Notre Dame Law Reporter Vol.1 Issue 1 Notre Dame Law Reporter Association

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4-1920 Notre Dame Law Reporter Vol.1 Issue 1 Notre Dame Law Reporter Association

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This Book is brought to you for free and open access by the Law School Publications at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Reporter by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. VOLUME I NUMBER 1 NOTRE DAME LAW REPORTER

APRIL, 1920

CONTENTS Page FOREWORD Editor-in-Chief - - 1 SUPREME COURT OF NOTRE DAME, HUNTER V ELAM Opinion of the Court - 4 SCHULTZ V. PAUL Opinion of the Court - 10 BRIEF FOR APPELLANT, HUNTER M. Edward Doran - - 21 BRIEF FOR APPELLEE, ELAM Humphrey L. Leslie - 26 NOTRE DAME CIRCUIT COURT, RECORD OF CASES TRIED Lawrence B. Stephan 31 ADDRESSES TO THE JURY IN SCHULTZ V PAUL FOR PLAINTIFF, SCHULTZ . Edwin A. Fredrickson FOR DEFENDANT, PAUL Arthur B. Hunter - - 37 JUNIOR MOOT COURT, CASES DISPOSED OF ...... 44 ONLY OUR OWN OPINION, THE DEFENSE OF RASTUS BROWN FrancisJ. Vurpillat - 51 CASE AND COMMENT John P. Tiernan - - - 54 LAW SCHOOL NEWS, NOTRE DAME'S LEGAL RENAISSANCE DelnarJ. Edrnundson 57 STUDENT ACTIVITIES Adeni J. Cusick ---- 59 ALUMNI DEPARTMENT. SALUTATION An Alumnus- Editor-in-Chief - - 62

STATE OF INDIANA UNIVERSITY OF NOTRE DAMEI ss Be it remembered: That the Notre Dame Law Reporter will be published at Notre Dame, Indiana, quarterly during the scholastic year, for $2.00 per year or 50c per copy; that --, . ~application has been made to enter the Reporter as second class matter at the P. 0. of Notre Dame, Indiana; and that application for copyright of the publication is pending. NOTRE DAME LAW REPORTER ASSOCIATION Notre Dame, Indiana.

FOREWORD

For a time so long "that the memory of man runneth not to the contrary" it hath been a custom to print a foreword upon the launching of every new publication, legal as well as literary. We are but rendering obedience to this time-honored custom, defined by Blackstone as law, when we present this foreword upon the launching of our good legal ship, which we hereby christen the Notre Dame Law Reporter. In view of the existing law school publications, reviews and journals of the leading law schools of the country, all of which are similar in character, scope and purpose, it might be supposed that our publication is to be patterned upon these. But such is not the fact. These law reviews and journals, in their number, excellence and thoroughness, already completely supply the need and demand for such publications. The Reporter would be merely supplying cumulative evidence of this class of legal publications, and the court will not grant us a trial for this purpose. Some minor features of the generally adopted form of law school publication will be incorporated, but in its important major part the Notre Dame Law Reporter will constitute a new and novel departure in law school journalism. We trust, however, that it may not be subject to demurrer on account of such departure. The Reporter, which is to be published quarterly during the scholastic year, will be primarily a student publication-of and for and by the law student body. Its second feature, however, will be no less important than the first-that devoted to the interests of the law alumni. The purpose of these two departments in the Reporter is to bring together in fact as they are already united in spirit the law school alumni and the law school students-to bring into active co-operation the law school triumphant and the law school militant. The student department will consist of four sections. The court section will contain the decisions of the Supreme Court of Notre Dame based on records, assignments of error, and briefs filed therein. Selected briefs also will be published. The complete record of the Notre Dame Circuit Court will appear-the pleadings, issues tendered, trial pro- cedure, verdict, motions, judgment and record for appeal. There will also be reported the proceedings of the Junior Moot Court and Criminal Practice Court. Under the title "Only Our Own Opinion" will appear the special law papers and legal comments of the editorial staff of the Reporter. The "Case and Comment" section will present a synopsis of the recent decisions of the appellate courts and terse briefs on the mort important and practical propositions of the law. Law School News will have one division relating to the Law School itself,-its faculty, courses, courts, library, projects and bulletins; and another pertaining to the law students themselves,-their activities, social and personal. The department of the Reporter devoted to the Alumni of the Law School will have three features: a Contributing Sections in which will be published the specially prepared legal briefs and law treatises contributed by the law graduates of Notre Dame; a News Section for re- porting the activities of the law Alumni, professional and personal; and an Alumni Directory calculated to bring all Notre Dame lawyers into business and professional relations for their mutual benefit. We are not unmindful of the character and importance of our pro- ject, which must be weighed and found worthy or wanting as the repre- sentative of the School of Law of the University. We do not, however, shrink from the responsibility, nor will we shirk the continuing task that the launching of the Reporter entails. We are conscious of the infirmities that our first issue of necessity must display, but we ask kindly consideration for our lofty purpose, and seek refuge from just criticism in the time-worn but once delectable reminder that everything improves with age. With an abiding faith in the earnest co-operation of the students of the College of Law of today and tomorrow and the proud and loyal alumni of the old school, we begin ,the career of the Notre Dame Law Reporter by fondly dedicating it to those same Students and Alumni. EDITOR-IN-CHIEF. NOTRE DAME LAW REPORTER

Published Quarterly During the Scholastic Year by the Notre Dame Law Reporter Association

Subscription Price $2.00 Per Year 50c Per Number

FACULTY BOARD Francis J. Vurpillat, Editor-in-Chief Gallitzin A. Farabaugh, John P. Tiernan, James P. Costello, Associate Editors

STUDENT STAFF Lawrence B. Stephen of Indiana Harry P. Nester of Ohio Humphrey L. Leslie of Iowa Arthur B. Hunter of Indiana Leo B. Hassenauer of Illinois Edwin A. Fredrickson of Indiana Francis J. Clohessy of New York Leo B. Ward of California Michael Edward Doran of Indiana Charles Mulholland of Iowa George L. Murphy of Minnesota Donnelly C. Langston of Nebraska Alden J. Cusick of Wisconsin Delmar J. Edmundson of Ohio Harry Denny of Connecticut Patrick E. Granfield of Massachusetts Charles P. J. Mooney of Tennessee Clarence Manion of Kentucky Charles B. Foley of Oregon Eugene W. Oberst of Texas James L. O'Toole of Pennsylvania NOTRE DAME LAW REPORTER

SUPREME COURT OF NOTRE DAME. HUNTER v. ELAM ral verdict for the defendant. The (No. 1) jury also returned answers to inter- Sale-Contract to Sell-Potential Exis- rogatories. tence-Conditions-Sale of AMare for Breed- ing-Construction of Contract-Interroga- Appellant filed a motion for judg- tories-Instructions. ment on the answers to the interroga- 1. A contract by which S agrees to the service of his mare by a stallion of H's tories, ron obstante veredicto, which selection and, if a colt is foaled, to keep, was overruled. A motion for a new care for and make it fit for H's purpose in driving the road, when H is to get the colt trial was also overruled, and judg- and settle with S, is a contract for the sale of a thing not having a potential existence ment on the general verdict was ren- and, therefore, is not a present sale, but dered from which this appeal is like the sale of future goods constitutes only a contract to sell, which does not pass prosecuted. title in the colt. The errors assigned for the rever- 2. Answers by the jury to interrogatories submitted to the effect that S re- sal of the judgment are the overrul- fused an offer of $200 for a colt to be foaled ing of the motion for judgment on the from his mare, but did accept the proposition that H should pay the service fee for answers to the interrogatories not- the subsequent breeding of S's mare and, withstanding the general verdict, as part of the consideration, should pay S $40 whether a colt was foaled or not, the overruling the motion for a new trial terms of the contract being in all other and that the verdict is contrary to the respects as stated above, do not change the subjejct matter from the sale of the colt to law and evidence. the sale of the services of S's mare, so as to vest title to the colt in H on account of his The plaintiff and the defendant en- special Property in S's mare. tered into separate agreements with 3. Where S while in possession of the colt under the terms of his contract with one 'Perry Smith, by the terms of T1, sells and delivers the colt to the de- which each, under his respective fendant, it is not error to instruct the jury that if the defendant Purchases the colt in agreement, claims to be the owner zood faith, for a valuation consideration and entitled to the possession of the and without notice of H's existing contract with S or his claim to the colt, defendant colt described in complaint. It is un- would acquire title free from H's claim disputed that at the time of the con- under his contract with S. H's only remedy in such case is an action for damages tract between Smith and the appellee, against S for breach of contract. Elam, Smith was in actual posses- 4. Legal effect must be given to entire contract and not merely to a part. sion of the colt and represented to Action in replevin by William Hun- Elam that he owned the colt and ter against John Elam. From a would sell it. Elam thereupon made judgment for defendant, plaintiff ap- an offer to Smith of two hundred dol- peals. Affirmed. lars for the purchase of the colt Md. Edward Doran and Edward C. which Smith unconditionally accept- McMahon for appellant. ed, thereby effecting a valid contract Humphrey L. Leslie and Jerome P. of sale. This contract, so formed, Martin for appellee. was immediately executed by the par- VURPILLAT, J. Appellant bro- ties by the performance of the con- ught action against the appellee in current conditions of sale, Elam, the the Notre Dame Circuit Court to se- appellee, paying to Smith the two cure possession of a certain colt. The hundred dollars and Smith delivering case was submitted for trial upon the to Elam the colt. complaint and answer in general de- These facts operate in law to con- nial. A jury trial resulted in a gene- stitute a sale, or what is sometimes NOTRE DAME LAW REPORTER called "an executed contract of sale," the jury to determine from the evi- which transfers to the vendee or pur- dence. But the construction of the chaser the title to the thing sold. 2 contract, its legal effect and the Bl. Comm. 446; 2 Kent. Comm. (13th rights and obligations of the parties Ed.) 468; Benj. on Sales (7th Am. thereunder are all matters of law for Ed.) I; Sales Act, I. It is also undis- the court to determine. Anson on puted that the appellee was an inno- Contracts 314; 24 Am. & Eng. Encyc. cent purchaser for value and without of Law page 1047. notice of appellant's right or claim to The following instruction to the the colt. jury given by the trial court of its It is contended by the appellant. own motion is important at this point however, that Smith did not own the on both the law and the facts of the colt at the time of its sale and de- case. We give the instruction in full, livery to the appellee, Elam. That being Court's Instruction No. 8: Smith had in fact sold and conveyed "The court instructs you that a thing his ownership of the colt to appellant having no actual or potential exist- by a prior contract of sale with him. ence at the time of the formation of a If the seller does not own the thing contract of sale cannot be the subject sold then he cannot convey title to it, matter of such sale. If you should for it is a familiar principle of law find that the plaintiff, William Hun- and equity that one cannot convey a ter, and Perry Smith entered into an better title than he himself has. Tif- agreement and that the terms of such fany on Sales 27; Anson on Contracts agreement were that Smith was to 292. And it can make no difference subjeted his certain mare to be bred in such case that the buyer is an in- to a certain stallion of Hunter's se- nocent purchaser. Sales Act, Sec. 23; lection; that Hunter was to pay the Andrews v. Cox 42 Ark. 473-48 Am. service fee; that, if a colt should be Rep. 68; Bates v. Smith 83 Mich. 347- foaled from such service it should be 47 N. W. 249; Kitchell v. Vanader 1 kept, cared for and made fit for plain- Blackf. (Ind.) 356. If Smith had no tiff's use, that of a physician for driv- title then appellee could acquire none ing the road, when the plaintiff by his purchase. should call for the colt, and, upon But in this case the burden is upon settlement with Smith under their appellant to establish his own owner- contract, take the colt; and if you ship and right of possession of the further find that plaintiff's claim of colt at the time of bringing his action, ownership and right of possession to and he must recover, if at all, upon said colt is based solely upon such a the strength of his own title and not contract so found by you from the upon the weakness of that of the ap- evidence, then, the court instructs pellee. Davis v. Warfield et al 38 you, such colt had neither an actual Ind. 461; Ferguson v. Day, Sheriff 6 nor a potential existence at the time Ind. App. 138. This appeal, thereof the said contract, and no owner- fore, must be determined upon the ship or right of possession to the colt validity and legal effect of appellant's in question vested in the plaintiff by contract with Perry Smith. What such contract; and this is so in legal terms and conditions the parties effect even if you find that part of the agreed upon are matters of fact for consideration agreed by Hunter to bc NOTRE DAME LAW REPORTER

paid to Smith and actually paid was vices of the mare and therefore to for the use of Smith's mare whether pass title in the colt to him. the colt was foaled or not." In support of this contention ap- We consider this a correct state- pellant cites the case of McCarthy v. ment of the law. Tiffany on Sales 45; Blevins 5 Yerg. (Tenn.) 195-26 Am. Benj. on Sales (4th Ed.) Sec. 182, Dec. 262. Although the opinion of note; 24 Am. & Eng. Encyc. of Law the court in this case does contain a 1042; Bates vs. Smith 83 Mich. 347- dictum to the effect that the sile of 47 N. W. 249; Battle Creek Valley the services of a more for breeding Bank v. First Natl. Bank 62 Neb. purposes conveys title to the colt 825-88 N. W. 145; Schoobert v. De- foaled, this dictum was unnecessary Motte (Cal.) 44 Pac. 487; Townsend to the decision of the case, and the Brick Co. v. Allen 62 Kan. 311-62 decision itself is generally regarded Pac. 1008-56 L. R. A. 124; Purcell's as sustaining the rule that a thing Admr. v. Mather 35 Ala. 570-76 Am. not having a potential existence can- Dec. 307; Low v. Pew 108 Mass. 247- not be the subject-matter of a sale. 11 Am. Rep. 357; Rochester Distill- The Supreme Court of California, in ing Co. (N. Y.) 37 N. E. 632; 9 Bush Schoobert v. DeMotte, supra, holding (Ky.) 318-15 Am. Rep. 711. Speak- that the mortgagee of sheep is not ing of potential existence the Su- entitled to a lien on their increase, be. preme Court of Michigan says: "Po- gotten after the execution of the tential existence means merely that a mortgage, has this to say of the Mc. thing may be at some time; actual Carthy v. Blevins case: "The rule existence that it now is. In the legal (that the owner of the dam is the sense things are said to hhve a po- owner of the offspring) has also been tential existence when. they are the stated in many other cases in whicb natural product or expected increase the question was neither involved nor of something already belonging to the decided," citing, among others, Mc- vendor. When one possesses a thing Carthy v. Blevins, supra. The decis- from which a certain product, in the ion in McCarthy v. Blevins is that a very nature of things, may be ex- cold sold during the period of gesta- pected, such product, we think, has a tion passes title to the purchaser be- potential existence." Dickey v. Wal- cause the colt has a potential exist- do 97 Mich. 255-56 N. W. 608; Tif- ence at the time of the sale. Tiffany fany on Sales 44. so regards the case, for he cites it thus: "McCarthy v. Blevins 26 Am. The jury by answers to interroga- Dec. 262 (during gestation)". Tif- tories found specially the facts that fany on Sales 48. The same construc. Smith refused an offer of appellant tion is given the decision by the Su- of $200 for a colt to be bred from preme Court of Maine in the follow- Smith's mare, and then accepted $40 ing language: "It is well settled that for the service of the mare. Appel- the owner of personal property hav- lant contends that these facts entitle ing a potential existence may sell it. him to a judgment for the colt, not- (Authorities cited). And within this withstanding the general verdict; principle, the owner of a mare may, that these facts establish the subject during gestation, sell her future off- matter of the contract to be the ser- spring, which will vest in the vendee NOTRE DAME LAW REPORTER when parturition takes place. Mc- of the consideration to be paid by ap- Carthy v. Blevins, 5 Yerg. 195." pellant to Smith, and actually paid, Sawyer v. Gerrish, (Me.) 35 Am. was for the use of Smith's mare Rep. 323. whether the colt was foaled or not. In the case of animals the common- To sustain appellant's motion for law maxim partus sequitur ventram judgment on the answers to the in- applies, and generally the owner of terrogatories, only those which serve the dam is the owner of the off- his purpose, and give no considera- spring, before birth and after. 2 B! tion or legal effect to the other facts Comm. 390; 1 Parsons on Contracts and elements of the contract as found 523; 2 Cyc. of Law & Procd. 309. by the jury's general verdict would Thus the owner of a dam in foal may be to violate the first rule of the con- sell the colt and reserve the mare, or struction of contracts, namely: "An sell the dam and reserve the colt. agreement ought to receive that con- Andrews v. Cox. 42 Ark. 473-48 Am. struction which will best effectuate Rep. 473. the intention of the parties to be col- That one may sell the services of lected from the whole of the agree- his mare for breeding purposes and ment." Anson on Contracts 330. The thereby convey title to the colt is cor- contract between the appellant and rect as an abstract proposition of law. Smith must be construed as a whole. Maise v. Bowman, 19 S. W. 589; Hull The terms and conditions as to the v. Hull, 40 Am. Rep. 165. In.such a breeding and foaling of the colt from sale the subject-matter is not the colt Smith's mare and also the conditions but the special property in the mare, that Smith was to keep, care for, and and the purchaser, because he is the make the colt fit for appellant's use, owner of the dam during the time of and that appellant was to call for it the contract of sale, is the owner of and settle with Smith, all relate to the offspring. the same subject-matter, were agreed The defect in appellant's conten- upon at the same time and as part of tion is that the facts found specially one transaction and must be con- by the jury are not the only facts in strued as forming but one contract. the case and do not furnish all the 17 Am. & Eng. Encyc. of Law 4; Ger- elements of appellant's contract with man F. Ins. Co. v. Roost, 55 Ohio St. Smith. It is quite reasonable to in- 581-60 Am. St. Rep. 711; Field v. fer from thie jury's general verdict. Leiter, 118 Ill. 17-6 N. E. 877; Ber- which includes all the facts, the ex- ridge v. Glassey, 112 Pa. St. 442-56 istence of the other facts and ele- Am. Rep. 322. ments of contract stated in the trial The facts found specially by the court's instruction, No. 8, supra. In- jury are in complete accord with their deed the trial court seems to have had general verdict. Construed with the in mind the very facts found special- general verdict, as they must be, both ly by the jury, for the jury are in- establish a contract by which Smith structed that if they find the elements agreed to the service of his mare by of the contract as stated in the in- a stallion of appellant's selection and, struction, the appellant would have if a colt should be foaled, to keep, no title or right of possession to the care for and make it fit for appellant's colt,. even if the jury find that part purpose in driving the road, when NOTRE DAME LAW REPORTER

