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2-1921 Notre Dame Law Reporter Vol. 2 Issue 2 Notre Dame Law Reporter Association

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Recommended Citation Notre Dame Law Reporter Association, "Notre Dame Law Reporter Vol. 2 Issue 2" (1921). Notre Dame Law Reporter. Book 5. http://scholarship.law.nd.edu/ndlaw_reporter/5

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CONTENTS Page STUDENTS' DEPARTMENT SUPREME COURT OF NOTRE DAME, GREEN ET AL. V. HILL ------Opinion of the Court - 2 WASHBURN V. BLAKE ------Opinion of the Court - 8 BRIEF FOR APPELLANTS, GREEN ET AL. - Maurice F. Smith - - - 14 BRIEF FOR APPELLEE, HILL ------Ralph W. Bergman - - 22 NOTRE DAME CIRCUIT COURT,------Record of Cases ---- 29 JUNIOR MOOT COURT ------Facts and Law ----- 33 TRIAL BRIEFS, WHITCOMB V. CARPER FOR PLAINTIFF,------Arthur C. Keeney - - - 36 FOR DEFENDANT, ------John F. Heffernan - - 39 TRIAL BRIEFS, CARSON, ADMR. V. SIMPSON ET AL. FOR PLAINTIFF, ------Patrick E. Granfield - 42 FOR DEFENDANT,------Clarence R. Smith - - 43 ALUMNI DEPARTMENT CONTRIBUTING SECTION A STUDY IN SPECIAL FINDINGS OF FACTS AND CONCLUSIONS OF LAW, - - Francis J. Vurpillat, '91 - 46 NOTRE DAME MEN OF THE ST. JOSEPH

COUNTY BAR ASSOCIATION, - - Arthur B. Hunter, '20 --- 56 NEWS SECTION

CLASS OF '20 AT THE BAR - - - - - Letters and Reports - 58 ABOUT THE ALUMNI ... . - Personals------61 DrIR.ECTORY OF ALUMNI LAWYERS ------64

UNITED STATES OF AMERICA UNIVERSITY OF NOTRE DAME S5 Be it remembered: That the Notre Dame Law Reporter will be published at Notre Dame, Indiana, quarterly during ithe scholastic year, for $2.00 per year or 50c per copy; that the Reporter has been entered as second-class matter at the Postoffie at Notre Dame, Indiana, and that copyright has been granted. NOTRE DAME LAW REPORTER ASSOCIATION Notre Dame, Indiana. NOTRE DAME LAW REPORTER

SUPREME COURT OF NOTRE DAME GREEN ET AL. VS. HILL. Action by William Hill against No. 7. John Green and Daniel Walker on a promissory note. From a judgment Promissory Note-Holder in Due Course for plaintiff the defendants appeal. -Audtion Sale--Warranty by Auctioneer- Breach-Implied Authority-Ratification- Affirmed. Procedure, Recovery Limited to Theory Leo J. Ward and Maurice F. Smith Plead- Instructions - Burden of Proof, Shifting. for Appellants. Ralph W. Bergman and Emmett J. 1. Since a party may succeed in a case only on what he both pleads and proves, the Rohyans for Appellee. defendant who pleads by way of confession VURPILLAT, J. The issues in and avoidance in an action for the purchase price of personal property the written war- this case were formed by the com- ranty by the seller's atictioneer, may not plaint in one paragraph based on a succeed in the case upon the theory of ma- terial misrepresentation or fraud of such promissory note executed by the de- auctioneer. fendants, and their answer in three 2. It is not within the scope of the paragraphs: the first, general denial; authority of the auctioneer of personal property to warrant it unless the seller the second, breach of warranty; and actually authorizes such warranty. Where the third, alleging fraudulent trans- an auctioneer sells a horse and takes the purchaser's note with surety, and, without fer of the note to avoid defences. A the direction or knowledge of the seller, cross-complaint was filed by the ap- issues to the purchaser a warranty of such horse, the seller as payee, or the indorsee of pellant, Daniel Walker, against his such note, may recover thereon despite such co-defendant and the plaintiff, alleg- warranty, unless the seller has ratified the warranty. ing suretyship on the note in suit. 3. Where a seller instructs his auctioneer The cause was tried by a jury which not to warrant a certain horse; is not pre- returned a verdict for the plaintiff sent at the auction or at the time the pur- chaser's note is taken, and later, upon his and against the defendants, Green as return, accepts such note together with the principal and Walker as surety. Sep- other proceeds of his sale; negotiates said note to the indorsee who, before purchasing arate motion for a new trial was it, informs the seller that the maker had overruled, and judgment was accord- come to notify him that the horse was not sound and would be returned, the seller ingly entered from which this appeal having no knowledge whatever of the war- is prosecuted. ranty of the horse by the auctioneer given in violation of his instruction; such facts The consideration for the note in are not sufficient to charge the seller with suit was a horse purchased by the knowledge of such unauthorized warranty; nor do they constitute a ratification of the appellant, Green, at the public auc- warranty. tion sale of Mr. Osborn. Mr. Osborn 4. A warranty executed by an auctioneer was unable to attend his sale, and of personal property without the authority of the seller may make the auctoineer per- specifically informed his auctioneer, sonally liable, but does not bind the seller. Mr. Robinson, that this particular 5. An instruction that the burden of horse was unsound, and instructed proof is upon the defendants to establish by a preponderance of the evidence the 'var- him not to warrant the horse but to ranty and breach plead by them is a correct "get as much as possible" from the and necessary statement of the law of the case, and is not made erroneous by the sale of the animal. Mr. Green at- failure or refusal of the court to further in- tended the auction in person and him- struct that, uDon such proof of the warranty and breach. the burden shifts to the plaintiff self purchased the horse in question to prove his good faith in the purchase of after personally inspecting the animal the note in suit. In this case such error would have been harmless for the reason and "trying him out" in the ordinary that defendants failed to establish their de- manner of testing stock at auction fence of warranty and breach. NOTRE DAME LAW REPORTER sales. The horse was not advertised trary to law. In support of the mo- as sound or warranted by Mr. Os- tion for a new trial it is alleged that born, nor was the horse so represent- the verdict is not sustained by the ed by the auctioneer to the public evidence and is contrary to the law, bidders. But to induce the appellant, and that the court erred in the giving Green, to bid and to purchase and and refusing of instructions. ;ettle for the horse, the auctioneer This case must be decided upon the r g-eed to give him a warranty that issue whether there was or was not a the horse was "sound for wind and legal warranty of the horse sold, the work." Accordingly the auctioneer, sale of the horse furnishing the sole Mr. Robinson, did execute in his own consideration for the note sued on. name, but not in the name of the Appellants cite numerous cases in seller .or as auctioneer for the seller, support of the general rule that a such a warranty and deliver the same purchaser has a right to rely upon to Mr. Green at the time of taking his representations made by an auction- note which the co-appellant, Walker, eer in effecting a sale, and that such Agned as surety. representations are binding upon the The day after the sale a veterinary seller. This is true where the repre- who happened to visit Mr. Green sentations are of fact-so material that casually examined the horse and ex- the court must construe them as pressed the opinion that he had "lym- forming part of the contract between phangitus." Mr. Green at once went the parties. Anson on Contracts, pg. to see Mr.- Osborn, but not finding 180; Behm v. Burness, 3 Best & him, told the appellee, Mr. Hill, whom Smith 751. Thus in the case of Rob- he met, of his intention to return the erts v. French, 153 Mass. 60, 26 N. E. horse because he was unsound. Later 416, cited by appellant, it was held in the day Mr. Osborn returned to his misrepresentation sufficient to avoid home and received the proceeds of his the contract for the purchase of land sale. He then sought to sell the note t hat the auctioneer stated specifically to Mr. Hill in order to get the money the boundary line measurements and with which to pay the auctioneer. the actual number of square feet con- Then Mr. Hill informed Mr. Osborn tained in the tract, when as a matter of Mr. Green's visit and his avowed of fact such lines were shorter and purpose to return the horse as un- the number of square feet less than sound, whereupon Mr. Osborn said he stated. And so too may a purchaser had not warranted the horse. The avoid his contract where the repre- following day Mr. Hill purchased the sentations of the auctioneer were note. A week later Mr. Green offered fraudulently made. Anson on Con- to return the horse to Mr. Osborn tracts, 199; Hughes v. Robertson, and demanded his note. Upon being (Ky.) 15 Am. Dec. 104; Jeffreys v. informed that Mr. Hill had pur- Bigelow (N. Y.) 13 Wend. 518-28 chased the note, Mr. Green made a Am. Dec. 476; Dowling v. Lawrence, similar offer to him and again de- 58 Wis. 282-16 N. W. 552; Lynch v. manded his note, which was refused. Mer. Trust Co., 18 Fed. 486. As error for which the judgment But the appellant may not prevail should be reversed there is assigned upon the theory of misrepresenta- the overruling of the motion for a tions of the auctioneer of facts ma- new trial and that the verdict is con- terial to the contract, nor upon his NOTRE DAME LAW REPORTER fraud, for neither of these theories is Snyder, 2 Ind. App. 440, 28 N. E. 718. plead by the appellants. The theory A warranty given by an auctioneer is of their confession and avoidance binding if authorized by the seller plea is the express warranty of the and is within the scope of the au- horse and the breach of such war- thority conferred. 2 R. C. L. 470; ranty. The distinction between rep- Upton v. Suffolk County Mills, 11 resentation of facts which establish Cush. (Mass.) 586. 59 Am. Dec. 163; fraud and those which constitute a Duff as Pioneer Stock Powder Co. v. warranty is fundamental and vital in Koontz, Notre Dame Law R'eporter, both the substantive and procedural Nov. No., page 2, 6. And the buyer law. Fraud is proceeded against in of unsound personal property has the the ex delicto action of case, while right to rely on the warranty thereof breach of "warranty is remediable in even though he may have made per- the ex contractu action of assumpsit. conal inspection of such property be- Chitty on Pleading, Secs. 97-99. A fore purchasing. First Natl. Bank, striking illustration of this important etc., v. Grindstaff, 45 Ind. 158. distinction between fraud and breach In this case appellee's auctioneer of warranty and the respective pro- gave to the appellant, Green, an ex- cedures involved is to be found in the press written warranty of the horse. early case of Caldbeck v. Simonton, Did appellee authorize his auctioneer 82 Vt. 69-71 Atl. 881, Sunderland's to give such warranty? The facts Cases on Common-law Procedure, disclose that he did not. On the con- 126. trary, appellee specifically charged A maxim of piocedure is that one his auctioneer not to warrant the may recover only secundum allegata horse. True in some cases where gen- et probata--on what one. both pleads eral authority to sell personal prop- and proves. Phillips on Code Plead- erty is conferred upon an agent, such ing, Sec. 79. If therefore, one may agent may bind his principal by a recover only on what one proves, and warranty though such authority is may prove only what one pleads, and restricted by the principal, unless the appellants plead only a warranty and purchaser knew of such restriction. its breach, then the court may con- I Am. & Eng. Enc. of Law 994; Tal- sider the law and the evidence only mage et al. v. Bierhause, 103 Ind. 270, for the purpose of determining 2 N. E. 716. But this rule does not whether appellants have established apply to the auctioneer. The Am. & such warranty and breach, for on no Eng. Enc., supra, quotes from the other theory may they succeed in the English case of Payne v. Leconfield, case. 51 L. J. Q. B., Div. 642, as follows: The auctioneer is the agent of the "The question is whether an auction- seller, and, as in other cases of eer, in the absence of express au- agency, binds his principal in all con- thority from his'principal, or even in tracts made by him within the scope spite of his authority, can warrant an of his authority. Roberts v. French, article sold at a sale. In regard to 153 Mass. 60-25 N. E. 416, 25 Am. that naked proposition I say he can- St. Rep. 611, 10 L. R. A. 656. But not. . . . An auctioneer receives when the auctioneer exceeds his miscellaneous articles of all descrip- authority the seller is not bound, tions to sell to others. He is simpli- Bush v. Cole, 28 N. Y. 261; Court v. citer an agent to sell. His duty would NOTRE DAME LAW REPORTER be to inquire of his principal if it that the warranty of the auctioneer were desirable that a warranty in that case was not in writing. A should be given." demurrer was sustained to the de- An auctioneer has by virtue of his fendant's answer, and upon this al- office no implied authority to warrant leged error alone the case was ap- property sold by him. 3 Am. & Eng. pealed. This answer and the ruling Enc. of Law 491, 2nd Ed. Mechem thereon are interesting in pleading as on Agency, Sec. 904; Dod v. Farlow, well as in the substantive law in- 11 Allen (Mass.) 426, 87 Am. Dec. volved and we therefore quote the 726; Com. v. Dickenson, 5 B. Mon. answer at some lnegth: The aver- (Ky.) 506, 43 Am. Dec. 139; McGrew ments are, that the mare for which v. Foresythe, 31 Iowa 179; Court et the note was given, and which con- al. v. Snyder, 2 Ind. App. 440, 28 N. stituted the only consideration for E. 718. In the Iowa case of McGrew such note, was at and before the time v. Foresythe, supra, the auctioneer, of sale thereof "sick and diseased, in selling a flock of sheep, said: and had the seeds of an internal dis- "Here is a nice lot of young, sound ease or malady from which she died sheep." The defendant heard the in about three months after sale; that statement, bought the sheep and gave said disease and malady with said his promissory note in payment. The mare was affected was latent, affect- sheep proved to be diseased with ing her internal organs and func- "scab" at the time of sale, and the tions, and the same was not discover- defendant resisted the seller's action able by the utmost care and diligence, to collect the note. The court said: and these defendants did not know or "No particular form of words is suspect the existence of the same at necessary to constitute an express the time of said purchase; that said warranty. It is sufficient if the words plaintiff knew of the said disease or used on the part of the owner that the malady with which said mare was chattel is what it is represented to be. affected before said mare was sold to Naked praise or simple commendation these defendants, and he purposely of property offered for sale does not, concealed the existence therof from as a matter of law, amount to a war- these defendants in order to obtain a ranty. A bare affirmation of the sound price for said mare; that the soundness of a horse or other animal more effectually to sell said mare as which is at the time exposed to the sound, he procured and employed an purchaser's inspection is not per se a auctioneer to sell said mare at public warranty. It is of itself only a repre- sale; that said auctioneer had full sentation. To give it the effect of a authority to sell said mare, and he warranty it must be shown to the was not instructed by said plaintiff satisfaction of the jury that the par- not to warrant the soundness of said ties intended it to have that effect. mare; that at the time said sale was (Citing) House v. Fort, 4 Blackf. progressing, and before the purchase (Ind.) 296." The Indiana case of was made, these defendants inquired Court et al. v. Snyder, supra, was an of said auctioneer whether said mare action on a promissory note given for was sound and free from disease, and the purchase price of a horse sold at they were informed by said auctioneer auction, a case: in every particular and by another employee of said analagous to appellants' case, except plaintiff that said mare was sound NOTRE DAME LAW REPORTER and free from disease, which infor- an express warranty by the auction- mation they relied upon as true, and eer, rather than to establish an im- on the faith thereof they purchased plied warranty by the facts pleaded. said mare as sound and free from dis- But, however that may be, we do not ease, and for the full value of said think the facts sufficient in either mare if she had been sound and free case. We conclude, therefore, that from disease," etc. In disposing of the court committed no error in sus- the demurrer to this answer the court taining the demurrer to the answer." said: "Just what the circumstances The same court says in the opinion: were under which the sale was made, "The rule is that, where the sale is an other than that it was a public auc- executed one, the buyer takes the tion, is not apparent from the an- thing sold with all its defects, if there swer. It is nowhere averred that the be neither warranty nor fraud. And appellee was present at the sale or the decided weight of authority is knew the slightest thing about it, ex- also to the effect that a sale for a cept that he instructed the auctioneer sound price implies no warranty, to sell the animal and did not forbid Parsons on Contract, 584, and note him to warrant her. If there is any (r). See also Postel v. Card, I Ind. fraud shown, it must consist in his App. 252; Benjamine on Sales, Sec. failure to go to the- auction sale and 641, et seq; 10 Am. & Eng. Enc. of there to make it known that the mare Law 133, et seq." was unsound. But this cannot be so; Since there w.as in fact no express on the contrary, it is well settled, we authority given to the auctioneer to think, that he cannot even be bound issue the warranty in question, and by express warranties made by the there is by law no implied authority auctioneer, or other special agent, un- to do so, the auctioneer acted without less he has specifically authorized authority, and such warranty is, such warranty. Richmond, etc., Co. therefore, not binding upon the seller v. Farquar, 8 Blacfk. 89; I Wait Ac- of the horse, unless in fact he ratified tions and Defences 487; I Am. & Eng. such warranty as appellants contend Enc. of Law 981. This being the law, he'did. and the appellants being presumed to A lack of authority may, as in know the law, we do not see how it other cases of agency, be supplied by was possible for them to be legally ratification. 3 Am. & Tng. Enc. of defrauded by the acts or statements Law 491; Montgomery v. Pacific of the auctioneer or third party pre- Coast Land Co., 94 Cal. 284, 28 Am. sent at the sale. And how the silence St. Rep. 122. One of the conditions of the appellee could have contributed upon which ratification depends is, to such result when lie is not shown to that the principal must have full have been personally present at the knowledge of the facts pertaining to sale, or even to have had -any com- the unauthorized acts, so as expressly munication with appellants upon the or impliedly to assume full responsi- subject of the sale it is not easy to bility for them. Mecham on Agency, perceive. Sec. 128; Wheeler v. Sleigh, 39 Fed. Implied warranties arise by opera- 347; Thacke v. Pray, 113 Mass. 291, tion of law from facts pleaded. It 18 Am. Rep. 480; Cram v. Sickel, 51 seems very much to us that it was the Neb. 828, 71 N. W. 724, 66 Am. St. theory of the pleader here to set up Rep. 478; Am. Exc. Bank v. Loretta NOTRE DAME LAW REPORTER Mining Co., 165, Ill. 103, 46 N. E. Woodward v. Boter, 115 Mass. 81; 202, 56 Am. St. Rep. 233. Dent v. McGrath, 3 Bush (By.) 174; Upon the issue of ratification the Schell v. Stephen, 50 Mo. 375; Mc- appellants had the burden of proof. Grew v. Forsythe, 31 Iowa 179; Seal- But the record preponderates strong- ing v. Knowleton, 94 Ill. App. 443. ly against them. Mr. Osborn, the sel- Again an agent may make himself ler, at no time, expressly ratified his personally liable when he executes auctioneer's warranty. And there is the contract in his own name and not no evidence in the record showing in the name of his principal. The that he had any knowledge of such warranty in suit was executed by Mr. warranty until the appellants plead Robinson in person, and not as agent the same in this case. Nor is there for Mr. Osborn, his principal. It was anything which charges him with not signed by Mr. Osborn, nor does it such knowledge. He specifically in- appear to have been executed by the structed his auctioneer not to war- auctioneer for and in behalf of Mr. rant the horse, and he had a right to Osborn. It is this form of execution rely upon his auctioneer's duty to of a contract that binds the agent obey such instruction and to assume himself and not his principal. Holson that such instruction had been com- v. Hassett, 76 Cal. 203, 9 Am. St. Rep. plied with. Mr. Osborn was not pre- 193; Tilden v. Barnett, 43 Mich. 376, sent at the sale, nor was he present 38 Am. Rep. 197; Knickerbocker v. when the appellants gave their note Wilcox, 83 Mich. 200, 47 N. W. 123, in settlement and received the auc- 21 Am. St. Rep. 595; Stone v. Wood, tioneer's warranty. When Mr. Os- 7 Cow. (N. Y.) 453, 17 Am. Dec. 529; born arrived home and received the Dayton v. Warne, 43 N. J. L. 659; proceeds of his sale, including the Magill v. Hinsdale, 6 Conn. 464, 16 appellants' note, he knew nothing of Am. Dec. 70. the warranty. True, Mr. Hill, the ap- The appellants having failed to pellee, afterwards informed Mr. Os- establish the warranty either by the born, when the latter sought to sell seller's authorization or ratification him the note, that Mr. Green, the pur- thereof, and having plead no other chaser, had stated that the horse was defence to the note, must fail in their unsound and that he would return appeal. There is evidence in the him. But this is no information of record to sustain the verdict of the the warranty issued in violation of jury, and this court will not disturb his instructions. One cannot be held it on the mere weight of the evidence. to have ratified so material an act of Duff as Pioneer Stock Powder Co. v. which he had at the time no knowl- Koontz, N. D. Law. Rep., Nov. 1920, edge. There is here no ratification. page 2. Not infrequently the agent himself Appellants allege as error for becomes personally liable to the third which a new trial should be granted person for his unwarranted assump- the giving by the trial court of its tion of authority when the principal own motion the following instruction: is not bound. If without authority, "The court instructs you that upon express or implied, from his principal these special defences the defendants he warrants property, he is person- have the burden of proof, and to suc- ally liable. Mecham on Agency 914; ceed thereon they must establish one 3 Am. & Eng. Enc. of Law 492; or the other of such defences by a NOTRE DAME LAW REPORTER preponderance of the evidence, and (Idaho), 119 Pac. 52; Robertson v. upon thus establishing either of such U. S. Live Stock Co., 164 Iowa 230, defences against the note in suit, the 145 N. W. 535; Benson v. Conant et verdict should be for the defendants." al., 214 Mass. 127, 101 N. E. 60; In This instruction, considered apart re Hill, 187 Fed. 214. Having ten- from the other instructions (which dered no instruction in the form de- may not be done) may be complained sired by them, they cannot be heard of only by the appellee, for it directs to complain of the form, of instruc- the verdict for defendants merely if tion given by the court. But even if warranty and breach are established, the trial court had failed and refused and ignores the right of the appellee to give such instruction to the jury, to recover on the note as a bona fide the error in this case would have holder despite such warranty and been harmless for the reason, as breach. But in no view of the case shown, that appellants did not estab- might appellants have recovered the lish the warranty and breach, and the verdict without having established by appellee was therefore entitled to re- a preponderance of the evidence this cover on the note whether he was a special defence plead by them. Nor good faith holder or not. would they have been entitled to the And for this reason it is also un- additional instruction that the burden necessary to consider and determine of proof would shift to the plaintiff on-this appeal the issue so thoroughly as the holder of the note to prove that and admirably presented by counsel he was a good faith purchaser of the both for appellants and appellee, note for value and without notice of namely: that appellee was not a good the warranty and breach plead, if in faith holder of the note, and there- fact the appellants had not first estab- fore not entitled to recover thereon. lished such warranty and breach. The judgment of the trial court The instruction given by the court is having been rendered for the appel- correct and must be given to the jury lant, Walker, on -his cross-complaint whenever confession and avoidance as surety, he is relying upon the same plea is used by the defendant. Every errors assigned as his co-appellant. such plea must conclude with the pre- Having found no errors in the record scribed common-law form, "and this the judgment of the Notre Dame Cir- the said (defendant) is ready to cuit Court is in all things affirmed. verify." Andrew's Stephens Pleading, pg. 189; Phillips Code Pleading, pg. WASHBURN V. BLAKE 57. The burden of proof is upon the No. 8. party alleging new matter. Andrew's Stephens Pleading, pg. 219, sec. 12. Replevin-Existing Trover Judgment- Res Adjudicata. The appellants would have been en- An unsatisfied judgment in trover does titled to an instruction to the effect not operate to pass title to the converted property from the owner to the wrong-doer, that, upon proof by them of the war- nor does it operate as a bar to a subsequent ranty and breach plead, the burden action against such wrong-doer or a third who acquires the property from him. shifted to appellee to prove that he person was a good faith holder of the note. Action in replevin by Henry Blake Winter v. Nobs (Idaho), 112 Pac. against James Washburn. From a 525; Schulthiers v. Sellers, 223 Pa. judgment for plaintiff the defendant 513, 72 Atl. 887; Parks v. Johnson appeals. Affirmed. NOTRE DAME LAW REPORTER Clyde A. Walsh and George D. Blake demanded it and brought this O'Brien for Appellant. action for its recovery. In the mean- William S. Allen and Frank E. time a judgment in favor of the ap- Coughlin for Appellee. pellee, Blake, and against Caldwell was rendered in the other case. The VURPILLAT, J. By this action latter judgment, however, remains in replevin Blake, the appellee-plain- unsatisfied, and no execution has been tiff, recoVered a judgment for the re- issued thereon. turn of a steer from the appellant, It is this judgment in trover in Washburn. The declaration is in one favor of Blake against Caldwell that count alleging the ownership and appellant, Washburn, pleads as res right of possession in the plaintiff adjudicata,in bar of Blake's present and the wrongful taking and deten- action of replevin against him. Al- tion by the defendant. A plea was though this plea of former adjudica- filed containing counts of non cepit tion does not contain an allegation and non detinet and former adjudica- that such judgment has been paid tion. To the latter plea plaintiff filed and satisfied, yet the trial court over- replication of general issue. The ruled plaintiff's demurrer thereto, cause was tried by the court without holding, as a matter of law, that such a jury, and the court found for the unsatisfied judgment itself was suffi- plaintiff that he was the owner and cient to bar plaintiff's recovery. But, entitled to the immediate possession notwithstanding such judgment was of the steer described in the declara- proven as plead, thereby constituting tion, and to ten dollars damages for a bar to plaintiff's right of recovery, its wrongful detention. Separate mo- the trial court, contrary to its ruling tions of the defendant for non suit, a on the demurrer, rendered judgment new trial, and in arrest of judgment for the plaintiff. Either the ruling on were overruled and proper exceptions the demurrer was erroneous or the taken, all of which rulings are as- finding and judgment are contrary to signed as error on this appeal. Judg- law. ment was rendered on the finding The sole question in this case is from which this appeal is taken. whether or not a judgment in trover Briefly stated the facts of the case for the value of property converted, are that John Caldwell, while driving which judgment is unpaid and unsat- a herd of his cattle past the farm of isfied, of itself operates to transfer the appellee, Blake, "picked up" and title to the converted property to the drove off the steer in question, which defendant so as to bar a subsequent belonged to Blake. Afterwards the action by the plaintiff for its specific appellant, Washburn, with knowledge recovery. There is much contrariety of the foregoing facts, bought the of opinion in the decisions of the steer from Caldwell, and now retains courts upon this proposition, even it as his own. Before learning that among the courts of the same juris- Caldwell had sold the steer to Wash- dictions. Appellant, to support his burn, Blake brought action in trover contention that the judgment in against Caldwell, alleging conversion trover bars the appellant's right to and demanding $150 damages, the recover in this case, cites numerous value of the steer. Later, upon learn- decisions from various jurisdictions, ing that Washburn had his steer, and to sustain the contrary rule ap- NOTRE DAME LAW REPORTER pellee also cites many cases from the rule. Chancellor Kent cautiously same jurisdictions. After a careful states the rule thus: "On a recovery study and analysis of these decisions by law in an action of trespass or and the rules deduced therefrom by trover of the value of a specific chat- the text writers and other general tel, of which the possession has been authorities, we are led to accept as a acquired by tort, the title of the goods correct general presentation of the is altered by the recovery, and is law, the statement found in 28 Am. transferred to the defendant." The & Eng. Enc. of Law, (2nd Ed.) 738, rule as here stated is that to transfer which is as follows: "There is con- title to the wrong-doer there must be flict in the decisions with regard to "a recovery . . . . of the value of the effect of a recovery in trover uponl the specific chattel" and not merely the title to the chattels converted. In the recovery of a judgment for its the earlier cases the general rule was value. That satisfaction of such judg- announced that a recovery in trover ment must be made to effect the for the value of chattels converted transfer of title is clearly held by vested of itself the title of the plain- Chancellor Kent, as shown by the re- tiff in the defendant, without regard mainder of his text on the subject, to a satisfaction of the judgment. In to-wit: "The books either do not the later decisions, however, the rule, agree, or do not speak with precision now generally recognized as the bet- on the point, whether the transfer ter doctrine, is that the mere recovery takes place in contemplation of law of judgment in trover does not vest upon the final judgment merely, or in the defendant the title of the plain- whether the amount of the judgment tiff, but the title is devested from the must first be actually paid or re- plaintiff and vested in the defendant covered by execution. In Brown v. only by a satisfaction of the judg- Wooten, (d) Fenner, J., said that in ment." (Cases are here collated). case of trespass, after the judgment Judge Phillips in his admirable given, the property of the goods is work on Code Pleading, page 94, changed, so that the former pro- states the rule as follows: "Judg- prietor may not seize them again; ment for the value of the property and in Adams v. Broughton, (a) the converted, in trover, as for property K. B. declared that the property in carried away, in trespass, transfers the goods was entirely altered by the the title to the property to the de- judgment obtained in trover, and the fendant," citing in support thereof I damages recovered were the price Chit. P1. 161, n. 2; Acheson v. Miller, thereof. On the other hand, the rule 2 0. S. 203; 2 Kent Com. 387; 6 is stated in Jenkins (b) to be, that if Wait's Ac. & Def. 224. Following one person recovers damages in tres- this statement of the rule is an ad- pass against another for taking his mission that in some jurisdictions it chattel, 'by the recovery and execu- is held that title does not pass until tion done thereon,' the property of satisfaction of the judgment. the chattel is vested in the trespasser; That Judge Phillips' deduction of and in the Touchstone (c) it is said the rule as stated by him is erroneous that if one recovers damages of a or unwarranted becomes obvious up- trespasser for taking his goods, the on examination of his citations, all of law gives him the property of the which, save one, support the contrary goods 'because he hath paid for NOTRE DAME LAW REPORTER them.' The rule of the civil law was, satisfaction is treated as equivalent that when the wrongful possessor to a purchase of the goods by the of movable property, who was not in defendant, at the value assessed by a condition to restore it, had been the jury (Brinsmead v. Harrison, L. condemned in damages, and had paid R., 6 C. P. 584), and it is upon this the same to the original proprietor, principal that a verdict, not estimated he became possessed of the title. The on the footing of the full value, does Roman and the French law speak of not vest the property in the de- the change of rights as depending fendant. Holmes v. Wilson, 10 Ad. upon the payment of the estimated & El. 511, n." After considering value, (d). So, also, in the modern some early decisions of states which case of Drake v. Mitchell, (e) Lord have since overruled them and estab- Ellenborough observed that he al- lished the rule as stated by Wait, this ways understood the principle of text writer continues: "Formerly, in transit in rem judicatam to relate England, a judgment for the plain- only to the-particular cause of action tiff was held to transfer the title in in which the judgment was recovered, the property to the defendant . . but operating as a change of remedy, it is now held not to have that effect from its being of a higher nature until the judgment is satisfied, and than before, and that a judgment re- such seems to be the most sensible covered in any form of -action was rule. (Citing Lovejoy v. Murray and still but a security for the original Brinsmead v. Harrison, supra)." cause of action, until it was made The case of Acheson v. Miller, 2 productive in satisfaction to the Ohio S. 203, which Judge Phillips party; and until then it would not cites as supporting his statement of operate to change any other collateral the rule, is given in the annotation to concurrent remedy which the party 28 Am. & Eng. Enc. of Law, (2nd might have. This (says Kent) is the Ed.) 738, as supporting the contrary more reasonable, if not the most au- doctrine. And, although the syllabus thoritative, conclusion on the ques- of that case is misleading, the rule as tion. (a) I." stated and applied to the decision of In 6 Wait's Actions and Defences, the case by the court itself is as fol- 224, it is said: "A judgment in an lows,: "Where a party, for an injury action of trover does not vest the to his property, elects to proceed by property in the chattel, unless it is an action of trespass or trover for its followed by satisfaction. (Brinsmead value, the whole proceeding relates to v. Harrison, L. R., 6 C. P. 584; Oster- the time of the taking or conversion; haut v. Roberts, 8 Cow. 43; Morris v. the controversy all relates to the Berkley, 2 Treadw. (S. C.) 228; property as of that time; the criterion Spivey v. Morris, 18 Ala, 254; Hep- of damages is the value of the prop- burn v. Sewall, 5 H. & J. (Md.) 211; erty at the time of such taking or con- Smith v. Alexander, 4 Sneed (Tenn.) version. The party in effect abandons 482; Lovejoy v. Murray, 3 Wall, 1, his property, as of that time, to the 16) ; nor unless it is for the value of wrong-doer, and proceeds for its the property. If damages are merely value; so that, when judgment is ob- nominal, it is treated as covering only tained and satisfaction made, the the damages for detention. Barb v. property is vested in the defendants," Fish, 8 Blackf. 481. A judgment and Chitty on Pleading is the only au- NOTRE DAME LAW REPORTER thority cited by Judge Phillips that Am. Dec. 602; Marsh v. Pier, 4 lends any support to his statement of Rawle 273, 26 Am. Dec. 131. the rule that the mere judgment it- Many of the states whose early de- self, rendered in trover or trespass, cisions are in confusion and conflict transfers title to the wrong-doer. have, in later cases, modified and Chitty's statement is so ancient that overruled such decisions, and emphat- it is founded on the early English ically proclaimed the better and pre- decisions. These, however, had been vailing rule. Thus, in John A. Toll- overruled by the courts of England man & Co. v. Wait, supra, the Su- and the United States Supreme Court preme Court of Michigan clearly dis- at the time of Judge Phillips' deduc- tinguishes the cases of Kenyon v. tion, as shown by Kent and Wait Woodruff, 33 Mich. 310, and Brady v. whom he cites as authority. Whitney, 24 Mich. 154, relied upon The generally accepted rule of to- by the appellant, and declares in no day throughout the jurisdictions, uncertain terms for the modern rule as above stated. So, the Supreme with but one or two exceptions, is, Court of New Jersey, in the case of that a judgment in trover or trespass, Singer Mfg. Co. v. Skillman, supra, without payment or satisfaction in a terse opinion, waives aside as thereof, does not pass title to the "rather loose intimations" of a "few property to the wrong-doer or bar a judicial expressions" "in some of the subsequent action by the owner to re- cases of this court," and declares for cover such property or its value from the modern rule as follows: "The sin- the one who has wrongfully seized or gle question for the consideration of converted it. In addition to the cases this court is whether a judgment in and authorities,supra, see: Notes (a) trover, without satisfaction, passes and 1 to Kent's Com. Vol. 2, pg. 389; the title to the property converted to Note to Wooly v. Carter, 11 Am. Dec. the wrong-doer. The reasons are so 524; 38 Cyc. 2112; Cooley on Torts, conclusive, and the decisions so num- 537; Lovejoy v. Murray, 3 Wall, 1-18 erous, in favor of the negation of this Law Ed. 129; Atwater v. Tupper, 45 proposition, that all discussion of the Conn. 144-29 Am. Rep. 674; Miller v. subject seems to the court to be super- Hyde, 161 Mass 472, 37 N. E. 310-25 fluous." The court then concludes L. R. A. 42, 42 Am. St. Rep. 424; with a quotation frbm Justice Miller Spivey v. Morris, 18 Ala. 254-52 Am. of the U. S. Supreme Court taken Dec. 224 and note; Prior v. Ports- from the case of Lovejoy v. Murray, mough Cattle Co. (N. Mex.), 27 Pac. supra, which follows: "In reference 327; United Society v. Underwood, 11 to the doctrine that the judgment Bush (Ky.) 265-21 Am. Rep. 214; alone vests the title of the property Dow et al. v. King, 52 Ark. 282, 12 converted in the defendant, we have S. W. 737; John A. Tollman Co. v. seen that it is not sustained by the Wait, 119 Mich. 341, 78 N. W. 124; weight of authority in this country. Singer Mfg. Co. v. Skillman, 52 N. J. It is equally incapable of being main- L. 263, 19 Atl. 260. Pennsylvania is tained on principle." the only state which seems to adhere We might venture our own opinion to the contrary rule, as shown by the that the rule contended for by the fo'lowing cases cited by appellant: appellant lacks both right reason and Floyd v. Browne, 1 Rawle 121, 18 justice, elements which Blackstone NOTRE DAME LAW REPORTER declares are the essentials of every right of action in tort and binds him- law. What reason is there for deny- self by the principle of the election of ing to the aggrieved party the fruits remedies, to proceed in contract, for of his right of action against a the latter judgments do operate as a wrong-doer for the tortious taking or bar. 28 Am. & Eng. Enc. of Law conversion of his property, by mak- (2nd Ed.) 739. Some of the cases ing the mere judgment, which such cited by the appellant fall within this wrong-doer may evade and never rule. satisfy, operate to defeat him in the Not only actual recovery of his property or its is an unsatisfied judg- ment in trover no bar to value? and what justice is there in the prosecu- tion of a subsequent this process, which not only legalizes action in tort against the wrong-doer the wrong done, but actually trans- himself to re- fers the title of such property from cover the property taken or convert- ed, but such its rightful owner to the tortfeazor, action, as in appellant's and thus, by operation of law, forces case, may be maintained against a third party who acquires such tortfeazor to profit by his own such prop- wrong. erty from the wrong-doer. Spivey v. Morris, 18 Ala. 254, 52 A distinction, however, must be Am. Dec. 224; made between judgments in trover Dow et al. v. King, 52 Ark. 282, 12 S. W. 577. and trespass, ex delicto actions for the wrong or tort, which do not bar There is no error in the record, and subsequent actions, and judgments in the finding and judgment of the trial assumpsit or the ex contractu ac- court are sustained by the law and tions, where the plaintiff waives his the evidence. Judgment affirmed. NOTRE DAME LAW REPORTER

