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HAND BAGGAGE RETAINED IN THE CONTROL OF THE PASSENGER. The extraordinary liability of a common carrier of goods as an insurer has been said to be a survival of the law as it once was in all cases of bailment. Probably the only cases holding the bailee liable in the absence of negligence rested on his undertaking to carry the goods safe from robbery, and the present insurer's liability is a result of a mistaken extension by Lord Mansfield of those cases. Whatever the true explanation of the sources of this liability, its basis is a bailment of goods to the carrier as carrier. Liability begins only with the delivery of the goods into his possession, and ends when the possession as carrier ends. Thus, when the owner accompanies his goods, so that the carrier does not assume the bailee's control, the carrier is not liable as insurer.6

For baggage delivered to the carrier for the journey, he is liable as an ordinary carrier of goods.? Lord Holt held in two cases that there was no responsibility, unless a distinct price was paid for the baggage. But the obligation to transport with the passenger certain personal effects necessary on the journey' has long been recognized 10 and compensation is found in the payment of fare. 11 As in the days of the stagecoach the bulkier articles were placed in the boot,12 so now they are taken in a separate baggage car. But small articles of immediate necessity the passenger has the right to keep with him.13

For baggage rightfully retained by the passenger in his sole possession, the rule is well settled that the carrier is responsible only for due care.14 But the cases are in great conflict where the passenger retains only some degree of control. According to some cases, the carrier has apparently no responsibility at all.15 Against steamship companies, New York enforces the peculiar innkeeper's liability.16 Other cases impose the insurer's liability unless the possession by the passenger is exclusive.1? But unless the possession by the carrier is exclusive, the better view seems to be to hold the carrier responsible only for due care.18

18 This test

| HOLMES, COMMON Law, Lecture V.
2 Forward u. Pittard, 1 T. R. 27. See 11 Harv. L. REV. 158.

: The R. E. Lee, 2 Ább. (U. S.) 49. See Wyckoff v. Queens County Ferry Co., 52 N. Y. 32, 35.

Bulkley u. Naumkeag Steam Cotton Co., 24 How. (U. S.) 386. 5 Quimit v. Henshaw, 35 Vt. 605. 6 East India Co. v. Pullen, 2 Str. 690. 7 Woods v. Devin, 13 Ill. 746. 8 Middleton o. Fowler, 1 Salk. 282; Upshare o. Aidee, i Comyns 24.

• For a good statement of what constitutes proper baggage, see Woods o. Devin, supra, 750.

io Brooke v. Pickwick, 4 Bing. 218. 11 See Chicago & Rock Island R. Co. v. Fahey, 52 Ill. 81, 83. 12 See Brooke v. Pickwick, supra. 13 Runyan v. Central R. Co. of New Jersey, 61 N. J. L. 537, 41 Atl. 367. 14 Tower v. Utica & Schenectady R. Co., 7 Hill (N. Y.) 47, 16 Steamboat Crystal Palace v. Vanderpool, 16 B. Mon. (Ky.) 302. 16 Adams v. New Jersey Steamboat Co., 151 N. Y. 163, 45 N. E. 369. 17 Louisville, Nashville & Great Southern R. Co. v. Katzenberger, 16 Lea (Tenn.) 380; Richards v. The London, Brighton, & South Coast Ry.,7 C. B. 839; Le Conteur 0. London & South Western Ry. Co., L. R. 1 Q. B. 54.

18 Whicher v. Boston & Albany R. Co., 176 Mass. 275,57 N. E. 601; American Steamship Co. v. Bryan, 83 Pa. St. 446.

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is in accord with the authorities on the nature of the responsibility of the carrier of goods.19

A recent case adopts the test suggested, and points out a further requisite for imposing liability as insurer. Hasbrouck v. New York Central & Hudson River R. Co., 202 N. Y. 363, 95 N. E. 808. A trainman of the defendant railway, who was assisting the plaintiff in changing cars, had her handgrip for about fifteen minutes in the front of the car. For a loss of goods from the handgrip, the railway was held responsible only for due care. Although the railway had possession, it was merely temporary, while rendering a service incidental to the carriage of a passenger. Thus, to be liable as insurer, the carrier must hold the goods as carrier.? Mere possession is not enough.21 That the possession is in the regular course of business should not produce a contrary result,22 for of such character is the carrier's possession after completion of the journey, when due care only is required.23 The principal case should aid in producing a more desirable state of the authorities.


