AS MARKED BY DECISIONS SELECTED FROM THE ADVANCE Ballment REPORTS FOR SEPTEMBER. Among the decisions reported during the past month are several that present novel and interesting points of law, as well as some cases of first impression, at least in the particular court. The Court of Common Pleas of New York City has held that a restaurant keeper is liable, in the absence of due care, for the loss of a customer's wraps left in his charge, on the ground that the bailment is not gratuitous, but for profit: Buttman v. Dennett, 30 N. Y. Suppl. 247. This is in accord with the previous decision of the same court in Bird v. Everard, 23 N. Y. Suppl. 1008, and of the Court of Errors and Appeals in Bunnell v. Stern, 122 N. Y. 539; S. C., 25 N. E. Rep. 910. This reasoning would make any tradesman or business man erty put in his possession by customers, as has in fact been held in the case of a tailor: Rea v. Simmons, 141 Mass. 561; S. C., 55 Am. Rep. 492; McCollin v. Reed, 16 W. N. C. 287. Bids liable for prop The Supreme Court of Missouri has ruled that the intent manifested by an advertisement for bids must govern its interpretation; that when the advertisement is nothing more than a suggestion to induce offers for a contract by others, it imposes no liability per se; and that an advertisement reserving the right to reject any or all bids gives the lowest bidder no right to the contract, even if the body advertising for bids acted arbitrarily, capriciously and through favoritism, in awarding the contract: Anderson v. Board of Public Schools, 27 S. W. Rep. 610. It is held by the Supreme Court of New York, in accordance with the general doctrine on the subject, that a deed from a cemetery association to a lot in the cemetery, though absolute in form, conveys no title to the soil, but only a right of burial; and that, therefore, a statute Cemeteries 742 directing a removal of the bodies interred in a cemetery, without providing for compensation to the lot-owners, is constitutional: Went v. Meth. Prot. Ch. of Williamsburgh, 30 N. Y. Suppl. 157. In Meuer v. Chic., M. & St. P. Ry. Co., 59 N. W. Rep. 945, the Supreme Court of South Dakota has held that a Conflict of special contract, made in one state, between a rail Laws road company and a shipper, for transporting property of the latter from a point in that state to a point in another state, is to be interpreted according to the laws of the former state; but that the courts of the other state will not take judicial notice of the laws of the former, and they must be proved as any other fact. If not so proved they will be presumed the same as those of the state where the suit is brought. The same principle is asserted by the Supreme Court of Vermont in Barrett v. Kelley, 29 Atl. Rep. 809, which decides that when a chattel is sold under a contract executed in another state, reserving the legal title to the vendor until the price is paid, the laws of the state where the contract is made will govern the rights of the parties. Similarly, the Supreme Court of Rhode Island has ruled, on the authority of Milliken v. Pratt, 125 Mass. 374, that when a married woman, a resident of one state, enters into a contract, in another state, intended to take effect in that state, which, though valid where made, is invalid in her own state, and the latter afterwards empowers her to make such a contract, the contract may be there sued on: Case v. Dodge, 29 Atl. Rep. 785. See Ruhe v. Buck (Mo.), 27 S. W. Rep. 412, mentioned in 1 Am. L. Reg. & Rev. (N. S.) 664. Conspiracy The Supreme Court of New York has also adopted a very wise and salutary restriction upon the rule of criminal evidence which requires a conspiracy to be proved before the acts and declarations of one conspirator can be given in evidence against his fellow conspirators, by holding in Peo. v. McKane, 30 N. Y. Suppl. 95, that such declarations may, when justice requires it, be admitted before proof of the conspiracy. The Supreme Court of Arizona holds a contrary doctrine, under the provisions of the statutes of that territory: Territory v. Turner, 37 Pac. Rep. 368. This exception, however, is not exactly an innovation, having been asserted for years, though rarely. It may be applied when the state promises to introduce prima facie evidence of the conspiracy during the progress of the trial: State v. Grant, (Iowa), 53 N. W. Rep. 120; and in general, its application rests in the discretion of the court, and is only permissible under particular and urgent circumstances: Hall v. State, (Fla.), 12 So. Rep. 449; State v. Flanders, (Mo.), 23 S. W. Rep. 1086. Constitutional The Court of Appeals of Maryland has recently passed upon one of the questions of constitutional law that continually recur in regard to the taking of property under the right of eminent domain. In Garrett v. Lake Roland El. Ry. Co., 29 Atl. Rep. 830, that court decided that the building of abutments, to be used as the approach for elevated railway tracks, in the centre of the street, was not a taking of the property of abutting landowners, within the meaning of the clause of the constitution, forbidding the "taking" of property for a public use without compensation being first paid therefor or