appellant is to get the colt and settle appellant to get the colt and settle with Smith; the appellant, however, with Smith. Tiffany on Sales 126; obligating himself to pay the servic4 Beni. on Sales 263, Sec. 318; Strous fee and, as part consideration, to pay v. Ross, 25 Ind. 300; Restad v. En- Smith $40 for the service of the mare gemoen, 65 Minn. 148-67 N. W. 1146. whether a colt is foaled or not. In the case of Rourke v. Bullens, 8 There was, therefore, no error in Gray (Mass.) 549, plaintiff purchas- overruling appellant's motion for ed a hog of defendant and left it with judgment on the answers to the in- defendant upon an agreement that de- terrogatories. It is only where such fendant should fatten it until plain. answers are so inconsistent with the tiff called for it when he would settle general verdict that they cannot be for it according to the market price; harmonized, and the facts specially it was held that the contract was found operate under the law to en- purely executory and did not pass title the party in whose favor they property to the plaintiff. See Benj. are returned, to the judgment, that on Sales, page 301, Sec. 349. Marble such a motion may be sustained. See v. Moore, 102 Mass. 443; Restad v. the Civil Codes of all the States. Engemoen, supra. Thornton's Ann. Civil Code, Vol. I, In support of his motion for a new pg. 959; Work's Practice & PL., Vol. I, trial, appellant complains of courtrs pg. 560; Woolen's Trial Procd., Vol. instruction number eleven, given to 2, pg. 985. Every reasonable pre- the jury .by the court of its own mo- sumption must be indulged in favor tion. The instruction is as follows: of the general verdict. 22 Am. & If you find from the evidence that de- Eng. Encyc. of Pld. & Prs. 959, citing fendant, Elam, and said Smith con- cases from many states. tracted for the sale of the colt in One may contract to sell the off- question; that Elam was an innocent spring of his animals, though they purchaser of said colt, paying there- have neither actual nor potential ex- for to said Smith the sum of two istence. Hull v. Hull, 48 Conn. 250- hundred dollars; that said Smith was 40 Am. Rep. 165. This, however, then and there in the open, notorious does not constitute a sale but merely and exclusive possession of the colt, a contract to sell, and, though it be claiming ownership, and so repre- in the form of a present sale, it con- senting himself to Elam at the time; veys no present title to the purchaser, that Elam inquired of said Smith as Tiffany on Sales 47. Furthermore, to his ownership of the colt and the even if appellant's contract were for sale thereof; and you further find that a colt having a potential existence, it Elam, the defendant, at the time of must be construed as a mere execu- purchase of the colt and payment tory contract of sale-contract to sell therefor had no notice whatever of -not passing title, for the reason any executory contract between Hun- that there are conditions to be per- ter and Smith for said colt, or of any formed; there was something to be claim by Hunter of any right or in. done to put the article sold in a de- terest in said colt; and you further liverable state. Smith was to keep find from the evidence that defend- the colt, raise it and make it fit for ant, Elam, had no knowledge what- appellant's use, and not till then was ever that should put a reasonably pru- NOTRE DAME LAW REPORTER

dent man upon inquiry, then, I in- with power to sell and convey to an struct you, the defendant, Elam, be- innocent purchaser. came the owner of the colt in suit, re- Appellant's attack upon instruction gardless of any rights and obligations eleven, supra, is based on the erron- existing under said contract between eous assumption, that it instructs the plaintiff and Smith relative to the jury that title may be founded upon colt, and your verdict should be for the doctrine of innocent purchaser, the defendant." This instruction cor without any regard to the law that a rectly states the elements necessary vendor must have title to convey, and to constitute one a bona fide pur- the following cases which he cites chaser. Pomeroy's Equity, Sec. 745; support this assumption: Bullard v. Eaton's Equity, pg. 158. The instruc- Burgett, 40 N. Y. 314; Andrews v. tion also correctly applies the doc- Cox, 48 Am. Rep. 68; Faucett v. Os- trine of bona fide purchaser to thr born, 83 Am. Dec. 278; Kitchell v facts of the case. It tells the jury Vanader, 1 Blackf. (Ind.) 356. that if the appellee, Elam, contracted All these cases support the rule with Smith for the sale of the colt and stated in the early part of this opin- paid the purchase price therefor (a ion that if the seller has no title he contract of sale transferring title) can convey none; not even to an in- and was a bona fide purchaser as de- nocent purchaser. In appellant's fined in the instruction, having "no case, however, the jury found that notice whatever of any executory con Smith had title to the colt which he tract between Hunter and Smith for could convey to Elam, the appellee, said colt" (a mere contract to sell. because appellant had not acquired not passing title to Hunter but leav- title from Smith by his prior con- ing title in Smith), then, as between tract. The instruction complained of Hunter and appellee, Elam, appellee correctly stated the law of the case would take title free from the claims and there was no error in overruling of appellant Hunter under his con- appellant's motion for a new trial. tract with Smith. Even if the instruction were er- Furthermore, this instruction must roneous, it is harmless. It tends only be construed with the other instruc- to weaken the appellee's title, while tions of the court in the case. The the appellant must recover upon the court, in the two preceding instruc strength of his own title. Since the tions, defined for the jury, executed appellant has established no title in and executory contracts of sale, an' himself, he cannot recover whether instructed them that if they found appellee has title or not, and whether that Smith had actually or construc- the instruction is erroneous or not tively transferred title in the colt to It is a well established rule of appel- appellant, before appellee's contract late practice that on appeal from a of purchase with Smith, then they judgment in replevin the court will should find for appellant; but, if they not reverse the judgment for imma- found that iitle to the colt was not terial and harmless errors. Branch intended to be transferred to appel v. Wiseman, 51 Ind. 1; Williams v. lant, and that his contract with Hoehle, 95 Wis. 510-70 N. W. 556; Smith was only a contract to sell, 13 Am. & Eng. Encyc. of P1. & Pr. then Smith retained title to the colt 613. In Branch v. Wiseman, supra. NOTRE DAME LAW REPORTER

law at what point the course of the master's the court says: "The appellant also employment ends and the purely personal complains of certain instruction f responsibility of the servant begins. 6. Where both master and servant are at given and refused by the court. Up the time jointly engaged in an altercation on a casual reading, we do not per- with the master's landlord to prevent the removal of a fence in dispute between cieve that they are erroneous, but them, and the servant commits an assault from the evidence, which is all beforc and battery, the master will be held liable, notwithstanding he gave instruction to the us, it is very clear that the appellan. servant at the time not to strike a blow. had no right to recover, and there 7. It is error of law for whict a new trial should be granted to refuse a properly fore very plain that the instruction, tendered instruction that the master is not not injured him." relieved from liability for the servant's had assault and battery merely because at the Finding no error in the record, the time, he instructed the servant not to strike the trial court is hereby the injured party. judgment of 8. On the foregoing facts, a verdict affirmed. which exonorates the master from liability while finding against the servant, is contrary to law as to the master and the judg- SCHULTZ v. PAUL ment as to him should be reversed. 9. A judgment for $5000 is excessive (No. 2) which is rendered against a youth of eigh- of Tortious Assault and Battery-Complaint teen years who is the unemancipated son of Intent to In- a tenant farmer of small means and who, -Sufficiency-Allegation one blow iure-When Necessary-Servant's Tort- upon severe provocation strikes Verdict for Master Contrary to Law- thereby permanently ix juring and rendering Business useless the right ar , but not otherwise Course of Employment-Master's such in- -Master Present, Instructs Servant-Not incapacitating the injured party, Relieved-Refusing Instruction - Error- jured party at the time being a bookkeeper, Verdict Excessive. thirty-eight years of age and earning $150 a month. 1. A complaint or declaration which in tort for $5000 damages charges a torious assault and battery Action against defendants who were at the time for assault and battery brought by tenants on plaintiff's farm, but also alleges Hale Paul and by way of inducement that plaintiff went Fred Schultz against upon'the farm to remove a fence, does not William Paul. From a judgment for make plaintiff a trespasser and lay his Halb action in his own violation of the law, so as $5000 against the defendant, to make it insufficient as stating a cause of Paul, said defendant appeals. Af- action. 2. To make such complaint or declara- firmed on condition that plaintiff en- tion insufficient as a cause of action it must ter remittitur for $2000, otherwise anpear, not only that plaintiff has violated the law, but that such violation was the reversed. uroximate or contributing cause of the in- Judgment against plaintiff in favor i iry comniained of, or that such injury was the result of some unlawful act in which of defendant, William Paul from both plaintiff and defendant participated at which plaintiff appears. Reversed. the time. 3. Where it appears from the pleading Arthur B. Hunter and Harry Rich- that the assault and battery complained of wine for Ha!2 Paul and William Paul. is unlawful, it is not necessary to allege Edwin A. Fredrickson and George tiat defendant intended to commit the act or inflict the injury. It is only where it C. Murphv for Fred Schultz. affirmatively appears from the pleading that VURPILLAT, J. Plaintiff, Fred the assault and battery was justifiable, or his farm to, re- was not in itself unlawful, that an allega- Schultz, went upon tion of intention to do the injury is essen- move a fenace and, while so doing, was tial to the sufficiency of the pleading. head by defendant, 4. Frr instructions tendered, held suffi- struck upon the cient apd insufficient, see opinion. Hale Paul, in the presence of William 5. Where a servant, while acting in the The complaint is eourse of his employment and with a view Paul, co-defendant. to his master's interest, engages in an alter- in two paragraphs; the first alleging cation with another, and as part of the Paul as same transaction commits assault and bat- assault and battery by Hale tery. the master will be held liable, the the servant of the co-defendant, Wil- court refusing to determine as a matter of NOTRE DAME LAW REPORTER liam Paul; the amended third para- moving a fence. These are all the graph alleging the same assault and allegations of the complaint that battery by Hale Paul and charging might tend affirmatively to establish the co-defendant with connivance in plaintiff's character as a trespasser its commission. Separate and several at the time of the alleged assault and demurrers were overruled and pro- battery. per exceptions taken. Defendants These facts fall far short of show- filed answer in three paragraphs: ing that plaintiff was a trespasser, or first, general denial; second, son as- that, as landlord, he unlawfully in- sault demesne; third, defence of pro. vaded the possession of the tenant, perty. Plaintiff filed reply of tra- the defendant, William Paul. For verse de injuria to each of the second ought that appears in the complaint, and third paragraphs of answer. plaintiff may have gone upon the Trial by jury resulted in a general farm at the time complained of, and verdict for plaintiff in the sum of for the purpose of removing a fence, $5000 against the defendant, Hale in right of his contract of lease with Paul, from which said defendant ap- the tenant defendant, or with the per- peals; and against plaintiff in favor mission of the tenant, or as a licensee. of defendant, William Paul, from But assuming that facts are alleged which plaintiff appeals. in complaint which establish illegal The appellant, Hale Paul, attacks conduct of plaintiff himself, it must the sufficiency of each paragraph of appear that such illegal conduct was complaint upon the same general the proximate or contributing causc grounds. First, it is said that facts of the injury complained of. Hall v. are alleged which constitute plaintiff Corcoran, 107 Mass. 251-9 Am. Rep a trespasser and therefore make ne- 30; Koepkae v. Peper, 155 Iowa 687- cessary the allegation that the means 136 N. W. 902-41 L. R. A. (N. S.) used to eject him were unlawful or 773; Gilmore v. Fuller, 198 Ill. 130- unreasonable. Appellant cites 28 65 N. E. 84-60 L. R. A. (N. S.) 326. Am. & Eng. Encyc. of Law (2nd Ed.) In Hall v. Corcoran, supra, it was 574 with a reference to its citation of said by the Supreme Court of Massa- cases. The only authoritative point chusetts: "Whether the form of ac- made here is that a tenant in posses- tion is in contract or tort, the test in sion may maintain trespass against each case is whether, when all the the landlord who unlawfully invades facts are disclosed, the action appears the possession. Both paragraphs of to be founded in a violation of law complain allege that plaintiff was the in which the plaintiff has taken part." owner of the farm and the appellant Thus, where the plaintiff and defen- and his co-defendant the occupants dant participated in a charivari thereof. The first paragraph also al- party made illegal by the criminal leges a lease of the farm by plaintiff code of Illinois, and plaintiff was shot to the defendant, William Paul, and and seriously injured by reason of that, at the time complained of he the alleged carelessness of the defen- went upon the farm. The second dant, it was held as a matter of law paragraph also alleges that at the that plaintiff had no right of action t me complained of, plaintiff went up- Gilmore v. Fuiller, supra. See also on the farm for the purpose of re- Higgens v. Minaghan, 78 Wis. 602- NOTRE DAME LAW REPORTER

47 N. W. 941-11 L. R. A. 138-23 Am. they do not allege that in the com- St. Rep. 428. Where the parties are mission of the assault and battery, in pari delicto, that is, in equal fault, the appellant intended to cause the neither is in a position to ask relief injury. This may be considered with of the court from a situation caused the third cause assigned for the in- by his own wrong doing, whether it sufficiency of the paragraphs, name- be his illegal contract or his tortious ly: that, since an assault and battery act. Anson on Contracts (4th Ed.) is a crime, all the elements constitut- 262; Chapin on Torts 237! Hall v. ing assault and battery must be al- Corcoran, supra. leged in the complaint. But where the illegal conduct of Precisely because assault and bat- the plaintiff, whether participated in tery is an unlawful act, unless the by defendant or not, is not itself the facts specially plead show other- proximate or contributing cause of wise, it is not necessary to allege that the injury inflicted upon plaintiff by the consequent injuries inflicted by defendant, the plaintiff may recover, the defendant were intentional. And notwithstanding such illegal conduct. precisely because this is not a crimi- In Welch v. Wesson, 6 Gray (Mass.) nal prosecution for assault and bat- 505, sustaining a judgment for plain- tery, but is a civil action for the tort, tiff for the willful running down and or private wrong, it is not necessary breaking of his sleigh by the defen- to allege and prove the crime. In 2 dant, though plaintiff and defendant Am. & Eng. Encyc. of Law 953 it is were at the time racing illegally for said: "To constitute an indictable a purse, it is said by the court: "the assault and battery there must be an mutual misconduct of the parties in intent, express or implied, to do in- one particular cannot exenfpt the de- jury to another. But one may be lia- fendant from his obligation to re- ble in a civil action for assault and spond for the injurious consequences battery where there was an entire ab- of his own illegal misbehavior in an- sence of intent to do any injury, the other." "The distinction," says the ground of liability being that the as- same court in another case, ,'is be- sault was committed in pursuance of tween that which directly or proxi- an unlawful act or was the result of mately produces or helps to produce a negligence." In the following cases result as an efficient cause, and that judgments for damages were sustain- which is a necessary condition or at- ed on the theory of assault and bat- tendant circumstance." Newcomb v. tery where there existed no intention Boston Protective Dept. 146 Mass. to do the injury: a man for colliding 596 (604)-16 N. E. 555-4 Am. St. with another while riding a bicycle Rep. 354. on the sidewalk in violation of a city The paragraphs of complaint do ordinance, Mercer v. Corbin, 117 Ind. not show any illegal conduct of plain- 450-3 L. R. A. 221; a lad for kicking tiff which might be the proximate or another on the shin during school, contributing cause of the injury com- Vosbury v. Putney, 80 Wis. 523-50 plained of and they are therefore not, N. W. 403-14 L. R. A. 227; a sewing for that reason, insufficient. machine company for the act of its The second ground of attack upon agent who, in reclaiming a machine, the paragraphs of complaint is that tipped it and caused the purchaser NOTRE DAME LAW REPORTER to be thrown and injured, Singer if perpetrated, the act would be cri- Sewing Mach. Co. v. Phipps, 49 Ind. minal. The cases of Gilmore v. Ful- App. 116; a woman for an assault ler, supra, Vosberg v. Putney, supra, and battery committed by her hus- and Raefeldt v. Koenig, (Wis.) 140 band as her agent upon another wo N. W. 56, all cited by appellant, sup- man, Shane v. Lyon (Mass.) 51 N. E. port the rule that, where the facts 976. The case of Scott v. Shepherd, specially plead show that the act com- familiarly known as the "Squib plained of is not in itself unlawful, Case," is an illustration of the civil then there must appear the allegation liability for assault and battery that the act was done with an inten- where no criminal intent exists. In tion to inflict the injury. In appel- the case of Kirkwood v. Miller. lant's case, however, no facts are (Tenn.) 5 Speed. 455-73 Am. Dec. plead in either paragraph of com- 134, for the killing of a slave in fear plaint giving an innocent or justifi- of a general revolt, the court said: able character to the assault and bat- "That the same evidence which would tery, which is in itself unlawful. excuse the defendant from criminal The case of Gilmore v. Fuller, responsibility would relieve them supra, seems to lend support to ap- from civil liability, is not true as a pellant's contention that intention to general rule," and further, "that cri- do the injury must be alleged because minal purpose and intent, express or assault and battery which is a crime implied, required to constitute crime, is charged. In this case the court is not in all cases essential to an ac- held that because there was no allegation for injuries to person or pro- tion or proof that the injury inflicted perty." by the defendant was intentional, the The cases cited by counsel for ap- trial court erred in refusing to in- pellant, instead of supporting his con- struct the jury to find for defendant tention, rather sustain the pleading on the first and second counts of the and the verdict in the case. In Kline declaration. Although assault and v. Kline, 158 Ind. 602, sustaining a battery is clearly charged in these judgment for damages founded on an counts, the court says "an assault is assault by threats of murder and ar- charged" and then quotes Greenleaf's son, the court says: "Even if we statement of the rule of law applic- were to grant for the sake of the ar- able to mere criminal assault, as fol- gument, that there was not an assault lows: "The intention to do harm is within the meaning of the criminal of the essence of an assault." 2 statute, yet there was such an as- Greenl. Ev. (16th Ed.) Sec. 83. The sault as clearly subjected the offender court here makes no distinction be- to a civil action at common-law." tween assault and assault and bat- The case of Newall v. Witcher, 53 Vt. tery, and also fails to distinguish be- 589-38 Am. Rep. 703, does not hold tween civil and criminal actions. that an assault must be criminal to These distinctions are vital. sustain a judgment in the civil ac- In the case of Vosberg v. Putney, tion. It merely condemns the con- supra, in which precisely the same duct of the defendant as unlawful in issue was presented, the Supreme any event; and, as tending to estab- Court of Wisconsin says: "The jury lish its unlawful character, says that, having found that the defendant, in NOTRE DAME LAW REPORTER

touching the plaintiff, did not intend relevant, is not essential." (Our to do him any harm, the defendant italics). maintains that the plaintiff has nc Both Greenleaf on Ev. and Hilliard cause of action, and that defendant'f on Torts; which are cited as authority motion for judgment on the special for the holding in the case of Gilmore verdict should have been granted. In v. Fuller, show the misapplication of support of this proposition counsel the rule of intent in mere assault to quote from 2 Greenl. Ev. (16th Ed.) an action for injuries by unlawful Sec. 83, the rule that "The intention assault and battery. Neither does to do harm is of the essence of an as- the case of Paxton v. Boyer, 67 Ill. sault." "Such is the rule no doubt," 132-16 Am. Rep. 615, support the says the court, "in -actions or prose- holding. In that case the plaintiff cutions for mere assaults. But this could not recover because the assault is an action to recover damages for charged was committed by the dean alleged assault and battery" (Our fendant in the exercise of his lawful italics). Holding that this rule does right of self-defence, and in such not apply in the case (and for the case, only wanton infliction of in- same reason it does not apply in the juries by the defendant will entitle other case) the Wisconsin Court's de- plaintiff to recover. And so in the cision is contrary to that in the case case of Gilmore v. Fuller itself, the of Gilmore v. Fuller. plaintiff could not recover; not be- In reversing a conviction for as- cause the rule of simple assault ap- sault and battery with intent to kill plies, that "intention to do the harm is of the essence of an assault," but for refusing to instruct the jury that, because both plaintiff and defendant to convict, they must find that the were at the time of the injury com- shooting was intentional, the Su- plained of, engaged in an unlawful preme Court of Alabama, in the cast act. of McGee v. State, 58 So. 1008, says.: To make the case of Gilmore v. Ful- "In civil as distinguished from crimi- ler, supra, conform in principle and nal actions, an intent to injure is not precedent to the great weight of au- essential to the liability of the per- thority, we think the decision must sons committing the assault and bat. be restricted to a holding that where tery." Citing Carlton v. Henry, both plaintiff and defendant partici- supra, the Alabama Court continues: pate in the commission of the same "In fact we think that, at times, illegal act, plaintiff cannot recover courts have fallen into error in ap- for injuries inflicted upon him by the plying or attempting to apply, the defendant "unless the defendant act- rules applicable only to civil actions ed wantonly." That this is perhaps for assault and battery, or trespass what the court intended to hold is in- to the person, to the facts in criminal dicated by a quotation of the court prosecutions. In a criminal prosecu- from Beach on Contributory Negli- tion for an assault and battery, ex- gence (3rd Ed.) Sec. 47, in support cept as hereinafter shown, the intent of the other branch of the case. The to injure is one of the essential ele- quotation is as follows: "Where the ments of the offence; in civil action plaintiff is obliged to lay the founda- the intent, while pertinent and tion of his action in his own violation NOTRE DAME LAW REPORTER

