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sure and altogether cheerful process it is! How swiftly, and with what an admirable confidence in its infallibility it progresses! Every penny sheet in the land is a tribunal of home-made justice. Conviction follows suspicion, and punishment follows conviction, with the swiftness and inevitableness of gravitation. We suspect that people, especially lawyers, who do not like this method of disposing of grave charges, fail to realize how great an improvement it is upon older and more primitive forms of extra-judicial procedure, such as trial by combat, the ordeal of fire, and the like. In these the accused, whether innocent or guilty, sometimes got off with his life, but who ever heard of an escape from their modern substitute unless indeed the offense charged was newspaper libel! Moreover the earlier modes of trial had the sanction of religion, which was sheer superstition, while our modern equivalent has the sanction of that lovely substitute for religion, which its devotees call Public Opinion, and in whose voice they detect the accents of the voice of God. But in other respects the modern device for dispensing with justice is very similar to the earlier ones. There is the same lofty disregard of law, the same sublime contempt for the processes of courts, and the same pious satisfaction in the results attained. It is not to be marveled, then, that these inerrant organs of a divine inspiration have little patience with the fallible decrees of our judges and the merely approximate results obtained by the operation of legal and judicial machinery. In view of all which, no one will be surprised to learn that at the recent convention of the New York State Press Association, held at Bluff Point, on Lake Champlain, last week, it was unanimously concluded that there are too many lawyers in the Legislature, and that the bar of the State constitutes the principal obstacle in the way of abolishing the control which the courts of law continue to exercise over the newspapers. This is veritable gospel truth, this last charge against the lawyers, and we are almost prepared to go a step further and claim that the bar of the land is the principal bulwark of society and of our institutions against the persistent encroachments of a licentious press
the promise out of the operation of the statute of frauds. Elliott, J., said: "Where the owner of property undertakes to pay for work and materials to be subsequently done and furnished by a subcontractor in order to secure the completion of a building, in a case where the principal contractor has failed to carry on the work, the promise is an original one, and not within the statute of frauds. This principle is intrinsically just, and its enforcement does not in the slightest degree tend to the mischief the statute of frauds and perjuries was intended to repress. In the well-reasoned case of Emerson v. Slater, 22 How. 28, the Supreme Court of the United States gave the subject full consideration, and held that a promise similar to that made by the appellant was enforceable. It was there said: 'But whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may accidentally have the effect of extinguishing that liability.' It is possible that the language quoted states the doctrine rather too broadly, but we shall not inquire whether it does so or not; for here we are not required to decide what the rule is where the promise relates to the past, inasmuch as we are concerned only with what relates to the future at the time the new promise was made. This is so because the only question in this case is whether the appellee is entitled to recover for work done and material furnished after the new contract was made. If the claim asserted was to the sum owing before the new promise was made, there would perhaps be more difficulty in solving the legal problem; but the sum due when the new promise was made was paid, so that the controversy concerns only the right to recover the sum that subsequently became due for work done and materials furnished. We do not decide, we may say by the way, that the sum due might not be recovered under the new promise, had it not been paid. We simply decide the question before us, and that relates to matters that at the time the new promise was made concerned the future, and not the past. These were promises in their nature severable, and the valid promise may certainly be enforced. Lowman v. Sheets, 124 Ind. 416. Resuming our consideration of the decided cases bearing directly upon the question before us, we take up that of Sert v. Geise, 80 Ga. 698, where an owner promised to pay for materials furnished to complete a building then in progress of construction, and where it was said: 'If the supply of lumber was about to stop, and the owner of the building procured its continuance by promising to pay for it, his undertaking was not collateral, but original, and he is bound.' Another case is that of Kutzmeyer v. Ennis, 27 N. J. Law, 371, where the court said, speaking of the owner of a building: 'He was interested in the completion of the work; he received the benefit of it, and he had it in his power to in
NOTES OF CASES.
