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and, in connection with proof that the possessor has sold or attempted to sell the intoxicants in question, it may authorize conviction. But inasmuch as it is not unlawful to own intoxicants, no matter how large the quantity, mere proof of possession and ownership is as consistent with innocence as with the supposition that the custody and possession of the intoxicant was for the purpose of unlawful sale. The Judge below had laid it down in these words: .
"In my opinion the quantity of the whiskey found in applicant's possession, and the clandestine manner in which he received it (having had it shipped under an alias), are sufficient to warrant his conviction of the offense of 'keeping liquor on hand for purpose of sale,' and I refuse the writ. I reach this conclusion, as any practical man, from the facts proved, and beyond any reasonable doubt, and more especially in view of the fact that no explanation whatever was offered by the applicant. It is true that the evidence does not show the size of the barrel; but the fact remains that he did receive under an assumed name a barrel of whiskey."
But this the Appellate Court declares to be bad law, saying:
"The mere fact that one might prefer to purchase liquor under an assumed name would not of itself be sufficient to authorize the conclusion that his purchase was designed for the purpose of illegal sale, rather than that he was anxious to avoid the approbrium of being considered an excessive drinker. The case, therefore, really turns upon the question as to the quantity of the liquor, and the sufficiency of the proof of quantity to compel the conclusion that one would not purchase so large a quantity unless he intended to sell it. The trial judge was evidently controlled by the view that the receipt of such a quantity of liquor was sufficient to have authorized the mayor pro tern, to conclude that the defendant could only have wanted so large a quantity because it was his purpose to engage in the illegal traffic of intoxicants; for, in concluding his judgment, he adverted to the fact that the evidence does not show the size of the barrel, but that the fact remained that he did receive a barrel of whiskey.
"In Everett v. Vidalia, 14 Ga. App. 664, 82 S. E. 50, we pointed out that there must, to constitute a violation of a municipal ordinance such as that now before us, be evidence of an intent to keep the liquor on hand for the purpose of sale, just as there cannot be a violation of any penal law unless there be an intent to do an act forbidden by law. Since it is not unlawful to own and possess for one's own use any quantity of Intoxicants, no matter how large, mere ownership of a quantity of liquor extraordinarily large is not a circumstance from which the intent to violate the law by selling can of itself be implied. It is true that, when taken in connection with other circumstances, it may be a circumstance of great probative value. But, considered alone, the possession of a barrel of whiskey cannot, as a matter of law, be said to be conclusive of an intent to sell. To so hold would be to discriminate between the owner of a large wine cellar and a person of more moderate means in such a way as practically to deny the latter the equal protection of the laws. If there had been any evidence that the defendant sold or attempted to sell the intoxicants which he delivered to the drayman, or perhaps even if he had made preparation to sell intoxicating liquors, or if any of the paraphernalia of a liquor seller had been found in his possession, the quantity of liquor might have been a pregnant circumstance, which, together with other facts in the case, would have authorized his conviction."«
Liarility Op Carrier In Transporting Corpse.—In a recent case in South Carolina, the brother-in-law of the deceased took charge, at the request of her husband, of the arrangements to transport her body, and he purchased a ticket for the corpse. The undertaker obtained a check therefor from the station baggage agent, and the corpse was received by the carrier for transportation so cheeked. The ticket collector wrongfully demanded fare from the brother-in-law for the corpse, and also exacted excessive fare. It is ruled by the Supreme Court of South Carolina that the brother-inlaw had sufficient legal rights to justify a recovery of actual and punitive damages caused by the wrongful act of the'ticket collector. The Court say
"While K has been decided in Griffith v. Railway Co., 23 S. C. 25, 55 Am. Rep. 1, that under the common law there can be no property in a corpse, and that decision was correct in the facts presented in that case, it is to be remembered that the common law of England had nothing to do with burial of deceased persons, etc., but that the ecclesiastic court had jurisdiction over such matters, and not the courts of common law. This court will not commit itself to such a barbarous and savage doctrine as to hold that, when a person dies, no one has such a property interest in the body as to see the body as decently interred, and resting place uninterfered with; and a relative or friend has a right to see that the body is protected, and these feelings in relation thereto protected. The case at bar shows that Osteen had a peculiar interest as custodian by appointment of the husband and as a relative to carry the body to its final resting place, and that the demands of the ticket collector to extort illegal and unreasonable demands for additional fare, and even 70 cents in excess of regular fare, was enough to show that an incompetent agent of the defendant was allowed to do this, and was sufficient to sustain the verdict of the jury to actual and punitive damages. It was held in Kelly v. Tiner, 91 S. C. 41, 74 S. E. 30, that a relative or friend had the right to prevent the desecration of a graveyard where relatives or friends were buried, and certainly in the case at bar the plaintiff under the facts of the case had the right to prevent any indignity to the corpse which was being transported for burial under threat of compulsion by the ticket collector, and by means of such compulsion money was wrongfully and unlawfully extorted from plaintiff.""