of the law he cannot recover. And was fully covered by court's instruc- where the illegal act also contributes tion No. 6. to produce the injury of which he Instructions numbered seven and complains, he has no action unless the ten, tendered by the plaintiff ancd defendant acted wantonly." given by the court over appellant's The right of personal security is objection, are attacked as erroneous. one of the absolbte rights of the in- Considering these two instructions to- dividual, and a violation of such right gether as they should be considered is always actionable at common-law because they relate to the single sub- whether the act be criminal or not. ject-matter of compensatory damag- 2 Bl. Comm. 119; Cooley on Torts 29. es, and then viewing them in the light "Responsibility for the result of a of all the instructibns given to the wrongdoer's act or omission does not jury, they may fairly be construed as depend on whether he intended to instructing the jury that, if they find produce it." Chapin on Torts 63.- for the plaintiff, they should award Nor is it necessary to the sufficiency him such compensatory damages, the of the declaration or complaint for elements of which are correctly stated tort to allege all the elements of the in number ten, as in their sound judg- crime which such tort might also cbn- ment, under all the circumstances in stitute. Benson v. Bain, 99 Ind. 156, the case, theyV deemed sufficient to citing 2 Work's Pr. 645; 2 Chitty P1. compensate plaintiff for the loss sus- (13th Am. Ed.) 852; Bullen & Leak tained, not exceeding the sum de- Prec. 411;-Oliver Prec. 719; 1 Estee manded. We do not think these in- P1. 560. See also Schlosser v. Griffith, structions are open to the objection 125 Ind. 431. that they are calculated to direct the There was no error in the trial jury either as to the elements or the court's ruling on the separate ana amount of damages to be awarded. several demurrer to the first and Having found no error of law in amended third paragraphs of com- the record that might have effected plaint. The same reasons and au- the substantial rights of the appel- thorities which sustain the complaint lant or unduly influenced the jury, support the verdict on the law as to we are not disposed to disturb the the case of the appellant Hale Paul. verdict and its affirmance by the trial The answers to the interrogatories court, except to sustain appellant's are in accord with the general verdict contention assigned as a cause for and the court therefore committed no new trial, that the damages assessed error in overruling appellant's mo- by the jury are excessive. Three con- tion for judgment thereon. See Hun- siderations have prompted us to ren- ter v. Elam reported in this issue of der this decision reducing the award the Reporter. of damages. First the youth and sta- As cause for a new trial appellant tion in life of the appellant and his alleges error of the court in refusing ability to pay the judgment. This his instruction No. 1. This instruc- feature of the case may not have been tion was correctly iefused, because it considered by the jury and trial court. assumes that the appellant was law- The record, however, discloses it and fully acting in self-defence. Further- it is a very proper circumstance to be more the matter of this instruction considered as a measure of damage. NOTRE DAM9 LAW REPORTER

Row v. Moses, (S. C.) 67 Am. Dec. bility, as courts may judicially know, 560 and note. Appellant is a youth of for defendant to become mightier eighteen years, the unemancipated with the pen in his left hand than he son of a tenant farmer having little ever was with his right on the pen. of the world's goods. A five thousand Plaintiff's age of thirty-eight years dollar judgment imposed upon him in and his earning power of $150 per his situation in life would be inflict month are considered. We cannot in ing a grievous and permanent injury justice countenance a judg:ment in much in excess of any damage sus- this case for more than three thou- tained by the plaintiff, even if we con- sand dollars. For cases on reducing cede that plaintiff's injury is perma- verdicts see Rowe v. Moses, supra; nent. The second consideration is Elliott v..Sawyer, (Me.) 77 Atl. 782; that the assault and battery vas in- Gunderson v. Northwestern Elevator duced by the severe provocation of Co., (Minn.) b9 N. W. 694; Mark v. plaintiff. It is a mitigating circum- Fink, 147 N. W. 279. As to duty of stance, at least, that plaintiff's action injured party to undergo operation, was arbitrary in going upon the ten- see Stewart Dry Goods Co. v. ]3oone, ant's farm, taking the law into his (Ky.) 202 S. W. 489; Loban v. Wa- own hands, and persistently and, in bash Ry. Co., (Mo.) 141 S. W. 440; spite of repeated warnings given him Birmingham Ry. L. & P. Co. v. An- by both defendants, trying to destroy derson, (Ala.) 50 So. 1021. the fence that kept the tenant's cows The plaintiff, appealing from the in the clover and from the corn. This judgment against him in favor of the provocation was sufficiently exasper- defendant, William Paul, assigns as ating to coerce the appellant to strike error for reversal of such judgment, the one blow with a near-by stick the overruling of his motion for a new that felled the plaintiff, but, however trial and that the verdict is contrary provoking in fact, is not sufficient to law. Plaintiff's first paragraph of provocation in law to bar plaintiff's complaint against the defendant Wil- right of recovery for the assault and liam Paul is upon the theory of mas- battery committed. The third con- ter and servant, and his amended sideration is the character of plain- third paragraph, upon the theory of tiff's injury as a permanent one. Up- connivance, counseling and urging on no other element could such an as. his co-defendant, Hale Paul, to com- sessment of damages be made a mit the assault and battery alleged. would necessitate exhausting plain- On the connivance theory of lia- tiff's demand for five thousand dol- bility, Judge Cooley makes the fol- lars. The evidence discloses that lowing comprehensive statement of plaintiff's left arm and hand are the law: "All persons who command, unimpaired and his mind unaf- instigate, promote, encourage, advise, fected. He may be permanently countenance, co-operate, aid or abet injured but he is not wholly in- the commission of a trespass by an- capacitated. Waiving aside the pos- other, or who approve of it after it is sibility of recovery through an opera- done for their benefit, are co-tres- tion which he may not legally be com- passers with the person committing pelled to undergo to effect a cure, it the trespass, and are each liable as is quite within the range of possi- principals to the same extent and in NOTRE DAME LAW REPORTER the same manner as if they had per- to pull staples and loosen the wire, formed the wrongful act themselves." and then Hale Paul swung the club Cooley on Torts 133; Chapin on Torts over the top of the fence and struck 230; Chitty P1. 208; Greenl. Ev. Sec. plaintiff on the left side of the head 41. felling him to the fround. The jury Hale Paul is the minor son of the in their answers to interrogatories co-defendant, William Paul, and at found that plaintiff used no threaten- the time of committing the assault ing language and assumed no menac- and battery on plaintiff, and for a ing attitude toward Hale Paul as tes- long time prior thereto, was residing tified by defendants. The foregoing with his father and working for him facts were virtually admitted by de- in the operation of the farm. The fendants in testimony. farm was owned by the plaintiff and Do the facts as here stated estab- was occupied by William Paul az lish the liability of the defendant tenant. The defendants had con- William Paul, upon either or both structed a temporary wire fence be- theories of complaint. The cases are tween a clover field and a corn field numerous and interesting upon both so as to enable him to pasture their these propositions. To dwell at cows on the clover and keep them length on many of them would be to from the corn. Plaintiff, on the oc- make the opinion of great strength, casion complained of, went to the We must, however, in view of the im- farm to remove this fence, taking portance of the issues involved in the with him tools for the purpose. On case, state in substance, the operative arriving at the farm he entered the facts and the decisions of a few ana- clover field from the highway and be- logous cases. gan immediately to remove the wire In Willi v. Lucas, (Mo.) 19 S. W. from the fence. Both defendants 726, defendant Lucas, a liveryman were at the time engaged in plowing was hired by Willi (plaintiff's hus- corn in the adjoining field. The son, band) to overtake plaintiff on the Hale Paul, frst to observe plaintiff at road. Three times defendant drove the fence, left his plow and rushed to his team ahead of plaintiff, the last plaintiff, shouting as he ran, "Shultz, time so that she could not pass. When damn you, let that fence alone." He asked to permit plaintiff of pass, de- repeated these words upon arriving fendant said, "Shut your damn at the fence and added, "or I'll make mouth. I'm driving this team ac- you." At this point the father, Wil- cording to orders." Then, while de- liam Paul, leaving his plow also came fendant sat in his buggy, to use the hurriedly to the place and also shout- language of the court, "in such a posi- ed, "Schultz, you let that fence tion that he could not have seen plain- alone." Plaintiff utterly ignored the tiff without looking out from the side defendants and their warnings, ana of the buggy, the back curtain being thereupon the son, Hale Paul, picked down and the hind end of the buggy up a heavy stick and once more said being towards (plaintiff)," Willi got to plaintiff, "Damn you, Schultz, let out of defendant's buggy, went back that fence alone or I'll make you." to his wife's buggy and shot her. A Then William Paul told the son not nonsuit of the wife's action against to strike plaintiff. Plaintiff continued Lucas was reversed. NOTRE DAME LAW REPORTER

In Hilmes vs. Stroebel, 59 Wis. 74- if the trial court had entered a non- 17 N. W. 539, for assault and battery suit. The added relation of mastei the case against the co-defendants of and servant strengthens this theory Stroebel was nonsuited. These de- of liability. fendants accompanied Stroebel and That the relation of master and prevented the proprietor of the place servant existed between the defend from interfering with Stroebel's as- ants at 'the time of the assault and. sault upon plaintiff. They also made battery committed by defendant Hale certain remarks indicating hostility Paul, is admitted by the defendant. to plaintiff, but in no manner took themselves as witnesses on the trial. part in the assault and battery itself. To this relation applies the doctrine Case reversed for error of the trial of respondeat -superior. Chapin on court in entering nonsuit. Torts 211. Since the judgment as to In Reed v. Peck et al., (Mo.) 63 S. Hale Paul, the servant, is sustained, W. 734, it appears that a street in and since the relation of master and front of plaintiff's house was graded servant is established by the record without" an ordinance authorizing it. admissions of the defendants them. Action for trespass against those who selves, there remains to be determin. did the work and the mayor and the ed only whether the assault and bat- street committeemen. On appeal tery' of the servant was committed ir from judgment for plaintiff the court the course of the servant's employ- said, "The grading of the street was, ment and with a view of the master's undoubtedly, done without lawful au- interest. If so, then the defendant, thority; was a trespass. There wa. William Paul, as master, is liable and no ordinance providing for such grad- the verdict exhonorating him is con- ing. And, while the work was ac- trary to law. tually performed by the street com- There are many cases holding thc missioner, there was, it seems, evi- master liable for the assault and bat- dence tending to prove that Mayor tery of the servant, although the mas Guitar and Street Committeemen, ter was not present, in no way au- Peck and Watson, were present from thorized or justified or participated time to time superintending and en- in it, and although he expressly in- couraging the work. The judgment structed his servant not to commit it was affirmed. Palmeri v. Manhatten Ry. Co. 133 N. In Moir v. Hopkins, 16 Ill. 313-63 Y. 261-30 N. E. 1001-16 L. R. A. 136- Am. Dec. 312 the defendant was held 28 Am. Rep. 632; McClung v. Dear- liable where his agent directed a ser- born, 134 Pa. St. 396-19 Atl. 698-8 vant to "go and get" Hopkin's team, L. R. A. 204-19 Am. St. Rep. 708; meaning with Hopkin's consent, and Singer Sewing Mach. Co. v. Phipps the servant got the team without 49 Ind. App. 116. See note to Richie seeking such consent, and in its use v. Waller, 27 L. R. A. 161. killed one of the horses. That the servant, Hale Paul, was There is sufficient evidence in this acting in the course of his employ- record to have sustained a verdict ment in the commission of the assault against the defendant, William Paul. and battery upon the praintiff is on the connivance theory, and to have clearly decided by the Kentucky Court justified a reversal of the judgment of Appeals, in the case of New Ellers- NOTRE DAME LAW REPORTER lie Fishing Club v. Stewart, 93 S. W. v. Singer Sewing Machine Co., 190 598-9 L. R. A. (N. S.) 475. The is- Mass. 489-77 N. E. 480-6 L. R. A. 567, sues of the two cases are the same and also by the case of Borden v. Proctor was employed by the fishing Felch, 109 Mass. 154. In the first club to prevent persons from fishing case Sexton, as general agent for the in their ponds who had not the privi- company, together with one Andrews lege to do so. Thinking that plain- whom he had hired to recover a sew- tiff had not such privilege, Proctor ing machine, went to the home of engaged in an altercation with him plaintiff who had contracted for the to prevent his fishing and in so do- purchase of the machine. Seeing that ing cut him with a knife. In deciding trouble was about to ensue, Sexton the case the court said: "It is dif- said to Andrews: "Mr. Andrews, you ficult to define with accuracy the need not proceed any further. I will point at which the master's liability send and replevin the sewing ma- for the acts of his servant ends; but chine." Despite this admonition or under the facts of this case, Proctor, instruction to Andrews, he commit when he attempted to prevent appel- ted the assault and battery upon the lee from fishing, and when the alter- plaintiff for which the court affirmed cation between them commenced, was a judgment against the Sewing Ma clearly acting within the scope of his chine Co. The court says: "It is employment, and the assault and bat settled that the defendant would bc tery complained of was merely a con liable for force used by Andrews a tinuation of the first act. There was a means of retaking the machine no appreciable lenth of time be- even if he had been told not to us- tween them. Everything that was force. (Cases cited). The defend- done happened on the premises in the ant's liability does not depend upor control of the fishing club, and where his having been authorized expressly Proctor had authority as its agent or impliedly to use force, but upon Where the agent begins a quarrel his having used force as a means of while acting within the scope of his doing what he was employed to dc agency, and immediately follows it (Citing cases)." The case of Borden up by a violent assault, the master v. Felch,supra, is also in point. In will be liable, as the law under the that case as in this there was an al- circumstances will not undertake to tercation between two adverse claim- say when, in the course of the assault ants to right in land. The servant of he ceased to act as agent and acted one, despite the instruction given him upon his own responsibility." An- by the master at the time, committed other case in point here is Dickson v. assault and battery upon the plaintiff Waldron, 135 Ind. 524-34 N. E. 506- for which the master was held liable. 35 N. E. 1-24 L. R. A. 483-41 Am C. J. Watkins, in the case of Duggins St. Rep. 440. v. Watson, 15 Ark. 127, says: "The That the master, William Paul, is only safe rule of law is that the mas- liable for his servant's assault and ter is liable for the tortious act of his battery upon the plaintiff, despite his servant engaged in his employment, instruction given to the servant at though done willfully, without orders the time, not to strike the plaintiff, is or even against orders. See note 35 clearly decided by the case of Grant Am. Dec. 192. NOTRE DAME LAW REPORTER

The facts in this case, upon the ad- N. W. 92; Lewis v. Schultz, 98 Iowa mission of the defendants themselves 341-67 N. W. 266. The refusal to are stronger than the operative facts give the instruction was also such er- of the cases cited, and there is no es- ror as entitled plaintiff to a new cape from the conclusion that the ver- trial. dict in favor of the master is clearly For the reason that the verdict in contrary to law. The verdict is con- favor of the defendant, William Paul, trary to law also for the reason that is contrary to law, and for the reason the trial court refused to give to the that the trial court erred in overrul- jury plaintiff's instruction No. 6. By ing plaintiff's motion for a new trial this instruction the jury were in- the judgment against plaintiff in fa- structed that the master, William vor of William Paul must be reversed Paul, would be liable for the act of and such judgment is hereby reversed the servant, -Hale Paul, in this case with instruction to sustain plaintiff's "even though William Paul expressly motion for a new trial as to defend. ordered Hale Paul not to commit the ant, William Paul. assault." This instruction correctly If the plaintiff will file a remittitut stated the law, as we have found the for the sum of two thousand dollars law to be, was applicable to the facts within ten days after the filing of th- of the case, was not covered in any certified opinion of this court in the of the court's instructions, its giving lower court, this judgment against or failure to give would directly af- the appellant, Hale Paul, is hereby affect the verdict, and therefore, its re- firmed; otherwise, it is reversed with jection by the trial court was such instruction to grant a new trial to error as makes the verdict contrary Hale Paul. to law. Robinson v. Chandler, 56 The cause is hereby remanded for Ind. 575; Cline v. Lindsey, 110 Ind. further proceeding not inconsistent 337; Healey v. Johnson (Iowa), 103 with this opinion. NOTRE DAME LAW REPORTER BIRIEF OF M. EDWARD DORAN IN CASE OF HUNTER v. ELAM. In the Supreme Court of Notre Dame refused, and that he now sues for possession. William Hunter, Appellant, The defendant demurred to the VS. complaint. John Elam, Appellee. The defendant filed an answer in two paragraphs, the first in general Appealed from the Notre Dame denial, and the second alleging that Circuit Court. he was a 'bona fide' purchaser. The plaintiff demurred to the sec- Brief for the Appellant. ond paragraph of the answer. Trial was had by jury and both By Michael Edward Doran. parties submitted interrogatories. The plaintiff made a motion for NATURE OF ACTION. judgment 'non obstante venedicto,' based on the replies given by the jury A certain Perry Smith was the to his interrogatories. ownerof a fine Hambletonian mare The plaintiff filed his motion for a which William Hunter, the Appellant new trial based on the following here, hired for the purpose of breed- grounds: (1) The verdict is contrary ing. The mare was left with Smith, to law. (2) The court erred in giving it being agreed that if a foal should of its own motion, over plaintiff's result Smith would keep and train it objection, instruction number eleven. for the appellant. A colt was foaled (3) The special finding of facts as and Smith kept and trained it pur- revealed by the answer to the plain- suant to the agreement. About the tiff's interrogatories, are inconsistent time the colt was ready for the with the verdict. appellant's purpose, Smith sold it to the appellee, John Elam. When the HOW THE ISSUES WERE DE- appellant learned of the sale he went CIDED AND WHAT THE to Elam and demanded that the colt JUDGMENT WAS. be given to him. Elam refused; whereupon Hunter instituted this ac- The jury which tried the cause re- tion in replevin. The jury returned a turned the following verdict: the ap- verdict for the appellee and State of Indiana, pellant now prosecutes his appeal to County of St. Joseph, SS: this court. In the Notre Dame Circuit Court. September term, 1919. WHAT THE ISSUES WERE. William Hunter The complaint was in one para- V. Verdict. graph alleging that the plaintiff was John Elam. the owner and lawfully entitled to We, the jury, find for the defend- the immediate possession of the colt ant, and against the plaintiff. in question; that the plaintiff made a Emmett A. Rohyans, demand on the defendant which was Foreman. NOTRE DAME LAW REPORTER

