Volume 5 Issue 1

1-1901

The Forum - Volume 5, Issue 4 The Forum - Volume 5, Issue 4

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THE FORUM.Vol. V JANUARY, 1901 No. 4

Published Monthly by the Students of

THE DICKINSON SCHOOL OF LAW,CARLISLE, PA.

EDITORS.JAs. N. LIGHTNER, (Chairman).

WILLIAM S. CLARE. BARTON B. BARR. V. ALPRED VALENTINE.

BUSINESS MANAGERS.CHAS. A. PIPER, (Chairman).

Jos. P. MCKEEHAN, C. H. DRUMHELLER, JASPER ALEXANDER.

Subscription, $1.25 per Annum Payable in Advance.

ADVERTISING RATES PER ANNUM.

$30.00 per Page; $15.00 % Page; 0S.00 Y Page; $4.00 Y8 Page.

Address all Communications to

THE FORUM, CARLISLE, PA.

The students have returned, after thethree weeks of vacation, to resume theirwork with renewed energy and determina-tion. The Senior class have taken up thestudy of Corporations in the place of Wills,which latter subject was finished duringlast term. Corporations is to be followedin turn by Bills and Notes, and a shortcourse in Liens. The Middle class havetaken up Executors and Administratorsand Agency in the place of Real Propertyand Sales, which latter subjects were coin-pleted last term.

THE ALLISON SOCIETY.

The work of the Society during the FallTerm has been uniformly successful, andall signs point to the completion of themost successful year in the history of thisorganization. The attendance has beenexcellent, the interest shown by the vari-ous members has been very encouraging,while the roll of members is larger thanever before. The programmes have beengood and the sessions of the House ofRepresentatives were of much value andinterest to all. Various novel and interest-ing programmes have been resolved onfor the future.

On the last night of thetermthe officersfor the next official term of service werechosen. The election resulted as follows:

President-John 0. Adamson.Vice-President--John Kemp.Secretary-Anthony T. Walsh.Treasurer-Samuel E. Basehore.Ex. Committee-Piper, Graul and Lon-

ergan.It is hoped that during the year the

members will all regularly attend andtake their respective parts in the programas appointed. The practice in speakingand debating gained in the meetings is in-valuable to the lawyer, and participationin the work of the society is the duty ofevery member. In order that the AllisonSociety may maintain the high standardset by the past meetings it is essential thatregular attendance and work be the aim ofevery member. With thehearty co-opera-tion of all, the new administration will becrowned with even greater success thanthose past.

THE DICKINSON SOCIETY.

At the last meeting of the society heldbefore the Christmas vacation, an interest-ing debate was had upon the question of

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increasing the U. S. army to one hundredand twenty-five thousand men. Messrs.Schantz, Lambert, Claycomb and Pointstook part. Several entertainingextempor-aneous speeches were rendered on subjectsassigned by the chair.

At the meeting of January 10th, 1901,Mr. Henderson delivered an effective ora-tion. In the debate for the eveningM1lessrs. Gross and Ebbert advocated thatthe State should be districted and thatthe Presidential electors should be electedin their respective districts. The oppositeview was maintained by Mr. Hickernelland Mr. Yeagley.

Extemporaneous speeches formed, asusual, another feature of the program.The society has come to realize the valu-able training gained by this exercise ofthe faculties of sudden invention.

The eledtion of new officers on thisoccasion resulted in the choice of Mr.Points for Presfdent, Mr. Harry Brooksfor Vice-President, Mr. Gross for Secretary,Mr. Gerber for Treasurer and Mr. Ebberbfor Seargent-at-Arms.

The society is in a flourishing conditionat present. Those who do not take anactive part in the work of the literarysocieties in the law school are missing animportant feature .f the educational ad-vantages offered by the school.

WEORCAN CLUB.

This -organizatioi, founded last year,not in opposition to the two regular socie-ties, but as a means of acquiring a fund ofknowledge not within the scope of theregular law societies, has opened the sec-ond year of its existence in an auspiciousmanner. Its membership increased, itspurposes successful beyond even the hopeof its founders, it has become a permanentfactor in the life of the school.

During the term concluded the membersread and discussed Longfellow's "Evange-line" and several instructive and inlerest-ing papers were listened to on this subject.For the long term the literature to be readand studied will be Shakespeare's "KingRichard III."

The objects and purposes of this clubare to gain facility, not so much in debate;that can be gained in the regular societies,

as in the preparation and delivery of ora-tions, essays, etc., and the cultivating ofa good mode of expression in public speak-ing, together with the knowledge of a fewgreat English masterpieces. To this endthe members are earnestly working andthe experience gained, however meagre,will be undloubtedly of some benefit to.them.

SCHOOL NOTES.

During the latter part of last term theSenior class effected the following organi-zation:" Pres., Deal; Vice-Pres., Frank;See., Alexander; Treas., Stauffer.

During the vacation the library hasbeen increased by the additibn of MewsEnglish Case Law Digest, in sixteen largevolumes. This is ceitainly a very valu-able addition to our library, as heretoforethe btudents have been without any assist-ance whatever for the followingout of anysubject in detail of the English cases. Thebooks are all well bound and present anexcellent appearance. The Faculty is tobe commended for purchasing thisvaluableset of books aiid placing them at the dis-posal of the students.

Hon. Edwin A. Jaggard was the guestof.our esteemed Dean for several days dur-ing last month. Mr. Jaggard has gainedquite a wide reputation as an author, hehaving written a general work on the Lawof Torts, which is published as one of theHornbook Series, by the West Pub. Co.He is at present engaged in the writing ofa book on Taxation in Minn. Mr. Jag-gard is a graduate of Dickinson college,and has been a warm college friend of Dr.Trickett for many years. He is at presentan Associate Judge of' the Minn. Courtsand also holds the chair in the Minn. Uni-versity Law School, as Professor of theLaw of Torts.

J. A. Marx, of Kutztown, also a memberof the Berks county bar, was admittedto the Law School at the opening of thepresent term.

Bouton, '03, under the advice of hisphysician, has left school and returned

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.home. Mr. Bouton has been on the sicklist for some time, and we hope for him aspeedy recovery.

The musical organizations of the collegeare doing good work at rehearsals and boththe Glee Club and Orchestra bid fair to at-tain, if anything, more than the usualdegree of proficiency.

Max Stauffer, a violinist of unusualability, is leading the orchestra withgood results. A, W. Mitchell, '01, ispresident of the organizations. The otherLaw men are Holcomb, '01, Osborne, 102,and Hoagland; '03.

An extensive Easter trip is now, beingarranged by the president through thewestern part of the state.

ALUMNI NOTES.

John B. T. Caldwell, '98, is in NewMexico, he having gone there for hishealth. The dread disease, consumption,has set its hand upon him and we hopethe change of climate will succeed in restor-ing his health.

Frank T. Morrow, '98, is engaged in thereal estate and insurance business at Johns-town, Pa.

Eric G. Brotherlin, '96, is at present en-gaged in clerical work at Pittsburg.

William A. Jordan, '99, spent severaldays in town during the holidays. He isat present located in Pittsburg, and reportshaving a lucrative practice.

Harry C. Hubler, '99, was admitted topractice in the several courts of Lacka-wanna county, last October. He also spentseveral days in town during last month.

S. B. S. Stover,'94, and D. Edward Long,'99, are sharing the same office in Cham-bersburg.

Jos. C. Kis.ell, '94, spent several days intown about Dec. lth, 1900.

Edward Taylor Daugherty has receivedthe appointmient of Supervisory Principalof the Mount Jackson High School, Mt.Jackson, Pa.

Jas. B. O'Keefe, '00, was admitted to theLuzerne county bar durlngDecember, 1900,he having passed an excellent examina-tion before the exanining board.

Geo. B. Somerville, 197, now at Windber,Somerset county, was admitted to the barof that county last month. Mr. Somervillehad practiced law with Griswold, '97, atAthens, Pa., for about two years.

Geo. W. Aubrey, '00, was admitted topractice in the several courts of Northamp-ton bounty on motion wthout examina-tion.

J. H. Williams, '96, has received theappointment to the office of Assistant Dis-trict Attorney of Luzerne county.

Samuel B. Hare, '99, was admitted quiterecently to the Blair county bar.

Geo. W. Aubrey, '00, Geo. T. Brown,'97, and Charles E. Daniels,'98, spent sometime in town about January 16th.

J. HARVEY LINE.

J. Harvey Line, Esq., thesubject of thissketch, was born in Dickinson township,Cumberland county, Penna., in 1875. H6received his early education at the district

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school where he lived. His father, a pros-perous and conservative farmer, of the oldschool type, appreciating the advantagesof an education, sent his son to DickinsonPreparatory School to begin his highereducation. After attending that school forseveral years, he entered the Freshmanclass of Dickinson College, September, 1892,where he completed his academic educa-tion, receiving the degree of Bachelor ofPhilosophy, in June, ]8. 6.

Immediately after his graduation hebegan the study of law in the office of Hon.R. M. Henderson, of Carlisle, Penna.,entering Dickinson School of Law inOctober of the same year, from which in-stitution he was graduated in June, 1898,receiving the degree of Bachelor of Laws.Upon this occasion the advanced academicdegree of Master of Arts was conferred uponhim by Dickinson College.

Mr. Line was admitted as a member ofthe Cumberland county Bar, June 8, 1898,and at once began the practice of his pro-fession in a well equipped suite of officeson Court House avenue, Carlisle, ]Penna.

While being one of the younger gradu-ates of Dickinson School of Law, he is aman of uncommon capacity of vigor andintellect. He maintains among his asso-ciates, of no mean character, the reputationof a lawyer of extraordinary judgment andability as is manifested by his success as apractitioner.

Notwithstanding the extensive profes-sional exactions upon his time, he yetfinds opportunity to devote a portion ofhis time to politics. In 1899, he was electedRepublican county chairman, filling theoffice so acceptably to the older heads andparty workers that he was re-elected for asecond term; no better proof, indeed, needbe adduced to justify the opinion that hepossesses the unbounded confidence, respectand admiration of the people of the com-munity, who'are fully able to appreciatehis worth and to compare and measure himwith other men of known eminence. Mr.Line is prominently spoken of as a prob-able candidate for District Attorney.

BOOK REVIEWS.

"Law of Partition in Pennsylvania."Through the kindness of Soney & Sage,publishers of this work, a copy of it has

been placed in the library of the school.Of it Hon. James T. Mitchell, of the Su-preme court, says "It is very full and com-plete and most admirably arranged. Itrust that the profession will promptlyappreciate its value."

