Page images

This has been adopted as the correct vicw in a majority of the courts that have had occasion to pass on the question : Magner v. Pco., 97 III. 320; State v. Randolph, 1 Mo. App. 15; S. C., 3 Cent. L. J. 187; N. Y. Ass'n for Protection of Game v. Durham, 19 J. & S. 306; Roth v. State, 7 Ohio Cir. Ct. 62; S. C. af. 37 N. E. Rep. 259; and the same rule has been applicd to game killed in the state and kept in cold storage: State v. Judy, 7 Mo. App. 524; and to trout artificially propagated : Comm. v. Gilbert, 3; N. E. Rep. 454.

In refreshing contrast is the terse epigrammatic language of Chicf Justicc Paxson, in Comm. v. Iilkcuson, 139 Pa. 298; S. C., 27 W. N. C. 160; 21 Atl. Rep. 14; to the effect that thc object of thc act being the prescrvation of game within the commonwealth, the court could not assume that it was intended to preserve game elsewhere; and that it would be a forced construction to hold that it was intended to exclude from the markets of the state game killed in other states, where, by the laws of those states, the killing was lawful. This view has been adopted by the courts of Michigan: Pro. v. O'Neil, 71 Mich. 325; S.C., 39 N.W. Rep. 1; and of Massachusetts: Comm. v. Hall, 128 Mass. 410. See also, Allen v. Young, 76 Me. 8o.

There is a stronger objection to this doctrine, however, than that stated above. Many, if not all, of the statutes on this question punish the possession of game out of scason; and it is submitted, that any law forbidding the possession of an article by a person into whose hands it has come lawfully, is an interference with the right of personal property beyond the power of any legislative body.


The judicial scrutiny of gambling transactions seems to grow steadily more severe, and any qualification of the conComing Com tract, which affects the absolute ownership of the

vendee, or evinces an intention to settle on the basis of differences in price, is eagerly seized upon as a badge of illegality. The Supreme Court of California, in the most recent case on the subject, Shecky v. Skinn, 37 Pac. Rep. 393, has ruled, that an agreement between vendor and vendee for

the sale of stock upon payment of a part of the agreed price, with a stipulation that it should bc retained by the vendor as security for the balance, and only be delivered upon full paymcnt, and that the vendor should have the right to sell it at any time, without notice to the vendce, if it should so depreciate in the market as to be worth less than three times the unpaid balance, is a sale on margin and for future delivery, and void; and equally that an agreement that the defendant should act as agent for plaintiff in buying stock for her from third parties, and pay the whole price therefor, two-thirds of which was advanced by the plaintiff, with a stipulation that the stock should be held by the defendant until the balance was paid, and as collateral security for the balance duc on other stock, thc title to remain in dcfcndant while so held by him,-was a sale on margin. This case scems very near the border line.

It has been decided by the Surrogate's Court of Cattaraugus County, New York, that when a minor, ten years old,

has been brought up by a married woman, who

has trcatcd hini as a son, and to whom he is very much attached, the custody of the minor will not be taken away from her and given to his guardian: Wentz's Estate, 30 N. Y. Suppl. 211.

The Supreme Court of Pennsylvania has very justly ruled that when subscriptions have been secured for the purpose

of building a church at a particular place, as a Infanction

mcmorial to a certain person, an injunction will issue to restrain the church society from tearing down that building, and removing the material to a different place, for use in a building to be erected by such socicty at the latter place: Cushman v. Church of Good Shepherd, 29 Atl. Rep. 872.

In the case of The Willamotte Valley, 62 Fed. Rep. 293. the District Court for the Northern District of California has

decided an interesting question as to the conflict

of jurisdiction between the state and federal courts, by holding that a steamship owned by an insolvent corpora

Quardian and




tion, and in possession of a receiver of the property of the corporation appointed by a statc court, but cmployed by him in transporting merchandisc and passengers in connection with the usual business of the corporation, between a port in the state and a port in another state, is not cxempt, by any rule of comity', as in custodia legis, from maritime licns incurred in such other states, and seizure to enforce such liens by libel in the federal courts.

The Supreme Court of Arkansas has just decided, that when a lessce of a quarry agreed to pay a certain royalty on all rock

sold, to furnish the lessor with copies of all conForfeiture tracts to deliver rock, to work the minc in a workmanlike manner, and to do a reasonable amount of work, and also agreed that a failure to perform any of these agreements should, at the option of the plaintiff, forfeit the Icasc; when the lessce used the quarry for two years, furnished no copies of contracts, and did not pay all the rent, but performed all the other covenants, while the plaintiff demanded no copics, till a short time bcforc bringing action, and demanded and received rent many times after a failure to pay according to the terms of the Icasc; and when the lesscc tendered copies of the contracts and all rents due at the commencement of the action—that under such circumstances the plaintiff must be considered to have waived his right to a forfeiture: Little Rock Granite Co. v. Shill, 27 S. W. Rep. 562.