The defendant's demurrer to the attend the latter's wife; after leaving complaint was overruled, to which the house he noticed a mare in a ruling defendant excepted. The plain- nearby field, and he told Smith he tiff's demurrer to the defendant's would give him one hundred dollars second paragraph of answer was sus- for a colt from her; Smith replied tained, and the defendant excepted to that he did not think the mare would the ruling. The motion of the plain- produce a colt, so he would not take tiff for a judgment 'non obstante the chance of paying for breeding, veredicto' based on the jury's replies because prior attempts had failed; he to plaintiff's interrogatories was then offered to give Smith forty dol- overruled, to which ruling exception lars for the services of the mare for was taken by the plaintiff. The court breeding and then pay the stallion overruled the plaintiff's motion for a fee if Smith would breed the mare to new trial and the plaintiff excepted to a horse of his selection; Smih ac- the ruling. cepted this offer. Hunter told Smith The court then entered the follow- he would want him to keep the colt if ing judgment: "The jury having re- it were foaled and train it until it turned a finding for the defendant, it was ready for his services; when he is therefor ordered, adjudged, and would call for it and pay what these decreed by the court that the plain- duties were reasonably worth; Smith tiff take nothing by this action and agreed to do this; he then went to the that the defendant recover of and home of Mr. Walsh and arranged for from the plaintiff his cost laid out, the use of his stallion in breeding it expended, and taxed at forty-three to Smith's mare; he paid Mr. Walsh dollars and ten cents ($43.10), all of a fee of ten dollars; he saw the colt which is finally and fully ordered, shortly after it was foaled and at adjudged, and decreed by the court." frequent intervals thereafter; when he learned of the alleged sale of the ERRORS RELIED ON FOR colt by Smith to Elam, he went to REVERSAL. Elam and told him he was the owner of the colt and demanded that it be (1) The verdict is contrary to the given to him; 'Elam refused, so he law. instituted this action. (2) The verdict is contrary to the See bill of exceptions No. 1; record replies given by the jury to the ap- page -. pellant's interrogatories. (3) The court erred in overruling Perry Smith was the next witness the appellant's motion for a new trial. called for the plaintiff. He testified to the agreement between Hunter and CONDENSED STATEMENT OF himself in the same terms as was dis- THE EVIDENCE. closed by Dr. Hunter's testimony. He said, that he accepted the forty dol- William Hunter, the plaintiff, who lars for the services of the mare be- was called as the first witness in his cause he was certain to get this own behalf, testified hs follows that: amount, whereas if he took one hun- he was a South Bend physician and dred dollars for a colt, a colt might that on September 5th, 1916, he called not be foaled and he would lose by at the home of one Perry Smith to the transaction; that he bred the NOTRE DAME LAW REPORTER mare to Walsh's stallion; that he did called at his home and demanded the not pay the fee to Walsh; that the colt and he refused this demand. colt was foaled on August 10th, 1917; See bill of exceptions, No. 1, Record that he ktp, fed, and cared for the page -. colt until July 5th, 1919; that the colt at that time was trained and fit for The next witness called by the de- driving put'poses; that on July 5th, fendant was Clifford O'Sullivan He 1919, the defendant, Elam offered testified that :-he was a lawyer prac- him two hundred dollars for the colt; ticing in South Bend; he was with that he accepted the offer; that he John Elam when he purchased the received the two hundred dollars colt in question from Perry Snith; from Elam in cash and that Elam that Smith said he was the owner of then took the colt away with him; the colt; Elam gave Smith two hun- that he had never seen Elam before dred dollars for the colt and Elam July 5th, 1919; that he told Elam then took it home with him; that he that he was the owner of the colt. had never seen Perry Smith before See bill of exceptions, No. 1, this day. Page -. See bill of exceptions, No. 1, Record Page -. The next witness for the plaintiff, Mr. Walsh, testified that he was a POINTS AND AUTHORITIES. farmer; that he was the owner of a stallion; that h ehad been paid ten The appellant claims that the con- dollars by William Hunter for the tract between him and Perry Smith services of his stallion in breeding was an agreement for the sale of the Smith's mare; the mare was bred on services of the mare for breeding, September 7th, 1916. and thus title to the colt has always See bill of exceptions, Record reposed in the appellant. page -. McCarthy v. Blevns, 26 Am. Dec. 262. called for the de- Maize v. Bowman, 19 S. W. 589. The first witness The possession of the colt by Perry He testified fendant was John Elam. Smith coupled with his claim of that he was an insurance broker:- ownership did not give him such a the farm of Perry he had passed right in the colt as to enable him to on July 5th, 1919 ;-he saw a Smith pass a good title to a 'bona fide' pur- Smith told colt in the pasture-Perry chaser for value. the owner of it ;-he him that he was Ballard v. Burgett, 40 N. Y. 314. offered Smith two hundred dollars Andrews v. Cox, 48 Am. lRep. 68. for the cold ;.-Smith accepted, and he Fawcett v. Osborn, 83 Am. Dec. 278 (Elam) thereupon paid him two hun- Kitchell v. Vanadar, 1 Black. 356 dred dollars in cash; then took the (Ind.) colt to his home in South Bnd; prior to July 5th, 1919, he had never seen ARGUMENT. Perry Smith which is the subject of this action; he did not investigate, The real gTounds upon which this but relied solely on Smith's averment appeal is based are points of law of ownership and the fact that Smith which are as follows: (1) Was the had possession; that William Hunter contract between Smith and Hunter NOTRE DAME LAW IEPORTER

an agreement for the sale of a thing the rule applicable to the sale of a having neither an actual nor a poten- thing having neither an actual nor a tial existence? (2) Was the court's potential existence, but it was a con- instruction number eleven, given tract for the use of the mare for a over the appellant's objection, a cor- certain definite purpose. Can any rect statement of the law? Let us more logical interpretation be Placed consider these questions and by re- upon this agreement? If you hold viewing the authorities determine that the second offer of William Hun- whether justice has been rendered to ter was for a colt, then you are hold- the appellant in the court below. ing the fact that Perry Smith refused The appellant herein maintains, one hundred dollars for a colt but ac- and the evidence of Perry Smith and cepted an offer of forty dollars for it; William Hunter shows that the ap- this would be absurd. pellant gave forty dollars ($40.00) for the use of the mare for breeding. In sustaining these contentions we Review for a moment the appellant's wish to consider the case of Mc- interrogatories submitted in the Carthy v. Blevins, 26 AM. Dec. 262. court below and see if the answers A party named Rogers bred his given to them by the jury do not sub- horse to a certain Butler's mare with stantiate our contention. the understanding that, if a colt should result, it should belong t6 one (Question) Did William Hunter Pleasant Blevins, an infant. A colt offer Perry Smith one hundred dol- was foaled and the defendant below lars for a colt from his mare? McCarthy, purchased it and the mare (Answer) Yes. Emmet A. Roy- from Butler. Blevins, by his next hans, Foreman. friend, brought this action against (Question) If William Hunter did McCarthy to recover the colt. The make this offer was it not accepted by defendant insisted that no title vest- Perry Smith? ed by the contract between Butler and (Answer) No. Emmett A. Roy- Rogers, no colt being in existence; hans, Foreman. that no right can be communicated to (Question) Did William Hunter property of which the bargainor has offer Perry Smith forty dollars for no title in possession, actually or po- the services of his mare for breeding? tentially. The court in the course of (Answer) Yes. Emmett A. Roy- its decision said: "In horse growing hans, Foreman. districts, mares of distinguisehd re- (Question) If William Hunter did putation are constantly let in effect make this offer was it accepted? to breed from, the owner of the mare (Answer) Yes. Emmet A. Roy- agreeing to take so much for the hans, Foreman. chance of a colt for one season, he re- Now just what did this contract of taining in his possession the mare be- forty dollars for the services of the cause too valuable to be trusted with another. That the foal in such cases, mare for breeding mean? Simply when dropped, is the property of the this, that William Hunter was legally hirer of the mare has never been the bound to pay Perry Smith the sum subject of doubt. Had Blevins taken of forty dollars regardless of whether the mare into his possession, paying a foal resulted from the breeding or so much per annum for her use not; but if a foal should result then it generally, then he would have been authorized to use her as a brood mare, would be the property of William and to retain the foal. The feeding Hunter. This agreement was not for and attention by the owner could the sale of the colt and thus not under make no difference; it was generally NOTRE DAME LAW REPORTER a hiring. On this foot the plaintiff is paying therefor to the said Smith the entitled to recover. Rogers hired his sum of two hundred dollars; that mare for Blevins for the season of Smith was then and there in the gestation, for her use in breeding; he was to use her in this particular way; open, notorious exclusive possession still Blevins is entitled to the increase of the colt, claiming ownership and as if she had been hired for the year so representing himself to Elam at generally, with the use unrestricted." the time; that Elam inquired of the We have seen fit to set out this case aid Smith as to his ownership of the at length because it so clearly points colt and the sale thereof; and you out the fact that a contract for the further find that Elam the defendant services of a mare for breeding is a at the time of the purchase of the thing distinct and apart from an colt and payment therefor had no agreement for the purchase of the notice of any executory contract be- expected foal, and thus does not come tween Hunter and Smith for said under the rule applicable to the sale colt, or of any claim by Hunter of any of a thIng having neither an actual right or interest in said colt; and you nor a potential existence. The rea- further find from the evidence that soning and principals expounded in the defendant Elam had no knowl- the above case are supported by the edge whatever that should put a rea- Kentucky decision of Maize v. Bow- sonably prudent man upon inquiry, man, 19 S.W. 589, in which the court then, I instruct you, the defendant, held that the sale of the services of a Elam, became the owner of the colt mare for the purpose of breeding is i nsuit, regardless of any rights and not an agreement to sell something obligations existing under said con- which is not 'in esse', and therefor tract between plaintiff and Smith void, but a valid agreement for the relative to the colt, and your verdict use of the mare for a special purpose. should be for the defendant." Since it is logically established that It is our firm belief that this in- the appellant hired the breeding right struction of the court is clearly to the mare, we maintain that upon erroneous and was the prime cause of reason as well as upon authority, the a verdict being returned against the title to the foal from the time of con- appellant herein. We do not deny ception until the present day has that Smith was in open, notorious been vested in the appellant, un- possession, and we further admit affected by the transaction between that he claimed ownership when he Perry Smith and the appellee, John sold it to the appellee; but does this Elam. serve to vest a valid title in Elam? Let us examine the court's instruc- To hold so would establish a rule tion number eleven given over the which would disrupt the business appellant's objection which deals usages and social customs of our with the doctrine of bona fide pur- modern life. It can be safely said chaser. The instruction is as follows: that one-fourth of all personal prop- "If you find from the evidence that erty is not in the hands, and thus un- the defendant, Elam, and the said der the control, of the owner, but is Smith contracted for the sale of the entrusted to the care of others. Is colt in question; that Elam was an it practical then to establish a per- innocent purchaser of the said colt, nicious rule that a bailee may trans- tNOTRE DAME LAW REPORTER mit a valid title simply because he title. The instruction is the only one has possession? We are aware that which touches on the theory of 'bona an owner who intrusts property to fide' purchaser and it stands unsup- another and then so conducts himself ported by any other announcing the as to lead third persons to believe doctrine that the possession of a ven- that the possessor is also the owner, dor or bailee coupled with his claim may be estopped to deny title in his of ownership is sufficient to vest the bailee. But in this case the appellee legal title in a 'bona fide' vendee. purchased the colt relying solely on This is clearly contrary to the views the representations of Smith that he of the authorities. was the owner. He admits that he never saw Smith before and that he Ballard v. Burgess, Supra. Andrews v. Cox, Supra. did not make any inquiries regarding Fawcett v. Osborne, Supra. Smith's title from any other person. This is a case where the doctrine of The court, therefor, erred in over- 'caveat emptor' must be applied. The ruling the appellant's motion for a appellee has not introduced a scin- new trial. tilla of evidence to show that the We respectfully submit that for the appellant ever did anything to estop errors which we believe we have him from claiming the colt, nor has pointed out in this brief, that the he by any means shown that Perry judgment in the court below should, Smith had such a right to the colt as in all things, be reversed. would enable him to transfer a valid Respectfully submitted.

BRIEF OF HUMPHREY L. LESLIE IN CASE OF HUNTER V. ELAM. In the Supreme Court of Notre Dame stances, mis-stated. We will consider briefly the testimony given by William Hunter, Appellant each of the witnesses. VS. The record will show that Dr. Hun- John Elam ,Appellee ter did not state on the stand that he offered forty dollars for the use of Brief for the Appellee. the mare during the period of gestation, but that the agreement was that Appeal from the Notre Dame Cir- Smith was to allow his mare to be cuit Court. bred to a stallion of Hunter's choosing. He further testified that he was, RECORD. under the agreement, obligated to pay the money regardless of whether The appellant's counsel's stateinent she became with foal or not, and thAt of the record is substantially correct. Smith gave no other consideration .-,an the mere allowing of his mare EVIDENCE. to be bred. The word 'services' was The evidence as set out by the ap- used to refer only to the mere breed- pellant's counsel is partially correct, ing of the mare. The rest of the but the important details of the testi- appellant's testimony as set out by mony are garbled and in some in- his counsel is substantially correct. NOTRE DAME LAW REPORTER

Smith agreed to train and raise the POINTS AND AUTHORITIES. colt, should it be foaled, so that it would be suitable for the Doctor's The appellee contends that, if there use. was a sale consumated between Hun- The next witness which the appel- ter and Smith, it was a sale of some- lant discusses is Perry Smith. We thing which had neither an actual quite agree that his testimony sub- nor a potential existence. stantiated that of Dr. Hinter, but A thing having neither an actual that he testified that he sold the ser- nor a potential existence cannot be vices of the mare both we and the the subject matter of valid sale. record deny. He stated that he was Benjamin on Sales, 78. to receive forty dollars for allowing 2 Kent's Commentaries, 8th Ed. his mare to be bred to a stallion of 604, Side page 468. Bates v. Smith, 47 N. W. 249. the appellant's choosing; that he was Battle Creek Valley Nat. Bank v to train and raise the colt should one 1st Nat. Bank. 56 L. R. A. 124. result and that he did this. We wish Purcell's Administrator v. Mather, to call attention to the fact that he 76 Am. Dec. 307. stated that the forty dollars he was Low v. Pew, 11 Am. Rep. 357. to receive for allowing his mare to Rochester Distilling Co. v. Rasey 37 N. E. 632. be bred has never been paid nor even Hutchinson v. Ford, 15 Am. Rep. offered to him. His testimony was 711. that he had always, up to the time of "Where a purchaser of goods per- the sale of the colt to Elam, had open mits his vendor to remain in posses- and notorious possession thereof, sion, a subsequent bona fide pur- and that he had stated to the appellee chaser from such vendor, without that he was the owner of the animal. any notice of the original sale, being The appellant's statement regarding put in possession, obtains a good further testimony of this witness we title as against the prior purchaser." will not discuss. Cullom v. Guillot, 18 La. Annotated The statements of the owner of the 608. stallion are immaterial to the case Shaw v. Levy, 17 Serg & R. 99. and call for no comment. "Where a vendor of personal prop- The testimony of the appellee is, erty is allowed by his vendee to re- with the exception of one statement main in the possession of the prop- correctly summarized. Elam did not erty and thus to give to the world a testify that he did not investigate the colorable appearance of continued ownership of the colt before purchas- ownership, the title of asubsequent ing it. On the contrary he stated that bona fide purchaser from such vendor he took note of the indicia of owner- will be upheld as against the first ship which Smith possessed and that vendee." American & English Encyc. he inquired, as any judicioug man 1164. would, if the said Smith was the "Where an owner of property, de- owner of the animal, to which he was signedly or by negligence, intrusts told that he was. another with the title, or the indicia The evidence of Mr. O'Sullivan, the of ownership of personal property, second witness for the defense, is cor- and the other sells the property to a rectly given. bona fide purchaser, such purchaser NOTRE DAME LAW REPORTER will be protected in his title as of the colt yet to be foaled, but a con- against the owner, upon the principle tract for the services of the mare for that where one of two innocent par- breeding. They base their contention ties must suffer for the wrong of a on an interrogatory submitted by third person, the loss should fall upon them to the jury and the answer re- the one who by his act, created the turned thereto. They would have us circumstances which permitted the believe that the services t.hus stipu- fraud to be perpetrated." lated for were to be for a period of American & English Encyc. 1165. gestation, and of such a nature that Bates v. Smith, 47 N. W. 249. the result of such period of gestation "Most of the general exceptions to would be their property. Their as- the general rule that a bona fide pur- sertion is erroneous. We grant that chaser gets no better title than his the agreement was for the services of vendor arise from the fact that the the mare for breeding, but to say that real owner has voluntarily clothed those services were to continue such vendor with apparent owner- through a prolonged period is erron- ship or authority to sell." eous. We contend, and the evidence Williams v. Merle, 25 Am. Dec. 604. will bear out our contention, that Dr. (notes) Hunter agreed to pay Smith the sum Saltus v. Everett, 20 Wendell 278. of forty dollars for the mere allowing "Where an owner has given to an- of his mare to be bred to a stallion of other such evidence of the right of the appellant's choosing, and for the selling his goods, as, according to the training of that foal which should re- custom of the trade, of the common sult therefrom in such a manner as understanding of the world, usually to render it suitable for a doctor's accompanies the right and authority use. We presume that the intention of disposal, or has given the external of the parties was that after the colt indicia of the right of disposal, a sale should be foaled a contract for its to an innocent purchaser divests the sale might be consummated between true owner's title." Willingham's the parties. Sons v. McGuffin, 90 S.E. 356. Even the appellant does not allege that Dr. Hunter testified that the ser- ARGUMENT. vices stipulated for in the agreement The appellant proposes but two were to be other than for the mere questions for consideration, namely, breeding. Did Hunter testify that "Was the contract between Smith and the contract was that the colt, if it Hunter an agreement for the sale of should result, was to be his? Most a thing having neither actual nor po- emphatically, he did not! And yet tential existence?" and "Was the ap- the appellant would have us believe pellee such a bona fide purchaser as to that a mere contract to allow a mare give him good title to the animal in to be bred is a contract for services question, granting that Hunter was which endure for the period of gesta- the owner of the colt at the time of tion and is of such a nature as to give the appellee purchasing the same?" title to the foal of the mare! It is contended by the appellant The case of McCarthy v. Blevins, that the agreement between Smith 26 Am. Dec. 262, is cited by the ap- and Hunter was not one for the sale pellant to support his contention. NOTRE DAME LAW REPORTER

We do not deny that this case is a hearted attempt on the part of the correct application of the law, but appellant's to deny the correctness of that it is in point on the case in hand the instruction. They would have us we refuse to grant. McCarthy v. believe that the evidence as disclosed Blevins is a case where there was an by the record does not justify it. In actual existence of the subject mat- brief we will set out the law on the ter, a potential existence, and this various lights in which the case may being true, the court correctly de- be viewed. cided that the original vendee was Let us believe for the moment that entitled to possession. (Sawyer v. Dr. Hunter was actually a purchaser Garrish, 35 Am. Rep. 323,. citing Mc- of the colt and that his contract Carthy v. Blevins as a case of poten- therefor was valid. Granting this, tial existence.) he can not now set up his title to the It is the belief of the appellee that colt to deprive John Elam of the if any claim on the ownership of the same. Where a purchaser of goods animal in question can be set forth by permits his vendor to remain in pos- the appellant, a perusal of the evi- session, a subsequent bona fide pur- dence will show that that claim must chaser from such vendor, without be founded on an attempt to sell the notice of the original sale, being put colt not yet foaled or conceived. in possession, obtains a good title as Heretofore we have granted, for the against the prior purchaser. sake of argument, that the contract American & English Encyc. 1164. between Smith and Dr. Hunter was Cullom v. Guillot, Supra. one for services, but it is our belief Shaw v. Levy, Supra. that the evidence showed rather an It is admitted by the appellant that outright sale of the animal. If this is Elam was a bona fide purchaser with- the case, then, since the appellant out notice. He was put in possession does not dispute the law that a thing of the colt and still retains possession. having neither an actual or potential Can his right to continue in the existence cannot be the subject mat- ownership of the animal be disturbed ter of valid sale, there is no cause for under this rule of law and under us to enter into discussion on that these conditions? We think not. point. The court will note the au- The second angle from which the thorities which have been cited to bona fide purchaser theory of the sustain this point of law. case may be viewed is from the stand- We come now to the second ques- point that Dr. Hunter was the owner tion proposed by the appellant: "Was of the animal and allowed the pos- the appellee such a bona fide pur- session and indicia of ownership to chaser as to give him good title to the repose in the witness Smith. That animal in question, granting that Smith was in open and notorious pos- Hunter was the purchaser or owner session, that he himself stated that of the colt at the time of the appellee he was the owner, that to all outward purchasing the same?" This learned appearances he was in fact the title court will decide that he was. From holder, was brought out by the evi- every angle from which the case may dence. The court knows that in the be viewed instruction number eleven purchasing of horses from farmers, as tendered bythe trial court must be common vendors thereof, possession held correct. There is only a half- and statement as to ownership are all NOTRE DAME LAW REPORTER that are usually relied upon. The WYilliams V. Merle, 25 Am. Dec. appellee had no notice of any sort 604. (notes) that would put a reasonably prudent Saltus v. Everett, 20 Wendell 278. man on his guard. He had Willingham's Sons v. McGuffin, 90 faith, as S. E. 356. customary in the purchasing of Here we may rest our case and feel horses from farmers, in the indicia assured that we have proven to the of ownership held by Smith. He paid court's satisfaction that the judg- full value for the animal. He is en- ment of the lower court was correct, titled to continue in uninterrupted that instruction number eleven sub- ownership thereof. "Where an owner mitted to the juiry was a correct of property, designedly or by negli- statement of the law applicable to gence intrusts another with the title, our case. or indicia of ownership of personal In concluding, the appellee believes property, and the other sells the that he is entitled to the judgment on property to a bona fide purchaser, two distinct theories, first, that what- such bona fide purchaser will be pro- ever contract existed between Hunter tected in his title as against the and Smith, the former took no title to owner on the principle that where the colt for which replevin is sought; one of two innocent parties must secondly, that, granting that Dr. suffer for the wrong of a third per- Hunter did have an interest in the son, the loss should fall upon the one animal at the time of its purchase by who by his act created the circum- Elam, the latter is entitled to pos- stances which permitted the fraud to session and ownership thereof as a be perpetrated." bona fide purchaser for value. We respectfully submit that the American & English Cyc. 1165. judgment of the court below should Bates v. Smith, 47 N. W. 249. be, in all things, affirmed. NOTRE DAME LAW REPORTER

NOTRE DAME CIRCUIT COURT Record of Cases. (Lawrence B. Stephan)

CAUSE NO. 1. CAUSE NO. 2.