BRIEF OF MAURICE F. SMITH IN CASE OF GREEN ET. AL. vs. HILL. State of Indiana The defendant, Daniel Walker, In the Supreme Court of Notre Dame filed a cross-complaint in one para- John Green and Daniel Walker, graph, against the plaintiff William Appellants Hill and the defendant, John Green, VS. praying that he be adjudged a surety William Hill, Appellee on the note. Brief for Applicants. The plaintiff William Hill filed a general denial to the defendants NATURE OF ACTION cross-complaint. This is an appeal brought by John The defendant John Green also Green and Daniel Walker against the filed a general denial to the cross- appellee, William Hill, from a judge- complaint of Daniel Walker. ment rendered in favor of the ap- The trial was had by jury and pellee, in the Notre Dame Circuit both parties submitted interrogator- Court. The appellee as plaintiff ies. brought action on a note given by The defendants filed a motion for the appellants to the appellee. The a new trial on the following grounds: jury decided in favor of plaintiff- 1. The verdict was contrary to the appellee in the sum of Two Hundred law. and Twelve Dollars, ($212.00) prin- 2. The verdict is contrary to the ciple and interest and the court ac- evidence introduced. cordingly entered judgement for the S. The verdict is clearly against amount stated in favor -of the plain- the weights of evidence. tiff and against the defendants, from 4. The court erred in giving of its which judgment the defendants pros- own motion, instructions numbered ecute their appeal to this court. four and eight. 5. The court erred in refusing to WHAT THE ISSUES WERE. The issues formed consisted of a give each of defendants instructions complaint in one paragraph on the numbered five, eight, nine, ten, note. The defendant filed a separate twelve, thirteen and fifteen. and several answer in four para- HOW THE ISSUES WERE DE- graphs; (1) general denial, (2) CIIDED AND WHAT THE breach of warranty, (3) fraudulent JUDGMENT WAS transfer of the note to avoid de- The jury which tried the case re- fenses, (4) a special paragraph in turned the following verdict:- behalf of Daniel Walker alleging no State of Indiana, consideration for the suretyship. County of St. Joseph, The plaintiff filed a general de- In the Notre Dame. Circuit Court, murrer ti the second, third, and September term, 1919. fourth paargraphs of the defendants William Hill answer. VS. The plaintiff filed a general de- John Green and Daniel Walker. nial to the second and third para- Verdict. graphs of the defendant's answer. We the jury find for the plaintiff NOTRE DAME LAW REPORTER and against the defendant John was informed at this time that Mr. Green as principal and against the Osborne would not be able to be pre- defendant Daniel Walker as surety sent at the sale. He was also in- on the note in action and we assess structed to get as much out of the the plaintiff's damages in the sum of sale as possible and while going over Two Hundred and Twelve Dollars the property to be sold mention was ($212.00). made of a certain horse, the one for Arthur B. Hunter, which the note in action was after- Foreman wards given. Knowledge of the di- sease with which the animal was af- The plaitiff's general demurrer to flicted reached the auctioneer the defendant's second, third and through Mr. Osborne, who after fourth paragraphs of answer was mentioning the fact to the auctioneer, overruled as to the second and third told him to obtain as much as possi- paragraphs of answer and sustained ble for the diseased horse. as to the fourth paragraph of ans- At the request of Mr. Osborne the wer. plaintiff-appellee. Mr. Hill, assisted The court ovreurled the defend- the auctioneer in arranging and dis- ant's separate and several motion for posing of the goods billed for sale. a new trial, to which the defendants In effecting the sale of the defective separately excepted. horse the auctioneer warranted him The court then entered the judg- to be "sound for wind and work," ment in accordance with the verdict. and after the animal had been paced ERRORS RELIED ON FOR several times it was bid off and "knocked down" to the defendant REVERSAL Mr. Green for the fabulous sum of 1. The verdict is contrary to law. $200.00. Mr. Hill was present at the 2. The verdict is contrary to the time of the bidding and settlement, ,evidence. which was made after the sale. The 3. The judgment appealed from is buyer, Mr. Green, signed the con-n not supported by sufficient evidence. ditions of sale, and an express writ- 4. The court erred n overruling ten warranty was attached to the the appellant's motion for a new bill of sale. A promissory note was trial. • presented in payment for the horse and after it had been signed by the CONDENSED STATEMENT OF defendant, Mr. Walker, as surety, it THE EVIDENCE was accepted. Samuel Obsorne residing on a The day following the sale, (July small farm situated near Healthwin 4, 1919) Dr. De Coursey of South IIndiana disposed of his realty and Bend, Indiana, happened to be visit- personalty at a public auction sale ing the home of Mr. Green, in Rose- held on July3, 1919. He secured the lawn, Indiana. Mr. Green mentioned services of Mr. Robinson, an auc- the purchase he had made the pre- tioneer, and on the morning of July ceeding day and asked the licensed 3, Mr. Robinson reported at the farm veterinarian to examine the animal. at which time he was given his in- Upon examination the horse was structions regarding the sale by the found to be afflicted with a disease ,seller, Mr. Osborne. The auctioneer known as "lymhangitis," and immed- NOTRE DAME LAW REPORTER

