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Central Law Journal.

particular instance the courts, in comparatively recent cases, have recognized and sus

tained the position we have taken, holding ST. LOUIS, MO., DECEMBER 13, 1901

that while the state may prescribe who is pro

ficient enough to practice medicine" they The New York Law Journal in a recent cannot say that one who does not rely at all issue favors us with an extended criti. upon medicine shall not minister to the sick. cism of our position on the validity | In other words, by constructional limitaof legislation regulating the practice of tions, these statutes bave been held to have medicine, which we indicated editorially in no application to these so-called "unorthoour issue of November 8th. In this partic dox methods of treatment.” Nelson v. ular editorial we endeavored to lay open the State Board of Health (Ky. 1900), 57 S. W. clear invasion of private right inherent in Rep. 501 ; Evans v. State, 9 Ohio, S. & C. such legislation, especially when it presumes P. Dec. (Ohio 1899) 222; State v. Myloid to bar from practice homoeopaths, osteo- | (R. I.), 40 Atl. Rep. 16; State v. Liuring, paths, christian scientists, magnetic healers, | 61 Ohio St. 39. or any other school of healing not recognized by the state or represented on the board of In another recent issue of The New York examination. We took this position, not be Law Journal, and on another question of cause we believe in any of the “heretical state interference with individual rights, our systems," as our contemporary styles all contemporary, with apparent reluctance, systems of healing outside of the ortho takes up the gauntlet for the individual. The dox schools of medicine and surgery, but be subject referred to is quite a timely onecause the experience of history has taught it “Practical Restraints of the Evils of Ambuto be unwise for one generation to pass judg- lance Chasing.” It seems that in the east ment on heresy, in either religion or science, the lawyer whose practice consists mainly in that may spring up in its midst and does not | bringing suits against large corporations concern any one but its immediate votaries; for personal injuries, is subjected, not only the reason being that very often the beret to a "certain amount of professional and soical views of one generation become the or cial ostracism,” but also of very hostile criti. thodox views of the next. The cry of "heresy”. cism which often regards his methods as is the cry of the dark ages,-it never was criminal, and is continually suggesting some the slogan of a progressive people. This appropriate punishment for him. One ridicu. unreasonable antipathy to new things and lous suggestion, according to our contemponew systems has its petrified unanswerable rary, was made in one of the newspapers of object lesson in the history of the Chinese New York City recently—that the present Empire. Our contemporary speaks of the rules of negligence should be revised, because science of medicine as founded on the "ex modern inventions and the modern spirit of

ation of centuries.” Not more than haste call for a less stringent measure of liaten or twelve centuries. The Chinese have bility for common carriers! The suggestion a system based upon the experimentation of is worthy of a Czar or a Son of Heaven! We forty centuries, together with the total exclu wonder what the rights of the individual can sion of "heretical systems” by imperial edict ! be in the city of New York when such sug. It cannot be denied that the great freedom gestions can be even tolerated. Does twenof thought and practice permitted and en tieth-century civilization demand that the couraged during the century which has just | individual must bow before the “modern closed, has been the principal cause for the spirit of haste,"and that the lawyer who seeks wonderful advancement of the civilized out the man who has been crushed by it and world in all the avenues of science and learn- | tells him of his rights and, if indigent, ing. Feeling the importance of the issue, offers his services for a contingent fee, must the CENTRAL LAW JOURNAL has always lifted be publicly ostracised and indicted as a crimup its voice for the rights of the individual inal? We do not wish to be understood by and against the encroachments of the state this as giving our sanction to the practice of under the guise of the police power. In this “ambulance chasing,”—we certainly agree

that it is very unprofessional. But the seriousness of this offense is much mitigated when we consider that the great corporations themselves have made the practice almost necessary by rushing upon their unfortunate victims and endeavoring, by falsely stating their rights under the circumstances, to induce them to compromise their claims against the company for a mere pittance. We believe more odium attaches to the latter practice than to the former.

