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VOLUME I NUMBER 1

NOTRE DAME

LAW REPORTERAPRIL, 1920

CONTENTS

FOREWORD

SUPREME COURT OF NOTRE DAME,

HUNTER V ELAM

SCHULTZ V. PAUL

BRIEF FOR APPELLANT, HUNTER

BRIEF FOR APPELLEE, ELAM

NOTRE DAME CIRCUIT COURT,

RECORD OF CASES TRIED

ADDRESSES TO THE JURY IN SCHULTZ V PAUL

FOR PLAINTIFF, SCHULTZ .

FOR DEFENDANT, PAUL

JUNIOR MOOT COURT, CASES DISPOSED OF

ONLY OUR OWN OPINION,

THE DEFENSE OF RASTUS BROWN

CASE AND COMMENT

LAW SCHOOL NEWS,

NOTRE DAME'S LEGAL RENAISSANCE

STUDENT ACTIVITIES

ALUMNI DEPARTMENT.

SALUTATION

Page

Editor-in-Chief - - 1

Opinion of the Court - 4

Opinion of the Court - 10M. Edward Doran - - 21

Humphrey L. Leslie - 26

Lawrence B. Stephan 31

Edwin A. Fredrickson

Arthur B. Hunter - - 37

... ..... . 44

Francis J. Vurpillat - 51

John P. Tiernan - - - 54

Delnar J. Edrnundson 57

Adeni J. Cusick ---- 59

An Alumnus-

Editor-in-Chief - - 62

STATE OF INDIANAUNIVERSITY OF NOTRE DAMEI ss

Be it remembered: That the Notre Dame Law Reporterwill be published at Notre Dame, Indiana, quarterly duringthe scholastic year, for $2.00 per year or 50c per copy; that

--, . ~application has been made to enter the Reporter as secondclass matter at the P. 0. of Notre Dame, Indiana; and thatapplication for copyright of the publication is pending.

NOTRE DAME LAW REPORTER ASSOCIATIONNotre Dame, Indiana.

FOREWORD

For a time so long "that the memory of man runneth not to thecontrary" it hath been a custom to print a foreword upon the launchingof every new publication, legal as well as literary. We are but rendering

obedience to this time-honored custom, defined by Blackstone as law,

when we present this foreword upon the launching of our good legalship, which we hereby christen the Notre Dame Law Reporter.

In view of the existing law school publications, reviews and jour-nals of the leading law schools of the country, all of which are similar incharacter, scope and purpose, it might be supposed that our publication

is to be patterned upon these. But such is not the fact. These law re-views and journals, in their number, excellence and thoroughness, al-

ready completely supply the need and demand for such publications.The Reporter would be merely supplying cumulative evidence of this

class of legal publications, and the court will not grant us a trial forthis purpose. Some minor features of the generally adopted form of

law school publication will be incorporated, but in its important major

part the Notre Dame Law Reporter will constitute a new and noveldeparture in law school journalism. We trust, however, that it may not

be subject to demurrer on account of such departure.

The Reporter, which is to be published quarterly during the schol-astic year, will be primarily a student publication-of and for and bythe law student body. Its second feature, however, will be no less im-portant than the first-that devoted to the interests of the law alumni.

The purpose of these two departments in the Reporter is to bring to-

gether in fact as they are already united in spirit the law school alumniand the law school students-to bring into active co-operation the law

school triumphant and the law school militant.

The student department will consist of four sections. The courtsection will contain the decisions of the Supreme Court of Notre Damebased on records, assignments of error, and briefs filed therein. Selected

briefs also will be published. The complete record of the Notre Dame

Circuit Court will appear-the pleadings, issues tendered, trial pro-

cedure, verdict, motions, judgment and record for appeal. There will

also be reported the proceedings of the Junior Moot Court and Criminal

Practice Court.

Under the title "Only Our Own Opinion" will appear the speciallaw papers and legal comments of the editorial staff of the Reporter.

The "Case and Comment" section will present a synopsis of the recent

decisions of the appellate courts and terse briefs on the mort important

and practical propositions of the law.

Law School News will have one division relating to the Law School

itself,-its faculty, courses, courts, library, projects and bulletins; and

another pertaining to the law students themselves,-their activities,

social and personal.

The department of the Reporter devoted to the Alumni of the Law

School will have three features: a Contributing Sections in which willbe published the specially prepared legal briefs and law treatises con-

tributed by the law graduates of Notre Dame; a News Section for re-

porting the activities of the law Alumni, professional and personal; and

an Alumni Directory calculated to bring all Notre Dame lawyers into

business and professional relations for their mutual benefit.

We are not unmindful of the character and importance of our pro-

ject, which must be weighed and found worthy or wanting as the repre-

sentative of the School of Law of the University. We do not, however,

shrink from the responsibility, nor will we shirk the continuing taskthat the launching of the Reporter entails. We are conscious of the

infirmities that our first issue of necessity must display, but we ask

kindly consideration for our lofty purpose, and seek refuge from just

criticism in the time-worn but once delectable reminder that everything

improves with age.

With an abiding faith in the earnest co-operation of the students of

the College of Law of today and tomorrow and the proud and loyal

alumni of the old school, we begin ,the career of the Notre Dame Law

Reporter by fondly dedicating it to those same Students and Alumni.

EDITOR-IN-CHIEF.

NOTRE DAME LAW REPORTERPublished Quarterly During the Scholastic Year

by the

Notre Dame Law Reporter Association

Subscription Price $2.00 Per Year 50c Per Number

FACULTY BOARD

Francis J. Vurpillat, Editor-in-Chief

Gallitzin A. Farabaugh,

John P. Tiernan,

James P. Costello,

Associate Editors

STUDENT STAFF

Lawrence B. Stephen of IndianaHarry P. Nester of OhioHumphrey L. Leslie of IowaArthur B. Hunter of IndianaLeo B. Hassenauer of IllinoisEdwin A. Fredrickson of IndianaFrancis J. Clohessy of New YorkLeo B. Ward of CaliforniaMichael Edward Doran of IndianaCharles Mulholland of IowaGeorge L. Murphy of MinnesotaDonnelly C. Langston of NebraskaAlden J. Cusick of WisconsinDelmar J. Edmundson of OhioHarry Denny of ConnecticutPatrick E. Granfield of MassachusettsCharles P. J. Mooney of TennesseeClarence Manion of KentuckyCharles B. Foley of OregonEugene W. Oberst of Texas

James L. O'Toole of Pennsylvania

NOTRE DAME LAW REPORTER

SUPREME COURTHUNTER v. ELAM

(No. 1)Sale-Contract to Sell-Potential Exis-

tence-Conditions-Sale of AMare for Breed-ing-Construction of Contract-Interroga-tories-Instructions.

1. A contract by which S agrees to theservice of his mare by a stallion of H'sselection and, if a colt is foaled, to keep,care for and make it fit for H's purpose indriving the road, when H is to get the coltand settle with S, is a contract for the saleof a thing not having a potential existenceand, therefore, is not a present sale, butlike the sale of future goods constitutesonly a contract to sell, which does not passtitle in the colt.

2. Answers by the jury to interroga-tories submitted to the effect that S re-fused an offer of $200 for a colt to be foaledfrom his mare, but did accept the proposi-tion that H should pay the service fee forthe subsequent breeding of S's mare and,as part of the consideration, should pay S$40 whether a colt was foaled or not, theterms of the contract being in all otherrespects as stated above, do not change thesubjejct matter from the sale of the colt tothe sale of the services of S's mare, so as tovest title to the colt in H on account of hisspecial Property in S's mare.

3. Where S while in possession of thecolt under the terms of his contract withT1, sells and delivers the colt to the de-fendant, it is not error to instruct the jurythat if the defendant Purchases the colt inzood faith, for a valuation considerationand without notice of H's existing contractwith S or his claim to the colt, defendantwould acquire title free from H's claimunder his contract with S. H's only remedyin such case is an action for damagesagainst S for breach of contract.

4. Legal effect must be given to entirecontract and not merely to a part.

Action in replevin by William Hun-ter against John Elam. From ajudgment for defendant, plaintiff ap-peals. Affirmed.

Md. Edward Doran and Edward C.McMahon for appellant.

Humphrey L. Leslie and Jerome P.Martin for appellee.

VURPILLAT, J. Appellant bro-ught action against the appellee inthe Notre Dame Circuit Court to se-cure possession of a certain colt. Thecase was submitted for trial upon thecomplaint and answer in general de-nial. A jury trial resulted in a gene-

OF NOTRE DAME.ral verdict for the defendant. Thejury also returned answers to inter-rogatories.

Appellant filed a motion for judg-ment on the answers to the interroga-tories, ron obstante veredicto, whichwas overruled. A motion for a newtrial was also overruled, and judg-ment on the general verdict was ren-dered from which this appeal isprosecuted.

The errors assigned for the rever-sal of the judgment are the overrul-ing of the motion for judgment on theanswers to the interrogatories not-withstanding the general verdict,overruling the motion for a new trialand that the verdict is contrary to thelaw and evidence.

The plaintiff and the defendant en-tered into separate agreements withone 'Perry Smith, by the terms ofwhich each, under his respectiveagreement, claims to be the ownerand entitled to the possession of thecolt described in complaint. It is un-disputed that at the time of the con-tract between Smith and the appellee,Elam, Smith was in actual posses-sion of the colt and represented toElam that he owned the colt andwould sell it. Elam thereupon madean offer to Smith of two hundred dol-lars for the purchase of the coltwhich Smith unconditionally accept-ed, thereby effecting a valid contractof sale. This contract, so formed,was immediately executed by the par-ties by the performance of the con-current conditions of sale, Elam, theappellee, paying to Smith the twohundred dollars and Smith deliveringto Elam the colt.

These facts operate in law to con-stitute a sale, or what is sometimes


called "an executed contract of sale,"which transfers to the vendee or pur-chaser the title to the thing sold. 2Bl. Comm. 446; 2 Kent. Comm. (13thEd.) 468; Benj. on Sales (7th Am.Ed.) I; Sales Act, I. It is also undis-puted that the appellee was an inno-cent purchaser for value and withoutnotice of appellant's right or claim tothe colt.

It is contended by the appellant.however, that Smith did not own thecolt at the time of its sale and de-livery to the appellee, Elam. ThatSmith had in fact sold and conveyedhis ownership of the colt to appellantby a prior contract of sale with him.

If the seller does not own the thingsold then he cannot convey title to it,for it is a familiar principle of lawand equity that one cannot convey abetter title than he himself has. Tif-fany on Sales 27; Anson on Contracts292. And it can make no differencein such case that the buyer is an in-nocent purchaser. Sales Act, Sec. 23;Andrews v. Cox 42 Ark. 473-48 Am.Rep. 68; Bates v. Smith 83 Mich. 347-47 N. W. 249; Kitchell v. Vanader 1Blackf. (Ind.) 356. If Smith had notitle then appellee could acquire noneby his purchase.

But in this case the burden is uponappellant to establish his own owner-ship and right of possession of thecolt at the time of bringing his action,and he must recover, if at all, uponthe strength of his own title and notupon the weakness of that of the ap-pellee. Davis v. Warfield et al 38Ind. 461; Ferguson v. Day, Sheriff 6Ind. App. 138. This appeal, there-fore, must be determined upon thevalidity and legal effect of appellant'scontract with Perry Smith. Whatterms and conditions the partiesagreed upon are matters of fact for

the jury to determine from the evi-dence. But the construction of thecontract, its legal effect and therights and obligations of the partiesthereunder are all matters of law forthe court to determine. Anson onContracts 314; 24 Am. & Eng. Encyc.of Law page 1047.

The following instruction to thejury given by the trial court of itsown motion is important at this pointon both the law and the facts of thecase. We give the instruction in full,being Court's Instruction No. 8:"The court instructs you that a thinghaving no actual or potential exist-ence at the time of the formation of acontract of sale cannot be the subjectmatter of such sale. If you shouldfind that the plaintiff, William Hun-ter, and Perry Smith entered into anagreement and that the terms of suchagreement were that Smith was tosubjeted his certain mare to be bredto a certain stallion of Hunter's se-lection; that Hunter was to pay theservice fee; that, if a colt should befoaled from such service it should bekept, cared for and made fit for plain-tiff's use, that of a physician for driv-ing the road, when the plaintiffshould call for the colt, and, uponsettlement with Smith under theircontract, take the colt; and if youfurther find that plaintiff's claim ofownership and right of possession tosaid colt is based solely upon such acontract so found by you from theevidence, then, the court instructsyou, such colt had neither an actualnor a potential existence at the timeof the said contract, and no owner-ship or right of possession to the coltin question vested in the plaintiff bysuch contract; and this is so in legaleffect even if you find that part of theconsideration agreed by Hunter to bc


paid to Smith and actually paid wasfor the use of Smith's mare whetherthe colt was foaled or not."

We consider this a correct state-ment of the law. Tiffany on Sales 45;Benj. on Sales (4th Ed.) Sec. 182,note; 24 Am. & Eng. Encyc. of Law1042; Bates vs. Smith 83 Mich. 347-47 N. W. 249; Battle Creek ValleyBank v. First Natl. Bank 62 Neb.825-88 N. W. 145; Schoobert v. De-Motte (Cal.) 44 Pac. 487; TownsendBrick Co. v. Allen 62 Kan. 311-62Pac. 1008-56 L. R. A. 124; Purcell'sAdmr. v. Mather 35 Ala. 570-76 Am.Dec. 307; Low v. Pew 108 Mass. 247-11 Am. Rep. 357; Rochester Distill-ing Co. (N. Y.) 37 N. E. 632; 9 Bush(Ky.) 318-15 Am. Rep. 711. Speak-ing of potential existence the Su-preme Court of Michigan says: "Po-tential existence means merely that athing may be at some time; actualexistence that it now is. In the legalsense things are said to hhve a po-tential existence when. they are thenatural product or expected increaseof something already belonging to thevendor. When one possesses a thingfrom which a certain product, in thevery nature of things, may be ex-pected, such product, we think, has apotential existence." Dickey v. Wal-do 97 Mich. 255-56 N. W. 608; Tif-fany on Sales 44.

The jury by answers to interroga-tories found specially the facts thatSmith refused an offer of appellantof $200 for a colt to be bred fromSmith's mare, and then accepted $40for the service of the mare. Appel-lant contends that these facts entitlehim to a judgment for the colt, not-withstanding the general verdict;that these facts establish the subjectmatter of the contract to be the ser-

vices of the mare and therefore topass title in the colt to him.

In support of this contention ap-pellant cites the case of McCarthy v.Blevins 5 Yerg. (Tenn.) 195-26 Am.Dec. 262. Although the opinion ofthe court in this case does contain adictum to the effect that the sile ofthe services of a more for breedingpurposes conveys title to the coltfoaled, this dictum was unnecessaryto the decision of the case, and thedecision itself is generally regardedas sustaining the rule that a thingnot having a potential existence can-not be the subject-matter of a sale.The Supreme Court of California, inSchoobert v. DeMotte, supra, holdingthat the mortgagee of sheep is notentitled to a lien on their increase, be.gotten after the execution of themortgage, has this to say of the Mc.Carthy v. Blevins case: "The rule(that the owner of the dam is theowner of the offspring) has also beenstated in many other cases in whicbthe question was neither involved nordecided," citing, among others, Mc-Carthy v. Blevins, supra. The decis-ion in McCarthy v. Blevins is that acold sold during the period of gesta-tion passes title to the purchaser be-cause the colt has a potential exist-ence at the time of the sale. Tiffanyso regards the case, for he cites itthus: "McCarthy v. Blevins 26 Am.Dec. 262 (during gestation)". Tif-fany on Sales 48. The same construc.tion is given the decision by the Su-preme Court of Maine in the follow-ing language: "It is well settled thatthe owner of personal property hav-ing a potential existence may sell it.(Authorities cited). And within thisprinciple, the owner of a mare may,during gestation, sell her future off-spring, which will vest in the vendee


when parturition takes place. Mc-Carthy v. Blevins, 5 Yerg. 195."Sawyer v. Gerrish, (Me.) 35 Am.Rep. 323.

In the case of animals the common-law maxim partus sequitur ventramapplies, and generally the owner ofthe dam is the owner of the off-spring, before birth and after. 2 B!Comm. 390; 1 Parsons on Contracts523; 2 Cyc. of Law & Procd. 309.Thus the owner of a dam in foal maysell the colt and reserve the mare, orsell the dam and reserve the colt.Andrews v. Cox. 42 Ark. 473-48 Am.Rep. 473.

That one may sell the services ofhis mare for breeding purposes andthereby convey title to the colt is cor-rect as an abstract proposition of law.Maise v. Bowman, 19 S. W. 589; Hullv. Hull, 40 Am. Rep. 165. In.such asale the subject-matter is not the coltbut the special property in the mare,and the purchaser, because he is theowner of the dam during the time ofthe contract of sale, is the owner ofthe offspring.

The defect in appellant's conten-tion is that the facts found speciallyby the jury are not the only facts inthe case and do not furnish all theelements of appellant's contract withSmith. It is quite reasonable to in-fer from thie jury's general verdict.which includes all the facts, the ex-istence of the other facts and ele-ments of contract stated in the trialcourt's instruction, No. 8, supra. In-deed the trial court seems to have hadin mind the very facts found special-ly by the jury, for the jury are in-structed that if they find the elementsof the contract as stated in the in-struction, the appellant would haveno title or right of possession to thecolt,. even if the jury find that part

of the consideration to be paid by ap-pellant to Smith, and actually paid,was for the use of Smith's marewhether the colt was foaled or not.To sustain appellant's motion forjudgment on the answers to the in-terrogatories, only those which servehis purpose, and give no considera-tion or legal effect to the other factsand elements of the contract as foundby the jury's general verdict wouldbe to violate the first rule of the con-struction of contracts, namely: "Anagreement ought to receive that con-struction which will best effectuatethe intention of the parties to be col-lected from the whole of the agree-ment." Anson on Contracts 330. Thecontract between the appellant andSmith must be construed as a whole.The terms and conditions as to thebreeding and foaling of the colt fromSmith's mare and also the conditionsthat Smith was to keep, care for, andmake the colt fit for appellant's use,and that appellant was to call for itand settle with Smith, all relate tothe same subject-matter, were agreedupon at the same time and as part ofone transaction and must be con-strued as forming but one contract.17 Am. & Eng. Encyc. of Law 4; Ger-man F. Ins. Co. v. Roost, 55 Ohio St.581-60 Am. St. Rep. 711; Field v.Leiter, 118 Ill. 17-6 N. E. 877; Ber-ridge v. Glassey, 112 Pa. St. 442-56Am. Rep. 322.

The facts found specially by thejury are in complete accord with theirgeneral verdict. Construed with thegeneral verdict, as they must be, bothestablish a contract by which Smithagreed to the service of his mare bya stallion of appellant's selection and,if a colt should be foaled, to keep,care for and make it fit for appellant'spurpose in driving the road, when


appellant is to get the colt and settlewith Smith; the appellant, however,obligating himself to pay the servic4fee and, as part consideration, to paySmith $40 for the service of the marewhether a colt is foaled or not.

There was, therefore, no error inoverruling appellant's motion forjudgment on the answers to the in-terrogatories. It is only where suchanswers are so inconsistent with thegeneral verdict that they cannot beharmonized, and the facts speciallyfound operate under the law to en-title the party in whose favor theyare returned, to the judgment, thatsuch a motion may be sustained. Seethe Civil Codes of all the States.Thornton's Ann. Civil Code, Vol. I,pg. 959; Work's Practice & PL., Vol. I,pg. 560; Woolen's Trial Procd., Vol.2, pg. 985. Every reasonable pre-sumption must be indulged in favorof the general verdict. 22 Am. &Eng. Encyc. of Pld. & Prs. 959, citingcases from many states.

