Central Law Journal. ST. LOUIS, MO., JANUARY 21, 1898. We have been much interested in a pamphlet containing a review of the decision of the United States Supreme Court in the TransMissouri Freight Association Case, known as the "traffic" decision, written by Wm. L. Royall, Esq., of the New York bar. The essay is entitled "the pool and the trust" and is intended to present their side of the case. The author while taking exceptions to the conclusion of the court in the case mentioned, maintains that the proposition he is contending for was not submitted to the court in the argument of that case or considered by it, and therefore the decision cannot be claimed to be a decision against it. The propositions urged by Mr. Royall are that the "trust" is in perfect harmony with the elementary principles of our laws, and that it is under the sanction and protection of the constitution of the United States. In calling attention to this pamphlet we do not assume to indorse either the reasoning or conclusions of its author, but mention it simply as a matter of interest to those who are interested in knowing what is to be said on both sides of this important question. We have also received a pamphlet containing a brief discussion of the law applicable to endowment life insurance policies carried by insolvent debtors, written by Lucius Weinschenk of the Denver bar. The point for which he contends will, perhaps, strike many as being opposed to their preconceived notions on the subject. That a beneficiary of a life insurance policy has a vested interest therein is generally understood. That such is not the law as to endowment life policies, those who have given the subject no investigation will probably be surprised to learn. Such is the contention of Mr. Weinschenk. An investigation of the authorities, which are noted in the pamphlet, he claims sustain the proposition that an endowment life insurance policy, even though payable to another party as beneficiary remains the property of the assured so long as he is alive, all the terms and A man without any money in his pocket goes into a restaurant, orders a good dinner, eats it, and then tells the proprietor he has no money and cannot pay. How is the law to deal with a person who deliberately and fraudulently acts in this way? Such a case does not probably arise very often, but one of the English courts has recently been struggling with the question. There the prisoner was indicted in two counts, the first charging him with having falsely pretended to the prosecutor that he was then able to pay him for certain food, and that he then had and possessed sufficient money to pay for the food, by means of which false pretenses he obtained the food from the prosecutor. The second count was framed under a statute which provides that any person shall be guilty of a misdemeanor "if in incurring any debt or liability he has obtained credit under false pretenses or by means of any other fraud." The jury convicted the prisoner on both counts, but, on appeal, the upper court held that conviction on the first count was improper. It was admitted that the defendant spoke no words which could be construed into a false pretense, and that he did no act to induce the prosecutor to believe anything false, beyond ordering the food and consuming it. It was argued that to convict a person of having made a false pretense by conduct, more than this must be proved, and that it is necessary to show that he actively did something to induce the false belief, and did not merely passively allow the prosecutor to form the false impression. This view the court took, and came to the conclusion that, under the circumstances, there was no evidence upon which the prisoner could properly be convicted upon the first count. the same time, however, the court intimated that it was not intended in any way to throw doubt upon the cases which decide that there may be a false pretense by conduct alone, such as Reg. v. Barnard (7 C. & P. 784), where a person at Oxford, not a member of the university, put on a cap and gown, thereby obtaining goods on credit as if he were an under At obtaining the food by a false pretense. The court held that there was evidence of fraud. But in what did the fraud consist? Unless the fact that he deliberately acted in such a manner as to get the food by leading the prosecutor to believe he was possessed of money to pay for it constituted the fraud, it is difficult to see in what it did consist. And if so acting was the fraud, the line between such a fraud and a false pretense is so fine as probably to be invisible to the majority of eyes. NOTES OF IMPORTANT DECISIONS. graduate, and it was held he was properly con- has made a false representation as to an exvicted of obtaining the goods by a false pre-isting fact and is liable to be convicted of tense. Upon the second court of the indictment, the court held that clearly there was an obtaining of credit. The prisoner was supplied with goods on the implied agreement that he would pay for them in the future, that is to say, at the end of the meal, and the shortness of the time for which credit was given was not material. The court also held that there was ample evidence to prove fraud. The ordinary