The whole trend of this discussion, however, is wrong, and lawyers and law journals are as much responsible for the state of public sentiment on this question as any other source of criticism. The public have been led to believe that an action for damages for negligence resulting in personal injury is an unfair and illegitimate scheme to make money; that there is no equity in it; and that any damages which plaintiff may obtain in such a case is punitive rather than compensatory. It is a pleasure to note, however, that the courts of the country have not encouraged this sentiment, but, with very few exceptions, have, in firmly sustaining verdicts obtained in such cases, asserted that damages for a broken limb, or a blinded eye, are just as legitimate as those for the loss of profits in a business transaction. Bringing an action for damages, therefore, based on negligence, does not ostracize the lawyer. On the other hand, he performs the noblest function of the advocate, in defending the weak against the strong, and upholding the rights of the individual as superior to any and all rights of property and to any “modern spirit of haste” that would sacrifice human life for material gain.

ate the money was conceived, and that therefore the intent, appropriation, and receipt were simultaneous. But this kind of reasoning is very far from satisfactory. Some judges have also regarded a case of this kind as equivalent to the retention by the finder of lost property. But, if the possession of property is innocently obtained, the subsequent retention of it, with a purpose to deprive the true owner thereof, cannot be deemed larceny without doing violence to the ordinary definitions of that crime. In the case of retention of lost property by the finder the cases generally agree in holding that the taking must be with the criminal intent in order to constitute larceny; that, if the finder did not have any intent to with. hold the property from the true owner at the time when he found it he is not'guilty of larceny, even if he afterwards appropriates it to his own use. It is obvious, of course, that, if he does re. tain the property when he knows or could easily ascertain, who the owner is, it will be pretty difficult in most cases for him to prove that he did not have such intent when the property was first found, but this is merely a matter of proof, and, if the circumstances are such that he can show his innocent intent at the time of finding the · property, he is not guilty of larceny.

A change of the common-law definition of larceny has been made by statute in so many instances that it is obviously necessary to take what has been said above with the understanding that it is no longer true in all the states. In New York, for instance, the statute defining this crime has been so broadened as to include almost every withholding of another's property with intent to deprive him of it. But wherever the commonlaw rule on the subject of larceny is in force it may be safely said that the unlawful retention of property innocently received will never constitute that crime.- Weekly Lar Bulletin.

A PURCHASER'S LIEN FOR DEPOSIT.-The vendor's lien for unpaid purchase money is one of the most familiar instances of a charge arising by operation of law, but it is less usual to meet with a purchaser's lien such as was discussed in the recent case of Whitbread & Co. v. Watt, 49 W. R. 534 (1901), 1 Ch. 911. That a vendor of land, who has conveyed without receiving the purchase money or part of it, bas a lien for the amount unpaid has been undisputed law ever since Lord Eldon's examination of the doctrine in Mackreth v. Symmons, 15 Ves. 329; though,

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LARCENY BY KEEPING VHAT WAS INNOCENTLY GOT.-The distinction between the felonious taking and the felonious retention of

otherwise, and does not ultimately obtain a con- part of the purchase money, then to the extent veyance, the contract going off througb no de- of the amount paid the transfer is complete. fault of his, is entitled to a similar lien on the Where, said Lord Westbury, L. C., in the case land for the amount which should be repaid to just referred to, the contract is an executory him. The similarity of the two liens was pointed contraet "in this sense, namely, that the ownerout by Kindersley, V. C., in Wythes v. Lee, 3 ship of the estate is transferred subjec, to the Drew. p. 403. After suggesting tbat a possible payment of the purchase money, every portion distinction might exist in the fact that the vendor of the purchase money paid in pursuance of the had the estate in the land at the time of the con- contract is a part performance and execution of tract, and only intended to convey subject to the contract, and, to the extent of the purchase payment of the purchase money, while the pur- | money so paid, does, in equity, finally transfer to chaser bad not the estate in his possession, and tbe purchaser the ownership of a corresponding his lien, consequently, was not in its origin the portion of the estate." And Lord Cranworth game sort of lien as that of the vendor, he con laid down the doctrine in similar terms: “There tinued: “But when a contract is made and that can be no doubt, I apprehend, that when a purgoes off, it appears to me that, in principle and chaser has paid his purchase money, though he justice, the equity of the purchaser to a lien on has got no conveyance, the vendor becomes a the estate ought to stand on as good a footing as trustee for him of the legal estate, and he is, in the lien of the vendor after conveyance. * * * equity, considered as the owner of the estate. It appears to me that, on the principles of equity When, instead of paying the whole of his purand justice, the purchaser, when the contract chase money, he pays a part of it, it would seem goes off, has a lien.” As long as the land remains to follow, as a necessary corollary, that, to the in the hands of the vendor the question of lien is extent to which he has paid his purchase money, not so likely to arise. It is when the vendor, who to that extent the vendor is a trustee for him; in has received part of the purchase money, sells or other words, that he acquires a lien, exactly in mortgages the land without accounting to the the same way as if upon the payment of a part of assignee for what he has received that the original the purchase money the vendor had executed a purchaser may find his right disputed. In the mortgage to him of the estate to that extent." present case of Whitbread & Co. v. Watt, supra, In Rose y. Watson a purchaser was bound by his by a contract made in January, 1897, one Saun. contract to pay a deposit immediately and the ders agreed to sell, and the purchasers agreed to balance in three years' time, and to pay interest buy, a freehold plot upon a building estate