In Fish v. Capuell, 29 Atl. Rep. 840, the Supreme Court of Rhode Island holds, in opposition to the gencral view, that an

instrument purporting to convcy all the standing

wood on a certain lot of land, “ with two years from date hercof, to cut and remove said wood," does not convey any interest in the land, but is a merc license or executory contract, revocable at any time before the wood is cut, and is revoked by the grantor's conveyance of the land to another. This may be true as to contracts in which the consideration is a royalty on the wood cut; but could not be justly applicd to the sale of standing timber for a lump sum. In that case the contract would be executed by the pay



ment of the consideration, or if payable in futuro, perhaps by the very fact of its being so fixed and determinate ; and while it is unnecessary to hold that the buyer had an interest in the land, he would have the right of ingress and egress to cut and remove his property. just as in the case of a sale of standing grain, or potatocs in the ground.

Master and

The House of Lords, in Hewlett v. Allen, [1894] App. Cas. 383. has laid down a rule that will be of great interest to all

those concerned in the [in]voluntary relicf associa

tions that have been established in connection with many large corporations. The plaintiff

, on entering the service of the defendant, had signed an agreement to conform to all the rules and regulations of the defendant's works, one of which was that all employés should become members of the sick and accident club. In accordance with the rules of this club, weekly payments were made to the club treasurer by the firm on account of each employé, and from the fund thus established relief was given to members in case of sickness or accident. The plaintiff received each week a ticket, showing the gross amount of wages due her, and a weekly deduction on account of the payment to the club, the balance alone being paid her. She never required and never received any relief from the fund. After Icaving the employ of the defendant she brought an action to recover the amount thus retained, alleging that it was in violation of the English statute, providing that “the entirc amount of the wages earned by or payable to any artificer . . . shall be actually paid to such artificer in the current coin of this realm and not otherwise." But the lords held, affirming (1892) 2 Q. B. 662, that the retention of the club ducs was not unlawful, on the principle that any payment made by an employer, at the instance of a person employed, to discharge some obligation of the employé, or to place the money in the hands of some person in whose hands the person employed wishes it to be placed, is as much a "payment in current coin " as if put in the hands of the employé himself.

The District Court for the District of Maryland has recently held that a stevedore, bringing the baggage of a passenger on

board a stcamship, and placing it where requested by the passenger, is not cxcrcising an independent employment, but is. performing a duty which rests on the ship; and it is the duty of the ship's officers to see that risk of accidents to persons on board is avoided: Unitus v. The Dresden, 62 Fed. Rep. 438.

In the opinion of the House of Lords, the failure of a station master to detain a train at the request of a passenger, in order to give an opportunity for arresting persons by whom the passenger has been robbed, and for the recovery of the property stolen, crcates no cause of action against the company: Cobb v. Great ll'estern Ry. Co., ||1894) App. Cas. 419.

The Supreme Court of Washington has lately afforded a curious instance of the judicial propensity to give an unsound rcason for a just decision. In Anderson v. Guincar, 37 Pac. Rep. 449. that court held, that a substitute, hired by an cmployé, stands in the place of the latter, with all of its responsibilitics and liabilities, so far as the master is concerned, and a fellow servant with the employé is a fellow servant with the substitutc, though no contractual relation cxists between the substitute and the master, and though the employé alone is responsible for the wages of the substitutc. This doctrinc is wholly untcnable. It would Icad to mon. strous results if an employć could thus, by his own act, burden the master with responsibility for the acts of a substitute of whose employment he is ignorant. The master was not liable in the case under discussion, it is truc, but because there was no privity betwecn him and the substitute, not because the other servants of the master were fellow servants of the substitute. Or, if this vicw be preferred, the substitute was a mcrc liccnsce, or perhaps a trespasser, to whom the master owed no duty. On the other hand, if the master is cver liable to third persons for the acts of such a substitute, it is not on the ground that the act of the substitute is the act of the master, but that the master, in allowing the substitute to act, though ignorant of the fact of his acting, failed to perform a duty with which he was charged.

The Superior Court of New York City has reasserted the doctrine, abundantly substantiated by the cases cited, that the

[ocr errors]
« PreviousContinue »