus the first clause in section 229 specifies that "the warrant may issue whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof." Construing this without the aid of the corresponding clause in section 227, we should be forced into the construction that an attachment will lie whenever a cause of action exists, whatever may be its nature, but by connecting it with the preceding clause it is restricted to "actions arising on contract," etc. So the term "foreign corporation," immediately following, has been held by the courts to refer directly to, and be governed in its extent and meaning by, the corresponding phrase a corporation created by or under the laws of any other State, government or country," contained in section 227. Carrying out this principle to its legitimate end, the concluding clause in section 229, in relation to the disposition of property by persons or corporations must be explained and governed by the corresponding clause in section 227, and not by other portions of the same section.

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The second ground on which the court based its decision grew out of the peculiar construction of section 239 of the Code, which provides for the dissolution of the attachment "if the foreign corporation, or the absent, or absconding, or concealed defendant, recovers a judgment," etc. It will be seen that the term foreign corporation, only, is employed in designating

* Drake on Attachments, § 80; Harley v. Charleston Steam Packet Co., 2 Miles (Pa.), 249; South Carolina R. R. Co. v. McDonald, 5 Ga. 531; Day v. Newark I. R. Manuf. Co., 1 Blatchf. 628; Mineral Point R. R. Co. v. Keep, 22 Ill. 9. In Merrick v. Santvoord, 34 N. Y. 218, the Court of Appeals held that a corporation is an artificial person and has no dwelling either in its office, depots, or its shops. Its domicile is the legal jurisdiction of its origin, irrespective of the residence of its officers or the place where its business is transacted. And that a corporation cannot migrate from one sovereignty to another, so as to have a legal, local existence within the latter sovereignty (p. 220). See, also, to the same effect, Stephens v. Phonix Ins. Co. of Hartford, 41 N. Y. 149.

+ Bowen v. The First National Bank of Medina, 34 How. 408.

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