One may contract to sell the off-spring of his animals, though theyhave neither actual nor potential ex-istence. Hull v. Hull, 48 Conn. 250-40 Am. Rep. 165. This, however,does not constitute a sale but merelya contract to sell, and, though it bein the form of a present sale, it con-veys no present title to the purchaser,Tiffany on Sales 47. Furthermore,even if appellant's contract were fora colt having a potential existence, itmust be construed as a mere execu-tory contract of sale-contract to sell-not passing title, for the reasonthat there are conditions to be per-formed; there was something to bedone to put the article sold in a de-liverable state. Smith was to keepthe colt, raise it and make it fit forappellant's use, and not till then was

appellant to get the colt and settlewith Smith. Tiffany on Sales 126;Beni. on Sales 263, Sec. 318; Strousv. Ross, 25 Ind. 300; Restad v. En-gemoen, 65 Minn. 148-67 N. W. 1146.In the case of Rourke v. Bullens, 8Gray (Mass.) 549, plaintiff purchas-ed a hog of defendant and left it withdefendant upon an agreement that de-fendant should fatten it until plain.tiff called for it when he would settlefor it according to the market price;it was held that the contract waspurely executory and did not passproperty to the plaintiff. See Benj.on Sales, page 301, Sec. 349. Marblev. Moore, 102 Mass. 443; Restad v.Engemoen, supra.

In support of his motion for a newtrial, appellant complains of courtrsinstruction number eleven, given tothe jury .by the court of its own mo-tion. The instruction is as follows:If you find from the evidence that de-fendant, Elam, and said Smith con-tracted for the sale of the colt inquestion; that Elam was an innocentpurchaser of said colt, paying there-for to said Smith the sum of twohundred dollars; that said Smith wasthen and there in the open, notoriousand exclusive possession of the colt,claiming ownership, and so repre-senting himself to Elam at the time;that Elam inquired of said Smith asto his ownership of the colt and thesale thereof; and you further find thatElam, the defendant, at the time ofpurchase of the colt and paymenttherefor had no notice whatever ofany executory contract between Hun-ter and Smith for said colt, or of anyclaim by Hunter of any right or in.terest in said colt; and you furtherfind from the evidence that defend-ant, Elam, had no knowledge what-ever that should put a reasonably pru-


dent man upon inquiry, then, I in-struct you, the defendant, Elam, be-came the owner of the colt in suit, re-gardless of any rights and obligationsexisting under said contract betweenplaintiff and Smith relative to thecolt, and your verdict should be forthe defendant." This instruction correctly states the elements necessaryto constitute one a bona fide pur-chaser. Pomeroy's Equity, Sec. 745;Eaton's Equity, pg. 158. The instruc-tion also correctly applies the doc-trine of bona fide purchaser to thrfacts of the case. It tells the jurythat if the appellee, Elam, contractedwith Smith for the sale of the colt andpaid the purchase price therefor (acontract of sale transferring title)and was a bona fide purchaser as de-fined in the instruction, having "nonotice whatever of any executory contract between Hunter and Smith forsaid colt" (a mere contract to sell.not passing title to Hunter but leav-ing title in Smith), then, as betweenHunter and appellee, Elam, appelleewould take title free from the claimsof appellant Hunter under his con-tract with Smith.

Furthermore, this instruction mustbe construed with the other instruc-tions of the court in the case. Thecourt, in the two preceding instructions, defined for the jury, executedand executory contracts of sale, an'instructed them that if they foundthat Smith had actually or construc-tively transferred title in the colt toappellant, before appellee's contractof purchase with Smith, then theyshould find for appellant; but, if theyfound that iitle to the colt was notintended to be transferred to appellant, and that his contract withSmith was only a contract to sell,then Smith retained title to the colt

with power to sell and convey to aninnocent purchaser.

Appellant's attack upon instructioneleven, supra, is based on the erron-eous assumption, that it instructs thejury that title may be founded uponthe doctrine of innocent purchaser,without any regard to the law that avendor must have title to convey, andthe following cases which he citessupport this assumption: Bullard v.Burgett, 40 N. Y. 314; Andrews v.Cox, 48 Am. Rep. 68; Faucett v. Os-born, 83 Am. Dec. 278; Kitchell vVanader, 1 Blackf. (Ind.) 356.

All these cases support the rulestated in the early part of this opin-ion that if the seller has no title hecan convey none; not even to an in-nocent purchaser. In appellant'scase, however, the jury found thatSmith had title to the colt which hecould convey to Elam, the appellee,because appellant had not acquiredtitle from Smith by his prior con-tract. The instruction complained ofcorrectly stated the law of the caseand there was no error in overrulingappellant's motion for a new trial.

Even if the instruction were er-roneous, it is harmless. It tends onlyto weaken the appellee's title, whilethe appellant must recover upon thestrength of his own title. Since theappellant has established no title inhimself, he cannot recover whetherappellee has title or not, and whetherthe instruction is erroneous or notIt is a well established rule of appel-late practice that on appeal from ajudgment in replevin the court willnot reverse the judgment for imma-terial and harmless errors. Branchv. Wiseman, 51 Ind. 1; Williams v.Hoehle, 95 Wis. 510-70 N. W. 556;13 Am. & Eng. Encyc. of P1. & Pr.613. In Branch v. Wiseman, supra.


the court says: "The appellant also

complains of certain instruction fgiven and refused by the court. Up

on a casual reading, we do not per-

cieve that they are erroneous, butfrom the evidence, which is all beforcus, it is very clear that the appellan.had no right to recover, and there

fore very plain that the instruction,had not injured him."

Finding no error in the record, the

judgment of the trial court is hereby

affirmed.

SCHULTZ v. PAUL

(No. 2)Tortious Assault and Battery-Complaint

-Sufficiency-Allegation of Intent to In-iure-When Necessary-Servant's Tort-Verdict for Master Contrary to Law-Course of Employment-Master's Business-Master Present, Instructs Servant-NotRelieved-Refusing Instruction - Error-Verdict Excessive.

1. A complaint or declaration whichcharges a torious assault and batteryagainst defendants who were at the timetenants on plaintiff's farm, but also allegesby way of inducement that plaintiff wentupon'the farm to remove a fence, does notmake plaintiff a trespasser and lay hisaction in his own violation of the law, so asto make it insufficient as stating a cause ofaction.

2. To make such complaint or declara-tion insufficient as a cause of action it mustanpear, not only that plaintiff has violatedthe law, but that such violation was theuroximate or contributing cause of the in-i iry comniained of, or that such injury wasthe result of some unlawful act in whichboth plaintiff and defendant participated atthe time.

3. Where it appears from the pleadingthat the assault and battery complained ofis unlawful, it is not necessary to allegetiat defendant intended to commit the actor inflict the injury. It is only where itaffirmatively appears from the pleading thatthe assault and battery was justifiable, orwas not in itself unlawful, that an allega-tion of intention to do the injury is essen-tial to the sufficiency of the pleading.

4. Frr instructions tendered, held suffi-cient apd insufficient, see opinion.

5. Where a servant, while acting in theeourse of his employment and with a viewto his master's interest, engages in an alter-cation with another, and as part of thesame transaction commits assault and bat-tery. the master will be held liable, thecourt refusing to determine as a matter of

law at what point the course of the master'semployment ends and the purely personalresponsibility of the servant begins.

6. Where both master and servant are atthe time jointly engaged in an altercationwith the master's landlord to prevent theremoval of a fence in dispute betweenthem, and the servant commits an assaultand battery, the master will be held liable,notwithstanding he gave instruction to theservant at the time not to strike a blow.

7. It is error of law for whict a newtrial should be granted to refuse a properlytendered instruction that the master is notrelieved from liability for the servant'sassault and battery merely because at thetime, he instructed the servant not to strikethe injured party.

8. On the foregoing facts, a verdictwhich exonorates the master from liabilitywhile finding against the servant, is con-trary to law as to the master and the judg-ment as to him should be reversed.

9. A judgment for $5000 is excessivewhich is rendered against a youth of eigh-teen years who is the unemancipated son ofa tenant farmer of small means and who,upon severe provocation strikes one blowthereby permanently ix juring and renderinguseless the right ar , but not otherwiseincapacitating the injured party, such in-jured party at the time being a bookkeeper,thirty-eight years of age and earning $150a month.

Action in tort for $5000 damagesfor assault and battery brought byFred Schultz against Hale Paul andWilliam Paul. From a judgment for$5000 against the defendant, HalbPaul, said defendant appeals. Af-firmed on condition that plaintiff en-ter remittitur for $2000, otherwisereversed.

Judgment against plaintiff in favorof defendant, William Paul fromwhich plaintiff appears. Reversed.

Arthur B. Hunter and Harry Rich-wine for Ha!2 Paul and William Paul.

Edwin A. Fredrickson and GeorgeC. Murphv for Fred Schultz.

VURPILLAT, J. Plaintiff, FredSchultz, went upon his farm to, re-move a fenace and, while so doing, wasstruck upon the head by defendant,Hale Paul, in the presence of WilliamPaul, co-defendant. The complaint isin two paragraphs; the first allegingassault and battery by Hale Paul asthe servant of the co-defendant, Wil-


liam Paul; the amended third para-graph alleging the same assault andbattery by Hale Paul and chargingthe co-defendant with connivance inits commission. Separate and severaldemurrers were overruled and pro-per exceptions taken. Defendantsfiled answer in three paragraphs:first, general denial; second, son as-sault demesne; third, defence of pro.perty. Plaintiff filed reply of tra-verse de injuria to each of the secondand third paragraphs of answer.Trial by jury resulted in a generalverdict for plaintiff in the sum of$5000 against the defendant, HalePaul, from which said defendant ap-peals; and against plaintiff in favorof defendant, William Paul, fromwhich plaintiff appeals.

The appellant, Hale Paul, attacksthe sufficiency of each paragraph ofcomplaint upon the same generalgrounds. First, it is said that factsare alleged which constitute plaintiffa trespasser and therefore make ne-cessary the allegation that the meansused to eject him were unlawful orunreasonable. Appellant cites 28Am. & Eng. Encyc. of Law (2nd Ed.)574 with a reference to its citation ofcases. The only authoritative pointmade here is that a tenant in posses-sion may maintain trespass againstthe landlord who unlawfully invadesthe possession. Both paragraphs ofcomplain allege that plaintiff was theowner of the farm and the appellantand his co-defendant the occupantsthereof. The first paragraph also al-leges a lease of the farm by plaintiffto the defendant, William Paul, andthat, at the time complained of hewent upon the farm. The secondparagraph also alleges that at thet me complained of, plaintiff went up-on the farm for the purpose of re-

moving a fence. These are all theallegations of the complaint thatmight tend affirmatively to establishplaintiff's character as a trespasserat the time of the alleged assault andbattery.

These facts fall far short of show-ing that plaintiff was a trespasser, orthat, as landlord, he unlawfully in-vaded the possession of the tenant,the defendant, William Paul. Forought that appears in the complaint,plaintiff may have gone upon thefarm at the time complained of, andfor the purpose of removing a fence,in right of his contract of lease withthe tenant defendant, or with the per-mission of the tenant, or as a licensee.But assuming that facts are allegedin complaint which establish illegalconduct of plaintiff himself, it mustappear that such illegal conduct wasthe proximate or contributing causcof the injury complained of. Hall v.Corcoran, 107 Mass. 251-9 Am. Rep30; Koepkae v. Peper, 155 Iowa 687-136 N. W. 902-41 L. R. A. (N. S.)773; Gilmore v. Fuller, 198 Ill. 130-65 N. E. 84-60 L. R. A. (N. S.) 326.In Hall v. Corcoran, supra, it wassaid by the Supreme Court of Massa-chusetts: "Whether the form of ac-tion is in contract or tort, the test ineach case is whether, when all thefacts are disclosed, the action appearsto be founded in a violation of lawin which the plaintiff has taken part."Thus, where the plaintiff and defen-dant participated in a charivariparty made illegal by the criminalcode of Illinois, and plaintiff was shotand seriously injured by reason ofthe alleged carelessness of the defen-dant, it was held as a matter of lawthat plaintiff had no right of actionGilmore v. Fuiller, supra. See alsoHiggens v. Minaghan, 78 Wis. 602-


47 N. W. 941-11 L. R. A. 138-23 Am.St. Rep. 428. Where the parties arein pari delicto, that is, in equal fault,neither is in a position to ask reliefof the court from a situation causedby his own wrong doing, whether itbe his illegal contract or his tortiousact. Anson on Contracts (4th Ed.)262; Chapin on Torts 237! Hall v.Corcoran, supra.

But where the illegal conduct ofthe plaintiff, whether participated inby defendant or not, is not itself theproximate or contributing cause ofthe injury inflicted upon plaintiff bydefendant, the plaintiff may recover,notwithstanding such illegal conduct.In Welch v. Wesson, 6 Gray (Mass.)505, sustaining a judgment for plain-tiff for the willful running down andbreaking of his sleigh by the defen-dant, though plaintiff and defendantwere at the time racing illegally fora purse, it is said by the court: "themutual misconduct of the parties inone particular cannot exenfpt the de-fendant from his obligation to re-spond for the injurious consequencesof his own illegal misbehavior in an-other." "The distinction," says thesame court in another case, ,'is be-tween that which directly or proxi-mately produces or helps to produce aresult as an efficient cause, and thatwhich is a necessary condition or at-tendant circumstance." Newcomb v.Boston Protective Dept. 146 Mass.596 (604)-16 N. E. 555-4 Am. St.Rep. 354.

The paragraphs of complaint donot show any illegal conduct of plain-tiff which might be the proximate orcontributing cause of the injury com-plained of and they are therefore not,for that reason, insufficient.

The second ground of attack uponthe paragraphs of complaint is that

they do not allege that in the com-mission of the assault and battery,the appellant intended to cause theinjury. This may be considered withthe third cause assigned for the in-sufficiency of the paragraphs, name-ly: that, since an assault and batteryis a crime, all the elements constitut-ing assault and battery must be al-leged in the complaint.

Precisely because assault and bat-tery is an unlawful act, unless thefacts specially plead show other-wise, it is not necessary to allege thatthe consequent injuries inflicted bythe defendant were intentional. Andprecisely because this is not a crimi-nal prosecution for assault and bat-tery, but is a civil action for the tort,or private wrong, it is not necessaryto allege and prove the crime. In 2Am. & Eng. Encyc. of Law 953 it issaid: "To constitute an indictableassault and battery there must be anintent, express or implied, to do in-jury to another. But one may be lia-ble in a civil action for assault andbattery where there was an entire ab-sence of intent to do any injury, theground of liability being that the as-sault was committed in pursuance ofan unlawful act or was the result ofnegligence." In the following casesjudgments for damages were sustain-ed on the theory of assault and bat-tery where there existed no intentionto do the injury: a man for collidingwith another while riding a bicycleon the sidewalk in violation of a cityordinance, Mercer v. Corbin, 117 Ind.450-3 L. R. A. 221; a lad for kickinganother on the shin during school,Vosbury v. Putney, 80 Wis. 523-50N. W. 403-14 L. R. A. 227; a sewingmachine company for the act of itsagent who, in reclaiming a machine,tipped it and caused the purchaser


to be thrown and injured, SingerSewing Mach. Co. v. Phipps, 49 Ind.App. 116; a woman for an assaultand battery committed by her hus-band as her agent upon another woman, Shane v. Lyon (Mass.) 51 N. E.976. The case of Scott v. Shepherd,familiarly known as the "SquibCase," is an illustration of the civilliability for assault and batterywhere no criminal intent exists. Inthe case of Kirkwood v. Miller.(Tenn.) 5 Speed. 455-73 Am. Dec.134, for the killing of a slave in fearof a general revolt, the court said:"That the same evidence which wouldexcuse the defendant from criminalresponsibility would relieve themfrom civil liability, is not true as ageneral rule," and further, "that cri-minal purpose and intent, express orimplied, required to constitute crime,is not in all cases essential to an ac-tion for injuries to person or pro-perty."

The cases cited by counsel for ap-pellant, instead of supporting his con-tention, rather sustain the pleadingand the verdict in the case. In Klinev. Kline, 158 Ind. 602, sustaining ajudgment for damages founded on anassault by threats of murder and ar-son, the court says: "Even if wewere to grant for the sake of the ar-gument, that there was not an assaultwithin the meaning of the criminalstatute, yet there was such an as-sault as clearly subjected the offenderto a civil action at common-law."The case of Newall v. Witcher, 53 Vt.589-38 Am. Rep. 703, does not holdthat an assault must be criminal tosustain a judgment in the civil ac-tion. It merely condemns the con-duct of the defendant as unlawful inany event; and, as tending to estab-lish its unlawful character, says that,

if perpetrated, the act would be cri-minal. The cases of Gilmore v. Ful-ler, supra, Vosberg v. Putney, supra,and Raefeldt v. Koenig, (Wis.) 140N. W. 56, all cited by appellant, sup-port the rule that, where the factsspecially plead show that the act com-plained of is not in itself unlawful,then there must appear the allegationthat the act was done with an inten-tion to inflict the injury. In appel-lant's case, however, no facts areplead in either paragraph of com-plaint giving an innocent or justifi-able character to the assault and bat-tery, which is in itself unlawful.

The case of Gilmore v. Fuller,supra, seems to lend support to ap-pellant's contention that intention todo the injury must be alleged becauseassault and battery which is a crimeis charged. In this case the courtheld that because there was no allega-tion or proof that the injury inflictedby the defendant was intentional, thetrial court erred in refusing to in-struct the jury to find for defendanton the first and second counts of thedeclaration. Although assault andbattery is clearly charged in thesecounts, the court says "an assault ischarged" and then quotes Greenleaf'sstatement of the rule of law applic-able to mere criminal assault, as fol-lows: "The intention to do harm isof the essence of an assault." 2Greenl. Ev. (16th Ed.) Sec. 83. Thecourt here makes no distinction be-tween assault and assault and bat-tery, and also fails to distinguish be-tween civil and criminal actions.These distinctions are vital.

In the case of Vosberg v. Putney,supra, in which precisely the sameissue was presented, the SupremeCourt of Wisconsin says: "The juryhaving found that the defendant, in


touching the plaintiff, did not intendto do him any harm, the defendantmaintains that the plaintiff has nccause of action, and that defendant'fmotion for judgment on the specialverdict should have been granted. Insupport of this proposition counselquote from 2 Greenl. Ev. (16th Ed.)Sec. 83, the rule that "The intentionto do harm is of the essence of an as-sault." "Such is the rule no doubt,"says the court, "in -actions or prose-cutions for mere assaults. But thisis an action to recover damages foran alleged assault and battery" (Ouritalics). Holding that this rule doesnot apply in the case (and for thesame reason it does not apply in theother case) the Wisconsin Court's de-cision is contrary to that in the caseof Gilmore v. Fuller.

In reversing a conviction for as-sault and battery with intent to killfor refusing to instruct the jury that,to convict, they must find that theshooting was intentional, the Su-preme Court of Alabama, in the castof McGee v. State, 58 So. 1008, says.:"In civil as distinguished from crimi-nal actions, an intent to injure is notessential to the liability of the per-sons committing the assault and bat.tery." Citing Carlton v. Henry,supra, the Alabama Court continues:"In fact we think that, at times,courts have fallen into error in ap-plying or attempting to apply, therules applicable only to civil actionsfor assault and battery, or trespassto the person, to the facts in criminalprosecutions. In a criminal prosecu-tion for an assault and battery, ex-cept as hereinafter shown, the intentto injure is one of the essential ele-ments of the offence; in civil actionthe intent, while pertinent and

relevant, is not essential." (Ouritalics).

Both Greenleaf on Ev. and Hilliardon Torts; which are cited as authorityfor the holding in the case of Gilmorev. Fuller, show the misapplication ofthe rule of intent in mere assault toan action for injuries by unlawfulassault and battery. Neither doesthe case of Paxton v. Boyer, 67 Ill.132-16 Am. Rep. 615, support theholding. In that case the plaintiffcould not recover because the assaultcharged was committed by the de-fendant in the exercise of his lawfulright of self-defence, and in suchcase, only wanton infliction of in-juries by the defendant will entitleplaintiff to recover. And so in thecase of Gilmore v. Fuller itself, theplaintiff could not recover; not be-cause the rule of simple assault ap-plies, that "intention to do the harmis of the essence of an assault," butbecause both plaintiff and defendantwere at the time of the injury com-plained of, engaged in an unlawfulact.