Board, etc., v. Cincinnati Steam Heating Co., Supreme Court of Indiana, May 14, 1891, plaintiff contracted with defendant's principal contractor to furnish a steam-heating apparatus for a courthouse, the plans agreed upon differing from the original specifications. Defendant, being unwilling to advance pay therefor to its principal contractor, paid an amount due thereon to plaintiff, who executed a bond for the completion of the work, which was verbally assented to by the defendant, and completed the same. Defendant took possession of the building, and continued to use the heating apparatus. Plaintiff sued for an unpaid balance. Held, that the contract was not a collateral one, and there was a consideration moving to defendant that took
demnify himself for the advance to Ennis by withholding the money from the contractors.' In discussing a question which arose in a case very similar to the present, the Supreme Court of Vermont said: 'If in this case a third person make an entire, substantive and independent contract with him to perform the same service, this may be enforced, though not in writing, as it is not collateral.' clair v. Richardson, 12 Vt. 33. But without quoting from the decisions, or commenting upon them, we cite some of them, and affirm that our conclusion that the appellant's contract is original, and not collateral, is sustained by the overwhelming weight of authority. Yoeman v. Mueller, 33 Mo. App. 343; Crawford v. Edison (Ohio), 13 N. E. Rep. 82; Clifford v. Luhring, 69 Ill. 401; Bayles v. Wallace, 10 N. Y. Supp. 191; Hagadorn v. Lumber Co. (Mich.), 45 N. W. Rep. 650; Railway Co. v. Howrin (Tex.), 9 S. W. Rep. 661; Greenough v. Eicholtz (Penn.), 15 Atl. Rep. 712; Fitzgerald v. Morrissey (Neb.), 15 N. W. Rep. 233; Young v. French, 35 Wis. 116. Of the cases cited by the appellant the only ones in point are Ellison v. Jackson Water Co., 12 Cal. 542; Noyes v. Humphreys, 11 Gratt. 636; Ware v. Stephenson, 10 Leigh, 155. The Virginia cases are out of line with authority, and so is the California case. The latter cites as authority a single case, that of Puckett v. Bates, 4 Ala. 390, and that case is in conflict with the later and better-considered case of Jolley v. Walker, 26 Ala. 690. Our own cases very clearly recognize the distinction between original and collateral contracts. The earlier cases are collected in Anderson v. Spence, 72 Ind. 315, and it was shown that the case of Green v. Creswell, 10 Adol. & E. 453, which asserted a doctrine contrary to that here declared, had been overruled in England and denied in America. In Palmer v. Blain, 55 Ind. 11, it was held that a promise by a third person to an execution creditor, that if the creditor would satisfy the execution he would pay the judgment, was not within the statute. A very similar decision was made in Frash v. Polk, 67 Ind. 55. In Aughie v. Landis, 95 id. 419, it was held that a promise by a defendant to pay for work which the plaintiff agreed to do for a third person was not within the statutory inhibition. The case of Shaffer v. Ryan, 84 Ind. 140, illustrates the difference between an original promise and a collateral one, as does also the case of Hackleman v. Miller, 4 Blackf. 322. The case before us is not dependent upon the doctrine of novation, so that the cases of Langford v. Freeman, 60 Ind. 46; Krutz v. Stewart, 54 id. 178; Crosby v. Jeroloman, 37 id. 264; Ellison v. Wisehart, 29 id. 32, are not of controlling influence. It is not dependent upon that doctrine, for the manifest reason that what was done after the new promise was made was done for the promisor, for its benefit, and at its request, and it is only for the value of what was so done that the appellee sues. As to the value of the work and materials furnished under the new promise, the contract was one between the appellee and the appellant, and it did not concern any debt due from Miller to the former."