EXTENT OF VALID WAIVER OF CRIMINAL PROCEDURE. - Many incidents of the usual criminal trial procedure may be waived by the defendant without rendering his conviction invalid. Examples of this are his waiver of a formal arraignment, specification of the charges against him, personal presence at the trial, and the right to be confronted by witnesses. An accused may agree to be bound by the verdict in the case of a co-defendant.5 The incidents waived may be assured to him by constitutions, by statutes, or by the common law. But waiver of a jury trial is invalid; o similarly, if the jury have not been sworn a conviction is invalid; 10 and, by the weight of authority, a trial by a jury of less than twelve, though assented to by the accused, is illegal.11 In

19 Undoubtedly, difficult questions of fact will arise as to what constitutes assumption of possession by the carrier. See Nashville, Chattanooga & St. Louis Ry. Co. 0. Lillie, 112 Tenn. 331, 78 S. W. 1055.

20 Holmes v. North German Lloyd Steamship Co., 184 N. Y. 280, 77 N. E. 21.

21 The carrier may hold the goods as warehouseman. Laffrey v. Grummond, 74 Mich. 186. He may have possession momentarily while assisting a passenger to board a street car. Sperry v. Consolidated Ry. Co., 79 Conn. 565, 65 Atl. 962.

22 Holmes v. North German Lloyd Steamship Co., supra. Contra, Butcher v. London & South Western Ry. Co., 16 C. B. 13. See WYMAN, PUBLIC SERVICE CORPORATIONS, $ 769. 23 Laffrey u. Grummond, supra.

· Hack v. State, 141 Wis. 346, 124 N. W. 492. Contra, Crain o. United States, 162 U. S. 625, 16 Sup. Ct. 952.

? State o. Mitchell, 119 N. C. 784, 25 S. E. 783, 1020. 3 People v. Thorn, 156 N. Y. 286, 50 N. E. 947. * Odell v. State, 44 Tex. Cr. R. 307, 70 S. W. 964; State v. Olds, 106 Ia. 110, 76 N. W.


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Anonymous, 3 Salk. 317. 6 Williams v. State, 61 Wis. 281, 21 N. W. 56. • Flynn o. State, 97 Wis. 44, 72 N. W. 373. & Wells v. State, 16 S. W. 577 (Ark.). • Harris v. People, 128 Ill. 585, 21 N. E. 563. 10 Slaughter v. State, 100 Ga. 323, 28 S. E. 159.

11 Dickinson v. United States, 159 Fed. 801. Contra, State o. Sackett, 39 Minn. 69, 38 N. W. 773.

a recent case, after all the evidence was in, one of the jurors was changed, and all the jurors were then sworn. The only evidence presented to these jurors was the reading of the testimony which had been taken before the original jurors. The accused consented to these proceedings. But it was held that the conviction was illegal. People v. Toledo, 72 N. Y. Misc. 635, 130 N. Y. Supp. 440.

The extent of valid waiver must be determined by the purpose of the procedural system and its particular elements. The system itself aims to secure a rational trial. The protection of the accused is the basis of some of its incidents; 12 that of others is said to be a public interest in assuring to him such protection, even against his own will.13 In so far as any rule is for the benefit of the accused alone, the validity of his waiver should be unquestioned.14 But the basic theory of our trial procedure requires that his waiver shall not make the trial irrational. The only other limitations arise from the theory of public interest, and are ascertainable by determining its meaning, its reasonableness, and its present scope.