custom is, that persons eating at restaurants shall pay for the food soon after they have consumed it, and before they quit the premises. The prisoner knew that the food was supplied to him in the belief that he would follow the ordinary custom, and he also knew when he consumed it that he was not in a position to pay for it. This the court held was clearly fraud. Many will agree with the London Solicitors Journal in its criticism of the action of the court in holding that there was no evidence to support the first count. It was admitted by the court that a person may make a false pretense by conduct alone, without making any false statement in words. It was also recognized that it is the universal custom for persons dining at restaurants to pay immediately after the meal, and it was held (in effect) that the prisoner's fraud consisted in taking unfair advantage of this custom. Now, a false pretense is a false and fraudulent representation as to some existing fact, which may be made either by words or by conduct. Nearly every one who dines at a restaurant, at the time he orders his dinner has money in his pocket sufficient to pay for it. Certainly the customer is supplied by the restaurant keeper only in the belief that he is then possessed of so much money, and is able and willing, when he has eaten his dinner, to pay the ordinary and reasonable charges. Is it not fair, then, to conclude that a person who enters a restaurant and orders dinner in the usual way, does, by those very acts, hold himself out to the proprietor as one in the position of other persons who act in a similar manner-i. e., he by his conduct represents that he has in his pocket at the time enough money to pay for what he orders? If, after having made this representation, it turns out that he has not enough money, and that he knew it, and intended to defraud, surely he CONSTITUTIONAL LAW CONTRACT CLAUSE FEDERAL CONSTITUTION-LOTTERY-POWER OF STATE LEGISLATURE.-The Supreme Court of the United States in the case of Douglas v. The Commonwealth of Kentucky, holds that an agreement between an individual and the city of Frankfort Ky., by which the latter became the owner of the lottery scheme devised by that city under authority of law, was not a contract, the obligation of which the State was forbidden by the constitution of the United States to impair, either by legisla tive enactment or constitutional provision, and that the legislature of a State cannot contract away its power to establish such regulations as are reasonably necessary from time to time to protect the public morals against the evil of lotteries. 'In New Orleans v. Houston, 119 U. S. 265, it was decided that while a lottery grant was not a contract within the meaning of the federal constitution, the obligation of which was protected against impairment by the State making the grant, the legislature could not strike down a lottery which the fundamental law of the State had authorized. The court now holds in its latest decision that that court must determine upon its own responsibility in each case as it arises whether that which a party seeks to have protected under the contract clause of the constitution of the United States is a contract, the obligation of which is protected by that instrument against hostile legislation. The court, after commenting upon the decision of the Court of Appeals of Kentucky in Gregory, Ex., V. Trustees of Shelby College Lottery, held that a lottery grant is not in any sense a contract within the meaning of the constitution of the United States, but is simply a gratuity and license which the State, under its police powers and for the protection of public morals, may at any time revoke and forbid the further enactment of the lottery, and that no right acquired during the life of the grant on the faith or by agreement with the grantee can be exercised after the revocation of such grant and the forbidding of the lottery, if its exercise involves a continuance of the lottery as originally authorized. All rights acquired on the faith of a lottery grant must be declared to have been acquired subject to the power of the State to the extent indicated in the opinion. GERS. CARRIERS OF PASSENGERS-WHO ARE PASSENThe courts of a number of the States have recently passed upon the question as to who are passengers within the law relating to liability for injury sustained, the facts in each case determining the relation borne by the injured party to the carrier being some what out of the ordinary. In Illinois Central R. Co. v. O'Keefe, 48 N. E. Rep. 294, decided by the Supreme Court of Illinois, it appeared that a person having a pass boarded a vestibuled train after it had left the depot, stepping on the front platform of the baggage car, the door of which was locked. The conductor, after taking up the tickets, was about to unlock the door to see about the person on the front platform, when a collision occurred and such person was killed. It was held that the relation of passenger and carrier, so as to render the railroad company liable, was not established. In Cleveland, etc. Ry.. Co. v. Wade, 48 N. E. Rep. 12, before the Appellate Court of Indiana, it was held that it is not negligence per se for a railroad company