NOTES OF RECENT DECISIONS.
Accomplices—Poisoning Animals.—Defendants were on trial for the crime of poisoning a horse, and it appeared that they were members of an association of ice cream dealers that hired men to poison the horses of independent dealers who refused to join the association. The court instructed the jury that a certain witness called by the People was not an accomplice, thus permitting a conviction upon his uncorroborated testimony. It appeared that he was a member of the association and had contributed to a fund to pay for poisoning horses; that he knew the poisoning in question was to take place, expressed his approval of it, and afterwards paid his share of the cost of the job. It was held that the instruction was error, and that it should have been left to the jury to say whether the witness was an accomplice. As to another witness called by the People it appeared that he had poisoned other horses for the association and been paid for it; but he did not poison the horse in question and did not have any part in it. Held that he was not an accomplice. An error in instructing the jury that a witness was not an accomplice will be disregarded by this court when, as in the case of one of the defendants, there was an abundance of testimony from other witnesses to establish his guilt. People v. Swersky, 54 N. Y. L. J. 1419. (N. Y.)
Banks And Banking—Knowledge Of President As Notice To Bank.— Where the president of a bank used his mother-in-law's notes, deposited with him for collection, as security for a loan, which he, as president and acting for the bank, made to himself on his own note, he alone acting in the transaction, notice of the character of the notes as a trust deposit was imputed to the bank, since, although where an agent acts in fraud of his principal such agent's notice of the character of the transaction will not be imputed to the principal, nevertheless where such agent, as in the instant case, is the sole representative of the principal in the transaction, the principal is chargeable with notice; there being no room under the facts for the presumption that the agent dealing with his principal on his own account will not communicate his knowledge when it is to his interest to conceal it. Smith v. Bank, 177 S. W. 72; 81 Cent. L. J. 99 note. (Tenn.)
Carriers Of Goods—Negligence Concurring With "act Of God."— 1. Where goods are lost or injured as a result of the negligent act of the carrier to whom they have been delivered for transportation, concurring with an act of God, the carrier cannot maintain that the act of God was the sole proximate cause of the loss of or injury to the goods so as to relieve it from liability. 2. A declaration which in substance alleges that although the goods which were delivered to a carrier for transportation were destroyed by an act of God, yet the carrier could have foreseen such result and by the exercise of prudence and diligenc could have protected the goods from injury, but that it negligently failed to do so, states a cause of action against the carrier. 3. Negligence of the shipper concurring with an act of God in the destruction of goods delivered to a carrier for transportation constitutes no defense by the carrier to an action brought against it by the shipper for damages for loss of the goods, where the carrier is also guilty of negligence which, concurring with the act of God, resulted in the loss of the goods. 4. Where the claim is made that, notwithstanding the intervention of an act of God, injury to the goods delivered to a common carrier for transportation would not have occurred but for the negligence of the carrier in exposing them, the burden of proof is upon the party asserting such claim. Gulf Coast Trans. Co. v. Howell, 70 S. 567. (Pla.)
Conflict Of Laws—Fraudulent Conveyances—Lex Loci Rei Sitae.— Whether a conveyance of real estate is fraudulent as to creditors must be determined in the Federal court by the local law. Williams v. Adler Goldman Co., 227 F. 374.
Constitutional Law—Negro Suffrage—"grandfather Clause."—1. The exemption from the literacy test prescribed by the 1910 amendment of Oklahoma Const., art. 3, § 4a, as a condition to voting, which that amendment makes in. favor of persons who, on January 1, 1866, or at any time prior thereto, were entitled to vote under any form of government, or who at that time resided in some foreign nation, and their lineal descendants, is a denial or abridgment of the right to vote on account of race, color, or previous condition of servitude, contrary to U. S. Const., 15th Amend., as it creates a standard which, as a necessary result, re-creates and perpetuates the very conditions which the 15th Amendment was intended to destroy. Guinn v. V. 8., 35 S. C. 926. (U. S.)
Corporations Paying Dividends Out Of Capital.—Where a solvent industrial corporation, which is engaged in the conduct of its business as a going concern, annually declares dividends through a number of years, and these dividends are paid out of the capital assets of the corporation, and the shareholders receive them in good faith and without notice that they are not paid from the net profits of the corporation, and afterwards the corporation is adjudicated a bankrupt, an action by the trustees in bankruptcy will not lie against the shareholders to recover the amount of the dividends so received by them. Carlisle v. Ottley\ 85 S. E. 1010; 81 Cent. L. J. 225 note. (Ga.)