"Crimes and Criminals," by J. Sander-son Christison, M. D., is a very interestingand instructive treatise on criminology.The book presents a series of criminal typesin a brief description of the individualcharacter and past history. The chapteron "Crime's Cause and Cure," in whichthe author treats especially of heredity andenvironments as fundamentals, andanother chapter on "Prison Treatment"illustrate the practical bearing of thetreatise. The book contains 177 pages,illustrated, bound in cloth, and in paper,and is published by the Meng PublishingCo., Chicago.

The West Publishing Co., St. Paul,Minn., have recently issued the third edi-tion of "Norton on Bills and Notes," byFrances B. Tiffany. The fact that thiswork has reached the third edition is evi-dence of its value, not only 4s a text bookbut as a reference work for practitioners.Examination will show that it is muchaugmented by a fuller discussion of themost important principles of this branchof the law, together with the publicationof the Negotiable Instrument Law in theappendix. With the usual feature of theHornbook series of bringing out the prin-cipal points in black letter type, it containsa new feature, that of bringing out in thefootnotes in large type the references to thecases found in the Case books published onBills and Notes, the advantages of whichare many.

"Foster's First Book of Practice," byLemuel H. Foster, of the Detroit Bar,second edition. Published by The Col-lector Publishing Co., Detroit, Mich., price$4.00 delivered.

This book has filled a long felt want onthe part of young attorneys and law stu-dents. It treats the subject in a generalmanner and gives the underlying princi-ples of the subject which no other authorhas expressed in such an. admirable style.The authors and publishers are to be corn-

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mended on the excellent style and make-upof the book. The second edition has justappeared which goes to show that the bookis well appreciated by the legal fraternity.

"Counsel upon the Reading of Books,"with an introduction by Henry Van Dyke,Published by Houghton, Mifflin & Co.

The six papers in this book are basedupon lectures arranged by the AmericanSociety for the Extension of UniversityTeaching, and were delivered in Philadel-phia in the winter of 1898-99. They areas follows: "History," by H. MorseStephens; "Memoirs and Biographies," byAgnes Repplier; "Sociology, Economicsand Politics," by Arthur T. Hadley; "TheStudy of Fiction," by Brander Matthews;"Poetry," by Bliss Perry, and "Essay andCriticism," by Hamilton Wright Mabie.Every studentshould read this book whichis not only Interesting but instructive.

The Collector Publishing Co., of Detroit,Mich., have recently put upon the marketa new "Treatise on the Law of RealProperty," by John G. Hawley and Mal-colm McGregoran advertisement of whichappears in this issue. A careful perusal ofthis work will convince one that theauthors have not failed in their attempt totreat this branch of the law in a conciseand up-to-date manner, as well as arrangesystematically the various divisions of theLaw of Real Estate. The book contains600 pages, and the price is $4.50, delivered.

"American Law." A treatise on Juris-prudence, Constitution, and Laws of theUnited States, by James DeWitt Andrews,Chicago, Callaghan & Co., 1900. Pp. lxii,1245. $6.50 net, delivered.

The American Law Review says thatAndrews' "American Law" is the best lawbook of the year; that the book is the re-suit of many years of painstaking labor,care, research, planning and replanning,thinking and rethinking, by a very ca-pable man. The author has attempted topresent the American system of jurispru-dence and laws in a simple and naturalorder, first the origin and growth of prin-ciples, then the present state of the lawfortified by citations carefully selected withspecial reference to their historical value

to the student and practical value to thejurist. The author has endeavored toproduce an institutional elementary treat-ise or commentary, a work for America,such as Blackstone is to England.

The oration of Mr. .ustice Story onChief Justice Marshall, which was deliv-ered at the request of the Suffolk (Mass.)bar on October 15, 1835, has just been pub-lished in pamphlet form of 60 pages.

Story's association with our greatestChief Justice for twenty-four years on thebench has given him opportunities to knowmore of his real character and life thanany other man, and may be considered tobe the most notable of the orations deliv-ered in honor of the eminent patriot andjurist. It was the intention of the pub-lishers to sell this at 50 cents each but theyhave decided to distribute it to those whowill send five cents to cover postage.

AddressLAwYERs' CO-OPERATIVE PUB. CO.,

Rochester, N. Y.

The following is a continuation of theschedule of counsel in the Moot Conrtcases issued in last month's FORUm:

PLAINTIFF DEFENDANT

Case No. 59. Taylor, Marx,Katz, Valentine.Stauffer, W., J.

" 60. Brock, Davis,Detrich, Brooks.

Holcomb, J.61. Kemp, Kern,

Kennedy, Stauffer, W.Gery, J.

" "4 62. Bishop, Gerber,Donahoe, Hickernell.

Barr, J." " 63. Ebbert, Gross,

Longbottom, Jones.Nicholls, J.

" "1 64. McKeehan, Shipman,Gery, Adamson.

Graul, S.65. Lightner, Holcomb,

Harpel, Clark.Johnston, J.

" " 66. Core, Heiriegel,Keeler, Shomo.

Davis, 3.

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67. Bouton, Cannon,Dever, Hoagland.

Adamson, J.68. Lambert, Lauer,

Miller, Schanz,Edwards, J.

69. Vastine, Walsh,Welsh, Lord.

Points, J." 70. Kaufman, Elder,

Mowry, Phillips.Rhodes, F.

71. Stauffer, C. M. Hardesty,Cisney, Mundy.

Lonergan, J.72. Rogers, Schnee,

Watson, Yeagley.Rhodes, J.

73. Delaney, F.A., Wright,McGufflie, Cooper.

Sterrett, J.74. Brennan, DeLaney,Le Roy,

Williamson, Mays.Thorn, J.

75. Claycomb, Fox,Kline,C. S., Sherbine,

Trude, J.76. Crary, Bishop,

Ebbert, Donahoe.Turner, J.

77..Longbottom, Gerber,Hickernell, Gross.

Conry, 3.78. Helriegel, Jones,

Keeler, Core.Boryer, J.

MOOT COURT.

H. BROWN vs. SHEAFFER & CO.

Action for wrongful death-Acts of 185Zand 1855 construed-Right of child to suewhen widow is alive.

FACTS.

Daniel Brown was killed In 1890 in therolling mill of Sheaffer & Co. He wasemployed by this company and while oil-ing the machinery he was caught in thefly wheel. The place through which theemployee had to pass was dangerous. Awidow and five children survived the un-fortunate man. The third child became

of age Nov. 1, 1900, and is the plaintiff Inthis action, seeking to recover damages forthe loss of his father. The mother and thetwo children, who were older than theplaintiff, failed to bring suit at any time.The action was brought Nov. 14, 1900.

CONRY and BISHOP for plaintiff.Rights of widow and of children are dis-

tinct, and the widow cannot defeat therights of the children by her negligence.Powers v. Powers, 179 Pa. 531. In thestatute of limitations affecting the remedyunder the acts of 1851 and 1855, there is avirtual exception in the case of infancy.

The master is here liable for the servant'sinjury. Tissue v. R. R. Co., 112 Pa..91;Schall v. Cole, 107 Pa. 1; Patterson v. R.R. Co., 7Q Pa. 389.

Fox and EBBERT for defendant.The servant assumed the risk and the

master is not liable. Hoffman v. Gough,124 Pa. 505; Stall v. Hoopes, 4 Pa. C. C.474; Reese v. Clark, 146 Pa. 465; De Forestv. Jewett, 88 N. Y. 264.

The widow being alive, a child cannotbring the action, under the act of 1851.Act of 1855 did not modify the earlier actin this respect. R. R. Co. v. Decker. 84Pa. 419; Birch v. Ry., 165 Pa. 339; Lanningv. Penn. Co., 31 W. N. C. 251. Right ofaction is barred by the statute of limita-tions. 2 P. &. L. Dig. 3236.

OPINION OF THE COURT..

The father of plaintiff was employed bySheaffer and Co. in 1890, defendants inthis suit, and while oiling the machineryhe was caught in the fly wheel and killed.The place through which he had to passwas dangerous. A widow and five child-ren survived the unfortunate man. Theplaintiff in this case is the third child ofthe deceased husband, who became of ageNovember 1, 1900, and who is seeking torecover damages for the loss of his father.The mother and two children, who wereolder than plaintift, failed to bring suit atany other time. This action was broughtNovember 14, 1900. There are two ques-tions that present themselves in this suit,viz:

1. Were Sheaffer & Co., defendants, guiltyof negligence?

2. If so, was the plaintiff barred frombringing an action, by the failure of hismother to do so, the right by statute hav-ing survived to her?

It is a well known rule of law that themaster is not responsible for accidents oc-curring to his servant, from the ordinary

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risks and dangers which are incident to thebusiness in which he is engaged; for insuch case the contract is presumed to bemade with reference to such risks. But onthe other hand, where the master volun-tarily subjects his servant to dangers, suchas, in good faith he ought to provideagainst, he is liable for any accident aris-ing therefrom. When the servant, inobedience to the master, incurs a risk ofmachinery, which though dangerous, isnot so much so as to threaten immediate in-jury, or it is reasonably probable may beused safely by extraordinary caution, themaster is liable for a resulting accident.Frazer v. Penn. R. R. Co., 38 Pa. 104; Pat-terson v. Pitts. & Con. R. R. Co., 76 Pa.389. In the case at bar the defect fromwhich the accident occurred was knownto the employee, but as he was injured inthe discharge of a duty imposed upon himby his employers, such knowledge was ad-judged not to raise a presumption of con-current negligence. The servant does notstand on the same footihg with the master.

His primary duty is obedience, and if,when in the discharge of that duty, he isinjured through the neglect of the master,it is butjust that he should be remunerated.

We think, therefore, that the widow hada right to recover damages, but, neitherthe widow nor the two older sons broughtthe action for her. The third son broughtthe action as plaintiff and the questionarose as to the second point, "did the rightto bring the action vest solely in thewidow?" If it did not, the thirdson had aright, as the statute of limitations requir-ing the action to be brought within oneyear, did not begin to run against himuntil he became 21 years of age. But itdepends upon the interpretation given tothe Statute. The act of April 15, 1851,says "whenever death shall be occasionedby negligence, etc, and no suit be broughtfor damages by the party injured duringhis or her life, the widow of any such de-ceased, or if there be no widow, the personalrepresentatives may maintain an actionfor and recover damages for death thus oc-casioned. P. & L. Digest Vol. 2 Column3233, act of April 15, 1851.

The act of April 26, 18.55, says "The per-sons entitled to recover damages for anyinjury causing death, shall be husband,

widow, children or parents of deceased andno other relative." This act did not repealthe act of 1851 nor confer any new rights.It merely designated who could maintainthe action. In other respects the act of1851 is not repealed by the act of 1855either expressly or by implication. Birchv. Pitts. C. 0. & St. L. R. R. Co., 165 Pa.339.