To make the case of Gilmore v. Ful-ler, supra, conform in principle andprecedent to the great weight of au-thority, we think the decision mustbe restricted to a holding that whereboth plaintiff and defendant partici-pate in the commission of the sameillegal act, plaintiff cannot recoverfor injuries inflicted upon him by thedefendant "unless the defendant act-ed wantonly." That this is perhapswhat the court intended to hold is in-dicated by a quotation of the courtfrom Beach on Contributory Negli-gence (3rd Ed.) Sec. 47, in supportof the other branch of the case. Thequotation is as follows: "Where theplaintiff is obliged to lay the founda-tion of his action in his own violation


of the law he cannot recover. Andwhere the illegal act also contributesto produce the injury of which hecomplains, he has no action unless thedefendant acted wantonly."

The right of personal security isone of the absolbte rights of the in-dividual, and a violation of such rightis always actionable at common-lawwhether the act be criminal or not.2 Bl. Comm. 119; Cooley on Torts 29."Responsibility for the result of awrongdoer's act or omission does notdepend on whether he intended toproduce it." Chapin on Torts 63.-Nor is it necessary to the sufficiencyof the declaration or complaint fortort to allege all the elements of thecrime which such tort might also cbn-stitute. Benson v. Bain, 99 Ind. 156,citing 2 Work's Pr. 645; 2 Chitty P1.(13th Am. Ed.) 852; Bullen & LeakPrec. 411;-Oliver Prec. 719; 1 EsteeP1. 560. See also Schlosser v. Griffith,125 Ind. 431.

There was no error in the trialcourt's ruling on the separate anaseveral demurrer to the first andamended third paragraphs of com-plaint. The same reasons and au-thorities which sustain the complaintsupport the verdict on the law as tothe case of the appellant Hale Paul.

The answers to the interrogatoriesare in accord with the general verdictand the court therefore committed noerror in overruling appellant's mo-tion for judgment thereon. See Hun-ter v. Elam reported in this issue ofthe Reporter.

As cause for a new trial appellantalleges error of the court in refusinghis instruction No. 1. This instruc-tion was correctly iefused, because itassumes that the appellant was law-fully acting in self-defence. Further-more the matter of this instruction

was fully covered by court's instruc-tion No. 6.

Instructions numbered seven andten, tendered by the plaintiff ancdgiven by the court over appellant'sobjection, are attacked as erroneous.Considering these two instructions to-gether as they should be consideredbecause they relate to the single sub-ject-matter of compensatory damag-es, and then viewing them in the lightof all the instructibns given to thejury, they may fairly be construed asinstructing the jury that, if they findfor the plaintiff, they should awardhim such compensatory damages, theelements of which are correctly statedin number ten, as in their sound judg-ment, under all the circumstances inthe case, theyV deemed sufficient tocompensate plaintiff for the loss sus-tained, not exceeding the sum de-manded. We do not think these in-structions are open to the objectionthat they are calculated to direct thejury either as to the elements or theamount of damages to be awarded.

Having found no error of law inthe record that might have effectedthe substantial rights of the appel-lant or unduly influenced the jury,we are not disposed to disturb theverdict and its affirmance by the trialcourt, except to sustain appellant'scontention assigned as a cause fornew trial, that the damages assessedby the jury are excessive. Three con-siderations have prompted us to ren-der this decision reducing the awardof damages. First the youth and sta-tion in life of the appellant and hisability to pay the judgment. Thisfeature of the case may not have beenconsidered by the jury and trial court.The record, however, discloses it andit is a very proper circumstance to beconsidered as a measure of damage.

NOTRE DAM9 LAW REPORTER

Row v. Moses, (S. C.) 67 Am. Dec.560 and note. Appellant is a youth ofeighteen years, the unemancipatedson of a tenant farmer having littleof the world's goods. A five thousanddollar judgment imposed upon him inhis situation in life would be inflicting a grievous and permanent injurymuch in excess of any damage sus-tained by the plaintiff, even if we con-cede that plaintiff's injury is perma-nent. The second consideration isthat the assault and battery vas in-duced by the severe provocation ofplaintiff. It is a mitigating circum-stance, at least, that plaintiff's actionwas arbitrary in going upon the ten-ant's farm, taking the law into hisown hands, and persistently and, inspite of repeated warnings given himby both defendants, trying to destroythe fence that kept the tenant's cowsin the clover and from the corn. Thisprovocation was sufficiently exasper-ating to coerce the appellant to strikethe one blow with a near-by stickthat felled the plaintiff, but, howeverprovoking in fact, is not sufficientprovocation in law to bar plaintiff'sright of recovery for the assault andbattery committed. The third con-sideration is the character of plain-tiff's injury as a permanent one. Up-on no other element could such an as.sessment of damages be made awould necessitate exhausting plain-tiff's demand for five thousand dol-lars. The evidence discloses thatplaintiff's left arm and hand areunimpaired and his mind unaf-fected. He may be permanentlyinjured but he is not wholly in-capacitated. Waiving aside the pos-sibility of recovery through an opera-tion which he may not legally be com-pelled to undergo to effect a cure, itis quite within the range of possi-

bility, as courts may judicially know,for defendant to become mightierwith the pen in his left hand than heever was with his right on the pen.Plaintiff's age of thirty-eight yearsand his earning power of $150 permonth are considered. We cannot injustice countenance a judg:ment inthis case for more than three thou-sand dollars. For cases on reducingverdicts see Rowe v. Moses, supra;Elliott v..Sawyer, (Me.) 77 Atl. 782;Gunderson v. Northwestern ElevatorCo., (Minn.) b9 N. W. 694; Mark v.Fink, 147 N. W. 279. As to duty ofinjured party to undergo operation,see Stewart Dry Goods Co. v. ]3oone,(Ky.) 202 S. W. 489; Loban v. Wa-bash Ry. Co., (Mo.) 141 S. W. 440;Birmingham Ry. L. & P. Co. v. An-derson, (Ala.) 50 So. 1021.

The plaintiff, appealing from thejudgment against him in favor of thedefendant, William Paul, assigns aserror for reversal of such judgment,the overruling of his motion for a newtrial and that the verdict is contraryto law. Plaintiff's first paragraph ofcomplaint against the defendant Wil-liam Paul is upon the theory of mas-ter and servant, and his amendedthird paragraph, upon the theory ofconnivance, counseling and urginghis co-defendant, Hale Paul, to com-mit the assault and battery alleged.

On the connivance theory of lia-bility, Judge Cooley makes the fol-lowing comprehensive statement ofthe law: "All persons who command,instigate, promote, encourage, advise,countenance, co-operate, aid or abetthe commission of a trespass by an-other, or who approve of it after it isdone for their benefit, are co-tres-passers with the person committingthe trespass, and are each liable asprincipals to the same extent and in


the same manner as if they had per-formed the wrongful act themselves."Cooley on Torts 133; Chapin on Torts230; Chitty P1. 208; Greenl. Ev. Sec.41.

Hale Paul is the minor son of theco-defendant, William Paul, and atthe time of committing the assaultand battery on plaintiff, and for along time prior thereto, was residingwith his father and working for himin the operation of the farm. Thefarm was owned by the plaintiff andwas occupied by William Paul aztenant. The defendants had con-structed a temporary wire fence be-tween a clover field and a corn fieldso as to enable him to pasture theircows on the clover and keep themfrom the corn. Plaintiff, on the oc-casion complained of, went to thefarm to remove this fence, takingwith him tools for the purpose. Onarriving at the farm he entered theclover field from the highway and be-gan immediately to remove the wirefrom the fence. Both defendantswere at the time engaged in plowingcorn in the adjoining field. The son,Hale Paul, frst to observe plaintiff atthe fence, left his plow and rushed toplaintiff, shouting as he ran, "Shultz,damn you, let that fence alone." Herepeated these words upon arrivingat the fence and added, "or I'll makeyou." At this point the father, Wil-liam Paul, leaving his plow also camehurriedly to the place and also shout-ed, "Schultz, you let that fencealone." Plaintiff utterly ignored thedefendants and their warnings, anathereupon the son, Hale Paul, pickedup a heavy stick and once more saidto plaintiff, "Damn you, Schultz, letthat fence alone or I'll make you."Then William Paul told the son notto strike plaintiff. Plaintiff continued

to pull staples and loosen the wire,and then Hale Paul swung the clubover the top of the fence and struckplaintiff on the left side of the headfelling him to the fround. The juryin their answers to interrogatoriesfound that plaintiff used no threaten-ing language and assumed no menac-ing attitude toward Hale Paul as tes-tified by defendants. The foregoingfacts were virtually admitted by de-fendants in testimony.

Do the facts as here stated estab-lish the liability of the defendantWilliam Paul, upon either or boththeories of complaint. The cases arenumerous and interesting upon boththese propositions. To dwell atlength on many of them would be tomake the opinion of great strength,We must, however, in view of the im-portance of the issues involved in thecase, state in substance, the operativefacts and the decisions of a few ana-logous cases.

In Willi v. Lucas, (Mo.) 19 S. W.726, defendant Lucas, a liverymanwas hired by Willi (plaintiff's hus-band) to overtake plaintiff on theroad. Three times defendant drovehis team ahead of plaintiff, the lasttime so that she could not pass. Whenasked to permit plaintiff of pass, de-fendant said, "Shut your damnmouth. I'm driving this team ac-cording to orders." Then, while de-fendant sat in his buggy, to use thelanguage of the court, "in such a posi-tion that he could not have seen plain-tiff without looking out from the sideof the buggy, the back curtain beingdown and the hind end of the buggybeing towards (plaintiff)," Willi gotout of defendant's buggy, went backto his wife's buggy and shot her. Anonsuit of the wife's action againstLucas was reversed.


In Hilmes vs. Stroebel, 59 Wis. 74-17 N. W. 539, for assault and batterythe case against the co-defendants ofStroebel was nonsuited. These de-fendants accompanied Stroebel andprevented the proprietor of the placefrom interfering with Stroebel's as-sault upon plaintiff. They also madecertain remarks indicating hostilityto plaintiff, but in no manner tookpart in the assault and battery itself.Case reversed for error of the trialcourt in entering nonsuit.

In Reed v. Peck et al., (Mo.) 63 S.W. 734, it appears that a street infront of plaintiff's house was gradedwithout" an ordinance authorizing it.Action for trespass against those whodid the work and the mayor and thestreet committeemen. On appealfrom judgment for plaintiff the courtsaid, "The grading of the street was,undoubtedly, done without lawful au-thority; was a trespass. There wa.no ordinance providing for such grad-ing. And, while the work was ac-tually performed by the street com-missioner, there was, it seems, evi-dence tending to prove that MayorGuitar and Street Committeemen,Peck and Watson, were present fromtime to time superintending and en-couraging the work. The judgmentwas affirmed.

In Moir v. Hopkins, 16 Ill. 313-63Am. Dec. 312 the defendant was heldliable where his agent directed a ser-vant to "go and get" Hopkin's team,meaning with Hopkin's consent, andthe servant got the team withoutseeking such consent, and in its usekilled one of the horses.

There is sufficient evidence in thisrecord to have sustained a verdictagainst the defendant, William Paul.on the connivance theory, and to havejustified a reversal of the judgment

if the trial court had entered a non-suit. The added relation of masteiand servant strengthens this theoryof liability.

That the relation of master andservant existed between the defendants at 'the time of the assault and.battery committed by defendant HalePaul, is admitted by the defendant.themselves as witnesses on the trial.To this relation applies the doctrineof respondeat -superior. Chapin onTorts 211. Since the judgment as toHale Paul, the servant, is sustained,and since the relation of master andservant is established by the recordadmissions of the defendants them.selves, there remains to be determin.ed only whether the assault and bat-tery' of the servant was committed irthe course of the servant's employ-ment and with a view of the master'sinterest. If so, then the defendant,William Paul, as master, is liable andthe verdict exhonorating him is con-trary to law.

There are many cases holding thcmaster liable for the assault and bat-tery of the servant, although the master was not present, in no way au-thorized or justified or participatedin it, and although he expressly in-structed his servant not to commit itPalmeri v. Manhatten Ry. Co. 133 N.Y. 261-30 N. E. 1001-16 L. R. A. 136-28 Am. Rep. 632; McClung v. Dear-born, 134 Pa. St. 396-19 Atl. 698-8L. R. A. 204-19 Am. St. Rep. 708;Singer Sewing Mach. Co. v. Phipps49 Ind. App. 116. See note to Richiev. Waller, 27 L. R. A. 161.

That the servant, Hale Paul, wasacting in the course of his employ-ment in the commission of the assaultand battery upon the praintiff isclearly decided by the Kentucky Courtof Appeals, in the case of New Ellers-


lie Fishing Club v. Stewart, 93 S. W.598-9 L. R. A. (N. S.) 475. The is-sues of the two cases are the sameProctor was employed by the fishingclub to prevent persons from fishingin their ponds who had not the privi-lege to do so. Thinking that plain-tiff had not such privilege, Proctorengaged in an altercation with himto prevent his fishing and in so do-ing cut him with a knife. In decidingthe case the court said: "It is dif-ficult to define with accuracy thepoint at which the master's liabilityfor the acts of his servant ends; butunder the facts of this case, Proctor,when he attempted to prevent appel-lee from fishing, and when the alter-cation between them commenced, wasclearly acting within the scope of hisemployment, and the assault and battery complained of was merely a continuation of the first act. There wasno appreciable lenth of time be-tween them. Everything that wasdone happened on the premises in thecontrol of the fishing club, and whereProctor had authority as its agentWhere the agent begins a quarrelwhile acting within the scope of hisagency, and immediately follows itup by a violent assault, the masterwill be liable, as the law under thecircumstances will not undertake tosay when, in the course of the assaulthe ceased to act as agent and actedupon his own responsibility." An-other case in point here is Dickson v.Waldron, 135 Ind. 524-34 N. E. 506-35 N. E. 1-24 L. R. A. 483-41 AmSt. Rep. 440.

That the master, William Paul, isliable for his servant's assault andbattery upon the plaintiff, despite hisinstruction given to the servant atthe time, not to strike the plaintiff, isclearly decided by the case of Grant

v. Singer Sewing Machine Co., 190Mass. 489-77 N. E. 480-6 L. R. A. 567,and also by the case of Borden v.Felch, 109 Mass. 154. In the firstcase Sexton, as general agent for thecompany, together with one Andrewswhom he had hired to recover a sew-ing machine, went to the home ofplaintiff who had contracted for thepurchase of the machine. Seeing thattrouble was about to ensue, Sextonsaid to Andrews: "Mr. Andrews, youneed not proceed any further. I willsend and replevin the sewing ma-chine." Despite this admonition orinstruction to Andrews, he committed the assault and battery upon theplaintiff for which the court affirmeda judgment against the Sewing Machine Co. The court says: "It issettled that the defendant would bcliable for force used by Andrews aa means of retaking the machineeven if he had been told not to us-force. (Cases cited). The defend-ant's liability does not depend uporhis having been authorized expresslyor impliedly to use force, but uponhis having used force as a means ofdoing what he was employed to dc(Citing cases)." The case of Borden

v. Felch,supra, is also in point. Inthat case as in this there was an al-tercation between two adverse claim-ants to right in land. The servant ofone, despite the instruction given himby the master at the time, committedassault and battery upon the plaintifffor which the master was held liable.

C. J. Watkins, in the case of Dugginsv. Watson, 15 Ark. 127, says: "Theonly safe rule of law is that the mas-ter is liable for the tortious act of hisservant engaged in his employment,though done willfully, without ordersor even against orders. See note 35Am. Dec. 192.


The facts in this case, upon the ad-mission of the defendants themselvesare stronger than the operative factsof the cases cited, and there is no es-cape from the conclusion that the ver-dict in favor of the master is clearlycontrary to law. The verdict is con-trary to law also for the reason thatthe trial court refused to give to thejury plaintiff's instruction No. 6. Bythis instruction the jury were in-structed that the master, WilliamPaul, would be liable for the act ofthe servant, -Hale Paul, in this case"even though William Paul expresslyordered Hale Paul not to commit theassault." This instruction correctlystated the law, as we have found thelaw to be, was applicable to the factsof the case, was not covered in anyof the court's instructions, its givingor failure to give would directly af-fect the verdict, and therefore, its re-jection by the trial court was sucherror as makes the verdict contraryto law. Robinson v. Chandler, 56Ind. 575; Cline v. Lindsey, 110 Ind.337; Healey v. Johnson (Iowa), 103

N. W. 92; Lewis v. Schultz, 98 Iowa341-67 N. W. 266. The refusal togive the instruction was also such er-ror as entitled plaintiff to a newtrial.

For the reason that the verdict infavor of the defendant, William Paul,is contrary to law, and for the reasonthat the trial court erred in overrul-ing plaintiff's motion for a new trialthe judgment against plaintiff in fa-vor of William Paul must be reversedand such judgment is hereby reversedwith instruction to sustain plaintiff'smotion for a new trial as to defend.ant, William Paul.

If the plaintiff will file a remittitutfor the sum of two thousand dollarswithin ten days after the filing of th-certified opinion of this court in thelower court, this judgment againstthe appellant, Hale Paul, is hereby af-firmed; otherwise, it is reversed withinstruction to grant a new trial toHale Paul.

The cause is hereby remanded forfurther proceeding not inconsistentwith this opinion.


BIRIEF OF M. EDWARD DORAN IN CASE OFHUNTER v. ELAM.

In the Supreme Court of Notre Dame

William Hunter, Appellant,VS.

John Elam, Appellee.

Appealed from the Notre DameCircuit Court.

Brief for the Appellant.

By Michael Edward Doran.

NATURE OF ACTION.

A certain Perry Smith was theownerof a fine Hambletonian marewhich William Hunter, the Appellanthere, hired for the purpose of breed-ing. The mare was left with Smith,it being agreed that if a foal shouldresult Smith would keep and train itfor the appellant. A colt was foaledand Smith kept and trained it pur-suant to the agreement. About thetime the colt was ready for theappellant's purpose, Smith sold it tothe appellee, John Elam. When theappellant learned of the sale he wentto Elam and demanded that the coltbe given to him. Elam refused;whereupon Hunter instituted this ac-tion in replevin. The jury returned averdict for the appellee and the ap-pellant now prosecutes his appeal tothis court.

WHAT THE ISSUES WERE.

The complaint was in one para-graph alleging that the plaintiff wasthe owner and lawfully entitled tothe immediate possession of the coltin question; that the plaintiff made ademand on the defendant which was

refused, and that he now sues forpossession.

The defendant demurred to thecomplaint.

The defendant filed an answer intwo paragraphs, the first in generaldenial, and the second alleging thathe was a 'bona fide' purchaser.

The plaintiff demurred to the sec-ond paragraph of the answer.

Trial was had by jury and bothparties submitted interrogatories.

The plaintiff made a motion forjudgment 'non obstante venedicto,'based on the replies given by the juryto his interrogatories.

The plaintiff filed his motion for anew trial based on the followinggrounds: (1) The verdict is contraryto law. (2) The court erred in givingof its own motion, over plaintiff'sobjection, instruction number eleven.(3) The special finding of facts asrevealed by the answer to the plain-tiff's interrogatories, are inconsistentwith the verdict.

HOW THE ISSUES WERE DE-CIDED AND WHAT THE

JUDGMENT WAS.

The jury which tried the cause re-turned the following verdict:

State of Indiana,County of St. Joseph, SS:

In the Notre Dame Circuit Court.September term, 1919.

William HunterV. Verdict.

John Elam.We, the jury, find for the defend-

ant, and against the plaintiff.Emmett A. Rohyans,

Foreman.


The defendant's demurrer to thecomplaint was overruled, to whichruling defendant excepted. The plain-tiff's demurrer to the defendant'ssecond paragraph of answer was sus-tained, and the defendant excepted tothe ruling. The motion of the plain-tiff for a judgment 'non obstanteveredicto' based on the jury's repliesto plaintiff's interrogatories wasoverruled, to which ruling exceptionwas taken by the plaintiff. The courtoverruled the plaintiff's motion for anew trial and the plaintiff excepted tothe ruling.

The court then entered the follow-ing judgment: "The jury having re-turned a finding for the defendant, itis therefor ordered, adjudged, anddecreed by the court that the plain-tiff take nothing by this action andthat the defendant recover of andfrom the plaintiff his cost laid out,expended, and taxed at forty-threedollars and ten cents ($43.10), all ofwhich is finally and fully ordered,adjudged, and decreed by the court."

