Page images

from recklessness or malice he should be taught better. We are glad that he has not escaped under a demurrer and that the question is to be thoroughly tested.


The doctrine of Gould▾. Hudson River R. R. Co., 6 N. Y. 522, that "the owner of lands adjoining a navigable river in which the tide ebbs and flows has no private right or property in the waters of the river or in the shore between high and low-water mark, and is therefore not entitled to compensation from a railroad company which constructs, in pursuance of a grant from the legislature, a railroad along the shore between high and low-water mark so as to cut off all communication between such land and the river otherwise than across the road," has always seemed to us to be founded in injustice and we are glad to notice that the Supreme Court of Wisconsin has repudiated it. In Chapman v. Oshkosh & Mississippi River R. R. Co., 33 Wis. 629, plaintiffs owned several lots fronting on a navigable river, and were accustomed to use their river front for hitching logs, pulling in rafts, and shipping lumber. Defendant by permission of the legislature built a bridge over said river, and an embankment. The Court held that plaintiffs were entitled to recover for any injury to their riparian rights caused by such bridge and embankment, and expressed its opinion of Gould v. Hudson River R. R. Co., and the other authorities cited on that side


the doctrine of these cases is unsound." The principle of the Gould case was affirmed in Railroad v. Stevens, 3 Am. Rep. 269; 34 N. J. 532, and in Tomlin v. Dnbuque, etc., R. R. Co., 7 Am. Rep. 176; 32 Iowa, 106. Against it, however, is the decision of the House of Lords in Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L. 418, and see cases cited in note to Tomlin v. Dubuque, 7 Am. Rep. 178.

The immunity of municipal corporations from liability to damages from acts of their fire departments was again affirmed in Hays v. City of Oshkosh, 33 Wis. 314. In that case property was destroyed by a fire which was caused by negligence in working a steam fire engine belonging to the city, and which was engaged at the time in extinguishing a fire, being under the control and management of engineers employed and paid by the city. The same principle was decided in Wheeler v. City of Cincinnati, 19 Ohio St. 19; S. C., 2 Am. Rep. 368, where the action was for a failure to supply the necessary reservoirs; in Fisher v. City of Boston, 104 Mass. 87, 6 Am. Rep. 196, which was to recover for injuries sustained through the bursting of a hose attached to a fire engine; in Jewett v. New Haven, 38 Conn. 368; 9 Am. Rep. 382, where the driver of a hose-cart negligently collided with plaintiff's carriage; in Tor

bush v. City of Norwich, 38 Conn. 225; 9 Am. Rep. 395, which was for damages caused by firemen while extinguishing a fire, and for similar causes in Hufford v. City of New Bedford, 16 Gray, 297, and Kelly v. Milwaukee, 18 Wis. 83. The broad ground on which these decisions are based is that fire de

partments are, and firemen act, for the benefit of the public and not for the benefit of the city in its corporate capacity. The same principle would apply to policemen for whose wrongful or negligent act a city would not be held liable, as was recently decided in Pennsylvania. See Weightman v. Washington, 1 Black, 39, where the principle is discussed.

It was remarked by Mr. Justice Story in his work on Agency (134), that "where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subjectmatter will also bind him, if made at the same time and constituting part of the res gesta." This rule is of universal acceptance, though a failure to give it close attention in its application has sometimes led to confusion. In Northwestern Union Packet Co. v. Clough, decided by the United States Supreme Court at the present term, a question arose as to the admissibility of statements made by an agent. The defendant in error brought action against the company for injuries sustained by her while attempting to go on board their steamer. Two days after the accident a witness had a conversation with the captain of the company's boat relative to the accident, and this

conversation was offered and received in evidence. The court held that this was error. The court said: "Declarations of an agent are, doubtless, in some cases, admissible against his principal, but only so far as he had authority to make them, and authority to make them is not necessarily to be inferred from power given to do certain acts. A captain of a passenger steamer is empowered to receive passengers on board, but it is not necessary to this power that he be authorized to admit that either his principal, or any servant of his principal, has been guilty of negligence in receiving passengers. There is no necessary connection between the admission and the act. It is not needful the captain should have such power to enable him to conduct the business intrusted to him, to wit, the reception of passengers, and, hence, his possession of the power to make such admissions affecting his principals is not to be inferred from his employment. 1 Taylor's Ev., § 541. An act done by an agent cannot be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. 1 Taylor, 526. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the 'res gesta.'"