The act did not mean that there was tobe an option as to who could bring thesuit. But this court construes it to mean,that if there was a widow surviving shecould sue, and the right was vested in heralone, and if there was no widow then thechildren could sue, etc. We have exam-ined and considered all the cases referredto in the plaintiff's briefs, and are not con-vinced that they rule the case in hand.

Judgment for defendants.H. P. KATZ, J.

JOHN MARTIN vs. AMOS WITSON.

Infants-Recission of Contract before ar-riving on age-Plea in abatement-Necessaries.

STATENTENT OF THE CASE.

John Martin being but 20 years of age,bought of Amos Witson a typewriter for$90, one half of which he paid at the timehe took possession of the typewriter, andgave a note for 60 days for the balance.After using the typewriter for six months,he became dissatisfied with it and tender-ing the typewriter to Witson, demandedhis note, which had been renewed fromtime to time and also the $45 which hehad paid at the time of the purchase.Witson declined to deliver over the moneyand note, hence this suit for its recovery.The typewriter had been used very hard,and showed signs of severe usage.

PIPER and RHODES, F. for plaintiff.

LIGHTNER and RHODES, J. for defend-ant.

OPINION OF THE COURT.

This action is brought by an infant, torecover money paid by him to the vendorof a typewriter. After the typewriter hadbeen sold, and a portion of the purchasemoney paid, possession of it was taken bythe infant, and he continued to use it for

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the space of Aix months. He then changedhis mind and decided to return the instru-inent, demanding the return of the moneypaid by him. The vendor, thinking themoney equivalent of the damage to thetypewriter at least equal to the money,declined to return it.

The action is in the name of the infant.Regularly, it should have been brought byhis guardian or, there being none, by hisnext friend, but as no plea in abatementhas been filed, no advantage can be takenof this irregularity, Heft v. McGill, 3 Pa.256.

It is well settled that contracts made byinfants are,, generally, voidable by them.An exception exists when the contractwas for the purchase of a "necessary."Such a contract is voidable only as to theprice. If the contract price is, in thejudgment of the jury, more than a reason-able one, only a reasonable price can be re-covered; but the infant cannot repudiatethe contract in toto. It would not be prac-ticable to furnish a list of articles thatmight properly be deemed "necessaries."Food and clothing in certain quantities aresuch. Implements of trade maybe. Run-del v. Keeler, 7 W. 237; Mohney v. Evans,57 Pa. 80. Books, the instruments of theeducation of the mind, may be and we seeno reason to deny to the typewriter thatquality, if the object of its possession is toenable the infant to qualify himself to earna livelihood. Unfortunately, the circum-stances of the plaintiff and his object inmaking the purchase, are not disclosed tous. As it is for the jury to say whetherany given thing is a necessary, the absenceof evidence upon the point prohibits oursubmitting the question to them. Cf. 16Am. & Eng. Encyc., 278, 279.

The typewriter not having been a neces-sary, the infant vendee had the power toannul the sale. Was this power uncon-ditional? The plaintiff wwa still a minor,when he rescinded the sale, and broughtthe action. Should he have waited till hismajority? The right to rescind does notrest on the possession of discretion by theinfant at the moment of rescission, but onthe want of it, at the moment of makingthe contract. In the judgment ofthelaw,the contract ought not to have been made.For the infant to declare what the law has

declared for him, does not require themental strength of an adult. Hence,seemingly, the infant may, even duringhis infancy, annul the contract. Cf. Ricev. Butler, 160 N. Y. 578; McCarthey v.Henderson, 138 Mass. 310; Pyne v. Wood,145 Mass. 558; 16 Am. & Eng. Encyc. 298;or he may wait till a reasonable time haselapsed after reaching his majority.

The plaintiff returned the typewriter,with the intention to rescind the contract.It was not in as good condition as it hadbeen when he received it. But, if the useof a thing sold to an infant, precluded hisrecovering the money spent for it, the im-munity of infancy would be seriously cur-tailed; 16 Am. & Eng. Encyc., 293; Shawv. Boyd, 5 S. & R. 309. There can be nodoubt that when the plaintiff returned thetypewriter to the defendant, he releasedhimself from liability for the unpaid por-tion of the purchase-money. But this ac-tion is for the recovery from the vendor ofthe purchase money paid to him at themaking of the contract. Often a contract,if rescinded, is rescinded in toto. It is notlogically necessary however, when treat-ing a contract as dissolved for the future,to deny its operation so far as past per-formances under it are concerned. Wemay properly adopt the principle of Ricev. Butler, 160 N. Y. 578, that "the plaintiffhaving had the use of the typewriter [bi-cyle] during the time intervening betweenhis [her] purchase and its return, ought,in justice and in fairness, to account for itsreasonable use or deterioration in value.Otherwise he [she] would be making useof the privilege of infancy as a sword, andnot as a shield." As the money paid tothe defendant is the equivalent of thedamage to the machine from its use, wethink we were right in instructing thejury that the verdict should be for the de-fendant.

New trial refused.

THE MARS CONSOIDATED GOLDMINING CO. vs. WM. SKEAN, ETAL.Ejecment for public lands under title ac-

quired from United States.

STATEMENT OF THE CASE.Sometime during the year 1891, one

Robert Womax located a placer claim

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known as the "Womax Placer," situatedin the Cripple Creek Mining District. ElPaso County, Colorado. He afterwardstransferred his interests by mining deed toWillots and Mannix. In September, 1892,Willots and Mannix mad4 final proof uponthis Placer claim, in the United StatesLand Office at Pueblo, Colorado and paidthe purchase of five ($5.00) dollars per acretherefor and received what is known asthe Receiver's Final Receipt. The holderof the final receipt, Willots and Mannix,laid this placer claim off into tow.n lotsand sold from said lots to one WilliamSkean by oral contract in March, 1893,four lots, for which William Skean madepart payment and took a receipt thereforand entered into possession of said lotsand has remained in exclusive possessioneversince. In February, 1894, a Warrantydeed was made for said lots to WilliamSkean apd since that time the grantee hasmade valuable and lasting improvementsby erecting a house on each lot and haspaid all the tax that was legally assessedagainst said lots ever since. Prior to theabove contract, the land in contention wasplatted and filed in regular order as anaddition to the City of Cripple Creek.

After said Receiver's Receipt was issuedand before patent was issued, a protest wasfiled in the land office at Washingtonagainst the issuing of said patent to saidPlacer Claim.

That upon a hearing had on said protestthe Receiver's Receipt to said claim wasset aside and cancelled in March, 1896.

Lode claimants then filed location cov-ering all said placer grounds including thefour lots in question, and in July 9th,1899, a patent for said lode lands was is-sued and they now bring suit in ejectmentagainst William Skean for the recoveryand possession of that portion of the lodeclaim covered by the lots that he claims toown.

William Skean was an innocent pur-chaser of the property in controversy, andrelied upon the Receiver's Final Receipt,issued to Willots and Man nix for the placerdeed to him as conveying a good title.

In my answer to the complaint I haveset up two defenses. First, that the war-ranty deed received from Willots andMannix, prior to the cancellation of the

final receipt to them and from which therewas no appeal taken from the local landoffice, Pueblo, Colorado as conferring validtitle to an innocent purchaser for valuableconsideration.

Second. That if the first contention isnot good we then rely upon being in pos-session under color of title for more thanseven years.

The statute relating to this is as follows:(Every person in the actual possession oflands or tenements, under claim and colorof title, made in good faith, and who shall,for seven successive years, continue in suchpossession and shall also, during said time,pay all taxes legally assessed on such landsor tenements, shall be held and adjudgedto be the legal owner of said lands or tene-ments, to the extent and according to thepurport of his or her paper title. All per-sons holding under such possession bypurchase, devise or descent before saidseven years shall have expired and whoshall continue such possession, and con-tinue to pay the taxes as aforesaid, so as tocomplete the possession and payment oftaxes for the term aforesaid, shall be en-titled to the benefit of this section.)

The above statute conforms exactly tothe Illinois statute on this question, andthe decisions of California, in regard tomining laws, are generally followed in thisState.

Bonvyp and BASEHORtE for plaintiffs.

A patent is conclusive evidence oftitle and the one holding a patent has thelegal title, and in the courts of the UnitedStates the strict legal title prevails. 13Pet. 436; 98 U. S. 425; 4 Pa. 28; 13 Colo.478; 13 Pet. 496; 113 U. S. 550.

The cancellation of the "receiver's re-"ceipt" divested all the rights to the landwhich the defendant may have acquired.Hutchings v. Low, 82 U. S. 77; Trisbie v.Whitney, 76 U. S. 187.

A title cannot be acquired as against theU. S. Government by prescription. 92U.S. 443. 47 Colo., 570; 65 Colo., 94; 82 U. S.,77.

EDWARDS ind Kim:P for defendant.Claims to public mineral lands are con-

sidered as titles for all practical purposes.The holder of a claim has the equitableownership. 15 Colo., 56; 7 Colo., 317; 116U. S., 392.

A "receiver" cannot annul a certificateafter the rights of bona fide purchasershave intervened. Tate v. Carney, 24 How,357.

THE FORUM.

OPINION OF THE COURT.

This is an action of ejec.tment, broughtby The Mars Consolidated Gold MiningCompany, a corporation organized underthe laws of Colorado, against WilliamSkean and others, to obtain possession ofa plot of land situated in the Cripple CreekMining district, El Paso County, Colo-rado.

It appears, from the evidence produced,that the lands in question were, in 1891, aportion of the piublic lands of the UnitedStates and, as both parties to this actionclaim under this common grantor, it willbe well for us to consider the question ofaliening the Public Lands.

Thd lands contained within the bound-aries of the State of Colorado were acquiredby the United States from three distinctand separate sources: The eastern portionwas originally a portion of the Lousianapurchase, made by the Federal Govern-ment in 1803. Central Colorado, in whichthe lands in question are situated, was apart of the Texas annexation, effected in1845. Western Colorado was acquired bythe United States as a partial result of con-quest, being embodied in the vast territoryceded to the United states by Mexico, in1848, after the conclusion of the MexicanWar.

All these lands were held by the UnitedStates, and Congress enacted certain lawsrelative to their occupancy and ownershipby citizens of the United States, and thenature of the question at issue prompts usto consider these laws, and the variouseffects which compliance therewith,wholly or in part, will have on the title ofthe prospective owner.

The United States owned and exercisedfull authority over the entire Territory ofColorado until 1876, when, in accordancewith an act of Congress in relation there-to, the Territory was admitted to State-hood. President Grant then issued hisproclamation declaring Colorado regularlyadmitted as one of the United States.