ERRORS RELIED ON FORREVERSAL.

(1) The verdict is contrary to thelaw.

(2) The verdict is contrary to thereplies given by the jury to the ap-pellant's interrogatories.

(3) The court erred in overrulingthe appellant's motion for a new trial.

CONDENSED STATEMENT OFTHE EVIDENCE.

William Hunter, the plaintiff, whowas called as the first witness in hisown behalf, testified hs follows that:he was a South Bend physician andthat on September 5th, 1916, he calledat the home of one Perry Smith to

attend the latter's wife; after leavingthe house he noticed a mare in anearby field, and he told Smith hewould give him one hundred dollarsfor a colt from her; Smith repliedthat he did not think the mare wouldproduce a colt, so he would not takethe chance of paying for breeding,because prior attempts had failed; hethen offered to give Smith forty dol-lars for the services of the mare forbreeding and then pay the stallionfee if Smith would breed the mare toa horse of his selection; Smih ac-cepted this offer. Hunter told Smithhe would want him to keep the colt ifit were foaled and train it until itwas ready for his services; when hewould call for it and pay what theseduties were reasonably worth; Smithagreed to do this; he then went to thehome of Mr. Walsh and arranged forthe use of his stallion in breeding itto Smith's mare; he paid Mr. Walsha fee of ten dollars; he saw the coltshortly after it was foaled and atfrequent intervals thereafter; whenhe learned of the alleged sale of thecolt by Smith to Elam, he went toElam and told him he was the ownerof the colt and demanded that it begiven to him; 'Elam refused, so heinstituted this action.

See bill of exceptions No. 1; recordpage -.

Perry Smith was the next witnesscalled for the plaintiff. He testifiedto the agreement between Hunter andhimself in the same terms as was dis-closed by Dr. Hunter's testimony. Hesaid, that he accepted the forty dol-lars for the services of the mare be-cause he was certain to get thisamount, whereas if he took one hun-dred dollars for a colt, a colt mightnot be foaled and he would lose bythe transaction; that he bred the


mare to Walsh's stallion; that he didnot pay the fee to Walsh; that thecolt was foaled on August 10th, 1917;that he ktp, fed, and cared for thecolt until July 5th, 1919; that the coltat that time was trained and fit fordriving put'poses; that on July 5th,1919, the defendant, Elam offeredhim two hundred dollars for the colt;that he accepted the offer; that hereceived the two hundred dollarsfrom Elam in cash and that Elamthen took the colt away with him;that he had never seen Elam beforeJuly 5th, 1919; that he told Elamthat he was the owner of the colt.

See bill of exceptions, No. 1,Page -.

The next witness for the plaintiff,Mr. Walsh, testified that he was afarmer; that he was the owner of astallion; that h ehad been paid tendollars by William Hunter for theservices of his stallion in breedingSmith's mare; the mare was bred onSeptember 7th, 1916.

See bill of exceptions, Recordpage -.

The first witness called for the de-fendant was John Elam. He testifiedthat he was an insurance broker:-he had passed the farm of PerrySmith on July 5th, 1919 ;-he saw acolt in the pasture-Perry Smith toldhim that he was the owner of it ;-heoffered Smith two hundred dollarsfor the cold ;.-Smith accepted, and he(Elam) thereupon paid him two hun-dred dollars in cash; then took thecolt to his home in South Bnd; priorto July 5th, 1919, he had never seenPerry Smith which is the subject ofthis action; he did not investigate,but relied solely on Smith's avermentof ownership and the fact that Smithhad possession; that William Hunter

called at his home and demanded thecolt and he refused this demand.

See bill of exceptions, No. 1, Recordpage -.

The next witness called by the de-fendant was Clifford O'Sullivan Hetestified that :-he was a lawyer prac-ticing in South Bend; he was withJohn Elam when he purchased thecolt in question from Perry Snith;that Smith said he was the owner ofthe colt; Elam gave Smith two hun-dred dollars for the colt and Elamthen took it home with him; that hehad never seen Perry Smith beforethis day.

See bill of exceptions, No. 1, RecordPage -.

POINTS AND AUTHORITIES.

The appellant claims that the con-tract between him and Perry Smithwas an agreement for the sale of theservices of the mare for breeding,and thus title to the colt has alwaysreposed in the appellant.

McCarthy v. Blevns, 26 Am. Dec.262.

Maize v. Bowman, 19 S. W. 589.The possession of the colt by Perry

Smith coupled with his claim ofownership did not give him such aright in the colt as to enable him topass a good title to a 'bona fide' pur-chaser for value.

Ballard v. Burgett, 40 N. Y. 314.Andrews v. Cox, 48 Am. lRep. 68.Fawcett v. Osborn, 83 Am. Dec. 278Kitchell v. Vanadar, 1 Black. 356

(Ind.)

ARGUMENT.

The real gTounds upon which thisappeal is based are points of lawwhich are as follows: (1) Was thecontract between Smith and Hunter

NOTRE DAME LAW IEPORTER

an agreement for the sale of a thinghaving neither an actual nor a poten-tial existence? (2) Was the court'sinstruction number eleven, givenover the appellant's objection, a cor-rect statement of the law? Let usconsider these questions and by re-viewing the authorities determinewhether justice has been rendered tothe appellant in the court below.

The appellant herein maintains,and the evidence of Perry Smith andWilliam Hunter shows that the ap-pellant gave forty dollars ($40.00)for the use of the mare for breeding.Review for a moment the appellant'sinterrogatories submitted in thecourt below and see if the answersgiven to them by the jury do not sub-stantiate our contention.

(Question) Did William Hunteroffer Perry Smith one hundred dol-lars for a colt from his mare?

(Answer) Yes. Emmet A. Roy-hans, Foreman.

(Question) If William Hunter didmake this offer was it not accepted byPerry Smith?

(Answer) No. Emmett A. Roy-hans, Foreman.

(Question) Did William Hunteroffer Perry Smith forty dollars forthe services of his mare for breeding?

(Answer) Yes. Emmett A. Roy-hans, Foreman.

(Question) If William Hunter didmake this offer was it accepted?

(Answer) Yes. Emmet A. Roy-hans, Foreman.

Now just what did this contract offorty dollars for the services of themare for breeding mean? Simplythis, that William Hunter was legallybound to pay Perry Smith the sumof forty dollars regardless of whethera foal resulted from the breeding ornot; but if a foal should result then itwould be the property of WilliamHunter. This agreement was not forthe sale of the colt and thus not under

the rule applicable to the sale of athing having neither an actual nor apotential existence, but it was a con-tract for the use of the mare for acertain definite purpose. Can anymore logical interpretation be Placedupon this agreement? If you holdthat the second offer of William Hun-ter was for a colt, then you are hold-ing the fact that Perry Smith refusedone hundred dollars for a colt but ac-cepted an offer of forty dollars for it;this would be absurd.

In sustaining these contentions wewish to consider the case of Mc-Carthy v. Blevins, 26 AM. Dec. 262.

A party named Rogers bred hishorse to a certain Butler's mare withthe understanding that, if a coltshould result, it should belong t6 onePleasant Blevins, an infant. A coltwas foaled and the defendant belowMcCarthy, purchased it and the marefrom Butler. Blevins, by his nextfriend, brought this action againstMcCarthy to recover the colt. Thedefendant insisted that no title vest-ed by the contract between Butler andRogers, no colt being in existence;that no right can be communicated toproperty of which the bargainor hasno title in possession, actually or po-tentially. The court in the course ofits decision said: "In horse growingdistricts, mares of distinguisehd re-putation are constantly let in effectto breed from, the owner of the mareagreeing to take so much for thechance of a colt for one season, he re-taining in his possession the mare be-cause too valuable to be trusted withanother. That the foal in such cases,when dropped, is the property of thehirer of the mare has never been thesubject of doubt. Had Blevins takenthe mare into his possession, payingso much per annum for her usegenerally, then he would have beenauthorized to use her as a brood mare,and to retain the foal. The feedingand attention by the owner couldmake no difference; it was generally


a hiring. On this foot the plaintiff isentitled to recover. Rogers hired hismare for Blevins for the season ofgestation, for her use in breeding; hewas to use her in this particular way;still Blevins is entitled to the increaseas if she had been hired for the yeargenerally, with the use unrestricted."

We have seen fit to set out this caseat length because it so clearly pointsout the fact that a contract for theservices of a mare for breeding is athing distinct and apart from anagreement for the purchase of theexpected foal, and thus does not comeunder the rule applicable to the saleof a thIng having neither an actualnor a potential existence. The rea-soning and principals expounded inthe above case are supported by theKentucky decision of Maize v. Bow-man, 19 S.W. 589, in which the courtheld that the sale of the services of amare for the purpose of breeding isnot an agreement to sell somethingwhich is not 'in esse', and thereforvoid, but a valid agreement for theuse of the mare for a special purpose.

Since it is logically established thatthe appellant hired the breeding rightto the mare, we maintain that uponreason as well as upon authority, thetitle to the foal from the time of con-ception until the present day hasbeen vested in the appellant, un-affected by the transaction betweenPerry Smith and the appellee, JohnElam.

Let us examine the court's instruc-tion number eleven given over theappellant's objection which dealswith the doctrine of bona fide pur-chaser. The instruction is as follows:

"If you find from the evidence thatthe defendant, Elam, and the saidSmith contracted for the sale of thecolt in question; that Elam was aninnocent purchaser of the said colt,

paying therefor to the said Smith thesum of two hundred dollars; thatSmith was then and there in theopen, notorious exclusive possessionof the colt, claiming ownership andso representing himself to Elam atthe time; that Elam inquired of theaid Smith as to his ownership of the

colt and the sale thereof; and youfurther find that Elam the defendantat the time of the purchase of thecolt and payment therefor had nonotice of any executory contract be-tween Hunter and Smith for saidcolt, or of any claim by Hunter of anyright or interest in said colt; and youfurther find from the evidence thatthe defendant Elam had no knowl-edge whatever that should put a rea-sonably prudent man upon inquiry,then, I instruct you, the defendant,Elam, became the owner of the colti nsuit, regardless of any rights andobligations existing under said con-tract between plaintiff and Smithrelative to the colt, and your verdictshould be for the defendant."

It is our firm belief that this in-struction of the court is clearlyerroneous and was the prime cause ofa verdict being returned against theappellant herein. We do not denythat Smith was in open, notoriouspossession, and we further admitthat he claimed ownership when hesold it to the appellee; but does thisserve to vest a valid title in Elam?To hold so would establish a rulewhich would disrupt the businessusages and social customs of ourmodern life. It can be safely saidthat one-fourth of all personal prop-erty is not in the hands, and thus un-der the control, of the owner, but isentrusted to the care of others. Isit practical then to establish a per-nicious rule that a bailee may trans-

tNOTRE DAME LAW REPORTER

mit a valid title simply because hehas possession? We are aware thatan owner who intrusts property toanother and then so conducts himselfas to lead third persons to believethat the possessor is also the owner,may be estopped to deny title in hisbailee. But in this case the appelleepurchased the colt relying solely onthe representations of Smith that hewas the owner. He admits that henever saw Smith before and that hedid not make any inquiries regardingSmith's title from any other person.This is a case where the doctrine of'caveat emptor' must be applied. Theappellee has not introduced a scin-tilla of evidence to show that theappellant ever did anything to estophim from claiming the colt, nor hashe by any means shown that PerrySmith had such a right to the colt aswould enable him to transfer a valid

title. The instruction is the only onewhich touches on the theory of 'bonafide' purchaser and it stands unsup-ported by any other announcing thedoctrine that the possession of a ven-dor or bailee coupled with his claimof ownership is sufficient to vest thelegal title in a 'bona fide' vendee.This is clearly contrary to the viewsof the authorities.

Ballard v. Burgess, Supra.Andrews v. Cox, Supra.Fawcett v. Osborne, Supra.

The court, therefor, erred in over-ruling the appellant's motion for anew trial.

We respectfully submit that for theerrors which we believe we havepointed out in this brief, that thejudgment in the court below should,in all things, be reversed.

Respectfully submitted.

BRIEF OF HUMPHREY L. LESLIE IN CASE OFHUNTER V. ELAM.

In the Supreme Court of Notre Dame

William Hunter, AppellantVS.

John Elam ,Appellee

Brief for the Appellee.

Appeal from the Notre Dame Cir-cuit Court.

RECORD.

The appellant's counsel's stateinentof the record is substantially correct.

EVIDENCE.

The evidence as set out by the ap-pellant's counsel is partially correct,but the important details of the testi-mony are garbled and in some in-

stances, mis-stated. We will con-sider briefly the testimony given byeach of the witnesses.

The record will show that Dr. Hun-ter did not state on the stand that heoffered forty dollars for the use ofthe mare during the period of gesta-tion, but that the agreement was thatSmith was to allow his mare to bebred to a stallion of Hunter's choos-ing. He further testified that he was,under the agreement, obligated topay the money regardless of whethershe became with foal or not, and thAtSmith gave no other consideration.-,an the mere allowing of his mare

to be bred. The word 'services' wasused to refer only to the mere breed-ing of the mare. The rest of theappellant's testimony as set out byhis counsel is substantially correct.


Smith agreed to train and raise thecolt, should it be foaled, so that itwould be suitable for the Doctor'suse.

The next witness which the appel-lant discusses is Perry Smith. Wequite agree that his testimony sub-stantiated that of Dr. Hinter, butthat he testified that he sold the ser-vices of the mare both we and therecord deny. He stated that he wasto receive forty dollars for allowinghis mare to be bred to a stallion ofthe appellant's choosing; that he wasto train and raise the colt should oneresult and that he did this. We wishto call attention to the fact that hestated that the forty dollars he wasto receive for allowing his mare tobe bred has never been paid nor evenoffered to him. His testimony wasthat he had always, up to the time ofthe sale of the colt to Elam, had openand notorious possession thereof,and that he had stated to the appelleethat he was the owner of the animal.The appellant's statement regardingfurther testimony of this witness wewill not discuss.

The statements of the owner of thestallion are immaterial to the caseand call for no comment.

The testimony of the appellee is,with the exception of one statementcorrectly summarized. Elam did nottestify that he did not investigate theownership of the colt before purchas-ing it. On the contrary he stated thathe took note of the indicia of owner-ship which Smith possessed and thathe inquired, as any judicioug manwould, if the said Smith was theowner of the animal, to which he wastold that he was.

The evidence of Mr. O'Sullivan, thesecond witness for the defense, is cor-rectly given.

POINTS AND AUTHORITIES.

The appellee contends that, if therewas a sale consumated between Hun-ter and Smith, it was a sale of some-thing which had neither an actualnor a potential existence.

A thing having neither an actualnor a potential existence cannot bethe subject matter of valid sale.

Benjamin on Sales, 78.2 Kent's Commentaries, 8th Ed.

604, Side page 468.Bates v. Smith, 47 N. W. 249.Battle Creek Valley Nat. Bank v

1st Nat. Bank. 56 L. R. A. 124.Purcell's Administrator v. Mather,

76 Am. Dec. 307.Low v. Pew, 11 Am. Rep. 357.Rochester Distilling Co. v. Rasey

37 N. E. 632.Hutchinson v. Ford, 15 Am. Rep.

711."Where a purchaser of goods per-

mits his vendor to remain in posses-sion, a subsequent bona fide pur-chaser from such vendor, withoutany notice of the original sale, beingput in possession, obtains a goodtitle as against the prior purchaser."

Cullom v. Guillot, 18 La. Annotated608.

Shaw v. Levy, 17 Serg & R. 99."Where a vendor of personal prop-

erty is allowed by his vendee to re-main in the possession of the prop-erty and thus to give to the world acolorable appearance of continuedownership, the title of asubsequentbona fide purchaser from such vendorwill be upheld as against the firstvendee." American & English Encyc.1164.

"Where an owner of property, de-signedly or by negligence, intrustsanother with the title, or the indiciaof ownership of personal property,and the other sells the property to abona fide purchaser, such purchaser


will be protected in his title asagainst the owner, upon the principlethat where one of two innocent par-ties must suffer for the wrong of athird person, the loss should fall uponthe one who by his act, created thecircumstances which permitted thefraud to be perpetrated."

American & English Encyc. 1165.Bates v. Smith, 47 N. W. 249."Most of the general exceptions to

the general rule that a bona fide pur-chaser gets no better title than hisvendor arise from the fact that thereal owner has voluntarily clothedsuch vendor with apparent owner-ship or authority to sell."

Williams v. Merle, 25 Am. Dec. 604.(notes)

Saltus v. Everett, 20 Wendell 278."Where an owner has given to an-

other such evidence of the right ofselling his goods, as, according to thecustom of the trade, of the commonunderstanding of the world, usuallyaccompanies the right and authorityof disposal, or has given the externalindicia of the right of disposal, a saleto an innocent purchaser divests thetrue owner's title." Willingham'sSons v. McGuffin, 90 S. E. 356.

ARGUMENT.

The appellant proposes but twoquestions for consideration, namely,"Was the contract between Smith andHunter an agreement for the sale ofa thing having neither actual nor po-tential existence?" and "Was the ap-pellee such a bona fide purchaser as togive him good title to the animal inquestion, granting that Hunter wasthe owner of the colt at the time ofthe appellee purchasing the same?"

It is contended by the appellantthat the agreement between Smithand Hunter was not one for the sale

of the colt yet to be foaled, but a con-tract for the services of the mare forbreeding. They base their contentionon an interrogatory submitted bythem to the jury and the answer re-turned thereto. They would have usbelieve that the services t.hus stipu-lated for were to be for a period ofgestation, and of such a nature thatthe result of such period of gestationwould be their property. Their as-sertion is erroneous. We grant thatthe agreement was for the services ofthe mare for breeding, but to say thatthose services were to continuethrough a prolonged period is erron-eous. We contend, and the evidencewill bear out our contention, that Dr.Hunter agreed to pay Smith the sumof forty dollars for the mere allowingof his mare to be bred to a stallion ofthe appellant's choosing, and for thetraining of that foal which should re-sult therefrom in such a manner asto render it suitable for a doctor'suse. We presume that the intentionof the parties was that after the coltshould be foaled a contract for itssale might be consummated betweenthe parties.

Even the appellant does not allegethat Dr. Hunter testified that the ser-vices stipulated for in the agreementwere to be other than for the merebreeding. Did Hunter testify thatthe contract was that the colt, if itshould result, was to be his? Mostemphatically, he did not! And yetthe appellant would have us believethat a mere contract to allow a mareto be bred is a contract for serviceswhich endure for the period of gesta-tion and is of such a nature as to givetitle to the foal of the mare!

The case of McCarthy v. Blevins,26 Am. Dec. 262, is cited by the ap-pellant to support his contention.


We do not deny that this case is acorrect application of the law, butthat it is in point on the case in handwe refuse to grant. McCarthy v.Blevins is a case where there was anactual existence of the subject mat-ter, a potential existence, and thisbeing true, the court correctly de-cided that the original vendee wasentitled to possession. (Sawyer v.Garrish, 35 Am. Rep. 323,. citing Mc-Carthy v. Blevins as a case of poten-tial existence.)

It is the belief of the appellee thatif any claim on the ownership of theanimal in question can be set forth bythe appellant, a perusal of the evi-dence will show that that claim mustbe founded on an attempt to sell thecolt not yet foaled or conceived.Heretofore we have granted, for thesake of argument, that the contractbetween Smith and Dr. Hunter wasone for services, but it is our beliefthat the evidence showed rather anoutright sale of the animal. If this isthe case, then, since the appellantdoes not dispute the law that a thinghaving neither an actual or potentialexistence cannot be the subject mat-ter of valid sale, there is no cause forus to enter into discussion on thatpoint. The court will note the au-thorities which have been cited tosustain this point of law.

We come now to the second ques-tion proposed by the appellant: "Wasthe appellee such a bona fide pur-chaser as to give him good title to theanimal in question, granting thatHunter was the purchaser or ownerof the colt at the time of the appelleepurchasing the same?" This learnedcourt will decide that he was. Fromevery angle from which the case maybe viewed instruction number elevenas tendered bythe trial court must beheld correct. There is only a half-

hearted attempt on the part of theappellant's to deny the correctness ofthe instruction. They would have usbelieve that the evidence as disclosedby the record does not justify it. Inbrief we will set out the law on thevarious lights in which the case maybe viewed.

