« PreviousContinue »
Devlation froa Route
for the purpose of carriage; and there cannot well be an acceptance without a previous delivery.
The Court of Civil Appcals of Texas has lately held, that a deviation from the stipulated routc, in order to avoid delay,
because it is impossible to follow the regular route Llability for
on account of floods, does not render the carrier an
insurer, and therefore liable for the delay that may be caused by such deviation: International & Gi N. R. Co. v. Wentworth, 27 S. W. Rep. 680. This doctrine is a just one, especially in view of the fact that when the carrier undertakes the shipment of perishable goods (such as live stock), and their transportatica is delayed by an obstruction on the main line, such as a washout, but the raiiznad has a way around the obstruction, by which delay could be avoided, the company will be liable to the shipper for any damages caused by delay, if that way is not followed: Receivers of Mo., K. & T. Ry. Co. v. Olive, (Tex.), 23 S. W. Rep. 526. But if the carrier knows at the time of its undertaking to transport the goods that part of its route is obstructed by floods, the existence of such floods is not such an act of God as will relicve it from liability for injuries to the goods while carried on another route: Adams Exp. Co. v. Jackson, (Tenn.), 21 S. W. Rep. 666. It is true, however, that by a wilful deviation from an agreed route, not caused by stress of unavoidable circumstances, the carrier becomes an insurer, and cannot invoke the benefit of any exceptions in its behalf in the contract of carriage: Robertson v. Nail S. S. Co., Lid., 17 N. Y. Suppl. 459.
According to the Supreme Judicial Court of Maine, in Rogers v. Kenneber Sıcamboat Co., 29 Atl. Rep. 1069, one
who accepts and uses a free pass, as a pure graLlability tuity, on condition that he will assumc all risk of personal injury, must be deemed to have accepted it on that condition, whether he reads it or not; such a contract is not against public policy, and will exonerate the carrier from all liability for the negligence of its servants. This casc was decided on the authority of Quimby v. Boston & Me. R. R., 150 Mass. 365; S. C., 23 N. E. Rep. 205, and Griswold v. N. Y. & N. E. R. R., 53 Conn. 371; S. C., 4 Atl. Rep. 261.
The rule is a fair one, for such a passenger is a mere licensee, to whom the company owes no duty; but it has been extended rather unwarrantably, to the case of a drover or other shipper of goods, who attends them in order to care for his property while in transit: McCauley v. Furness Ry. Co., 8 L. R. Q. B. 57: Poncher v. N. Y. Cent. R. R., 49 N. Y. 263. This is denied, however, by the courts of other states and by the federal courts: Pa. R. R. v. Henderson, 51 Pa. 315; Cleveland, &c., R. R. v. Curran, 19 Ohio, 1; R. R. v. Lockwood, 17 Wall. 357; Ry. Co. v. Shi'cns, 95 U. S. 655: with good reason, for the shipper certainly gives some consideration for his pass, by relieving the carrier, to a certain extent, of the care of his goods. The general rule also extends to the case of a street car passenger, riding on a pass: Muldoon v. Scattle City Ry. Co., 7 Wash. 528; S. C., 35 Pac. Rep. 422. It does not apply, however, to the case of a government mail clerk: Scyboldt v. N. Y., L. E. & W. R. R., 95 N. Y. 562; and some courts deny its validity in toto: G. C. & S. F. Ry. Co. v. MIcGown, 65 Tex. 640.
The Circuit Court for the Western District of North Caro lina has decided, in Porter v. Davidson, 62 Fed. Rep. 626,
that property in possession of a sheriff under Jurlediction process issued by a state court, cannot be taken out of his possession in an action of claim and delivery instituted in a federal court.
In the opinion of the Supreme Court of New York, a city ordinance which provides that if a dog attacks a person, a Constitutional police justice may, on complaint made, order the
owner to kill the dog immediately, and impose a fine for failurc to obey the order, but which does not require that notice and opportunity to be heard be given the owner, is void, as depriving of property without due process of law, since dogs are property in New York: Peo. v. Tighe, 30 N. Y. Suppl. 368.
The Supreme Court of Oklahoma has just decided, in Burke
v. Territory, 37 Pac. Rep. 829, that the power to punish for
contempt is inherent in all courts of record ; that Contempt
the legislature has no power, in the absence of constitutional restrictions, to limit or regulate the inherent power of the courts to punish for contempt ; and that a publication made while a matter is pending in court, charging directly that the action of the court in regard to that matter is an effort to browbeat the grand jury; an effort to bend the grand jury to the will of the judge; is a contempt. This is in full accord with the general rule on the subject, that " when a publication in a newspaper, being read by jurors and attendants in courts, would have a tendency to interfere with the proper and unbiassed administration of the laws in pending cases, it may be adjudged a contempt and punished accordingly:" State v. Judge of Civil District Court, 45 La. An. 1250; S. C., 14 So. Rep. 310. This subject is fully treated in an annotation in 32 Am. L. REG. & Rev. 1046, on the case of Pio. v. Stapleton, 18 Colo. 568 ; S. C., 33 Pac. Rep. 167. See also State v. Waugh, (Kans.), 37 Pac. Rep. 165.