lately following this examination Mr. for it ever since. It was useless to Green went to Mr. Osborne's farm him and he was willing to return it to inform him of the defective con- at any time. When the note fell due, dition of the animal. Not finding Mr. Hill called at Mr. Green's store Mr. Osborne he found Mr. Hill and and demanded payment of the appell- told him of the unsoundness of the ant which was refused, and as a re- horse, also of his intention to return sult of the refusal to make settlement him at once. The proceeds of the sale Mr. Hill brought action to recover on were received by Mr. Osborne on his the note. return the evening of July 4, 1919, POINTS AND AUTHORITIES at which time he also met Mr. Hill and asked him if he would purchase I the not in question. It was at this The purchaser has a right to rely time that Mr. Hill told Mr. Osborne on the representations made by an that he had met Mr. Green that af- auctioneer in effecting a sale, and ternoon and learned of the unsound- parties selling at auction will be held ness of the animal which was war- to strict accountability for such rep- ranted to be sound. And after telling resentations. him of Mr. Green's intention to res- Dowling vs. Lawrence. (Wis.) 16 cind the sale he asked whether or N. W. 552. not he knew of the unsoundness of Hugh v. Robertson. (Ky.) 15 Am. the horse previous to the auction Dec. 104, Jeffrey v. Bigelow & Tracey. (N. sale. Mr. Osborne in answering stated R.) 28 Am. Dec. 476. that the animal was perfectly sound, Lynch v. Mercantile Trust Co. 18 for it appears ,he was over anxious Fed. 486. about disposing of the note. He even II said that he had the horse examined several days prior to the sale, but The principal is bound as in any no evidence supporting the fact was other case of agency by the contracts introduced. Mr. Hill, being rather made by the auctioneer within the suspicious, did not purchase the note scope of his authority. And to the till the following morning, when he same extent as in other cases he is paid full falue for same ($200.00). affected b ythe representations -which the auctioneer makes Being seriously ill for a week after in order to e- ffect a the sale Mr. Green unable to return sale. Mechem Sec. 294. the animal to Mr. Osborne and de- mand the return of his note, but III upon recovery he did so promptly. Special Agents. Though the au- Mr. Osborne then refused to accept thority of an agent be restricted by the return of the horse stating that instructions from the principal, the he had sold the note and was no latter will be bound by a warranty longer a party to the transaction. attending a sale by the agent unless Mr. Green also went to Mr. Hill, the the purchaser knew of such restric- holder of the note, and demanded its tion. return, but this demand was refused. Mr. Talmage v. Bierhauh, 103 Ind. 270, Green then took the horse back Davis v. Talbot, Receiver, 137 Ind. home where he has kept and cared 235. NOTRE DAME LAW REPORTER IV knowledge of the fact, and to which the law attributes the same conse- Ratification by the principal of an quences as would be imputed to ultra vires act of his agent auction- knowledge. eer makes him liable for such acts as Pomeroy on Equity Jurisprudence in other cases of agency. -594. Montgomery v Pac. C. Land Co. 28 Winter v. Nobs, Idaho, 112 Pac. Am. Rep. 122 Calif. g25. Vaughn v. Johnson, 119 Pac. 879. V Rublee v. Davis, 51 N. W. 135. A holder in due course is a holder VII who has faken the instrument under of the the following conditions: (1) that Bad faith is the suspicion of facts constituting the it is complete and regular upon its existence by face, (2) that he became a holder of equity or defect of title, followed thor- it before it was overdue, and without a failure to make a reasonably to discover them notice that it had been previously ough investigation discovery- dishonored if such was the fact, (3) because offear of such on the part of the trans- that he took it in good faith and for or a failure feree to make a reasonably thorough value, (4) that at the time it was to determine whether negotiated to him he had no notice investigation equity or defect in of any infirmities or defects in the or not a certain such circumstances instrument or defect in title of the title exists under as an ordinary person in the position person negotiating it. of such transferre would invariably Art. IV Sec. 52 Uniform Negotia- usual course of business sus. ble Inst. Act. in the Norton on Bills and Notes-414. yect that there was such a defect in title. VI Googman v. Simonds, 15 L. Ed. 934 To constitute notice of an infirm- Union Nat. Bk. v Mailoux, 132 N. or defect in W. 168. ity in the instrument Jobes v. Wilson, 124 S. W. 548. title of the person negotiating it, the Norton-Bills and Notes-429. person to whom it is negotiated must have actual knowledge of the infirm- VIII ity or the defect or knowledge of Every person is deemed, prima such facts that his action in taking facie to be holder in due course but the instrument amounted to bad when it is shown that the title of faith. any person who has negotiated the Art. IV Sec. 56. Uniform Negot. instrument is defective then the bur- Inst. Act. den of proof is on the holder, that Notice is the information concern- is, to prove that he or the person ing a fact, communicated to a arty under whom he claims acquired the by an authorized person or actually title as a holder in d ue course. derived from him or by him from a Art. IV Sec. 59, Uniform Negot. proper person, or else presumed by Inst. Act. Vaughn v. Johnson, 119 Pac. 879. law to have been acquired by him, Parks v. Johnson, 119 Pac. 52. which information is regarded as Robertson v. U. S. Live S. Co, 145 equivalent in its legal effects to full N. W. 535. NOTRE DAME LAW REPORTER Benson v. Connant, 101 N. E. 60. "get as much as possible" out of the Kuhe v. Beehan, 82 Pac. 884. sale and he certainly acted in strict In re Hill, et al., 187 Fed. 214. accordance with his instructions. The Goodman v. Simonds, 15 L. Ed. 934 Union Nat. Bk. v. Mailoux, 132 N. evidence brought out this fact very W. 168. clearly, that is, that the owner, Mr. ARGUMENT Osborne, had knowledge of the un- soundness and defective condition of The real grounds upon which the the animal and even went as far as defendants are basing this appeal to inform the auctioneer to that ef- are: (1) should a warranty given fect prior to the sale. But in utter, at the time of an auction sale, by an disregard of the above mentioned auctioneer, be valid and binding up- facts, the auctioneer warranted the on the principal or holder of the horse, and as a result of these false note, given in payment, with notice representations effected a sale ob- of the warranty and prior equities, taining the unreasonable price of (2) If such warranty was not ord- $200.00 from an innocent purchaser. inarily proper in the usual course of A similar situation existed in the business, will subsequent ratification case of Jeffrey V. Bigelow, a New of same make it binding and valid York case reported in 28 A. D. 476. and what constitutes ratification. Here we have an agent authorized to (3) What will constitute a holder in sell sheep. which he and his principal due course. (4) Under what circum- knew to be unsound, and at the time stances will bad faith be imputed, so of the sale he failed to disclose the as to make an indorsee, taking be- facts to the purchaser. The ruling fore maturity, a holder not in due of the court was: course. (5) What will constitute "That the principal is liable for notice such as to make an indorsee his agent's failure to disclose to not a holder in due course. (6) After a purchaser of sheep, which he showing that fraud was perpetrated was authorized to sell, the fact that they are diseased, where in the execution and negotiation of that fact is known to the agent." the instrument, upon whom does the burden of proof fall to show that "That the principal is liable for the indorsee or holder is not a holder his agents failure to disclose to a in due course. purchaser os sheep, which he was The auctioneer in this case was authorized to sell, the fact that they vested with the powers of special diseased, wher that fact is known to and general agents, since he was the agent." given the express authority of man- It is impossible to conceive of any aging and selling all of the property judicial tribunal that would not con- by the express words of the owner, sider such a warranty binding upon Mr. Osborne. And furthermore, the the vendor, for the acts of the auct- absence of Mr. Osborne from the ioneer were fraudulent in every sense sale gave the auctioneer numerous of the word. The evidence which additional powers which do not ordi- tended to show that the warranty narily vest in an auctioneer who is was binding was so great that the considered as merely a special agent. trial jury in answering plaintiff- The essence of the express power appellee's interrogatory, found that given was that the auctioneer should the agent had authority to warrant NOTRE DAME LAW REPORTER the horse and consequently, such a the note inder such circumstances as warranty must have been binding on would constitute him a holdre in due the vendor. In the case of Dowling course, and therefore, he possesses vs. Lawrence reported in 16N. W. no greater right of recovery than the 552, the Wisconsin Supreme Court original payee and is bound by all of held: the defenses and equities which the "If in a contract of sale, the ven- maker of the note might have against dor knowingly allows the vendee to the original payee. Section 52 of the be deceived, as to the thing sold, in Uniform Negotiable Instrument Act a material matter, his silence is provides as follows: grossly fraudulent in a moral point "A holder in due course is a of view and surely may be treated ac- holder who has taken the instru- cordingly in law tribunals." ment under the following condi- There are numerous cases that tions: (1) that it is complete and regular on its face, (2) that support our contention that the vefi- ,he became a holder of it before it dor is bound to disclose such facts was overdue and without notice that he knows the buyer will not be that it had been previously dis- able to find, and where such defects honored, if such was the fact, are known to the seller and he goes (3) that he took it in good faith so far as to warrant an article and for value, and (4) that at the time it was negotiated to him through his agent, who also knew of he had no notice of any infirmity the defects, how can such a warranty or defect in the title of the per- be anything but binding-common son negotiating it." honesty and business intergrity in In considering this section we can such cases commands a man to speak readily see that the first two of the out. necessary elements have been com- Supposing at the time of the sale plied with by the holder of the note, that the warranty had not been valid but as to the third and fourth the and binding would not Mr. Osborne's contrary is true. The evidence tends acquiescence and acceptance of the to show bad faith and actual notice proceeds and benefits therefrom con- of defects in title of the person ne- stitute ratification. This certainly gotiating it, consequently it is ridic- would amount to a ratification, for ulous to consider Mr. Hill a holder the evidence pointed out very dis- in due course. Norton defines bad tinctly that Mr. Osborne realized that faith as follows: the purchase price paid was greatly in excess of the actual value of such "'Bad Faith' is a suspicion of the existence of facts constitut- a useless animal, and still did not ing the equity or defect in title, attempt in any way to make repara- followed by a failure to make a tion. The acceptance and transfer reasonably thorough investiga- of the instrument to the plaintiff Mr. tion to discover them, because of Hill must be construed as an accept- a fear of such discovery." ance and naturally a ratification of Mr. Hill certainly must have har- the act of his agent. bored a suspicion as to the validity of Since we have produced sufficient the instrument, for Mr. Green in- facts as will bar the original payee's formed him on the day before he right to recover, we must show that purchased the note that there was a the plaintiff-appellee did not obtain failure of consideration on the part NOTRE DAME LAW REPORTER of Mr. Osborne in that the animal tual notice. The fact that he failed was not as per the warranty made to prosecute an inquiry that a rea- by the auctioneer. Upon receiving sonably prudent man would surely this information which must have have done under similiar circumstan- created a suspicion in his mind, he ces, makes the presumption of bad merely made one single inquiry as faith and actual notice too strong to to the truth or falsity of the mat- be overlooked. ter related by Mr. Green, and in mak- The appellants sixth point need not ing what he called a thorough inves- be discussed very thoroughly, for the tigation he went to Mr. Osborne who weight of authority is obviously in Would naturally refute the statements their favor. On page 454 of Norton's of Mr. Green since he was very anx- Bills and Notes the burden of proof ious to rid himself of the note. Bad question is definitely decided: faith could not be more evident than "The holder of a bill or note, it is in this particular case and is in the first instance, presum- many cases are on record holding ed to be a holder for value and without notice; but, if it is prov- bad faith on less positive evideiice. ed on the trial that the bill or Now, we must consider the fourth note in its execution or negotia- essential necessary to constitute a tion was affected by fraud, it is holder in due course and this essential incumbent for the holder to is notice. In Norton on Bills and prove that he is a holder in due Notes the following may be found: course." "Notice may be actual or con- The following alone should be structive and bad faith means sufficient to indicate that the trial not merely knowledge, but means court erred in giving of its own of knowledge to which the party motion Instruction Number Four (4) willfully shuts his eyes. In equity jurisprudence notice may "The court instructs you that be knowledge of any fact suffi- upon these special defenses the cient to put a prudent man upon defendants have the burden of inquiry as to the existence of proof and to succeed thereon, some right or title in conflict they must establish one or the that he is about to purchase. It other of such defenses by a pre- is the duty of every purchaser ponderance of the evidence, and of property, if facts are brought upon thus establishing either of directly home to him such as such defenses against the note would put a reasonably prudent in suit, the verdict should be for man upon his guard to prosecute the defendants." an inquiry." Readily we notice that the court The Idaho Supreme Court in the should have further instructed the Winter vs. Nobs case which was jury to this effect, that upon show- practically identical and analagous ing the existence of a contract of to our case, rendered a decision in warranty and a breach thereof, the favor of the maker of the note. There- burden of proof immediately shifts fore, we contend that Mr. Hill could upon the holder to satisfactorily not -have been a holder in due course, prove that he was a holder in due because the information given him course. from the mouth of Mr. Green re- In considering the burden of proof garding the defective condition of as to good faith of an indorsee on the horse was nothing less than ac- a promissory note in the Schulthiers NOTRE DAME LAW REPORTER vs. Sellers case (72 Atl. 887) the In concluding, the appellants be- Penna. Sup. Court held that the lieve that they are entitled to a judg- holder of a promissory note required ment in their favor and a reversal of to show the consideration paid, and the judgment of the trial court n how it came into his hands, where the following two grounds: (1) that the defendant proved that it was put the appellee was not a holder in due into circulation fraudulently. It is course, thereby making a recovery as our firm belief that the above men- against the breach of warranty an tioned instruction was plainly erron- impossibilty, and (2) that the court eous and in the fact was the prime erred in its failure to instruct the cause of a verdict being returned jury that the burden of proof was against the appellants herein. Un- on the holder in due course where it questionably, such an error in the was shown that the instrument had lower court is a sufficient sause for been fraudulently executed and ne- a reversal and judgment in favor of gotiated. Consequently, our precise the appellants. A few more cases in contention is that the trial court support of our contention may be erred grossly in overrulnig the ap- cited: pellants motion for a new trial. Parks v. Johnson, Idaho, 119 Pac. 52. We respectfully submit that for Robertson v. U. S. Live Stock Co., the errors which we believe we have Iowa 145 N. W. 535. clearly indicated in this brief, the et al. Mass., 101 Benson v. Conant the court below should N. E. 60. judgment of In re Hill et al., 187 Fed. 214. in all things be reversed. NOTRE DAME LAW REPORTER

BRIEF OF RALPH W. BERGMAN IN CASE OF GREEN ET. AL. vs. HILL. State of Indiana morning of that day, Mr. Osborne in- In the Supheme Court of Notre Dame structed Mr. Robinson as to the de- John Green and Daniel Walker, tails of conducting the sale-the Appellants various articles to be sold-and es- VS. pecially did Mr. Osborne instruct the William Hill, Appellee auctioneer concerning the horse, for Brief for Appellee. which the note in question was given. As the appellants admit, Mr. Osborne Appeal from the Notre Dame Cir- told on that occasion of the unsound- cuit Court. ness of the horse, and mentioned that RECORD it seemed to be afflicted with "lym- The Appellant counsel's report of phangitis", but told him to get as the evidence is substantially correct. much out of it as possible. Mr. Os- borne and the auctioneer, on the EVIDENCE witness stand, both testified tl-at Mr. The statement of the evidence as Osborne in terse and emphatic lang- set out in the appellant's brief is uage directed and cautioned the conditionally true. We find that what auctioneer that in the event the horse is said is true but he does not state was sold, not to warrant him; and all that was said, and does not com- under no condition to warrant him plete the sentences as uttered by the because the horse was "not sound". witnesses themselves, and as also The horse was "put up" for auc- recorded by the clerk. A reference to tion and in due course sold and "bid the court's records will disclose and off' to the highest bidder, who was substantiate this affirmation. the appellant, Mr. Green, for the Such an abridged statement is a sum and consideration of $200. Mr. very dangerous thing, as its inev- Green was reluctant about buying itable consequences is deception. A this horse and the auctioner hear- half reiteration is more illusive than ing that Mr. Green would not buy a complete misstatement. Such cun- unless the horse was warranted, ning briefing of facts and evidence promised and did give Mr. Green the much be abolished and it is my duty, warrant. The auctioneer stated that to the furtherance of justice and he did this because it would increase righteousness, to so point them out his commission. His exact words to the learned court. were: "The more goods I sold, the Mr. Osborne owned a farm and more would be my commission". As considerable personal property near the appellants contend, the auctioneer Healthwin, Indiana. Wishing to re- warranted the horse "sound for wind tire, he offered at auction the per- and work". This was defendant's sonal property on the farm. This sale exhibit Numbed 2. The warranty and was, as advertised, held at his farm bill of sale was then given to Mr. on the date of July 3, 1919. The Hill. It is to be remembered that the services of Mr. Robinson an auction- above bill of sale and warranty was eer were contracted for. On the signed by Mr. Robinson, the auction- NOTRE DAME LAW REPORTER eer, and not by Mr. Obsorne. We knew Mr. Osborne very well and re- will show later that this is an im- spected him highly. portant fact. The note in question The appellants allege the presence was then given, having been signed not distinguish between mental pres- by Mr. Green as principal, and Mr. ence and mere physical presence. Mr. Walker as surety. Hill told the court that he was not Mr. Osborne was unexpectedly and paid for the little ministerial duties unavoidably called to Chicago, due to he performed, saying in substance, the expected death of his mother. "My object was merely to return For this humanitarian reason he was past favors that Mr. Osborne had unable to be present and attend the done for me." Nor did he assert at sale. any time that he knew of the condi- The horse was examined by a man tion of the live-stock on the farm. named Dr. De Courcey. Dr. De Cour- When asked this question direct he cey, by the evidence, was taking replied: "I knew nothing of their dinner with Mr. Green and Mr. condition." He stated he did not know Green -informed him of a purchase that the horse for which the note was of a horse the other day and asked given was, as alleged, defective; the doctor to "look him over." Such stating that such suspicion came to examination was merely a visual in- him only on the day following the spection, as was testified to by both sale. Also stating that when Mr. Os- the doctor and Mr. Green. borne asked him (Mr. Hill) to buy The doctor was a licensed veterin- the note, he told of the information ary. The appellants in their brief, -received from Mr. Green. Mr. Os- say "The horse was found to be af- borne emphatically and forecibly de- flicted with lymphangitis." The doc- nied this disease and assured him of tor said "It appeared to be affected the horse's health because, as he with such disease." The record will stated, it was just examined by Dr. sustain this statement. This is a O'Hara. Having been such personal question of little importance to our friends for a year and a half, Mr. case. Though the appellants seem to Hill had a right to accept that state- lay great stress upon it. The more ment in good faith; also having met they enlarge the noticability of the and known Mr. Green but once. disease, the more they cast upon the TMr. Osborne wished to discount the appellant himself, his culpable, care- note because the auctioneer was there less and indifferent purchase. and asking for his commission mon- Mr. Hill took the stand and told ey. the court and jury that he had been The next day, July 5, 1919, Mr. at Healthwin since the first of Jan- Hill brought the note, paying Mr. uary 1918, and had known Mr. Os- Osborne the sum and consideration borne personally all this time, and of $200. had in fact spent most of his time in The reason which Mr. Green gives conversing with Mr. Osborne. Time for not returning the horse at the lagged for Mr. Hill, and he made proper time if he thought it defective, this pleasurable and sincere acquain- is that he was sick and unable to do tance. Mr. Hlil was a soldier and had so: with which excuse he hopes to been gassed in the world war. He absolve himself from the legal obli- NOTRE DAME LAW REPORTER gation to return or offer to return. Murray vs. Lardner, 17 Law. Ed. such goods. 857. Richmond Trading & Mfg. Co. POINTS AND AUTHORITIES vs. Farquar, 8 Flk. 89. A, special agent is one authorized VI. to act only in a articular event and It is now the rule of the Law Mer- in accordance with specified instruc- chant that mere knowledge of any tions. facts sufficient to put a reasonably Mechemon Agency. Art. 14. prudent man on inquiry is not suffi- Page 12. cient, but that to defeat his claim to II be considered a bona fide holder he It is ordinarily not only the right, must be guilty of Bad Faith. but the duty of the agent to observe Arndt vs. Aylesworth, 145 Ia. 185. and comply with such valid and es- Hakes vs. Thayer, 165 Mich. 476. tablished customs and usages as ap- Reeves & Son vs. Letts, 143 Mo. App. 196. ply to the subject matter or the per- Ketchem vs. Govin, 71 N. Y. Supp. formance of his agency. Such customs 991. and usages, however, cannot, as be- Rice vs. Barrington, 70 Atl.. 169. tween the principal and the agent, Dorsey vs. Wellman, 122 N. W. overrule positive instructions to the 989. contrary. VII Wanless vs. McCandless, 38 Iowa Actual bad faith is a suspicion of 20. Osborn vs. Rider, 62 Wis. 235. the existence of facts constitnting the equity or defect in title, followed III by a failure to make a reasonably When an auctioneer exceeds the thorough investigation to disrlose scope of his authority he does not them because of the feas of such dis- bind the owner of the property. covery. Bush vs. Cole, 28 New Aork, 261. ARGUMENT Court vs. Snyder, 2 Ind. App. 440. There are certain underlying prin- IV ciples which the appellants have ig- A warranty given in an auction nored. (1st) The authority to issue sale is valid and binding if such the warrant. (2nd) The auctioneer warranty is within the scope of the exceeding the scope of his authority, authority of the agent so giving it. or was warranting done in obedience 2 Ruling Case Law. 470. to the commands and instructions of Bush vs. Cole, 28 N. Y. 261. the principal, Mr. Osborne. (3rd) Upton vs. Suffield County Mills, 59 Am. Dec. 163. The signatures on the warranty. (4th) Did not Mr. Green, as appell- V. ants argue, return the horse a week Bad faith means nothing more than after the sale and four days after the participation in the fraud and re- sale of the note. (5th) How much solves itself into the question of and what purity of circumstances are honesty or dishonesty, for guilty necessary before a man can be knowledge and wilful ignorance, charged with bad faith. (6th) Did alike, involve the result of Bad Faith. the auctioneer because of personal NOTRE DAME LAW REPORTER

