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THE RELEASE OF ONE JOINT TORT FEASOR AS A DISCHARGE TO THE OTHERS.

Under what circumstances the release of one joint tort feasor will operate as a discharge to the others is a question concerning which the courts of this country are not wholly in accord.

Upon three points there is general agreement: (1) Where the injured party accepts from one tort feasor a sum in satisfaction of his cause of action, this fact, whether recited in the release or not, is a complete discharge of those others who are or might be made parties defendant to the suit for damages. Brown v. Cambridge, 3 Allen 474; Delong v. Curtis, 35 Hun 94. (2) In those jurisdictions where sealed instruments possess their common law character, a release under seal made to one joint tort feasor releases all. The reason for the rule, as stated in Ellis v. Esson, 50 Wis. 138, is that "the meaning of such a release cannot be controlled by parol evidence, and the law raises a conclusive presumption that it was given in full satisfaction for the injury and for a sufficient consideration. Urton v.

Price, 57 Cal. 270; Rogers v. Cox, 66 N. J. L. 432. (3) A covenant not to sue one of the joint tort feasors will not release the others. Bailey v. Berry, 3 Ohio Dec. 483; Snow v. Chandler, 10 N. H. 92; Chicago v. Babcock, 143 Ill. 358.

The real question upon which the courts are not agreed is whether a release of one joint tort feasor independent of the question of full satisfaction, releases the others. A leading case supporting the affirmative of this question is Abb v. Railway Co., 28 Wash. 428. In that case a person injured by a collision between a passenger train and a street car accepted $300 and a pass from the street car company and executed a release, both parties to the transaction regarding this as a partial satisfaction only, but the court held that this release was a bar to an

action against the steam railway company. In an early Virginia case, Ruble v. Turner, 2 Hen. & Mun. 38, the court thus enunciated the rule: "The law says that if one joint tort feasor be released it shall bar a recovery against all the rest. The plaintiff can no more change the law, in this particular, by any subsequent proviso or condition than he could change the course of descents as prescribed by law." Seither v. Phila. Traction Co., 125 Pa. 397, is perhaps authority for the above rule. The case of Turner v. Hitchcock, 20 Iowa 310, may be noted as illustrating to what extreme it has been carried. In that case a number of women had made a raid upon the plaintiff's saloon and damaged his property. Subsequent to this and prior to beginning a suit for damages, plaintiff married one of the women. The court held that here was discharge by operation of law, that the intermarriage between the plaintiff and one of the tort feasors being a release to the one was a release to all. There was a dissenting opinion, concurred in by another judge.

In the recent case of Robertson v. Trammell, 83 S. W. 258 (Tex.), where the facts were similar to those in Abb v. Railway Co,, supra, it was held that “where an injured person accepted money from one of several joint tort feasors and dismissed as to him, and executed a release to him only, which did not show a release of the cause of action itself or full satisfaction of the claim for damages, such release did not discharge the other joint tort feasors. So in Mail Co. v. Barnes, 79 S. W. 261, decided by the Courts of Appeals of Kentucky, it was said: "It is not the intention of the law to force people into litigation and prevent settlements out of court. If ten persons committed a joint tort and injured a person to the extent of $1,000 and nine of them recognized that fact, and were willing to pay $100 each for the purpose of remunerating the injured person, and the tenth man refused to pay his $100, according to the appellant the injured party could not accept the $900 in part satisfaction and sue the stubborn tenth man. He would plead the settlement as a satisfaction and a bar. Such a construction of the law would be unreasonable and unjust." So in Bloss v. Plymale, 3 W. Va. 409, the rule laid down in Ruble v. Turner, supra, was denied and the court held that if damages are satisfied in part by payment or compromise with some of the defendants, plaintiff may still proceed against the others. Supporting this doctrine are the cases of Sloan v. Herrick, 49 Vt. 328, and Lovejoy v. Murray, 3 Wall. 1.

There is a tendency in some of the courts to allow the intention of the parties to govern the extent to which a release may be given effect. Sloan v. Herrick, supra; Ellis v. Esson, 50 Wis. 138; Irvine v. Milbank, 15 Abb. Pr. N. S. 378.

NOTICE AS APPLIED BETWEEN SUCCESSIVE ENCUMBRANCERS OF

PERSONALTY.

The question of necessity of notice, as between successive encumbrancers of personal property and the debtor, with refer

ence to the priority of their several claims is one as to which the decisions of this country are not in accord. The question first came up before the English courts in 1814 in the case of Cooper v. Fynmore, 3 Russ. 60, in which the rule was laid down that priority in point of time concluded the rights of encumbrancers, and that the question of notice had no application. Subsequently this ruling_was. reversed, and in 1823, in the case ef Dearle v. Hall, 3 Russ. 1, the present English doctrine was enunciated-viz., that as against subsequent bona fide assignees for a valuable consideration a notice to the holder of the legal title (the debtor, or some person acting or standing in his place or stead), is absolutely necessary in order to perfect the assignment and render it valid and effectual. This ruling was followed in the subsequent case of In re Freshfield's Estate, 11 Ch. D. 198, and in the late case of In re Dallas, L. R. 1904, 2 Ch. 385, where the question was raised as between the successive encumbrancers of an expectancy of a legacy under a will, the court holding that, until administration had, the legal title to such expectancy was in the administrator and that the priority of the claims of the several encumbrancers was in the order of their notification to such administrator, they being bona fide encumbrancers for value without notice.