In Bruyn v. Russell, New York Supreme Court,
tiff may rest on them, the defendant then being permitted to give evidence of a want of considera tion. But the point we are considering is where the burden lies on the whole evidence, and we think it lies with the plaintiff. And on this point it seems to us that the learned justice used language in his charge which would mislead the jury, and which would induce them to think that the defendant must satisfy them that the note was without consideration, while the true rule is that the plaintiff must satisfy them that the note had a good consideration. This view is strengthened by the remarks of the learned justice, when the defendant moved for a nonsuit on the ground, among others, that it appeared that the note was without consideration. The learned justice said that there had been no abandonment by the plaintiff of her legal presumption in respect to the consideration of the note by the introduction of any testimony which showed, or tended to show, what the consideration of it was. This seems to imply that if the plaintiff had given evidence tending to show the actual consideration, the introduction of such evidence would have been an abandonment of the legal presumption, and hence that the failure to give such evidence made the legal presumption stronger than it would have been if such evidence had been given. This tends to show that the meaning of the charge was that the defendant must have a preponderance of evidence before the jury could find that there was no consideration. To test this, let us suppose that the plaintiff had herself been called as a witness, and had testified to the same circumstances as to the execution of the note which she stated to Mr. Bruyn. Could there have been a recovery? Yet the testimony of Mr. Bruyn, not contradicted by her, is almost as weighty as her own testimony would have been. When we consider that Mr. Bruyn was the plaintiff's own witness, and that she therefore must be held to have believed him to be truthful, and that she does not deny that she made the statement to which he testified, it is difficult to understand how the jury could have found that there was a good consideration, unless they gave to the words 'value received' in the note some greater legal effect than they are properly entitled to have. They may have thought that a legal presumption was weightier than the testimony of an honest witness." In the same case it was held that when the genuine. ness of a signature is to be determined, not by the testimony of those who saw it written, or by any such direct evidence, but by the belief of witnesses as to its resemblance to other writings, and by the comparison of other writings, the appellate court, if such other writings are produced before it, is substantially as well able to judge as the jury. The court stated that from an examination of the exhibits produced at the trial and on the appeal, it was satified that the note was not given, and in answer to the suggestion that the jury had twice held the note to be genuine, said: "And we may say that where the plaintiff is a woman, and the defendants are executors of a deceased old bachelor of good means, and where a glamour of elderly affection is
hinted at in the evidence, we need not be surprised if a jury should find a note to be in the handwriting of the deceased, though it were printed on a typewriter."
THE BACCARAT SCANDAL - SIR EDWARD CLARKE.
HE statement which has been going the rounds of the press that several English clubs propose to expel Sir Edward for his remarks upon the Prince of Wales during the trial of Sir William Gordon Cumming's case, and that Her Majesty and her council are to consider the matter, recalls Wendell Phillip's remarks upon the duty of a fearless lawyer, and his contrast between such, and one who counted favor or success at the expense of a fearless discharge of duty. Suppose we stood in that lofty temple of jurisprudence on either side of us the statues of the great lawyers of every age and clime-and let us see what part New England-Puritan, educated, free New England-would bear in the pageant. Rome points to a colossal figure and says, 'That is Papinian, who, when the Emperor Caracalla murdered his own brother, and ordered the lawyer to defend the deed, went cheerfully to death, rather than sully his lips with the atrocious plea; and that is Ulpian, who, aiding his prince to put the army below the law, was massacred at the foot of a weak, but virtuous throne.'
This is Romilly, who spent life trying to make law synonymous with justice, and succeeded in making life and property safer in every city of the empire. And that is Erskine, whose eloquence, spite of Lord Eldon and George III, made it safe to speak and to print.
"Then New England shouts, "This is Choate, who made it safe to murder; and of whose health thieves asked before they began to steal.'
"Always think twice when saints and sinners, honest men and editors, agree in a eulogy."
English clubs and British royalty will do well to ponder upon these remarks before acting.
BRADLEY, J. This is a petition for a writ of prohibition to be directed to the judge of the District Court of the United States for the Eastern Division of the Southern District of Georgia, to prohibit said judge from taking further cognizance of a certain suit instituted before him in said court. The suit sought to be prohibited is a libel filed in said court by John Lawton, owner of the steamboat Katie, seeking a decree for limited liability for the loss and damage which accrued by fire on said steamboat in the Savannah river on the 12th of October, 1887. 