Let us believe for the moment thatDr. Hunter was actually a purchaserof the colt and that his contracttherefor was valid. Granting this,he can not now set up his title to thecolt to deprive John Elam of thesame. Where a purchaser of goodspermits his vendor to remain in pos-session, a subsequent bona fide pur-chaser from such vendor, withoutnotice of the original sale, being putin possession, obtains a good title asagainst the prior purchaser.

American & English Encyc. 1164.Cullom v. Guillot, Supra.Shaw v. Levy, Supra.It is admitted by the appellant that

Elam was a bona fide purchaser with-out notice. He was put in possessionof the colt and still retains possession.Can his right to continue in theownership of the animal be disturbedunder this rule of law and underthese conditions? We think not.

The second angle from which thebona fide purchaser theory of thecase may be viewed is from the stand-point that Dr. Hunter was the ownerof the animal and allowed the pos-session and indicia of ownership torepose in the witness Smith. ThatSmith was in open and notorious pos-session, that he himself stated thathe was the owner, that to all outwardappearances he was in fact the titleholder, was brought out by the evi-dence. The court knows that in thepurchasing of horses from farmers,common vendors thereof, possessionand statement as to ownership are all


that are usually relied upon. Theappellee had no notice of any sortthat would put a reasonably prudentman on his guard. He had faith, ascustomary in the purchasing ofhorses from farmers, in the indiciaof ownership held by Smith. He paidfull value for the animal. He is en-titled to continue in uninterruptedownership thereof. "Where an ownerof property, designedly or by negli-gence intrusts another with the title,or indicia of ownership of personalproperty, and the other sells theproperty to a bona fide purchaser,such bona fide purchaser will be pro-tected in his title as against theowner on the principle that whereone of two innocent parties mustsuffer for the wrong of a third per-son, the loss should fall upon the onewho by his act created the circum-stances which permitted the fraud tobe perpetrated."

American & English Cyc. 1165.Bates v. Smith, 47 N. W. 249.

WYilliams V. Merle, 25 Am. Dec.604. (notes)

Saltus v. Everett, 20 Wendell 278.Willingham's Sons v. McGuffin, 90

S. E. 356.Here we may rest our case and feel

assured that we have proven to thecourt's satisfaction that the judg-ment of the lower court was correct,that instruction number eleven sub-mitted to the juiry was a correctstatement of the law applicable toour case.

In concluding, the appellee believesthat he is entitled to the judgment ontwo distinct theories, first, that what-ever contract existed between Hunterand Smith, the former took no title tothe colt for which replevin is sought;secondly, that, granting that Dr.Hunter did have an interest in theanimal at the time of its purchase byElam, the latter is entitled to pos-session and ownership thereof as abona fide purchaser for value.

We respectfully submit that thejudgment of the court below shouldbe, in all things, affirmed.


NOTRE DAME CIRCUIT COURTRecord of Cases.

(Lawrence B. Stephan)

CAUSE NO. 1.

William SmithVS.

Frank Brown

Arthur B. Hunter,Thomas V. Truder,

Attorneys for Plaintiff.Harry P. Nester,Lawrence S. Stephan,

Attorneys for Defendant.

Action on a negotiable instrumentgiven to plaintiff by defendant, whichis due and unpaid. Demand $116.25.

Complaint in one paragraph.Plaintiff files amended complaint.Defendant files answer, in one

paragraph, in confession and avoid-ance, alleging failure of considera-tion.

Plaintiff files reply in general de-nial.

Cause submitted to the court, jurybeing waived, and trial had.

Harry P. Nester opens argumentfor defense and is followed by Ar-thur B. Hunter for the plaintiff, andThomas V. Truder closes for theplaintiff while Lawrence S. Stephanconcludes the argument for the de-fense.

Judgment rendered in favor ofplaintiff in the sum of $106.25, prin-cipal and interest, together with at-torneys' fees of $20.00 and costs,which judgment is entered withoutrelief from valuation or appraise-ment laws.

CAUSE NO. 2.

Henry LangVS.

Frank Cramer

Richard B. Swift,Clement B. Mulholland,

Attorneys for Plaintiff.Humphrey L. Leslie,M. Edward Doran,


Plaintiff brings action on an ac-count to which defendant claims asset-off, compensation for services ren-dered. Demand $65.00.

Complaint in one paragraph, actionon an open account.

Defendant files answer in threeparagraphs; (1) General Denial;(2) Payment; (3) Set-Off.

Plaintiff files reply of general de-nial, to each of the paragraphs num-bered (2) and (3) of the defendant'sanswer.

Judgment rendered in favor ofplaintiff and against defendant'ssecond and third paragraphs of ans-wer.

CAUSE NO. 3.

John SullivanVS.

Harry Dorman

Francis J. Murphy,Francis J. Clohessy,

Attorneys for Plaintiff.Edward C. Donnelly,Delbert D. Smith,



Action on a promissory note. De-mand $500.00.

Complaint on negotiable promis-sory note in one paragraph, said notebeing due and unpaid.

Defendant files answer in twoparagraphs: (1) general denial and(2) non est factum.

Plaintiff files reply to the secondparagraph of answer, reply being ingeneral denial.

Cause submitted to the court, jurybeing waived, and trial had.

Judgment in favor of plaintiff inthe sum of $50.000 for which judg-ment is entered without relief fromvaluation or appraisement laws.

CAUSE NO. 4.

John HamiltonVS.

Charles Simpson

Sherwood Dixon,Robert E. McGlynn,

Attorneys for Plaintiff.Leo J. Hassenauer,Clifford P. O'Sullivan,


This is an action on a contract forthe sale of certain hogs valued at$83.50, which defendant refused toaccept.

Plaintiff files declaration and prae-cipe.

Defendant files plea to the jurisdic-tion, alleging improper service.

Plaintiff admits plea.Defendant waives service and files

plea in abatement, as to defect in thename of the plaintiff, which is sus-tained.

Plaintiff files amended declaration.Defendant files plea in two counts:

(1) general denial; (2) breach ofwarranty.

Plaintiff files general demurrer tocount (2) of defendant's plea, whichis overruled, and plaintiff takes ex-ception.

Plaintiff files replication in twocounts: (1) Similiter to paragraphone of plea and (2) general issue tosecond count of plea.

Defendant files similiter.Cause at issue, jury waived, and

trial had.Judgment for plaintiff in the sum

of $83.50.CAUSE NO. 5.

Fred SchultzVS.

Hale Paul andWilliam Paul

Edwin A. Frederickson,George L. Murphy,

Attorneys for Plaintiff.Arthur B. Hunter,Harry A. Richwine,

Attorneys for Defendants.

Action for damages occasioned bythe removal of a fence on the land ofplaintiff, landlord, erected there bydefendant William Paul, tenant, andplaintiff was assaulted by Hale Paulthe son of William Paul while in theact of removing such fence. De.mand $5000.00.

Complaint in three paragraphs:(1) theory of master and servant re-lation between father and son; ()conspiracy; (3) that father counseledand directed the son to commit as-sault and battery.

Defendants file separate and sever-al demurrer.

Demurrer sustained in behalf ofeach' defendant to the second and


third paragraphs of complaint, andleave taken to amend.

Plaintiff files amended third para-graph of complaint.

Defendants file separate demurrerto the amended third paragraphwhich is overruled and defendantsseparately except.

Defendants file answer in threeparagraphs: (1) general denial; (2)son assault demesie; (3) defence ofproperty.

Plaintiff files reply to the secondand third paragraphs of answer, thereply being traverse de injuria.

Jury impanelled, cause submitted,and trial had.

Plaintiff tenders twelve instruc-tions in writing, seven of which wereindicated as given, and five refused.Defendant tenders two instructionsin writing, one of which is indicatedas given and one refused. To thegiving and refusal to give these ten-dered instructions plaintiff and de-fendant properly except.

Defendants tender 25 interroga-tories with request that they and eachof them be submitted to the jury tobe answered and returned with thegeneral verdict. Then court refusesto submit interrogatories Nos. 4, 1222, and 23, to which refusal the de-fendants separately and severally ex-cept.

George L. Murphy opens argumentfor plaintiff and is followed by HarryA. Richwine for the defendants. Ar-thur B. Hunter concludes the argu-ment for defendants and Edwin A.Frederickson closes for the plaintiff.

The court now instructs the juryin writing and files the instructionsnumbered from 1 to 19 inclusive andorders that they become part of therecord without bill of exceptions.

The jury retire and return into

open court their verdict :-"We thejury, find for the plaintiff as againstthe defendant Hale Paul and we as-sess the damages at $5000. And wefurther find for the defendant Wil-liam Paul as against the plaintiff."

The jury also return the interroga-tories with their answers thereto.

Hale Paul files separate motion forjudgment on the answers to the in-terrogatories non obstante veredicto.Motion overruled to which defendantHale Paul excepts.

Defendant Hale Paul files motionand twelve causes for a new trialwhich is overruled and he excepts.

Plaintiff now files motion and fourcauses for the new trial as againstthe defendant William Paul whichmotion the court overrules and theplaintiff excepts.

Judgment on the verdict for plain-tiff as against defendant Hale Paul,to which said defendant objects andexcepts, and judgment on the verdictfor defendant William Paul asagainst plaintiff to which plaintiff ob-jects and excepts.

Defendant, Hale Paul, prays an ap-peal to the Supreme Court of NotreDame, which is granted and ten daysin which to file general bill of excep-tions. Thirty days granted said de-fendant to file appeal bond in the sumof $500.00 with Francis T. Walsh andJerome Martin as sureties, whichsureties are hereby approved by thecourt.

Plaintiff prays an appeal to theSupreme Court which is granted andten days given in which to file gener-al bill of exceptions. Thirty daysgranted plaintiff in which to file ap-peal bond in the sum of $200, whichbond is hereby approved.

NOTE :-The decision of the caseby the Supreme Court of Notre Dame


is elsewhere reported in this numberof the Reporter, as also are the argu-ments to the jury made by Edwin A.Frederickson for the plaintiff andArthur B. Hunter for the defendant.

CAUSE NO. 6.

William HunterVS.

John Elam

Michael E. Doran,Edward McMahon,

Attorneys for Plaintiff.

Jerome J. Martin,Humphrey L. Leslie,


This is an action in replevin, to re-cover a horse alleged to be owned bythe plaintiff, in virtue of a contractof sale prior to that by which defend-ant purchased and secured possessionfrom the the same vendor.

Plaintiff files complaint in oneparagraph in replevin.

Defendant files demurrer to com-plaint, which is overruled and excep-tion taken.

Defendant files answer in twoparagraphs: (1) general denial and(2) bona fide purchaser. Demurrerby plaintiff to the second paragraph issustained, to which defendant ex-cepts.

Plaintiff files reply in two para-graphs to paragraph (2) of answer:(1) general denial; (2) setting upownership.

Defendant files motion to strikeout second paragraph of plaintiff'sreply on the ground that it is an argu-mentative general denial. Motionsustained; second paragraph of replystricken from the record; plaintifftakes exception to this ruling.

Cause at issue, trial by jury.Before argument plaintiff tenders

instructions, all of which are refused,to which the plaintiff severally ex-cepts as to each instruction tenderedand refused. Defendant tenders in-structions all of which are refusedand the defendant excepts 9everallyto each ruling.

Plaintiff submits interrogatories,as also does the defendant.

Arguments by Ed. McMahon open-ing for the plaintiff and H. L. Lesliefor the defense, while J. J. Martincloses for the defense and M. E. Dor-an for plaintiff.

Court instructs the jury in writingand orders instructions to be filed andmade part of the record without billof exceptions.

Jury retires and returns into opencourt this verdict :-"We the juryfind for the defendant and againstthe plaintiff."

Answers to the interrogatorieswere also returned.

Plaintiff moves for judgment nonobstante veredicto on the answers tothe interrogatories. Motion over-ruled to which plaintiff excepts.

Plaintiff files motion and tencauses for new trial, which motion isoverruled and plaintiff takes excep-tion.

Defendant moves for judgment onthe verdict.

Judgment rendered for defendantthat the plaintiff take nothing by hisaction and that defendant recover hiscosts, to which judgment plaintiff ob-jects and excepts.

Plaintiff prays an appeal to theSupreme Court of Notre Dame. Ap-peal granted and five days given tofile afpeal bond in the sum of $300.00which bond and sureties on such bondare hereby approved by the court.


Plaintiff is granted ten days to filegeneral bill of exceptions.

NOTE :-The opinion rendered bythe Supreme Court of Notre Dame onthis case is to be found elsewhere inthis Reporter, as also are the briefssubmitted on the case by Messrs.Michael E. Doran and Humphrey L.Leslie.

CAUSE NO. 7.

Mary McClellandVS.

William Meyers

Clement B. Mulholland,Edwin C. Donnelly,

Attorneys for Plaintiff.Richard B. Swift,Thomas V. Truder,


This is an action for personal in-juries alleged to have been sustainedby the plaintiff, due to the carelessand negligent driving of an automo-bile by the defendant's son. Demand$1500.00.

Plaintiff files complain in twoparagraphs: (1) on the theory 6fmasfer and servant; (2) on thetheory of negligence of master.

Defendant files motion to makemore specific which is overruled.

Defendant files several demurrerto complaint alleging (1) failure tospecify the relation between plaintiffand defendant; (2) that second para-graph does not state specific act oromission which caused the injury.Court overrules demurrer to eachparagraph to which ruling on eachparagraph defendant excepts.

Defendant files answer in threeparagraphs (1) general denial; (2)

contributory negligence; (3) alleg-ing ordinary and reasonable care.

Plaintiff makes motion to strikeout paragraphs two and three of ans-wer, which motion is sustained, andthe defendant severally excepts.

Jury impanelled, cause submittedand tried.

Plaintiff tenders four instructions;three instructions given and one re-fused. Defendant tenders three in-structions two of which are given andone given as modified. Defendant ex-cepts to the giving of the plaintiff'sinstructions numbered 2, 3 and 4,and also takes exception to the rulingon the court in refusing his tenderedinstruction No. 1. Plaintiff exceptsto the giving of each of defendant'sinstructions.

Plaintiff submits interrogatoriesnumbered one to seven all of whichare given. Defendant submits inter-rogatories numbered one to eleven,the court refusing all but numbers 1and 11, to which ruling defendant ex-cepts.

.Edwin C. Donnelly opened the ar.gument for the plaintiff, followed byRichard B. Swift for the defendant.Thomas V. Truder closes the argu-ment for the defense and Clement B.Mulholland concludes the case for theplaintiff.

The court now instructs the juryin writing and files the instructions,ordering that they be made a part ofthe record without bill of exceptions.

The jury retire and return intoopen court the general verdict in fa-vor of plaintiff, fixing damages at thesum of $750.00.

The jury also return the interroga-tories with their answers thereto.

Defendant files motion for newtrial, which the court overrules, towhich the defendant takes exception.

36 NOTRE DAME LAW REPORTER

Judgment rendered in favor of which to file general bill of excep-plaintiff in the sum of $750.00. tions. Thirty days granted said de-

Defendant prays an appeal to the fendant to file appeal bond in the sumSupreme Court of Notre Dame which of $1000.00, which bond and suretiesis granted and five days given in thereon is hereby approved.


IN THE NOTRE DAME CIRCUIT COURTHON, F. J. VULPILLAT, JUDGE

Arguments in the Case ofFRED SCHULTZ V. HALE PAUL AND WILLIAM PAUL

byEDWIN A. FREDRICKSON, ATTORNEY FOR PLAINTIFF

andARTHUR B HUNTER, ATTORNEY FOR DEFENDANTS

FREDRICKSON FOR PLAINTIFF.

Your Honor; Gentlemen of the Jury:I don't believe that it is necessary

for me to argue for any great lengthof time in behalf of the plaintiff inthis case, Mr. Schultz, in view of thefact that certain matters, certainfacts, have been brought out in theevidence submitted to you in thiscause, which facts, when the law isapplied to them as per the instruc-tions that will be given you by thiscourt, leave you with but one courseto pursue in arriving at your verdict:Gentlemen of the jury, in my mindyou are virtually compelled to find forMr. Schultz as against both WilliamPaul and Hale Paul, awarding Mr.Schultz the five thousand dollars ask-ed for and not one penny less.

This is an action in damages; anaction brought by Mr. Schultz as re-sult of an assault and battery com-mitted upon him by Hale Paul the5th day of June, 1919, on a farm sometwo and a half miles west of the cityof South Bend. For all the naturaland probable consequences of this as-sault Mr. Hale Paul, under certaincircumstances, is liable, which cir-cumstances I believe we have con-clusively proven; and for all the na-tural and probable consequences ofthis same assault Mr. William Paul.under certain circumstances, is like-wise liable, which circumstances I be-

lieve we have likewise proven. Nowthen, gentlemen of the jury, it hasnot been necessary in this case for usto prove the assault itself, for bothHale Paul and William Paul, whileon the witness stand, admitted thestriking of the blow complained ofWhat then are the defenses offeredby these defendants in their hope toescape liability? Well, they are twein number. Hale Paul tells you,-firstof all, that he struck Fred Schultz inself-defense; and, secondly, that hestruck Mr. Schultz in defense -of-hismaster's property. Gentlemen of thejury, I ask you is either of thesedefenses sustained by the evidence?

Before you can conscientiously be-lieve that Hale Paul struck FredSchultz in self-defense, you must cer-tainly believe that, prior to the as-sault, Mr. Schultz assumed some sortof a threatening attitude towardsHale Paul; in other words, that HalePaul had reasonable grounds to fearbodily injury at the hands of Mr.Schultz. But what is the evidence o"this point? First of all, the allega-tion by the Pauls, on the one side, ofthe fact that Mr. Schultz did assuma threatening attitude, but on theother side, the absolute denial of thatfact by Mr. Schultz, with his testi-mony corroborated by the testimonyof Mr. Leslie, an eye witness to theentire transaction. And this is not


the only evidence that must be con-sidered by you relative to this pointThis court will instruct you that, indeciding upon any disputed question,you must not rely alone upon the testimony of the various witnesses withreference to that particular question,but that you must consider all theevidence, all the facts and attendingcircumstances, as brought out by theevidence. And now let us reviewthese other facts. Surely, before youcan believe that Mr. Schultz ever of-fered to inflict bodily harm uponHale Paul, you must believe one oftwo things: either that when he wentout to that farm he carried in hisheart the intention of committing anassault upon Hale Paul, or else that,after reaching the farm, Mr. Schultzwas so angered or incensed by thedeeds or words of Hale Paul that hewas suddenly rendered willing to doHale Paul personal injury. But doesit appear that Fred Schultz soughtout Hale Paul upon arriving at thefarm as he unquestionably wouldhave done had he intended to assaulthim? Most certainly not. He pro-ceeded at once to the fence he hadgone out to remove, paying not at-tention to Hale Paul, some hundredfeet distant in the corn field. Andnow just what took* place there atthat fence? First of all, Hale Paulcame running over yelling out, "Mr.Schultz, you leave that fence alone,"to which remark Schultz paid no at-tention. And then what happened?

A little later Hale cried out, "Damnyou, Schultz, if you don't stop I'llmake you stop," to which remark.Schultz again paid no attention,whereupon Hale Paul merely repeat-ed the identical words, "damn you,Schultz, if you don't stop I'll makeyou stop," whereupon, the Pauls

claim, Mr. Schultz then assumed athreatening attitude. Gentlemen ofthe jury, without a doubt Hale Paulmade use here of some very forciblelanguage, but my theory is, and cer-

-tainly your conclusion must likewisebe, that if these strong words couldever have so roused the anger of FredSchultz as to incite him to the' com-mission of an assault upon Hale Paul,they would most certainly have hadthat effect the first time that theywere addressed to him. And yet thePauls would have you believe, in spiteof the testimony of Mr. Schultz,backed up by the testimony of Mr.Leslie, and in spite of all these incon-sistent circumstances, that Mr.Schultz did assume a threatening at-titude.