to have attached to its passenger train one or more vestibule cars whose doors are closed and locked. It appeared that the coach next to the rear one was "vestibuled" and stood sixty feet from the platform; that the doors to it and the rear car were locked; that they were not intended for the use of passengers at such station; that the lights in all the coaches were lit; that plaintiff, who had been upon the platform several minutes, got on the front end of the vestibule car about the time the train started; that he did not then know that the door was locked, or that the car was not intended for the use of passengers at such station; that he attempted to pass from the steps of the vestibuled car to the car in front of it while the train was moving, and fell. It was held that the railroad company was not guilty of actionable negligence. The Supreme Court of Texas, in Missouri, K. & T. Ry. Co. v. Williams, hold that one who, without a ticket, boards a train carrying passengers, although prepared to pay his fare, and with a bona fide intention of doing it, is not a passenger if he takes passage on a part of the train not intended for passengers. PAYMENT RECOVERY OF MONEY PAID FOR VOID LICENSE.-In City of Maysville v. Melton, 42 S. W. Rep. 754, it is held by the Court of Appeals of Kentucky, reversing the lower court, that money paid to a city for a license to conduct a lottery is voluntarily paid, and cannot be recovered, though the license affords the licensee no protection, where, with knowledge of the existence of a law forbidding such a license, he insisted that it should be issued to him, asserting that he had a vested right to conduct a lottery, which the State could not take from him. The court after distinguishing City of Owensboro v. Elder, 3 Ky. Law Rep. 255; Trustees v. Hite, 2 Ky. Law Rep. 386; Fechemier v. Louisville, 84 Ky. 306; McMurty v. R. R. Co., 84 Ky. 462; City of Newport v. Ringo's Executor, 87 Ky. 635; Gist v. Smith, 78 Ky. 367, and citing as authority City of Louisville v. Anderson, 79 Ky. 334, and Louisville & N. R. Co. v. Hopkins County, 87 Ky. 605, says that "it seems to be well settled in this State that where taxes are paid to a collecting officer, who has power of distraint, such payment is not a voluntary payment. It is also well settled that where money is paid under a mutual mistake, which in law, morals, and good conscience ought not to be retained, it can be recovered back. The proof in the case at bar does not show that the money paid for the license to carry on a lottery in the city of Maysville was paid through any coercion, but that the payment was sought to be made by the appellee to the authorities of the city of Maysville; that said payment was made to the treasurer of the said city without his solicitation or demand; that when appellee presented the receipt to the mayor, and demanded license, the mayor doubted authority to issue same, and did not do so till urged by the appellee; that the appellee was representing the owners of the combined lotteries of the State of Kentucky; that appellee knew that the legislature of Kentucky had repealed the charters of the companies and franchises under which he proposed to operate. The proof as presented shows that appellee did not pay the money for the license under any mistake of fact or of the law; wherefore the judgment of the circuit court is reversed, with directions to grant a new trial.” SALE IMPLIED WARRANTY. In Hanson v. Hartse, 73 N. W. Rep. 163, decided by the Supreme Court of Minnesota, it was held that upon a sale of a domestic animal to a retail butcher, engaged in the business of slaughtering such animals, and selling their flesh to his customers for their use as food, there is no implied warranty that the animal is fit for food, although the vendor knows the purpose for which the butcher buys it. The court says, in part, that the lower court "submitted the case to the jury exclusively upon the theory that there was an implied warranty on part of the defendant that the meat of the animal was fit for domestic use, and instructed them that if they found that the meat was diseased and unfit for use as food (upon which the evidence was undisputed) the plaintiff would be entitled to recover, unless they also found that at the time of the sale he was advised by the defendant that the animal had a disease that made the meat unfit for the purposes for which the plaintiff intended to use it. As there was no evidence that the defendant so advised the plaintiff, the charge of the court amounted to an instruction to find for the plaintiff, which the jury did. Hence the charge of the court can only be sustained upon the ground that, on the facts, there was an implied warranty on part of the defendant that the animal was fit for food. The doctrine of an implied warranty on the sale of articles intended for food, if it exists at all, does not extend beyond the case of a dealer who sells provisions directly to the consumer for domestic use. It does not extend to sales between dealers, whether wholesale or retail, or to sell again, and not for consumption by the immediate buyer. We are not aware of any well-considered case to the contrary. While there are expressions in some of the