Damages—Breach Of Contract To Deliver Stock—Measure Of DamAges—Forrearance Of Purchaser To Insist Upon Delivery.—1. The date for the delivery of stock under a contract of sale can be extended as well • by forbearance of the purchaser at the seller's request as by means of a new agreement, and in the absence of evidenc of a new agreement, changing the time of delivery, if the purchaser forbor to insist upon delivery on the original date, at the request of the seller, the plaintiff's damages must be assessed according to the market price at the postponed delivery date. 2. The plaintiff, stockbrokers, purchased stock from defendant on November 12, to be delivered "in a day or two," and thereafter made repeated requests for delivery. Defendant, in response to such requests, promised to send the stock in as soon as he could get it, and finally around the 1st of December, 1913, when plaintiffs threatened to buy the stock in on the market, said, "You wouldn't do anything like that." Following this plaintiffs on December 5 wrote defendant that in case of the nondelivery by 1 p. m. on December 8, they would buy the stock in for his account on the open market. Held that this evidence raised a question of fact whether plaintiff's forbearance at the request of the defendant had not established a new delivery date as of December 8, justifying the court in assessing damages according to the market price at that time. 3. In an action to recover damages for breach of a contract to sell and deliver stock, it is reversible error to dismiss the complaint on the ground that there is no proof of damages where the evidence discloses the contract and its breach by defendant, entitling the plaintiffs to at least nominal damages, and it is not clear that plaintiffs cannot recover substantial damages on a new trial. Such error is not cured by defendant, on appeal, filing a stipulation waiving costs and disbursements, and consenting to the entry of judgment for nominal damages. Hutton v. Tullis, 54 N. Y. L. J. 1717. (N. Y.)
Dual Interest—Insurance Agent.—The rule that an agent must not act for his own interest as against his principal was recognized as generally applying to insurance contracts. When an insurance company's agent has issued to himself a policy on a stock of goods for an amount much in excess of that at which he had appraised the goods for an administrator and the price at which he had bought them in at the administrator's sale, and he had further failed to make full disclosure of what he had paid and of all the circumstances concerning the stock, the company was entitled to avoid the policy. Harland v. Ins. Co., 180 S. W. 998. (Mo.)
Eminent Domain—Measure Of Compensation.—In case of condemnation the property owner is entitled to the highest fair cash market value of his land for the best use to which it is adapted; and the court laid down that where the jury viewed the premises they were entitled to use their own judgment in connection with the testimony, and their award of damages will not be disturbed on appeal when within the range of estimates of witnesses, unless clearly the result of passion or prejudice. Sanitary District v. Baumbach, 110 N. E. 331. (111.)
Insurance, Title—Actual Loss Only Recoverarle.—A policy of title insurance is essentially and solely a contract of indemnity, and not a wagering policy, or even an expression of opinion backed by a forfeit. Only actual loss may be recovered on such a policy; it cannot be made a subject of profit to the insured. Empire Development Co. v. Title Guarantee Co., 54 N. Y. L. J. 1765. (N. Y.)
Master And Servant—Negligence;—Federal Employers' Liarility Act. —M was a section boss engaged in interstate commerce. Upon the day of his injury he took a hand car with thirteen men, besides himself, and worked upon an adjoining section. While returning in the evening it began to rain, and one of the men under him let go of the handlebars to put on his coat. In so doing he lost his balance, and M, in order to hold the man upon the hand car, himself released his hold, fell from the car and was injured. There was no evidence that M had requested more hand cars or complained of the crowded condition. Held that the railroad company was guilty of no negligence for which it was liable under the Federal Employers' Liability Act. Manson v. R. Co., 155 N. W. 32. (N. D.)
Negligence—Proximate Cause.—Where plaintiff went into a store, leaving his team unhitched in a city street, and defendant also left his horse unhitched, knowing it was apt to run away, and it ran away, frightening plaintiff's team, which also commenced to run, whereupon plaintiff attempted to mount his sled to stop the team, and in so doing suffered injuries by being struck by another sleigh, defendant leaving his horse unhitched was not the proximate cause of plaintiff's injury, since defendant could not have anticipated that plaintiff would attempt to stop his team or that in so doing injury would result. Calliari v. Fisher, 155 N. W. 689. (Mich.)
Negligence—Passing Between Cars—Contrirutory Negligence.—An adult person, in attempting to pass over the, coupling between two cars standing on a street crossing and liable to be moved by an engine attached to them for switching purposes, is guilty of contributory negligence, which will preclude a recovery for his injury and death in consequence of the moving of the cars. Parish v. R. Co., 155 N. W., 1095. (Neb.)