The position of the United States, inreference to the lands of Colorado after itsadmission to Statehood, is ably defined byJustice McKinley, of the United StatesSupreme Court, in Pollard's Lessee v.Hagan, 3 Howard 224.

The learned judge said: "The United

States holds the public lands within thenew States connected with them by forceof the deeds of cession and the statutes,and not by any municipal sovereigntywhich it may be supposed they possess,or have reserved by compact with the newStates, for that particular purpose."

This is further commented on by JusticeFlandrau, of the Supreme Court of Min-nesota, in The State of Minnesota v. Bach-elder, 5 Minnesota 223. Judge Flandrausaid: "The interest of the United Statesin lands held by it within State bounda-ries is simply proprietary. The sover-eignty residing within the State and itsrights differ only from those of an ordinaryland holder in the State, only as providedin the Constitution of the United Statesand by the terms of the compact betweenthe General and the State Governmentsat the time of the admission of the latterinto the Union."

The position of the Government of theUnited States to the lands of Colorado istherefore set forth in Section 2124 of theRevised Statutes of Colorado, which pro-vides: "To the United States of Americabe conceded the right to dispose of thesoil of the State according to the laws ex-isting or to be enacted by Congress."

This fact may, however, not be consid-ered essential to the determination of thequestion at issue, as Section 15, of the Actof Congress creating the State of Colorado,excepted mineral lands from operationsand grants of the Act. So that we inferthat the lands in question, being minerallands, were still public lands, and entirelyunder the dominion aud authority of theUnited States, and could only be alienedby such methods as were provided by theActs of Congress.

We therefore feel compelled to base ourdecision on the laws of the United Statesas passed by Congress, and construed bythe Federal Courts, as well as on the lawsof the State of Colorado, as construed byits courts. It is observable that the Statecourts have generally observed the Na-tional laws in deciding questions of thisnature, there being no conflicting statutesof Colorado, the Legislature concurringwith Congress in regard to the aliening ofpublic lands.

It being a well-founded fact, long recog-

THE FORUM.

nized by the common law, and generallyunrepealed by statute, that in actions ofejectment the plaintiff must recover uponthe strength of his title ratherthau on theweakness of the title of the defendant,we will consider first the title advancedby the plaintiff, on the strength of whichit asks that the defendants be compelledto deliver up to it the possession of thelands in question.

The plaintiff presents proof that it wasa lode claimant prior to July, lb99, andlater than March, 1896. Also that it filedlocation covering the grounds in question,and that on July 9, 1899, a patent for thesaid lode lands was issued to it.

This, in accordance with the Acts ofCongress, Sections 2318 to 2352, RevisedStatutes of the United States, would ap-parently give it an impregnable title, andone which it would be easy to maintain.The United States Statutes, Section 2318,provide that "title to mineral lands canonly be acquired in the precise mannerprovided by the laws relating to suchlands, and a patent obtained under theprovisions of any other law is void." Thistitle certainly seems to have been acquiredstrictly in accordance with all the provi-sions of the Statutes of the United States.

The defendants, on the other hand, pro-duce another and more complicated chainof title, and we will next proceed to con-sider it. They prove that, in 1891, oneRobert Womax located a placer claim onthe lands in question, and claim title un-der his location, and insist that they havea better right to the premises by virtue ofthe previous occupation by Womax.

In 116 U. S. 687 the learrded court said:"A placer location gives a qualified pos-session of the ground located." This,then, would define the relation of Womaxto the land in question in 1891, and thathe could sell and legally convey his in-terest in the land was upheld in Myers v.Croft, 13 Wallace 291, by Justice Davis.

Womax transferred his interest by min-ing deed to Willots and Mannix, whomwe shall hereafter consider in Womax'sstead, aS they were thus subrogated to hisplace in the matter. Willotsand Mannixmade final proof upon the placer claim inthe United States Land Office, at Pueblo,Colutxuo, paid the full purchase price of

$5.00 per acre, and received a "Receiver'sfinal receipt" therefor.

The issuance of this final receipt to Wil-lots and Mannix gave them a strongequitable title to the land, although thelegal title was still in the United States.This position is ably defined by JudgeHelm, of the Colorado Supreme Court, inArmstrong et al. v. Lower, 6 Colorado 393.The learned judge there held: "Where onehas discovered a vein, and has compliedwith the law in locating a claim thereon,the territory enclosed within its surfaceboundaries is segregated from the publiclands, in so far as all parties, except theGovernment of the United States, is con-cerned. The locator is entitled to 1 he ex-clusive possession and enjoyment thereofuntil it is forfeited orabandoned." Therecan therefore be no question that the titleof Willots and Mannix was good as againstall the world, save the United States.

Before going farther toward the com-pletion of their title, Willots and Mannixlaid the claim off into town lots and soldthem to different of the defendants, par-ticularly to William Skean, in March,1893, four lots, by oral contract. Whetherthis oral contract would be binding in thematter does not appear, being renderedimmaterial by the subsequent action ofthe parties, in Februay, 1894, in makingand delivering a warranty deed, whichthe defendants offer. Skean made a par-tial payment, and took a receipt therefor,entered into possession of the said lots, andhas remained in exclusive possession eversince.

That this conveyance transferred to Wil-liam Skean all the right, title and interestof Willots and Mannix is not disputed, asagainst all other parties, unless the saidWillots and Mannix should claim on ac-count of the balance of the purchase money,which does not appear in this case.

Skean, believing himself the owner,made valuable improvements on the landby erecting a house on each" lot. He alsopaid the taxes which were from time totime assessed against said lots.

This is the title presented by the defend-ants, consisting of a placer, or surface,,claim, a transfer by mining deed, anothertransfer by oral contract, confirmed laterby a Warranty deed, and a continuous

THE FORUM.

possession of over seven years. The Stat-utes of Colorado providing: "Every per-son in the actual possession of lands ortenements, under claim and color of title,made in good faith, and who shall continue in such possession, and shall alsoduring said time pay all the taxes legallyassessed against such lands or tenements,shall be held and adjudged the legal ownerof said lands or tenements, to the extentand according to the purport of his or herpaper title." And further: "All personsholding under such possession by- pur-chase, devise or descent before said sevenyears shall have expired, and who shallcontinue in said possession, aisd continueto pay the taxes, as aforesaid, so as tocomplete the possession and payment oftaxes for the term aforesaid shall be enti-tled to the benefit of this section."

The defendant also claims that the war-ranty deed received from Willots andMannix conferred a valid title on Skean,"1as an innocent purchaser for value."

The plaintiff, in further disputation ofthe defendant's alleged title, proves thatWillots and Mannix, after the issuance ofthe Receiver's final receipt, applied for apatent on the lands in question in orderthat they could complete their title to thepremises. That a protest was filed againstthe issuance. of the patent, that the dis-putants were heard, and that the Re-ceiver's final receipt to the claim wascareelled and set aside in March, 1896.That this caused the lands to revert to theUnited States, the grantor, and that they,the plaintiff, subsequently became lodeclaimants, to whom a patent was issuedon July 9, 1899, and that they have a per-fect and superior title.

Justice Goddard, in the case of theMount Rose Mining, Milling and LandCo. v. Palmer, 26 Colorado 56, said: "Aplacer location and patent confers neithertitle or right of possession to lodes andveins known to exist within its limits atthe time the patent is applied for, and asubsequent locator of such lode or vein isnot a trespasser on the rights of the placerlocator. A locator of a lode mining claimacquires an estate and interest in realproperty, and is treated as the owner infee as to every one, except the UnitedStates. And he has such title as will sup-

port an action to quiet title under Section255 of the Civil Code."

This would probably be the position ofthe respective claimants had the patentbeen issued to Willotsand Mannix and nopatent issued to the plaintiff. And thefact that the first patent was refused, thereceipt cancelled, and the second patent is-sued, but strengthens the position of theplaintiff.

Justice Lamar, in deciding the case ofHastings, etc., Railroad Co. v. Whitney,in 132 U. S. 857, speaking of an almostsimilar condition of affairs as exist in thiscase, said: "The fact that such an edtrymay not be confirmed by the Land Office,on account of any alleged defect therein,or may be cancelled or declared forfeitedon account of non-compliauce with thelaw, or even declared void, AFTER A PAT-ENT HAS ISSUED, on account of fraud, ina direct proceeding for that purpose in thecourts, isan incident inherent in all entriesof pubulic lands." Also, "In the light ofthese decisions, the almost uniform prac-tice of the Department has been to regardland, upon which an entry or record, validupon its face, has been made, as appro-priated and withdrawn from homesteadentry, pre-emption, sale or grant, untilthe original entry be cancelled or declaredforfeited, in which ease the land revertsto the Government as part of the publicdomain, and becomes again subject to en-try under the land laws."

Justice Field, in 14.5 U. S. 535, said:"Lands on which payment of the pur-.chase money has been made, and a Re-ceiver's recei pt given, are severed from themass of Public Land of the United States,but whe-n the pre-emption was cancelled, itsimply restored the land to the mass ofPublic Lands to be dealt with subsequentlyin the same manner as any other publiclands of the United States."

In Foster v. Mora, 98 U. S. 425, JusticeMiller said: "In ejectment proceedings, inthe Courts of the United States, the strictlegal title prevails." Also that "if thereis any equitable reason why the only strictlegal title should not prevail, it is notavailable in a Court of Law."

There can be but little question that thelegal title is in the plaintiff, inasmuch asit has had the patent issued to it. In Bag-

THE FORUM.

nell v. Broderick, 13 Peters 435, the courtsaid: "A patent from the United States isconclusive evidence of a superior and alegal title. Until it issues, the fee is in theGovernment, which, by the patent, passesto the grantee and he is entitled to recoverthe possession in ejectment. It is deniedthat S-tates have any power to declare cer-tificates of purchase of equal dignity witha patent, Congress alone can give themsuch effect."

In Moore v. Wilkinson et al. 13 Califor-nia 478, the courtsaid: "Thejudiciaryinustdetermine whether the prior rights ofthird persons have been interfered with bythe survey and patent, but it cannot cor-reet the one or the other. Thesurvey andpatent are conclusive in actions of eject-ment," also the 15th section of the act ofCongre.ss of 1851, provides: "That the finaldecree of confirmation and patent shall beconclusive between the United States andthe claimants. It must be equally so be-tween persons holding under either of theseparties."

In Waterman v. Smith, 13 California,373, the court said: "The patent is conclu-sive evidence of the right of the patenteeto the land described therein as betweenhimself and a third party who has not asuperior title from a source of paramountproprietorship."