William Smith Henry Lang VS. VS. Frank Brown Frank Cramer

Arthur B. Hunter, Richard B. Swift, Thomas V. Truder, Clement B. Mulholland, Attorneys for Plaintiff. Attorneys for Plaintiff. Harry P. Nester, Humphrey L. Leslie, Lawrence S. Stephan, M. Edward Doran, Attorneys for Defendant. Attorneys for Defendant.

Action on a negotiable instrument Plaintiff brings action on an ac- given to plaintiff by defendant, which count to which defendant claims as is due and unpaid. Demand $116.25. set-off, compensation for services ren- Complaint in one paragraph. dered. Demand $65.00. Plaintiff files amended complaint. Complaint in one paragraph, action on an open account. Defendant files answer, in one Defendant files answer in three paragraph, in confession and avoid- paragraphs; (1) General Denial; ance, alleging failure of considera- (2) Payment; (3) Set-Off. tion. Plaintiff files reply of general de- Plaintiff files reply in general denial, to each of the paragraphs num- nial. bered (2) and (3) of the defendant's Cause submitted to the court, jury answer. being waived, and trial had. Judgment rendered in favor of Harry P. Nester opens argument plaintiff and against defendant's for defense and is followed by Ar- second and third paragraphs of ans- thur B. Hunter for the plaintiff, and wer. Thomas V. Truder closes for the CAUSE NO. 3. plaintiff while Lawrence S. Stephan concludes the argument for the de- John Sullivan VS. fense. Harry Dorman Judgment rendered in favor of plaintiff in the sum of $106.25, prin- Francis J. Murphy, cipal and interest, together with at- Francis J. Clohessy, torneys' fees of $20.00 and costs, Attorneys for Plaintiff. which judgment is entered without Edward C. Donnelly, relief from valuation or appraise- Delbert D. Smith, ment laws. Attorneys for Defendant. NOTRE DAME LAW REPORTER

Action on a promissory note. De- (1) general denial; (2) breach of mand $500.00. warranty. Complaint on negotiable promis- Plaintiff files general demurrer to sory note in one paragraph, said note count (2) of defendant's plea, which being due and unpaid. is overruled, and plaintiff takes ex- Defendant files answer in two ception. paragraphs: (1) general denial and Plaintiff files replication in two (2) non est factum. counts: (1) Similiter to paragraph Plaintiff files reply to the second one of plea and (2) general issue to paragraph of answer, reply being in second count of plea. general denial. Defendant files similiter. Cause submitted to the court, jury Cause at issue, jury waived, and being waived, and trial had. trial had. Judgment in favor of plaintiff in Judgment for plaintiff in the sum the sum of $50.000 for which judg- of $83.50. ment is entered without relief from CAUSE NO. 5. valuation or appraisement laws. Fred Schultz CAUSE NO. 4. VS. Hale Paul and John Hamilton William Paul VS. Charles Simpson Edwin A. Frederickson, George L. Murphy, Sherwood Dixon, Attorneys for Plaintiff. Robert E. McGlynn, Arthur B. Hunter, Attorneys for Plaintiff. Harry A. Richwine, Leo J. Hassenauer, Attorneys for Defendants. Clifford P. O'Sullivan, Attorneys for Defendant. Action for damages occasioned by the removal of a fence on the land of This is an action on a contract for plaintiff, landlord, erected there by the sale of certain hogs valued at defendant William Paul, tenant, and $83.50, which defendant refused to plaintiff was assaulted by Hale Paul accept. the son of William Paul while in the Plaintiff files declaration and prae- act of removing such fence. De. cipe. mand $5000.00. Defendant files plea to the jurisdic- Complaint in three paragraphs: tion, alleging improper service. (1) theory of master and servant re- Plaintiff admits plea. lation between father and son; () conspiracy; (3) that father counseled Defendant waives service and files and directed the son to commit as- plea in abatement, as to defect in the sault and battery. name of the plaintiff, which is sus- Defendants file separate and sever- tained. al demurrer. Plaintiff files amended declaration. Demurrer sustained in behalf of Defendant files plea in two counts: each' defendant to the second and NOTRE DAME LAW REPORTER third paragraphs of complaint, and open court their verdict :-"We the leave taken to amend. jury, find for the plaintiff as against Plaintiff files amended third para- the defendant Hale Paul and we as- graph of complaint. sess the damages at $5000. And we Defendants file separate demurrer further find for the defendant Wil- to the amended third paragraph liam Paul as against the plaintiff." which is overruled and defendants The jury also return the interroga- separately except. tories with their answers thereto. Defendants file answer in three Hale Paul files separate motion for paragraphs: (1) general denial; (2) judgment on the answers to the in- son assault demesie; (3) defence of terrogatories non obstante veredicto. property. Motion overruled to which defendant Plaintiff files reply to the second Hale Paul excepts. and third paragraphs of answer, the Defendant Hale Paul files motion reply being traverse de injuria. and twelve causes for a new trial Jury impanelled, cause submitted, which is overruled and he excepts. and trial had. Plaintiff now files motion and four Plaintiff tenders twelve instruc- causes for the new trial as against tions in writing, seven of which were the defendant William Paul which indicated as given, and five refused. motion the court overrules and the Defendant tenders two instructions plaintiff excepts. in writing, one of which is indicated Judgment on the verdict for plain- as given and one refused. To the tiff as against defendant Hale Paul, giving and refusal to give these ten- to which said defendant objects and dered instructions plaintiff and de- excepts, and judgment on the verdict fendant properly except. for defendant William Paul as Defendants tender 25 interroga- against plaintiff to which plaintiff ob- tories with request that they and each jects and excepts. of them be submitted to the jury to Defendant, Hale Paul, prays an ap- be answered and returned with the peal to the Supreme Court of Notre general verdict. Then court refuses Dame, which is granted and ten days to submit interrogatories Nos. 4, 12 in which to file general bill of excep- 22, and 23, to which refusal the de- tions. Thirty days granted said defendants separately and severally ex- fendant to file appeal bond in the sum cept. of $500.00 with Francis T. Walsh and as sureties, which George L. Murphy opens argument Jerome Martin for plaintiff and is followed by Harry sureties are hereby approved by the A. Richwine for the defendants. Ar- court. to the thur B. Hunter concludes the argu- Plaintiff prays an appeal ment for defendants and Edwin A. Supreme Court which is granted and Frederickson closes for the plaintiff. ten days given in which to file general bill of exceptions. Thirty days The court now instructs the jury granted plaintiff in which to file ap- in writing and files the instructions peal bond in the sum of $200, which numbered from 1 to 19 inclusive and bond is hereby approved. orders that they become part of the record without bill of exceptions. NOTE :-The decision of the case The jury retire and return into by the Supreme Court of Notre Dame NOTRE DAME LAW REPORTER

is elsewhere reported in this number Cause at issue, trial by jury. of the Reporter, as also are the argu- Before argument plaintiff tenders ments to the jury made by Edwin A. instructions, all of which are refused, Frederickson for the plaintiff and to which the plaintiff severally ex- Arthur B. Hunter for the defendant. cepts as to each instruction tendered and refused. Defendant tenders in- CAUSE NO. 6. structions all of which are refused and the defendant excepts 9everally William Hunter to each ruling. VS. Plaintiff submits interrogatories, John Elam as also does the defendant. Arguments by Ed. McMahon open- Michael E. Doran, ing for the plaintiff and H. L. Leslie Edward McMahon, for the defense, while J. J. Martin Attorneys for Plaintiff. closes for the defense and M. E. Dor- Jerome J. Martin, an for plaintiff. Humphrey L. Leslie, Court instructs the jury in writing Attorneys for Defendant. and orders instructions to be filed and made part of the record without bill This is an action in replevin, to re- of exceptions. cover a horse alleged to be owned by Jury retires and returns into open the plaintiff, in virtue of a contract court this verdict :-"We the jury of sale prior to that by which defend- find for the defendant and against ant purchased and secured possession the plaintiff." from the the same vendor. Answers to the interrogatories Plaintiff files complaint in one were also returned. paragraph in replevin. Plaintiff moves for judgment non Defendant files demurrer to com- obstante veredicto on the answers to plaint, which is overruled and excep- the interrogatories. Motion over- tion taken. ruled to which plaintiff excepts. Defendant files answer in two Plaintiff files motion and ten paragraphs: (1) general denial and causes for new trial, which motion is (2) bona fide purchaser. Demurrer overruled and plaintiff takes excep- by plaintiff to the second paragraph is tion. sustained, to which defendant ex- Defendant moves for judgment on cepts. the verdict. Plaintiff files reply in two para- Judgment rendered for defendant graphs to paragraph (2) of answer: that the plaintiff take nothing by his (1) general denial; (2) setting up action and that defendant recover his ownership. costs, to which judgment plaintiff ob- Defendant files motion to strike jects and excepts. out second paragraph of plaintiff's Plaintiff prays an appeal to the reply on the ground that it is an argu- Supreme Court of Notre Dame. Ap- mentative general denial. Motion peal granted and five days given to sustained; second paragraph of reply file afpeal bond in the sum of $300.00 stricken from the record; plaintiff which bond and sureties on such bond takes exception to this ruling. are hereby approved by the court. NOTRE DAME LAW REPORTER

Plaintiff is granted ten days to file contributory negligence; (3) alleg- general bill of exceptions. ing ordinary and reasonable care. Plaintiff makes motion to strike rendered by NOTE :-The opinion out paragraphs two and three of ans- the Supreme Court of Notre Dame on wer, which motion is sustained, and case is to be found elsewhere in this the defendant severally excepts. Reporter, as also are the briefs this Jury impanelled, cause submitted by Messrs. submitted on the case and tried. Michael E. Doran and Humphrey L. Plaintiff tenders four instructions; Leslie. three instructions given and one refused. Defendant tenders three in- CAUSE NO. 7. structions two of which are given and one given as modified. Defendant ex- Mary McClelland cepts to the giving of the plaintiff's VS. instructions numbered 2, 3 and 4, William Meyers and also takes exception to the ruling on the court in refusing his tendered Clement B. Mulholland, instruction No. 1. Plaintiff excepts Edwin C. Donnelly, to the giving of each of defendant's Attorneys for Plaintiff. instructions. Richard B. Swift, Plaintiff submits interrogatories Thomas V. Truder, numbered one to seven all of which Attorneys for Defendant. are given. Defendant submits interrogatories numbered one to eleven, in- This is an action for personal the court refusing all but numbers 1 juries alleged to have been sustained and 11, to which ruling defendant ex- by the plaintiff, due to the careless cepts. and negligent driving of an automo- .Edwin C. Donnelly opened the ar. bile by the defendant's son. Demand gument for the plaintiff, followed by $1500.00. Richard B. Swift for the defendant. Plaintiff files complain in two Thomas V. Truder closes the argu- paragraphs: (1) on the theory 6f ment for the defense and Clement B. masfer and servant; (2) on the Mulholland concludes the case for the theory of negligence of master. plaintiff. Defendant files motion to make The court now instructs the jury more specific which is overruled. in writing and files the instructions, Defendant files several demurrer ordering that they be made a part of to complaint alleging (1) failure to the record without bill of exceptions. specify the relation between plaintiff The jury retire and return into and defendant; (2) that second para- open court the general verdict in fa- graph does not state specific act or vor of plaintiff, fixing damages at the omission which caused the injury. sum of $750.00. Court overrules demurrer to each The jury also return the interroga- paragraph to which ruling on each tories with their answers thereto. paragraph defendant excepts. Defendant files motion for new Defendant files answer in three trial, which the court overrules, to paragraphs (1) general denial; (2) which the defendant takes exception. 36 NOTRE DAME LAW REPORTER

Judgment rendered in favor of which to file general bill of excep- plaintiff in the sum of $750.00. tions. Thirty days granted said de- Defendant prays an appeal to the fendant to file appeal bond in the sum Supreme Court of Notre Dame which of $1000.00, which bond and sureties is granted and five days given in thereon is hereby approved. NOTRE DAME LAW REPORTER

IN THE NOTRE DAME CIRCUIT COURT HON, F. J. VULPILLAT, JUDGE Arguments in the Case of FRED SCHULTZ V. HALE PAUL AND WILLIAM PAUL by EDWIN A. FREDRICKSON, ATTORNEY FOR PLAINTIFF and ARTHUR B HUNTER, ATTORNEY FOR DEFENDANTS FREDRICKSON FOR PLAINTIFF. lieve we have likewise proven. Now Your Honor; Gentlemen of the Jury: then, gentlemen of the jury, it has I don't believe that it is necessary not been necessary in this case for us for me to argue for any great length to prove the assault itself, for both of time in behalf of the plaintiff in Hale Paul and William Paul, while this case, Mr. Schultz, in view of the on the witness stand, admitted the fact that certain matters, certain striking of the blow complained of facts, have been brought out in the What then are the defenses offered evidence submitted to you in this by these defendants in their hope to cause, which facts, when the law is escape liability? Well, they are twe applied to them as per the instruc- in number. Hale Paul tells you,-first tions that will be given you by this of all, that he struck Fred Schultz in court, leave you with but one course self-defense; and, secondly, that he to pursue in arriving at your verdict: struck Mr. Schultz in defense -of-his Gentlemen of the jury, in my mind master's property. Gentlemen of the you are virtually compelled to find for jury, I ask you is either of these Mr. Schultz as against both William defenses sustained by the evidence? Paul and Hale Paul, awarding Mr. Before you can conscientiously be- Schultz the five thousand dollars ask- lieve that Hale Paul struck Fred ed for and not one penny less. Schultz in self-defense, you must cer- This is an action in damages; an tainly believe that, prior to the as- action brought by Mr. Schultz as re- sault, Mr. Schultz assumed some sort sult of an assault and battery com- of a threatening attitude towards mitted upon him by Hale Paul the Hale Paul; in other words, that Hale 5th day of June, 1919, on a farm some Paul had reasonable grounds to fear two and a half miles west of the city bodily injury at the hands of Mr. of South Bend. For all the natural Schultz. But what is the evidence o" and probable consequences of this as- this point? First of all, the allega- sault Mr. Hale Paul, under certain tion by the Pauls, on the one side, of circumstances, is liable, which cir- the fact that Mr. Schultz did assum cumstances I believe we have con- a threatening attitude, but on the clusively proven; and for all the na- other side, the absolute denial of that tural and probable consequences of fact by Mr. Schultz, with his testi- this same assault Mr. William Paul. mony corroborated by the testimony under certain circumstances, is like- of Mr. Leslie, an eye witness to the wise liable, which circumstances I be- entire transaction. And this is not NOTRE DAME LAW REPORTER

the only evidence that must be con- claim, Mr. Schultz then assumed a sidered by you relative to this point threatening attitude. Gentlemen of This court will instruct you that, in the jury, without a doubt Hale Paul deciding upon any disputed question, made use here of some very forcible you must not rely alone upon the tes language, but my theory is, and cer- timony of the various witnesses with -tainly your conclusion must likewise reference to that particular question, be, that if these strong words could but that you must consider all the ever have so roused the anger of Fred evidence, all the facts and attending Schultz as to incite him to the' com- circumstances, as brought out by the mission of an assault upon Hale Paul, evidence. And now let us review they would most certainly have had these other facts. Surely, before you that effect the first time that they can believe that Mr. Schultz ever of- were addressed to him. And yet the fered to inflict bodily harm upon Pauls would have you believe, in spite Hale Paul, you must believe one of of the testimony of Mr. Schultz, two things: either that when he went backed up by the testimony of Mr. out to that farm he carried in his Leslie, and in spite of all these incon- heart the intention of committing an sistent circumstances, that Mr. assault upon Hale Paul, or else that, Schultz did assume a threatening at- after reaching the farm, Mr. Schultz titude. was so angered or incensed by the And here is still another point. Re- deeds or words of Hale Paul that he call, if you will please, the fact as was suddenly rendered willing to do brought out by the testimony of the Hale Paul personal injury. But does defendants themselves-and I am it appear that Fred Schultz sought very careful to question both Hale out Hale Paul upon arriving at the and William Paul on this point farm as he unquestionably would Paul have done had he intended to assault -the fact that Hale Paul picked up him? Most certainly not. He pro- that fence rail some time prior to the time at which the Pauls claim ceeded at once to the fence he had gone out to remove, paying not at- that Fred Schultz assumed a threatening attitude. What did Hale Paul tention to Hale Paul, some hundred that club for, if not for the feet distant in the corn field. And pick up now just what took* place there at very purpose for which it was used only a few moments later, namely, of that fence? First of all, Hale Paul Mr. Schultz upon the head came running over yelling out, "Mr. striking such force and violence Schultz, you leave that fence alone," with it with to flatten him to the ground sense- to which remark Schultz paid no at- as tention. And then what happened? less? What did Hale Paul pick up that club for, I ask you, did he want A little later Hale cried out, "Damn to pick his teeth with it? Recall too, you, Schultz, if you don't stop I'll if you will, the manner in which Wil- make you stop," to which remark. liam Paul warned his son not to Schultz again paid no attention, strike Mr. Schultz, of how upon his whereupon Hale Paul merely repeat- arrival at the fence he cried out. ed the identical words, "damn you, "You'd better not strike him, Hale." Schultz, if you don't stop I'll make What if anything do these words in- you stop," whereupon, the Pauls dicate, if not, that either the Pauls NOTRE DAME LAW REPORTER