on the balance half-yearly in the meantime. He of the vendor for £500, of which £200 was paid the deposit and made several payments of paid at once as deposit, and the remaining interest, but at length declined to complete the sum of £300 was to be paid on completion.

contract on the ground that the representations As to date of completion it was stipulated on which he had been induced to enter into it that this should take place as soon as 300 remained unfulfilled. It was held that the purhouses had been erected on the estate, but if so chaser was justified in the course he had taken, many houses were not erected within two years the and that he had a lien on the land for the sums purchasers were to have the right to cancel the which he had paid on account of principal and agreement. Subsequently to this contract Saun interest, a lien which he was entitled to enforce ders sold and conveyed the estate and the assignee

against mortgagees of the vendor who had taken mortgaged it. In November, 1900, the mort

with notice of the contract.- Solicitors' Journal. gagees sold and conveyed the estate to the defendant Watt with notice of the contract of January, CRIMINAL LAW-CRUEL AND UNUSUAL Pun1897. The 300 houses bad not been built, and ISHMENTS.-Justice Rumsey in the case of InSaunders had not paid or accounted for the de

re Bayard, 25 Hun (N. Y.), 546, proved his utter posit of £200 to any of his successors in title. In

failure as a prophet when he said: "The courts December, 1900, the plaintiffs gave notice to re

have rarely had occasion to construe the meanscind the contract of January, 1897, and they

ing of the phrase "cruel and unusual punishment.' claimed from Watt, the then owner, the return of

And since no punishment can be inflicted until the deposit. This was refused, and the question

authorized by the legislature which is often elecwas raised in the action whether the plaintiffs |

ted, and represents the general moral ideas of were entitled to a lien for £200 upon the land in

the people, it is not likely that they will often be the bands of Watt. We have already seen that the

called on to construe it." It may seem an irony principle that a purchaser may be entitled to a

of fate, but since that decision, one of the most lien was laid down in Wythes v. Lee; but the

litigated questions of law has been that of ground upon which it rests received a very im