40 Fed. Rep. 480. A copy of this libel is annexed to the petition for prohibition. It sets out the facts that Lawton was the owner of the steamboat; that she was an enrolled vessel of the United States, duly licensed to carry on the coasting trade; that she had for twenty years been engaged in transporting merchandise, goods and commodities from and to the ports of Savannah and Augusta, and intermediate ports and landings on the Savanuah river, in the States of South Carolina aud Georgia; and that some of the said goods were transported by said steamboat as one of the through lines of carriers, issuing through bills of lading to and from ports and places within the State of Georgia and ports and places in other States of the United States and foreign countries. The libel then states that on the 8th of October, 1887, the said steamboat left Augusta for Savannah and intermediate places on the river in South Carolina and Georgia, intending to load a cargo chiefly of cotton, being properly manned and equipped; that on the 10th day of October, having then on board six hundred and forty-three bales of cotton, she left a landing called "Burton's Ferry," and shortly after struck on a sand-bar, and notwithstanding the utmost endeavor of master and crew, remained there till October 12th, when fire was discovered in the cotton near the bow of the steamboat; that the fire spread with great rapidity, and some of the bales of cotton had to be thrown overboard to prevent it from spread-19, ing more; and after three hours of the hardest and most hazardous work, the master and crew succeeded in clearing the bow of the burning cotton, and saving the vessel and a portion of the cargo, but leaving the vessel much burned and damaged. A list of the cargo was attached to the libel, which proceeded to state that nearly all of the consignees of the cotton lost or damaged had brought suits against the libellant; and a list of the suits was also appended to the libel, in two of which attachments were issued; that the amount thus sued for, and the loss and damage happening by means of said fire, exceeded the value of the said steamboat and her freight on said voyage; that the fire was not caused by any negligence of the libellant, or of the master and crew, and that by reason of the exception against fire contained in the bills of lading and receipts, the libellant was not liable for the loss and damage caused by said fire; that libellant did not know the cause of the fire, nor had any information as to the cause, not being on board of the vessel at the time; and that all the loss, destruction and damage to the bales of cotton happened by means of said fire, and that said fire was not caused by the design or neglect of the libellant, but was solely caused without his privity or knowledge. After an allegation that the Savannah river is a navigable stream lying partly in Georgia and partly in South Carolina, and that the contracts for carrying the cotton were maritime contracts, the libellant proceeded to contest his entire liability, under the act of Congress in that behalf, and under the bills of lading; and if he should be held liable he claimed the benefit of limited liability. The libel concluded with the usual prayer for appraisement of the vessel, and a monition to all persons claiming damages to appear, etc., The petitioners, who now come to this court for a prohibition, allege that they are cotton factors and commission merchants, resid
ing and doing business in Savannah, and that they were the consiguees of the cotton constituting the cargo of the said steamboat, except a few bales. They state that the said steamboat was engaged exclusively in inland navigation of the Savannah river, between the ports of Augusta and Savannah and intermediate ports and places on either side of the said river, and that she was not a sea-going vessel. They further state the various suits brought by them respectively, namely, ten different suits, mostly in the City Court of Savannah, for different sums, amounting in the aggregate to nearly $16,000; and that in all of said suits, except two attachments, personal service was made on the said Lawton, the owner of said steamboat. The petitioners further state the filing of the said libel, and that an appraisement of the steamboat and freight had been made, amounting to a total of $3,496.75, for which sum the said Lawton had entered into the usual stipulation. They further state that afterward, on the 9th of April, 1888, they objected to the said District Court taking further cognizance of the case, and moved to dismiss the libel on the grouuds that the said court was without jurisdiction in the premises, and that the fourth section of the act of Congress, approved June 19, 1886, on which the said action was based, is unconstitutional and void; but that the said court overruled the said motion, and determined to proceed with the further cognizance of the cause. The petitioners further state, and rely upon, the fact that the greater part of the cotton was shipped by Georgia consignors from divers points or places within the State of Georgia, to be transported to Savannah, Georgia, to consignees who were residents and citizens of Savannah, and was the subject of a commerce strictly internal. The act of Congress to which the petitioners refer as being the act on which the libel of Lawton was based, and which they contend is unconstitutional and void, is the fourth section of the act approved June
1886, entitled "An act to abolish certain fees for
4289 of the Revised Statutes, which, as before stated, was amended by the act of 1886 so as to make the Limited Liability Act apply to all kinds of vessels, not only sea-going vessels, but those used on lakes or rivers, or in inland navigation, including canal-boats, barges and lighters. The fourth section of the act of 1886 also regulates the application of the eighteenth section of an act approved June 26, 1884 (23 St. 57), which reduced the individual liability of a ship-owner for all debts and liabilities of the ship to the proportion of his individual share in the vessel. This section requires no further notice. The only question in the case therefore is whether the fourth section of the act of 1886, extending the Limited Liability Act to vessels used on a river in inland navigation, like the steamboat in question is, as contended, unconstitutional and void. It is unnecessary to inquire whether the section is valid as to all the kinds of vessels named in it; if it is valid as to the kind to which the steamboat