had conspired to assault Mr. Schultz, tortious act of his servant commit- or else that Hale is possessed of a ted by such servant while acting most violent and ungovernable tem- within the scope of his employment per? And yet Hale Paul tells you and in furtherance of his master's that he struck in self-defense. business or interests. On the wit- And, gentlemen of the jury, even ness stand both Hale Paul and Wil- if Hale Paul had actually acted in liam Paul testified that on the 5th self-defense, had used force as a day of June, 1919, and for some time means of self-protection, it could not previous thereto Hale Paul was and be contended by these defendants that had been in the employ of his father, he only used such force as was rea- acting as his servant and assisting sonably or seemingly necessary under him in the operation of his .farm the circumstances. It must be re- And both defendants also admitted membered that at all times during the that at the very time the blow was affair out there on that farm a five- struck Hale Paul was such servant, foot fence was between the two men, acting within the scope of his employ- that Hale Paul was in the corn field, ment and in furtherance of his mas- and that Mr. Schultz was in the ter's interests, namely, attempting to clover field, and that a substantial prevent the removal of that division five-foot barrier intervened between fence. And so I say, that I don't feel them. Certainly the position of Hale the necessity of tarrying long upon Paul was actually and seemingly the proposition of William Paul's much less dangerous than it would liability. have been had there been no fence And now just a few words with in existence. And it was unquestion- reference to the damages asked for ably unnecessary for Mr. Hale Paul and I am through. Gentlemen of the to reach over that fence and to deal jury, surely you must realize that Mr. Schultz a blow so vicious that it no verdict that you could possibly re- leveled him to the ground uncons- turn could ever right the wrong that cious. And, gentlemen of the jury, has been comniitted upon Mr. the law does not countenance the use Schultz; that no verdict that you of excessive force by one really act- could possibly return could ever place ing in defense of either person or pro- him in the position he was in prior perty, and this court will so instruct to the 5th day of June, 1919. And you. I tell you, gentlemen of the surely, therefore, you must feel it jury, that Hale Paul has failed utter- your solemn duty to award him such ly to prove up in this case, either the monetary damages as will compen- plea of self-defense or defense of his sate him as best they can for the loss master's property, such as is recog- he has sustained. And now what are nized by the law. the proper elements of his damages? Now then, relative to the liability Are they merely the medical and of Mr. William Paul; I don't intend nursing expenses he has incurred, the to spend much time on that phase of wages he has already lost, the mental this case. If Hale Paul is liable for and pbysical suffering he has endur- this assault, as undoubtedly he is, ed? Hardly. Dr. Royans has told then William Paul is also liable, for you that Mr. Schultz is permanently the master is always liable for the injured, that he is suffering from an NOTRE DAME LAW REPORTER organized thrombus resulting in the such a salary most certainly amount3 permanent paralysis with which he is to a sum much greater than the five afflicted; and has told you further thousand dollars asked for. But, that Mr. Schultz will never again be gentlemen of the jury, why should able to do a day's labor. Oh! I am you haggle over the question of dam- not unmindful, gentlemen of the jury, ages? Look at Mt. Schultz! What is of what Dr. Allney had to say with he today but a mere miserable shad- regard to paralysis, bloodclots, etc., ow of his former self, a misery. to but I want to tell you that, personal- himself, a misery to his family, a ly, I haven't very much respect for misery to everyone with whom he the medical opinion of a physician comes in contact; a man not only de- who would have me believe that hu- prived of the ability of ever doing an- man heads don't vary in shape and other day's labor, but a man deprived size; and who is wont to compare the of something even more valuable than human blood stream to the lubricat- that-a man deprived of the satisfac ing system of an automobile. Why, tion that comes to every man at the gentlemen, I have just a little too conclusion of an honest day's toil. much regard for the greatest piece and all as the result of the malicious of handiwork of God to believe that and tortious assault committed upon the human blood stream is but a him by Hale Paul? Why, gentlemen lubricating system. I wonder what of the jury, can there be any doubt in Dr. Allney thinks its purpose is- your mind of the fact that, if Fred perhaps a means of oiling the joints. Schultz were to have his choice, he No I am not fearful of the effect of would rather have the health and vig- Dr. Allney's testimony. And now if or and physical well-being that were Fred Schultz is permanently para- his prior to the 5th day of June 1919. lyzed, as unquestionably he is, and than to have you award his a hundred incapable of ever doing another day's thousand dollars damages! So now labor, what additional loss has he go into the jury room, gentlemen of sustained as result of this tortious the jury, and consider the evidence in assault? Simply the complete loss of this case, and consider the law, and all such earnings as he might have then all that I ask of you is that you made in the future; and now when of your moral consciences. one stops to consider that, as per the act in accordance with the dictations testimony of Mr. Schultz himself and of Mr. O'Hara, his employer, Mr. HUNTER FOR DEFENDANTS Schultz had for some time previous to 5th day of June, 1919, been earn- Your. Honor-Gentlemen: ing a salary of one hundred and fifty Not only do we believe, as has been dollars per month; and that, as per ably pointed out by my co-counsel in the testimony of Mr. Doran and as his argument, that the evidence in per the American Table of Mortality. this case is clearly in favor of the de- but Mr. Schultz has expectation of life fendants, separately and jointly, amounting to some twenty-four we are also convinced that the law is in- years, one needn't be possessed of ex- clearly in our favor on the issues ceptional mathematical ability to volved. figure out that the present value of There are at least four phases of NOTRE DAME LAW REPORTER the alleged liability of the defendants of the boy Hale Paul. Rather it does in this case on the paragraphs of appear that he at the time counselle - plaintiff's complaint. They may be his son and called to him not to striks represented by four questions. the plaintiff, under and provocation 1. Is William Paul liable on the or assault, for the reason that hc first paragraph of the complaint? knew the plaintiff's general reputa 2. Is William Paul liable on the tion for turbulence of character in amended third paragraph of the com- the community in which the plaintiff plaint? resiles. If William Paul did no: 3. Is Hale Paul liable on the first counsel, aid, or abet his son, even to paragraph of the complaint? defend himself, certainly plaintiff's 4. Is Hale Paul liable on the failure to prove facts sustaining his amended third paragraph of the com- third paragraph of complaint releases plaint? William Paul from all liability there- It shall be my purpose to treat on. The learned court will instruct these four questions. you that every material fact alleged William Paul is not liable on the by the plaintiff must be proved by plaintiff's allegations in the first para- him by a preponderance of the evi- graph of complaint because: firstly, dence. the mere relationship of parent t: But let us get down to the two par- child does not make the father liable ties most intimately involved in this for any tort committed by his child; case and try to disc6ver what, if any, secondly, the plaintiff has not shown liability attaches to the defendant - by a preponderance of the evidence Hale Paul from the proQf or lack o' that the son at the time of the assault proof of facts alleged in the plaintiff's was working as his father's servant; first and amended third paragraphs thirdly, and most important of all, of complaint. there was no unlawful assault com- The defendant Hale Paul is mitted by Hale Paul as alleged in the charged with the direct commission first paragraph. If no such assault of an assault and battery in each of was committed, and you have heard these paragraphs. The allegations as the evidence, gentlemen, clearly show- to Hale Paul's part in the alleged tort ing that it was not, then certainly are practically the same in both cases. William Paul is not liable on any Suffice it to say that either the second theory for a tort never committed. or the third paragraph of answer al- Then, too, William Paul is not lia- leges facts sufficient to free Hale Paul ble on the plaintiff's allegations in of any liability for any act of his the third paragraph of complaint be- directed against the plaintiff on the cause it nowhere appears in the evi- fifth of June last. dence that William Paul did or said It is the law and the court will anything to induce his son to go tc instruct you that not only must the the place where the plaintiff was, oi plaintiff prove the operative facts of that he aided, abetted, encouraged, or at least one of his paragraphs of com- counselled any retaliation, even for plaint, but he must also meet success- the assault which the plaintiff com- fully as to each paragraph the special mitted before he was downed by a items of defense set up by each of blow from the light stick in the hands the defendants in their second and NOTRE DAME LAW REPORTER third paragraphs of answer. The in a place where he had a right to be; court will instruct you that if you be- on a farm leased from the plaintiff lieve that Hale Paul committed an as- by William Paul for a cash rental and sault and battery on the plaintiff, in on a farm in the crops and stock of the defense of his property rights or which, the plaintiff has shown abso- in defense of his person, and that ai lutely no interest; and at a fence on the time Hale Paul was himself with- that farm, which fence was plainly a out fault and in a place where he had temporary fence, which fence, for a right to be and that he believed tha" some whimsical reason that the plain. he would suffer bodily harm at thy tiff has not seen fit to allege or dis- hands of the plaintiff, and, while so close, the plaintiff wanted to remove believing, struck the plaintiff, using and was arbitrarily removing at the no more force than was necessary to time of the alleged assault on June 5, defend himself against the threaten- 1919, and which fence, moreover, was ed injury he believed was about to be placed there without a word of com- inflicted upon him, that he struck the plaint on his part; that, finally, this plaintiff in the proper and reasonable fence was at the time the personal defense of his property rights, that property of the occupants of the farm if you believe either of these states of at the time and if the plaintiff had facts to have existed, then you must succeeded in accomplishing his evil find for the defendant Hale Paul. purpose of tearing down the whole or Certainly, gentlemen, both of these any part thereof, and carrying any justifications, as has been shown in portion of it away, such plaintiff the argument of my co-counsel on the would have been guilty of larcency. evidence in this case, did exist. Therefore, we say that Hale Paul was We are not contending that the free from fault and was in a place mere words of the plaintiff at the time where he had a right to be. just preceding and at the time of the Furthermore, Hale Pacl used the threatened injury to Hale Paul werl only reasonable means at hand to de- sufficient provocation or excuse to en- fend his person and his property and title the defendant Hale Paul to certainly used no more force than "whale away" and slap the plaintiff was necessary to defend himself over the left ear, but we do contend against the threatened injury that he that even such words strengthened believed was about to be inflicted up- the defendant Hale Paul in his belief, on him. This phase of the case has already existing, that he was in dan- been so ably presented by my col- ger of bodily harm, and when coupled league in his argument that I need with the fact that the plaintiff ad- only mention it here. fanced towards him in a menacing at- If the plaintiff really thought that titude and with a spoken threat, that he was entitled to have this fence re- belief became so acute that Hale Paul moved, why did he not seek an ap. was absolutely certain, as would any propriate remedy in equity or seek one of you gentlemen have been un- his actual damages in law? The der like circumstances, that he was courts have even been open to him in grave and immediate danger of for such purpose. He had no right bodily harm. to take the law in his own hands and Remember also that Hale Paul was then be heard to complain if his own NOTRE DAME LAW REPORTER forceful, unlawful means were met Paul and the case of the defendant by other means, perhaps forceful, but Hale Paul and convince you, as I have certainly no more so than was actual- long ago become convinced, that this ly necessary under the circumstances. whole suit is the result of malice. You Perhaps he knew himself to be in the had the opportunity and duty to wrong. Perhaps he had consulted an watch and compare the demeanor and honest lawyer and that lawyer had candor of the plaintiff and the de- told him that it is the general rule of fendahts in the court room. You law that when a landowner consents have had every opportunity to note expressly or by implication to the the apparent lack of any of those placing of an addition on his land, symptoms or traces of paralysis in without an express agreement as to the plaintiff from the moment that he whether it shall become a part of the left the witness stand. You have had realty or remain personalty, an the chance to see before you in his agreement will be implied that it is every littleness this plaintiff who to continue personal property. In threatened to "get even" with these any event he showed by the very vio- defendants because they saw fit to lent manner in which he dealt with resist force with force. Doubtless the fence that he realized that it was you have already formed an opinion not a fixture but was severable. He in your own minds which of the wit- seemed to forget, however, that the nesses were telling the truth. The right to remove this fence or to re- learned court will instruct you that frain from removing the same, rest- you may consider the demeanor of ed with his tenants who had put up each and every witness on the stand the fence. along with all other facts and circumstances in the case. We believe Perhaps you are saying to your- that you will view this case as men selves, "Oh, well, what have all these and that you will deal justice as men. propositions to do with the case?" We know that any act of either de- Gentlemen, I am merely endeavor- fendant was fully justiled at the time ing in my humble way to present to and we ask of you only simple jus- you the case of the defendant William tice. NOTRE DAME LAW REPORPER JUNIOR MOOT COURT CAUSE NO. 1. Alden J. Cusick and Joseph H. Flick, John Hamilton Attorneys for Defendant. VS. Charles Simpson PLAINTIFF'S POINTS AND AUTHORITIES. Action for Breach of Contract. The fact in this case that the hogs Damages $100. are not goods, but are chattels will take the oral contract out of the Charles Simpson, riding in com- operation of the Statute of Frauds. pany with a friend, passed the farm Burrills Law Dictionary: Goods- residence of John Hamilton and, strictly seems applicable only to seeing a sow and five sucking pigs on inanimate movables, being in this the Hamilton farm, stopped, examin- respect less comprehensive than ed them, then drove to the barn yard CHATTELS, which include animals. of Hamilton where he opened negotia. 19 Ill. 584; 133 Ind. 472. tions with Hamilton for the purchase The word CHATTELS is of more of the pigs. As a result of the talk than general signification than it was agreed by-and between them GOODS. 56 Mo. 58, 20 Mich. 357. that Simpson was to buy the sow and CHATTELS is more comprehen- pigs for the stipulated price of $83.50 sive than GOODS and includes ani- and Hamilton was to sell and deliver mate as well as inanimate property. them to Simpson the next day at his 159 Pa. St. 220. residence in South Bend, Indiana, and 2. Since the oral contract has been receive payment. taken out of the operation of the Next day Hamilton brought the Statute of Frauds it is possible to sow and pigs to the residence of make a constructive delivery of the Simpson in South Bend as agreed, CHATTEL. Since this is the case but Simpson refused to accept or re- title has already passed to the pur- ceive them or permit Hamilton to de- chaser in this case and the vendor liver them, giving as his reason that was in the position of bailee after the he feared the pigs might have the passing of the title. cholera; that he would not consent to Where, by .the contract itself, the accepting delivery of the sow and pigs seller appropriates to the purchaser unless Hamilton would submit them a specific chattel, and the latter there- to examination for the purpose of de- by agrees to take that chattel and pay termining whether or not they had the stipulated price, the parties are cholera, and for the further reason., then in the same situation as they as Simpson stated, that he did not would be after a delivery of the goods think he could be forced to take the in pursuance of the general contract; pigs and sow. Who should recover the appropriation is equivalent to a and why? delivery and the assent of the pur- George D. O'Brien and, chaser to take the specific chattel and Donnelly C. Langston, pay the price is equivalent to accept- Attorneys for Plaintiff. ance. The effect of the contract NOTRE DAME LAW REPORTER therefore is to vest the property in or by some person thereunto by him the purchaser. 6 W. Va. 255; 17 L. lawfully authorized." R. A. (N. S.) 807; 61 S.E. 235 (Rule The contract in this case is parol Stated) ; Cited in 50 L. R. A. (N. S.) and for the sale of goods of more 124. than $50 in value. 3. If the purchaser inspects for Hogs are "goods" within the mean- himself the specific goods sold and ing of the Statute of Frauds I) Vaw- there is no express warranty, and the ter v. Griffin et all, 40 Ind. 600- seller is guilty of no fraud, and is not "Webster says: 'Goods, n. p.; mov- himself the manufacturer of the ables, household furniture, horses; goods sold and there is no eypress cattle, utensils'. Raleigh says: warranty, and the seller is guilty of 'Syn.: goods comprehend furniture no fraud, and is not himself the or other moveables or movable es- manufacturer of the goods sold, the tates, as cattle, implements, utensils.' doctrine of CAVEAT EMPTOR ap- 2 Words & Phrases Vol. IV, plies even though the seller presumes Page 3131: "The words 'goods, wares the purpose for which the goods were and merchandise' are equivalent to required. 30 Am. Rep. 639; 64 N. the term 'personal property' and arc Y. 411; 22 Fed. Rep. 52. intended to include whatever is not Where the means of knowledge are embraced by the words 'lands, tena at hand, and equally available to both ments and hereditaments.' parties, and the subject is open to the 3 Cyclopedia of Law & Proce- inspection of both parties alike, there dure Vol. XX, Page 1267. is no implied warranty. 33 La. Ann. 4 Tigany on Sales, Page 72. 1364. No acceptance; no part payment; 4. There was no implied warranty no memorandum in writing to the that the hogs were sound and the ven- contract of sale in this case. dee cannot set up the fact that the 1 Mere delivery of goods by the vendor warranted the hogs. purchaser is not sufficient; he must receive and accept the same. In DEFENDANT'S POINTS AND Frankie v. Trulove, 54 N. E. 461 Ind AUTHORITIES. Appellate, it is said: "The receipt of property contemplated by the Statut I The Contract of Sale in this which will take the contract of sale case is governed by the Statute of out of the operation of the Statuta Frauds. the seller cannot by this act of de- Burns Annotated Statutes of In. involves delivery by the seller, but diana 1908 Vol. III, Sec. 7469: "No livery render the contract enforce- contract for the sale of any goods for able against the purchaser without the price of $50 or more shall be valid receiving the goods or some part unless the purchaser shall receive thereof by the purchaser as his pro- part of such property or shall give perty under the contract." something in earnest to bind the bar 2) Dehority v. Paxton, 97 Ind. gain or in part payment or unless 253, "The seller must part with his some note or memorandum in writing control for the purpose of vesting the of the bargain be made, and signed right of property in the buyer who by the party to be charged thereby must receive with such intent on his NOTRE DAME LAW REPORTER part." See also Shindler vs. Hous- The defendant, in operating its ton, 1 N. Y. 261; Hooker v. Knab, 26f road, carries on its trains, to be used Wis. gl; Stone v. Browning, 51 N. by its servants, certain signal torpe- Y. 211; Johnson v. Cuttle, 105 Mass. does, which were apparently harm- 447. less, but which in fact were danger- II. The Damages sought in this ous explosives. That a train of the case are improperly measured and defendant, carrying such torpedoes excessive. was stopped by its servants at a water tank and station in South The measure of damages for the Bend; that said servants took some breach of an executory contract of of the torpedoes and placed them on sale by the purchaser is the differenc. the track in an exposed place without between the contract price and the any cause or necessity for doing so, market price of such goods at the but merely for the fun of seeing them time the contract was broken. explode; that the defendant's train In Singer v. Chaney, 51 S. W. 813, negligently failed to explode all thesq the Kentucky Court holds: "that torpedoes and left them exposed in a where the buyer of logs had a right public place where people generally to inspect them and to reject such as were accustomed to pass as well did not meet the requirements of thc known to the defendant and without contract that the title did not pas objection by the defendant, a place on its right-of-way. until the logs were accepted and therefore the measure of damages That the plaintiff, John Kent, a boy for the buyers refusal to take and of ten years, was standing near the pay for the logs was not the contract station with other boys when this price but the difference between the train stopped; that just after the price agreed to be paid for the logs at train moved on, another boy of ten the time and place of delivery and the years who had been walking alon , sum for which the seller could, by just along behind the train to the reasonable effort, have sold them af- knowledge of the servants of the ter the buyer had refused to accept train, saw the unexploded torpedo them." See also: Acme Food Co. v. and picked it up and carried it to Older, 17 L. S. A. (N. E.) 808; Doll- where the plaintiff and other boys man v. Studebaker, 52 Ind. 286. were standing and showed it to them, not knowing what it was or its dan- Judgment for Defendant. gerous character, some 150 feet from where he picked it up to where he carried it. That this boy handed the CAUSE NO. 2. torpedo to the plaintiff who also did not know its dangerous character, John Kent, by William that plaintiff inspected it and while Jones, next friend so doing it exploded and occasioned VS. considerable damages to the plaintiff The Michigan Central by reason of personal injuries, for Railroad Company. which he now brings this action through his next friend. Should Action for Damages,-$10000. plaintiff recover or not and why? NOTRE DAME LAW REPORTER