cases which seem to favor a contrary rule, yet we think that an examination will show that in most of them it appeared that the seller knew or had reason to suspect at the time of the sale that the article was unsound and unfit for food, and concealed that fact from the buyer, and hence that the action was really one for deceit, and not on a warranty. Indeed it has been urged by able authorities that the doctrine of an implied warranty, even in the sale of provisions by a dealer to the immediate consumer, had its origin in the United States in a misconstruction of the meaning of the language used in 3 Bl. Comm. (p. 165), the claim being that the author only had reference to an action for deceit. And Mr. Benjamin in his work on Sales (section 670, et seq.) argues very forcibly that in England the responsibility of a victualer, butcher or other dealer in articles of food to the immediate consumer, for selling unwholesome food, was one imposed by statute, and did not arise out of any contract of implied warranty. There may be considerations of public policy which should take sales by dealers in provisions for immediate consumption by the purchaser out of the general rule of caveat emptor, but the exception to the rule certainly does not extend beyond that. This is not a new question in this court. Ryder v. Neitge, 21 Minn. 70. See Howard v. Emerson, 110 Mass. 350; Gierous v. Stedman, 145 Mass. 439, 14 N. E. Rep. 538; Benjamin on Sales (Amer. Ed.), note, pp. 647, 648." LIFE INSURANCE PREMIUM POLICY CANCELLED FOR FRAUD-ASSUMPSIT.-In McDonald v. Insurance Co., 38 Atl. Rep. 500, decided by the Supreme Court of New Hampshire, a policy of life insurance contained false statements inserted without the assured's knowledge and through the fraud of the assurer's agent. Upon discovery of the falsity of the statements the company cancelled the policy. In an action by the insured to recover the premium, Mr. Justice Blodgett, in delivering the opinion of the Supreme Court of New Hampshire, said that he might recover the premium so paid, less a deduction for the value of the insurance enjoyed by him during the life of the policy, "and this he may recover in an action for money had and received, which is an equitable action, and may in general be maintained whenever the defendant has money belonging to the plaintiff, which, in equity and good conscience, he ought to refund him." The American Law Register in a review of this case says that "it is submitted that this decision cannot be sustained. If the plaintiff be allowed to recover at all, it must be upon the theory that the fraud of the company's agent entitled the plaintiff to rescind the policy. If, then, he is entitled to rescind, he is entitled to recover the entire premium, because at no time was the policy ever in force as against the insurer (Ins. Co. v. Fletcher, 117 U. S. 519) (1885), and the plaintiff therefore never enjoyed any insurrance. The case of Ins. Co. v. Stalham, 93 U.S. 24 (1870), referred to in the opinion of the court, has no application, for then the policy was in force till terminated by the non-payment of premiums. If the plaintiff can recover at all, his measure of recovery is the entire premium, as that is the sum which in equity and good conscience should be refunded to him. See Martin v. Sitwell, 1 Show. 156 (1691), and Feise v. Parkinson, 4 Taunt. 640 (1812)." NEGLIGENCE-CONTRIBUTORY NEGLIGENCEPROXIMATE CAUSE.-In Willis v. Providence Telegram Pub. Co., 38 Atl. Rep. 947, it was decided that where plaintiff's horse became frightened by a collision with defendant's negligently driven team, and plaintiff seized her horse by the bridle rein in her attempt to prevent him from running away, and was injured in so doing (her baby being in the wagon to which her horse was hitched at the time), the proximate cause of the injury could not be said, as matter of law, to be some act intervening between the collision and the injury. The court said in part: "The doctrine of proximate cause, in cases of accident resulting from the frightening and consequent running away of horses on the highway, as deduced from the numerous adjudications thereon, seems to be that the negligence which causes the fright and consequent running away of the horse is the proximate cause of the injury, and that this is so although some intervening cause contributed to the injury. Busw. Pers. Inj. section 99. At any rate, the question of concurring causes, as held by this court in Yeaw v. Williams, 15 R. I. 20, 23 Atl. Rep. 33, is a question for the jury, under proper instructions, and hence cannot be determined on demurrer, unless, indeed, it clearly appears from the declaration that the proximate cause of the injury was the plaintiff's carelessness. See, also, Wilson v. Dock Co., L. R., 1 Exch. 186. Judge Cooley, in his work on Torts, states the law of proximate cause thus: "If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent." And this summary of the law is abundantly sustained by the authorities. See Add. Torts, sec. 12; Shear. & R. Neg. (2d Ed.), secs. 10, 33; Campbell v. City of Stillwater, 32 Minn. 308, 20 N. W. Rep. 320; Wood v. Rail. road Co., 177 Pa. St. 306, 35 Atl. Rep. 699; Hoag v. Railroad Co., 85 Pa. St. 293; Derry