gain, commit the fraud, if such was question. Since breach of warranty committed, by resorting even to a is a personal defense and available written warranty to increase and to the parties to it, the defense should swell his cofmission. (7th) No evi- not be applicable to a third person, dence to show that Mr. Osborne had who was not a party to such warran- cognizance of the fact that the horse ty. The appellants see into lay much was to be returned until four days stress upon ratification, and to estab- after the sale of the note. (8th) Did lish this they hope to have the case Mr. Green, upon learning from Dr. reversed. The case in question does DeCourcey that the horse appeared not deal with the fraud of Mr. Os- to be affected with "Lymphangitis," borne in selling a defective instru- rescind and notify Mr. Osborne as ment: our duty rests upon showing soon as possible. No. He waited five that Mr. Hlil was a good-faith pur- days before he notified him, and chaser, and for a valuable considera- after the sale of the note. tion. No matter if Mr. Osborne did deceive both Mr. Green and Mr. Hill We will remember from the evi- in his representations, if Mr. Hill, dence of the forcible language used according to the law, was a holder by Mr. Osborne to Mr. Robinson con- in due course, in good faith and for cerning the condition of the horse a aluable consideration, he can re- and regarding the warranty thereof, cover on the instrument. and we can see that the warranty We have a case decided in this was not within the scope of the auc- the sane circumstances, and these tioneer's authority, nor was it signed operative facts and the evidence in by the principal in order to ratify this cited case are not half as strong this act, nor was such ever ratified as in this case and yet the court de- by the principal. There was no evi- cided a swe pray the court will in dence to show that Mr. Osborne even this case sustain the verdict. knew that the horse was sold, nor Court vs. Snyder, 2 Ind. Appellate was it shown that Mr. Osborne knew 440. that Mr. Green bought the horse. A mare was sold at auction. It Nor did he know that the note in was diseased at the time of sale. The question was given as consideration disease could not have been discov- for this horse. And under these con- ered at the time of the sale because. siderations, how could he have rati- of its internal location. The plain-. fied the unauthorized act of the a- tiffs knew of this disease and :,pur- gent! Knowledge is an essential ele- posely concealed the same from Ithe ment of ratification. How could a Defendants. The auctioneer was not man ratify an act when he did not instructed by the principal not to know of the act. Consequently under, warrant. In our case the honesty and these conditions and the law of sim- fairness of the principal drove him ple contracts, those whose names to emphatically warn the auctioneer appear upon the contract are prima "not to warrant": also the auction- facie liable thereon. The agent here eer did warrant. is not a general agent, but the law The holding of the court in this tells us he is a special agent, and as case was: such this special agent, and not the st-In executed sales, the buyer principal, is liable on the warranty takes the thing sold with all de- NOTRE DAME LAW REPORTER fects, if there is neither warran- Where there is no wilful misrep- ty nor fraud. resentation or artful devise to 2nd-A sale for a sound price disguise the character or conceal implies no warranty of sound- the defects of the thing sold, the ness. vendee is found by contract even 3d-Without wilfull misrepre- though the vendor got a decided sentation or artful devise the advantage in the trade and put character or concealed defects in off on the vendee a defective a thing sold, the vendee is bound article, such as an unsound by the contract even though the horse. vendor gets a decided advantage The Richmond Trading & Mfg. Co. and puts off on the vendee a de- fective article. vs. Farquar. 8 Blackford 89. 4th-That the seller is aware of Again in this Indiana case the a latent defect in an animal sold court held: It is well settled, we does not amount to fraud unless think, that a vendor cannot even he makes some statement or uses by express warranty made by an some act or devise calculated to auctioneer or other special agent, deceive the buyer, or to induce unless he has specially authoriz- him not to make inquiry. ed such warranty, bind the prin- 5th-A seller is not bound by ex- cipal. press warranties made by an auctioneer or other special agent Bush vs. Cole. 28 New York 261. unless he has especially author- The Coure found as follows: ized such warranty. Where the-auctioneer is instruct- 6th-In executed sales, without ed not to sell property under a express warranty, no warranty specific sum, and sells it for less, is implied. and the owner refuses to convey Now, Learned Justices of the Su- it on that account, the auctioneer preme Court, let us look to the ques- is liable and not the principal. tion of bad faith and see what the 131 American State Reports 483. modern law deems necessary to con- As to matters on which the ex- press terms of his agency are si- stitute bad faith and which will pre- lent, his authority is to be meas- vent the decision from being sus- ured by the general usages of tained. business. Thus an express war- Allow me to quote from Parsons ranty made by an auctioneer on Contracts. Page 577-8. does not bind the seller, unless he has specifically authorized the I becomes, therefore, important to auctioneer to make. it, for a mere know what the law means by fraud agency to sell does not carry in this respect, and what it recog- with it by implication, power to prenizes as such fraud as will prevent warrant. the application of the general rule. Let us take the case that is cited The weight of authority requires that by the appellants and upon which this should be active fraud. The they lay great stress. Winter vs, Common Law does not oblige a seller Nobs. 112 Pac. 525. The language of to disclose all that he knows which the court on innocent purchasers and lessens the value of the property he bona fida pucrhasers, and it might would sell. He may be silent, leaving be well to say that this is a very sim- the purchaser to inquire and examine iliar case, but differs in the express for himself o rto require a warranty. warning given by the auctioneer. Beninger vs. Corwin 24 N J L 257 And the method of notice to Hill. We The Court said: find in this previous case of the ap- NOTRE DAME LAW REPORTER pellant's the following decision of the what Mr. Hill thought of Mr. Green, court: not knowing him. "Mere suspicious circumstances Let us now look at the language of are not sufficient to charge the pur- the decision in the case of Gray vs. chaser of a promissory note with bad Boyle. 104 Pacific 829. This was faith and notice of equities and de- taken Crawfords Annotated Negoti- fenses. The rights of the holder are able Instruments Law. to be determined by the simple test The holder is not bound at his of honesty and good faith, and not peril to be on the alert for cir- by speculative issues as to diligence cumstances which might possibly excite the suspicion of wary vig- or negligence." ilance. He does not owe to the As the evidence showed, Mr. Hill party who puts the paper afloat, certainly, if nothing else, was sin- the duty of active inquiry in or- der to avert the imputation of cere and honest and diligent in the bad faith. The rights of the purchase of this note. He believed holder are to be determined by Mr. Osborne who was a good friend, the simple test of honesty and long standing, at no time had Mr. Hill good faith and not by a ever doubted or had reason to doubt speculative issue as to his dil- igence and negligence. The Mr. Osborne's intergrity for truth- holders' right cannot be defeated fulness. He only bought the note without proof of actual notice of when pbsitively assured by Mr. Os- the defect on title or bad faith borne, his personal friend, that the on his part evidenced by circum- horse was sound and assured that stances. Though he may have been negligent in taking the pa- Dr. O'Hara had just examined him. per, and omitted precautions Isn't it most natural and conclusive which a prudent man would have to the condition of a thing, to inquire taken, nevertheless unless he of the man who- would most natural- acted mala fides, his title accord- ly know that condition? And who ing to settled doctrines will pre- vail. would be a better man to inquire of the condition of this horse than Mr. Richards vs. Monroe. 85 IoIwa 357. Osborne, the man who owned and The Court said: possessed the horse, and who, because The rule that when a purchas- of these things would be the most er of a negotiable promissory authorative person to interrogate on note for value, before due, has such knowledge or information this hypothesis. And above this, of infirmities in the note as wouldn't the decision or statement of would put a man of ordinary a personal friend be satisfactory prudence upon inquiry to ascer- proof and relieve the doubt in an tain the truth of the matter, he ordinary person's mind. If everyone will be held to have had notice. was a liar and no man's word could Mr. Hill did act as a prudent man be given weight, then we could see and would not buy the note the day, how the appellants' contention Mr. Osborne offered it to him. His should be sustained. By what rule of worde were these: "I will not buy human nature and conduct should the note. Mr. Greentold me that he Mr. Hill disbelieve Mr. Osborne and wa sgoing to bring that horse back; believe the words of Mr. Green whom it is unsound." To which Mr. Os- he had met but once. We cannot say borne replied;" The horse is sound NOTRE DAME LAW REPORTER because I just had it examined the lant filed by way of answer: 1. Gen- day before the sale by Dr. O'Hara." eral denial. 2. Breach of Warranty. Mr. Hill even did not buy the note 3. Fraudulent transfer of the note to but waited until the next day after avoid defenses. 4. A special para-, having thought the matter over. Un- graph in behalf of the surety. We doubtedly he weighed the matter and are concerned with 2 and 3. These thought of the circumstances and are by way of confession and avoid- reached the honest conclusion that ance. It is a sacred rule of pleadings, the words of Mr. Osborne were true. "He who alleges must prove." It Certainly, Mr. Hill cannot be guilty was their duty show these special of bad faith in purchasing the note. defenses asthe trial court rightfully The note was not bought at a start- instructed. ling discount, but on the contrary We find from the decisions of the full face value was given. Which other cases that definitions of Bad shows that there was no intention Faith and Good Faith are impossi- of profit or gain in the transaction. ble to give. 1st. Because the facts And would again show his good faith involved are so different and varied. in purchasing the instrument. 2nd. Because good faith or bad faith Let me again call your attention to involve a mental condition. These another Iowa case. must be decided by, and depend upon Lehmna vs. Press. 76 N W 818. many circumstances, such as, the "The fact that the plaintiff was demeanor of the witness, the consis- merely put on suspicion or was care- tency of the statements, his appear- less in not making inquiry, is not ance in the court room, and the gen- sufficient. He must be shown, by eral scrutiny of the parties. The direct or circumstantial evidence to jury has, I venture to say, the best have taken the paper with knowledge opportunity to observe these and or notice of its infirmities or circum- answer the interrogatories accord- stances must be such as to indicate ingly and allow for same in the ver- wilful negligence to inquire, or such dict which they return. The appellee gross carelessness in failing to do so prays that the Supreme Court will when inquiry would have led to such accordingly consider the question of knowledge as shall establish bad good faith and give it consideration faith." based upon the trial court's finding Regarding the appellants' sitxh of good faith. point, as to the burden of proof. Let me call the Learned Court's atten- We respectfully submit this brief tion to the pleadings in this case. and beg that the judgment of the The record will show that the appel- Lower Court be in all things affirmed. NOTRE DAME LAW REPORTER

NOTRE DAME CIRCUIT COURT

CAUSE NO. 18. curred costs and expenses of physi- cian, surgeon and nurse; that he suf- Charles Dressler fered bodily and mental pain; that he VS. is permanently injured in this: that Nellie Cranford and his hand and forearm are left stiff or Walter Cranford rather inflexbile to a degree making use of them awkward and difficult. Archibald Duncan and He demands $1,000. Plaintiff alleges J. Cusick, Alden that Nellie Cranford was in the pres- Attorneys for Plaintiff. ence of her husband, Walter Cran- James L. O'Toole and ford, and fired the shot with his Joseph L. Rafter, knowledge and consent. Walter Cran- Attorneys for Defendants. ford was in the Rater home at the time of the shooting, but his exact FACTS. location is in dispute. Defendants contend that the crowd On August 1, 1920, Nellie Cranford had been ordered off the premises by and Walter Cranford were married. Mr. Rater; that the crowd remained While spending their honeymoon at and continued their serenade of the the country home of Nellie Cran- defendants; that plaintiff at the time ford's father, Andrew Rater, the he was shot had raised the window of plaintiff and divers other persons, the bed room in which Nellie Cran- men, women and children of the ford and her little four-year-old niece neighborhood, came to the Rater were hiding; Nellie Cranford alleges home for a charivari party on the that she shot in self-defence and in defendants. Guns were fired in the defence of her niece. Plaintiff denies air, bells were rung, cans dinned, etc., that he pushed his gun through the (bedlam noises). Rough house tac- window at any time, as alleged by tics ensued when the defendants re- Nellie Cranford. fused to "come out" and "come across." Walter Cranford claims to have Plaintiff contends that, as he stood been in another part of the house at and denies in the yard near the house, the de- the time of the shooting, or giving con- fendant, Nellie Cranford, stuck the having knowledge of barrel of a shotgun out the bed room sent to the shooting. window and fired, the shot striking RECORD. him in the hand and forearm, break- TRIAL ing the arm and badly lacerating the complaint that Nellie hand and forearm; that he was at the Plaintiff files perpetrat- time and ever since a farmer of mod- Cranford injured him by battery upon him, erate means and compelled to depend ing an assault and of and at the direction upon his work on the farm for a live- in the presence Cranford. lihood for himself and family of wife of her husband, Walter and small children; that he was ren- Defendants file motion to strike out dered sick and unable to perform his certain parts of complaint, which work for a period of two months; in- motion is sustained. NVOTRE DAME LAW REPORTER Plaintiff files amended complaint in CAUSE NO. 19. two paragraphs. Defendants file separate and sev- John Wagner eral demurrer to complaint, which VS. the court overrules, defendants sep- Nathan Parker arately and severally excepting to the rulings. Charles P. J. Mooney and Defendants file answer in four Gerald Craugh, paragraphs, 1st, general denial, 2nd, Attorneys for Appellant son assault demesne, 3rd, defence of Walter A. Rice and property, and 4th, plaintiff engaged Charles M. Dunn, in unlawful act, charavari. Attorneys for Appellants. Plaintiff files reply in general de- nial to the 2nd, 3rd and 4th para- FACTS. graphs of answer. Jury empannelled, and cause sub- On the 1st day of August, 1920, mitted and tried. Nathan Parker owned a retail Plaintiff and defendants tender grocery store consisting of stock and certain instructions, some of which fixtures, located in a ground-floor are given and some refused, to which room on the corner of - and rulings they take their respective ex- streets in the city of Niles, ceptions. Michigan. John Wagner owned an Arguments by counsel after which equity in a certain tract of land, to- the cburt instructs the jury in writ- wit: a contract for the purchase of ing, ordering the instructions filed (Here insert legal description of any and made part of the record without forty-acre tract of land in St. Joseph bill of exceptions. County, Indiana). Parker and Wag- Jury return verdict for plaintiff ner reside in South Bend, Indiana, against both defendants for $1,000. and, on the first day of August, 1920, written Defendants file separate motions entered into the following contract for the sale and exchange of for new trial which are overruled and exceptions taken. their said properties, to-wit: "Contract of Sale and Exchange." Defendants separate motions in This agreement, made and exe- arrest of judgment overruled to cuted this 1st day of August, 1920, at which rulings they except. South Bend, Indiana, between Judgment rendered on the verdict Nathan Parker, party of the first to which defendants separately take part, and John Wagner, party of the exception. second part, WITNESSETH: That, Defendants pray appeal to the Su- that the party of the first part does preme Court of Notre Dame which is hereby sell, assign, transfer, ex- granted upon the filing of appeal change, set over and deliver unto the bond in the sum of $500 with the party of the second part his grocery Great Northern Surety Company as store consisting of stock and fixtures surety. Ten days are given in which located on the ground-floor room of to file general bill of exceptions. the building, on the corner of Defendants file the appeal bond and - streets, in Niles, Michi- prescribed and approved. gan, said grocery store and its con- NOTRE DAME LAW REPORTER

tents being more particularly des- (Signed) Nathan Parker, cribed in the inventory thereof just (Signed) John Wagner. completed which is hereto attached, Pursuant to the foregoing instru- referred to and made part of this in- ment John Wagner, after delivering strument. And the said party of the the assigned contract and promissory first part, for himself, his heirs, exe- note, went into possession of the cutors store and administrators, does cove- at Niles, Michigan. nant and agree to warrant the sale of In Michigan the Bulk Sales Law said property and the title thereof to was in force but was entirely ignor- the said party of the second part, his ed by the parties in their contract, no heirs, executors, administrators and attempt at compliance with its pro- assigns; and agrees to pay all debts visions -being made by the parties. against said property and said party After going into possession of the of the first part on account thereof, store, the National Grocery Company, up to the day, which debts now the Great Atlantic & Pacific Tea Com- amount to about $1000. In considera- pany and the South Bend Wholesale tion of which, the party of the second Grocery Company, as creditors hav- part does hereby sell, assign, transfer ing claims against the first party to and deliver over to the party of the the contract, Nathan Parker, brought first part, all his right, title and in- action in the Michigan Court under terest in a certain tract of land sit- the Bulk Sales Law and took posses- uated in St. Joseph County, Indiana, sion of the stock, placed it in the as evidenced by the contract of pur- hands of a Receiver and sold the en- chase held by the said party of the tire stock and fixtures to satisfy the second part and this day assigned and claims of the creditors, these claims delivered by written assignment en- aggregating $1100. Parker and dorsed thereon, signed, sealed and Wagner were made defendants to acknowledged and delivered by the this proceeding in the Michigan said second party unto the party of court. Parker has paid no the first part, part of which said contract to- these claims. gether with said assignment endorsed Plaintiff brings action in the Notre thereon is attached hereto referred to Dame Circuit Court against Parker and made part of this instrument. to secure the reassignment of the And as a further consideration the land contract back to him, and the party of the second part hereby exe- cancellation of the note given to cutes and delivers to the party of the Parker under the contract. first part his promissory note, of this date, for $400, payable in one year, TRIAL RECORD with interest at 6 per cent per annum Plaintiff files complaint in one from date, and attorneys fees, which paragraph for recission of assign- note is hereby referred to, attached ment of his land contract and for to this instrument and made part cancellation of his note on ground of thereof. total failure of consideration. Executed in duplicate by the par- Defendant files answer in two ties this 1st day of August, 1920, at paragraphs, 1st, general denial and South Bend, Indiana, each party re- 2nd, that contract between parties is taining a copy as the original con- illegal and that both parties are in tract. par delicto. NOTRE DAME LAW REPORTER Plaintiff files demurrer to the 2nd Defendant files general denial to paragraph of answer which is sus- the 3rd paragraph of answer. tained. Cause is submitted to the court for Defendant files amended 2nd par- trial. agraph of answer, to which plaintiff At close of plaintiff's case in chief, iles demurrer, court overruling de- defendant moves for non suit, which murrer and plaintiff taking excep- is overruled, defendant taking excep- tion. tion. Plaintiff files reply in two para- Trial is concluded and arguments graphs to the amended 2nd para- of counsel heard. graph of answer, 1st, general denial, 2nd, fraud of defendant. Finding for defendant that plain- Defendant files demurrer to 2nd tiff take nothing by his suit and that paragraph of reply on ground of de- defendant recover his costs. parture. Court sustains the demur- Plaintiff files motion and causes rer to which plaintiff excepts. for a new trial, which motion is over- Plaintiff files amended 2nd para- ruled by the court, plaintiff except- graph of reply, and an additional ing. paragraph alleging facts in confes- Plaintiff files motion in arrest o7 sion and avoidance. judgment which also is overruled and Defendant files motion to strike out exception to the ruling taken. the 3rd paragraph of reply, which court overrules and to which ruling Judgment rendered on the finding defendant excepts. to which plaintiff takes his exception. Defendant files several demurrer Plaintiff prays appeal to the Su- to the amended 2nd and the 3rd para- preme Court of Notre Dame which is graphs of reply. Court sustains de- granted, plainting filing his appeal murrer to the amended 2nd para- bond in the sum of $200 with Globe graph of reply to which plaintiff ex- Surety Company as surety, which cepts, and overrules demurrer to the bond is approved. Ten days are giv- 3rd paragraph, to which defendant en in which to file general bill of ex- excepts. ceptions. NOTRE DAME LAW REPORTER

JUNIOR MOOT COURT CAUSE NO. 1 Who should recover in the action? Charles Dunn James F. Murtaugh and VS. Alfonso A. Scott, Maud Thomas Attorneys for Plaintiff. STATEMENT OF FACTS Plaintiff claims that he should re- Rose Kramer and Maud Penny, cover damages in as much as the li- aged respectively 22 and 20 years, belous matter accused him of a crime resided in South Bend, Indiana, and and therefore was libelous per se had been intimate friends for years. which imputes malice. That therefore Rose was an orphan without brothers the letter could not have been writ- or sisters while Maud had parents ten in good faith. Chapin on Torts and a brother living. 314, 305, 338; Count Joannes vs. Ben- Because Maud had better means; net, 81 Am. Dec. 738; Simp~on vs. of getting information, Rose request- The Press Publishing Co., 67 N. Y. ed generally of Maud that she give Supp. 401; 18 Am. & Eng. Ency. of her such information as she might Law 2nd Edition 863; Burns Ind. Sta- get at any time about any young men tutes Revised Sec. 2180; Smith vs. of the town who might seek Rose's Matthews, 27 N. Y. Supp. 120; company. Two years later Maud was Brooker vs. Coffin, 4 Am. Dec. 337; married to John Thomas, and the Fiero on Torts, 717, 722, 746; Cooley girls at that time became estranged on Torts, 200, 207; Byam vs. Collins, and were no longer companions. 7 Am. St. Rep. 726; Hale on Dam- A year after Maud's marriage, ages, 151; Terwilliger vs. Wands, 72 Rose met for the first time Charles Am. Dec. 420. Dunn, a young lawyer of South Bend, Clarence Manion and to whom she became engaged. Maud Therman Mudd, Thomas, upon learning of the engage- Attorneys for defendant. ment wrote to Rose in a letter ad- dressed to her that "Charles Dunn The theory of the defense in this bore an unsavory reputation, was case is that the communication alleg- said to be addicted to drinking and ed to be libellous is privileged. The gambling and had other bad habits." general rule concerning privileged Rose received the letter while Charles communications is as follows: A Dunn was calling on her, and in his communication made in good faith on presence read the letter and then any subject in which the person has gave it to him to read. an interest or with reference to which After his marriage to Rose, Dunn he or she has a duty, public or pri- brought action against Maud Thomas vate, legal, moral or social, if made for libel. Maud Thomas avers that to a person having a corresponding she acted only on Rose's request, interest is privileged. 21 So. 109; 35 without malice and in good faith on So. 615, McBride vs. Ledoux; 42 So. some information she had gained. 591, Abraham vs. Baldwin; 79 Atl. The information was not reliable and 316, Krause vs. Rabe; 52 S. W. -, the facts stated in the letter were un- Caldwell vs. Story; 101 S. W. 1164, true. Rosenbaum vs. Roche; 24 Am. S. R. NOTRE DAME LAW REPORTER