In Moore v. Smaw and Fremont v.Flower, 13 Cal. .73, the court said: "Thepatent from the United States passes to thepatentee all the interest of the UnitedStates, whatever it may be, in everythingcoinncted with the soil, or forming anypart of its bed or fixed to its surface; inshort, in everything embraced within theterm LAND "

Al though at first sight, we were inclinedto the opinion that the defendant was en-titled to the lands in question, we mustadmit that the great weight of authoritytends to an opposiie view. The long lineof precedents have established the fict thatthe action of the officialsof the Land Officeis final and their refusal to grant a patentto a party defeats his legal title to hisclaim.

Justice Clifford, in decidingSecretary v.McOarrahan, 9 Wallace 298, said: "Thegranting of a patent for lands where proof,hearing and decision is necessary, is not a

matter wherein the action of the Depart-ment of the Interior is subject to re-exam-ination by the Supreme Court of the Dis-trict. Mandamus to compel either theCommissioner of the General Land Office,or the Secretary of the In erior to issue apatent cannot be sustained."

The plaintiff in this case relocated thisclaim, as the refusal of the Land Office Offi-cials to issue a patent to the grantors of thedefendants, puts the claim in the positionof an abandoned claim. Justice Helm,of Colorado, in deciding the case of thePelican and Dives Mining Company v.Snodgrasq, 9 Colorado 339. said: "The re-locator of an abandoned mining claim hasthe same length of time to perform each ofthe acts of location subsequent to discoveryas the original locator."

As to the holding of the lauds adverselyfor seven years, it would certainly availthe defendants nothing to hold them thusas, after the cancellation of the receipt. theholding was adverse to the United StatesGovernment, and such adverse holdingcan impart no title.

The fact tlat the land was plotted as anaddition to the ci'y of Cripple Creek wouldnot, in our opinion, make any differencein the acquiring of title as these were nin-eral lands, and no title from the UnitedStates to lands known at the time of saleto be valuable for their minerals, can beobtained under the pre-emption or thehomestead laws, or the town site laws, orin any other way than as prescribed bythe laws specially authorizing the sale ofsuch lands.

The Warranty Deed from Willots andMannix to Skean, "an innocent purchaserfor value," does not affect the claim of theplaintiff. By the deed Skean acquired nomore title that hisgrautors had. As to hisbeing an innocent purchaser for value, thefacts of the case clea;ly establish his puer-ile innocence. This can have no possibleeffect in the trnsferring of title to lands,as the grantee gets no more than hisgrantor has power to convey, under anycircumstances.

This being the case, to hold that a party,having an inchoate and imperfect title,could hold the land against one in whomresided theperfect title, as a general prop-osition of law, unquestionably cannot be

THR FORUM.

maintained. There is nothing in this casewhich impairs the right of the plaintiff tothe full enjoyment of its perfected title.

If the defendant has been wronged, weare of the o. inion that, by institution ofthe proper proceedings, as provided'in theAct of Congress of June 1st, 1874, he canobtain ample redress.

But the judgment of the court, on thiscase as presented, must be entexed for theplaintiff. DANIEL KLINE, J.

THOMPSON vs. JOHNSON.

Bill for a partnership account.

STATEMENT OF THE CASE.

On August 11, 1897, Johnson and JacobThompson formed a partnership for fouryears, for the businessof making carriages.It was agreed that Johnson should devotehis time to the financial part of the busi-ness. At the end of two years, Johnsonceased to give his time and engaged inother business. Thompson was compelledto employ a clerk, at $800 ayear, to do thework thus neglected. By the clerk's neg-ligence, debts amounting to $2600 werelost to the firm. At the end of the fouryears, Thompson filed a bill in equity foran account, and insisted that Johnsonshould be charged with $1600, the salary ofthe clerk, plus $2500, the loss arising fromthe clerk's negligence, plus a share of theprofits of the business that Johnson wentinto, that of casting stoves, and an accountof which the bill also demanded.

DEAL and KEIP for plaintiff.

A partner is chargeable with the valueof personal services witheld. Marsh'sAppeal, 64 Pa. 30. A partner is liable toaccount for losses caused by his neglect or,misfeasance. 6 W. & S. 529; 8 Pa. C. C.Rep. 289.

HOLcomiB and PIPER for defendant.The plaintiff has a remedy at law. Part-

nership losses are to be bornq equally bythe partners A partner has the right toengage in a business separate from thefirm. The clerk was the agent., of theplaintiff and the plaintiff is liable for theclerk's negligence.

OPINION OF THE COURT.

It has been ably argued that JacobThompson, complainant in the bill for anaccount of the partnership of Johnson and

Thompson, has an adequate remedy atlaw, for which reason this appeal shouldbe dismissed; it is true that Johnson wouldbe liable for a breach of the partnershiparticles, resulting in damage, caused byhis leaving the firm before the expirationof the agreed time; but it is also observedthat equity assumes considerable latitudein this one particular department of itsjurisprudence, and will grant the prayersof a bill for an accounting, when a remedydoes exist atlaw, and even when the affairsof a partnership are not complicated.Equity best serves the interests of bothparties and since it has once assumed suchbroad control of partnership affairs, it isnot its policy to dismantle itself. Thebill was properly brought and we refuse todismiss the appeal.

Did the voluntary withdrawal of John-son before the agreed time dissolve thefirm?

In the case of Marsh's appeal 69 Pa. 30;Geddis, one of the members of a partner-ship to endure for ten years, withdrewafter little more than a year's association,and ceased to give his attention to thefinances, (his peculiar ability, as in thiscase, having been the inducement whichgave him that department). Thepartner-ship was held not to have been dfssolved,and he was'charged with services withheld.

In the case before us Johnson quietlyceased to attend to his assigned depart-ment, and engaged in other business, butthis alone is no evidence that he forsookthe firm;' he certainly was at liberty toengage in other ventures, and furthermoreThompson would have no interest in hisast undertaking, no right to an account

from Johnson, for a universal partnershipwas not in contemplation.

Thoulpson had no official notice of hispartner's intent to withdraw, and wouldbe justified in believing.that Johnson stillconsidered himself a member, and further:wouhl be justified (aware of no express in--tention, as aforesaid) in believing that,even though for the time Johnson wasnot attending to the finances, he would,eventually, take his old place.

We consider-the case of Marsh's appealauthority for the doctrine that the firmwas not dissolved.

Thompson, a general partner, then hadpower to employ a clerk to do Johnson's

THE FORUM.

work. It has been held that: "Where bythe articles of partnership, each takes acertain branch, or one is exempted fromthe duty of rendering his personal servicesto the joint business, if he afterwardsdoes render such services at the instanceand request of his co-partners, he will beentitled to a reasonable compensationtherefor." As a corollary in Marsh'sappeal the auditor said: "The proof issufficient to sustain the amount chargedby claimants for loss of service, if, underthe law, they are competent to make thecharge." Williams, J., referring said:"But why should there be a doubt in re-gard to their right to charge the defendantwith the amount of the loss? Why shouldnot a partner be just as responsible for thebreach of his agreement to render personalservices to the partnership, as for thebreach of any other stipulation in the part-nership contract? No good reason can besuggested why there should not be thesame rule of accountability in the onecase as i.n the other.

If Thompson had done Johnson's workin addition to his own he could chargereasonable value therefor, and surely, ifhe had not the time or inclination, sincehe could charge defendant, then he couldfor money paid by him to the clerk.

Thompson rightfully employed theclerk, and if he through negligence lost tothe firm $2.500, it must be equally borne.We are not called upon to decide the inci-dent equities arising above, between John-son and Thompson.

We sustain the learned court below in sofar as it charges defendant with $1600, thevalue of clerk hire to perform services duefrom him but wrongfully withheld, butas to the loss through negligence we reverseto the extent that defendant be chargedwith $1250 (one-half the loss) instead of$2500. As said before, Thompson is notentitled to an account of the profits ofJohnson's subsequent business.

The decree, therefore, so far as inconsist-ent herewith, must be set aside, and rec-ord remitted to Common Pleas with in-structions to distribute the partnershipfunds in accordance with this opinion.

Decree accordingly.

HARE vs. STANTON.

Ditinction between an offer and an4nvita-tion to deal -Effect of* an acceptance bytelegraph of an offer made by post.

STATEMENT OF THE CASE.

Stanton, a wholesale grain dealer inChicago, wrote Hare in Philadelphia, thathe had on hand four cars of grain, thewhole or any part of which he would offerat 60 cents per -bushel. Hare telegraphedthat he wanted "one car-load shipped atonce." After the sending of this telegram,but before its receipt, Stanton received anoffer of 65 cents per bushel for all of hisgrain, and this he accepted. This actionis brought by Hare for breach of contract.

HESS and CONRY for plaintiff.The offer in this case is certain and defi-

nite and binds 'the defendant. Keller v.Ybarru, 3 Cal. 147; Moulton v. Kershaw,.59 Wis. 320; Schnectady v. Holbrook, 101N. Y. 72.

An acceptance by any usual method ofcommunication is suffiient. Hamilton v.Insurance Co.. 5 Pa. 339; Vassar v. Camp,11 N. Y. 441; Trevar v. Wood, 36 N. Y. 310;1 Wharton on Cont. sec. 19.

JOHNSTON and KATZ for defendant.There was no offer here, but simlply an

advertisement. Allen v. Kirwan. 159 Pa.618; Moulton v. Kershaw, 59 Wis. 320;Orr's Appeal, 67 Pd. 19.5.

The acceptance must be communicatedby the same medium as the offer. Hebb'sCase, L. R.. 4 Eq. 9; Thayer v. Ins. Co.,10 Pick 326; Bryant v. Booze, 55 Ga. 438.

OPINION OF THE COURT.

The defendant told the plaintiff that hehad on hand four carloads of grain, thewhole or any part of Which he would offerat 60 cents per bushel. This was such anoffer as could be turned into a bindingagreement by the plaintiff's acceptance.It has been contended that this is merelyan invitation to deal, and several cases,some of them similar to this, have beencited to support the argument. It doesnot appear in this case that the offer wasin the nature of an advertisement, sent toa number of firms or persons trading ingrain. It was a private business letter.In the case at bar the offer was of a defi-nite quantity; four carloads or such smallerquantity as the plaintiff might desire.

THE FORUM.