Walter A. Rice and III. For a definition of Proximate George 0. Witteried, cause see Intervening or concurrent Atty's for Plaintiff causes, 22, R. C. L. 199. Charles P. J. Mooney and A railroad company is not relieved Peter Lish, from liability to a child injured by-an Atty's for Defendant improperly fastened turntable, by the fact that it was put in motion by the POINTS AND PLAINTIFF'S playmates of the injured child. 22 R. AUTHORITIES. C. L. 167. vs. I. The case of Harrimann A person is generally held liable 12 N. Ptitsburgh, C. & St. L. R. Co., for any injury resulting for leaving all four with the case at E. 451, is on explosives in a place accessible to are identical with those bar, the facts children, especially if it is a public in this case. place or a place where children are case a child of ten years of In that wont to congregate under circum- by reason of the ex- age wa sinjured stances which do not make them wil- which plosion of a railway torpedo ful trespassers. the servants of the company had placed upon the track at a place near Wells vs. Gallagher, 144 Ala. 363. 3 L. R. A. (N. S.) 759. the station and where the public were St. Louis R. R. Co. vs. Gaggner, 116 wont to gather, a playmate of the S. W. 948. 52 L. R. A. (N. S.) and child picked up the torpedo and notes in 24 L. R. A. (N. S.) 586. while handling it, it exploded, injur- IV. The act of the child causing ing the plaintiff. The court held: the explosion is generally held not to That the railway company was liable be such an intervening cause as will for the injury caused by the negli- relieve the defendant of liability. gence of their employees, who placed See 22 L. R. A. 167. the torpedo upon the track at where children were wont to play. DEFENDANT'S POINTS AND This case is the leading case along AUTHORITIES. this line and the holding of the court in that case has been sustained in the I. The act of the trainmen in following cases: 78 S. E. 816; 38 placing the torpedoes on the track S. E. 356; 47 Ohio St. 387; 24 N. E. cannot be deemed the act of their 658-8 L. R. A. 464; 11 R. C. L. 664-20 master, i. e., the railroad company. R. C. L. 87. See Sullivan vs. L. & N. R. R. Co., 74 II. Attractive Nuisances - The S. W. 171; Morier vs. St. Paul Ry., following case held that anything 17 N. W. 952; Smith vs. N. Y. R. R. in the nature of explosives is Co., 78 Hun. 524; Young vs. South attractive to children and persons Boston Ice Co., 150 Mass. 527; Birn- using them must exercise the utmost baum vs. Philadelphia R. R. Co., 94 care in using and handling them, Atlantic 925; John vs. Birmingham especially if they are liable to be Realty Co., 55 South 801; Bowley vs. accessible to children. Mattison vs. O'Connell, 27 L. R. A. 173; Snyder Minn. & N. W. R. R. Co., 95 Minn. vs. Hannibal, etc., R. R., 60 Mo. 413; 477; 104 N. IV. 443; 70 L. R. A. 503, Davis vg. Houghtelin, 14 L. R. A. 737. given in the notes in L. R. A. (N. S.) II. The act of the child in hand- 19-1128. ing the torpedo t othe plaintiff was NOTRE DAME LAW REPORTER such an intervening cause as broke CAUSE NO. 3. the casual connection between the alleged negligence of hte trainmen John Jones and the injury to the plaintiff. See VS. Kinkbeiner vs. Solomon, 24 L. R. A. Samuel Smith (N. S.) 1257. III. The torpedo is not a danger- Action on Note. Demand $100. ous agency. See Mize vs. L. & N. R. R., 16 L. R. A. 1084; Kleebauer vs. Samuel Smith, defendant, signed Western Fuse Co., 60 L. R. A. 377. and delivered his promissory note payable in Bank for $100 to Richard The fact that the person respon- Roe. Jones purchased the note from sible for the intervening act is a child Roe before its-maturity, paying valu- does not affect the case, but, if the able consideration therefore. act itself is an intervening effective The facts are that Smith did not cause, it will break the casual con- think he was signing a note; that he nection. See Finebeiner vs. Solomon, was merely signing an order for 24 L. R. A. (N. S.) 1257; Otter vs. medicine and treatment; that Roe so Cohen, 1 N. Y. Supp. 430; Loftus vs. represented and stated to him thai Dehail, 65 Pac. 379. the paper he, Smith, signed was an The plaintiff is not conclusively order for medicine; that he could presumed to be incapable of contri- neither read nor write and so stated butory negligence. In fact, there is to Roe at the time of the transaction; no presumption either way regarding that he stated to Roe that he would his capacity. See Terre Haute R. R. sign the paper if it was an order for Co. vs. Tupperbach, 9 Ind. App. 422, medicine; and that Roe thereupon 36 N. E. 915; Riderbaur vs. Kansas gave the paper to a stranger who hap. City R. R., 13 S. W. 889; Elwood vs. pened to be present at the time who Addison, 26 Ind. App. 28, 59 N. E. read it and stated that it was an or- 47; Citizens Street Ry. vs. Stoddard, der for medicine; that he was thus 10 Ind. App. 278, 27 N. E. 723. misled into signing the paper and ex- The defendant is not an insurer of cept for these facts would never have the safety of children because he is signed it; that he intended to. sign the owner of appliances that may ap- only an order for the medicine he peal to their youthful fancies. See was purchasing at the time. The de- Lewis vs. C. C. C. & St. L. R. R. Co., fendant's wife and son were within 84 N. E. 23; Galveston Ry. vs. Cunie, the building where this transactior 10 L. R. A. 307; Ballard vs. L. & N., occurred, but were not called and 16 L. R. A. 1052; Fitzmaurice vs. consulted by the defendant at the Conn. R. Co., 3 L. R. A. 149; Clark time. Should the plaintiff recover or vs. Richmond, 8 Am. St. Rep. 281; not and why? Daniels vs. N. Y. & N. E. Ry Co., 28 James L. O'Toole and N. E. 283; Frest vs. Eastern R. R., 9 Frank M. Franciscovich, At. 190; Union Stock Yard & Tran- Attorneys for Plaintiff. sit Co. vs. Butler, 92 Ill. App.-; Henry W. Fritz and Ryan vs. Tomar, 87 N. W. 644. Hugh Gibbons, Judgment for Plaintiff. Attorneys for Defendant. NOTRE DAME LAW REPORTER

PLAINTIFF'S POINTS AND never a party to such a contract. AUTHORITIES. Green v. Willie, Z6 L. R. A. 435; 1. Where a person is induced by Gibbs vs. Linabury, 22 Mich. 479 Am. fraud t, sign a bill or note under the Rep. 675; First Natl. Bank vs. Deal, belief that he is signing a different 55 Mich. 592; Webb vs. Carlin, 78 instrument, his signature is null and Ind. 403-51 Mich. 563; 35 Neb. 651; void and he is not liable there or 29 Ohio St. 467-9 Am. Rep. 548. even ad against a bonafide purchaser for value provided that in so doing or II. No one can be made a party signing he acted without negligence. to a contract without his own con- However this rule does not apply sent. Briggs v. Ewart, 51 Missouri because defendant was negligent- 245 (11 Am. Rep. 445); Martin v. the degree of care is clearly stated in Smylee, 55 Miss. 577; Corby v. Wed- 13 N. W. R. 132. dle, 57 Miss. 452. 2. When one of two innocent par- III. Although a nMaker is not liable ties must suffer for the fraud of another the loss shall fall upon the one to read or write, yet if he signs a who enabled the third party to com- paper without any attempt to learn mit the fraud. the contents he wil be guilty of neg- This point is brought forward in ligence which will preclude his de- 29 Iowa 498. fense of fraud. Fisher v. VonBeh- 3. The defendant is estopped from maintaining the defense of fraud ren, 70 Ind. 19. against the Bonafide holder because IV. Where a party to an instru- of negligence. ment undertakes to read it over in This point is illustrated in 77 Cal. the presence of the other party in 572; 73 Pas. 286. Also 79 Ind. 80, and order that the latter may understand 29 Ohio 473. signing it, the 4. The definition of negligence: its contents before (Ruling case Law Vol. 10, page 1) party reading it is morally bound to Negligence is the lack of diligence, read it correctly, and the other party omission of due care, failure to use has a right to rely upon its being so the efforts or like precaution which read and need not examine it him- an ordinary prudent person would self. Anderson v. Walke , 34 Mich. employ in like circumstances. 113. See Baldwin v. Bucher, 86 Ind. The degree of diligence required: 13 N. W. R. 892. 221; William et al. v. Stall, 79 Ind. 5. Fraud in obtaining a note does 80; Webb v. 'Corbin, 78 Ind. 403. not affect a bonafide holder-13 Ala. 106. St. Joseph Loan & Trust Co. of South Bend, Indiana DEFENDANT'S POINTS AND VS. AUTHORITIES. First National Bank of I. An illiterate maker of a note Chicago, Illinois. and mortgage for $1,000, who is fraudulently induced to sign them Action for $1000 Note Collection. supposing that he is signing a lease and a note for $100 to a different CAUSE NO. 4. payee, is not liable on the note even if it is in the hands of an innocent Plaintiff sues to recover the amount purchaser, unless he was guilty of of certain checks which it claimed to negligence in making it, since he was own and which came into the defend- NOTRE DAME LAW REPOMTER

ant's hands and which it claims to PLAINTIFF'S POINTS AND own, under the following facts: AUTHORITIES. Plaintiff sent the checks to the Peoria National Bank of Peoria, Il- 1. A legal title to commercial linois, endorsed as follows: "For col- paper restrictively endorsed for collection pay to the order of F. G. Bry- lection only cannot be acquired from an, Cashier," Bryan being the cash- a bank to which it is sent for collec- ier of the Peoria National Bank. tion. Lyons vs. Wisconsin National The Peoria Bank then sent the Bank, 26 Atl. 520. Title remains in checks to the defendant. The defend. the endorser. National Butchers and ant and the Peoria -Bank at that time Drovers Bank vs. Hubbell, 117 N. Y. and for a long time prior thereto had 384. an agreement by which the two Banks collected all the commercial 2. An endorsement for collection paper for one another thus sent tc of negotiable paper by the owner is them. and instead of remitting the notice to every bank and person into proceeds of the collections just whose custody it may come that the credited the amounts of such collec- owner has not parted with his title, tions to their accounts between them. but merely with possession for the After sending these checks to the purpose of collection. National Bank defendant the Peoria Bank became vs. Johnson. 69 N. W. 49. insolvent, heavily indebted to the defendant. Defendant collected these 3. Title remains with the first checks and gave credit to the Peoria owner who restrictively endorses the Bank on its account as usual under paper. 3 Fed. 257; 33 Fed. 408; 26 their agreement. Atl. 520; 19 Fed. 302; 22 N. E. 1031. Plaintiff sues defendant to recover the amount of the checks. Defend- of contract between itself and the DEFENDANT'S POINTS AND ant insists that there is no privity AUTHORITIES. plaintiff; that plaintiff is a third party and can have no rights under Defendant contends that it is not the agreement between the Peoria liable because title to paper passes to Bank and itself. the Peoria Bank when sent to it by Who should recover and why? plaintiff and the Peoria Bank must Frank E. Coughlin and be looked to for relief. Plumes County Joseph E. Sanford, Bank vs. Bank of Rideout S. & Co., Attorneys for Plaintiff. 47 L. R. A. 552; 131 Pac. 360. Also Gerald Craugh and Davis vs. Elmira Savings Bank, 161 William S. Allen, U. S. 275; 16 Sup. Ct. Rep. 502. Attorneys for Defendant. Judgment for Plaintiff. NOTRE DAME LAW REPORTER

ONLY OUR OWN OPINION

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

THE DEFENSE OF RASTUS BROWN* *Written as part of a mock trial for a me yo' ears; and if yo' have any tears negro minstrel, by Francis J. Vurpillat, ex- Judge of the 44th Judicial Circuit of Indiana to shed prepare to shed dem now. I and a member of the Law Faculty of the come not to bury pore Rastus but to University of Notre Dame, Indiana. Pub- lished in Case and Comment, January, 1918, save him. Yo' may think because de issue. testimony shows dat Rastus was Yo' Hono' and Genmen of dis Jury: caught red'handed-I mean black- Dar's pore Rastus Brown in de handed-in de act; dat he was seen toils of de iaw. And what fo'? Fo' de to emerge from Mister White's chick- stealin' of a chicken-fo' de takin' of en coop with de aforesaid chicken un- a chicken. Now listen to de formal der his arm; dat he was trailed by de charge: footprints on de sands of time he United States of America, made from dat chicken coop door to State of Indiana, de back door if his chicken; and dat County of Nowhere, he was caught dere with de aforesaid Town of Oblivion. chicken in his possession; dat dere In de Piece of a Justice Court. am no possible defense for pore Ras- Joe Johnson, de town marshal, and tus under de law. But I say to you, Jim Jackson, de night watch, both be- Genmen of de Jury, dere is a defense ing duly sworn, on deir oaths say dat fo' him. I appeal to you upon in said county, on de moonlight de higher, de supremer, de unwrit- night of de 24th day of Decem- ten law of dementia Africana. And ber, one thousand nine hundred if de learned Piece of a Justice sixteen, Annie Domino, one Rastus -should say dat such a law cannot be Brown, early and late of said invoked, I would jus' call yo' atten- county, did den and dere felon- tion to de illustrious example of iously and unlawfully steal, take, pur- Abraham Lincoln. When Abraham loin, pilfer, and carry away of de Lincoln was about to issue de famous personal belongings of Mister Wyan- Emancipation Proclamation freein' dotte White one chicken, commonly all de Negroes in de land from ordi- called a rooster, but uncommonly call- nary slavery,. de charged him with ed Chief Cockscomb, of de fictitious breakin' de Constitution he had value of five hundred dollars, but of sworn to sustain. But he answered de real value of ten cents a pound, dat he would sustain de Constitution weighin' 3 pounds, bein' 30 cents,- if he had to break it to sustain it. So, against de peace and dignity of de Gemmen of dis Jury, when yo' are aforesaid Johnson and Jackson and about to issue your emancipation pro- contrary to de Justinian and Blacks'- clamation freein' pore Rastus from tonian codes. dis criminal servitude and court Now, Genmen of dis Jury, Ma or anyone else says yo' are doin' Friends; Negroes, Countrymen, lend violence to de law yo" took oath NOTRE DAME LAW REPORTER

to sustain, tell dem in de language of upon which dis intelligent jury will Lincoln dat yo' are goin' to sustain surely free dis Negro. But dere arc de majesty of de law if yo' have tc some particular reasons why dey will break it to sustain it. Why dere's nc free him. Why, dis love of de chihk- law in de universe but what's broken en was not only born in pore Rastus sometime or udder. Even de law of but it was bred in him. He was gravitation and de laws of de plane- taught to take de chicken at his mud- tary system were broken; fo' don't der's knee. One time when little Ras- yo' know de Good Book says dat Josh- tus was only seven years old, de c-l - ua commanded de sun and de moon to o'ed minister came to visit de family stand still and dey did stand still. and he gave Rastus a quarter arid Now I.seogoin' to prove to yo' Gem- told him to buy himself a chicken. But men of de Jury, dat de nigge' has de jus' as soon as he minister was gone right to take de chicken. De chicken Rastus' mudder said to him: "Rastus and de Negro belong togedder. Dey Yo' dun give dat 25-cent piece to yo' sustain de most pleasant relations to- mudder and yo' go get dat chicken gedder in dis world, and if dere's nc in de natural way." And I suppose chickens in de nigge' heaven den I Rastus obeyed de teachin's of his say to you dere's no heaven fo' de good mudder. nigge's. Ever since de days of de And now we have come to de moon- flood when de ark rested on A-rat light night of de 24th of day Decem- and Noah and his sons started de red, ber when dis awful crime was com- white and blue races, and his son mitted. Pore Rastus had prayed dat Ham started de black race-ever de Lord might send him a chicken fo' since de days of Ham de egg has gone de Christmas dinner; and yo' may be- with it. And jus' as shuah as de Ne- lieve me or not, but I will stake my gro is de descendant of Ham, and de professional reputation and personal chicken is descendant of de egg, and reputation on de truthfulness of de jus' as shuah as ham and eggs go to- story dat, after pore Rastus prayed gedder 'mong de white folks so do de in vain fo' three days and three nigge' and de chicken go togedder. nights dat de Lord might send him a Why, Gemmen of de Jury, chicken, he was about to despair "Breathes dere de (Negro), with soul so when a ray of light struck him and dead Who never to himself hath said, he heard a small voice say to him: This is my own, my native (chicken) ?" "Rastus, don't yo' know dat de Lord Freedom to de Negro without de helps dem dat help demselves? In- right to take de chicken would be no stead of sayin' 'Lord send me a chick- freedom at all; for de most natural en, say 'Lord, send me to a chicken.'" propensity, de strongest proclifity. Rastus did, and soon he was on his de intensest desire, of de Negro is to way dat fateful moonlight night of take de chicken. Abraham Lincoln de 24th of December, happy to think knew dis when he freed de nigge's, dat he would have a chicken dinner and you know dat freedom was un- and a Merry Christmas fo' his family limited. So de nigge' has de civil But alas! how different dat pleasant right as well as de natural right to dream from dis awful reality. Dar's take de chicken. pore Rastus in de toils of de law, Now dese am de general principles chained to de ball, broken-hearted NOTRE DAME LAW REPORTER

and downcast.. And dere by his side preme, unwritten law of dementia sits his pore widowed wife, cryin' as Africana, and free pore Rastus hert. if her heart would break. And look and now. Every man on dis jury at de three little, innocent pickan. who says dat Rastus Brown is not ninies, watchfully waiting fo' dleir guilty rise in his miyht and say aye. fadder to be free. 0 how long must dis injustice last; how long is de (A unanimous uprising and chorus law's delays? of ayes by the jury. The court di- Gemmen of de Jury, have yo' no rects the signing of the verdict and hearts? Have yo' no high intelligence tells Rastus he is a free man. Where- and reason to see dat Rastus had no upon, Rastus expresses his gratitude criminal intention in dis case, but dat thus: "Well, Gemmen, I's shuah glad he was simply moved by dat same de- fo' yo' kindness, and I want yo' all mentia dat is de second nature of all to come to my house some moonlight us Negroes? Den have de courage of night, after prayer meeting, fo' a yo' convictions and apply de high, su- chicken dinner.") NOTRE DAME LAW REPORTER

CASE AND COMMENT NOTE: A lawyer's license is granted the contributors to this section of the Reporter. But case comment and criticism is here made upon the sole responsibility of the contributors. (By JOHN P. TIERNAN) In a Michigan case, Krolilcos Kaz- marek, 175, N. W., 239, the court In a Maine case, Stenert & Sons, vs. held that where a sale is made in vio- Reed, 108 Ati. 334, the court held tha,, lation of the Bulk Sales Statute where, in a note given for a piano, ti- and is successfully set aside by cred- tle was reserved in the seller until itors of the seller, the buyer can re- note was fully paid, recovery of a cover the price paid in an action judgnent -thereon did not pass title against the seller, since there is a in piano to buyer in the absence of failure of consideration and the sel- satisfaction. The decision is abso- ler cannot plead his own violation of lutely sound in principle afid in ac- the statute as a defense. With the cord with the intention of the parties. greatest. deference, it is submitted Clearly it is not a case where the doc- that this decision is unsound. There trine of election of remedies applies. is no failure of consideration since since action on the note is a personal title and possession passed to the remedy, whereas replevin is proprie- buyer and the sale was absoluttely tary. valid between the original parties as the cburt itself expressly states. Fur- In a Vermont case, Ex-Parte St. ther, the buyer is making his own Augl, 108, Atl., 203, the Vermont violation of the statute the basis of court held that in habeas corpus to his cause of action and the position of recover custody of infants, damages a defendant is the more advantageous for their detention are not recovera- where both parties are equally at ble since habeas corpus is a proceed- fault. The statute imposes the duty ing to determine solely the status of of observing its mandates not upon the parties affected and not to pro- one but upon both of the parties and vide a compensatory remedy to per- hence where a statute is violated by son deprived of their custory. Ob- the plaintiff he does enter with the viously the proper remedy for such metaphorical "unclean hands" and relief would be an action for loss ol should be denied relief from a situa- services. tion he himself helped to create.