IMPLIED CONTRACTS FOR SERVICES. As a general rule there can be no doubt, that where one renders services for another, to his knowledge and without objection, although without express employment or agreement for compensation, the law will prima facie imply a contract to pay for those services their reasonable value. The application of the rule is most frequently called for in administering upon the estates of deceased persons, and in those cases a very important qualification has been established, namely, that as between relatives or members of the same family the presumption does not arise or attaches with diminished force. In ordinary cases the presumption arises because the law can perceive no other consideration for the rendition of the services than an expected pecuniary reward. As between relatives and members of the same family, however, the law can see another consideration in natural affection or intimate friendship. Judge Pratt draws the proper distinction very accurately in Williams v. Hutchison, 3 N. Y. 312: A contract or promise to pay as a matter of fact, requires affirmative proof to establish it. Under certain circumstances, when one man labors for another, a presumption of fact arises that the person for whom he labors will pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case, and the ordinary dealings between man and man. But where the services are between members of the same family no such presumption will arise. We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them; and hence no right of action will accrue to either party, although the services or benefits received may have been very valuable, and this does not so much depend upon an implied contract that the services are to be gratuitous, as upon the absence of any contract or promise that a reward should be paid." The action in which this language was held was brought by a step-son against his stepfather, to recover the value of services rendered by him while a member of the defendant's family, and while he was receiving board, clothing and schooling at the hands of the latter. In the absence of any express agreement for compensation, the Court of Appeals held that no recovery could be had.

In Robinson v. Cushman, adm'r, etc., 2 Denio, 149, the plaintiff was the widowed sister of the deceased, who had invited her to come and make his house her home. She accordingly went, with her daughter, and both remained with him about fourteen years, rendered services to him, were clothed by him, and the daughter was educated by him. There was no express contract proved, but the plaintiff relied upon a sealed note made by the deceased, never delivered, but found among his papers, for $2,000 payable to the plaintiff or order, and expressing as its consideration services rendered to the maker. A

judgment for $2,000 in favor of the plaintiff was set aside by the Supreme Court.

In Davies v. Davies, 9 C. & P. 87, the plaintiff and his wife boarded and lodged in the house of the defendant and assisted him in his business; it was held that neither the service on the one hand, nor the board and lodging on the other, were to be paid for, unless the jury were satisfied that the parties came together on the terms that they were to pay and to be paid.

In Weirs v. Weirs' Admrs., 3 B. Munroe's Rep. 645, the plaintiffs were nephews of the decedent, and had emigrated to this country without property or means, and were taken into his employment, and clothed and decently supported by him; they assisted him in his business, one for twenty, the others for six or eight, years. It was held that the estate was not liable.

In Bowen v. Bowen, 2 Bradf. 336, the plaintiff was a brother of the deceased, and had come to this country at his instance and expense; the deceased kept a small grocery store, and the plaintiff attended it, and was boarded and clothed by his brother. The surrogate of New York said: "In all cases of this kind the evidence should be very clear that the services were performed by the claimant expecting to be paid for them, and that the decedent so understood it or had reason to believe he was to be

charged therefor." The claim was rejected. In this case stress was laid by the court on the facts that although the claim was for five years' services, there was no proof that any claim was ever set up in the decedent's life-time, and there were no accounts kept.