The plaintiff by his acceptance may makethe quantity certain and complete the es-sential terms of the contract. In this par-ticular, the cases relied upon by the coun-sel for defendant differ materially fromthis one. In the leading case of Moultonv. Kershaw, 59 Wis. 316, the defendantwrote to the plaintiff, "we are authorizedto offer Michigan fine salt, in full carloadlots of 80 to 95 bbls, delivered at your cityat 85 cents per barrel." The plaintiff tel-egraphed in reply, '"You may ship me 2,000barrels Michigan fine-salt, as offered inyour letter." It was held that no contractarose. It was contended for the plaintiffthat there was an offer to sell any reason-able quantitity of salt which the plaintiffmight see fit to order, not less than onecarload. The court decided that in con-struing the contract it could not go outsideof the written communications; that to de-termine what a reasonable quantity wouldbe, the jury would have to inquire into theextent of each party's business; and thatif the letter constituted an offer to sell salt,then it must be held to be all offer to sellany quantity at the option of the plaintiff,not less than one carload. "Rather thanintroduce such an element of uncertaintyinto the contract, we deem it much morereasonable to construe the letter as a sim-ple notice to those dealinrg in salt that theappellants were in a condition to supplythat article for the prices named, and re-questing the person to whom it was ad-dressed to deal with them." Itisevidentthat the controlling feature which turnedthe mind of the court in the defendant'sfavor, was the uncertain nature of the offermade by him.

Again, the same court in referring to thecase of Keller v. Ybarru. 3 Cal. 147, says:"The defendant in that case had a crop ofgrowing grapes, and he offered to pickfrom the vines and deliver to theplaintiff,at defendant's vineyard, so many grapesthen growing in said vineyard as theplaintiff should wish to take during thepresent year at ten cents per pound on de-livery. Ti plaintiff vithin the time andbefore the offer was withdrawn, notifiedthe defendant that he wished to take 1900pounds of his grapes on the terms stated.Tie court held there was a contract to de-liver the 1900 pounds. In this case the

fixing of the quantity was left to the per-son to whom the offer was made, but theamount which the defendant offered, be-yond which he could not be bound, wasalso'fixed by the amount of grapes he mighthave in his vineyard in that year. Thecase is quite different in its facts from thecase at bar." The case of Moulton v. Ker-.shaw is as much different from the presentcase.

In Allen v. Kirwan, 159 Pa. 618, the de-fendant wrote the plaintiff, "we have afewjars that we can offer you at this time forimmediate acceptance." This was heldnot to be such an offer as the defendantcould make binding by an acceptance bytelegram to, "Enter order for 500 grosscomplete goods." Green, J. says, "Theoffer was to sell afew gross. Such an offerwas of an indefinite quantity." In thecases of Slaymaker v. Irwin. 4 Whart. 369,and Sehnectady v. folbrook, 101 N..Y. 4.5,the alleged offers were of a similar charac-ter. In the case at bar. then, the offer wasan effective one; and if the acceptance wasalso suffiient, a binding agreement mustbe held to have resulted.

Stanton made all offer by mail and Hareaccepted by telegram. So far as appearsin this case there was never any expressrevocation of that offer. There was 'notime specified within which the offermust be accepted, and so we must holdthat Hare had a reasonable time in whichto accept. He adopted the speediestmethod at his command in communicatingthe acceptance. It is apparent that he ac-cepted within a reasonable time. If Stan-ton had named the medium by which theacceptance was to be sent. all acceptancesent by another mode would not havebeen effective. Carr v. Duval. 14 Pet. 83.The proposal did not designate a modie ofacceptance, and in such a case, an accept-ance by any usual iode of doing business,such as the post or telegraph, should besufficient. 1 Whart. on Cont. sec. 19.

There are cases holding that one makingan offer by mail, makes the post office hisagent to transmit the acceptance also, andthat an acceptance by any other mode isnot effective. Hebb's case, L. R.. 4 Eq. 9.But the leading cases upon this subject donot proceed upon this theory. To consti-tute a contract there must be a meeting of

THE VORUM

minds of the parties upon some distinctproposition. When the parties are at adistance from each other, communicatingby post or telegraph, it is impossible thatboth should have a knowledge of the con-tract the moment it becomes complete.From necessity in such a case, then, theacceptance must be taken to be completewhen their intention toacceptis manifestedby some overt act. The mailing of a letteror the sending of a telegram is such an act.Vassar v. Camp, 11 N. Y. 441; Trevar v.Wood, 36 N. Y. 307; Taylor v. Ins. Co., 9How. 390; Enmilton v. Ins. Co., 5 Pa. 339;Adams v. Lindsell, 1 Barn. & Ald. 681.

The doctrine that the post becomes theagent of the one making the offer for thepurpose of conveying the acceptance backto him, rests upon an artificial assumption.As a matter of fact it is well known thatthe post does not, in any true sense, be-come his agent at all. An acceptance by ausual mode, which is different from, butmore expeditious than the one employedby the offerer is, we believe, an effectiveacceptance. It is not necessary to decidemore than this in order to render judg-ment for the plaintiff. W. . CLAR, .

OPINION OF THE SUPERIOR COURT.

As the court below has justly said, buttwo questions are here presented for dis-cussion (1) Did Stanton make an offer,and (2) Was this offer validly accepted.

Unfortunately, the precise words usedby Stanton are not before us. The specialverdict fin 's that he wrote to Hare, sttrt-ing that he had four carsof grain, and thathe would offer all or any part of it at 60cents per bushel. It is diffibult to avoidseeing in this a technical offer. The letterwas to a determinate person. It namedthe precise quantity of grain to be disposedof, and the price per bushel. In Allen v.Kerwan, 159 Pa. 612; the vendors statedthat they had a "few jars that we (they)can offer you (the vendee) at this time forImmediate acceptance at $8.00 for 1 qts.,etc. The vendee replied, "enter order for500 gross complete goods." Thecourtheldthat no contract had been made. Theoffer was of a "few jars." The acceptancewas of 500 gross. The non-responsivenessof the acceptance to the offer would havebeen enough to induce the court to say that

there was no contract. Stanton's offerwas of four car-loads or any less amount.The acceptance was of one carload. Weare not to understand from Allen v. Ker-wan, that a proposal of any quantity up toa designated maximum, cannot be treatedas an offer, and that until the party towhom it is sent orders a definite quantityand this order is in turn accepted by theproposer, no contract can emerge.

The next point to be considered is, wasStanton's offer duly accepted? The offerwas by letter. The acceptance was bytelegram. It was in fact received, and, ifnot before, it was at least then, operativeas an acceptance. But before the receiptof it, Stanton, receiviiig the offer of abetter price, had sold the grain to another.

The offer named no time in which it mustbe accepted. It was made by letter. Theofferer was in Chicago, and the offeree inPhiladelphia. A reasonable time in whichto decide whether to accept the offer, andin which to notify Stanton of the accept-ance was by the law accorded to Hare.So far as appears, he decided promptly.He also adopted a more expeditious meansof communicating his decision than thatwhich the offerer employed. Had heused the mail, he would doubtless havebeen held to have exercised reasonablepromptness. Indeed the defendantcensures him for not using it. NowHare's telegram was received in duetime, and Stanton was therefore informedof his acceptance sooner than he couldhave insisted on being informed. In theabsence of a specification of a mod6 ofacceptance, the mode can never be import-ant, if the acceptance is in fact communi-cated in the time required by the offer orby the law. The case then is that Stantonoffered the grain, and, within the reason-able time, Hare informed him that itwas accepted. And this communicationof acceptance occurred without any com-munication of a change of Stanton's pur-pose.

Much energy of logic was expended inthe argument, on the proposition that asthe offer was sent by mail, it could be ac-cepted only by mail. We are aware of nosuch principle. An offer may be orallymade, and accepted by letter; or made byletter and accepted orally. Any ordinary

THE FORUM.

and effective means of communicating ac-ceptance can be employed by the offeree,unless his liberty in this regard has beencurtailed by the offer. The mere selec-tion of one of several practicable ways ofsending an offer over a distance, cannot beunderstood to prohibit the acceptance ofit, by any other mode which is as exped-itious as, or more expeditious than, thatemployed by the offerer.

Had Stanton, after changing his mind,sent a telegram withdrawing the offer itmight be important to know whether thistelegram was dispatched before or after thedispatch of the acceptance, and, if after,whether the mere dispatch of the accept-ance was, in law, an acceptance. Anargument more or less plausible, might bebe made that as the offer was by letter, theacceptance would need to be by letter, inorder that the initial point of its transmis-sion should in law be the date at whichthe offer became irrevocable. But asStanton sent no revocation whether bymail or telegraph, it becomes unnecessaryto decide whether, had he done so afterHare sent his telegram, it would havebeen effectual to withdraw the offer. Wethink, however, that the learned courtbelow correctly held that the acceptanceby telegram was valid from the moment ofthe commencement of the transmission.

Judgment affirmed.

SARAH JONES vs. THOMPSON & CO.

Liability of a new partner for a debt ofthe old firm.

STATEMENT OF THE CASE.

Mrs. Jones lent $1000 to the firm ofThomp-son & Co. in March, 1898, when it wascomposed of Win. Thompson and JaredJackson. and she was credited with thatsum on its books. On June 13th Jacksonsold out his interest in thefirm to AndrewHarper. The busine.s continued to betransacted under the same firm name(Thompson & Co.). Interest was paid everysix months on the note to Mrs. Jones, andcredits for the payments were entered inthe books on July 10, 1898; Jan. 10, 1899;July 10. 1899. Mrs. Jones then demandedthe money and on failure to-get it broughtthis suit against Wim. Thompson and

Andrew Harper trading as Thompson &Co. The sale of Jackson's interest toHarper was by a writing which said thatit was subject to all the existing debts ofthe firm. Harper offered to show that hedid not know of the debt; nor of paymentsof interest on it, and that he would nothave consented that any of the funds ofthe firm should be applied to it.

STAUFFER and WALSH for plaintiff.A person not a party to a contract may

sue upon it amid recover, where one of theparties holds money for his benefit, orwhere one party buys the businessofanoth-er and agrees to become liable for the debtsof the vendor and the plaintiff is a 'reditorof the vendor. Delp v. Brewing Co. 123Pa. 42; Bellasv. Fagely, 19 Pa. 273; Justicev. Tallman, 86 Pa. 147; Wynn's Adm. v.Wood, 97 Pa. 216.

NC ctOLLS and WATSON for defendant.

An incoming partner is not liable forprior debts in the absence of an agreementto that effect between the creditor and theentire new firm. To show an agreementbetween the retiring and the incomingpartner is notsufficient. Krountzv. Bolt-house, 85 Pa. 237; Shamburg v. Ruggles,83 Pa. 148; Hart v. Kelley, 83 Pa. 292; Ashv. Seltzer, 12 Sup. C't. 39.

OPINION OF THE COURT.