In an Indiana case, Christlieb vs. In a South Carolina case, Wilson Christlieb, 125 N. E. 486, the court vs Palmetto Nat. Bank, 101 S. E. 841, held that on the particular facts al- the court held that a bank is liable for leged, the marriage could be annulled temperate damages-for failure to hon- for fraud. This is the first Indiana or a depositor's check. There was no decision that determines the sufficien- loss shown upon the trial but a shb- cy of fraud that would justify a dis- stantial award of damages was re- solution of the marital status, hold- thrned by the jury. Where no loss ing that it must be such that "affects is shown, the verdict should be limit the essentials and fundamentals" of ed to nominal damages. The court that relation. was certainly conscious of the distinc- NOTRE DAME LAW REPORTER tion between nominal and substan- 7. In Myers vs. Fortunate, 108, At., tial damages but in its desire to al- 678, the Delaware court holds invalid low the verdict to stand and at the a city ordinance which provided that same time do no violenre to the prin- no permit shall be granted by the in- siple itself held that "temperate dam. spector of buildings for the erection ages" are proper in such a case. of a public garage in the residential section without consent of property The Georgia case, Weayherbt vs. owners. The court draws a distinc- Pittman, 101 S. E., 131, presents sev- tion between an ordinance that con- eral interesting questions. In this fers arbitrary power upon a public case the court held that a note given official and an ordinance giving such to attorneys to defend a person charg- absolute power to a portion of the ed with crime was based on a suffi- people, observing, that "it cannot be cient consideration, although the at- assumed that the official will act arbi- torneys had previously been assigned trarily or otherwise than in the exer- by the court to perform this duty. cise of a sound discretion." The The court further decided that oral court is evidently unmindful that all ratification of an unauthorized signa- the decisions hold invalid an ordin- ture to a note was valid. It is to be ance giving an official arbitrary pow- observed with respect to the first er in this class of cases. The dis- point decided, that there was no. tinction made by the court, however, statute compelling attorneys to de- was not necessary to the decision in fend a person charged with crime, the case and the majority of cases but the judge referred to it as being hold that an ordinance of the variety a legal obligation arising out of his under consideration is entirely valid. relation to the court and originating There is a strong judicial tendency tc in the common law. Here is dictum, sustain ordinances if it is possible to if not decision, that an attorney is do so in order to give effective opera under a legal obligation when assign- tion to the municipal police power ed by the trial court, to defend a per- that modern conditions demand. son in a criminal prosecution. But he is entitled to no compensation for 8. In State ex rel. Schafer vs. his services unless a statute express- Spokane, 186 Pac., 64, the Washing ly provides therefor. There was no ton court held valid an ordinance pro- such statute in the state. Hence, the hibiting operation of jitney busses on court reasoned when such services the public streets without a permit which the attorneys were legally from the City Council. Here is an bound to render, were rendered, it important decision on a timely ques- created a moral obligation on part of tion. It holds that a city can not only defendants to pay therefor. This, regulate the industry but prohibit it the court held, was sufficient to vali- absolutely within its municipal limits. date the note in view of the fact that The court makes a sound distinction there is in force a Georgia statute, between cases in which an ordinance Civ. Code, 1910, See 4243, expressly can merely regulate and cases where provides that ',a good consideration its police power can be exercised pro- is such as is founded on a strong mor- hibitively. Speaking with reference al obligation. to the facts in the case the court said: NOTRE DAME LAW REPORTER

"But the use to which the appellant 10. The Texas case of Richmond purposes putting hte streets is not vs. Sangster, 217, S. W., 723, strikes a their ordinary or customary use,but a fatal blow at transient divorces. It special one. He purposes using them presents a flagrant case of perjury for the transportation of passengers and imposition upon the Illinois for hire, a use for which they are not courts by a party who deserted the primarily constructed. As to such domicilary state and located tempor. users, we think the power of the arily in Illinois in order to obtain the municipality is plenary. It devises decree. The decree was held void fo" reform of regulation pertaining to lack of jurisdiction therefore, not business of this character, even to the only in Illinois but in Texas. It prohibition of the business entirely. merited no exterritorial recognition in other states on the principle of comity and could demand no opera- 9. The Supreme Court of Louis- tion by virtue of the full faith and iana in Brown vs. Giullot, 83 So., credit clause of the Constitution, 373, rendered an interesting decision. citing Haddock vs. Haddock, 26 S. The case was an application for a W. Rep. 525, and a host of decisions writ of mandamus by the defendant from leading states of the Union, in a criminal prosecution to recog- This instructive case, sound in its nize the right of one Mundy to repre- reasoning, just in its decision -and sent the relator as his counsel in the commendable in its doctrine, brings trial court. Court issued the writ, once more to the forefront the sub- holding that the right of a person to ject of foreign divorces. As to how practise law can not be questioned a divorce granted in one state can be collaterally. The principle involved rendered conclusive, valid not only here is of course not decisive of a as to the merits of the case, but juris- case where the court inquires intc dictionally in other states, is a legal the authority of a person to represent question that is believed to be incap- a party as his attorney, this being able of solution. But apart from this merely a question of agency, and rigid adherence to principle as is presupposing the legal right of the clearly evidenced by the courts in an person to practise law generally. The inexorable demand that jurisdiction unauthorized act. of an attorney in is indispensable to the validity of the representing a client, however gives judgment, the courts render society the court no jurisdiction of the itself a noble and a lasting service in party's person although a few courts discouraging the divorces that are hold it to be a mere irregularity. scandalizing American life. NOTRE DAME LAW REPORTER LAW SCHOOL NEWS.

NOTRE DAME'S LEGAL RE- Hoynes-these are the founders, NAISSANCE names to be forever honored at Notre Dame, men who, under unauspiciou- (By Delmar J. Edmundson) conditions, steered the unwieldy bark It's an ill wind, as the philosophers to recognition and honor. Though say so aptly and frequently, that the visible manifestations of their blows nobody good. Several years work passed with the old law room ago, when an intermittent fire gnaw- their memory remains dear to thous ed persistently at the old Chemistry ands of alumni in the legal profes- Hall till nothing but the walls re- sion. mained, it. would have taken a keen Erected on the site of the first and optimistic eye to discern a silver Chemistry Hall, the new building lining in that catastrophe. But what wherein was established the Hoynes at first blush seemed a tomb stone College of Law, stands as a symbol happily proved, a stepping stone to of the new regime. Improvements better things. A new Chemistry are manifold; facilities for assimilat- Hall, proof against flame, was erected jurisprudence notably increased-a back of the charred shell of the old, change which works to the consterna- and lo! from that shell emerged the tion of the "snap course" man, who new improved Law College. no longer finds a law degree the eas- In the embryo days of that depart- iest, but rather one of the hardest to rent the learned but handicapped acquire. professors held forth always within The law library constantly grows the cramped space of one room; legal in size and catholicity. The law fac- maxims, thundered into attentive ulty is to be increased to a number ears, echoed from one wall to anoth- more readily able to handle the over- er, walls that must have grown weary flow of incipient barristers. The law of the rule in Shelley's Case. Those building contains a fully equipped long, sturdy benches, through gener- cout room, behind whose bench a ation after generation of law stu- Marshall might be honored to sit. dents were victims of the sculptural Courses in procedural law and court aspirations of men who had little tal- schedule have been inadgurated by ent but much energy and sharp the new dean, Judge Vurpillat, which knives. Thus if they found Blacc- are unique and exceptional in the law stone not to their taste, circumstances schools of the country. These and were not lacking to encourage ani countless other changes, of which it emulation of Praxiteles. would be useless to attempt an enum- That same room knew many able eration, have been made. The scribe men, professors who strongly build- may recount the various forward ed the foundations, and students who steps that have been taben, but it reared the structure to do Alma Ma- were almost impossible to describe ter proud in forensic circles. Under the new spirit that pervades the de- the circumstances the wonder is that partment, a spirit of proud content- so much was accomplished. Timothy ment and achievement that is, it may E. Howard, Lucius Hubbard, Colonel be said, an inevitable accompaniment NOTRE DAME LAW REPORTER of the advance in legal paraphernalia to the Law College in 1015 by the and environment. But these changes Rev. John Cavanaugh, the then presi. are not the only ones to be recorded, dent, and since that time has devoted Those in the personnel of the faculty his talents and energies exclusively are of as great an importance. to the work of acting dean. The Judge Francis J. Vurpillat, pro- leadership of Judge Vurpillat augurs claimed Dean of the College of Law well for the Law College, and much at the beginning of the school year, may be expected from his administra. is a man whose wide experience and tion. scholarly mind eminently fit him for Colonel William. Hoynes is honored the position. During his long and as Dean Emeritus of the Law College brilliant career he served in various For his past services none can fail to official capacities, notably as prosecu- pay him admiring reverence; the ting attorney of the 44th Judicial University is rich indeed in the beni- Circuit of Indiana for three consecu- son of his genial personality and pro- tive terms, and for several years as found erudition. Next year Colonel County Attorney and as City Attor- Hoynes will give active service as a ney at Winamac, his native city. In special lecturer in Legal Ethics and November, 1908, he was elected International Law, of which he is a Judge of the 44th Judicial Circuit recognized authority. and served in that incumbency for six years. In addition to the fame Assistant Professor James P. Cos- attained in virtue of the fact that he tello, who recently joined the law was the youngest circuit judge ever faculty, received his degree from the elected in Indiana, Judge Vurpillat Dickinson School of Law in 1898, af- gained prominence and favorable ter fifteen years experience as a comment from the bench and the bar teacher in the public schools of Pen- on account of written opinions de- nsylvania. During the past twenty- livered in cases of unusual import- two years he has been in active prac- ance tried by him, among which were tice at Hazelton, Pennsylvania. the Kankakee Meander Land case; The Law College will continue to another case involving the construc- boast the invaluable services of Pro- tion and constitutionality of the Fee fessor John Tiernan, whose astound- and Salary Law; and another placing display of mnemonics in citing ing the first construction on the gen- cases is at once the marvel and the eral liquor laws of the state, particu. despair of students, and of Judge G. larly the local option law and the A. Farabaugh, who, besides lecturing Proctor Regulation Act, a construc- at Notre Dame, continues to serve as tion affirmed by the State Supreme one of the most prominent attorneys Court. Judge Vurpillat was called before the bar of South Bend. NOTRE DAME LAW REPORTER STUDENT ACTIVITIES. ALDEN J. CUSICK. THE NOTRE DAME LAW CLUB. seek to get in touch with the more side of the law, and to that On Monday evening, February 2nd, practical from men who in conformity with plans which had end to hear frequently the legal battles of been brewing for several years back, are now fighting are therefore all the Lawyers of the University met their communities and the N. D. Law- in a rousing mass meeting and per. in a position to give to the gems of their ex- fected an organization to be known as yers a few of perience. the Notre Dame Law Club. A constitution previously drafted was read On February 20th the "Club" lis- and adopted. The following officers tened to a very interesting and in- were elected for the year: Alden J structive talk by Mr. Win. MclInerny Cusick, President; Harry E. Denny, of South Bend, an old Notre Dam Vice-President; Francis T. Walsh, law graduate and contemporary prac- Secretary; Clifford E. O'Sulliv.,, titioner. Mr. McInerny dwelt or Treasurer; and Hugh E. Gibbons, Public Utility Law and it is the un- Sergeant-at-Arms. animous opinion of all who heard him The purpose of the organization, that his speech was "great." During quoting from the Constitution, is: the remainder of the term the Law "The general diffusion of legal know- Club will hear from other well known. ledge among the students of the Law attorneys. And among those who School by stimulating study of the have already accepted invitations to law in its broader aspect; and the speak are Mr. Farabough of South promotion of a fraternal spirit among Bend, one of Indiana's real lawyers, its members by providing a medium and Mr. P. H. Martin of Green Bay, for social -activity." All who are ac- Wisconsin, a criminal lawyer of wide ouainted with the facts will readily repute. s~e that the perfection of the Notre The Law Club supplies another Dame Law Club supplies a long felt great need of the College lawyer, and earnest need of the College of the opportunity for fraternizing. Law which, in point of enrollment Through the instrumentality of and instruction is now acknowledged smokers, banquets and other social to rank with the best in the States. functions the magic warmth of fra- The time has forever passed when ternity will be infused into every the college-bred lawyer of the pro- man. The Notre Dame Lawyer of gressive type can be a mere compen- the future need never be forced to an dium of legal doctrines and theories embarrassing admission that he is not which were stored in his brain by the acquainted with his classmates or stern tactics of the class room. It is junior associates in the course. And the human heart-to-heart touch of what's more he can boast of a friend- fraternity which really puts the as- ship of brother students from nearly pirant for an LL. B. sheepskin in a every state in the Union, for enroll- receptive mood and heightens his am- ment records show that twenty-eight bition to know the law. Through the states are now represented in the Col- agency of their Club the law students lege of Law and reports emanating NOTRE DAME LAW REPORTER from the office of Dean Francis J. and elected the following officers to Vurpillat give good basis for the pro- represent them for the year: Presi- phecy that the time is not far dis- dent, Edw. Doran of South Bend, tant when each of the forty-eight Ind.; Vice-President, Clifford O'Sul- states will have one or more repre- livan of Chicago, Ill.; Secretary, I. sentatives. The value of so-called L. Leslie of Waverly, Ia.; Treasurer, "mixing" between men from every Maurice Smith of Manketo, Ill.; and section of the country; between men Sergeant-at-Arms, George L. Murphy all working toward a common goal of St. Cloud, Minn. On but a few oc- cannot be overestimated, and particu- casions indeed, has the Law School larly so when applied to the law had cause to boast of a graduating school and the legal profession. In class with the "snap" and talent of the social activities of the Club two that which leaves the halls of the smokers have already, gone into his- Gold and Blue this coming June. Its tory. A big all-lawyers banquet is members have been prominent in booked for an early date. A commit- every activity of the campus and have tee, under chairmanship of Leo Has- made a record which should be a fit- senaeur, reports that indications ting goal for subsequent "grads" to point to one of the most elaborate and attain. enjoyable social events of the year On two occasions during the when the Notre Dame Law Club present school year have the mem- gathers 'round the festive board. bers of the class drunk the rich wine Several Chicago lawyers of promi- of good-fellowship over the banquet nence have been invited to speak on board, first in November and again this occasion. just prior to the Christmas vacation. Let no man accuse the Notre Dame On each occasion the walls of Kable's Lawyers of being dead or inert. They parlors echoed with the convivial pull together with a spirit which it laughter of a class which, though would do others well to imitate. The scattered in fact will ever be united snappy co-operation and good fellow- in fond recollection of the few sweet ship in evidence at every meeting is and profitable years at Notre Dame a worthy inspiration. They are as in companionship of the "boys" of one in active interest and support of '20. The above banquets were enjoy. the two-fold aim of their organiza- ed by senior lawyers exclusively. But tion: to get in touch with the practi- on Sunday, Feb. 15th, they also par- cal side of the law; and through so- ticipated with the seniors of the other cial activity, to fuse the hearts of all courses in a big all-senior feast in the law men into a common bond of the Rotary Room of the Oliver Hotel. friendship. Look for inspiration on And not the least of the many never- the Notre Dame Law Club. It will to-be-forgotten high spots of thio surprise you. event was the masterly oration of President Doran on "Sunshine vs SENIOR LAW CLASS. Moonshine."

On October 15th the last three year The Senior Law Class of '20 has law class to leave the portals of the four representatives on the all-senior Notre Dame Law School organized Ball Committee. They are Clifford NOTRE DAME LAW REPORTER

O'Sullivan, chairman; Delbert Smith, charge of the Senior Ball which is Clement Mulholland and Norman the biggest social event on the Uni- Barry. This committee has full versity calendar. NOTRE DAME LAW REPORTER ALUMNI DEPARTMENT

SALUTATION. the Notre Dame lawyers who are now This time, just a few words from in the real trenches of legal warfare. an old alumnus of the Law School of No appeal is made for an endow- Notre Dame, who is now a member ment, now so common among the of the faculty, will grace the Con- great institutions of the country.and tributing Section of the Department so loyally and generously responded of the Reporter devoted to the to by the proud alumni of the respec- Alumni. These words are briefly in tive institutions. But a simple plea salutation to the dear old boys of the is made to every law alumnus to be- olden days of the old school. Every come one link in the chain of hearts one of you may feel assured that you that bind about the old Law School are remembered, thought of and of Notre Dame, that they may, with loved by the good institution that one mighty beat, put the school to the continues to move majestically in and fore in standard and reputation, and out on the tide of time, year after thereby make it possible for the year. school in turn to put them all more We sincerely wish we might pre- prominently to the front as boasted sent to every one of you, by mail, a men of the Law School of N. D. .U. copy of this, the first number of the Dear, old Boy: be a subscriber, be Notre Dame Law Reporter. It a contributor, be a consistent reader, would do your heart good, we know, be a reporter, be a booster, be a real, to receive it. You would be elated at live, loving alumnus of the good, old the opportunity which is afforded the school. Send us the news pertaining Alumnus to reach out and grasp the to the professional, political and per- extended hand of the student of the sonal activities of yourself and any Law School of today, in a pledge of other alumnus, for the News Section mutual helpfulness made possible by Send us your correct professional ad- the legal voyages of the Reporter, dress, individual or firm name, for just now so auspiciously launched up- the Legal Directory. And send us on its career. now and then a treatise on the law, The "Foreword" prints the com- legal brief, case comment or humor- plete prospectus of the publication. ous what-not that may be appreciat- If offers the two departments,-thai ed by us all, students and alumni. of the students and that of the Let us hear from you in comment, alumni. Every law alumnus will favorable or unfavorable, about the profit by the work of the student first issue of The Notre Dame Law body and the faculty of the old school Reporter. registered in the Reporter every Good-bye and good luck, quarter; and the students, in return "Dear Old Pal of Mine." will greatly appreciate the good will support and contributed articles, FRANCIS J. VURPILLAT, papers, briefs, and practical talks of Class '91.