The same subject came before the same tribunal, in Kelly's Estate, 1 Tucker, 28. The claimant was son of the testatrix, and the claim was for the board, etc., of the testatrix and her granddaughter. It appeared that on the death of the claimant's wife, the testatrix and her granddaughter came to live with him, and were treated like other members of his family. The claimant and the testatrix were persons of means. There was no proof of any agreement or understanding in respect to compensation. The surrogate says, "it is but justice to assume that he," the claimant, "anticipated social remuneration, for the services he might render, from the society of these two female relatives." "A presumption exists against claims of this nature, brought forward after the death of one of the parties, and the courts have uniformly shown distrust toward them. Our courts have rejected demands similar to this in many instances, and have admitted none, so far as I have been able to find, without affirmative proof of a distinct understanding to pay money." 'It is, evidently, the policy of our law to discourage these claims for labor and services among and between near relatives, members of the same family. Litigation among parties, so nearly connected, may

[ocr errors]

be almost said to be contra bonos mores. Relatives, between whom a deed for the consideration of 'love and affection' might be made, ought not to be encouraged to prosecute each other, or the estates of the departed, for board, clothing, lodging, education or any of those pecuniary expenses, which, in most families, are rendered without other expectation of reward than the enjoyment of mutual comforts and interests." Which is is sound law, if not very good rhetoric.


Under a Republican form of government, or under a limited monarchy, there is room for dissension between the executive and the judicial powers. They are intended to act as checks upon one another. But where the highest executive officer of a government is also its ultimate law-giver, the courts are apt to become the mere creatures of the sovereign. Occasional exceptions to this rule, as to every other rule, only serve to prove the general law. Probably no king ever reigned more truly independent and absolute than Frederick the Great of Prussia. The bounds of his will were set by himself. His desire, however, was to do justice. In regard to legal matters he undertook to effect sweeping reforms in his kingdom, and constituted courts which were required to dispose of every cause within a year from its origin. But Frederick's courts would not always do his bidding, and he was obliged in one instance at least to yield to them. That instance is worldfamous. When the king was making a park at Potsdam, his royal residence, he needed certain lands owned by a miller and occupied by his mill. The miller would not sell to the king, and the latter threatened to take the land by force. The miller replied that he should appeal to the courts, and the result was that the king gave up his design, and the miller kept his mill. In another instance, not so well known, the king in his determination to effect justice was practically obliged to abolish the court which he had set up. The latter instance, singularly enough, was also in regard to a mill, and it forms the title of this article.

In Pommerzig township, on a little brook flowing into the Oder, was a mill known as Crab-mill, occupied by one Arnold, as tenant, under one Schmettau. Higher up the stream lay Baron Von Gersdorf, who amused himself in fish-husbandry. In the prosecution of this enterprise he constructed a fish-pond, to supply which he diverted water from the brook. This conduct diminished Arnold's supply of water, his mill consequently lay idle a portion of the time, his tolls fell off, and his rent became in arrear. This state of things lasted for several years. His landlord, at last, prosecuted him, obtained judgment, sold the mill for £90, and ousted Arnold. Subsequently, the purchaser sold the mill to Von Gers

[ocr errors]