Katie belongs, it is sufficient for the purposes of this case. And this question, we think, can be solved by a reference to two or three propositions which have become the settled law of this country. It is unnecessary to invoke the power given to Congress to regulate commerce with foreign nations, and among the several States, in order to find authority to pass the law in question. The act of Congress which limits the liability of ship-owners was passed in amendment of the maritime law of the country, and the power to make such amendments is co-extensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but in maritime matters, it extends to all matters and places to which the maritime law extends. The subject has frequently been up for consideration by this court for many years past, and but one view has been expressed. It was gone over so fully however in the late case of Butler v. Steamship Co., 130 U. S. 527, that we cannot do better than to quote a single passage from the opinion of the court in that case. We there said: "The law of limited liability, as we have frequently had occasion to assert, was enacted by Congress as a part of the maritime law of this country, and therefore it is co-extensive, in its operation, with the whole territorial domain of that law. Norwich Co. v. Wright, 13 Wall. 104, 127; The Lottawanna, 21 id. 558, 577; The Scotland, 105 U. S. 24, 29, 31; Providence & N. Y. S. S. Co. v. Hill Manufacturing Co., 109 id. 578, 593. In The Lottawanna we said: 'It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.' Page 577. Again on page 575, speaking of the maritime jurisdiction referred to in the Constitution, and the system of law to be administered thereby, it was said: "The Constitution must have referred to a system of law co-extensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of the maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign States.' In The Scotland this language was used: But it is enough to say that the rule of limited responsibility is now our maritime rule. It is the rule by which, through the act of Congress, we have announced that we propose to administer justice in maritime cases.' Page 31. Again in the same case (p. 29) we said: 'But while the rule adopted by Congress is the same as the rule of the general maritime law, its efficacy as a rule depends upon the statute, and not upon any inherent force of the maritime law. As explained in The Lot
tawanna, the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country; and this particular rule of the maritime law had never been adopted in this country, until it was enacted by statute. Therefore while it is now a part of our maritime law, it is nevertheless statute law.' And in Providence & N. Y. S. S. Co. v. Hill Manufacturing Co., it was said: 'The rule of limited liability prescribed by the act of 1851 is nothing more than the old maritime rule, administered in courts of admiralty in all countries except England, from time immemorial; and if this were not so, the subject-matter itself is one that belongs to the department of maritime law.' Page 593. These quotations are believed to express the general, if not unanimous, views of the members of this court for nearly twenty years past, and they leave us in no doubt, that while the general maritime law, with slight modifications, is accepted as law in this country, it is subject to such amendments as Congress may see fit to adopt. One of the modifications of the maritime law, as received here, was a rejection of the law of limited liability. We have recited that. Congress has restored that article to our Maritime Code. We cannot doubt its power to do this. As the Constitution extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction,' and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the National Legislature, and not in the State Legislatures. It is true we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, whether State or National. Chief Justice Taney, in The St. Lawrence, 1 Black, 522, 526, 527; The Lottawanna, 21 Wall. 558, 575, 576. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country, with such amendments and modifications as Congress may from time to time have adopted. It being clear then that the law of limited liability of shipowners is a part of our Maritime Code, the extent of its territorial operation (as before intimated) cannot be doubtful. It is necessarily co-extensive with that of the general admiralty and maritime jurisdiction, and that by the settled law of this country extends wherever public navigation extends-on the sea and the great inland lakes, and the navigable waters connecting therewith. Waring v. Clarke, 5 How. 441; The Genesee Chief v. Fitzhugh, 12 id. 443; Jackson v. The Magnolia, 20 id. 286; The Commerce, 1 Black, 574." Pages 575-577.
It being established therefore that the law of limited liability is part of the maritime law of the United States, it only remains to determine whether that law may be applied to navigable rivers above tide-water, such as the Savannah river, and to vessels engaged in commerce on such a river, like the steamboat Katie, in this case. Of this there can be no doubt whatever. The question has been settled by a long course of de cisions, some of which are here referred to: The Genesee Chief v. Fitzhugh, 12 How. 443; Fretz v. Bull, id. 466; Jackson v. The Magnolia, 20 id. 296: Nelson v. Leland, 22 id. 48; The Commerce, 1 Black, 574; The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 id. 624; The Eagle, 8 id. 15; The Daniel Ball, 10 id. 557; The Montello, 20 id. 430; Ex parte Boyer, 109 U. S. 629. In all of these cases it was held that the admiralty and maritime jurisdiction granted to the Federal government by the Constitution of the United States is not limited to tide-waters, but extends to all public navigable lakes and rivers. In some of the casos it was held distinctly that this jurisdiction does not depend on the question of foreign or inter-State commerce, but also exists where the voyage or contract, if maritime in character, is made and to be performed wholly within