And here is still another point. Re-call, if you will please, the fact asbrought out by the testimony of thedefendants themselves-and I amvery careful to question both HalePaul and William Paul on this point-the fact that Hale Paul picked upthat fence rail some time prior tothe time at which the Pauls claimthat Fred Schultz assumed a threat-ening attitude. What did Hale Paulpick up that club for, if not for thevery purpose for which it was usedonly a few moments later, namely, ofstriking Mr. Schultz upon the headwith it with such force and violenceas to flatten him to the ground sense-less? What did Hale Paul pick upthat club for, I ask you, did he wantto pick his teeth with it? Recall too,if you will, the manner in which Wil-liam Paul warned his son not tostrike Mr. Schultz, of how upon hisarrival at the fence he cried out."You'd better not strike him, Hale."What if anything do these words in-dicate, if not, that either the Pauls


had conspired to assault Mr. Schultz,or else that Hale is possessed of amost violent and ungovernable tem-per? And yet Hale Paul tells youthat he struck in self-defense.

And, gentlemen of the jury, evenif Hale Paul had actually acted inself-defense, had used force as ameans of self-protection, it could notbe contended by these defendants thathe only used such force as was rea-sonably or seemingly necessary underthe circumstances. It must be re-membered that at all times during theaffair out there on that farm a five-foot fence was between the two men,that Hale Paul was in the corn field,and that Mr. Schultz was in theclover field, and that a substantialfive-foot barrier intervened betweenthem. Certainly the position of HalePaul was actually and seeminglymuch less dangerous than it wouldhave been had there been no fencein existence. And it was unquestion-ably unnecessary for Mr. Hale Paulto reach over that fence and to dealMr. Schultz a blow so vicious that itleveled him to the ground uncons-cious. And, gentlemen of the jury,the law does not countenance the useof excessive force by one really act-ing in defense of either person or pro-perty, and this court will so instructyou. I tell you, gentlemen of thejury, that Hale Paul has failed utter-ly to prove up in this case, either theplea of self-defense or defense of hismaster's property, such as is recog-nized by the law.

Now then, relative to the liabilityof Mr. William Paul; I don't intendto spend much time on that phase ofthis case. If Hale Paul is liable forthis assault, as undoubtedly he is,then William Paul is also liable, forthe master is always liable for the

tortious act of his servant commit-ted by such servant while actingwithin the scope of his employmentand in furtherance of his master'sbusiness or interests. On the wit-ness stand both Hale Paul and Wil-liam Paul testified that on the 5thday of June, 1919, and for some timeprevious thereto Hale Paul was andhad been in the employ of his father,acting as his servant and assistinghim in the operation of his .farmAnd both defendants also admittedthat at the very time the blow wasstruck Hale Paul was such servant,acting within the scope of his employ-ment and in furtherance of his mas-ter's interests, namely, attempting toprevent the removal of that divisionfence. And so I say, that I don't feelthe necessity of tarrying long uponthe proposition of William Paul'sliability.

And now just a few words withreference to the damages asked forand I am through. Gentlemen of thejury, surely you must realize thatno verdict that you could possibly re-turn could ever right the wrong thathas been comniitted upon Mr.Schultz; that no verdict that youcould possibly return could ever placehim in the position he was in priorto the 5th day of June, 1919. Andsurely, therefore, you must feel ityour solemn duty to award him suchmonetary damages as will compen-sate him as best they can for the losshe has sustained. And now what arethe proper elements of his damages?Are they merely the medical andnursing expenses he has incurred, thewages he has already lost, the mentaland pbysical suffering he has endur-ed? Hardly. Dr. Royans has toldyou that Mr. Schultz is permanentlyinjured, that he is suffering from an


organized thrombus resulting in thepermanent paralysis with which he isafflicted; and has told you furtherthat Mr. Schultz will never again beable to do a day's labor. Oh! I amnot unmindful, gentlemen of the jury,of what Dr. Allney had to say withregard to paralysis, bloodclots, etc.,but I want to tell you that, personal-ly, I haven't very much respect forthe medical opinion of a physicianwho would have me believe that hu-man heads don't vary in shape andsize; and who is wont to compare thehuman blood stream to the lubricat-ing system of an automobile. Why,gentlemen, I have just a little toomuch regard for the greatest pieceof handiwork of God to believe thatthe human blood stream is but alubricating system. I wonder whatDr. Allney thinks its purpose is-perhaps a means of oiling the joints.No I am not fearful of the effect ofDr. Allney's testimony. And now ifFred Schultz is permanently para-lyzed, as unquestionably he is, andincapable of ever doing another day'slabor, what additional loss has hesustained as result of this tortiousassault? Simply the complete loss ofall such earnings as he might havemade in the future; and now whenone stops to consider that, as per thetestimony of Mr. Schultz himself andof Mr. O'Hara, his employer, Mr.Schultz had for some time previousto 5th day of June, 1919, been earn-ing a salary of one hundred and fiftydollars per month; and that, as perthe testimony of Mr. Doran and asper the American Table of Mortality.

Mr. Schultz has expectation of lifeamounting to some twenty-fouryears, one needn't be possessed of ex-ceptional mathematical ability tofigure out that the present value of

such a salary most certainly amount3to a sum much greater than the fivethousand dollars asked for. But,gentlemen of the jury, why shouldyou haggle over the question of dam-ages? Look at Mt. Schultz! What ishe today but a mere miserable shad-ow of his former self, a misery. tohimself, a misery to his family, amisery to everyone with whom hecomes in contact; a man not only de-prived of the ability of ever doing an-other day's labor, but a man deprivedof something even more valuable thanthat-a man deprived of the satisfaction that comes to every man at theconclusion of an honest day's toil.and all as the result of the maliciousand tortious assault committed uponhim by Hale Paul? Why, gentlemenof the jury, can there be any doubt inyour mind of the fact that, if FredSchultz were to have his choice, hewould rather have the health and vig-or and physical well-being that werehis prior to the 5th day of June 1919.than to have you award his a hundredthousand dollars damages! So nowgo into the jury room, gentlemen ofthe jury, and consider the evidence inthis case, and consider the law, andthen all that I ask of you is that youof your moral consciences.act in accordance with the dictations

HUNTER FOR DEFENDANTS

Your. Honor-Gentlemen:Not only do we believe, as has been

ably pointed out by my co-counsel inhis argument, that the evidence inthis case is clearly in favor of the de-fendants, separately and jointly, butwe are also convinced that the law isclearly in our favor on the issues in-volved.

There are at least four phases of


the alleged liability of the defendantsin this case on the paragraphs ofplaintiff's complaint. They may berepresented by four questions.

1. Is William Paul liable on thefirst paragraph of the complaint?

2. Is William Paul liable on theamended third paragraph of the com-plaint?

3. Is Hale Paul liable on the firstparagraph of the complaint?

4. Is Hale Paul liable on theamended third paragraph of the com-plaint?

It shall be my purpose to treatthese four questions.

William Paul is not liable on theplaintiff's allegations in the first para-graph of complaint because: firstly,the mere relationship of parent t:child does not make the father liablefor any tort committed by his child;secondly, the plaintiff has not shownby a preponderance of the evidencethat the son at the time of the assaultwas working as his father's servant;thirdly, and most important of all,there was no unlawful assault com-mitted by Hale Paul as alleged in thefirst paragraph. If no such assaultwas committed, and you have heardthe evidence, gentlemen, clearly show-ing that it was not, then certainlyWilliam Paul is not liable on anytheory for a tort never committed.

Then, too, William Paul is not lia-ble on the plaintiff's allegations inthe third paragraph of complaint be-cause it nowhere appears in the evi-dence that William Paul did or saidanything to induce his son to go tcthe place where the plaintiff was, oithat he aided, abetted, encouraged, orcounselled any retaliation, even forthe assault which the plaintiff com-mitted before he was downed by ablow from the light stick in the hands

of the boy Hale Paul. Rather it doesappear that he at the time counselle -his son and called to him not to striksthe plaintiff, under and provocationor assault, for the reason that hcknew the plaintiff's general reputation for turbulence of character inthe community in which the plaintiffresiles. If William Paul did no:counsel, aid, or abet his son, even todefend himself, certainly plaintiff'sfailure to prove facts sustaining histhird paragraph of complaint releasesWilliam Paul from all liability there-on. The learned court will instructyou that every material fact allegedby the plaintiff must be proved byhim by a preponderance of the evi-dence.

But let us get down to the two par-ties most intimately involved in thiscase and try to disc6ver what, if any,liability attaches to the defendantHale Paul from the proQf or lack o- 'proof of facts alleged in the plaintiff'sfirst and amended third paragraphsof complaint.

The defendant Hale Paul ischarged with the direct commissionof an assault and battery in each ofthese paragraphs. The allegations asto Hale Paul's part in the alleged tortare practically the same in both cases.Suffice it to say that either the secondor the third paragraph of answer al-leges facts sufficient to free Hale Paulof any liability for any act of hisdirected against the plaintiff on thefifth of June last.

It is the law and the court willinstruct you that not only must theplaintiff prove the operative facts ofat least one of his paragraphs of com-plaint, but he must also meet success-fully as to each paragraph the specialitems of defense set up by each ofthe defendants in their second and


third paragraphs of answer. Thecourt will instruct you that if you be-lieve that Hale Paul committed an as-sault and battery on the plaintiff, inthe defense of his property rights orin defense of his person, and that aithe time Hale Paul was himself with-out fault and in a place where he hada right to be and that he believed tha"he would suffer bodily harm at thyhands of the plaintiff, and, while sobelieving, struck the plaintiff, usingno more force than was necessary todefend himself against the threaten-ed injury he believed was about to beinflicted upon him, that he struck theplaintiff in the proper and reasonabledefense of his property rights, thatif you believe either of these states offacts to have existed, then you mustfind for the defendant Hale Paul.Certainly, gentlemen, both of thesejustifications, as has been shown inthe argument of my co-counsel on theevidence in this case, did exist.

We are not contending that themere words of the plaintiff at the timejust preceding and at the time of thethreatened injury to Hale Paul werlsufficient provocation or excuse to en-title the defendant Hale Paul to"whale away" and slap the plaintiffover the left ear, but we do contendthat even such words strengthenedthe defendant Hale Paul in his belief,already existing, that he was in dan-ger of bodily harm, and when coupledwith the fact that the plaintiff ad-fanced towards him in a menacing at-titude and with a spoken threat, thatbelief became so acute that Hale Paulwas absolutely certain, as would anyone of you gentlemen have been un-der like circumstances, that he wasin grave and immediate danger ofbodily harm.

Remember also that Hale Paul was

in a place where he had a right to be;on a farm leased from the plaintiffby William Paul for a cash rental andon a farm in the crops and stock ofwhich, the plaintiff has shown abso-lutely no interest; and at a fence onthat farm, which fence was plainly atemporary fence, which fence, forsome whimsical reason that the plain.tiff has not seen fit to allege or dis-close, the plaintiff wanted to removeand was arbitrarily removing at thetime of the alleged assault on June 5,1919, and which fence, moreover, wasplaced there without a word of com-plaint on his part; that, finally, thisfence was at the time the personalproperty of the occupants of the farmat the time and if the plaintiff hadsucceeded in accomplishing his evilpurpose of tearing down the whole orany part thereof, and carrying anyportion of it away, such plaintiffwould have been guilty of larcency.Therefore, we say that Hale Paul wasfree from fault and was in a placewhere he had a right to be.

Furthermore, Hale Pacl used theonly reasonable means at hand to de-fend his person and his property andcertainly used no more force thanwas necessary to defend himselfagainst the threatened injury that hebelieved was about to be inflicted up-on him. This phase of the case hasbeen so ably presented by my col-league in his argument that I needonly mention it here.

If the plaintiff really thought thathe was entitled to have this fence re-moved, why did he not seek an ap.propriate remedy in equity or seekhis actual damages in law? Thecourts have even been open to himfor such purpose. He had no rightto take the law in his own hands andthen be heard to complain if his own


forceful, unlawful means were metby other means, perhaps forceful, butcertainly no more so than was actual-ly necessary under the circumstances.Perhaps he knew himself to be in thewrong. Perhaps he had consulted anhonest lawyer and that lawyer hadtold him that it is the general rule oflaw that when a landowner consentsexpressly or by implication to theplacing of an addition on his land,without an express agreement as towhether it shall become a part of therealty or remain personalty, anagreement will be implied that it isto continue personal property. Inany event he showed by the very vio-lent manner in which he dealt withthe fence that he realized that it wasnot a fixture but was severable. Heseemed to forget, however, that theright to remove this fence or to re-frain from removing the same, rest-ed with his tenants who had put upthe fence.

Perhaps you are saying to your-selves, "Oh, well, what have all thesepropositions to do with the case?"

Gentlemen, I am merely endeavor-ing in my humble way to present toyou the case of the defendant William

Paul and the case of the defendantHale Paul and convince you, as I havelong ago become convinced, that thiswhole suit is the result of malice. Youhad the opportunity and duty towatch and compare the demeanor andcandor of the plaintiff and the de-fendahts in the court room. Youhave had every opportunity to notethe apparent lack of any of thosesymptoms or traces of paralysis inthe plaintiff from the moment that heleft the witness stand. You have hadthe chance to see before you in hisevery littleness this plaintiff whothreatened to "get even" with thesedefendants because they saw fit toresist force with force. Doubtlessyou have already formed an opinionin your own minds which of the wit-nesses were telling the truth. Thelearned court will instruct you thatyou may consider the demeanor ofeach and every witness on the standalong with all other facts and cir-cumstances in the case. We believethat you will view this case as menand that you will deal justice as men.We know that any act of either de-fendant was fully justiled at the timeand we ask of you only simple jus-tice.

NOTRE DAME LAW REPORPER

JUNIOR MOOT COURTCAUSE NO. 1.

John HamiltonVS.

Charles Simpson

Action for Breach of Contract.Damages $100.

Charles Simpson, riding in com-pany with a friend, passed the farmresidence of John Hamilton and,seeing a sow and five sucking pigs onthe Hamilton farm, stopped, examin-ed them, then drove to the barn yardof Hamilton where he opened negotia.tions with Hamilton for the purchaseof the pigs. As a result of the talkit was agreed by-and between themthat Simpson was to buy the sow andpigs for the stipulated price of $83.50and Hamilton was to sell and deliverthem to Simpson the next day at hisresidence in South Bend, Indiana, andreceive payment.

Next day Hamilton brought thesow and pigs to the residence ofSimpson in South Bend as agreed,but Simpson refused to accept or re-ceive them or permit Hamilton to de-liver them, giving as his reason thathe feared the pigs might have thecholera; that he would not consent toaccepting delivery of the sow and pigsunless Hamilton would submit themto examination for the purpose of de-termining whether or not they hadcholera, and for the further reason.,as Simpson stated, that he did notthink he could be forced to take thepigs and sow. Who should recoverand why?

George D. O'Brien and,Donnelly C. Langston,

Attorneys for Plaintiff.

Alden J. Cusick andJoseph H. Flick,


PLAINTIFF'S POINTS ANDAUTHORITIES.

The fact in this case that the hogsare not goods, but are chattels willtake the oral contract out of theoperation of the Statute of Frauds.

Burrills Law Dictionary: Goods-strictly seems applicable only toinanimate movables, being in thisrespect less comprehensive thanCHATTELS, which include animals.19 Ill. 584; 133 Ind. 472.

The word CHATTELS is of morethan general signification thanGOODS. 56 Mo. 58, 20 Mich. 357.

CHATTELS is more comprehen-sive than GOODS and includes ani-mate as well as inanimate property.159 Pa. St. 220.

2. Since the oral contract has beentaken out of the operation of theStatute of Frauds it is possible tomake a constructive delivery of theCHATTEL. Since this is the casetitle has already passed to the pur-chaser in this case and the vendorwas in the position of bailee after thepassing of the title.

Where, by .the contract itself, theseller appropriates to the purchasera specific chattel, and the latter there-by agrees to take that chattel and paythe stipulated price, the parties arethen in the same situation as theywould be after a delivery of the goodsin pursuance of the general contract;the appropriation is equivalent to adelivery and the assent of the pur-chaser to take the specific chattel andpay the price is equivalent to accept-ance. The effect of the contract


therefore is to vest the property inthe purchaser. 6 W. Va. 255; 17 L.R. A. (N. S.) 807; 61 S. E. 235 (RuleStated) ; Cited in 50 L. R. A. (N. S.)124.

3. If the purchaser inspects forhimself the specific goods sold andthere is no express warranty, and theseller is guilty of no fraud, and is nothimself the manufacturer of thegoods sold and there is no eypresswarranty, and the seller is guilty ofno fraud, and is not himself themanufacturer of the goods sold, thedoctrine of CAVEAT EMPTOR ap-plies even though the seller presumesthe purpose for which the goods wererequired. 30 Am. Rep. 639; 64 N.Y. 411; 22 Fed. Rep. 52.

Where the means of knowledge areat hand, and equally available to bothparties, and the subject is open to theinspection of both parties alike, thereis no implied warranty. 33 La. Ann.1364.

4. There was no implied warrantythat the hogs were sound and the ven-dee cannot set up the fact that thevendor warranted the hogs.

DEFENDANT'S POINTS ANDAUTHORITIES.

I The Contract of Sale in thiscase is governed by the Statute ofFrauds.

Burns Annotated Statutes of In.diana 1908 Vol. III, Sec. 7469: "Nocontract for the sale of any goods forthe price of $50 or more shall be validunless the purchaser shall receivepart of such property or shall givesomething in earnest to bind the bargain or in part payment or unlesssome note or memorandum in writingof the bargain be made, and signedby the party to be charged thereby

or by some person thereunto by himlawfully authorized."

The contract in this case is paroland for the sale of goods of morethan $50 in value.

Hogs are "goods" within the mean-ing of the Statute of Frauds I) Vaw-ter v. Griffin et all, 40 Ind. 600-"Webster says: 'Goods, n. p.; mov-ables, household furniture, horses;cattle, utensils'. Raleigh says:'Syn.: goods comprehend furnitureor other moveables or movable es-tates, as cattle, implements, utensils.'

2 Words & Phrases Vol. IV,Page 3131: "The words 'goods, waresand merchandise' are equivalent tothe term 'personal property' and arcintended to include whatever is notembraced by the words 'lands, tenaments and hereditaments.'

3 Cyclopedia of Law & Proce-dure Vol. XX, Page 1267.

4 Tigany on Sales, Page 72.No acceptance; no part payment;

no memorandum in writing to thecontract of sale in this case.

1 Mere delivery of goods by thepurchaser is not sufficient; he mustreceive and accept the same. InFrankie v. Trulove, 54 N. E. 461 IndAppellate, it is said: "The receipt ofproperty contemplated by the Statutwhich will take the contract of saleout of the operation of the Statutathe seller cannot by this act of de-involves delivery by the seller, butlivery render the contract enforce-able against the purchaser withoutreceiving the goods or some partthereof by the purchaser as his pro-perty under the contract."

2) Dehority v. Paxton, 97 Ind.253, "The seller must part with hiscontrol for the purpose of vesting theright of property in the buyer whomust receive with such intent on his


part." See also Shindler vs. Hous-ton, 1 N. Y. 261; Hooker v. Knab, 26fWis. gl; Stone v. Browning, 51 N.Y. 211; Johnson v. Cuttle, 105 Mass.447.

II. The Damages sought in thiscase are improperly measured andexcessive.

The measure of damages for thebreach of an executory contract ofsale by the purchaser is the differenc.between the contract price and themarket price of such goods at thetime the contract was broken.

In Singer v. Chaney, 51 S. W. 813,the Kentucky Court holds: "thatwhere the buyer of logs had a rightto inspect them and to reject such asdid not meet the requirements of thccontract that the title did not pasuntil the logs were accepted andtherefore the measure of damagesfor the buyers refusal to take andpay for the logs was not the contractprice but the difference between theprice agreed to be paid for the logs atthe time and place of delivery and thesum for which the seller could, byreasonable effort, have sold them af-ter the buyer had refused to acceptthem." See also: Acme Food Co. v.Older, 17 L. S. A. (N. E.) 808; Doll-man v. Studebaker, 52 Ind. 286.

Judgment for Defendant.

CAUSE NO. 2.

John Kent, by WilliamJones, next friend

VS.The Michigan CentralRailroad Company.

Action for Damages,-$10000.