717, Rude vs. Nass; 31 So. 293, Buis- John P. Brady and son vs. Huard; 80 So. 316, Putnal vs. E. John Hilkert, Inman; 180 Pac. 216, Burton vs. Attorneys for Plaintiff. Dickenson; 167 Pac. 1118, Fahey vs. This was not the sale of any one Shafer; 99 N. W. 847, Mertens vs. specific car but a sale of a certain Bee Publ. Co.; 48 S. E. 327, Flanders model by means of a sample car, the vs Daley; 110 Pac. 181, Melcher vs. specific car to be selected by the de- Beeler; 73 Mr. 87, Fresh vs. Cutter; fendant later. 44 N. E. 992, Harriatt vs. Plimpton. "Where the purchase necessarily trusts and relies on the judgment of CAUSE NO. 6 a seller of an article that it is fit for Jaul J. Donovan a particular purpose there is an im- VS. plied warranty that the article shall South Bend Motor Sales Co. be reasonably fit for that purpose." corporation Anson on Contracts, Note pp. 131; Tiffany on Sales pp. 257; Little v. G. STATEMENT OF FACTS E. VanSyckle & Co., 73 N. W. 554; Omaha Coal & Coke Co. v. Fay 55 N. plaintiff purchased a four-cyl- The W. 211; Hyatt v. Boyle 25 Amer. Dec. 1920 model, Maxwell Au- inder, new, 276. defendant. Defend- tomobile of the The defect was latent and any rea- ant is a corporation, organized under sonable inspection of the car on de- of Indiana, and is engaged in the laws livery could not have revealed the de- at South Bend, selling automobiles fect. plain- Indiana. On August 1, 1920, "If the seller is a dealer in goods purchased the model of machine tiff there is an implied warranty that the at the time inspect- described, having goods shall be free from any defect the sales ed a sample machine in rendering -them unmerchantable, rooms of the defendant. Afterwards, which would not be apparent on rea- delivered the sample the defendant sonable examination of the sample." had inspected, machine which he Sec. 16 C., Sales Act. (Sales by sam- which plaintiff accepted. ple) ; Griffin v. Metal Products Co., car and The plaintiff retained the 10 Atl. 713; Chapin v. Dodson, 34 operated it for a period of ten months Amer. Rep. 512. and then returned it and demanded The price paid by the plaintiff was paid for the ma- his money, $900, the price of a new car which implied- defective in chine. The machine was ly warranted a corresponding article that the driving parts were not in necessarily free from defects. driv- alignment-that is, the incased "Where you pay a sound price for gears- ing shaft and transmission a sound article you ought to get a trouble and several thereby causing sound article, and if the article is de- "grinding out" of parts. There was fective and not fit for the purpose for machine no express warranty of the which it was bought, the seller ought sold. The Maxwell car is manufac- to make it good." Standard Boiler & Co., tured by the Maxwell Motor Car Plate Iron Co. v. Brock, 99 S. E. 769; of Detroit, Michigan, and not by the Best v. Flint, 56 Amer. Rep. 570; defendant. Morse v. Union Stock Yards, 14 L. R. Who should recover? A. 157. NOTRE DAME LAW REPORTER

The defect was not discovered until 193; Note to Bragg v. Morrill, 24 after the car was driven for about Am. Rep., 104. ten months and upon discovery the To constitute a recission the prop- sale was promptly resciided. erty must be returned promptly after the discovery of the defect; and any right "The time within which the unreasonable delay, or continued re- to rescind is to be exercised must be cognition of the contract of purchase of the computed from the discovery as a valid contract constitutes a defect on which recission is fraud or waiver of the right of recission. Stur- based and not from the date of sale." gis v. Whistler, 130 S. W. 111; Cover- Co. 1.13 Smith v. Columbus Buggy dale v. Rickards & Watson, 69 Atl. Pac. 580. 1065. "Where the purchaser has exercis- Where the purchased article after- ed his right of rescinding the con- it has been accepted by the vendee tract for fraud or breach of warran- turns out to have a latent defect or ty, (express or implied) he is gener- in some respect is not fit for the pur- ally entitled to recover any payments pose for which it is intended, this he may have made for the machine." does not give the vendee the right to White, Auto Co. vs. Dorsy, 86 Atl. rescind the contract on implied war- 867; Beecroft v. VanSchaick, 104 N. ranty, since the vendee does not im- Y. Sup. 458; Taylor v. 1st Nat. Bank, pliedly warrant th article as to latent 167 Pac. 707. defects which are unknown to him, and have arisen thru the fault of the J. Paul Cullen, and manufacturer. Remsberg v. Hackney Chas. B. Foley, Mfg. Co., 164 Pao. 792. Attorneys for the Defense. The rule of caveat emptor is A latent or hidden defect in the dr- strictly construed where the purchas- ticle of sale which has arisen thru er has the opportunity to inspect the the fault of the manufacturer and article and has the privilege to try it not thru any fault of the vendor, out and ascertain its worth. Beirne does not give vendee the right to res- v. Lord, 55 Am. Dec. 321; Rogers v. cind the contract. Note to 22 L. R. A. Niles (Ohio) 78 Am. Dec. 290. NOTRE DAME LAW REPORTER

TRIAL BRIEFS IN CASE OF James Whitcomb vs. Marshall Carper Cause No. 2 Junior Moot Court By Arthur C. Keeney for Plaintiff John F. Heffernan for Defendant STATEMENT OF FACTS Plaintiff brings action to recover $200 paid to defendant as purchase price for a horse, harness and buggy. Plaintiff was a minor at the time of purchase, a married man with wife and child, worked as a day laborer for the support of himself and family, and did not use the purchased property except for pleasure riding. Plaintiff, at time of bringing the action, had sold the harness and buggy, and the horse had been condemned by the Society For The Prevention of Cruelty To Animals as unfit for use. Notwithstanding plaintiff offered no return of the property purchased he seeks to recover the money paid by him as stated. BRIEF FOR PLAINTIFF cessity, because, as set out in the facts, the property was used only for Arthur C. Keeney, for Plaintiff pleasure riding. It is manifest that The first point we wish to present such horse and buggy are not neces- is that this contract is a Voidable in- saries. We believe this to be so be- fant's contract, and the doctrine is cause it would be a gross inconsisten- too elementary to require the cita- cy to say that a horse and buggy used tion of authorities. That the plain- for pleasure purposes by a man who tiff herein is a minor and an infant labored by the day to support his for all legal purposes and hence a wife, his child and himself, were minor in regard to personal con- necessaries to him. tracts. That the termination of the If it is a legal necessity then there guardianship on marriage does not must be further proof that the infant make him of legal age. Antonio v. was in need of them. Therefore a Miller, 34 Pac. 40. horse, buggy, and harness purchased The plaintiff brings an action to and used for pleasure purposes are recover the consideration lie has paid; not necessaries. and in so doing is only exexrcising a Peck, Persons & Domestic Rela- right given him by law to rescind his tions, pg. 212; 165 N. Y. 289, Goodman vs. Alexander, 55 L. R. contract, and not suffer by reason of A. 781. such contract. The action is to re- Guthrie vs. Murphy, 28 Amer. cover $100.00 for a horse, buggy and Dec. 681. harness which were used for pleas- On the question as to the articles ure purposes. in this case being necessaries we cite The articles of property involved Price vs. Sanders, 60 Ind. 30. In in this case were not articles of ne- this case it specifically states that NOTRE DAME LAW REPORTEA these articles are not necessaries. Cruelty to Animals as unfifit for use. Any thing further on this point This fact we believe, has very little would seem superfluous. bearing on the case, except in a pas- The fact that the infant is a mar- sive way. In selling the harness and ried man has no effect, we believe, on buggy he exercised almost the capa- the status of the infant as he is con- bilities of a competent person, there cerned here. The fact that he is being no further use for the bugy married has no effect on his status and harness after the horse had been either for his benefit or to his detri- condemned and taken from him. The ment, but if it influences his relation condemnation of the horse as unfit in contract at all, it does to his ben- for use lends to the inference that fit. the infant was a victim because of Contracts not within the exceptions incompetency. It is natural to believe for example, contracts of marriage, that a horse sold to be used for driv- those demanded by law, as the release ing and for pleasure purposes would of mortgage for payment, and such not to be the kind to be so readily contracts as the law sets down as condemned. The fact remains that mandatory for the infant to comply the horse was taken from the infant with and perform, are all voidable. plaintiff and out of his control. It makes io difference that the in- This contract as we view it, was fant has become emancipated by his not a contract for necessaries-not father, or is married, or is engaged a contract where the law binds the in business, or is nearly twenty-one infant; that this contract was in- years of age and capable and of ac- jurious to the plaintiff, or was at tual business capacity. least disadvantageous and it was not 15 N. E. 476. to his benefit but was to his dam- 96 N. W. 895, Beichler vs. Guenth- age. er. The courts have held many times 27 Amer. Rep. The Rose case. that, as between different classes of Further-His status is not effect- contracts, such contracts as were ed by the fact that he has a wife and clearly disadvantageous to an in- child or even children, if anything in fant, were void; such as were clear- his status is to be changed in regard ly beneficial to the infant were valid to his liability he will be further pro- and binding, as the receipt of a gift, tected, exclusive of contract for ne- or the purchase of necessaries; and cessaries, because personal necessity such as could not b eclearly classi- includes that of the wife and chil- fied as either harmful or beneficial dren. were voidable at the option of the Peck 213. infant, and it is left for the infant Ryan vs. Smith, 165 Mass. 303. himself to determine the question, 43 N. E. 109. and to avoid his contract ifit is in- House vs. Alexander, 105 Ind. 109. jurious to him. (Barber Tools by which infant makes living.) Peck, Domestic Relations pg. 207- It is set out in the statement that 208; 5 Tenn. 41; Wheaton vs. East, 26 Amer. Dec. the infant sold the harness and bug- 251. gy and that the horse was condemned Forda vs. Van Horn, 30 Amer. by the Society for the Prevention of Dec. 77. NVOTRE DAME LAW REPORTER