Definition of the theory of public interest is difficult because the decisions have not attempted it. The meaning cannot be that fairness to the accused requires the usual procedure, unchanged; on the contrary, his waiver may be a convenience, and even a source of protection, to him; 15 and, if anything, the accused is today over-protected.16 Nor can it mean that procedural changes will be prejudicial to the state as a party; a rational trial is sufficient for the protection of the state in criminal trials. The theory may be merely an example of over-tender regard for the accused; or, possibly, it is a survival of the eighteenthcentury notion of an arbitrary magistracy against which the people must be protected.17 The latter is the more likely, because the theory has been applied only where the principles of constitutional construction require the adoption of views current at the time of the adoption of the American constitutions. Under either explanation, however, it is today logically indefensible.18 It has never been extended to some of our earliest constitutional provisions.19 Latterly, the United States Supreme Court has indirectly declared against such a theory:20 It finds its chief expression in the prohibition of the waiver of trial by jury, and such trial features as may be said to be inseparable from the conception of jury trial.21 The final question then becomes one of determining what is an integral part of a trial by jury, as provided for constitutionally. And since the interpretation which makes it impossible to waive a jury is due to an old conception no longer accepted, the theory of public interest should be limited as closely as possible in its application.

12 State v. Woodling, 53 Minn. 142, 54 N. W. 1068. 13 Cancemi v. People, 18 N. Y. 128.

14 Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826; State o. Polson, 29 Ia. 133.

15 State v. Kaufman, 51 Ia. 578, 2 N. W. 275; Commonwealth o. Dailey, 12 Cush. (Mass.) 80.

16 See Taft, PRESENT DAY PROBLEMS, 343-353.

17 See Ex parte Bain, 121 U. S. 1, 12, 7 Sup. Ct. 781; THE FEDERALIST, No. 83; 3 WASHINGTON, WRITINGS OF THOMAS JEFFERSON, 81-82; MCCLAIN, CONSTITUTIONAL Law, $ 254.

18 See McClain, CONSTITUTIONAL LAW, $ 254.
19 State v. Mitchell, supra; Dula o. State, 8 Yerg. (Tenn.) 511.

30 Hawaii v. Mankichi, 190 U. S. 197, 23 Sup. Ct. 787; Dorr v. United States, 195 U. S. 138, 24 Sup. Ct. 808.

21 Cancemi v. People, supra.

DOWER AS SUBJECT TO INHERITANCE TAX. — An important question in the construction of inheritance tax laws is whether dower comes within their scope. A recent Tennessee decision holds that under a statute taxing property passing “under the intestate laws” dower is not taxable. Crenshaw v. Moore, 137 S. W. 924 (Tenn.). Illinois under an identical statute adopted the contrary rule.

In deciding the question as to what is covered by inheritance taxes, the general intention of legislatures in passing such laws must be subordinated to the meaning of the words used to express that intention. The mere fact that the transfer of property occurs on the death of an intestate does not show that it passes under “intestate laws." The term "intestate laws” refers only to the laws “governing intestate succession.” 3 Clearly all property of an intestate is not subject to the inheritance tax, as for example that which is applied to the payment of the debts of the deceased; for “it is recognized by . . . courts generally that a tax of this character is not a tax on property as such but one upon the right of succession." 4

Is dower a form of succession? Its origin is probably to be found in an early Germanic custom of the husband's giving the wife a dos on marriage. In Saxon times the widow was supported wholly out of the personal estate, and not until the Norman conquest did dower in land arise. Blackstone says that the reason our law adopted it was "for the sustenance of the wife, and the nurture and education of the younger children.”

.”6 The right has always been treated with the greatest solicitude until modern times, and as far back as Magna Charta, the widow was freed from the burden of fine and relief, to which all heirs and alienees were subject. This early special privilege marks a difference between inheritance and dower which is due to the complete lack of connection between dower and the rules of descent; and in fact the widow's estate is a temporary dislocation of these rules. Furthermore before the husband's death the right to dower, although not vested, is still a contingent right of sufficient importance to be a subject of judicial protection,10

1 The same conclusion has been reached under a code. Succession of Marsal, 118 La. 211. And it has been so held with respect to curtesy. In re Starbuck's Estate, 63 N. Y. Misc. 156, 116 N. Y. Supp. 1030, aff. 137 N. Y. App. Div. 866, 122 N. Y. Supp. 584.