The Supreme Court of Pennsylvania has lately held that an agrcement by a grandfather to pay his daughter $20,000,
and her son $10,000 when he comes of age, if she Public Policy will permit the son to live with him, and be educated by him, she to see him whenever she desires, is not void as against public policy: Enders v. Enders, 30 At. Rep. 129.
The Court of Civil Appcals of Texas has carved out an interesting exception to the general rule in regard to contracts
in restraint of trade, by ruling, in Anheuser-Busck
Brewing Ass'n v. Houck, 27 S. W. Rep. 692, (1) that a combination of persons and firms in a city for the control of the sale of beer and the cessation of competition inter se, is not void at common law as against public policy, although in restraint of trade, since beer is not an article of prime necessity, and its sale is closely restricted by public policy; and (2) that a contract by a brewing association to furnish beer to a dealer in a city in bulk, and not to furnish it in bulk " to any other party" in said city, for one year, is not
Restraint of Trade
void as against public policy and in restraint of trade, so as to prevent a recovery for beer sold thereunder.
The reasoning by which the first branch of the above decision is supported, sufficiently exposes the Aimsiness of the argument by which the Supreme Court of Pennsylvania sought to bolster up its decision in the case of Vester v. Continental Brewing Co., 161 Pa. 473; S. C., 34 W. N. C. 387; 29 Atl. Rep. 102, if, indeed, that Aimsiness is not so patent as to require no effort to point it out. It is difficult to speak seriously of a decision which compares beer to breadstuffs, and speaks of a combination to restrain its sale as being injurious to the public interests. There never was a clearer case of sticking in the bark. There is an excellent annotation on the Nester Case, by G. Herbert Jenkins, in i An. L. REG. & Rev. (N. S.) 639.
So far as the second branch of the decision is concerned, it rests on substantially the same grounds as the first; but is liable to be affected by a grcater variety of considerations, as was the case, for instance, in Niagara Falls Brewing Co. v. Wall, (Mich.). 57 N. W. Rep. 99, where it was held that a retail liquor dealer, who has failed to pay a state license tax, and is actually engaged in illegal traffic, cannot recover from a brewing company for its breach of a contract to sell its beer exclusively to him in a designated town.
The Circuit Court for the District of Massachusetts has ruled, in Littleton v. Ditson, 62 Fcd. Rep. 597, that the proviso
in $ 3 of the Copyright Act of March 31, 1891, Copyright
that, "in the case of a book, photograph, chromo, or lithograph," the two copies required to be delivered to the Librarian of Congress shall be manufactured in this country, does not include musical compositions published in book form, or made by lithographic process.
The Supreme Court of Tennessee has lately decided that the liability of the directors of a corporation, under a charter
providing that if the corporate indebtedness shall Corporations
exceed the capital stock paid in, the directors assenting thereto shall be individually liable for such excess,
is solely for such excess of indebtedness, and to all the creditors of the corporation; and that, therefore, a portion only of the latter cannot maintain an action for their indi. vidual debts · Moulton v. Cornell-Hall-AlcLester Co., 27 S. W. Rep. 672. Truly, a curious doctrine !
The Supreme Court of Indiana has recently passed upon a very interesting question of criminal law, in Beasley v. State, Criminal Low 38 N. E. Rep. 35. in which case it held that when
a husband takes the personal property of his wisc,
under circumstances which would constitute larccny if he werc a third person, he is guilty of that offence. This is correct beyond a doubt, in the present state of the laws relating to the property of married women; but imagine the sensations of the sages of the common law, if such a doctrinc had been propounded to them. The same has been held with regard to arson : Garrett v. State, 109 Ind. 527; S. C., 10 N. E. Rep. 570. Sce, however, Snyder v. Pro., 26 Mich. 106.
In the judgment of the Qucen's Bench Division of England, as given in Qucon v. Silverlock. (1894) 2 Q. B. 766, a count
in an indictment for obtaining a check by false pretences, which charges that the defendant, by
causing a fraudulent advertisemicnt to be inserted in a newspaper, did falsely pretend to the subjects of her Majesty the Queen, that .. by means of which last mentioned false pretencc hc obtained from A. a check, was. sufficient, though it did not alloge the false pretencc to have been made to any particular person.
According to the Supreme Court of Alabama, detinue lies.
by a vcndce of oxen delivered to him under an
exccuted contract of sale, but afterwards wrong. fully seized by the vendor: Barnhill v. Horvard, 16 So. Rep. 1.
The Supreme Court of New York maintains, that a threat