N. & C. R. R. vs. Elliott, 78 Amer. ifles vs. Lingerman-"One who Dec. 506. has disaffirmed a conveyance made From these facts and for these during infancy is not required to reasons it is plain that the infant in tender back the purchase money to this case is not liable on his contract; session of the land. that in order to enforce it, it must If there is still a question as to be reduced to a necessity, even bus- whether or not the infant can re- iness deailngs, removing the con- cover or not without returning the tract one degree from necessity, are consideration given him in this case, not valid without the intervention we offer as additional authority in of a guardian. support of our contention that he does not; The Lemon Case, an Ohio Wallace vs. Leroy, 110 Amer. St. Rep. 777 and 50 S. E., 243 decision 15 N. E. 476, which says- "An infant may, before or on arriv- The facts also set out that the in- ing at age, disaffirm a purchase of fant did not return the property. personalty, other than necessaries, Why didn't he return the property? made by him during his minority, 1. Because, part ot it (the horse) and recover back the consideration had been taken from him and out of paid, without restoring the property his control. sold and delivered him where it has 2. Because the remainder had been been taken from him, or itis suffi- disposed of by him and applied to cient that the property ceases to be help in part furnish the recreation in his possession or subject to his that he lost. control. "The case of Wallace vs. Ler- 3. Because his statue as an infant cy 110 Amer-St. Rep. 777 and 50 S. did not require him to make a re- E. 243, holds that in an action against turn of the consideration under the an infant to recover the purchase circumstances and acts of his case. money of property sold to him, part The authorities on this point con- of the proceeds he still retains, he cur that a faliure to return consid- is entitled to the plea of infancy as eration dose not preclude recovery. a defense, wtihout having returned The case of Green vs. Green N.Y. or offered to return such property 553 is very clear on this point. That or proceeds. The successful interven- court held: "The right to repudiate tion of such plea confers upon the is based on the incapacity of the in- person who made the sale to the in- fant to contract, and that incapacity fant only the righ to reclaim his applies as well to the avails as to the property or such part of it as re- property itself, and when the avails mains in the possession of the infant. of the property are spent or lost or The case of Lamkin vs. Foster 64 otherwise disposed of during minor- Atlan. 1048-In this case the plain- ity, the infant should not be held tiff tried to recover goods sold to responsible for an inability to re- an infant. The infant had taken the store them. To hold him for the con- goods and did not pay any consid- sideration would operate as a ser- eration, the infant sold the goods and ious restriction upon the right of an now the plaintiff tries to recover the infant to avoid his contract, and in goods or their value, decision is for many cases would destroy the right the infant defendant. The reason altogether." stated is that; This contract made by NOTRE DAME LAW REPORTER an infant, not for necessaries, and 2. That his marriage had no ef- his contract not having been ratified fect on his contract relation. the action to recover the price can- 3. That the property in question not e maintained. did not constitute necessaries. In concluding the point we cite 4. That the consideration he re- three leading Indiana decisions, ceived was inferior, and that he was which all hold that right of an in- not a competent judge. fant to disaffirm and recover is not 5. That under the circumstances dependent on the return of consid- and facts in this case he was not re- eration. quired to return the property or Dill vs. Bowen 54 Ind. 204 make a tender. attorn Carpenter vs. Carpenter451nd. 142 Wherefore the plaintiff's eys ask hat the law be applied as Specifically states that the infant here set out and that the infant does not have to return the property plaintiff be sustained in this action. received before he can recover. White vs. Branch 51 Ind. 210 John F. Heffernan, for Defendant. In this case the property was a horse, and the infant wass allowed ISSUES. to recover his consideration without) The Issues in this case are:- return and where the consideration 1. Has this infant the general received by him, he had abused and privilege extended, to infants of depreciated its value. avoiding their contracts, in view of Also in House vs. Alexander 105 the fact that he has an emancipated Ind. 109 an infant who has purc- status as the result of the fact that hased an unecessary article of per- he is a married man and has a wife sonalty may rescind the contract and child., and recover. 2. Even if this infant can avail Beichler vs. Guenther 96 N. W. is it not essential that he return the 895. consideration he received before he can hope to rescind the contract and The infant's consideration was a secure the consideration from which team of horses, he sold the team of he parted, horses and sued for his consideration, We contend: 1. That this infant, and the court held that the infant of his emancipated status was not required to return his con- by reason has the same obligations as a mar- sideration. ried person of adult age, i.e. at least The Indiana court also says in "The support and maintenance of 45 Ind. 142 Carpenter vs Carpenter his family." -That it is not necessary, in order 2. That it is essential before the to give effect to he disaffirmance of contract can be rescinded that the a deed or contract of an infant, that infant return the consideration which the other patry should be placed in he received. statu quo. We believe we have shown con- ARGUMENT clusively:- If ever there.was a case in which 1. That the plaintiff was a minor, the ends of justice were sought to and as such was not liable on this be defeated by the technical plea of contract. infancy, this is it. It must have been NOTRE DAME LAW REPORTER just such a case as this that prompt- Graham 16 L. R. A. 578. Aldrich vs. ed the famous Kent to write into his Bennett 56 A. R. Stower vs. Hollis "Commentaries", the sentence "In- 83 Ky. 544. fancy is to be used as a shield and The meaning of "support and not as a sword." maintenance" is not restricted mere- The first question to consider is ly to the bare necessities of life. In whether the infant's marital status "Words & Phrases, p. 680 Vol. 8": does not "emancipate" him from the "The word "support" as used in a disabilities of infancy. To quote a contract whereby one agrees to sup- vs. Sherfey, 1 Iowa 358. "By eman- port his wife, does not include mere- cipation, we understand such act of ly sufficient provisions, but other the father as sets the son free from conveniences and necessaries as are his subjectiQn, and gives him the reasonable and suitable to make such capacity to manage his own affairs wife comfortable.' as if he was of age. Brewer vs. Brewer 113 N. Y. 161: Ruling Case Law: "In some states "Every wife is entitled to a home by statute, all persons are made a- corresponding with the circumstan- dults upon marriage. Such statutory ces and conditions of her husband." emancipation has the immediate ef- Cyclopedia of Law-P. 73 Vol. 3: fect of vesting the minor with the "The husband undertakes to furnish capacity which the law recognizes his wife a suitable home and main- in persons of full age." tain her according to his means and condition and provide for their off- Glenn vs. Hollopeter 21 L. R. A. spring." 847, California: "Under the general It is clear from the above author- rule of law, Grover Hollopeter be- ities that all contracts are deemed came of lawful age when the mar- contracts for the furtherance of the riage ceremony was performed. He support of the family, when they are is thus entitled to sue in his own made for the benefit of the family name. The ordinary legal conse- and are in keeping with the family's quences follow his marriage." station in life. Surely, it is the logical rule that We contend that a horse, harness the infant who considers himself, and buggy, intrinsically intended for and whom the law considers, as family purposes as they were, are qualified to enter upon the most vital included within the term "Support and important contract which he and maintenance" when they are not could possibly make,-- the contract incompatible with the husband's of marriage, is also qualified and station in life, and we further con- capable to protect himself in the ord- tend that this $300.00 contract made in ary and incidental contracts in- in order that the plaintiff's family curred during life. obtain recreation and pleasure was It is at least admitted that the in- not incompatible-was not an extra- fant's liability for contracts extends vagant purchase on the part of the from those for mere necessaries to plaintiff. all contracts made in the further- In many of the western states, ance of the support and maintenance such as Iowa, Colorado, Oregon, of his family. Cochran vs. Cochrane Washington, Nebraska, etc., not only 196 N. Y. 86. Commonwealth vs. is the husban dliable for items of NOTRE DAME LAW REPORTER family expense but the wife also precise consideration which moved may be held liable even though the to him, it is unjust for him to de- purchase was made by the husband. mand restoration of what the other Therefore, the plaintiff's wife, if party received, unless he can so re- she were an adult, would be held store what he himself received as to liable under the statutes of thdse put the adverse party in statu que. states. Cases in support of this proposition A case directly in point with ours, are: with respect tothis theory, is that of' Riley v. Mallory 33 Conn. 201. Houck vs. La Junta Hardware Co., Coburn v. Raymond 100 Am. St. Colorado, 114 Pac. 645. In this case Rep. 1000. a buggy was purchased by a husband Carr v. Clough, 26 N. H. 280. for the use of his wife and family. Taft v. Pike 14 Vt. 306. Bailey v. Barnberger, 11 B. Mon. The question hinged upon whether (Ky.) 113. the purchase was properly one in Johnson v. N. W. Mutual Life Ins. which the family was interested Co. 56 Minn. 365. and the court held "A PURCHASE Rice v. Butler, 160 N. Y. 578 ecetera. BY A HUSBAND OF A BUGGY FOR FAMILY USE WHILE HE CONCLUSION AND HIS WIFE ARE LIVING TO- GETHER CONSTITUTES A PROP- In view of the following rulings ER ITEM OF FAMILY EXPENSE.' of law:- Inasmuch as my colleague has pre- 1. Restitution by an infant is a pared an elaborate brief on the other necessary requisite before disafirm- issue of this case (plaintiff cannot ance. rescind without restitution), I shall 2. An infant, emancipated by not mane more than a passing ref- marriage, assumes the liabilities erence to this phase of the case. This with respect to contract of an adult. is indeed a complete bar to the plain- 3. An infant's obligation to "sup- tiff's recovery. As stated concisely port and maintain" his family covers in Peck on "Domestic Relations" p. the purchase in question which was 224: "If the contract when made made for the benefit of his family. was a fair and reasonable one, if it Any one of which is sufficient to has been completely performed on defeat the plaintiffs action, we re- both sides, and if by this actual per- spectfully urge, in further of the formance the infant has been en- obvious justice to be meted, that the riched or otherwise benefited, tho plaintiff in this case be stopped from he may not now retain in specie the disaffirmance of his contract. 42 NOTRE DAME LAW REPORTER TRIAL BRIEFS IN CASE OF John D. Carson as Administrator of Estate of Ray Stephens, Deaceased, vs. Charles D. Simpson and Edward Williams. Cause No. 3 Junior Moot Court By Patrick E. Granfitld for Plaintiff Clarence R. Smith for Defendants STATEMENT OF FACTS Ray Stevens entered into an agreement with Charles D. Simpson to sell him a horse on approval. The understanding was that Simpson was to take the horse and try him, and if the horse should suit him, give Stephens his note with approved sceurity; but if the horse should not suit him he was to return the horse to Stephens. A few days after this agreement Stephens was killed. Simpson did not return the horse and did not execute his note, but later traded the horse to the other defendant, Edward Williams. Plaintiff brings action to recover the horse or its value. BRIEF FOR PLAINTIIFF in 2 Neb. 186, the court held that where a vendee has taken possession Patrick E. Granfield, for Plaintiff. of the property but has not fulfilled Rrom the facts above stated, it is his contract by giving his note, the obvious that the case involves a sale vendor may rescind the contract and on approval. maintain an action in replevin. Cor- In 24 R. C. L., article on Sales on by on Law of Replevin, pages 127- Approval, the law is stated as fol- 135, also state the law as applied by lows: "The seller may in the default the court in the Nebraska case. of the buyer enforce his right to re- From the cases and authorities take possession by an action of re- cited we contend that the right to plevin." rescind the contract was vested in The facts as stated are, that if de- the plaintiff upon the default of Simp- fendant Simpson wanted the horse son, in not giving the note with ap- he was to give a note with approved proved security. security. This Simpson did not do. We submit that it is a sound prin- Therefore we contend that he default- ciple of law that a man cannot give ed and for this default we can rescind a better title than he has himself and the contract as against Simpson. because of the default of Simpson, The following cases are cited to the other defendant, Williams, has no support this contention: title ot the property. We do not deny that Williams is a Hollenberg Music Co. vs. Barron, 140 S. W. 582. purchaser in good faith, but we hold Frisch vs. Wells, 86 N. E. 775. that even though Williams is a pur- Page vs. Ulrich, 72 Pac. 454. chaser in good faith we can replevin In the case of Sturo v. Hoile found the horse from him. NOTRE DAME LA.W REPORTER In the case of Ballard v. Brigett, Wherefore, upon the reasons and 40 'N. Y. 314, plaintiff sold and deliv- authorities cited the plaintiff con- ered over to one, William France on tends that he had a right to rescind the agreement that they were to re- the agreement upon the default of main the property of plaintiff until Simpson and that the defendant, paid for. France later sold them to Williams, having acquired no title be- defendant who bought in good faith cause his co-defendant had nont, for a fair price and without notice plaintiff can maintain this action in of the condition. The court held that replevin against both defendants for the defendant even under such cir- the recovery of the horse. cumstances got no title as against the plaintiff. FOR THE DEFENDANT In the case of Bradshaw v. Warner, Clarence R. Smith, for liefendants. et al. an Indiana case, found in 54 It is true that the plaintiff made Ind. 58, the facts of which are as fol- an agreement with our client, Mr. lows: The owner of personal prop- Simpson, to sell him a horse on ap- erty sold and delivered it to the pur- proval. Our client took the horse, chaser at an agreed price payable at and if satisfactory he was to give the a certain time, upon the express con- plaintiff a note with approved secur- dition and agreement that the title ity, nothing being said as to the time thereto should remain wholly in such in which he was to accept or reject vendor until the full payment of said the horse. Nor was there a time set purchase price, which was neve within which he was to execute and paid. An officer holding an execu- deliver the note. Therefore it is cer- tion in favor of a third person tain that he was to have a reasonable against such vendee, to satisfy the time. The plaintiff died. Sometime writ, levied upon and sold such prop- later our client, Simpson, traded the erty to such third person, who knew horse to Williams. Our clients were nothing of the vendor's title thereto, given no notice of Stephen's death and who had been informed by the nor was there a demand made upon first purchaser that it was his own them by Stephens' administrator for property. The vendor later replev- the note or the horse. They were not led the property from the purchaser even informed by the administrator at said judicial sale. It was held that of their obligation toward him. the title to such property remained The first notice given our clients is in the plaintiff and that the defend- this action against them for recovery ant acquired no rights by his pur- of the horse or its value. chase at such judicial sale. The plaintiffs have no right of ac- The case of Dunbar vs. Rawles, 28 tion against our clients for recovery Ind. 225, and the case of Hodson et of the horse or its value. al. v. Warner et al., 60 Ind. 214 also Our client Mr. Williams received a apply the law that should be applied valid title to the horse when he re- to this case, namely: That a third ceived him from Mr. Simpson. The person purchasing property in good very fact that Simpson traded the faith from another who has no title horse to another was a valid accep- to it, such property may be recover- tance of the sale and therefore he ed by an action of replevin. passed a clear title to Williams. Ac- NOTRE DAME LAW REPORTER ceptance as used in the law of sales An action of replevin does not of personalty means anything that necessarily determine title. It is a amounts to a manifestation of a de- possessory action, and may fail eith- termination on the part of the vendee er because the plaintiff shows no to accept the offer of the seller which right of possession, or because the has been communicated or put in a defendant is not shown to have proper way to be communicated to wrongfully withheld it. the party making the offer.- Mac- Pearl v. Garlock, Michigan, 28 N. tiers admr's. v. Frith, 21 Am. Dec. W. 155. 262. The Sales Act, Part II, Sec. 19, pro- We therefore maintain that the vides that "When goods are delivered plaintiff has no right of action to the buyer on approval or on trial against our client, Mr. Simpson, for or on satisfaction, or other similar he has not failed in fulfilling his obli- terms, the property therein passes gation to the plaintiff. He has not to the buyer when he signifies his ap- refused to eecute the note nor has proval or acceptance to the seller or there been a demand made upon him does any other act adopting the for its execution. And although he transaction. This rule of law is ap- has not executed and delivered the plied in the case of Dearborn v. Turn- note it is not a breach of the contract er, 30 Am. Dec. 630. In this case the of sale since he had a reasonable time plaintiff delivered to Nason a cow in which to deliver it. A reasonable and a calf, for which he took his writ- time-In the case of Bower v. De- ten promise, to return the same cow troit Ry. Co. 20 N. E. 559, is defined within a year, with a calf by her side, to be so much time as is necessary, or to pay twenty-two dollars. The under the circumstances, to do con- court said: "We are very clear, that veniently what the contract or duty the security of the plaintiff vested in requires should be done iq a particu- contract; and that Nason, having the lar case. alternative to return or pay, the prop- This note, which was to be given erty passed to him and he was at lib- with approved security, requires erty to sell the cow. more time in its execution than an The action of replevin is founded ordinary note. For in Sweeney v. on a tortious taking and detaining, Vanghor, 29 S. W., 903, it was held and is analogous to an action of tres- that the word approve means to make pass, but is in part a proceeding in or show to be worthy of acceptance rem, to regain possession of the and it has such meaning in a contract goods and chattels; and in part a pro- providing that the purchaser of cer- ceeding in personam, to recover dam- tain goods shall give a note with ap- ages for the caption and detention. proved security. It is a possessory action, th egist of which is the right of possession in the The plaintiff cannot recover in a plaintiff and the wrongful seizure replevin action in this sale on approv- and detention by defendants. al when our client has never refused them the note. Tction cannot be Daggert v. Robins, 21 Am. Dec. brought until a reasonable time has 752. Beach v. Botsford, 40 Am. Dec. 45. expired and until our client has re- Chestnut v. Sales, 121 Pac. 986. fused to fulfill his obligations. NOTRE DAME LAW REPORTER Bradford vs. Marbury, 46 Am. Dec. cases, without exception, there has 264. been a demand made upon the pur- Girard v. Taggart, 9 Am. Dec. 327. chaser and a refusal by him before It is evident that our client Mr. action was brought. For example, in Simpson, has not failed in his agree- the Ohio decision, Stephenson v. Repp ment so as to give the plaintiffs a 25 N. E. 803, it is stated that "Where right of action in replevin for the goods are purchased upon an agree- tortious detention of the borse; there ment to give a promissory note for being no such wrongful detention. the price payable in one year with In the the celebrated case of Rus- interest, the vendor may, without sell v. Englehardt it was held that waiting for the expiration of the mere neglect to give a not in'consid- credit, maintain an action at once for eration of goods delivered to him, the breach of the agreement and the without a refusal of any application measure of damages will be the price therefore, will not give a right of of the goods sold and delivered, but immediate action but it must affirm- there must be a refusal of the pur- atively appear that the defendant chaser to make and deliver the note upon demnavd refused to execute the to the seller after the goods have note. been delivered to him. A demand is a requisition or re- In Foster v. Adams, 15 Atlantic quest to do a particular thing speci- 169, it is decided that when one sells fied under a clai mof right on the property and agrees to accept in pay- part of the person requesting. ment a note payable in time, and the Brackenridge v. State. 11 S. W. 630 buyer refuses to give the note, then In the case of Yale v. Coddington, the seller can sue at once. But our reported in 21 Wendall, 173, the court clients have never refused to give the said: "When goods are sold to be note. paid for by a note or bill payable at It is therefore the duty of the a future day and the note or bill is not plaintiff to show a right to the pos- given, the vendor cannot recover on session of the horse and a correspond- common count for goods sold and de- ing tortious possession in the defend- livered until the credit has expired." ant. We maintain that we legally In Grant v. Groshaon, 3 Am. Dec. and lawfully obtained title to the 724, in an action of covenant, the horse, first in the defendant Simpson, court determined that the plaintiff who later traded the horse to Wil- must show in the declaration that he liams. Our client Simpson obtained had, before bringing his suit, de- the horse on a legal sale on approval manded the property; because with- and title passes by our acceptance of out doing this he had not shown that such sale. Since our client Simpson the debt was due and payable. has neve rfailed to fulfill his contract There are several cases where the and since the plaintiffs have never seller or vendor of goods has brought demanded the note nor been refused action and recovered a note for the its payment, it is our contention that measure of damages as the contract judgment should be entered in de- price of the goods sold but in these fendant's favor. NOTRE DAME LAW REPORTER ALUMNI DEPARTMENT Contributing Section A STUDY IN SPECIAL FINDINGS OF FACTS AND CONCLUSIONS OF LAW.* By Francis J. Vurpillat, '91 *These findings of fact and conclusions of law were prepared and filed by the writer as Judge of the Starke Circuit Court of Indiana, in the case of Friebe vs. Elder etl al. A new trial as of right was immediately granted the plaintiff under the statute directing the trial court to grant a new trial with- out cause, upon the filing of the application and bond by the aggrieved party. A special judge tried the case anew and filed substantially the same findings and conclusions. From the second judgment the case was appealed to the Appellate Court of Indiana and affirmed. The case was then transferred to the Supreme Court of Indiana, where it was again affirmed. Friebe vs. Elder et. al (Ind. App.), 103 N. E. 429 Id., 181 Indiana 597-105 N. E. 151. State of Indiana, ss: FIRST In Starke Circuit Court, That Paulina Friebe, the original January Term, 1910. plaintiff, and Henry Friebe, now both Paulina Friebe, deceased, deceased, were married in the year original Plaintiff; 1857, and lived together as husband Adolph Friebe; and wife until the 6th day of August, 1901, when they separated; that for Adolph Friebe, as Executor of thirty years continuously prior to the will of Paulina Frebe, thier separation they were bona fide deceased: residents of Starke County, Indiana, Ida Whipple, residing on a farm in North Bend Clara Kaempfe, Township; and that they continued Carl Friebe, to reside in Starke County, Indiana, substituted Plaintiffs, throughout the year 1901. VS. SECOND Elmer D. Elder, and That at the time of their separa- Emma G. White, Administratrix tion on August 6th, 1901, Henry of the estate of Friebe was the owner in fee simple Henry Friebe, deceased. and in possession of the following SPECIAL FINDING OF FACTS described real estate situated in Starke County, Indiana, to-wit: (H. AND CONCLUSIONS OF I.) that said real estate was worth at LAW. that time $4,500 and was incumbered with a school fund mortgage of The court having been requested $2,000, dated August 25, 1898, in the to find the facts specially and state execution of which Paulina Friebe thereon conclusions of law, does now joined. That Henry Friebe was also find the facts to be as follows, to-wit: the owner of personal property at NOTRE DAME LAW REPORTER that time which was of the value of the home of her daughter, Emma G. $500, and was indebted in the sum of White in the same neighborhood. $300 in additional to the mortgage That sometime thereafter Henry indebtedness mentioned. The court Friebe informed Paulina Friebe that finds that in the purchase of said real he intended to apply to the Starke estate and personal property of Circuit Court for a divorce and pro- Henry Friebe, said Paulina Friebe posed to her a financial settlement in had invested $700 of her own money. view of such divorce; that negotia- THIRD. tions to that end were carried on be- tween Henry Friebe, acting through That there were born to said Henry son, Adolph Friebe, and Paulina and Pauline Friebe seven children, the Friebe in person. And it was mu- six of whom were living at the time tually agreed between said Henry of the separation, namely, Adolph Friebe and Paulina Friebe that if Friebe, Clara Kempfe, Emma G. said Henry Friebe should be granted White, Ida Whipple, Martha Brown a divorce upon his petition he was to and Carl Friebe. That all of said pay Paulina Friebe $1000 in install- children except Carl Friebe, had long ments of $50 per year without inter- since come of age, married and lived est, secured by notes and mortgage, apart from their parents. The par- and that said Henry Friebe was to ents, Henry and Paulina Friebe, at take care of the imbecil son, Carl the time of their separation were Friebe. That Paulina Friebe was in- living alone with their son Carl duced to waive her demand for inter- Friebe who was then 37 years of age est upon the deferred payments by and who has all his life been an im- the promise of the son, Adolph and a care and charge upon his becil Friebe, that he would give her a parents. home with him. That after this FOURTH agreement was made it was further That for a long time prior to Au- agreed that they should go to the gust 6th, 1901, said Paulina Friebe town of Knox, in Starke County, for and Henry Friebe, in their old age the purpose of carrying out their were dissatisfied and irritable, were agreement, and that Henry Friebe completely estranged, had no affec- might make his application for di- tion for one another and did not live vorce. together in peace and harmony. That SIXTH on said 6th day of August, 1901, That on the 10th day of October, Paulina Friebe left the old homestead 1901, Paulina. Friebe and Henry and abandoned Henry Friebe with Friebe came to Knox, accompanied the avowed purpose to never live with by their daughter, Emma G. White, him again; and the court finds that and son-in-law, William White; that said Paulina Friebe from that time there they went to the office of Peters till the death of Henry Friebe neith- & Peters, lawyers, where Henry er lived nor cohabited with him. Friebe told Charles H. Friebe that he FIFTH wanted to procure a divorce from his That after such separation Henry wife Paulina Friebe. That thereup- Friebe continued to live at the old on said attorney Charles H. Peters home with the demented son, Carl informed them that he could not act Friebe, while Paulina Friebe lived at for both of them, that Mrs. Friebe NOTRE DAME LAW REPORTER must employ a lawyer, to which be paid within a year thereafter to Paulina Friebe replied that they had the heirs of Paulina Friebe. It was made a settlement between them and further stipulated in said contract she did not want a lawyer. They that Henry Friebe, should take the then left the office of Peters & Peters care and custody of their thirty-seven and went to the court house where, in years old son, Carl Friebe, and that the corridor they met the Judge of he should pay all the costs of the di- the Starke Circuit Court. That vorce proceeding should the divorce Paulina Friebe told the Judge that be granted. Henry Friebe inetnded to apply for That Henry Friebe then made and a divorce, that they had settled their executed to Pauline Friebe his nine- property right, that she did not want teen promissory notes for $50 each, to resist the divorce and would not payable at the Farmers' State Bank employ a lawyer. Then Paulina of Knox, Knox, Indiana, in one, two, Friebe and Henry Friebe, accompan- three, four, five, six, seven, eight, ied by their daughter and son-in-law, nine, ten, eleven, twelve, thirteen, Emma G. White and William White, fourteen, fifteen, sixteen, seventeen, and the Judge returned to the office eighteen, and nineteen years after of Peters & Peters, where Charles H. date respectfully and also executed Peters, as attorney for Henry Friebe, and acknowledged his mortgage to reduced to writing the agreement Paulina Friebe upon eighty acres of theretofore entered into by Paulina his said real estate described as fol- Friebe and Henry Friebe; also draft- lows, to-wit: (H. I.) To secure the ed the notes and mortgage in accord- payment of said notes, which morl- ance with said agreement and also a gage also provided that at the death written appearance and waiver Df of the mortgagee, Paulina Friebe, the issue and service of process in the entire unpaid balance of this mort- contemplated divorce. That said gage should become due and payable, written contract signed and executed within one year thereafter to the by said Paulina Friebe and Henry heirs of said Paulina Friebe. Friebe has become lost and cannot be That Paulina Friebe also signed, found after diligent search and in- swore to and acknowledged the fol- quiry therefor; That said contract lowing written instrument as a part provided that Henry Friebe should of the same transaction in which the pay to Paulina Friebe $1000 in set- notes and mortgages were executed, tlement of her property rights and to-wit: as alimony in installments of $50 State of Indiana cash and $50 per year thereafter un- SS til paid, without interest, to be se- County of Starke, cured by mortgage on eighty (80) In the Starke Circuit Court acres of the real estate of Henry to October Term, 1901. Friebe, described in finding No. two, Henry Friebe to pay for record- said Henry Friebe VS. ing said mortgage and to pay the tax- Paulina Friebe es thereafter assessed on said mort- gage; and in the event of the death of The defendant, Paulina Friebe, said Paulina Friebe, the balance of hereby enters her appearance to the said $1000 remaining unpaid, should above entitled cause of action, and NOTRE DAME LAW REPORTER waives issueing of summons and the ther agreed between said Paulina service thereof, or any other notice Friebe and Henry Friebe at the time, herein. that all the papers so prepared and PAULINA FFIEBE. executed should be left at the office of Witnesses Peters & Peters until the hearing up- William J. White on the application of Henry Friebe Emma G. Wbite. for divorce which, they were then in- Paulina Friebe; being first duly formed, would be heard in the Starke sworn by me, swears that she is the Circuit Court on October 28th, 1901, identical Paulina Friebe mentioned when they were to be used in said di- in the above and foregoing cause of vorce proceedings, and it was also action as the defendant therein, and agreed that if a decree of divorce that she signed the above waiver of should be granted to said Henry notice. Friebe, then the property rights and PAULINA FRIEBE. alimony should be considered as set- Subscribed and sworn to before me, tled according to the terms of said the undersigned notary public in written contract and the notes and and for the County and State mortgage described should be deliv- aforesaid, this 10th day of October, ered to said Paulina Friebe. 1901. EIGHTH Charles H. Peters, That on the 28th day of October, (L. S.) Notary Public. 1901, Henry Friebe, through his at- My commission expires Nov. 23, 1904 torneys, Peters & Peters, filed his At the time of the execution of said complaint against said Paulina papers Henry Friebe paid to Paulina Friebe for a divorce and the custody Friebe $30 of the cash to be paid on of their son Carl Friebe in the Starke said contract, and after October 28th, Circuit Court. That no summons or 1901, paid to her $20 the balance of other process was issued on said com- said first cash payment. plaint or served on said Paulina SEVENTH Friebe, but the written waiver of such summons and service executed The court finds that Paulina Friebe and Henry Friebe were German peo- by said Paulina Friebe as set out in finding number six was filed and pre- ple, speaking and writing the German language; that Paulina Friebe was sented in open court and the follow- ing minute thereof was made by.the an intelligent and capable woman and that on October 10th, 1901, at the trial court upon his bench docket, to- time of the execution of the contract, wit: waiver of service and notes and mort- "Defendant files waiver of summons gage described in the last preceding and service" finding she examined and considered The court finds that Paulina Friebe said papers; that all of them were had notice that such complaint would translated and explained to her in be filed and a hearing had thereon at German by the daughter, son-in-law, that time, that on the morning of said and the Judge, and that she approved day she was informed by William and executed them with a full knowl- White, her son-in-law, with whom she edge and understanding of their pur- was making her home at the time, pose and purport. And it was fur- that that was the day upon which the NOTRE DAME LAW REPORTER hearing would be had on Henry Order Book No. 29, at page 287, and Friebe's application for divorce, and is as follows: she was asked to prepare herself and Henry Friebe accompany said White to Knox, for vs. No. 5130 the purpose of appearing at said Paulina Friebe trial; that she refused to go, stating Comes now the plaintiff here- at the time that it was not necessary in by Peters & Peters, his attor- for her to be present on the trial. neys, and files the waiver of the defendant of the summons and And she then requested and directed service, whch waiver is in words said William White to go to Knox and figures following, to-wit: and appear upon. the trial for her and State of Indiana, County of state to the court that she did not Starke, SS: want to resist said Henry Friebe's In the Starke Circuit Court, to application for divorce, that they had October Term, 1901. settled their property rights, and Henry Friebe vs. Paulina Friebe that he, William White, should get The defendant, Paulina the notes and mortgage that had Friebe, hereby enters her ap- been executed by Henry Friebe for pearance to the above entitled her if the divorce should be granted; action, and waives issueing of that said William White as thus di- summons and the service there- i of, or any notice herein. rected by Paulina Friebe went to PAULINE FRIEBE. Knox, and appeared at the trial for Witnesses her and in her behalf. That upon the William J. White filing of said written waiver and ap- Emma G. White. pearance executed by the defendant, Paulina Friebe, being first Paulina Friebe, the court called said duly sworn by me, swears that defendant; that said William White she is the identical Paulina responded to such call in open court Friebe mentioned in the above and stated that he had been directed and foregoing cause of action as the defendant therein, and that by the defendant to appear and state she signed the above waiver of to the court that she did not want to notice. resist the plaintiff's application for PAULINA FRIEBE. divorce; that thekr had settled their Subscribed and sworn to before property rights by agreement and me, the undersigned Notary that she wanted to be protected in Public in and for the County That no other ap- and State aforesaid, this 10th said agreement. day of Oct., 1901. by the defendant pearance was made (Seal) Charles H. Peters, Paulina Friebe, that no lawyer ap- Notary Public. peared for her or in her behalf at My commission expires Nov. 23, such proceedings for the reason that 1904. And said defendant now fail- she refused to employ one. ing to appear and plead further is three times audibly called in That thereupon the Starke Circuit open court, comes not but herein Court assumed jurisdiction of said wholly makes default. And the cause, tried the same and made a find- cause being now at issue, and a jury being waived, is submitted ing and pronounced judgment there- to the court for trial, finding and on, the record of which appears in decree; and after hearing all of NVOTRE DAME LAW REPORTER the evidence and being fully ad- duct, as the divorced wife of Henry vised in the premises the court Friebe. And that at no time from does find in favor of the plaintiff, the rendition of said decree of divorce of his com- that the allegations until the institution of the present plaint are true, and that he is en- titled to a decree of divorce suit did she ever question the validity from the defendant on the of said decree or take any steps to grounds alleged in his complaint; vacate the same, but on the contrary and also finds that all of the she recognized said decree and every the plaintiff property rights of year collected from Henry Friebe the defendant have been and the of said amicably settled between them. notes held by her by reason And the court further finds that divorce proceedings and caused the the plaintiff is a fit person to mortgage securing the same to bE have the care and custody of recorded in the Recorder's Office of their infant child, Carl Friebe, Starke County, Indiana, which notes that said plaintiff is entitled and finds, consti- to the care and custody of such and mortgage, the court child till the, further order of tuted a part of the consideration for this court. the settlement of all property rights It is therefore ordered, ad- of the plaintiff and the defendant judged and decreed by the court that said decree of divorce refers to that the bonds of matrimony as having been made by them. That existing between the plaintiff all the and the defendant be dissolved Henry Friebe complied with and the plaintiff be granted a di- terms and conditions of the contract vorce from the defendant; that between him and Paulina Friebe de- the plaintiff have the care and scribed in finding sixth, to be com- custody of Carl Friebe until .the plied with on his part from the time of this court. And further order of said decree; he it is also ordered that the plain- of the rendition tiff pay all costs of this action, had the care and custody of said im- taxed at $- becil son, Carl Friebe, with whom he lived until his death; that he paid to NINTH Pauline Friebe every year the install- The court finds that on said 28th ment notes as they fell due and paid day of October, 1901, after the ren- the taxes on the mortgage held by dition of said decree of divorce, Hen- Paulina Friebe together with the fee ry Friebe delivered to William White for recording same. for Paulina Friebe, the notes and TENTH mortgages described in finding num- ber sixth and that said William White The court finds that Henry Friede on that same day delivered said notes continued to own the real estate de- and mortgage to said Paulina Friebe scribed in finding number two and in person and informed her of the lived thereon until the 8th day of Au- proceedings had in court and of the gust, 1907, when he sold and convey- decree of divorce granted by the ed the same to the defendant Elmer court to Henry Friebe; and that from D. Elder; that on said day Henry that time until the death of said Friebe executed and delivered to said Henry Friebe she lived separate and Elmer D. Elder three deeds of con- apart from him, characterized her- veyance for said real estate, in each self, and held herself out to the of which deeds he described himself world by her statements and her con- and acknowledged himself to be a NOTRE DAME LAW REPORTER widower, and warranted the title to of said land, as described in finding the real estate therein described by sixth; that he also executed and de- general covenants of warranty; that livered to said Henry Friebe a mort- Paulina Friebe did not join in any of gage in the sum of $850 to secure the said conveyances. That one of said balance of the purchase money for deeds conveyed the following tract of said real estate, which mortgage is land, to-wit: (H. I.) to Elmer D. El- upon the following described tract, der as grantee; that another of said to-wit: (H. I.) deeds conveyed the following describ- ELEVENTH ed tract, to-wit: (H. I.) to Bessie R. The court finds that prior to the Elder, a daughter of the defendant purchase of the lands of Henry Elmer D. Elder, said Elmer D. Elder Friebe by the defendant Elmer D. paying all the consideration therefor, Elder, as found in the last preceding and taking title to himself in his finding, said defendant Elder had oc- daughter's name; that another of said casion to examine.the abstract of ti- deeds conveyed the following de- tle to said real estate and had knowl- scribed 'tract, to-wit: (H. I.) to Vina edge of the decree of divorce render- B. Elder, another daughter of the de- ed in the Starke Circuit Court in fav- fendant Elmer D. Elder, said Elmer or of said Henry Friebe against said all the consideration D. Elder paying Paulina Friebe, as set out in finding taking title to himself therefor, and number eight, and that he also had in said daughter's name. That all of knowledge of the mortgage and notes said deeds of conveyances were de- executed by said Henry Friebe to said Friebe to the livered by said Henry Paulin Friebe covering eighty acres defendant Elmer D. Elder, who im- of said real estate as mentioned in mediately took possession of alt the finding number sixth, which mort- lands therein as the owner, and he gage and notes he afterwards assum- has ever since occupied and claimed ed and agreed to pay to said Paulina virtue of title to all of said lands by Friebe as part of the purchase mon- said conveyance, and by no other or ey for said real *estate. That the de- different source of title, except that fendant Elder also had the opinion afterwards in October, 1907, said of an attorney-at-law, who examined and Vina B. Elder, Bessie R. Elder said abstract for him, that the title his daughters both unmarried, exe- to said real estate was then in said cuted and delivered to him their Henry Friebe, as the divorced hus- deeds of conveyance for said real es- band of said Paulina Friebe. tate. That all of said deeds herein mentioned were duly recorded in the And the court further finds that Office of the Recorder of Starke before the purchase of said real es- County, Indiana. tate said defendant Elder went to the lands for the purpose of inspecting And the court further finds that the same and with the view to nego- said Elmer D. Elder paid as consid- tiating for their purchase, and that eration for said real estate $30 per on his way to said lands he called at acre, and that as a part of said con- thehomeof William White, which was sideration he assumed and agreed to also the home of said Paulina Friebe, pay the notes and mortgage held by because he had been informed by Paulina Friebe against eighty acres said William White that said Friebe NOTRE DAME LAW REPORTER lands were for sale. That at the time that said Paulina Friebe knew that he called at the William White home said defendant was claiming to be he saw and met Paulina Friebe, and the owner of all said real estate by that at the time he believed her to be virtue of the deeds of conveyance to the divorced wife of Henry Friebe, him from Henry Friebe as widower living separate and apart from him and free from any claims she might because of such decree of divorce, assert as his wife; and that said El- and that said Paulina Friebe was der made lasting improvements on then and there informed by the said real estate with the knowledge daughter, Emma G. White, and her of Pauline Friebe, and without any son-in-law, William White, that the assertion by her of any right, title or defendant, Elmer D. Elder, was the interest in said real estate as the wife man who was to purchase said lands, of said Henry Friebe, and without and that said Elder was then going calling in question the validity of to the lands and the home of said said decree of divorce; but that from Henry Friebe in company with her the time of said purchase of the real son-in-law, William White, to nego- estate by the defendant Elmer D. El- tiate for their purchase. der said Paulina Friebe continued to live separate and apart from said And the court finds that said Henry Friebe. Paulina Friebe then and there re- mained silent and made no protest And the court further finds that against said purchase and said noth- said defendant Elmer D. Elder has ing and asserted no claim that she paid two of the annual installments was the wife of Henry Friebe, al- notes falling due since the purchase though, as the court finds, she had of said real estate; that the first of sometime prior thereto been advised said notes so falling due.he paid to that the decree of divorce rendered Paulina Friebe, in person, at her home, six years before in favor of said Hen- during the life time of Henry Friebe, ry Friebe was defective and invalid. and she accepted such payment and That said defendant, Elmer D. Elder, deivered up to said Elder said note in company with said William White in person, and that the second of said then went to the home of Henry notes due and payable to said Paulina Friebe on the lands described and Friebe said defendant Elmer D. El- there negotiated the purchase of said der paid at the Farmers' State Bank real estate from said Henry Friebe, of Knox, in Knox, Indiana, where as detailed in finding number ten; said notes were made payable, and and immediately thereafter said Wil- that said note was then and there de- liam White returned to his home and livered to said defendant Elder and informed Paulina Friebe that said had indorsed thereon at the time of defendant Elmer D. Elder had pur- such payment the name "Paulina chased the real estate of said Henry Friebe," which note the court finds Friebe, and that he had agreed to had been so indorsed by said Paulina pay the notes and mortgage held by Friebe, and that said Paulina Friebe her. received the money in payment for And the court further finds that such note, and that this second note after said Elder had purchased and paid by the defendant Elmer D. Elder taken possession of said real estate was paid, and the money therefor re- NOTRE DAME LAW REPORTER ceived by said Pauline Friebe, after Henry Friebe also gave to Emma G. the institution of this suit by her. White, another daughter, $50.00. And the court further finds that The court finds that at the time of said Paulina Friebe continued to hold said distribution all of said distri- said notes so payable to her and se- butees, children of said Henry and cured by said mortgage until after Paulina Friebe, knew that the money the institution of this suit and until so distributed was a part of the pro- the time of her death; and that said ceeds of the sale of the Henry Friebe notes remaining unpaid at the time lands, and knew said Henry Friebe of her death are now held by her es- had sold all of said real estate, had tate. warranted the title thereto by gener- And the court further finds that at al covenants of warranty in the con- no time prior to the commencement veyance made by him, as the divorced of this action or since, did Paulina husband of their niother, Paulina Friebe or the substituted plaintiffs Friebe, and that they also knew of surrender or offer to surrender to the rendition of the decree of divorce any one the notes and mortgage held between their said parents, and that by said Pauline Friebe in settlement since is rendition said Paulina Friebe of her property rights under the de- and Henry Friebe lived separate cree of divorce as heretofore found. and apart as divorced. That from the time of the rendition of said de- TWELFTH cree of divorce said Pauline Fiiebe And the court also finds that after made her home with her said children the sale of his said real estate to the and expressed her satisfaction with defendant, Elmer D. Elder, as here- that such decree of divorce had been tofore found, said Henry Friebe in- granted and that she was living sep- formed Paulina Friebe of his inten- arate and apart from said Henry tion to divide his estate and distri- Friebe. bue the proceeds of said real estate THIIRTEENTH among their children, and that Paul- ina Friebe at the time expressed her That Henry Friebe died inestate in approval of said purpose; and that Starke County, Indiana, on October thereafter said Henry Friebe did dis- 28th, 1907, leaving surviving him tribute the proceeds of the sale of said Paulina Friebe and his children said real estate among his said chil- named in finding number two; that dren as follows: on or about te 2nd day of December, 1907, the defendant, Emma G. White, To Adolph Friebe, $ 800.00 was duly appointed administratrix of To Clara Kempfe, $1000.00 the estate of said Henry Friebe, de- To Ida Whipple, $ 50.00 ceased, and she qualified and gave And that he retained the note for bond as such administratrix and is $875.00 secured by mortgage on his now acting as such. real estate, being the mortgage that And the court finds that said ad- the defendant Elmer D. Elder gave ministratrix has in her possession to secure the unpaid purchase money among the assets of said estate the as heretofore described in the find- note of the defendant Elmer D. El- ings, for the future care and support der for $850.00 secured by mortgage of the imbecil son, Carl Friebe; that on the land described in the forgoing NOTRE DAME LAW REPORTER findings, to-wit: (H. I.) which were Henry Friebe and at the time of the given for the balance of the purchase filing of her complaint herein, was money for said real estate as here- estopped to deny the validity of the tofore found as described in plain- decree of divorce rendered by the tiff's complaint in this action. Starke Circuit Court of Indiana in FOURTEENTH the case of Henry Friebe against Paulina Friebe as set out in the fore- That on the 21st day of August, going findings, and that she was es- 1909, and during the pendency of her topped at such time from asserting action, said Paulina Friebe died tes- any claim of right, title or interest in tate in Starke County, Indiana, and or to the real estate her last will and testament was fully conveyed by probated in the Starke Circuit Court Henry Friebe to defendant Elmer D. Elder as the surviving wife of said on the - day of -, 1909, and duly recorded in the office of the Henry Friebe. clerk of the Starke Circuit Court; SECOND:- that by the provisions of her said will That the substituted plaintiffs and Adolph Friebe was named as the sole each of them at the time of the death executor thereof, and that said of their mother Paulina Friebe were Adolph Friebe on the - day of estopped to deny the validity of the , 1909, duly qualified and decree of divorce rendered by the gave bond and entered upon the du- Starke Circuit Court of Indiana, in ties of his said trust and is now act- the case of Henry Friebe against ing in that capacity, and as such exec- Paulina Friebe as set out in the fore- utor is one of the substituted plain- going findings, and that they and tiffs in this action. That by the pro- each of them are estopped to assert visions of said will, Adolph Friebe, any claim of right, title or interest in Clara Kempfe, Ida Whipple and Carl or to the real estate conveyer by Hen- Friebe are made and constituted the ry Friebe to the defendant, Elmer D. only deviseds and legatees of said Elder, in right o their mother, Paulina Friebe, and to them her es- Paulina Friebe, as original plaintiff tate is given, devised and bequeathed through her last will and testament share and share alike; and that all as devisees and legatees of said will. of said devisees and legatees are sub- situted plaintiffs in this action. THIRD:- That the plaintiffs take nothing by CONCLUSIONS OF LAW this action either as original or sub- WHEREFORE upon the foregoing stituted plaintiffs and that the de- facts the court concludes the law to fendants and each of them recover FIRST:- from plaintiffs their costs in this ac- That the original plaintiff, Paulina tion laid out and expended and taxed Friebe, at the time of the death of at - dollars. NOTRE DAME LAW REPORTER NOTRE DAME MEN OF THE ST. JOSEPH COUNTY BAR ASSOCIATION (Indiana) By Arthur B. Hunter, LL. B., '20 The Bar dockets of the Circuit and every Notre Dame man that it is Superior Courts of Saint Joseph hardly necessary to recount his many County list the names of thirty-one legal activities. He won his title of N. D. men, each one of whom is proud affection from the term which he to claim the hcnor of having attended served as City Judge of South Bend. the Law School of Nbtre Dame Uni- He has offices in the J. M. S. Build- versity. Cncerning not a few of these ing. men whole volumes might profitably Mr. Samuel Feiwell, 1918, was a be written, but inasmuch as each con- candidate for the Democratic nomin- siders himself not better than the ation for Prosecuting Attorney in the others, it shall be my purpose to give last election. He has offices of his but a short matter-of-fact statement own in the Citizens Bank Building. regarding each. If I should omit any Mr. Ralph Feig, 1907, is at present Notre Dame man from the !ist I hope city judge of Mishawaka. He finds that he will be kind enough to believe time in addition to take care of his that it is inadvertence or ignorance large practice in the Circuit and Su- on my part rather than ill will or de- perior Courts here. sign and that he will prmptly supply Mr. Edwin A. Frederickson, 1920, the Reporter with the information has offices with "Judge" Farabaugh. concerning himself. In addition he finds time to teach in Mr. Leo J. Cook, 1918, is building the Notre Dame Law School along up a good practice for himself and is with the Judge. "Freddie" assures well located in the Union Trust us that he loves the law and we are Building. convinced. Mr. Walter L. Clements, 1918, a Mr. Charles Hagerty, 1912, also Kentucky gentleman who was at- has offices with Judge Farabaugh and tracted to South Bend during the thus completes a 100 per cent N. D. years that he spent at Notre Dame, law office. Mr. Hagerty has been ac- returned to us after serving in the tive as a lobbyist at the present ses- army, and has since been associated sion of the Indiana legislature and ex- in a very active way with Messrs. plains his success as such by remind- Hubbell and Van Fleet in the Citizens ing us that he has just completed a Bank Building. term as State Senator from Saint Jo- Mr. Edward M. Doran, president seph County. of the class of 1920, is well connected Mr. Vernon R. Helmen, 1917, since with the law firm of Shively and Gil- returning from military service has mer, in the Farmers Trust Building. maintained an office for himself In Mr. G. A. Farabaugh, 1907, is one the Farmers Trust Building where he of the leading attorneys of South is building up a profitable business. Bend. "Judge" is so well known to Mr. Patrick J. Houlihan, 1892, is NOTRE DAME LAW REPORTER one of the old "grads" who are always tent as to claim practically all of his proud of Notre Dame. He has been time and thus to draw him out of the prominent in political circles locally active practice of the law. for a number of years. He has of- Mr. Thomas D. Mott, 1895, is an fices in the Title Building. His abili- ex-judge of the Saint Joseph Super- ty was best demonstrated by the fact ior Court. He has also held the office that he was chosen and served four of Federal Judge in Porto Rico. At years as County Attorney of Saint present he is busily engaged in float- Joseph County. ing a corporation which will engage Mr. Thomas Hoban, LL. B., 1899, in the shipping business. LL. M., 1900, is Sec'y.-Treas. and Mr. Joseph Walter McInerny, 1906, Gen'l Mgr. of the South Bend Brew- of the firm of McInerny, Yeakley and ing Assn. His arduous duties with McInerny, is an active booster for this company, however, do not pre- Notre Dame. He was formerly edi- vent him from maintaining his law tor of the South Bend News-Times. office, which is located in the Union During the last campaign he was Trust Building. chairman of the election board of Mr. Floyd 0. Jellison, 1915, is the St. Joseph County. newly elected Prosecuting Attorney Mr. William A. McInerny, 1901, of of St. Joseph County. He took office the firm of McInerny, Yeagley and January 1, 1921. McInerny, located in the Conserva- Mr. Vitus G. Jones, 1903, is one of tive Life Building, is one of the lead- the most active and prominent of the ing lawyers in Indiana. Soon after lawyers of South Bend. He is the his graduation he was appointed to senior member of the firm of Jones the Board of Public Works of the city & Obenchain with offices in the Union of South Bend and has ever since Trust Building. His lucrative prac- made good with a vengeance. He is tice is but a faint index to his high well known as a legislative lobbyist abilities as a lawyer and a true Notre and a real estate promoter. His chief Dame man. fame as a lawyer, however, is found- Mr. Joseph J. Kovacs, 1916, has a ed upon the many important cases thriving practice. He is associated which he has handled for public util- with Messrs. Dekelbaum and Hosin- ities before the various State com- ski. They have offices in the Farm- missions. ers Trust Building. Mr. Mr. William B. O'Neill, 1906, Mr. Arthur L. May, 1918 and LL. served as Lieutenant Governor of In- M. 1919, is well located with the pro- diana for four years beginning in minent law firm of Anderson, Parker, 1913. Although Mr. O'Neill's home Crabill and Crumpacker. "Art" is is in Mishawaka he has offices for his steadily increasing his clientle. He is practice, Ronald S. O'Neill, 1914, in located in the J. M. S. Building. the Citizens Bank Building in South M. Ernest M. Morris, 1906, is a Bend, Indiana. Ronald is at present former member of the Board of Pub- however, connected with the Erwin- lic Works and is at present president Wasey Co., 58 E. Wash. St. Chicago, of the Associated Investment Com- Illinois. pany. The latter company, with of- Mr. J. Elmer Peak, 1912, in addi- fices in the Farmers Trust Company tion to his legal activities is at pres- building, has grown to such an ex- ent kept very busy as the Grand NOTRE DAME LAW REPORTER