dorf, who thus got the control of the stream, and could say that all was fish that came to his net. The Arnolds appealed to the Newmark college of judges claiming that as Von Gersdorf had spoiled their business, they ought to be excused from paying rent. As might have been anticipated, the court affirmed the judgment, saying, that if Von Gersdorf had damaged Arnold, the latter had a cause of action against him therefor, but this did not excuse him from the rent. In this state of affairs, Arnold's wife petitioned the king for "a commission of soldierpeople to settle it." The king referred the petition to the justice department, and the latter affirmed the finding. Then Mrs. Arnold petitioned the Grand Chancellor Von Furst, who paid no attention to the matter. Next, Prince Leopold of Brunswick, the king's nephew, applied to Furst for relief for the Arnolds, with the same result. Subsequently the Arnolds again petitioned the king directly, and the king appoints Colonel Heucking, and orders the Custrin magistrates to depute one of their number to act with him, as a commission of inquiry and review. One Neumann was named for the purpose, and the two proceeded to sift the matter to the bottom. But, as Carlyle says, "they saw two bottoms to it the law-gentleman one bottom, the soldier another." The result was a disagreement, and Neumann's court reported to the king that the matter was all right as it stood, without saying any thing about Heucking's dissent. When the latter placed his views before the king there was great indignation on the king's part toward the Custrin court, and he ordered them very peremptorily to rectify the matter. This court thereupon appointed a new commission, who investigated and reported that the matter was all right, except that the Arnolds should have been allowed 67. 128. for corn in the mill when it was sold. Before this result came to the king's attention, the indefatigable Frau Arnold had again petitioned him, and he issued another order, quite mild for Frederick, "In God's name, rectify me that Arnold matter, and let us at last see the end of it." The Custriners answer that all is rectified, and point out the allowance for corn, concluding; (( our sentence we cannot alter; a court's sentence is alterable only by appeal; your majesty is to decide where the appeal is to lie." The king then ordered an appeal to the grand chancellor, and warned the latter to be expeditious. And expeditious he was, for a chancellor, for the next day after the papers came to his hands, with the concurrence of three of his six Raths or judges, he affirmed the decision of the Custrin Raths in every particular. Then Frederick was wroth, for had not one of his soldiers, to wit, Colonel Heucking, given him the rights of the matter? Besides, the king had the gout. And yet, even under all these aggravating circumstances, the king was very patient. His father, who the world knows had not an amiable temper, took a cudgel to certain obstinate

judges under similar circumstances, knocked out their teeth and broke their heads in spite of their wigs. Not so with his son. He did nothing so violent and undignified. He sent for the miserable men, and we have an account of the interview from one of the judges. The king received them sitting, clothed in a dressing gown, with hat and boots on, his gouty legs disposed on stools, one gouty hand in a muff, and the Arnold sentence in the other. He had a short-hand writer in attendance. The chancellor and judges drawn up standing in front of him, like so many school-boys, the king proceeded to interrogate them: "To give sentence against a peasant from whom you have taken wagon, plough, and every thing that enables him to get his living, and to pay his rent and taxes; is that a thing that can be done?" Answer from the class, "No." Question: "May a miller who has no water, and consequently cannot grind, and therefore cannot earn any thing, have his mill taken from him on account of his not having paid his rent; is that just?" Answer from the class, "No." The king: "But here, now, is a nobleman, wishing to make a fish-pond; to get more water for his pond, he has a ditch dug to draw into it the water from a small stream which drives a water mill; thereby the miller loses his water and cannot grind, or, at most, can only grind in the spring for the space of a fortnight, and late in the autumn, perhaps, another fortnight. Yet, in spite of all this, it is pretended that the miller shall pay his rent quite the same as at the time when he had full water for his mill. Of course he cannot pay his rent; his incomings are

(which would have been a good rule for the judges also, it would seem). Every tragedy has a comic side, and so had this. For days immediately after the publication of the protocol, scores of peasants constantly crowded the esplanade directly under the king's windows, all with petitions in their hands, and shouting: "Please his majesty to look at these; we have been still worse treated than the Arnolds!" And after that administration of the law courts was difficult, for the defeated parties would appeal direct to the king. After this king's death, this procedure of Frederick was annulled, and Arnold was decreed to refund the money he had received for damages, and to pay the purchase price of the mill. Frederick's successor compromised the affair very handsomely by paying the money out of his own pocket.

The world rang with this case at the time. It is now remarkable only as a historical and legal curiosity. We suppose that the like could hardly occur again, although, for some reason, lawyers are scarce, and we infer unpopular, in Prussia. Still, it is probably true now as then, that it is hard to make the master of many squadrons listen to the refinements of the law. Inter arma silent leges.