The defendant, in operating itsroad, carries on its trains, to be usedby its servants, certain signal torpe-does, which were apparently harm-less, but which in fact were danger-ous explosives. That a train of thedefendant, carrying such torpedoeswas stopped by its servants at awater tank and station in SouthBend; that said servants took someof the torpedoes and placed them onthe track in an exposed place withoutany cause or necessity for doing so,but merely for the fun of seeing themexplode; that the defendant's trainnegligently failed to explode all thesqtorpedoes and left them exposed in apublic place where people generallywere accustomed to pass as wellknown to the defendant and withoutobjection by the defendant, a placeon its right-of-way.

That the plaintiff, John Kent, a boyof ten years, was standing near thestation with other boys when thistrain stopped; that just after thetrain moved on, another boy of tenyears who had been walking alon ,just along behind the train to theknowledge of the servants of thetrain, saw the unexploded torpedoand picked it up and carried it towhere the plaintiff and other boyswere standing and showed it to them,not knowing what it was or its dan-gerous character, some 150 feet fromwhere he picked it up to where hecarried it. That this boy handed thetorpedo to the plaintiff who also didnot know its dangerous character,that plaintiff inspected it and whileso doing it exploded and occasionedconsiderable damages to the plaintiffby reason of personal injuries, forwhich he now brings this actionthrough his next friend. Shouldplaintiff recover or not and why?


Walter A. Rice andGeorge 0. Witteried,

Atty's for PlaintiffCharles P. J. Mooney andPeter Lish,

Atty's for Defendant


I. The case of Harrimann vs.Ptitsburgh, C. & St. L. R. Co., 12 N.E. 451, is on all four with the case atbar, the facts are identical with thosein this case.

In that case a child of ten years ofage wa sinjured by reason of the ex-plosion of a railway torpedo whichthe servants of the company hadplaced upon the track at a place nearthe station and where the public werewont to gather, a playmate of thechild picked up the torpedo andwhile handling it, it exploded, injur-ing the plaintiff. The court held:That the railway company was liablefor the injury caused by the negli-gence of their employees, who placedthe torpedo upon the track at wherechildren were wont to play.

This case is the leading case alongthis line and the holding of the courtin that case has been sustained in thefollowing cases: 78 S. E. 816; 38S. E. 356; 47 Ohio St. 387; 24 N. E.658-8 L. R. A. 464; 11 R. C. L. 664-20R. C. L. 87.

II. Attractive Nuisances - Thefollowing case held that anythingin the nature of explosives isattractive to children and personsusing them must exercise the utmostcare in using and handling them,especially if they are liable to beaccessible to children. Mattison vs.Minn. & N. W. R. R. Co., 95 Minn.477; 104 N. IV. 443; 70 L. R. A. 503,given in the notes in L. R. A. (N. S.)19-1128.

III. For a definition of Proximatecause see Intervening or concurrentcauses, 22, R. C. L. 199.

A railroad company is not relievedfrom liability to a child injured by-animproperly fastened turntable, by thefact that it was put in motion by theplaymates of the injured child. 22 R.C. L. 167.

A person is generally held liablefor any injury resulting for leavingexplosives in a place accessible tochildren, especially if it is a publicplace or a place where children arewont to congregate under circum-stances which do not make them wil-ful trespassers.

Wells vs. Gallagher, 144 Ala. 363.3 L. R. A. (N. S.) 759.St. Louis R. R. Co. vs. Gaggner, 116

S. W. 948. 52 L. R. A. (N. S.) andnotes in 24 L. R. A. (N. S.) 586.

IV. The act of the child causingthe explosion is generally held not tobe such an intervening cause as willrelieve the defendant of liability.See 22 L. R. A. 167.


I. The act of the trainmen inplacing the torpedoes on the trackcannot be deemed the act of theirmaster, i. e., the railroad company.See Sullivan vs. L. & N. R. R. Co., 74S. W. 171; Morier vs. St. Paul Ry.,17 N. W. 952; Smith vs. N. Y. R. R.Co., 78 Hun. 524; Young vs. SouthBoston Ice Co., 150 Mass. 527; Birn-baum vs. Philadelphia R. R. Co., 94Atlantic 925; John vs. BirminghamRealty Co., 55 South 801; Bowley vs.O'Connell, 27 L. R. A. 173; Snydervs. Hannibal, etc., R. R., 60 Mo. 413;Davis vg. Houghtelin, 14 L. R. A. 737.

II. The act of the child in hand-ing the torpedo t othe plaintiff was


such an intervening cause as brokethe casual connection between thealleged negligence of hte trainmenand the injury to the plaintiff. SeeKinkbeiner vs. Solomon, 24 L. R. A.(N. S.) 1257.

III. The torpedo is not a danger-ous agency. See Mize vs. L. & N. R.R., 16 L. R. A. 1084; Kleebauer vs.Western Fuse Co., 60 L. R. A. 377.

The fact that the person respon-sible for the intervening act is a childdoes not affect the case, but, if theact itself is an intervening effectivecause, it will break the casual con-nection. See Finebeiner vs. Solomon,24 L. R. A. (N. S.) 1257; Otter vs.Cohen, 1 N. Y. Supp. 430; Loftus vs.Dehail, 65 Pac. 379.

The plaintiff is not conclusivelypresumed to be incapable of contri-butory negligence. In fact, there isno presumption either way regardinghis capacity. See Terre Haute R. R.Co. vs. Tupperbach, 9 Ind. App. 422,36 N. E. 915; Riderbaur vs. KansasCity R. R., 13 S. W. 889; Elwood vs.Addison, 26 Ind. App. 28, 59 N. E.47; Citizens Street Ry. vs. Stoddard,10 Ind. App. 278, 27 N. E. 723.

The defendant is not an insurer ofthe safety of children because he isthe owner of appliances that may ap-peal to their youthful fancies. SeeLewis vs. C. C. C. & St. L. R. R. Co.,84 N. E. 23; Galveston Ry. vs. Cunie,10 L. R. A. 307; Ballard vs. L. & N.,16 L. R. A. 1052; Fitzmaurice vs.Conn. R. Co., 3 L. R. A. 149; Clarkvs. Richmond, 8 Am. St. Rep. 281;Daniels vs. N. Y. & N. E. Ry Co., 28N. E. 283; Frest vs. Eastern R. R., 9At. 190; Union Stock Yard & Tran-sit Co. vs. Butler, 92 Ill. App.-;Ryan vs. Tomar, 87 N. W. 644.

Judgment for Plaintiff.

CAUSE NO. 3.

John JonesVS.

Samuel Smith

Action on Note. Demand $100.

Samuel Smith, defendant, signedand delivered his promissory notepayable in Bank for $100 to RichardRoe. Jones purchased the note fromRoe before its-maturity, paying valu-able consideration therefore.

The facts are that Smith did notthink he was signing a note; that hewas merely signing an order formedicine and treatment; that Roe sorepresented and stated to him thaithe paper he, Smith, signed was anorder for medicine; that he couldneither read nor write and so statedto Roe at the time of the transaction;that he stated to Roe that he wouldsign the paper if it was an order formedicine; and that Roe thereupongave the paper to a stranger who hap.pened to be present at the time whoread it and stated that it was an or-der for medicine; that he was thusmisled into signing the paper and ex-cept for these facts would never havesigned it; that he intended to. signonly an order for the medicine hewas purchasing at the time. The de-fendant's wife and son were withinthe building where this transactioroccurred, but were not called andconsulted by the defendant at thetime. Should the plaintiff recover ornot and why?

James L. O'Toole andFrank M. Franciscovich,

Attorneys for Plaintiff.Henry W. Fritz andHugh Gibbons,




1. Where a person is induced byfraud t, sign a bill or note under thebelief that he is signing a differentinstrument, his signature is null andvoid and he is not liable there oreven ad against a bonafide purchaserfor value provided that in so doing orsigning he acted without negligence.

However this rule does not applybecause defendant was negligent-the degree of care is clearly stated in13 N. W. R. 132.

2. When one of two innocent par-ties must suffer for the fraud of an-other the loss shall fall upon the onewho enabled the third party to com-mit the fraud.

This point is brought forward in29 Iowa 498.

3. The defendant is estopped frommaintaining the defense of fraudagainst the Bonafide holder becauseof negligence.

This point is illustrated in 77 Cal.572; 73 Pas. 286. Also 79 Ind. 80, and29 Ohio 473.

4. The definition of negligence:(Ruling case Law Vol. 10, page 1)Negligence is the lack of diligence,omission of due care, failure to usethe efforts or like precaution whichan ordinary prudent person wouldemploy in like circumstances.

The degree of diligence required:13 N. W. R. 892.

5. Fraud in obtaining a note doesnot affect a bonafide holder-13 Ala.106.


I. An illiterate maker of a noteand mortgage for $1,000, who isfraudulently induced to sign themsupposing that he is signing a leaseand a note for $100 to a differentpayee, is not liable on the note evenif it is in the hands of an innocentpurchaser, unless he was guilty ofnegligence in making it, since he was

never a party to such a contract.Green v. Willie, Z6 L. R. A. 435;Gibbs vs. Linabury, 22 Mich. 479 Am.Rep. 675; First Natl. Bank vs. Deal,55 Mich. 592; Webb vs. Carlin, 78Ind. 403-51 Mich. 563; 35 Neb. 651;29 Ohio St. 467-9 Am. Rep. 548.

II. No one can be made a partyto a contract without his own con-sent. Briggs v. Ewart, 51 Missouri245 (11 Am. Rep. 445); Martin v.Smylee, 55 Miss. 577; Corby v. Wed-dle, 57 Miss. 452.

III. Although a nMaker is not liableto read or write, yet if he signs apaper without any attempt to learnthe contents he wil be guilty of neg-ligence which will preclude his de-fense of fraud. Fisher v. VonBeh-ren, 70 Ind. 19.

IV. Where a party to an instru-ment undertakes to read it over inthe presence of the other party inorder that the latter may understandits contents before signing it, theparty reading it is morally bound toread it correctly, and the other partyhas a right to rely upon its being soread and need not examine it him-self. Anderson v. Walke , 34 Mich.113. See Baldwin v. Bucher, 86 Ind.221; William et al. v. Stall, 79 Ind.80; Webb v. 'Corbin, 78 Ind. 403.

St. Joseph Loan & Trust Co.of South Bend, Indiana

VS.First National Bank ofChicago, Illinois.

Action for $1000 Note Collection.

CAUSE NO. 4.

Plaintiff sues to recover the amountof certain checks which it claimed toown and which came into the defend-

NOTRE DAME LAW REPOMTER

ant's hands and which it claims toown, under the following facts:

Plaintiff sent the checks to thePeoria National Bank of Peoria, Il-linois, endorsed as follows: "For col-lection pay to the order of F. G. Bry-an, Cashier," Bryan being the cash-ier of the Peoria National Bank.

The Peoria Bank then sent thechecks to the defendant. The defend.ant and the Peoria -Bank at that timeand for a long time prior thereto hadan agreement by which the twoBanks collected all the commercialpaper for one another thus sent tcthem. and instead of remitting theproceeds of the collections justcredited the amounts of such collec-tions to their accounts between them.

After sending these checks to thedefendant the Peoria Bank becameinsolvent, heavily indebted to the de-fendant. Defendant collected thesechecks and gave credit to the PeoriaBank on its account as usual undertheir agreement.

Plaintiff sues defendant to recoverthe amount of the checks. Defend-of contract between itself and theant insists that there is no privityplaintiff; that plaintiff is a thirdparty and can have no rights underthe agreement between the PeoriaBank and itself.

Who should recover and why?Frank E. Coughlin andJoseph E. Sanford,

Attorneys for Plaintiff.Gerald Craugh andWilliam S. Allen,



1. A legal title to commercialpaper restrictively endorsed for col-lection only cannot be acquired froma bank to which it is sent for collec-tion. Lyons vs. Wisconsin NationalBank, 26 Atl. 520. Title remains inthe endorser. National Butchers andDrovers Bank vs. Hubbell, 117 N. Y.384.

2. An endorsement for collectionof negotiable paper by the owner isnotice to every bank and person intowhose custody it may come that theowner has not parted with his title,but merely with possession for thepurpose of collection. National Bankvs. Johnson. 69 N. W. 49.

3. Title remains with the firstowner who restrictively endorses thepaper. 3 Fed. 257; 33 Fed. 408; 26Atl. 520; 19 Fed. 302; 22 N. E. 1031.


Defendant contends that it is notliable because title to paper passes tothe Peoria Bank when sent to it byplaintiff and the Peoria Bank mustbe looked to for relief. Plumes CountyBank vs. Bank of Rideout S. & Co.,47 L. R. A. 552; 131 Pac. 360. AlsoDavis vs. Elmira Savings Bank, 161U. S. 275; 16 Sup. Ct. Rep. 502.

Judgment for Plaintiff.


ONLY OUR OWN OPINION

"CONSTITUTIONAL PROHIBITION" IS UNCONSTITUTIONAL.WOMAN'S SUFFRAGE AMENDMENT IS CONSTITUTIONAL.

THE DEFENSE OF RASTUS BROWN**Written as part of a mock trial for a

negro minstrel, by Francis J. Vurpillat, ex-Judge of the 44th Judicial Circuit of Indianaand a member of the Law Faculty of theUniversity of Notre Dame, Indiana. Pub-lished in Case and Comment, January, 1918,issue.

Yo' Hono' and Genmen of dis Jury:Dar's pore Rastus Brown in de

toils of de iaw. And what fo'? Fo' destealin' of a chicken-fo' de takin' ofa chicken. Now listen to de formalcharge:

United States of America,State of Indiana,

County of Nowhere,Town of Oblivion.

In de Piece of a Justice Court.Joe Johnson, de town marshal, and

Jim Jackson, de night watch, both be-ing duly sworn, on deir oaths say datin said county, on de moonlightnight of de 24th day of Decem-ber, one thousand nine hundredsixteen, Annie Domino, one RastusBrown, early and late of saidcounty, did den and dere felon-iously and unlawfully steal, take, pur-loin, pilfer, and carry away of depersonal belongings of Mister Wyan-dotte White one chicken, commonlycalled a rooster, but uncommonly call-ed Chief Cockscomb, of de fictitiousvalue of five hundred dollars, but ofde real value of ten cents a pound,weighin' 3 pounds, bein' 30 cents,-against de peace and dignity of deaforesaid Johnson and Jackson andcontrary to de Justinian and Blacks'-tonian codes.

Now, Genmen of dis Jury, MaFriends; Negroes, Countrymen, lend

me yo' ears; and if yo' have any tearsto shed prepare to shed dem now. Icome not to bury pore Rastus but tosave him. Yo' may think because detestimony shows dat Rastus wascaught red'handed-I mean black-handed-in de act; dat he was seento emerge from Mister White's chick-en coop with de aforesaid chicken un-der his arm; dat he was trailed by defootprints on de sands of time hemade from dat chicken coop door tode back door if his chicken; and dathe was caught dere with de aforesaidchicken in his possession; dat deream no possible defense for pore Ras-tus under de law. But I say to you,Genmen of de Jury, dere is a defensefo' him. I appeal to you uponde higher, de supremer, de unwrit-ten law of dementia Africana. Andif de learned Piece of a Justice-should say dat such a law cannot beinvoked, I would jus' call yo' atten-tion to de illustrious example ofAbraham Lincoln. When AbrahamLincoln was about to issue de famousEmancipation Proclamation freein'all de Negroes in de land from ordi-nary slavery,. de charged him withbreakin' de Constitution he hadsworn to sustain. But he answereddat he would sustain de Constitutionif he had to break it to sustain it. So,Gemmen of dis Jury, when yo' areabout to issue your emancipation pro-clamation freein' pore Rastus fromdis criminal servitude and courtor anyone else says yo' are doin'violence to de law yo" took oath


to sustain, tell dem in de language ofLincoln dat yo' are goin' to sustainde majesty of de law if yo' have tcbreak it to sustain it. Why dere's nclaw in de universe but what's brokensometime or udder. Even de law ofgravitation and de laws of de plane-tary system were broken; fo' don'tyo' know de Good Book says dat Josh-ua commanded de sun and de moon tostand still and dey did stand still.

Now I.seogoin' to prove to yo' Gem-men of de Jury, dat de nigge' has deright to take de chicken. De chickenand de Negro belong togedder. Deysustain de most pleasant relations to-gedder in dis world, and if dere's ncchickens in de nigge' heaven den Isay to you dere's no heaven fo' denigge's. Ever since de days of deflood when de ark rested on A-ratand Noah and his sons started de red,white and blue races, and his sonHam started de black race-eversince de days of Ham de egg has gonewith it. And jus' as shuah as de Ne-gro is de descendant of Ham, and dechicken is descendant of de egg, andjus' as shuah as ham and eggs go to-gedder 'mong de white folks so do denigge' and de chicken go togedder.Why, Gemmen of de Jury,"Breathes dere de (Negro), with soul so

deadWho never to himself hath said,This is my own, my native (chicken) ?"

Freedom to de Negro without deright to take de chicken would be nofreedom at all; for de most naturalpropensity, de strongest proclifity.de intensest desire, of de Negro is totake de chicken. Abraham Lincolnknew dis when he freed de nigge's,and you know dat freedom was un-limited. So de nigge' has de civilright as well as de natural right totake de chicken.

Now dese am de general principles

upon which dis intelligent jury willsurely free dis Negro. But dere arcsome particular reasons why dey willfree him. Why, dis love of de chihk-en was not only born in pore Rastusbut it was bred in him. He wastaught to take de chicken at his mud-der's knee. One time when little Ras-tus was only seven years old, de c -l -

o'ed minister came to visit de familyand he gave Rastus a quarter aridtold him to buy himself a chicken. Butjus' as soon as he minister was goneRastus' mudder said to him: "RastusYo' dun give dat 25-cent piece to yo'mudder and yo' go get dat chickenin de natural way." And I supposeRastus obeyed de teachin's of hisgood mudder.

And now we have come to de moon-light night of de 24th of day Decem-ber when dis awful crime was com-mitted. Pore Rastus had prayed datde Lord might send him a chicken fo'de Christmas dinner; and yo' may be-lieve me or not, but I will stake myprofessional reputation and personalreputation on de truthfulness of destory dat, after pore Rastus prayedin vain fo' three days and threenights dat de Lord might send him achicken, he was about to despairwhen a ray of light struck him andhe heard a small voice say to him:"Rastus, don't yo' know dat de Lordhelps dem dat help demselves? In-stead of sayin' 'Lord send me a chick-en, say 'Lord, send me to a chicken.'"Rastus did, and soon he was on hisway dat fateful moonlight night ofde 24th of December, happy to thinkdat he would have a chicken dinnerand a Merry Christmas fo' his familyBut alas! how different dat pleasantdream from dis awful reality. Dar'spore Rastus in de toils of de law,chained to de ball, broken-hearted


and downcast.. And dere by his sidesits his pore widowed wife, cryin' asif her heart would break. And lookat de three little, innocent pickan.ninies, watchfully waiting fo' dleirfadder to be free. 0 how long mustdis injustice last; how long is delaw's delays?

Gemmen of de Jury, have yo' nohearts? Have yo' no high intelligenceand reason to see dat Rastus had nocriminal intention in dis case, but dathe was simply moved by dat same de-mentia dat is de second nature of allus Negroes? Den have de courage ofyo' convictions and apply de high, su-

preme, unwritten law of dementiaAfricana, and free pore Rastus hert.and now. Every man on dis jurywho says dat Rastus Brown is notguilty rise in his miyht and say aye.

(A unanimous uprising and chorusof ayes by the jury. The court di-rects the signing of the verdict andtells Rastus he is a free man. Where-upon, Rastus expresses his gratitudethus: "Well, Gemmen, I's shuah gladfo' yo' kindness, and I want yo' allto come to my house some moonlightnight, after prayer meeting, fo' achicken dinner.")


CASE AND COMMENTNOTE: A lawyer's license is granted the contributors to this section of the

Reporter. But case comment and criticism is here made upon the sole responsibilityof the contributors.

(By JOHN P. TIERNAN)

In a Maine case, Stenert & Sons, vs.Reed, 108 Ati. 334, the court held tha,,where, in a note given for a piano, ti-tle was reserved in the seller untilnote was fully paid, recovery of ajudgnent -thereon did not pass titlein piano to buyer in the absence ofsatisfaction. The decision is abso-lutely sound in principle afid in ac-cord with the intention of the parties.Clearly it is not a case where the doc-trine of election of remedies applies.since action on the note is a personalremedy, whereas replevin is proprie-tary.