Knight of the South Bend Council of Bend, is the senior partner of the the Knights of Columbus. He has of firm of Shiveley & Gilmer, with of- fices in the Farmers Trust Building. fices in the Farmers' Trust Building. Mr. George W. Sands, is a former Mr. Shiveley enjoys a lucrative gen- member of the Indiana legislature. eral practice. He cares for his extensive practice Mr. Edwib H. Sommerer, 1916, is from his offices in the Conservative engaged in practice for himself with Life Building. Genial George is a offices in the Farmers' Trust Build- prominent court attorney of the Saint ing. At the last election he was a Joseph County Bar. candidate for the State legislature. Mr. John M. Raab, former student I am happily situated here with the of the Notre Dame Law School, is the firm of McInerny, Yeagley and Mc- newly elected secretary of the Saint Inerny. Mr. Yeagley is president of Joseph County Bar Association. He the Saint Joseph County Bar Associa- is connected with the law firm of tion for 1921. Altho he is a big man Deahl and Deahl whose offices are lo- and a very busy man he is never too cated in the J. M. S. Building. busy to listen to my problems and Mr. F. Armand Schellinger, 1919, questions. He, too, is a very good is well located with the strong law friend of Notre Dame. During the firm of Jones and Obenchain in the football season our whole office force Union Trust Building. In addition generally attends the home games Armand has recently opened a part played here and roots for Notre time officein his home town of Misha- Dame every time and all the time. waka. Mr. John Schindler, 1909, is one of CLASS OF '20 AT THE BAR EX- the prominent attorneys of Misha- waka. He has just been elected vice- AMINATIONS president of the Saint Joseph County Their Letters and Reports Bar Association for 1921. Mr. George A. Schock, 1917, has OHIO just finished a term as deputy prose- cuting attorney. He was snowed un- BELCHER & CONNOR der in the fall election when he was Attorneys-at-Law the Democratic candidate for Prose- 52-56 Ruggery Bldg. cuting Attorney but he had the satis- Columbus, Ohio faction of knowing that he ran sever- Hon. F. J. Vurpillat al hundred votes ahead of the rest of Notre Dame, Ind. his ticket. Since January 1, 1921, My dear Judge: he has been associated with the firm As I told you some time ago in an of Deahl and Deahl. abrupt postal message, I am now an Mr. Samuel Schwartz, 1913, com- honest-to-goodness attorney "by rea- pleted two very successful terms as son of the authority in me vested by Prosecuting Attorney on January 1, the state." The Ohio Bar examina- 1921. He is now engaged in private tion was held December 7th and 8th, practice with offices in the J. M. S. and I came through in good style. Building. Paul Daugherty, whom you probably Dudley M. Shiveley, '91, is a prom- remember as being in the Law School inent member of the Bar in South in 1817-1918 and 1918-1919, was also NOTRE DAME LAW REPORTER present and received his certificate. first touchdown on the field of the "Walter Rielly Miller" was called law, attaining the goal of admission three times, but no response was to the Ohio Bar. forthcoming. 651/2 Public Square, The Exam. was no easy matter. Lima, 0., Jan. 17, 1921. Constitutional Law was an especially Hon. F. J. Vurpillatt, hard subject ,and I felt the need of Dean of the College of Law, all the training you tried so earnest- University of Notre Dame, ly "to imbibe us with" every day from Notre Dame, Indiana eleven to twelve a. m. last year. Dear Judge: I am now connected, however After a few months of absence slightly, with this reputable firm, from Notre Dame I find it necessary and am getting some real experience. to call upon you to duplicate the fav- Mr. Connor is a Fourth Degree K. of or which you tendered me some time C. and Mr. Belcher is a good old So- past. Will you please sign the with- cialist. It makes an invincible com- in enclosed certificate and return the bination. same to me immediately? Well, this is on the firm's time, so School days for myself have passed I must close and seek to overcome my into oblivion, I am afraid, but there unfamiliarity with the Code of Ohio. is a possibility that I can return to Remember me to the Faculty and Notre Dame for a degree. It will be students of the Law School. some time, however. Sincerely yours, I hope you are getting along real Harry P. Nester. well. I find that you have the cor- rect system of teaching and every P. S. I signed my first demurrer subject I had under you seems to be yesterday. Hope that unlike our the surer nowledge of law in my Moot Court experience, this one will mind. Judge altho I made several be sustained. (what I thought were convincing) speeches on The League of Nations Although the Reporter has receiv- nevertheless it didn't seem to do ed no word from Walter himself, the much good for Cox. "It is better to foregoing letter of Mr. Nestei re- have tried and failed, than not to ports that the name of Walter Riley have tried." Miller was calle.d for the reception Will stop now Hoping you will of the certificate of admission to the continue in your success for years to Ohio Bar. True to his habit of si- come and thanking you very much lence whenever he made a spectacu- for the interest which you took in me lar touchdown on the gridiron for while a student at Notre Dame, I am the Varsity football team, Walter is Respectfully, again silent upon the occasion of his Joseph H. Flick. NOTRE DAME LAW REPORTER MEXICO CALIFORNIA