The question involved is, whether onepartnership can assign a debt in the trans-fer of its property so that the creditor maysue the vendee or assignee, without actualdischarge of the original debtor. The gen-eral rule is, that a person not a party to acontract can not sue thereon, Campbell v.Laycock. 40 Pa. .448; Morrison v. Buckley,6 Watts 349; Delph v. Brewing Co., 123 Pa.42; but this admits of several very import-ant exceptions, (1) In case of a novation;(2) Where the promise to pay rests uponthe fact that money or property is placedin the hands of the promissor for that pur-pose and (3) where one buys out the stockof a trade.man to take the place, fill thecontracts to pay the debts of the vendor.Adams v. Kuehn, 119 Pa. 85. It seems tous that the case at bar falls within the lasttwo rules and that the new firm composedof the member of the old firm Wn. Thomp-son,and the new member, Andrew Harper,should satisfy the obligation of the oldfirm, Delp v. Brewing Co., 123 Pa. 42. Themere fact that Harper did not know of thedebt's existence is not a valid defense. We

THE VORUM.

can not relieve a person from a voluntaryobligation every time he makes a poorbargain. Hence judgment should begiven for plaintiff and it is so ordered.

HESS, J.

OPINION OF SUPERIOR COURT.

Two questions are presented by this case(1) Did the purchase by Harper of the in-terest of Jackson, impose on him a dutytowards Sarah Jones to pay her debt; and(2) If it did not, did the subsequent pay-ument to her of interest by the new firm,composed of Thompson and Harper, eitherbindingly recognize, or create and impose,such a duty.

It may be conceded, we think, that hadHarper, when making the purchases,promised Jackson to pay the firm debts,any creditors could have taken advantageof this promise, and maintained an actionupon it. Delp v. Brewing Co., 123 Pa. 42;Gregg v. Allen, 180 Pa. 611; Wynn v.Wood,97 Pa. 216. But did he make such a prom-ise? The bill ofsale to Harper of Jackson'sinterest stated that the sale wa' "subjectto all existing debts of the firm." Casesare not infrequent in which land, chargedwith encumbrances, is sold, "under andsubject to" such incumbrances. It hasbeen understood that such a phrase doesnot import a promise by the grantee to paythe debts, but a promise merely to idem-nify the grantor, should he be compelledto pay them; Green v. Rick, 121 Pa. 130 ;Davis' Appeal, 89 Pa. 272; and that theowner of the encumbrance cannot compelthe grantee to discharge it by payment.Moore's Appeal, 88 Pa. 450. Someexpresspromise to pay would need to accompanythis phrase, in order to create a personalliability. Merriman v. Moore, 90 Pa. 78.There ought to be no difference in the sig-nification of the words when used in re-lation to a sale of land, and when used inrelation to a sale of personalty. The saleof Jackson's interest did not detach thepartner's lien for debts, and the words"subject to debts" indicated that Harperwas to take the risk of such debts, and inaddition was to idemnify Jackson, if heshould be compelled to pay them. Theycannot be umderstood to promise to paythe creditors, who, consequently, cannotfound an action on them.

If it be still insisted that these wordscontain a promise, what promise is it? Isit to pay all the debts or only half of them?Is it a several promise to pay all or half,or is it to be regarded as made jointly withThompson? The action is against Thomp-son and Harper, trading as Thompson &Co., and it is quite clear that the negotia-tion between Harper and Jackson cannot,by any ingenuity, be fashioned into apromise bythe new firm. The new firmwas brought into existence by a differentand a later act. If Harper's liability restson his promise to Jackson, Thoftipson'spla4nly does not. Their liabilities, there-fore, having different bases, are not jointand unitary, and cannot be enforced in anaction against them as partners.

We are now to consider whether anyrecognition of the debt, as of the new firmof Thompson & Co.,has in fact made itsucha debt. The business continued to betransacted under the same firm name.Interest was paid to Sarah Jones on July10th, 1898; January 10th, 1899, and July10th, 1899, and credits for such paymentswere entered in the firm's books. They,standing alone, might have justified theinference that the new firm had promisedto pay the note and possibly that in con-sideration thereof, ]M4rs. Jones had agreedto refrain from immediately requiring pay-ment. Could such promise and such con-sideration have been legitimately deducedfrom the evidence, it would have beensufficient to sustain the action. ButHarp-er offered to show that he did not know ofMrs. Jones' debt, nor of the payments ofinterest upon it, and that he would nothave consented that any of the funds ofthe firm should be applied to it. Wethink this evidence should have been re-ceived,.and that, had it been, the courtwould have been obliged to tell the jurythat, if they found it true, they could notproperly infer a contract of the new firmto pay the debt of the old. Thompsonwas not constituted by the formmltion ofa second partnership theagent of Harper topay or to assume debts originating underthe former. It does not appear that heknew of the terms of the sale of Jackson toHarper. Without this knowledge he couldnot have supposed, nor would Harper bebound to suspect that he would suppose

THE FORUM.

that he had authority to pay the Jones'debt. No element of estoppel existsin thecase. Mrs. Jones did not lend the moneyon the supposition that the new firm wasliable for it. It does not appear that sheagreed to extend the credit, on the promiseof Thompson, for the new firm, that itwould pay her. It is not clear that hadthere been such a promise she had fur-nished sufficient consideration to make itbinding. At all events, whether she hador not, was a question which the courtcould not answer. It was for tle jury.

Judgment reversed with venire faciasde novo.

PHILA. PRESS vs. WM. POTTER.

Contract-Sipulation for notice-Mutuatity-Damages.

STATEMENT OF THE CASE.

On May 11, the Press engaged Potter towrite editorials on financial and politicalsubjects for the following 18 months at$150 a month, stipulating that on twoweeks' notice the Press might at any timeterminate the engagement. Potter's arti-cles were satisfactory for several monthswhen he wrote one advocating fiscalmeasures which it was the policy of thePress to oppose. He also wrote a politicalarticle not consonant with the viewsusually advocated by the paper. He wastherefore notified that at the end of onemonth his services would be no longerneeded. Potter, without notifying thePress of his intentions, quit the next day.

The action Is for damages arising fromthe failure to perform his services accord-ing to the contract, alleged to amount to$100.

PHILLIPS and YEAGLEY for plaintiff.A person is bound by any valid contract

he may make. Harrison & Co. v. More &Co., 8 C. C. 224.

A person is liable in damages for failureto carry out his contract. Arthur v.Oaks,11 C. C. A. 216.

WRIGHT and ]KAUFFMAN for defendant.

OPINION OF THE COURT.

The plaintiff's statement reads "On May11th The Press engaged Potter to write ed-itorials ** * for the following eighteenmonths at $150 a month stipulating that

on two weeks' notice The Presq might atany time terminate the engagement." Toengage is to place under obligation to d9 orforbear doing something, to bind by con-tractorpromise; Webster. Anengagementto do or omit to do something amounts toa promise: Rue v. Rue, 21 N. J. Law 369.The declaration further sets out that theparties entered upon the performance ofthese engagements. This language in sub-stance alleges that the defendant madecertain promises, that he undertook eitherexpressly or impliedly to perform certainservices.

It was expressly decided in Pilkingtonv. Scott, 15 M. &. W. 657, that agreementswhereby, in substance, workmen engagedto serve certain persons for a term of yearsat a certain scale of wages with powers tothe employers to dismiss the workmen oncertain notice, were not open to the objec-tion of "being unilateral and not mutual."Says Alderson, B., "The workman agreesto serve them during the seven years oncertain terms and they agree to pay himcertain wages. * * * Then they are to havethe option of dismissing him from theirservices on giving a month's wages or amonth's notice. All these provisions be-ing taken together it appears to-me thatthe agreement points clearly to an under-taking on the part of the master to employthe workman for the seven years subject tothe notice, and on the part of the workmanto serve them for that period on the sameterms. That is a reasonable bargain hav-ing its foundation in a good consideration,namely the agreement to employ him."See also: Hartley v. Cummings, 5 C. B. 247;Down v. Pinto, 2 C. L. R. 547, 6 J. Fisher'sDig. 8860; Parker v. Ibbettson, 4 C. B. n.s. 347; Regina v. Welsh, 2 E. &. B. 857. InMallory v. Mackaye, 34 U. S. C. C. A. R.653, Mackaye covenanted to serve for aperiod of ten years from July 1, 1879, un-less Mallory should tree fit at the end of anyyear to terminate the contract, and Mal-lQry covenanted to pay an annual salaryin equal monthly installments. Mackayein January, 1881, abandoned the employ-ment. The court recognized the mutual-ity of this contract and held that Mackayehad broke his contract and that the con-tract was entire and denied Mackaye anyremedy saying, "A court of equity cannot

THE FORUM.

relieve a party from the consequences ofhis breach of such a contract, and has nomore power to interfere with it than acourt of law."

In Lyon v. Pollard, 20 Wall. 403, "Eitherparty was at liberty to terminate the con-tract by giving thirty days' notice in writ-ing." The breach alleged was that thedefendant dismissed the plaintiff October4th without havinggiven herthestipulatednotice. The defendant asked the court tocharge "that even if the notice of July 11 thhad been wholly withdrawn, the subse-q'ient notice of Sept. 19th was in legal effecta renewal of it, and of itself operated toterminate the contract at the expiration oftlirty days from its date." The court'srefusal so to charge was held to be error.Jubtice Miller says, "The only object orpurpose of any notice in the case was toapprise the party on whom it was servedthat the other party intended to terminatethe contract. The contract itself fixed thetime when this should take place, namelythirty days after the service. *** Thisnotice of intent the contract makes effect-ual at the end of thirty days and so thecourt was asked to instruct the jury. * * *It is probable that if the first notice waswholly waived or abandoned the defend-ant had no right to dismiss the plaintiffuntil the 19th day of October. But evenin reference to damages defendant had aright to show that under the contract andthe notice she had only fifteen days to re-main and was injured only tothat extent."In K. v. Rascher, 10 J. Fisher's Dig. 16295,a clerk was engaged at $1200 per annumand was to have one month's notice of dis-missal. He began his duties on the 2ndof July and served till August 1st. He wasthen obliged by illness to b.e absent till the2nd of September, when he tendered hisservices which were refused. He had inthe meantime received on the 20th of Aug.a letter from his master terminating theengagement. In an action for wages fromAugust ist to September 20th It was heldthat he was entitled to wages for thatperiod. Special terms requiring a certainprevious notice to terminate, even if morefavorable to one than the other, must bemutually respected: Preston v. AmericanLinen Co., 119 Mass. 400; Naylor v. FallRiver Iron Works Co., 118 Mass. 317; Part-

ington v. Womsutta Mills, 110 Mass. 467.It follows from these decisions that Pot-

-ter was bound to serve eighteen monthsunless The Press exerc;ised its option toterminate the engagement in which eventhe was bound to serve so much of theeighteen months as The Press designated.The Press designated the limit of the en-gagement "at the end of one month," butPotter "quit the next day" thereby failingto perform one month's services which bythe terms of the contract he had agreed toperform. The fact that The Press gavePotter one month's notice, being bound togive him only two weeks' notice, can betortured neither into a breach on the partof the plaintiff nor into an excuse for thebreach of the defendant.