what punishmantecome within the constitutional

nal. It is not an easy matter to find out just what 614); fine of not less than $100 and imprisis meant by the prohibition against "cruel and onment for not less than 10 days for selling unusual punishments," but the cases all seems to merchandise without a license (State v. Foster point to the conclusion that it was not the in [R. I. 1900], 40 Atl. Rep. 833); disbarment of tention by this provision of the constitution to attorney for misdemeanor in addition to fine (In limit legislative discretion in fixing the punish. re Coffey, 123 Cal. 522, 56 Pac. Rep. 448); fine of ment for crime. This question arose and was in. $20 for every bird unlawfully killed or in possestelligently discussed in the recent case of Terri sion (In re Stone [R. I. 1898), 41 Atl. Rep. 658); tory v. Ketchum, 65 Pac. Rep. 169, where the Su fine of not more than $500 and imprisonment for preme Court of New Mexico beld that a statute not more than eighteen montbs for violating prescribing the death penalty for assault upon a saloon closing statute (Cardillo v. People, 26 train with intent to commit robbery or other Colo. 355, 58 Pac. Rep. 678); punishment of one felony, does not prescribe & cruel and unusual between 16 and 30 years of age convicted of burgpunishment, within the meaning of the eighth lary by imprisonment in reformatory to be amendment to the constitution of the United terminated within 14 years according to the rules States. The court reviews the authorities hold of the institution (Miller v. State (Ind. 1898], 49 ing that "cruel and unusual punishments" in N. E. Rep. 894); fine of not more than $500 on clude only those involving torture and lingering' railroad for not giving signals at highway crossdeath. Sturtevant v. Commonwealth, 158 Mass. ings (Louisville, etc. R. R. v. Commonwealth 598, 33 N. E. Rep. 648; State v. Williams, 77 Mo. [Ky. 1898), 46 S. W. Rep. 207); providing indus310; People v. Morris, 80 Mich. 634, 45 N. W. trial school for children under restraint (State v. Rep. 591; In re Kemmler, 136 U. S. 436, 10 Sup. Ct. ì Phillips [Minn. 1898], 75 N. W. Rep. 1029); two Rep. 930. The test applied by all these cases was years'imprisonment at hard labor for unjustifiable not the proportion between the offense and the assault (State v. Apple (N. Car. 1897], 28 S. E. punishment but the character of the punishment Rep. 469); six years' imprisonment of a member and its mode of infliction. The court said: of city council for asking a bribe (State v. Dur“If this be the test in all cases, then nam (Minn. 1898], 75 N. W. Rep. 1127). Massait must be clear that legislative discretion chusetts courts are very outspoken on this quesin determining the severity of punishment for tion and hold that the provision against cruel crime is not to be interfered with by the courts, and unusual punishment in the state constitution so long as all forms of torture are avoided." providing that no court shall inflict cruel and In State v. Williams, 77 Mo. 310, the court said: unusual punishments is directed to the courts, “The interdict of the constitution against the in and not to the legislature. McDonald v. Comfliction of cruel and unusual punishments would monwealth (Mass. 1899], 53 N. E. Rep. 874. In apply to such punishments as amount to torture, the same case they also hold that the eighth or such as would shock the mind of every man amendment to the constitution of the United possessed of common feeling. If a punishment States providing that no cruel or unusual punishby imprisonment for life of one convicted of the ment shall be inflicted has no application to the offense therein defined (obtaining money under states. There are some authorities, however, false pretenses], should be inflicted, it might well which hold that the constitutional provision un. be said that such punishment would be excessive, der consideration is broad enough to confer upon or, rather, entirely disproportioned to the magni the court the power to review legislative discretude of the offense, yet, notwithstanding, there is tion concerning the adequacy of punishment, "in high authority for saying that the question very extreme cases, where the punishment prowhether the punishment is too severe and dis posed is so severe and out of proportion to the proportionate to the offense is for the legislature offense as to shock public sentiment and violate to determine.” Numerous late cases hold the the judgment of reasonable people.” State v. same position. The following punishments bave Becker, 3 S. Dak. 29, 51 N. W. Rep. 1018. This been held not violative of the constitutional pro

doctrine has been recognized in other cases. In hibition against 'cruel and unusual punishments? Ire MacDonald (Wyo.), 33 Pac. Rep. 18; In re Bayon the same principle: a heavier penalty on one ard, 63 How. Proc. 73; Thomas v. Kinkead, 55 Ark. convicted of felony where he has twice before 502, 18 S. W. Rep. 854, 29 Am. St. Rep. 68. See been convicted for similar offenses (McDonald

also dissenting opinions of Justices Field, Harlan v. Commonwealth, 180 U. S. 311, 21 Sup. Ct. Rep. and Brewer in -O'Neil v. Vermont, 144 U. S. 323, 389); a fine $25 to $100 per day for operating a 12 Sup. Ct. Rep. 693, 36 L. Ed. 450. street car in winter without protecting screen for motorman (State v. Whitaker, 160 Mo. 59, 60 S. WHAT IS THE POWER OF A STATE TO REW. Rep. 1068); penitentiary imprisonment of

STRICT OR FORBID THE DOING BUSItramp threatening injury (State v. Hogan, 63

NESS WITHIN ITS TERRITORY BY A Ohio St. 202,58 N. E. Rep. 572); death penalty on

FOREIGN CORPORATION. train robbers (State v. Stubblefield, 157 Mo. 360, 58 S. W. Rep. 337); hard labor in county jail for