LIABILITY OF JUDGES FOR JUDICIAL ACTS. The following is an extract from Judge Van Brunt's opinion in the case of Lange v. Benedict, to which we have referred in another column. The opinion is said to be a very elaborate one, reviewing all the leading decisions on the question of the liability of judges for official acts: "The general principle which seems to be established is that, in a court of superior or general

gone! And what does the Custrin court of justice jurisdiction which has the slightest claim to jurisdic

do? It orders the mill to be sold, that the nobleman may have his rent. And the Berlin tribunal confirms the same. That is highly unjust, and such sentence is altogether contrary to his majesty's landsfatherly intentions; my name cruelly abused-" The chancellor, who had interrupted him to expostulate, he ordered to be gone, telling him that his successor was already appointed, and the chancellor went without delay. (Imagine the Emperor William ordering the chancellor Bismarck in this fashion!) The rest of the interview was mere angry fulmination, concluding with dismissal of the unfortunate judges to the common town prison. His majesty published a protocol announcing his judgment in the matter, in which he mildly observed that "a court of law doing injustice is more dangerous and pernicious than a band of thieves." His majesty next ordered a commission of inquiry, but prudently took the precaution of directing that its sentence should not be less than a year's confinement in a fortress, dismissal from office, and compensation to the Arnolds for all their losses. The same befell the Custrin magistrates. The damages amounted to £203 148. Von Zedlitz, the prime minister, refused to draw up the sentence; so the king drew it up himself, at the same time applauding his minister for obeying his conscience

tion over the subject-matter, a judge will not be held liable in a civil action for an erroneous decision in favor of such jurisdiction, neither will he be held liable where he has jurisdiction of the subject-matter for excess of punishment, no matter how great such excess may be. Thus, in the present case, the plaintiff being convicted, and the defendant, as presiding judge of the court in which conviction was had, sentenced the plaintiff to a punishment in excess of that allowed by law, yet he was not liable in a civil action to the plaintiff for any damages which he might have sustained by reason of such excessive sentence, because the defendant had jurisdiction both of the subject-matter and the person of the plaintiff. But if there is a clear absence of all jurisdiction, and this want of jurisdiction is known to the judge, no excuse is permissible; and he will be held liable in a civil action. If, therefore, there was a clear absence of jurisdiction in the defendant to pass the second sentence, and this want of jurisdiction was known to him, this action will lie. *




The plaintiff having been convicted, and suffered, and performed the full penalty which the law imposed upon his offense, was entitled to his liberty, and had the lawful right to assert his freedom by force. Under these circumstances, without any authority whatever, and in direct violation of and disregard for those rights which were guaranteed to the plaintiff, both by the common law and the constitution, he is sentenced to imprisonment for an offense which he had already expiated, which facts were known to the defendant at

the time of pronouncing such sentence. At the time that Edward Lange was present in court when the second sentence was pronounced, neither the Marshal nor any other person had the slightest scintilla of right to restrain him of his liberty because of the offense for which he had been convicted; and, in the eye of the law, he was as free as any of the persons who happened to be spectators in the court-room on that day. And I do not think that it will be argued that a judge of a court of general jurisdiction can, at his own will and volition, without observing any of the forms required| by law, imprison with impunity any of the persons who happen to be present within his court. Yet, if the judgment of the United States Supreme Court in this case is sound, this is precisely what was done to the plaintiff by the defendant. I know that it is necessary for the independence of the judiciary that the broadest shield of protection should be thrown around them in respect to their official acts, but this does not require that they should be exempt from all penalties when they clearly act without any claim or jurisdiction. If the United States Circuit Court, as it has frequently been held to be, is a court of limited jurisdiction, then it would appear that under all the authorities, the defendant having acted in passing the second sentence without jurisdiction, he is liable in trespass. I am aware that, assuming the United States Circuit Court to be one of general jurisdiction, the question is not free from difficulty, but I am of the opinion, after a careful examination of the authorities, that a judge of a court of general jurisdiction who attempts to enforce a judgment which he knows to have been satisfied, makes himself liable to an action. The demurrer, therefore, must be overruled, with leave to the defendant to answer on payment of costs."