In a Vermont case, Ex-Parte St.Augl, 108, Atl., 203, the Vermontcourt held that in habeas corpus torecover custody of infants, damagesfor their detention are not recovera-ble since habeas corpus is a proceed-ing to determine solely the status ofthe parties affected and not to pro-vide a compensatory remedy to per-son deprived of their custory. Ob-viously the proper remedy for suchrelief would be an action for loss olservices.

In an Indiana case, Christlieb vs.Christlieb, 125 N. E. 486, the courtheld that on the particular facts al-leged, the marriage could be annulledfor fraud. This is the first Indianadecision that determines the sufficien-cy of fraud that would justify a dis-solution of the marital status, hold-ing that it must be such that "affectsthe essentials and fundamentals" ofthat relation.

In a Michigan case, Krolilcos Kaz-marek, 175, N. W., 239, the courtheld that where a sale is made in vio-lation of the Bulk Sales Statuteand is successfully set aside by cred-itors of the seller, the buyer can re-cover the price paid in an actionagainst the seller, since there is afailure of consideration and the sel-ler cannot plead his own violation ofthe statute as a defense. With thegreatest. deference, it is submittedthat this decision is unsound. Thereis no failure of consideration sincetitle and possession passed to thebuyer and the sale was absoluttelyvalid between the original parties asthe cburt itself expressly states. Fur-ther, the buyer is making his ownviolation of the statute the basis ofhis cause of action and the position ofa defendant is the more advantageouswhere both parties are equally atfault. The statute imposes the dutyof observing its mandates not uponone but upon both of the parties andhence where a statute is violated bythe plaintiff he does enter with themetaphorical "unclean hands" andshould be denied relief from a situa-tion he himself helped to create.

In a South Carolina case, Wilsonvs Palmetto Nat. Bank, 101 S. E. 841,the court held that a bank is liable fortemperate damagesfor failure to hon-or a depositor's check. There was noloss shown upon the trial but a shb-stantial award of damages was re-thrned by the jury. Where no lossis shown, the verdict should be limited to nominal damages. The courtwas certainly conscious of the distinc-


tion between nominal and substan-tial damages but in its desire to al-low the verdict to stand and at thesame time do no violenre to the prin-siple itself held that "temperate dam.ages" are proper in such a case.

The Georgia case, Weayherbt vs.Pittman, 101 S. E., 131, presents sev-eral interesting questions. In thiscase the court held that a note givento attorneys to defend a person charg-ed with crime was based on a suffi-cient consideration, although the at-torneys had previously been assignedby the court to perform this duty.The court further decided that oralratification of an unauthorized signa-ture to a note was valid. It is to beobserved with respect to the firstpoint decided, that there was no.statute compelling attorneys to de-fend a person charged with crime,but the judge referred to it as beinga legal obligation arising out of hisrelation to the court and originatingin the common law. Here is dictum,if not decision, that an attorney isunder a legal obligation when assign-ed by the trial court, to defend a per-son in a criminal prosecution. Buthe is entitled to no compensation forhis services unless a statute express-ly provides therefor. There was nosuch statute in the state. Hence, thecourt reasoned when such serviceswhich the attorneys were legallybound to render, were rendered, itcreated a moral obligation on part ofdefendants to pay therefor. This,the court held, was sufficient to vali-date the note in view of the fact thatthere is in force a Georgia statute,Civ. Code, 1910, See 4243, expresslyprovides that ',a good considerationis such as is founded on a strong mor-al obligation.

7. In Myers vs. Fortunate, 108, At.,678, the Delaware court holds invalida city ordinance which provided thatno permit shall be granted by the in-spector of buildings for the erectionof a public garage in the residentialsection without consent of propertyowners. The court draws a distinc-tion between an ordinance that con-fers arbitrary power upon a publicofficial and an ordinance giving suchabsolute power to a portion of thepeople, observing, that "it cannot beassumed that the official will act arbi-trarily or otherwise than in the exer-cise of a sound discretion." Thecourt is evidently unmindful that allthe decisions hold invalid an ordin-ance giving an official arbitrary pow-er in this class of cases. The dis-tinction made by the court, however,was not necessary to the decision inthe case and the majority of caseshold that an ordinance of the varietyunder consideration is entirely valid.There is a strong judicial tendency tcsustain ordinances if it is possible todo so in order to give effective operation to the municipal police powerthat modern conditions demand.

8. In State ex rel. Schafer vs.Spokane, 186 Pac., 64, the Washington court held valid an ordinance pro-hibiting operation of jitney busses onthe public streets without a permitfrom the City Council. Here is animportant decision on a timely ques-tion. It holds that a city can not onlyregulate the industry but prohibit itabsolutely within its municipal limits.The court makes a sound distinctionbetween cases in which an ordinancecan merely regulate and cases whereits police power can be exercised pro-hibitively. Speaking with referenceto the facts in the case the court said:


"But the use to which the appellantpurposes putting hte streets is nottheir ordinary or customary use,but aspecial one. He purposes using themfor the transportation of passengersfor hire, a use for which they are notprimarily constructed. As to suchusers, we think the power of themunicipality is plenary. It devisesreform of regulation pertaining tobusiness of this character, even to theprohibition of the business entirely.

9. The Supreme Court of Louis-iana in Brown vs. Giullot, 83 So.,373, rendered an interesting decision.The case was an application for awrit of mandamus by the defendantin a criminal prosecution to recog-nize the right of one Mundy to repre-sent the relator as his counsel in thetrial court. Court issued the writ,holding that the right of a person topractise law can not be questionedcollaterally. The principle involvedhere is of course not decisive of acase where the court inquires intcthe authority of a person to representa party as his attorney, this beingmerely a question of agency, andpresupposing the legal right of theperson to practise law generally. Theunauthorized act. of an attorney inrepresenting a client, however givesthe court no jurisdiction of theparty's person although a few courtshold it to be a mere irregularity.

10. The Texas case of Richmondvs. Sangster, 217, S. W., 723, strikes afatal blow at transient divorces. Itpresents a flagrant case of perjuryand imposition upon the Illinoiscourts by a party who deserted thedomicilary state and located tempor.arily in Illinois in order to obtain thedecree. The decree was held void fo"lack of jurisdiction therefore, notonly in Illinois but in Texas. Itmerited no exterritorial recognitionin other states on the principle ofcomity and could demand no opera-tion by virtue of the full faith andcredit clause of the Constitution,citing Haddock vs. Haddock, 26 S.W. Rep. 525, and a host of decisionsfrom leading states of the Union,This instructive case, sound in itsreasoning, just in its decision -andcommendable in its doctrine, bringsonce more to the forefront the sub-ject of foreign divorces. As to howa divorce granted in one state can berendered conclusive, valid not onlyas to the merits of the case, but juris-dictionally in other states, is a legalquestion that is believed to be incap-able of solution. But apart from thisrigid adherence to principle as isclearly evidenced by the courts in aninexorable demand that jurisdictionis indispensable to the validity of thejudgment, the courts render societyitself a noble and a lasting service indiscouraging the divorces that arescandalizing American life.


LAW SCHOOL NEWS.

NOTRE DAME'S LEGAL RE-NAISSANCE

(By Delmar J. Edmundson)

It's an ill wind, as the philosopherssay so aptly and frequently, thatblows nobody good. Several yearsago, when an intermittent fire gnaw-ed persistently at the old ChemistryHall till nothing but the walls re-mained, it. would have taken a keenand optimistic eye to discern a silverlining in that catastrophe. But whatat first blush seemed a tomb stonehappily proved, a stepping stone tobetter things. A new ChemistryHall, proof against flame, was erectedback of the charred shell of the old,and lo! from that shell emerged thenew improved Law College.

In the embryo days of that depart-rent the learned but handicappedprofessors held forth always withinthe cramped space of one room; legalmaxims, thundered into attentiveears, echoed from one wall to anoth-er, walls that must have grown wearyof the rule in Shelley's Case. Thoselong, sturdy benches, through gener-ation after generation of law stu-dents were victims of the sculpturalaspirations of men who had little tal-ent but much energy and sharpknives. Thus if they found Blacc-stone not to their taste, circumstanceswere not lacking to encourage aniemulation of Praxiteles.

That same room knew many ablemen, professors who strongly build-ed the foundations, and students whoreared the structure to do Alma Ma-ter proud in forensic circles. Underthe circumstances the wonder is thatso much was accomplished. TimothyE. Howard, Lucius Hubbard, Colonel

Hoynes-these are the founders,names to be forever honored at NotreDame, men who, under unauspiciou-conditions, steered the unwieldy barkto recognition and honor. Thoughthe visible manifestations of theirwork passed with the old law roomtheir memory remains dear to thousands of alumni in the legal profes-sion.

Erected on the site of the firstChemistry Hall, the new buildingwherein was established the HoynesCollege of Law, stands as a symbolof the new regime. Improvementsare manifold; facilities for assimilat-jurisprudence notably increased-achange which works to the consterna-tion of the "snap course" man, whono longer finds a law degree the eas-iest, but rather one of the hardest toacquire.

The law library constantly growsin size and catholicity. The law fac-ulty is to be increased to a numbermore readily able to handle the over-flow of incipient barristers. The lawbuilding contains a fully equippedcout room, behind whose bench aMarshall might be honored to sit.Courses in procedural law and courtschedule have been inadgurated bythe new dean, Judge Vurpillat, whichare unique and exceptional in the lawschools of the country. These andcountless other changes, of which itwould be useless to attempt an enum-eration, have been made. The scribemay recount the various forwardsteps that have been taben, but itwere almost impossible to describethe new spirit that pervades the de-partment, a spirit of proud content-ment and achievement that is, it maybe said, an inevitable accompaniment


of the advance in legal paraphernaliaand environment. But these changesare not the only ones to be recorded,Those in the personnel of the facultyare of as great an importance.

Judge Francis J. Vurpillat, pro-claimed Dean of the College of Lawat the beginning of the school year,is a man whose wide experience andscholarly mind eminently fit him forthe position. During his long andbrilliant career he served in variousofficial capacities, notably as prosecu-ting attorney of the 44th JudicialCircuit of Indiana for three consecu-tive terms, and for several years asCounty Attorney and as City Attor-ney at Winamac, his native city. InNovember, 1908, he was electedJudge of the 44th Judicial Circuitand served in that incumbency forsix years. In addition to the fameattained in virtue of the fact that hewas the youngest circuit judge everelected in Indiana, Judge Vurpillatgained prominence and favorablecomment from the bench and the baron account of written opinions de-livered in cases of unusual import-ance tried by him, among which werethe Kankakee Meander Land case;another case involving the construc-tion and constitutionality of the Feeand Salary Law; and another plac-ing the first construction on the gen-eral liquor laws of the state, particu.larly the local option law and theProctor Regulation Act, a construc-tion affirmed by the State SupremeCourt. Judge Vurpillat was called

to the Law College in 1015 by theRev. John Cavanaugh, the then presi.dent, and since that time has devotedhis talents and energies exclusivelyto the work of acting dean. Theleadership of Judge Vurpillat augurswell for the Law College, and muchmay be expected from his administra.tion.

Colonel William. Hoynes is honoredas Dean Emeritus of the Law CollegeFor his past services none can fail topay him admiring reverence; theUniversity is rich indeed in the beni-son of his genial personality and pro-found erudition. Next year ColonelHoynes will give active service as aspecial lecturer in Legal Ethics andInternational Law, of which he is arecognized authority.

Assistant Professor James P. Cos-tello, who recently joined the lawfaculty, received his degree from theDickinson School of Law in 1898, af-ter fifteen years experience as ateacher in the public schools of Pen-nsylvania. During the past twenty-two years he has been in active prac-tice at Hazelton, Pennsylvania.

The Law College will continue toboast the invaluable services of Pro-fessor John Tiernan, whose astound-ing display of mnemonics in citingcases is at once the marvel and thedespair of students, and of Judge G.A. Farabaugh, who, besides lecturingat Notre Dame, continues to serve asone of the most prominent attorneysbefore the bar of South Bend.


STUDENT ACTIVITIES.ALDEN J. CUSICK.

THE NOTRE DAME LAW CLUB.

On Monday evening, February 2nd,in conformity with plans which hadbeen brewing for several years back,all the Lawyers of the University metin a rousing mass meeting and per.fected an organization to be known asthe Notre Dame Law Club. A con-stitution previously drafted was readand adopted. The following officerswere elected for the year: Alden JCusick, President; Harry E. Denny,Vice-President; Francis T. Walsh,Secretary; Clifford E. O'Sulliv.,,Treasurer; and Hugh E. Gibbons,Sergeant-at-Arms.

The purpose of the organization,quoting from the Constitution, is:"The general diffusion of legal know-ledge among the students of the LawSchool by stimulating study of thelaw in its broader aspect; and thepromotion of a fraternal spirit amongits members by providing a mediumfor social -activity." All who are ac-ouainted with the facts will readilys~e that the perfection of the NotreDame Law Club supplies a long feltand earnest need of the College ofLaw which, in point of enrollmentand instruction is now acknowledgedto rank with the best in the States.

The time has forever passed whenthe college-bred lawyer of the pro-gressive type can be a mere compen-dium of legal doctrines and theorieswhich were stored in his brain by thestern tactics of the class room. It isthe human heart-to-heart touch offraternity which really puts the as-pirant for an LL. B. sheepskin in areceptive mood and heightens his am-bition to know the law. Through theagency of their Club the law students

seek to get in touch with the morepractical side of the law, and to thatend to hear frequently from men whoare now fighting the legal battles oftheir communities and are thereforein a position to give to the N. D. Law-yers a few of the gems of their ex-perience.

On February 20th the "Club" lis-tened to a very interesting and in-structive talk by Mr. Win. MclInernyof South Bend, an old Notre Damlaw graduate and contemporary prac-titioner. Mr. McInerny dwelt or

Public Utility Law and it is the un-animous opinion of all who heard himthat his speech was "great." Duringthe remainder of the term the LawClub will hear from other well known.attorneys. And among those whohave already accepted invitations tospeak are Mr. Farabough of SouthBend, one of Indiana's real lawyers,and Mr. P. H. Martin of Green Bay,Wisconsin, a criminal lawyer of widerepute.

The Law Club supplies anothergreat need of the College lawyer,the opportunity for fraternizing.Through the instrumentality ofsmokers, banquets and other socialfunctions the magic warmth of fra-ternity will be infused into everyman. The Notre Dame Lawyer ofthe future need never be forced to anembarrassing admission that he is notacquainted with his classmates orjunior associates in the course. Andwhat's more he can boast of a friend-ship of brother students from nearlyevery state in the Union, for enroll-ment records show that twenty-eightstates are now represented in the Col-lege of Law and reports emanating


from the office of Dean Francis J.Vurpillat give good basis for the pro-phecy that the time is not far dis-tant when each of the forty-eightstates will have one or more repre-sentatives. The value of so-called"mixing" between men from everysection of the country; between menall working toward a common goalcannot be overestimated, and particu-larly so when applied to the lawschool and the legal profession. Inthe social activities of the Club twosmokers have already, gone into his-tory. A big all-lawyers banquet isbooked for an early date. A commit-tee, under chairmanship of Leo Has-senaeur, reports that indicationspoint to one of the most elaborate andenjoyable social events of the yearwhen the Notre Dame Law Clubgathers 'round the festive board.Several Chicago lawyers of promi-nence have been invited to speak onthis occasion.

Let no man accuse the Notre DameLawyers of being dead or inert. Theypull together with a spirit which itwould do others well to imitate. Thesnappy co-operation and good fellow-ship in evidence at every meeting isa worthy inspiration. They are asone in active interest and support ofthe two-fold aim of their organiza-tion: to get in touch with the practi-cal side of the law; and through so-cial activity, to fuse the hearts of allthe law men into a common bond offriendship. Look for inspiration onthe Notre Dame Law Club. It willsurprise you.

SENIOR LAW CLASS.

On October 15th the last three yearlaw class to leave the portals of theNotre Dame Law School organized

and elected the following officers torepresent them for the year: Presi-dent, Edw. Doran of South Bend,Ind.; Vice-President, Clifford O'Sul-livan of Chicago, Ill.; Secretary, I.L. Leslie of Waverly, Ia.; Treasurer,Maurice Smith of Manketo, Ill.; andSergeant-at-Arms, George L. Murphyof St. Cloud, Minn. On but a few oc-casions indeed, has the Law Schoolhad cause to boast of a graduatingclass with the "snap" and talent ofthat which leaves the halls of theGold and Blue this coming June. Itsmembers have been prominent inevery activity of the campus and havemade a record which should be a fit-ting goal for subsequent "grads" toattain.

On two occasions during thepresent school year have the mem-bers of the class drunk the rich wineof good-fellowship over the banquetboard, first in November and againjust prior to the Christmas vacation.On each occasion the walls of Kable'sparlors echoed with the conviviallaughter of a class which, thoughscattered in fact will ever be unitedin fond recollection of the few sweetand profitable years at Notre Damein companionship of the "boys" of'20. The above banquets were enjoy.ed by senior lawyers exclusively. Buton Sunday, Feb. 15th, they also par-ticipated with the seniors of the othercourses in a big all-senior feast inthe Rotary Room of the Oliver Hotel.And not the least of the many never-to-be-forgotten high spots of thioevent was the masterly oration ofPresident Doran on "Sunshine vsMoonshine."

The Senior Law Class of '20 hasfour representatives on the all-seniorBall Committee. They are Clifford


O'Sullivan, chairman; Delbert Smith,Clement Mulholland and NormanBarry. This committee has full

charge of the Senior Ball which isthe biggest social event on the Uni-versity calendar.


ALUMNI DEPARTMENT

SALUTATION.This time, just a few words from

an old alumnus of the Law School ofNotre Dame, who is now a memberof the faculty, will grace the Con-tributing Section of the Departmentof the Reporter devoted to theAlumni. These words are briefly insalutation to the dear old boys of theolden days of the old school. Everyone of you may feel assured that youare remembered, thought of andloved by the good institution thatcontinues to move majestically in andout on the tide of time, year afteryear.

We sincerely wish we might pre-sent to every one of you, by mail, acopy of this, the first number of theNotre Dame Law Reporter. Itwould do your heart good, we know,to receive it. You would be elated atthe opportunity which is afforded theAlumnus to reach out and grasp theextended hand of the student of theLaw School of today, in a pledge ofmutual helpfulness made possible bythe legal voyages of the Reporter,just now so auspiciously launched up-on its career.

The "Foreword" prints the com-plete prospectus of the publication.If offers the two departments,-thaiof the students and that of thealumni. Every law alumnus willprofit by the work of the studentbody and the faculty of the old schoolregistered in the Reporter everyquarter; and the students, in returnwill greatly appreciate the good willsupport and contributed articles,papers, briefs, and practical talks of

the Notre Dame lawyers who are nowin the real trenches of legal warfare.

No appeal is made for an endow-ment, now so common among thegreat institutions of the country.andso loyally and generously respondedto by the proud alumni of the respec-tive institutions. But a simple pleais made to every law alumnus to be-come one link in the chain of heartsthat bind about the old Law Schoolof Notre Dame, that they may, withone mighty beat, put the school to thefore in standard and reputation, andthereby make it possible for theschool in turn to put them all moreprominently to the front as boastedmen of the Law School of N. D. .U.

Dear, old Boy: be a subscriber, bea contributor, be a consistent reader,be a reporter, be a booster, be a real,live, loving alumnus of the good, oldschool. Send us the news pertainingto the professional, political and per-sonal activities of yourself and anyother alumnus, for the News SectionSend us your correct professional ad-dress, individual or firm name, forthe Legal Directory. And send usnow and then a treatise on the law,legal brief, case comment or humor-ous what-not that may be appreciat-ed by us all, students and alumni.Let us hear from you in comment,favorable or unfavorable, about thefirst issue of The Notre Dame LawReporter.

Good-bye and good luck,"Dear Old Pal of Mine."

FRANCIS J. VURPILLAT,Class '91.

notre dame law reporter vol.1 issue 1

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