With the amount of damages we havenothing to doat this stage of the procedure.

Defendant's deinurrer is therefore over-ruled.

WARREN L. SHIPMAN, J.

OPINION OF SUPERIOR COURT.

The learned argument of the counsel forthe appellant has not convinced us of anyerror comfaitted by the court below.

The engagement of Potter, as we under-stand it, was for 18 months with the rightof the Press to terminate it at any time,after two weeks' notice. Potter had nooption to cease to serve the Press, prior tothe expiration of the 18 months. The op-tion was with the Press alone. Contractsare by no means rare, in which one ofthe contracting parties only has an option;and their validity has not been seriouslycontested. Nor do we understand that thevalidity of this contract is denied. Thedisputation concerns simply the interpre-tation of it.

The character of the service stipulatedfor is such that it was highly importantthat the Pressshould be able to di.continueit. The right to do this it has reserved, onthe condition that the discharge of Pottershould not take place until he had hadtwo weeks' notice. The object of thisnotice is not difficult to divine. Theappellant complains that a four weeks'notice was not authorized by the contract,and that it was, therefore, either null andvoid of result, or that it justified Potter inImmediately quitting his employment.

THE ORUM.

Neither of these propositions can we ac-cept. If two weeks' notice to Potter wasuseful as giving him an opportunity toobtain employ elsewhere, four weeks'notice would be more useful. Dischargeon the day on which it was signified totake effect, was within the competence ofthe Press, if notice preceded it by a fort-night. The notice four weeks before wouldlinger in the memory of Potter, we mustpresume, for the two weeks before and thetwo weeks after the time mentioned in thecontract. It would be singular if excessof that notice, above that which the Presswas bound to give, should injure it.

The giving of the notice did not, in theintention of the parties, simultaneouslyterminate the relation between them.Potter had a right to be continued in theemploy for two weeks thereafter. It wasalso plainly the right ofthe Press that heshould so continue. He had agreed insubstance that he would serve the Pressfor 18 months, or for such shorter timethat it should elect, provided that twoweeks' notice should precede the termina-tion. Within the 18 months the right ofselecting a time for the cessation of theemployment was wholly with the Press.It was exercised with liberality towardsPotter. It was his duty to continue toserve until, the time indicated in thenotice. The able opinion of the learnedCourt of Common Pleas amply justifies theoverruling of the demurrer, and the sub-sequent'submission of the case to the jury.

Judgment affirmed.

COMMONWEALTH vs. WM. ROPES.

Unconstitutional Law-ExpostFacto Law-Police Power.

STATEMENT OF THE CASE.

In 1898 the legislature of the state passedan act forbidding any person to practicethe business of a barber, unless he obtaineda license for which $5.00 was to be paid.Those were entitled to the license who suc--cessfully passed an examination before aboard in the art: the use of the razor, etc.,the diseases of the skin of the face andneck and scalp, the means of avoiding thecommunication of such diseases, etc.

Persons who had been practicing for threeyears were not obliged to stand the exam-ination but on proof of their three years'practice were entitled to the license onpayment of the fee. Ropes had been prac-ticing the barber's trade for two years andeleven months when the law was enacted.He was not able to stand the examinationand therefore did not offer himself to theboard for a license. le continued to prac-tice. The act, making this a misdemeanor,without a license, he was Indicted. Thespecial verdict of the jury finds these facts.

F. H. RHODES and KOSTENEAUDER forCom.

The Act is constitutional and is not un-lawful interference with rights of persons.Coin. v. Taylor, 2 Luzerne Legal Reg. 364;Dent v. W. Va.. 129 U. S. 114. Law can-not be held void because it is contrary toprinciples of justice. Calder v. Bull, 3Dail 385.

STERRETT and MOON for defendant.Act is ex post facto as applied to this

case. Coin. v. Wasson, 3 C. L. M. & R.726. Act unlawfully deprives defendantof property. Ritter'v. Rodger, 8 C. C. 451;Traig v. Kline, 65 Pa. 413.

OPINION OF THE COURT.

The disposition of the case before us in-volves a decision as to the constitutionalityof the statute under which the defendantwas indicted. The decision as to the con-stitutionality of the act, so far as this caseis concerned, comprises two questions.

1. Is the Act ex post facto so far as it re-lates to the offence charged in this case?

2. If not, is the Act an unlawful inter-ference with the rights or liberty of per-sons, or in other words, is the passage ofsuch an Act within the police power of theLegislature? We will consider these ques-tions in order.

The only class of ex post facto laws whichit could be urged this Act comes under isthe first class, enumerated by the UnitedStates Supreme Court in Calder v. Bull, 3Dali. 386, viz., "Every law that makes anaction done before the passing of the law,and which was innocent when done, crtm-inal; and punishes such action." But wethink a careful consideration of the casebefore us shows that this was not done bythe passage of the Act in question, for thejury has found that the defendant withoutlicense continued to practice after the pas-

THE FORUM.

sage of the Act, and the Act making this(to wtt,.the practicing without license afterthe passage of the Act) a misdemeanor, hewas indicted. He is not indicted for anyaction done before the passage of the Act,but on the contrary for actions done afterits passage.

The words of Justice Woodward in Com.v. Taylor, 2 Kulp 364, in which case thedefendant, a physician, was indicted forviolating a statute somewhat analagous inprinciple to the one in question, and undersomewhat similar circumstances, seem tobevery applicable to this case. The learnedJustice said in part, "Nothing done byhim (the defendant) before the Act of As-sembly and which was then innocent, isnow made criminal, nor is he charged withany offense of that character. But it isalleged against him that after the passageof the Act * * * and with full knowledge ofits requirements, lie continued in thepractice of a professibn for which he didnot possess the necessary and legal require-ments."

In Kring v. Mo., 107 U. S. 221, 22.5, Jus-tice Miller in delivering the opinion of thecourt said in regard to ex post facto laws,"Whether it is ex post facto or not relates* !* to the time at which the offensecharged was committed. If the law com-plained of was passed before the commis-sion of the act with which the prisoner ischarged, it cannot as to that offense, be anex post facto law."

In Dent v. W. Va., 129 U. S. 114, 122,the defendant was indicted for continu-ing to practice medicine without havingobtained a certificate from the State Boardof Health as required by the Act of Assem-bly of W. Va. (he not having been prac-ticing long enough to come within the ex-emption from examination contained inthe Act) and his conviction wasaffirmed bythe United States Supreme Court, JusticeField saying, in reply to the objection thatthe Act deprived the defendant of the rightto follow any lawful calling, business orprofession he might choose, "there is noarbitrary deprivation of such right whereits exercise is not permitted because of afailure to comply with the conditions im-posed by the state for the protection ofsociety."

That the law in question is retrospective

is conceded. It took away the right of thedefendant to practice his business exceptupon certain conditions, yet there is nounlawful deprivation, Dent v. W. Va.,sufira, and we are of the opinion that thisdoes not make it unconstitutional, Lanev. Nelson, 2 W. N. C. 216, Grim v.. SeboolDistrict, 57 Pa. 433, and do not feel justifiedin holding it so because it may seem op-pressive. Calder v. Bull, 3 Dallas 386; Com.v. McCloskey, 2 Rawle 373.

We are therefore of the opinion that theAct under which Ropes was indicted is notex post facto as regards this case and doesnot unlawfully deprive him of any rights.We are aware this conclusion is apparentlyinconsistent with that reached in Com. v.Wasson, 29 Pitts. L. J. 434, by so eminenta jurist as Justice Wickes, but we are ofthe opinion that the view above expressedis the correct one anid is supported by prin-ciple as well as authority.

The conclusion reached in regard to thefirst question makes it necessary for us toconsider the second one. That the Legis-lature has power to pass Acts requiringpersons to pass examinations, or in someother mnanner evidence their anility beforepracticing different professions, has beendecided by many courts. But the Act hiquestion requires persons to have specialtraining before practicing as a barber. "Abarber cannot be regarded as a professionalman, but is at best a skilled laborer, andhow far legislation of a similar natureshould be extended may be justly regardedas important, but we are of the opinionthat the propriety or justice or policy ofsuch legislation is for the legislative depart-mentto determine. The protection againstunwise or oppressive legislation is by anappeal to the representatives of the people.The people can correct the evil but thecourts cannot assume their rights. P. R.R. v. Ribbet, 66 Pa. 164, 169.

The ac, in question may seem contraryto justice, or indeed unwise but weare notfor this reason authorized to hold it void;asis shown by Com. v. McCloskey, 2 Rawle374, in which case Justice Rogers said: "Ifthe legislature should pass a law in plainand unequivocal language, within the gen-eral scope of their constitutional powers, Iknow of no authority in this governmentto pronounce such an act void, merely be.

THE FORUM.

cause in the opinion of judicial tribunalsit was contrary to the opinion of naturaljustice, for this would be vesting in thecourt a latitudinarian authority whichmight be abused, and would necessarilylead to collision between the legislativeandjudicial departments, dangerous to thewell being of society, or at least not in har-iony with the structure of our ideas of

natural government."In Slaughter House Cases, 16 Wall 36, 87,

Field, J., says, "All sorts of restrictionsand burdens are imposed under the policepower, and when these are not in conflictwith any constitutional prohibition orfundamental principles they cannot besuccessfully assailed in ajudicial tribunal."

We are not prepared to hold that the Actis an improper exercise of the police powerand that its regulations do not have refer-ence to the comfort, safety and welfare ofsociety.

In declaring this Act void we wouldnecessarily overrule the decision of theLegislature where it must be assumed to

have acted on its best judgment and thiswill not be done until the duty becomesmanifestly imperative. We do not say wehave no doubt as to the validity of suchlegislation but a doubt as to its constitu-tionality is not sufficient to warrant thelaw being set aside. In Fletcher v. Peck,6 Cranch 87, 128, the court said, "It is noton slight implication and vague conjecturethat the legislature is to be pronounced tohave transcended its powers and its Actsto be considered void," and in Ogden v.Saunders, 12 Wheat 213, 269, it was said "Itis but a decent respect due to the wisdom,the integrity and the patriotism of thelegislative body by which any law is passedto presume in favor of its validity until itsviolation of the constitution is proved be-yond all reasonable doubt."

We are not satisfied that the passage ofthe Act in question was an improper exer-cise of the police power. We therefore sus-tain its validity, and enter judgment onthe special verdict in favor of the Com-monwealth. W. A. VALENTINE, J.