The modern English rule has been followed in many of the courts of our states, including the Federal courts. Clodfelter v. Cox, I Sneed 330; Bishop v. Holcomb, 10 Conn. 446; Ward v. Morrison, 25 Vt. 593; Graham Paper Co. v. Pembroke, 124 Cal. 117; Judson v. Corcoran, 17 How. 613. Many of the other states, however, follow the early English doctrine. Muir v. Schneck, 3 Hill 228;

Warren v. Copelin, 4 Met. (Mass.) 594. Under this ruling, it

would seem that the giving of notice either to the debtor or to the assignee is entirely unnecessary. But even in these cases, it is essential that the assignee exercise due diligence in asserting his claim; otherwise he may forfeit it through negligence. Mercantile Ins. Co. v. Corcoran, i Gray 75; Fraley's Appeal, 76 Pa. 42. The practical wisdom of the English rule is clear, for it gives the means of determining between the conflicting rights, and affords purchasers of choses in action a security which they cannot obtain under a different system, short of registration. It is but just that all transfers of property should be rendered as complete as the nature of the circumstances will permit. It is clearly the the duty of an assignee, in order to perfect his assignment, to give notice to the debtor, for if notice be not given it enables the original creditor to commit a fraud, by assigning a second time, when the second assignee, although he may take the precaution of inquiring of the debtor, cannot ascertain from him the fact of a previous assignment, it never having been communicated to him. Under the earlier ruling, it is clear that no assignment can be taken with safety. The most effective remedy in these circumstances is to be met in legislation providing for the registration of conveyances of personalty.

JUDICIAL INQUIRY INTO THE VALIDITY OF A MUNICIPAL ORDINANCE.

The Supreme Court of California in Dobbins v. City of Los Angeles, 139 Cal. 170, announced the proposition, "The motives which induce a legislative body to make a law cannot be considered in a judicial proceeding in which the validity of the law is the question involved."

By "legislative body" the court had reference to a municipal council, the case being one in which it was sought to contest the validity of a municipal ordinance made for the public health and safety on the ground that to enforce the ordinance would be to interfere arbitrarily with property rights guaranteed in the 14th Amendment to the Constitution of the United States. We are bound to ask ourselves the question whether this declaration of the California court is the law with respect to municipal councils. According to the best authorities to be found in the books, it is not the law. The judicial branch of a state government; that is, a state court, cannot institute an inquiry into the motives of a legislature in enacting a state law. By analogy to this rule, 1 Dill. M. Corp. §311, it is true that as a general rule courts will not inquire into the motives behind municipal ordinances. But, as is said by the same authority, it will not do to apply the analogy to its full extent, for municipal bodies have too often shown themselves capable, like directories of private corporations, of using their powers fraudulently for their own advantage and to the advantage of others.

The California court in rendering their decision relied on Munn v. Illinois, 94 U. S. 113. A careful reading of this case will show that the principles there enunciated, while applicable to judicial interference with and inquiry into state enactments, are not applicable, by reason of the distinction shown above, to cases of judicial review of municipal ordinances.

As stated, the ordinance contested in Dobbins v. Los Angeles was one passed under authority of the police power given to the municipality. It was for the suppression of a gas manufactory, on the ground that the existence of the gas manufactory was a menace to the public health and safety. The making of gas, while in some respects a dangerous trade, is a lawful business. It is not a nuisance per se. A municipal corporation may by virtue of police power given to it restrain a lawful business, when the good of the public demands the restraint, and any damage resulting thereby to the proprietor of the lawful business or trade is considered damnum absque injuria, for "salus populi suprema lex est," 1 Dill. M. Corp. §141 et seq. But the weight of authority is to the effect that the regulations in restraint of a lawful business must be reasonable. Ex parte Lacey, 108 Cal. 326; St. Louis v. Howard, 119 Mo. 41; Phillips v. Denver, 109 Colo. 179. Clearly the regulations must be reviewable, else how can it be ascertained whether they are reasonable? It has also been held that, a city has no authority, general or implied, to suppress or confine a lawful business unless the business be a nuisance per se. Crowley v. West, 52 La. Ann. 527.

The case Dobbins v. Los Angeles was carried from the Supreme Court of California to the Supreme Court of the United States. The decision of the California court was reversed. 25 Sup. Ct. 18. In rendering the decision, Mr. Justice Day said, in part, that every intendment is to be made in favor of the lawfulness of the exercise of municipal power in making regulations for the public health and safety, and that it is not the province of the courts ordinarily to interfere. But that, notwithstanding this, it is now well settled that municipal by-laws and ordinances are subject to investigation in the courts with a view to determining whether or not there has been an unwarranted interference with constitutional rights. Lawton v. Steel, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366.