2 Billings v. People, 189 Ill. 472, 59 N. E. 798.
3 See In re Joyslin's Estate, 76 Vt. 88, 92, 56 Atl. 281.
* See In re Kennedy's Estate, 157 Cal. 517, 523, 108 Pac. 280, 282.
5 See 1 SCRIBNER, DOWER, 2 ed., ch. 1, $ 5.
6 See Bl. COMM., Bk. II., $ 129.
? See 1 SCRIBNER, DOWER, 2 ed., ch. 1, $$ 32, 33.
8 See id., § 15.

• Virgin v. Virgin, 91 Ill. App. 188; Boyd v. Harrison, 36 Ala. 533. But see 2 SCRIBNER, DOWER, 2 ed., ch. 1, $$ 7–18.

10 Atwood v. Arnold, 23 R. I. 609, 51 Atl. 216.

while the expectant heir's right is not recognized." But more fundamentally, inheritance or succession 12 are the terms applied to the devolution and distribution of the real and personal property of an estate 13 which remains after all liabilities have been settled.14' Dower on the other hand is itself an obligation of the estate created by the law. It is not part of the assets to be distributed; and so important an obligation is it considered that it must be satisfied not only prior to the distribution but even in preference to the other debts of the deceased.16 This finally must be conclusive proof that the widow is really a creditor and in no sense a distributee, 16 and hence that dower is not a form of succession.17

The above reasoning can be supported by an analogy. It has been held that "a homestead right . is not a right which vests under the law by succession. It is a right bestowed by the beneficence of the law of this state for the benefit of the family » 18 and hence is not subject to an inheritance tax.19 The same principle is equally applicable to the right of dower.

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ACCORD AND SATISFACTION - VALIDITY - RETENTION OF SUM OFFERED AS FULL SETTLEMENT OF ANOTHER'S DEBT. - The father of a debtor wrote to the creditor, offering, in full settlement of the debt, an amount less than that of the debt, and enclosing a draft for that amount. The creditor cashed the draft, and wrote that he had placed the sum on account. Held, that he cannot recover the balance from the debtor. Punamchand v. Temple, (1911) 2 K. B. 330 (C. A.).

The principal case does not profess to alter the strict English rule as to the question of satisfaction by a third person, but follows a dictum of Willes, J., in declaring that payment not technically satisfaction may bar further recovery by the creditor. See Cook v. Lister, 13 C. B. N. S. 543, 594. Yet, in order to have that effect, the payment must be received in full discharge of the debt. It was formerly held by the Court of Appeal that whether or not a check or draft, offered in full settlement, was accepted as such is a question of fact to be decided by the trial judge or jury. Day v. McLea, 22 Q. B. D. 610. The principal case

11 Thorne v. Cosand, 160 Ind. 566, 67 N. E. 257.

12 The words are practically synonymous according to modern use. See Stolenburg v. Diercks, 117 Ia. 25, 29, 90 N. W. 525, 526.

13 See State v. Payne, 129 Mo. 468, 477, 31 S. W. 797, 798. 14 McLaughlin v. Bank of Potomac, 7 How. (U. S.) 220.

15 See Sisk v. Smith, 6 Ill. 503, 511. In Pennsylvania it is otherwise by statute. See Porter v. Lazear, 109 U. S. 84, 86, 3 Sup. Ct. 58, 59.

16 See Hill's Admrs. v. Mitchell, 5 Ark. 608, 618.

17 “The dissimilarity in the origin, character and duration of the two estates (that of the widow and the heir) must be plain to every apprehension." See Sutherland v. Sutherland, 69 Ill. 481, 486. This conclusion is not weakened when, as in the principal case, there is a statute limiting the right of dower to those lands of which the husband died seised. Such a statute, in derogation of the common law, cannot be held to change the nature of dower unless it expressly so provides. It must be confessed, however, that if both this statute and the Pennsylvania statute in note 15 were in effect in the same jurisdiction, from an analytical point of view it would be hard to distinguish such an emasculated dower from a form of inheritance like the pars legitima of the Civil Law. '18 See Estate of Moore, 57 Cal. 437, 442. 19 In re Kennedy's Estate, supra.

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