v. Flitner, 118 Mass. 134; Kennedy v. Mayor, etc., 73 N. Y. 365; Sturgis v. Kountz, 165 Pa. St. 358, 30 Atl. Rep. 976; Brown v. Railway Co., 20 Mo. App. 222; Billman v. Railroad Co., 76 Ind. 166, 16 Am. & Eng. Enc. Law, 436, and cases cited; Jagg. Torts, ch. 5; Scott v. Shepherd, 1 Smith, Lead. Cas. (Hare & W. Notes), *549; McGrew v. Stone, 53 Pa. St. 436; Railroad Co. v. Snyder, 18 Ohio St. 399; Connell's Exrs. v. Railway Co., 93 Va. 44, 24 S. E. Rep. 467. In the case of McDonald v. Snelling, 14 Allen, 290, where the question as to the proximate cause of an injury caused by a runaway horse through the negligence of the defendant was very fully considered, the court, in overruling the demurrer to the declaration, said, among other things: "It is clear, from numerous authorities, that the mere circumstance that there have intervened, between the wrongful cause and the injurious consequence, acts produced by the volition of animals or of human beings, does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the negligence, as a result which might reasonably have been foreseen as probable, the legal liability continues." In Mahogany v. Ward, 16 R. I. 479, 17 Atl. Rep. 860, this court recognized the same doctrine; for while it was there held that the independent act of a responsible person arrests causation, and is to be regarded as the proximate cause of the injury, the original negligence being considered merely the remote cause thereof, yet the court said that this rule is subject to the qualification that, if the intervening act is such as might reasonably have been anticipated as the natural and probable result of the original negligence, the original negligence will, notwithstanding such intervening act, be regarded as the proximate cause of the injury, and will render the person guilty of it chargeable." See, also, Lee v. Railroad Co., 12 R. I. 383. It certainly cannot be said that a person who attempts to prevent his horse from running away when it has become frightened by a collision with another team is necessarily guilty of negligence, even though the person in charge of the horse is not in his carriage, and does not actually have hold of the reins at the time of the collision. And this is even more clearly so when a helpless child is in the carriage, and when the first impulse of every rational person would be to prevent the horse from running away. Whether or not the act of the plaintiff in any given case is in fact a rash, or even negligent, one, and, hence, such as would prevent him from recovering in an action of this sort, is for the jury to determine in view of all the circumstances of the particular ease." SALES AS COVER FOR USURY. Among the varied schemes devised by the ingenuity of money lenders for the avoidance of the usury laws, few equal in cleverness that of a pretended sale. Generally, in cases of this character, the sale is only pretended, although at times actual sales are made collateral to a loan of money; and, in either case, if the price of the property be exorbitant, and other circumstances be unfair, the transaction is suspicious of usury. With a bona fide sale the law will not interfere. It is only where the sale or pretended sale is made a device to corruptly secure the pay. ment, in either money or its equivalent, of more than the lawful rate of interest, that the law will intervene. It is therefore of importance to distinguish a sale from a loan. Thus, in Kelly v. Lewis,2 the court said: "To lend is to deliver to another for use, on condition that the thing loaned, or an equivalent of the kind, shall be returned. To lend State bonds would be to deliver them to another for use on condition that the bonds loaned, or other bonds of the same kind, equal in quality, should be returned, and that would not be usury. To deliver so many State bonds to another for use, on condition that an equivalent in money as the par value of the bonds should be returned, would be to sell and not to loan the bonds, and as a naked proposition would not be usury." But such a transaction as the latter would be open to inquiry, and if it should be proved that the sale was only pretended, that the bonds would not command par value, and that there was an intent to violate the law, the transaction would be in effect a loan and usurious. An absolute deed of land will not be set aside for usury; nor can any bona fide sale be successfully attacked for usury. The prices of 1 Shanks v. Kennedy, 1 A. K. Marsh. (Ky.) 65; Andrews v. Pond, 13 Pet. 65, 20 M. F. D. 245; Deircks v. Kennedy, 16 N. J. Eq. 210; Fitzsimons v. Baum, 44 Pa. St. 32; Baggett v. Trulock, 77 Ga. 369, 3 S. E. Rep. 162; Pinch v. Willard (Mich.), 66 N. W. Rep. 42; Chesterfield v. Jansen, 1 Wilson, 286, 2 Ves. 125; Downes v. Green, 12 M. & W. 490. 2 4 W. Va. 461. See Mills v. Crocker, 9 La. Ann. 334; Van Shaack v. Stafford, 12 Pick. 565; Wheeler v. Marchbanks, 32 S. C. Kep. 594, 10 S. E. Rep. 1011. 3 Den v. Dodds, 1 Johns. (N. Y.) Cas. 158. 4 McGill v. Ware, 5 Ill. 21; Primley v. Shirk, 60 Ill. App. 312; Swayne v. Riddle, 37 W. Va. 291, 16 S. E. Rep. 512; Hoyt v. Bridgewater Mining Co., 6 N. J. Eq. 625; Saxe v. Womack (Minn.), 66 N. W. Rep. 269; Wadsworth v. Champion, 1 Root (Conn.), 393; Gruel |