tendered, so as to entitle the landowners to enjoin the erection of the same, until compensation was paid for the injury; and this in spite of the fact that the bill showed that the street was narrowed by the abutments to a mere alley, and alleged that the erection deprived the adjacent premises of light and air. Bryan, J., dissented, in an able and forcible opinion. The decision of the court may have been correct, on the state of facts presented; but it does not carry any very convincing weight of authority. It is unfortunately true that the tendency of recent years has been to narrow the constitutional provisions as to compensation for the taking of property to as slender a compass as possible, in direct violation of every principle of construction, as witness, inter alia, the trolley road cases. But to deny that the building of an elevated railroad is an additional servitude on the street would be sheer nonsense; and accordingly the court rested its ruling on the ground that the deed of the landowners did not cover the soil of the street, and therefore the abutments imposed no burden on them. This is perhaps a tenable view, in the present unsettled state of opinion in regard to the ownership of the fee of the streets of a municipal corporation; but ought to vanish with a clear understanding of that point. The true solution of the problem seems to be this. Strictly, in spite of all dicta to the contrary, a municipal corporation does not own the fee of the streets. It owns only the casement of the public therein, and holds it in trust for the public; and can therefore apply it to none but public uses, a restriction which would not exist, if it owned the fee. The casement, however, is co-extensive with the use of the land, and the fee is therefore a mere reversionary interest, contingent on the surrender of the rights of the public on the vacating of the street. But to hold this would be an absurdity, for this reversion may never occur, or if it occur, there might be no heir of the original owner to receive it. A better doctrine would be, to hold that the deeds of the original owner to his vendees of lots bordering on such streets, though nominally bounded by the street, extended to the centre thereof, just as a deed of land bounded by a stream extends ad filum aquæ, unless the contrary intention is clear. On such a view, the erection in the present case would be a burden on the plaintiff lot-owners, and they could recover. But the chief objection to such a doctrine is, that it would remove a very efficient means of protecting the corporations which exercise the right of eminent domain, and it is therefore not likely to be adopted. The Supreme Court of California holds, that when a statute does not authorize a change of venue for bias, prejudice or partiality of a judge, it is a contempt of court to present an affidavit for a change of venue, alleging those grounds: In re Jones, 37 Pac. Rep. 385. Contempt In Allen v. Leavens, 37 Pac. Rep. 488, the Supreme Court of Oregon has ruled that when goods are sold on the written promise of the defendant to accept an order drawn Contract by the purchaser for the amount of the purchase, the indorsement of the purchaser's name upon such promise is not an order on which the defendant will be liable. Contribution A curious question has just been decided in the House of Lords in England, on appeal from Scotland. An employé of a stevedore, injured by a defect in the tackle of a vessel which he was engaged in unloading, brought suit against the vessel for supplying weak tackle, and against the stevedore for reckless negligence in the use of the same. A decree was rendered creating a joint and several liability; but the plaintiff, as was his right, recovered the amount of the judgment against one of the wrongdoers, who thereupon brought action against the other to recover his share. The Lords were of opinion, that in spite of the rule which forbids contribution between joint wrongdoers, and which, were the case an English one, would be applied, on the authority of Merryweather v. Nixan, 8 T. R. 186, the action could be maintained: Palmer v. Wick and Pulteneytown Steam Shipping Co., Ltd., [1894], App. Cas. 318. This decision is not really in contradiction of the general rule, above stated, but presents one of the two clearly defined exceptions to it, arising from the circumstances of the parties. Contribution between tort-feasors is allowed, in the first place, when the parties act in a bona fide belief that their act is lawful, and the wrong arises by construction or inference of law: Vandiver v. Pollak, (Ala.), 12 So. Rep. 473; or when the party secking contribution was honestly ignorant of the fact that the act was wrongful: Johnson v. Torpy, 35 Neb. 604; S. C., 53 N.W. Rep. 575. In the second place, it is allowed when, as in the case discussed, the torts of the two parties are not the same in their nature, though arising from the same conditions, and they cannot therefore be considered as strictly joint tort-feasors. In such a case, the mere fact that the judgment imposes a joint liability, cannot of course alter the true relation of the parties as between themselves. This rule was applied, on a |