A corporation is a legal entity composed two years for carrying concealed weapons (State of one or more individuals united by law, v. Hamby, 126 n. Car. 1066, 35 S. E. Rep. | under the grant of a franchise from the state, into one body having a special denomination act of business in the state, but the carrying and vested by law with the power of pre- on of business by a foreign corporation. petual succession and of acting in many * * * The constitution requires the forrespects as a single individual. A foreign cor eign corporation to have one or more places poration is one that derives its existence, pow. of business in the state before doing any ers, and rights solely from the laws of another business therein. This implies a purpose at state, government, or country. This is essen least to do more than one act of business, tially the definition given in Daly v. The Na for a corporation that has done but a single tional Insurance Company. It may be well to act and purposes to do no more cannot have note, however, that a corporation organized one or more known places of business in the by the federal government for a federal pur state. To have known places of business it pose, or a private corporation empowered to must be carrying on business.” And this carry out some federal power, purpose, or is substantially the doctrine enunciated by need, as, for example, to build warships or the federal courts.6 Adopting this rule the to build bridges along post-roads or to carry doctrine, broadly stated, may be laid down the mails, cannot be controlled by state laws. as follows: A corporation is the mere creat"Such corporations may supply all their | ure of legislature, and as the states of the needs and buy materials and machinery to union are, for the purpose of jurisdiction, carry on their work in any state in the union foreign to each other, one state may exclude and no state law shall restrict or forbid,"?? absolutely all corporations created by a forfor they are arms of the United States gov eign state, nation, or country from doing ernment, organized or controlled by United business within its limits, subject only to States laws, which laws are just as much the limitations, expressed or implied, found binding on states and citizens thereof as the in the federal constitution.' Mr. Justice Field, state laws are. "The government of the in Paul v. Virginia, adds to the above reUnited States, in its relation to the govern strictions that imposed by comity. He says: ment of the several states, cannot be con “The recognition of its (the corporation's) sidered a foreign government in the ordinary existence, even by other states and the enacceptation of the term. Within the sphere forcement of its contracts made therein, deof its delegated powers, its authority extends pends purely upon comity.” But what is over all the states of which it is composed, comity ? Mr. Murfree in bis work on Corand to that extent it may be said to be porations says: “It is a principle of the identified with each. Hence, a corporation law of nations that, in the absence of any created by the government of the United positive rule affirming, denying, or restricting States cannot with propriety be said to be the operation of foreign laws, courts will a foreign corporation.”3

.presume the tacit adoption of them by their What power, then, has a state to restrict | government, unless repugnant to its policy or forbid the doing business within its and interests ;” and then it adds, in section 3 : boundaries by a foreign corporation ? And, “Comity, however, is a matter of grace rather first, what is meant by “doing business?”

5 Colo. Iron Works v. Mining Co. (1890), 15 Colo. There seems to be considerable conflict on

499; Utley y. Clark-Gardiner Mining Co. (1878), 4 this point. Alabama seems to hold that the Colo. 369. doing of any act involving the use of the

& Cooper Mig. Co. v. Fuerguson, 113 U. S. 727;

St. Louis Wire Mill Co. v. Consolidated Barb Wire corporate franchise or power is "doing busi

Co., 32 Fed. Rep. 802. Other cases bearing on this ness within the meaning of the statute,” point are: Mandel v. Swan (1895), 154 I11. 177; Galves. while Colorado4 holds that “the constitution ton City Ry. Có. v. Hook & Green (1890), 40 Ill. App.

547; Potter v. Bank of Ithaca (1843), 5 Hill, 490; Sny. and statutes forbid, not the doing of a single

dam v. Morris Canal & Canking Co. (1843), 0 Hill,

217, and People v. Wemple (1892), 131 N. Y. 64. 1 (1878) 64 Ind. 1.

7 Cutcher v. Ky. (1891), 141 U. S. 47; Cooper Mig. Stockton v. Ry. Co. (1887), 32 Fed. Rep. 9.

Co. v. Ferguson (1985), 113 U. S. 127; Pembina Min. 8 Commonwealth v. Tex. & Pac. Ry. Co. (1881), 98 ing Co. v. Pa. (1888), 125 U. S. 181; People y. Wemple Pa. St. 90.

(1892), 131 N. Y. 64; Norfolk & , Western Ry, Co. v. Beard v. Union and Am. Pub. Co. (1881), 71 Ala. | Pa. (1890), 136 U. S. 114; McCall v. Cal. (1890), 136 60; Farrier v. New Eng. Mort. Co.(1889), 88 Ala. 275; U.S. 104; Gloucester Ferry Co. v. Pa. (1885), 114 Dundee v. Mort, Co. v. Nixon (1890), 95 Ala. 318; U.S. 196; Robbins v. Shelby County Taxing District Nelmo v. Land & Mort. Co. (1889), 92 Ala. 157.

(1887), 120 U. S. 489; Paul y. V8. (1868), 8 Wall. 168.

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