Commissions.-This action was brought by plaintiff to recover commissions for his services as a broker in procuring a loan upon defendant's farm. The plaintiff was employed by defendant to go and examine his farm and to procure a loan to be secured by a mortgage thereon. Plaintiff was to secure a loan of $20,000 for three years, and if he could not secure that amount defendant agreed to take $10,000. Defendant agreed to pay plaintiff for his services two and one-half per cent on the amount of the loan. Plaintiff secured a loan on the farm of $10,000, which defendant refused to accept, and also refused to pay plaintiff the commission agreed upon. Held, that the provisions of the statute restricting the brokerage for negotiating loans to one-half of one per cent on the amount loaned (1 R. S. 709), apply to all loans without regard to time, and that the contract is therefore void. (Rapallo, J., lissenting.)

Also held, that charges in addition to the prescribed rokerage for extra services not usually necessary in procuring loans, should be separated, so that it may appear whether the compensation is reasonable or only a cover for demanding a larger commission. Cook v. Phillips. Opinion by Church, Ch. J.


1. Larceny: presumption from possession of stolen goods: character of defendant: defendant witness in his own behalf.-The plaintiff in error was convicted of grand larceny, in having stolen from M. about $250 in bank bills. The evidence against him was purely circum

stantial. When he was arrested some of the bills found upon him were recognized by M. as among those stolen. The defense gave evidence of the prisoner's good character. The court charged the jury in substance that if the larceny had been recently committed and the profits of the crime were found upon the prisoner, the law raised the presumption that he was the guilty party, subsequently the jury were directed to consider the question of guilt as one of fact, not only upon this, but upon other proof in the case. Held (Church, Ch. J., and Andrews, J., dissenting), that the first part of the charge was not erroneous, as the jury did not understand therefrom that they were relieved from passing upon the entire question of guilt as one of fact; but, if error, it was obviated by the subsequent part of the charge. Also held, that evidence of the good character of the accused is to be considered by the jury as well where there is direct evidence of the commission by him of the crime charged, as where the evidence is circumstantial. In the former case it is to be considered upon the question of the credibility of the evidence.

Under the provisions of the act in relation to evidence in criminal prosecutions (§ 1, chap. 678, Laws of 1869), while it is optional with one on trial upon an indictment for a criminal offense to become a witness, and while his neglect or refusal to testify cannot create any presumption against him, yet when he has chosen to be a witness, he is made competent for all purposes in the case, and if he can by his own testimony, if innocent, explain and rebut a fact tending to show his guilt, and he fails to do so, the same presumption arises as from a failure to give the explanation by another witness, if in his power to give it.

(Church, Ch. J., and Andrews, J., dissenting.) Slover v. The People. Opinion by Grover, J.

2. Forgery: evidence.- The defendant in error was indicted for forgery in signing the name of one V. as indorser on a promissory note. Upon the trial it was conceded that the prisoner signed the name of V., but it was claimed that he was authorized by V. to do so. Evidence was given on the part of the people that the prisoner had admitted the commission of other forgeries. Held, that the evidence was inadmissible and could not be considered by the jury in determining the question of criminal intent. The People v. Corbin. Opinion by Rapallo, J.


This was an action brought to recover an account for goods alleged to have been sold and delivered by plaintiff at defendant's request to his son. It appeared that the goods were charged to defendant's son. Plaintiff claimed that he was directed by defendant to charge the goods to the son, although the claim was in fact against defendant, and that he had treated it as his own. This defendant denied. Evidence was received on the trial before, the referee, on the part of the plaintiff, under objection, that defendant's son had no property and was entirely irresponsible. Evidence was also received, under objection, that defendant had paid his son's debts to other tradesmen. Held, error. Green v. Disbrow. Opinion by Church, Ch. J.


Release: insurable interest: practice.-This was an action brought to recover the amount of a policy of insurance for $1,500-$500 on dwelling-house; $600 on barn; and $400 on the produce therein. The barn and its contents were destroyed by fire. De

« PreviousContinue »