PRESIDENCIA DE LA REPUBLICA Word comes to us that Leo J. Ward has taken the recent examina- del Secretario Par- Correspondencia tion for admission to the California ticular Bar. Although official announce- Mexico, 13 Jan. 1921. ment of the results of the examina- Mr. Francis Vurpillat, tion have not yet been made, we are Dean of the College of Law, informed that Leo is elated over his Notre Dame University, showing in the examination and con- Notre Dame, Indiana. fidently expects his certifificate of My very dear friend and esteemed admission. Prof.: Excuse me the unreasonable delay. I tried to write you many times, but never succeed. Causes? Reasons? I don't know. Really that laziness- I'm guilty of, was unwillfully out of my wishes. Now, with the most sincere pleas- ure--I write you sending my New Year's greetings for you and your INDIANA very respectable family. I was appointed by the President Edward C. McMahon, upon his re- of the Republic, Private Counsellor cent visit to the University to the for the Presidency, Chief of the Leg- Madison County Bar Association at islative Commission of the Executive Anderson, Indiana, and of his start and Chief of Official Information in in the practice of the law. the Capital, and, as such, I'm glad to be at your unconditional service. Moreover, I opened a private of- fice to do any kind of business in the city, and hope to do something good. nd you, dear Prof., how are you getting along? Send me your Law Magazine immediately and the MICHIGAN "Scholastic"-I'll pay all, as soon as I get 'em We are informed that Clifford Give my friends, specially to Prof. O'Sullivan, who passed ,the examina- Tiernan and Costello, all kind of re- tion for admission to the Bar in Illi- gards. Love for Notre Dame. And nois last June and whose letter ap- for you and your family my, heart as peared in the November issue of the your best friend and pupil. Reporter, has since successfully pass- Alfnso Anaya. ed the Bar examination in Michigan P. S.-Show this letter to the Very where he has located for the practice Rev. Burns. Shake hands with him of the law, in the offices of Walsh & in my name, and tell him I'm his as Walsh, 37-39 White Block, Port ever and forever. Huron. NOTRE DAME LAW REPORTER POINTS, PERSONAL, PROFESSIONAL, POLITICAL About the Alumni The Chicago Tribune of February with the State Board of Law Exam- 4th carried the following reference iners of Illinois, before whom he ex- to a talented LL. B man of Notre pects soon to take the examination Dame: for admission to the Illinois Bar. Joe writes: "I am contemplating taking "YOUNGEST AID OF MR. CROWE the bar examination in the near fu- TAKES UP NEW DUTIES" ture and hope that in so doing I shall be able to reflect upon you, your as- "William C. Henry, who commenc- sistants and the Institution the high- ed his duties in the office of State's est credit possible." Success, Joe, Attorney, Rober E. Crowe yesterday, Old Boy. is the youngest assistant state's at- During the holiday vacation, Wil- torney in the office. He comes from liam A. Miner, of the junior class, the Eighth ward. He was admitted took occasion to visit Francis J. Clo- to the bar in 1916, when 21 years old. hessy of the Class of '20 in his law of- Mr. Henry is a graduate of Notre fice in Waverly, New York. Miner Dame. He was in the military ser- speakst in glowing terms of Clohes- vice and was two years overseas. He sy's busy office, numerous clients, evi- is an appointee of P. H. Moynihan, dent prosperity and prospects. IHe newly named member of the State says that Francis J. is very popular Utilities Commission and the Repub- and is freely spoken of as a probable lican committeeman of the South Chi- nominee for a judicial office. cago district. He has been assigned Since the November Reporter, in to the South Chicago Court." Need- which we related the facts about less to say we are proud of Will Hen- Richard B. Swift, '20, and his start in ry's success and the credit he is re- the practice of law in Muscatine, flecting upon the University and the Iowa, in an office all his own, we Law School. learn that Richard has formed a part- A letter from Thos. V. Truder, Las nership with an old attorney of that Vegas, New Mexico, tells us that he city and hereafter will be known as has been appointed to the position of a member of the firm of Warner & assistant District Attorney, the dis- Swift, the senior member being At- trict comprising three counties. The torney E. M. Warner of the Musta- salary is one thousand dollars. "Tom" tine Bar. is also starting a night school under John T. Star, LL. B., '15 of Duluth, the auspices of the Vocational De- Minn., was recently married to Miss partment, and later he will endeavor Mary M. Taff of Des Moines, Iowa. to establish a K. of C. school. Good, Alumni congratulations. Thomas V. Continue. From Elgin, Illinois, comes the re- We are in receipt of a letter from port of the recent marriage of Wil- Joseph C. McGinnis, LL. B., 1920, liam E. Pierce LL B. '06, formerly who is now in the offices of Branigar city attorney of Elgin, to Miss Nell Bros. Co., 117 North Dearborn St., Agnes Wallace, of Elgin. The Re- Chicago. Joe requests certificate of porter extends best wishes on behalf work in the Law School for filing of the alumni. NOTRE DAME LAW REPORTER A letter has just reached us from ties and responsibilities will devolve Vincent Giblin, '19, who is attorney upon me, and I only hope and pray for the Florida East Coast Hotel Co., thdt with my limited capacity I may Jacksonville, Fla., with enclosure of be able to function satisfactorily.'" an interesting specimen of pleading. I-on. Albert J. Galen was attorney We are thankful for the enclosure, general of Montana for eight years, and may make it useful in the April and during the late war was Judge- number of the Reporter. Advocate-General of the A. E. F. in Llewellen James LL. B., '18, of Siberia. Kansas City, Mo., was a recent visitor The Tulsa Daily World of Tulsa, to the Hoynes' College of Law. He Oklahoma, in a leader editorial for related some experiences of his intro- the issue of January 18th, dwells duction into the practice of law. Mr. long and favorably on the possibili- James was making a business trip to ties of Judge Thomas D. Lyons, LL. Chicago and took occasion to call at B., '06, a gubernatorial candidate of the University, to look at the scenes promise for the campaign two years and the friends of college days. hence. 'Tom' was an exceptionally Francis King, one of the Illinois brilliant and popular student while members of the Class of '19, paid us at Notre Dame, saw service overseas a visit. He is trying to climb the in the past war, and has demonstrat- hights of the law. ed his ability in public affairs in so marked a way during the past few ALUMNI "GREAT AND NEAR years that little doubt exists as to his GREAT" capacity for the office which the press and statesmen of Oklahoma are con- From the Notre Dame Scholastic sidering for him." we glean the following references to "Thomas V. Craven, LL. B., '14, alumni of the Law School who are has been recently appointed First attaining prominence for themselves: Assistant District Attorney of his na- "Mr. Albert J. Galen (LL.B., '96), tive City, New Orleans, La. Tom Associate-Justice of the Supreme has made rapid progress in his chos- Court of Montana, in a letter ac- en profession since he left Notre knowledging the congratulations Dame. He was elected State Sena- sent by the President of the Univer- tor, was sent as delegate to the Con- sity on the occasion of the Judge's stitutional Convention, and in all his recent election, writes: 'Whatever I assigned duties so conducted himself have accomplished or may yet ac- as to be candidate for higher honors. complish in life is due chiefly to the A letter from Governor John M. interest which was taken in me dur- Parker accepting Tom's resignation ing the years I attended Notre Dame. as State Senator to take up his new If dear old Col. Hoynes is still alive, office had nothing but praise for the I wish yould convey to him my best work of this son of Notre Dame." wishes and advise him of my elec- tion. I should be very happy to have my boy at Notre Dame, and have ABOUT OURSELVES been at work in an endeavor to bring "The first quarterly issue of the it about. . . . After the first of the Notre Dame Law Reporter for the year many grave and important du- present year seems to indicate that NOTRE DAME LAW REPORTER this periodical, the publication of begun in this number. All in all, the which began last year, is destined to faculty and the students of law are be of great interest and value to the to be complimented on the quality of students and alumni of the Hynes the Reporter."-The Notre Dame College of Law. The current issue Scholastic. contains, in addition to the reports of cases of the last quarter of last LAW REPORTER SUBSCRIP- year and the Junior Moot Court, the TIONS Court of Appeals, and the Supreme Court of Notre Dame, an instructive Receipt of two dollars in payment article contributed by Colonel Wil- for the 1920-1921 subscription to the liam Hoynes, entitled "The Law and Law Reporter from each of the fol- 'Lawyers,' a number of letters from lowing named alumni, is hereby ac- men of the class of '20 and news items knowledged, towit: Earl F. Gruber, concerning other members of that Delbert D. Smith George J. Hanhau- class. An excellent idea is the alum- ser, Sherwood Dixon, Robert L. ni directory of the College of Law, Bracken and Frank P. Burk. NOTRE DAME LAW REPORTER DIRECTORY Of the Notre Dame Law Alumni In Forwarding Business to a Distant Point Remember Your Fellow Alumni Appearing in This List. ARIZONA Budd- Tuscon- Arthur B. Hughes James V. Robins, Campus- 107 Melrose St. Francis T. Walsh ARKANSAS Chicago- Little Rock- Francis O'Shaughenessy, Aristo Brizzqlara, 10 S. LaSalle St. 217 E. Sixth St. Hugh O'Neill, Conway Bldg. CALIFORNIA Charles W. Bachman, Los Angeles- 836 W. Fifty-fourth St. Terence Coegrove, John Jos. Cook, 1131 Title Insurance Bldg. 3171 Hudson Ave. John G. Mott, of James V. Cunningham, Mott & Cross, 1610 Conway Bldg. Citizens National Bank Bldg. Hugh J. Daly, Michael J. McGarry, 614 Woodland Park 530 Higgins Bldg. Leo J. Hassenauer, Leo B. Ward, 1916 Harris Trust Bldg. 4421 Willowbrook Ave. William C. Henry, San Francisco- 7451 Buell Ave. Alphonsus Heer, John S. Hummer, 1601 Sacramento St. 710-69 W. Washington St. Albert M. Kelly, COLORADO 2200 Fullerton Ave. Telluride- Daniel L. Madden, James Hanlon Conway Building Clement C. Mitchell, CONNECTICUT 69 W. Washington St. Bridgeport- William J. McGrath, Donato Lepore, 648 N. Carpenter St. 645 E. Washington Ave. Thos. J. McManus, Raymond W. Murray, 5719 Michigan Ave. 784 Noble Ave. John F. O'Connell, Hartford- 155 N. Clark St. James Curry and Thos. Curry, of Joseph P. O'Hara, Curry & Curry, 1060 The Rookery D'Esops Bldg., 647 Main St. Clifford O'Sullivan, 2500 E. Eeventy-fourth St. DISTRICT OF COLUMBIA Stephen F. Reardon, Washington- 405 Peoples Life Bldg. Timothy Ansberry, Francis X. Rydzewskl, 208-12 Southern Bldg. 8300 Burley Ave. Delbert D. Smith, GEORGIA 3966 Lake Park Ave. Atlanta- Fred L. Steers, Fay Wood, 1350 First National Bank Bldg. 225 E. Fourth St. Max St. George, ILLINOIS 108 S. LaSalle St. Decatur- Aurora- William P. Downey, Robert Milroy, 110 N. Water St. 113 Fox St. Dixon- Batavia- John Sherwood Dixon, Joseph Feldott East Ottowa- Belvidere- Harry F. Kelly, of Stephen F. McGonigle, Kelly & Kelly, 1011 Whitney St. Eastwood NOTRE DAME LAW REPORTER East St. Louis- Rock Island- Francis A. Andrews, Joseph B. McGlynn and Daniel McGlynn, of McGlynn& MeGlynn, 631 Fifth St. 120 N. Main St. Springfield- Thomas Masters Elgin- Albert C. Schliff, Thos. J. Hoban, 918 N. Sixth St. 16 Chicago St. Streator- Frank A. McCarthy, Elmer J. Mohan, 18-14 Elgin National Bank Bldg. Route No. 3 Lawrence MeNerney, Home Bank Bldg. Woodstock- Paul Donovan, William Perce, Opera House Bldg. Hoy Block Elmer Tobin, INDIANA 18 Chicago St. Anderson- Galesburg- Edward C. McMahon, Hon. Charles Craig 2004 Fletcher St. Hoopeston- Philip O'Neill, George E. Harbert, 511-13-15 Union Bldg. 827 E. Penn St. Crawfordsville- Howard- Justin J. Molony, Paul J. Donovan 706 Binford St. Kewanee-- Elkhart- Thomas J. Welch, James S. Dodge, Savings Bank Bldg. 229-31 Monger Bldg. Loda- Wilmer O'Brien, Daniel P. Keegan 325-6 Monger Bldg. Mendota- Robert Proctor, 201-5 Monger Bldg. John W. Dubbs, Washington St. East Chicago- Hugh E. Carroll Moline- Peter Meersman, Fort Wayne- 205 Reliance Bldg. William P. Breen, of Breen & Morris, Matthew McEniry, Peoples Trust Bldg. 408 Peoples Bank Bldg. Joseph Haley, Mt. Carmel- 202 Shoaff Bldg. Martin E. Walter, Cornelius B. Hayes, 119 W. Seventh St. New Hayes Hotel Ottowa- Thomas A. Hayes, Robert C. Carr, of 501 Bass Block Johnson & Carr, Frank M. Hogan, of Central Life Bldg. Colerick & Hogan, John E. Cassidy, Cor. Court and Berry Sts. 322 E. Superior St. Emmett A. Rohyans, James J. Conway, 2725 S. Calhoun St. 406-7 Moloney Bldg. Lawrence Stephan, Daniel C. Curtis, 1431 Hugh St. 519 Guthrie St. Frankfort- Thomas O'Meara, Earl F. Gruber, Route 27 Dinwidie Bldg. Thomas O'Meara, Gary- Bldg. 406-7 Moloney Henry B. Snyder and Patrick Maloney, Peoria- of Snyder & Maloney, George Sprenger, 738 Broadway Jefferson Bldg. Indianapolis- Polo- James E. Deery, Robert Bracken 316-324 Law Bldg. Robinson- Paul J. Smith, William E. Bradbury, 2024 Central Ave. Rochelle- Kokomo- Thomas F. Healy George F. Windoffer, First National Bank Bldg. 324 W. Jefferson St. NOTRE DAME LAW REPORTER Lafayette- John E. Peak, Francis J. Murphy, 224-26 Farmers Trust Bldg. 430 S. Third St. George W. Sands, Chas. E. and Vincent Vaughan, of 211-12 Convervative Life Bldg. Vaughan & Vaughan, Armand Schellinger, 710-711 Lafayette Bldg. 415-16 Union Trust Bldg. John W. Eggeman, George Schock 800 N. Fourth St. Samuel Schwartz, LaGrange- 706 J. M. S. Bldg. George D. McDonald, Edwin H. Sommerer, 114 Sixth Ave. 125 N. Francis St. Linton- Vincennes- Hugh E. Carroll Louis H. Hellert, Marion- American Bank Bldg. Fred B. Mahaffey, 622 S. Brownson St. Michigan City- IOWA Lorenzo Glascott, 223 W. Tenth St. Carroll- James Kenefick,. Joseph J. Meyers, Care T. M. J. and J. P. Kenefick 201 Masonic Temple Louis Finski Des Moines- Mishawaka- William J. Hynes, Ralph Feig, 504 Observatory Bldg. Mishawaka Trust Bldg. Dubuque-- John Schindler, Patrick J. Nelson, 215 S. Main St. 200-6 Security Bldg. Montgomery- Fort Dodge- Bernard Heffernan, Michael F. Healy, Route 4 605-10 Snell lldg. McCordsville-- Emmet P. Mulholland, and Clement B. Mulholland, Harry Kelly 300 Snell Bldg. William H. Kelly Ida Grove- South Bend- Matthew M. White Leo J. Cook, Iowa City- 410 Union Trust Bldg. John J. Ney G. A. Farabaugh and E. A. Fredrickson, Lenox- 504 J. M. S. Bldg. Eugene F. McEniry Samuel Feiwell, Mason City- 404 Citizens Bank Bldg. John D. Wilson Charles Hagerty, Muscatine- J. M. S. Bldg. Richard B. Swift, Vernon R. Helman, 504 Laurel Bldg. R. F. D. 5, Box 18 Newton- Patrick Houlihan, Ralph Bergman 203 Title Bldg. Preston- Arthur B. Hunter, 710 Portage Ave. Harry Godes Floyd Pellison, Waverly- 334-36 Farmers Trust Bldg. Humphrey L. Leslie, Joseph J. Kovacs, 204 S. State St. 109 N. College St. Arthur May, 811 J. M. S. Bldg. KANSAS Ernest Morris, Farmers Trust Bldg. Kansas City- Thomas D. Mott, Russell C. Hardy, 522 Farmers Trust Bldg. 812 N. Fifth St. William McInerny, Thomas V. Holland, 104 Summers Bldg. 1623 Central Ave. William B. O'Neill, Theodore J. Lyons, 406 Citizens Bank Bldg. 716 Pyle St. NOTRE DAME LAW REPORTER KENTUCKY M1ISSOURI Lebanon- Kansas City- Samuel J. Spaulding, Leonard M. Carroll, Box 585 3117 Flora Ave. Samuel T. Spaulding Drexel L. Duffy, 201 Linwood Blvd. Owensboro- Llewellyn D. James, Albert Oberst, 323 W. Armour Blvd. Masonic Bldg. John R. Meyers, LOUISIANA 310 Ridge Bldg. St. Louis- New Orleans- Patrick E. Burke, John L. Corley, 307 Camp Fullerton Bldg. Thomas V. Craven, MONTANA 305 Wells Fargo Bldg. Butte-- MASSACHUSETTS Timothy Downey, 21 Center St. Boston- Frank C. Walker, William P. Higgins, 825 W. Quartz St. 730 Tremont Bldg. John Ward, Springfield- 28 E. Quartz St. William J. Granfield Court Square, Theatre Bldg. Galen- Albert Galen, MICHIGAN Galen Block Malta- Detroit- William McGarry Harry Cullen, 1226-30 Dime Bank Bldg. NEBRASKA Daniel Foley, 1626 Penobscot Wahoo- Thomas A. McLaughlin, Frank Kirchman, 76 Belmont Ave. Box 337 Louis C. Wurzer and F. Henry Wurzer, NEVADA Wurzer & Wurzer, 910 Majestic Bldg. Elko- Flint- Edmund Carville, Vincent D. Ryan, Farrington Bldg. 910 Flint P. Smith Bldg. Reno-- Grand Rapids- Michael Diskin Joseph Riley, NEW JERSEY 236 Valley Ave., N. W. Jackson- Plainfield- James G. Henley, Andrew L. McDonough, 117 W. Pearl Babcock Bldg. Lansing- Rockaway- Maurice D. Kirby, Daniel P. Murphy, 310 Bauch Bldg. Wriebands Corporation MINNESOTA NEW MEXICO Crookston- Las Vegas- Edmund E. Sylvester, Thomas V. Truder, 124 State St. East Las Vegas Joseph H. Sylvester, NEW YORK 124 State St. Duluth- Albany- Thomas McKeon, T. Paul McGannon, 817 Torrey Bldg. Care Office Attorney-General Minneapolis- Buffalo-- Edward F. Barrett, Max G. Kazus, 1774 Gerard Ave., S. 459 Amherst St. St. Cloud- Geneva- George L. Murphy, Francis T. McGrain, 340 Seventh Ave., S. 9 State St. NOTRE DAME LAW REPORTER Rochester- Lima- Daniel J. Quinlan, Francis W. Durbin, 47 Exchange St. 607 Law Bldg. New York City- Maumee- Simeon Flanagan, Peter M. Ragan Care John J. Sullivan, Napoleon- 203 Broadway Peter McElligott, Edwin C. Donnelly, 428 W. Twenty-fourth St. 827 Haley Ave. Sandusky- Palmyra- Edmund Savord, Harold P. Burke Room 3, Sloan Block Waverly- Toledo- Francis J. Clohessy, Robert Dederich, 455 Fulton St. 2619 Scottwood Albert J. Kranz, NORTH DAKOTA 116 Nicholas Bldg. Minot- Edwin J. Lynch, George McGee 642 Nicholas Bldg. Park River- James T. McMahon, 2916 Collingwood Ave. Jacob V. Birder John B. McMahon, Rugby- 940 Spitzer Bldg. Thomas Toner, Arthur W. Ryan, Main St. 366 W. Central Ave.

OHIO OKLAHOMA Akron- Tulsa- Clarence May, Harold R. Delaney, 427 Second National Bank Bldg. 1412 S. Boulder St. Walter McCourt, Leo Holland 365 S. Main St. Patrick M. Malloy, Cincinnati- 1115 Denver St., P. 0. Box 1957 Ernest DuBrue, 835 Beecher Ave. OREGON Cleveland- Astoria- 1852 Ansell Road James L. Hope, Stanley B. Cofall, 312-15 Spexarth Bldg. Harry Miller, Independence- Grasselli Chemical Co. Francis W. Kirkland Walter Miller, Portland- 318 Leader News Bldg. Roscoe Hurst, James O'Hara, 1406 Yeon Bldg. 303 Park Bldg. Frank Lonergan, Hugh O'Neill, 816 Electric Bldg. 1934 Euclid Ave. Roger Sinnott, Columbus- Chamber of Commerce Donald Hamilton, Woodburn- 801-8 Huntington Bank Bldg. Stephen Scollard .Dayton- Thomas Ford, PENNSYLVANIA 127 Maple St. Joseph B. Murphy, Homestead- 618 Dayton Savings & Trust Bldg. John J. Brislan, John C. Shea, 400 McClure St. Schwind Bldg. Jeanette- Hamilton- John W. Ely, Michael O'Burns, 601 Germania Bank Bldg. 338 S. Second St. Johnstown- Lancaster- John C. Larkin, Michael A. Dougherty, 322 Wood Ave. 343 E. Walnut Philadelphia- Harry P. Nester, James P. Fogarty, 156 E. Chestnut St. 1607-08 Finance Bldg. NOTRE DAME LAW REPORTER Edward Gallagher, Joseph E. Dorais, 301 E. Lehigh Ave. Belvidere Apt., 58 George Hanhauser, Thomas C. Kelly, 401 Market St. 66 Eighth St. Pittsburgh- Chgauncey Yockey, Daniel C. Dillon, 514 Wells Bldg. 811 Frick Bldg. Edward Yockey, Rydal- Merchants & Farmers Bank Bldg. Edward Britt Neelsville- George A. Frantz SOUTH DAKOTA Plymouth- Chamberlain- Gilbert P. Hand, Nicholas Furlong 105 Milwaukee St. Edgemont- Racine- William A. Guilfoyle Grover F. Miller, Howard- 1116 College Ave. Theodore Feyder Sparta- John P. Doyle, TENNESSEE S. Memphis- 508 Water St. Superior- Charles McCauley, 383 N. Second St. Sherman May, 2016 Hammond St. TEXAS Beaumont- CUBA Harry P. Barry, Stark Bldg. Ceinfuegos- Sinton- Andrew Castille, Bryan Odem, Box 505 Sinton State Bank James F. Odem MIEXICO WASHINGTON Mexico City- Centralia- Alfonso Anaya, William Cameron, Qa, Apartado 52 304 W. Plum St. WISCONSIN PHILIPPINE ISLANDS Fennimore- Beinaton Union- Ralph J. Lathrop Bernardo Lopez George F. Frantz, of Manila- Clementson & Frantz, Gravenbrock Bldg. Jose Manuel Gonzales Green Bay- Turlac, Tarlac- John Diener, Jose Urquico Room 1, Parmentier Bldg. Misamia Province- Milwaukee-- Emilio Aranus Frank Burke, Sorsogen- 904 Pabst Bldg. Doroteo Amador